Polygamous Marriages in India

Introduction:

The practice where a person has more than one spouse is Polygamy. Polygamy is of two types which are Polygyny and Polyandry. In Polygyny a man marries more than one woman while in polyandry it is the woman who marries more than one man. In India, laws related to polygamy are heavily directed by religion considering it to be a cultural topic. Islam is the only religion where limited polygyny is permitted and there can be four wives while polyandry is completely prohibited, while in all the other religions it is illegal.

Types of Polygamy

Polygyny

Polygyny as mentioned above id when a man has multiple wives. It is a common practice since ancient times when kings in India used to have multiple wives and other people at high pedestals also. One of the reasons for this was that it became a means for them to establish power and accumulate wealth, land and titles. It was also considered to be a status symbol.

Polyandry

Polyandry is the concept of a woman having multiple husbands. This is not a very common concept and leads to the creation of asymmetry and may be the reason of inequality between sexes. Also, this practice has never been held in high esteem and looked down upon by society.

Group Marriages

The arrangement where men and women of a group consider them to be married to each other in the group is the arrangement of group marriage. It is seen as a combination of polygamy and polyandry. Lewis Henry Morgan also states that in a group marriage there should be the existence of the ten basic relations which are wife, co-wife, husband co-husband, mother, father, son, daughter, brother and sister.

Ancient History of Polygamy

In ancient India, polygamy was prevalent in one form or the other with it being mostly practiced by the rich aristocrats and emperors. In the Vedic period, the relations of marriage were mostly governed by Upanishads, Sutras or the Smritis and the Hindu husband was permitted to marry again even on the existence of a wife but there was supposed to be a proper cause for such conduct. Though Vedic Indians mostly practice monogamy, Manu justifies that why remarriage can take place giving reasons such as barrenness, ill-temper, ill-health or wrong behaviour by the wife. It is given in the Subodhini and Mitakshara. It is also ancient documents like Arthashastra, Smritis and Epics which state a man can have wives who are from the same caste or each below him. In Hindu culture, the epics themselves give examples of polygamy being practised like the Ramayana where there were three wives of the king. There have been directions in the Mahabharata also that a Brahmin can have three wives, a Kshatriya can have two wives while a Vaishya can have a wife from his own community or order.

In Islam, the contract marriage which is Nikah is known to be the purest relation and basis of society. The Holy Quran in its Chapter IV, Verse 3 states that if a Muslim man comes across an orphan female who is neglected by society the man can marry her provided, he can do justice to all his wives. A man can have four wives and this concept of polygamy in Islam claims to be based on kindness and compassion and it is restricted polygamy.

Recent Laws & Statutes on Polygamy

 Hindu Law

Hindu Polygamy was abolished and criminalized under what came as the Hindu Marriage Act, 1955 which came into force on 18^th May 1955 and Hindus only have the option to adhere to Monogamy. It is clear in the Act that for a Hindu spouse to do a second marriage the first one has to be dissolved either by the way of divorce or death of either of the spouse. Monogamy under Hindu Marriage Act was imposed under Section 11 where it also provided that bigamous marriages are void from the inception. If any of the person practices bigamous or polygamous marriage they are punishable as given in the provisions of Section 17 of the same Act. It is not only the Hindu Marriage Act but the Indian Penal Code also states this as an offence under its Section 494 and Section 495. Under IPC to constitute the offence of polygamous marriage the accused should be married and such marriage should be valid, then the person should be married to subsequently to another person and that marriage must be solemnized at the time the first spouse is alive. The IPC section also provides that in order for the above provisions to not be applicable the first marriage should be declared void by the court or the spouse has been absent for seven years at the time of subsequent marriage and has not been heard or believed to be alive.

It is not only Hindus, but the provisions of the Hindu Marriage Act are also binding to the Buddhists, Jains and Sikhs and they do not have separate laws. The three religions are binding to the Act and according to Section 5, 11 and 17 bigamous marriages are void and penal.

Muslim Law

Section 2 of ‘Muslim Personal Application Act (Shariat), 1937’ which is interpreted by the All-India Personal Law Board is binding to the Muslims in India. In Muslim law, Polygamy is not prohibited because it is their religious practice which is protected. If there is a question or conflict between IPC and the personal laws that would prevail because it the specific law which prevails over the general law. But it is clear that if this practice in any way tries to violate any fundamental rights, then they can be struck down and this is the Constitutional aspect of these laws.

Judicial Decisions on Polygamous Marriage

The idea of the court to take some strict decisions over-riding personal laws is because of its observation that any liberty in the laws has led to people exploiting it and it is the responsibility of the law-keepers to establish a disciplined behaviour. Judicial decisions against the practice of polygamy have been taken for various decisions that the court believes to be right.

Social Reforms

The courts have acknowledged the fact that polygamous marriages are social ill in Indian society and have worked towards reform through various judgements. In the case of State of Bombay v. Narasu Appa Mali the Bombay High Court rejected that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 was discriminatory. The court believed that for the aim of social reform there was nothing wrong to over-ride the practices of Hindu Religion and the State Legislature can do it. It also addressed the fact that the State Legislature can take such steps for reform. Also, in the G. Sambireddy v. G. Jayamma case, the Andhra Pradesh High Court referred to the same decision and it was held that Article 15(1) was not violated by the Section 11 and 17 of the Hindu Marriage Act, 1955.

Conflicts with Other Legislations

There have been cases where legislatures that have been implemented were conflicted. In the Sarla Mudgal & Others v. Union of India was a landmark judgement by the Supreme Court which said that if a Hindu Marriage has been solemnized in accordance with Hindu Marriage Act, then it can only be dissolved only on grounds that have been specified in the Act. Converting into Islam and then remarrying would not dissolve the previous marriage. The Hindu man can convert into Islam but cannot marry until the previous marriage has been dissolved.

Another case was the Mohd. Ahmed Khan v. Shah Bano Begum & Others which was also an important judgement in terms of the Muslim personal laws. The Supreme Court had held that the two legislations involved in the case which were Section 125 of CrPC and Muslim Personal Law were not in conflict because they were being applied for different subjects and even where a conflict between statutory and personal law arises it is the statutory law which prevails.

Not Religiously Compulsory

There have been many judgements where it has been stated that the provision of Muslim law on having four wives is permissible and not a mandate. This decision was also upheld in the case of Abdur Rahim Undre v. Padma Abdur Rahim Undre where Bombay High Court held that under Mohummadan law the ceiling is to have four wives but this does not mean they have the obligation to have four wives. 

Another decision that clears the stand of the Indian judiciary and law on the Muslim personal law on polygamy was the Itwari v. Smt. Asghari & Others in which the wife refused to live with the husband when he bought in his second wife. The Allahabad High Court held that in India the law tolerates polygamy as a practice because it exists in the Muslim personal laws but it does not encourage the practice. There is no fundamental right provided to the husband where he can compel his wife to live with the other wife. It also said that the Muslim have the right of the second marriage and would not be accused of bigamy but they do not have the right to demand their wives to share the same spouse

Conclusion

It is quite evident that Polygamy has existed in ancient Indian society for a long and it might as a practice look very harmless but that is not the case because in today’s society it deepens the prevailing the gender issues. In the already patriarchal society where men have dominance, these practices are very easily ignored. What is not realized is that this also creates a very toxic environment for the coming generations as there is discontentment and they are also exposed to problems like domestic violence. But now it has been observed that polygamy in upper strata has become more of a status symbol and so the courts have made sure that they give judgements that push the fact that polygamy in Muslims is not a religious mandate and can be prohibited for social reform.

References:

1. Abdur Rahim Undre v Padma Abdur Rahim Undre (1982) AIR 1982 Bom 341(India)
2. G. Sambireddy v G. Jayamma (1972) AIR 1972 A.P.
3. Hemant More, Monogamy, Polygamy and Polyandry, THE FACT FACTOR (Sept 17, 2019), https://thefactfactor.com/facts/law/civil_law/family_laws/polygamy/3459/
4. Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India)
5. Itwari v Smt Asghari & Others (1960) AIR 1960 All 684 (India)
6. Joncy Lakhani, Is Polygamy Legal in India? How does it impact Indian society? , PRO BONO INDIA (August 30, 2020), http://probono-india.in/blog-detail.php?id=162
7. Mohd. Ahmed Khan v Shah Bano Begum & Others (1985) 2 SCC 556
8. Sarla Mudgal v Union of India 1995 AIR 1531
9. Shalu Bhati, Concept of Polygamy in India, LAW CIRCA (Nov 26 2020), https://lawcirca.com/the-concept-of-polygamy-in-the-indian-context/#:~:text=The%20British%20brought%20about%20a,as%20a%20practise%20among%20Hindus.
10. State of Bombay v Narasu Appa Mali (1952) AIR 1952 BOM 84
11. The Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 1937 (India)