The law on polygamy among religious groups in India

The law on polygamy among religious groups in India

Subject :Polity

Section: Constitution

Context: ASSAM CHIEF MINISTER Himanta Biswa Sarma has said that the state government will move to ban the practice of polygamy through “legislative action”, and that an “expert committee” would be formed to examine the issue.

Prevalence of polygamy

The National Family Health Survey-5 (2019-20) showed the prevalence of polygamy was 2.1% among Christians, 1.9% among Muslims, 1.3% among Hindus, and 1.6% among other religious groups.

The data showed that the highest prevalence of polygynous marriages was in the Northeastern states with tribal populations. A list of 40 districts with the highest polygyny rates was dominated by those with high tribal populations.

Concept:

Polygamy is the practice of having more than one married spouse—wife or husband. The issue is governed both by personal laws and the Indian Penal Code (IPC).

Traditionally, polygamy—mainly the situation of a man having more than one wife was practised widely in India.

Polygamy under various laws:

Under Hindu law 

After Independence, anti-bigamy laws were adopted by provincial legislatures including Bombay and Madras. The Special Marriage Act, 1954, was a radical legislation that proposed the requirement of monogamy.

Sub section (a) of Section 4 of the SMA (“Conditions relating to solemnization of special marriages”) requires that “at the time of marriage…neither party has a spouse living”. Parliament passed the Hindu Marriage Act in 1955, outlawing the concept of having more than one spouse at a time. Buddhists, Jains, and Sikhs are also included under the Hindu Marriage Code.

Section 5 (“Conditions for a Hindu marriage”) of the Hindu Marriage Act lays down that “a marriage may be solemnized between any two Hindus, if [among other conditions] neither party has a spouse living at the time of the marriage Under Section 17 of the HMA bigamy is an offence, “and the provisions of sections 494 and 495 of the Indian Penal Code, 1860, shall apply accordingly”.

However, despite bigamy being an offence, the child born from the bigamous marriage would acquire the same rights as a child from the first marriage under the law.

Exception to the bigamy law for Hindu:

A crucial exception to the bigamy law for Hindus is Goa, which follow its own code for personal laws. So, a Hindu man in the state has the right to bigamy under specific circumstances that are mentioned in the Codes of Usages and Customs of Gentile Hindus of Goa.

These circumstances include a case where the wife fails to conceive by the age of 25 or if She fails to deliver a male child by the age of 30.

The Parsi Marriage and Divorce Act, 1936, had already outlawed bigamy.

Under Muslim law

Marriage in Islam is governed by the Shariat Act, 1937. Personal law allows a Muslim man to have four wives.

To benefit from the Muslim personal law, many men from other religions would convert to Islam to have a second wife.

In a landmark ruling in 1995, the Supreme Court in Sarla Mudgal v Union of India held that religious conversion for the sole purpose of committing bigamy is unconstitutional.

This position was subsequently reiterated in the 2000 judgment in Lily Thomas v Union of India.

Any move to outlaw polygamy for Muslims would have to be a special legislation which overrides personal law protections like in the case of triple talaq.