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What Is The Constitutionality Of Bigamy In India

It is a type of practice in which a person has multiple spouses at the same time. The practice of Bigamy was very prevalent in most of the ancient civilizations. If a marriage is performed twice, it will be bigamy, and polygamy occurs when a marriage is performed multiple times.

Types of Polygamy
There are mainly two types of Polygamy:
  • The practice in which a man has numerous wives at the same time is polygyny. This type of practice was quite prevalent in the ancient period and is still prevalent in some parts.
  • If a woman marries multiple men at the same time, it is called polyandry. This type of practice was not very common but prevalent in the warrior and merchant classes in the ancient era. In the 21th century is still practiced in the area of Tibet.

Historical Background
Polygamy means having several spouses at the same time, the most practiced form is polygyny, which can be found in the Indian History prevalently. The Rajputs, Aristocrats, Merchants, Warriors classes used to practiced. The institution of marriage was very essential to the Rajput Classes in order to produce warriors for the future battles, the role of the women was very reproductive in the medieval period.

In order to increase their domain, strengthen their political position they married many women. Rawal Bapa the king of Mewar married 140 women and Raja Udai Singh of Mewar married 23 women , the marriage for Rajputs was about producing male heirs and consolidating state powers.

If we talk about Aristocrates, we found out that polygamy has been practiced from the ancient to medieval period but the cause was different at different periods. Although in the Vedic Era the practice of Monogamy ( relationship with one partner at a time) was favored . In the Pre-Vedic Era, Polygamy was considered as an exception practised only in specific condition it was allowed. Many Hindu Religious texts, such as the Dharmashastras, supported monogamy, however if the first wife is incapable of bearing child or is only producing female offsprings, the man may choose to marry other woman.

Polygamy Under Different Religions/

Under Hindu Law

In the renowned text "Manusmriti" one of the sources of Hindu law it is given that if a Hindu man marries a second wife who is not sick, she and her son will always take precedence over the other wife and her son. In the ancient India the practice of bigamy was neither strictly forbidden nor commonly practiced. It was customary among Hindu Aristocracy and Rulers.

Prior to 1955, polygamy was acknowledged by Hindu Personal Law, specifically the Hindu Marriage Act. Polygamy and its types were outlawed by the Hindu Marriage Act of 1955[1]. Section 5 of the Act: Condition for a Hindu Marriage is given:
  • A marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of the marriage.
    The right to practice and profess religion[2] of our own is a fundamental right guaranteed by the Indian Constitution. Therefore, it allows certain communities to follow their personal laws. For instance, Muslim personal law recognizes polygamy. On the other hand, Hindu Marriage Act of 1955 does not allow subsequent marriage in the presence of former spouse.

In the Landmark case Sarla Mudgal v. Union of India[3], the question arises before the Supreme Court that when a Hindu changes his faith and marries again, will the second marriage be legal or will the first marriage be void?

The Supreme Court looked into the matter closely and came to the conclusion that if a man changes his faith solely for the purpose of marrying again, the first marriage will continue to exist until it is dissolved by the provisions laid down in the Hindu Marriage Act 1955. Secondly, if the first marriage is still legally binding, the second marriage will be considered as null and void, and Section 494[4] of Indian Penal Code's bigamy will apply. The second marriage will be held illegal as such an act is unjust and unconstitutional.

Under Muslim Law

The practice of polygamy is prohibited in India, but Muslim Personal Law[5] makes an exception. Islam permits polygamy and permits man to marry multiple wives at the same time. While a Muslim man may have numerous wives at the same time, but Muslim law does not permit women to have more than one husband at a time.

The Muslim Women (Protection of Rights and Divorce) Act, 1986[6] preserved some rights for women and stated that, if a Muslim man can treat and respect all of his wives equally, then he has the right to marry twice and thrice. If he fails to do so, he will be accountable .

Under Parsi Law

Under the Parsi Law the practice of Polygamy is prohibited. According to Section 5 of the Parsi Marriage and Divorce Act 1936[7], any Parsi who marries a second time while their first spouse is still alive without getting a legal divorce will have their marriage deemed null and void or dissolved. It will be liable to punishment outlined in the Section 494 and 495 of the Indian Penal Code.

Constitutional Validity

As discussed earlier, polygamy prevailed differently in different regions. With time it was seen that there was a need to change this practice. For which resolutions were made and adopted thereafter. Gradually, the practice of polygamy began to be banned in several parts of India.

First step towards it was successfully made in Mumbai (Bombay), The Bombay Prevention of Bigamy Act 1948[8] laid down rules for complete ban on polygamy in Maharashtra. Later Madras Prevention of Bigamy Act 1949[9] resulted in same prohibition in entire Madras. Polygamy was gradually recognized as a practice which is against the right of women in the Hindu Marriage Act 1955.

This resulted in the prohibition of Polygamy becoming unlawful throughout the nation, with the exception of Muslims whose Personal Laws permit it, Also, since India is a secular country that gives right to its citizens to profess and practice their own religion. However it has been subjected to certain restrictions. While in Hinduism and other religions it is not permissible in order to strengthen and protect certain basic rights of the people within society.

The civil code[10] enforced by Portuguese that prevails even today was enforced in the 19th century in Goa. Thus Goa is the only state in India that follows the Uniform Civil Code and follows common family law. Since then polygamy is banned and even men of Muslim community are restricted to marry more than once.

  1. Act 25 of 1955
  2. Article 25 of Indian Constitution
  3. AIR 1995 SC 1531
  4. Indian Penal Code 1860, Act no. 45 of 1860
  5. Act of 1937
  6. Act no. 25 of 1986
  7. Act no. 03 of 1936
  8. Act no. 38 of 1948
  9. Act no. 6 of 1949
  10. Portuguese Civil Code of 1867

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