LAWS ON POLYGAMY

1. Context 

2. Practice of Polygamy

• 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. The Hindu Marriage Act, of 1955 outlawed the practice.

• This provision does not apply to a marriage which has been declared void by a court, for example, a child marriage that has been declared void.
• The law also does not apply if a spouse has been "continually absent" for the "space of seven years".
• This means a spouse who has deserted the marriage or when his or her whereabouts are not known for seven years, will not bind the other spouse from remarrying.

3. The Second marriage

• Generally, the first wife files a complaint that her husband has remarried.
• The Court will have to look into whether the husband has entered into a legally valid second marriage.
• This means that the second marriage would have to be performed as per prescribed customs and the penal provision will not apply to adulterous relationships that do not qualify as valid marriages under the law.
• In Kanwal Ram and  Ors v The Himachal Pradesh Administration (1965), the Supreme Court reiterated the legal position that the standard of proof must be of marriage performed as per customs.
• In a bigamy case, the second marriage is a fact, that is to say, the ceremonies constituting it must be proved.

4. Under Hindu Law

• After Independence, anti-bigamy laws were adopted by provincial legislatures including Bombay and Madras.
• The Special Marriage Act, of 1954, was a radical legislation that proposed the requirement of monogamy subsection (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.
• The Parsi Marriage and Divorce Act 1936 had already outlawed bigamy.
• 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.
• A crucial exception to the bigamy law for Hindus is Goa, which follows its code for personal laws.
• So, a Hindu man in the state has the right to bigamy under specific circumstances 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.
• However, Goa Chief Minister Pramod Sawant has said that the provision for Hindus is virtually "redundant" and that no one has been given the benefit of it since 1910.

5. Under Muslim law

• Marriage in Islam is governed by the Shariat Act of 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 special legislation which overrides personal law protections like in the case of triple talaq.

6. Prevalence of polygamy

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