Polygamy in India

Polygamy in India

Context

The Supreme Court of India issued notice to the Union Government on a Public Interest Litigation (PIL) (Zakia Soman & Ors. v. Union of India) seeking a complete declaration of polygamy among Muslims as unconstitutional. The plea further prays for directions to the legislature to enact a uniform prohibition against bigamy/polygamy across all religions.

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Statutory Framework & Legal Disparities

• Muslim Personal Law (Shariat) Application Act, 1937: Section 2 recognizes and validates personal law customs permitting a Muslim man to contract up to four marriages concurrently.
• Bharatiya Nyaya Sanhita (BNS), 2023: Section 82 (formerly Section 494 IPC) criminalizes bigamy, prescribing imprisonment up to seven years for contracting a second marriage while a spouse is alive.
• Constitutional Challenge: Petitioners argue that exempting one community from bigamy laws creates a legal vacuum that violates Article 14 (Equality before law), Article 15 (Prohibition of discrimination on grounds of religion or sex), and Article 21 (Right to live with dignity).
• Uniform Civil Code (UCC) Precedent: Uttarakhand became the first Indian state to implement a UCC, which explicitly prohibits bigamy and polygamy across all religions, while exempting Scheduled Tribes under Article 342.

Demographics: Prevalence of Polygamy in India

Data from the National Family Health Survey (NFHS-5, 2019–21) highlights the empirical distribution of polygamous unions across religious communities:

Note: NFHS data demonstrates that polygamy is a multi-community practice in India, though statutory criminal penalties under personal laws currently apply asymmetrically.

Landmark Supreme Court Jurisprudence

• Javed v. State of Haryana (2003): The SC held that while Muslim personal law permits multiple wives, the practice of polygamy is not an "essential religious practice" protected under Article 25. Consequently, state regulations restricting polygamy (e.g., two-child norms for contesting elections) do not violate religious freedom.
• Shayara Bano v. Union of India (2017): The Constitution Bench invalidated instant triple talaq (talaq-e-biddat) as unconstitutional, while leaving the issues of polygamy and nikah halala open for subsequent adjudication.
• Sarla Mudgal (1995) & Lily Thomas (2000): The Supreme Court established that a non-Muslim man solemnized under monogamous personal law (e.g., Hindu Marriage Act) cannot convert to Islam solely to contract a second marriage without dissolving the first. Such second marriages remain void and punishable under bigamy provisions.
• Bhaurao Shankar Lokhande v. State of Maharashtra (1965): The Court ruled that for a conviction of bigamy under criminal law, the second marriage must be solemnized with essential custom and valid legal ceremonies.

Core Arguments in the Legal Debate

Arguments for Abolition & Universal Prohibition

• Gender Justice & Equality: Polygamy subjects women to psychological, economic, and social subjugation, violating fundamental dignity guaranteed under Article 21.
• Essential Religious Practice Test: Practices that are merely permissive (allowed under specific historical conditions) rather than mandatory do not enjoy absolute immunity under Article 25 when they conflict with gender justice.
• Global Reforms: Several Muslim-majority nations (including Tunisia and Turkey) have banned or severely restricted polygamy through statutory codification.

Arguments for Retaining Personal Law Autonomy

• Protection of Minority Rights: Article 25 and 29 safeguard the right of minorities to preserve their distinct culture and personal laws.
• Judicial Restraint: Proponents argue that reforms within personal law should emanate from community-led legislative codification rather than judicial strike-downs.

Way Forward

• Codification of Personal Laws: Codifying marriage, maintenance, and divorce provisions under Muslim personal law to reflect gender equality principles.
• Mandatory Registration: Enforcing universal mandatory registration of all marriages and divorces to prevent clandestine polygamous unions.
• Uniform Protection of Maintenance: Ensuring robust economic safeguards, housing rights, and fast-tracked maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) for all affected spouses and children.