Polygamy and the Indian Law

Polygamy means entering into more than one marriage while the first marriage is still subsisting. Marrying second time will be Bigamy. If Husband marries multiple times, it is Polygyny. If wife marries multiple times, it is termed as Polyandry. The Polygamy is not common and in most of the societies, it is looked down upon. Economically also, it is difficult to sustain. The Committee on the Status of Women in India, 1974, brought out (Page 67 of the Report) that as per Census of India (1961) Sample survey of 1 Lakh marriages, the polygamy was prevalent among all the communities of India: In percentage terms it was for Tribals (15.2), Buddhists (9.7), Jains (6.7) and Hindus (5.8). Muslims were, in fact, found least polygamous (5.7). After Hindu Marriage Act was notified (18 May 1955) making monogamy as a rule, the incidence of Polygamy in Hindus (including Buddhists and Jains) is expected to have come down. However no significant new study has been made in this direction.

From a cursory reading it appears that Polygamy is an offence under Indian Penal Code. But a deeper reading brings out that if the applicable Personal Law or Practice permits Polygamy and does not make the second marriage void then it was not a Penal Offence. This is because of specially crafted wordings of Section 494 of IPC . The Section is reproduced as below.

IPC Section 494.  

Marrying again during lifetime of husband or wife.-Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(Exception) - This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge

The section is applicable only where the marriage under reference is void (except as provided in exception). Now the question of' void 'cannot be decided unless we make a reference to Marriage Laws under which the Accused obtained the status of Husband or wife before such void marriage. Thus we have to examine the personal law applicable to Spouse relating to previous Marriage.

In India the Marriage Laws are different for different people depending upon the Religious practices they follow. Further there are Tribes having no codified marriage law but definite practices. Major religious Groups in India are Hindus, Muslims, Christians, Parsis, Buddhists, Jains and Sikhs. Out of these Buddhists, Jains and Sikhs are covered by the Law governing Hindus that is Hindu Marriage Act 1955. Muslim marriages are governed by Muslim Personal Law (Shariat) Act 1937.Christians are governed by Christian Marriage Act 1872 and Parsis are by Parsi Marriage and Divorce Act 1935. Inter religion Marriages can be solemnized as per Special Marriage Act 1954. This Act is also open to all, irrespective of their religion including those who do not profess any religion at all. The Civil Marriages in foreign countries between two Indians or Indian with a Foreigner can be solemnized under Foreign Marriage Act 1969.

For Marriages under Special Marriage Act 1954 "neither party has a spouse living" is a precondition. Thus under this law the Polygamy is not permissible. The second marriage violating this basic condition will be void. If the first Marriage is under any other Law and second marriage is under Special Marriage Act then the Provisions of Section 43 of this Act are attracted which provide that the person will be deemed to have committed offence under 494 of IPC if the Spouse is living and exceptions are not attracted. A person whose subsisting marriage was solemnized  under Special Marriage  Act , and the second marriage is made under any other Law will, in accordance of the provisions of Section 44 of the Special Marriage Act attract Section 494 IPC with similar consequences.

Monogamy is the rule under Foreign Marriage Act 1969. Section 4 of this Act states that 'neither party has spouse living 'is a pre condition of marriage. Having been married under this Act, if the Spouse contracts any other marriage in India during subsistence of first marriage, the provisions of Section 494 IPC are attracted.

Parsi Marriage and Divorce Act 1936 also prohibits Polygamy and makes it punishable under section 494 and 495 of IPC. Section 4 of this Act provides that no Parsi shall contract any marriage under this Act or any other Law if spouse is living, whether Parsi or not unless existing marriage is lawfully dissolved or declared null and void or after lawful divorce. Section 5 of the Act provides that such acts by every Parsi will be subject t0 penalties of Section 494 and 495 of the IPC. One unique feature of Parsi Act is that Parsis remain covered by this Marriage Law even if they convert to any other religion or change their domicile. This may be interesting to note the foresight of lawmakers when we note some Hindus converting to Islam just to provide legal cover for their second marriage.

Christian Marriage Act 1872 does not have direct provision prohibiting Polygamy. But in effect it makes Polygamous marriages impossible. There are two Authorities who can solemnize the Christian Marriage. One is the Minister of Religion of a Church and the other is Marriage Registrar. In first case the relevant Form has only two statuses for person to be married-Bachelor/Spinster or Widower/Widow. So there is no scope for those with subsisting marriage. Besides a certificate is required that there no impediment of kindred or affinity or other lawful hindrance In case of by Marriage Registrar ,the person has to take a oath to the same effect. In case of Native Christians the marriage can be certified without fulfilling the requirement of the preliminary Notice but then there are conditions which include a condition that 'neither of the persons intending to be married shall have a wife or husband still living.' Signing a false notice or making false oath or declaration for the purpose of procuring a marriage is an offence punishable under Section 193 of IPC. Thus in effect Christian Marriage Act also does not allow polygamous marriages.

Hindu Marriage Act 1955

Who is a "Hindu" has not been defined in Hindu Marriage Act or even in Indian Succession Act. But Courts have held that it is a term understood easily specially when identifying who is or is not a Hindu. Section 2 of the Hindu Marriage Act specifies the persons to whom the Act is applicable. Clauses (a), (b) and (c) of Sub-section (1) of Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj and to persons who is a Buddhist, Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion. The applicability of the Act is, therefore, comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by religion.

Hindu (including Budhists, Jains and Sikhs) Marriages are to be in accordance with the provisions of Hindu Marriage Act 1955. This Act completely bans polygamous marriage, declares it void and makes it an offence under Section 494 and 495 of IPC. Section 5 of the Act is about the conditions for Hindu Marriage. Interalia it provides ( Clause (i) ) that for a valid marriage 'neither party has  a spouse living at the time of Marriage'. Section 11 provides that contravention of this clause will make the marriage null and void. Section 17 provides punishment for Bigamy by applying the provisions of Section 494 and 495 of IPC. It also declares such marriage void.

Once the Parties legally get married under Hindu Marriage Act, mere conversion of one spouse to another religion does not dissolve that marriage. A Hindu marriage can be dissolved only by the provisions mentioned in the Hindu Marriage Act. In Sarla Mudgal v Union of India (15AIR 1995 SC 1352) Kuldip Singh, J, sitting. with Sahai, J, made a constructive and valuable contribution to a problem that has long vexed Indian society. That problem is the path of escape from matrimonial obligations chosen by certain men married under the Hindu Law by 'conversion' to another religion, usually Islam, which seemingly offers them such indulgence. This happens in cases where marriages have broken down irretrievably or where, under some influence, there is an urge to change partner.

Relying on Ram Kumari, Budama.v Fatima, and Nandini v Crown,Kuldip Singh, J, drew a valuable conclusion. These were all cases where the woman had converted. It had been held that such conversion did not dissolve the marriage tie. Kuldip Singh, J, held that the same rule would apply to a case of conversion by a Hindu man to another religion. What is sauce for the goose is sauce for the gander. That, as Kuldip Singh, J, rightly held, is the traditional position that has not been changed by legislation. Thus when two persons are married under the Hindu Law, the apostasy from Hinduism of one spouse or his or her conversion to any other religion does not dissolve that marriage.

Muslim Marriage Law

There is no State Legislation in India governing Muslim Marriage. According to Muslim Personal Law (Shariat) Application Act 1937, the subject of Marriage is included in the List of subjects (Section 2 of the Act) on which Courts will apply only Muslim Personal Law, as a rule for decision where both the parties are Muslim.  But the Act does not lay down what the Muslim Personal Law is. There is no codification as such for Muslim personal law. One has to go by Quran and its interpretation, Hadith (Actions and words of Prophet as recorded by his companions) and Sharia ( unwritten divine law among Muslims on the basis of Quran and Hadith) for ruling on matters containing marriage. There are minor variations in Muslim Marriage personal Law depending on different sects within the Muslim community. However it is clear that Muslim Personal Law permits multiple marriages for the Male and it is not illegal for a Muslim Male to marry a second time during the subsistence of his first marriage.

In Quran Surah al-Nissa' Ayat 3 it is said

' And if you have reason to fear that you might not act equitably towards orphans , then marry from among other women such as are good to you- two, three or four; but if you have reason to fear that you might not be able to treat them with equal fairness  then only one …'

 Above verse is quoted by the advocates of Polygyny to draw up support of Quran for the practice of Polygyny amongst Muslims. But one has to read it in context and consider the social milieu of those times in Seventh Century Arabia. Issue was how to handle the large number of widows and orphans who were left without husbands and fathers after the Battle of Uhud near Medina between early Muslims and the inhabitants of Mecca in which Muslims suffered defeat and many Muslim men were killed. The verse is addressed to the guardians of such female orphans and not to the Muslims in general. It enjoins on such guardians to treat the orphans justly (and not cast dirty eyes on them or have greed of orphan's property)) if required by marrying (outside their guardianship) amongst other women who are virtuous. This context is crucial to any discussion of polygamy in Islam; polygamy was allowed in this verse because of utmost concern for the welfare of women and orphans who were left behind in the battle.

By no means it is a general license to Muslims in present times to marry with more than one woman. Besides it puts onus on them to treat the additional spouses justly which is admittedly a difficult task. In fact in the same chapter of Quran at Surah Al Nissa 4:129 it is said that 'And it will not be within your power to treat your wives with equal fairness, however much you may desire it….; 

Examined from another angle ,some pre-conditions prescribed for Muslim male for contracting marriage are

  1. Offer and acceptance (Ejab-o-Kubool) of marriage proposal
  2. Free Consent of Girl and Boy
  3. Attaining of Puberty
  4. Capacity to support wife in financial and physical / emotional terms

The existing marriage is not a bar to Second marriage.

Even though the Muslim Marriage Dissolution Act 1939 provides nine grounds for dissolution of marriage, including impotency , incapacity to fulfill marital obligations  and Cruelty, this Indian Law does not provide any eligibility pre-condition for marriage. After all it is a Law of Divorce and not a Marriage Law.

There is also no requirement for Muslim Husband that the permission of the first wife is to be taken before contracting second marriage Of late Courts have started recognizing ‘not taking permission of first wife to marry again' as Cruelty and ground enough for divorce but we are still far away from Law in many countries (including Pakistan) where permission from existing wife is a pre-condition for second marriage.

As a result Muslim Male is out of purview of offence of Bigamy (up to 4 marriages) under section 494 and 495 of IPC.

At the same time it is illegal for a married Muslim female to marry a second time during the subsistence of first marriage and such second marriage is void. In fact her marriage (unless she was a convert to Islam) is not dissolved even if she converts to another religion. Therefore the provisions of section 494 and 495 IPC will apply to a Muslim Married Woman if she contracts a second marriage during the subsistence of her first marriage. In short, the Polyandry is punishable for born Muslim wife.

As marriage is a legal contract in Islam, the Girl can include a condition (for Monogamy) in Marriage Contract (Nikahnama) that the Boy shall not marry during the subsistence of that marriage. This will make the second marriage as a breach of this contract but still not a ground for making second marriage null and void. Besides ,as long as  out of court divorce on no grounds is legal in Muslim personal  law, such inclusion of condition will only hasten exercise of Talaq option by Husband to get rid of existing marriage.

Unlike the common perception that Muslim can practice polygamy with no restrictions, a reading of Quran indicates that there are lots of bindings. Firstly those who are unable in physical and financial terms to support more than one wife should remain content with one only.  All the wives have to be treated with equal fairness (say in matter of residence and maintenance) and kindness and allowed equal access. If any Muslim male fears that he will not be able to adhere to this, he should have one wife only. The   verse  quoted before has been used by many countries to ban Polygamy ( as in Tunisia a predominantly Muslim country) saying that ordinary men are not  capable of ensuring equal treatment of all wives. Many countries have placed severe restrictions on second marriage by introducing jurisdiction of Courts or others to asses if the Spouse was capable to ensure such treatment.

Scheduled Tribes

Fairly large numbers of these communities in India already follow Christianity in which case they will be governed by concerned Act. For the members of Scheduled Tribes who are neither Christian , Parsi or Muslims, the Hindu Marriage Act could have been applied in terms of Explanation below Sub Section   1 of Section 2

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed but there is specific bar created to that application in case of Scheduled Tribes by Sub Section  2 of Section 2-

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

In absence of Notification as above for such cases, even if the contesting parties claim to profess Hinduism, the Hindu Marriage Act will not be applicable to them. Jurisdiction over subject by the Court has to be inherent and not because the both the parties consent to it. Then the Court will have to examine prevalent Usage and Customs among them to look for applicable Rules. For custom to have the color of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence.

To use custom for bringing the case under Bigamy Section of IPC , one has to show that as per prevalent custom , in that Tribe the  second marriage while first is  subsisting , is considered void . Bigamy though not common, is practiced by many of these tribes. Polyandry is not common. Wherever existing Custom permits Polygamy ( Polygny or Polyandry) , or does not make the second marriage void , the Spouse contracting second marriage will not fall foul of the Section 494 and 495 of the IPC.

In the  Appeal (Crl.) 186 of 2001 Special Leave Petition (crl.) 2436 of 2000 (Petitioner: Dr.Surajmani Stella Kujur vs. Respondent: Durga Charan Hansdah & anr. ) the Supreme Court held that nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnization of second marriage by the respondent and the consequences thereof. It may be emphasized that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife.

International law

The United Nations Human Rights Committee reported in 2000 that polygamy violates the International Covenant on Civil and Political Rights (ICCPR) and raised concerns about lack of "equality of treatment with regard to the right to marry" .It brought out that polygamy, restricted to polygyny in practice, violates the dignity of women and should be outlawed. Some States where polygamy is legal are not signatories (India ratified it in 1979) of the International Covenant on Civil and Political Rights (ICCPR). These  include Saudi Arabia, United Arab Emirates, Qatar, Oman, Malaysia, Bhutan, Brunei, South Sudan , Singapur and Myanmar; therefore the UN treaty doesn't apply to these countries. Polygamy also will not stand scrutiny of the Convention on the Elimination of All Forms of Discrimination against Women which was adopted by the United Nations General Assembly and entered into force as an international treaty on 3 September 1981 .India has ratified it in 1993 . Article 16 of this Convention stipulates that there shall be equality in Rights between man and woman in matters of Marriage.

Indian Constitution

The Constitution of India envisages a Secular society. Article 44 in Part IV Directive Principles Of State Policy , prescribes that the State shall Endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. To be treated equally before Law and get equal protection of law is a cherished right of every person under the Indian Constitution. This is included in the Part III Chapter on Fundamental Rights- Right to equality- in Article 15 and 16 of the Constitution. According to Article 13 of Constitution all Laws in force or to be made must be consistent with the Provisions of Part III  on Fundamental Rights. And Law includes any custom or Usage which has the force of Law in India. Thus Marriage Laws also must not be inconsistent with the Fundamental Rights.

Article 25 of Indian Constitution deals with Right to Freedom of Religion . The Article is reproduced as below.

25. Freedom of conscience and free profession, practice and propagation of religion.-

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

Courts have held that what is protected by this Article is the positive Mandate of the Religion which is obligatory on every person professing that religion and not the Permissions of the religion or a practice which a religion overlooks. Further there is no hindrance from this Article for State to make any law which provides for social welfare and reform. Thus if State wants to make a law bringing reform in Marriage Laws ,say in matters of Multiple Marriages , it is competent to do so. As held by Supreme Court in number of cases the Polygyny is not obligatory under Muslim Law and as such it is not protected by Article 25.

SUPREME COURT OF INDIA in CIVIL APPEAL NO.1662 OF 2015 (KHURSHEED AHMAD KHAN …APPELLANT VERSUS STATE OF U.P.) quoted with approval the Allahabad High Court (In Badruddin v. Aisha Begum [(1957) All LJ 300) that

'Though the personal law of Muslims permitted having as many as four wives but it could not be said that having more than one wife is a part of religion. Neither is it made obligatory by religion nor is it a matter of freedom of conscience. Any law in favour of monogamy does not interfere with the right to profess, practice and propagate religion and does not involve any violation of Article 25 of the Constitution. '

In the same judgment the Supreme Court further quoted as follows

56. In R.A. Pathan v. Director of Technical Education [(1981) 22 Guj LR 289] having analyzed in depth the tenets of Muslim personal law and their base in religion, a Division Bench of the Gujarat High Court held that a religious practice ordinarily connotes a mandate which a faithful must carry out. What is permissive under the scripture cannot be equated with a mandate which may amount to a religious practice. Therefore, there is nothing in the extract of the Quaranic text (cited before the Court) that contracting plural marriages is a matter of religious practice amongst Muslims. A bigamous marriage amongst Muslims is neither a religious practice nor a religious belief and certainly not a religious injunction or mandate. The question of attracting Articles 15(1), 25(1) or 26(b) to protect a bigamous marriage and in the name of religion does not arise.

'57. In Ram Prasad Seth v. State of U.P. [AIR (1957) All 411] a learned Single Judge held that the act of performing a second marriage during the lifetime of one's wife cannot be regarded as an integral part of Hindu religion nor could it be regarded as practicing or professing or propagating Hindu religion. Even if bigamy be regarded as an integral part of Hindu religion, Rule 27 of the U.P. Government Servants' Conduct Rules requiring permission of the Government before contracting such marriage must be held to come under the protection of Article 25(2)(b) of the Constitution. '

To sum up, Polygamy cannot get the protection of Article 25 of the Constitution of India, neither as a matter of freedom of conscience nor as a religious practice.

Also, In view of the present trends of interpretation of Article 21 of the Constitution, Right to Protection of Life and Personal Liberty,  as right to live a wholesome life , and right to live with Dignity , the Polygamy will also not stand its stringent test. As such it is likely to be struck down offending Article 21 and being violative in terms of Article 13 and Article 15 of the Constitution.

 

Sharda 
on 20 September 2017
Published in Family Law
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