This article is written by Shraileen Kaur, a student of ICFAI University, Dehradun, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. In this article, the author discusses in detail the legality of polygamy, its history, and its types.
It has been published by Rachit Garg.
Table of Contents
Introduction
The practice of polygamy, unlike monogamy, is not at all a prevalent occurrence nowadays, although it is still a topic of standoff. We haven’t been able to fully abandon this activity, although we wish to abandon it. Polygamy, as per contemporary views, is associated with primitivism, whereas monogamous relationships are associated with civilisation. Polygamy is widely practised in the United States, China, the African continent, and India, among many other nations, despite this notion. In many nations, it is still a widespread practice.
Polygamy relationships were pervasive in ancient India, especially among the wealthy aristocracy and rulers, although it was not a mandatory traditional concept. As an example, there were three spouses of Raja Dashratha, the ruler of Ayodhya, according to the ancient sanskrit epic, Ramayana. A Hindu marriage is irreversible throughout life, as per the Vedas and other religious texts. Despite this, polygamy was practiced freely in ancient Hindu civilisation.
In the Mahabharata, another major sanskrit epic, Bhishma gives King Yudhishthira the following directive: “A Brahmana can have three wives.” A Kshatriya is allowed to have two wives. In the case of a Vaishya, he can only marry someone of his kind. “All of these spouses’ offspring should be treated equally.” As of now, polygamy is illegal, leaving Hindus with just monogamy as a choice, as a bigamous relationship is also prohibited.
Polygamy is illegal in India for Hindus and other religions except for a Muslim male who is permitted to have multiple wives, maximum four in number, as per the law. So, this article focuses on polygamy, its origins in India, and the present incarnation of the practice in Indian society.
What is polygamy
Polygamy has long been associated with mankind. Monogamy got the initiative over polygamy only around ten thousand years ago. Many communities have tolerated it and continue to do so. As of now, some nations, primarily Islamic, recognise polygamous relations while others have declared it null and void, and some jurisdictions, such as India, exclusively permit Muslims to practice polygamy. Polygamy was a feature of our civilisation regardless of geography or religious doctrine, and this cannot be disputed. Polygamy has been discovered to be universal, cross-cultural in applicability, and prevalent in all geographies as well as among believers of all religions of the world, according to various data and investigations.
Polygamy is derived from two words: “polys,” which means “many,” and “gamos,” which means “marriage.” As a result, polygamy refers to several marriages. It comes from the Greek word “polgamos,” which means “often marrying.”
Polygamy is defined as “the act or custom of maintaining more than one spouse at the same time” by the Oxford Dictionary.
The Merriam-Webster Dictionary defines
“Polygamy is a marriage in which one or both spouses have multiple partners at the same time.“
Hence, polygamy can be described as a concept of marriage in which an individual is wedded to multiple spouses during the very same period.
The Bible, Quran, and Torah all include references to polygamy. This practice is mentioned in the Ramayana as well as the Mahabharata epics, as well as other Hindu writings. Polygamy has appeared in publications, diaries, TV series, and documentaries, in addition to political debates and conversations.
Different types of Polygamy
Polygamy is divided into three types, notably polygyny, polyandry, and group marriage.
Polygyny
It is the matrimonial structure in which a male individual has numerous wives. Polygamy in this aspect is the most widespread. Monarchs and emperors in the Indus Valley Civilisation were believed to have several wives. This approach was also imitated by others with significant levels of power and influence. Marriage typically came with additional riches, territory, and titles, so it was a way for them to consolidate and enforce their influence. It was also regarded as a prestige symbol, as only a wealthy man could manage to have multiple wives.
Polyandry
It is a type of marriage in which a woman has several husbands. Nevertheless, this is an extremely uncommon occurrence. Polyandry is not at all like polygyny in terms of legal standing. A man’s marriage to numerous women is extremely common, but a female’s marriage to multiple men is frowned upon. As a result, the sexes are asymmetrical.
Group marriage
Group marriage is a system in which the male and female of a community regard themselves as wedded to one another. Polygyny and polyandry are both terms that can be used to describe it. A group marriage must include all 10 essential kinship links, as per Lewis Henry Morgan: spouse, co-wife, husband, co-husband, parents, daughter, sons, brother, and sister.
Historical aspect of the concept of polygamy
Perhaps in Indian history, there are countless cases of rulers and monarchs who practised polygamy and also had multiple wives. Such polygamy examples can also be found in religious writings and traditions.
India is a diverse country. As a result, matrimony rules have never been simplified. Each denomination seems to have its system of regulations, rituals, and practices. However, when it came to polygamy, they unanimously agreed that monogamy was the ideal system of marriages, but that polygamy may be used in certain instances.
There was a moment in the Indus Valley Civilisation when polygamy was not prohibited. Aristocrats including monarchs were known to engage in this activity. Vedas, scriptural texts, and manusmriti ruled Hindu marriage regulations during the Vedic era.
Historical aspect of polygamy under Manusmriti
A Hindu man was thought to be allowed to remarry during his wife’s lifespan, albeit such marriages, whenever performed without reasonable grounds, are greatly discouraged. Manu has rationalised his wife’s supersession and multiple marriages during her lifespan by citing barrenness, ill health, violent attitude, and misbehaviour on her part. Mitakshara as well as Subodhini both justify and defend the supersession of the very first wife.
“A lady who consumes any bogus beverages, acts unethically, shows animosity toward her divine, is susceptible of ailment, is destructive, and spends his possessions may at any moment be succeeded by some other wife,” he continues. A childless wife may be supplanted in the eighth year, a woman who bears stillbirths children or whose offspring all die as newborns in the tenth, a woman who bears exclusively girls in the eleventh, and a woman who behaves insensitively in the twelfth.”
Manu has also remarked that the very first spouse is married out of a spirit of commitment, whereas the others are wedded for sexual reasons.
Historical aspect of polygamy under Muslims
As monarchs came and went, so did the sanctity of marriage. With the arrival of the Muslims, new rules concerning Muslim weddings were enacted. Marriage was seen as the foundation of civilisation, and the Marriage ceremony was a contract. The prestige of a married woman was higher. In the Holy Quran, Chapter 1V, Verse 3 says about polygamy:
“And if you are afraid you would not be fair while interacting with orphans, marry as many women as you like, two, three, or even four; and if you are afraid you would not be just, marry just one or whatever your dominant arm has.” That is the most direct path to avoiding wrongdoing for you.”
These statements demonstrate that in Islam, the notion of polygamy has its foundation in empathy and generosity.
Historical aspect of Polygamy under Indian rulers
The Rajputs were known for their unconstrained polygamy, which allowed them to have several spouses. Polygamy was seen as a way for them to produce male offspring and consolidate control. Rao Maldeo is claimed to have had 16 brides, whereas Marwar’s King Udai Singh had 27 spouses. Raval Bapa is claimed to have married 140 women. This may be an overestimate, but it demonstrates how upper echelon Rajputs may have a limitless number of women. Polygamy was practised freely by Kulins, Brahmins, monarchs, wealthy landowners, and other rich and privileged people. The poorer classes, on the other hand, practised monogamy. Polygamy was an extravagance beyond the reach of the poor, as Altekar, a renowned historian and archeaologist, reminds out.
The colonial rule of Britishers in India brought about a shift in Indian culture and matrimonial practices. Polygamy was outlawed under Section 494 of the Indian Penal Code of 1860, among several other progressive changes. Post freedom, the Hindu Marriage Act of 1955 outlawed the practice of polygamy among Hindus. Muslims, on the other hand, may have up to four wives.
Polygamy and Hinduism
All these Indian legislation and an individual’s laws, i.e., religious ideology, govern an individual in India. As a result, a Hindu or someone who professes Hindu religion follows the processes that the religion suggests.
There had been a phase in the Vedic Period when Indian laws were not as ubiquitous or as strict as it is today. So, according to Hindu tradition, a person could practice polygamy at the time. Back then, a husband might marry more than one person and also have two, or even three wives.
Polygamy, however, has been outlawed with the passage of time and the implementation of the Hindu Marriage Act. It is now forbidden among Hindus in India. Polygamy has been both forbidden and unlawful for a Hindu or someone who embraces Hinduism. Both follow Indian law and also the Hindu Marriage Act. It is now forbidden for a person professing Hinduism to marry several people or have two marriages at about the same time.
Legitimately, a Hindu cannot marry a single individual. He or she is unable to have two spouses at the same time. A person cannot marry some other person whilst still committed to some other person. The second husband or wife will be regarded as illegitimate if he/she does so. Under the Hindu Marriage Act, the first spouse can initiate a case against the polygamous spouse. The Hindu Marriage Act is enshrined in the Indian legal system and makes polygamy illegal for Hindus.
Polygamy under Hindu Law
The Hindu Marriage Act, which came into effect on May 18, 1955, made it clear that Hindu polygamy would be abolished and criminalised. Monogamy was the sole option available to Hindus. This appears to be a typical example of straightforward legislative action. It was made explicit that a Hindu spouse may not marry again until the first one is terminated, either through a divorce or the death of one of the spouses.
Under Section 11 of the Hindu Marriage Act, 1955, which states that polygamous marriages are void, the Act cautiously mandates monogamous relationships. When someone performs it, they are punished under Section 17 of the very same Act, as well as Sections 494 and 495 of the Indian Penal Code, 1860, which define such conduct as an offence. Because Buddhists, Jains, and Sikhs are all considered Hindus and do not have their own laws, the provisions in the Hindu Marriage Act apply to these three religious denominations as well. As a result, bigamous weddings are void and punishable under Sections 5, 11, and 17 of the Act.
Polygamy and Islam
Polygamy is forbidden and unlawful in Hinduism, according to the established statutory provisions. In Muslim law, however, the situation is very distinct.
A Muslim man can marry and maintain four women or spouses at the same time, according to Muslim personal law. Under Muslim personal law, such a relationship is recognised and legal. While a Muslim man can have four wives at the same time, however, the same is not applicable to a Muslim woman.
A Muslim woman is not allowed to marry more than one individual. She is not permitted to have more than one partner. This depicts the legal status of polygamy in a Muslim marriage. Polygamy is a practice that many Muslim women have spoken out against.
They have argued that polygamy is illegal in Islam. Today, some textbooks detail and depict the tragedy of Muslim women who have already fallen victim to polygamy. Polygamy is a common practice in Muslim personal law. A Muslim man can marry over than one woman, but only if his laws allow it.
The Special Marriage Act, 1954 has been used by many Muslim women to help them stop practicing polygamy. Hence, a Muslim can only marry one individual under this Act. He is not permitted to have more than a partner.
Polygamy is not considered a sin in Muslim personal law. It is a component of a long-standing societal ritual that people have followed for generations.
Polygamy under Muslim Law
The clauses under the ‘Muslim Personal Law Application Act (Shariat) of 1937, as construed by the All India Muslim Personal Law Board, apply to Muslims in India. Polygamy is not prohibited in Muslim legislation because it is recognised as a religious practice, hence they tend to preserve and practice it. It is, nevertheless, clear that if this method is determined to violate the constitution’s basic rights, it can be overturned.
When there is a disagreement between the Indian Penal Code and personal laws, the personal laws are implemented since it is a legal principle that a specific law supersedes the general law.
Impact of polygamy on Indian society and the constitutional standpoint
India comprises a secular state where no religious denomination is considered better or subordinate to another, and each religion is treated equally, with all religious scriptures respected and rules enacted under them. However, several regulations are being debated for their validity by other religions, namely, Islam and Hinduism, and in particular, the legislation dealing with ‘polygamy.’ They debate the Constitution’s vital rights, which are enumerated in Articles 13, 14, and 15.
Article 13 of the Indian Constitution expressly specifies that legislation that conflicts with Part III of the Constitution is unconstitutional. In R.C. Cooper v. Union of India (1970), the Supreme Court observed that the theoretical approach that the component and construct of state intervention ascertain the severity of the safeguard that an underprivileged group may purport is incompatible with the constitutional provision, which aims to provide the ordinary citizen with the broadest possible safeguards of his fundamental rights.
Article 14 states that the state shall not refuse any individual under India’s territory equal treatment under the law and equal protection under the law. The state is prohibited from discriminating against any person solely based on faith, ethnicity, gender, religion, or birthplace, according to Article 15(1) of the Indian Constitution.
The Indian Constitution and Polygamy
In India, religion is given considerable attention, and the Indian Constitution guarantees it wherever necessary. In contrast, the judicial system plays a critical role in modifying the Constitution by emphasising procedural fairness, as seen by certain recent landmark judgements, in which the Constitution has been amended to reflect the sophisticated culture and latest developments. Polygamy is permissible in Islamic law, although it is forbidden in other denominations.
The constitutionality of polygamy has also been established, although laws have always been susceptible to reform for the sake of society, and so this system may change or be abolished for a variety of reasons.
Therefore, only because polygamy has already been embraced among the Islamic culture since the ancient period and has been adjusted as a topic of personal laws, Hindu religion followers will not be able to contest the laws that criminalise monogamous relationships among Hindus. As Martin Luther King put it, “Laws can never change people’s hearts, but they can restrict the callous.” As a result, laws requiring monogamy are enacted to strengthen society rather than to curtail people’s basic rights.
Social impact of polygamy on Indian Society
According to academicians and some other knowledgeable people, permitting polygamy in one faith while condemning others is discriminatory, and this prejudice must be addressed by the law. The appellation of the policy trends and religious convictions of the specific religious group cut off this phase.
Polygamy appears to be innocuous to the community, yet from the standpoint of a rational pure living being, most societal issues today are the outcome of this type of relationship. It has an impact on society since there are constantly linguistic arguments among the spouses, resulting in extreme environmental conditions for the youngsters and an ethical standard of practice that is inappropriate for raising a family.
Marital aggression is one of the most closely associated with polygamous families owing to the vocal conflicts that arise as a result of their unethical arrangement. As a man cannot please all of his women emotionally or economically, it creates a purely barbarous consequence in a poygamous relationship. When the male partner dies, polygamy causes property disputes. The ladies may utilise immoral tactics to obtain as much from the wealth as possible to gain a head start in life. There are few means of polygamy, yet many people are participating in a vital social structure, the family.
Unity is usually a gripping component in any family, however, there is no cohesion in a polygamous household due to antagonism among the wives fighting for love and validation from their husbands. Polygamy is linked to criminal behaviours such as sexual assault, hence it has a negative impact on the population.
As a final note, polygamy has an impact not only on the married couple but also on the offspring who are the result of such a relationship. This troubling issue causes trauma in youngsters, which has an impact on their education and interpersonal attitudes towards life, as well as their contribution to global society.
Judicial perspective concerning polygamy
Parayankandiyal v. K. Devi & Others (1996)
After considering many resources on Hindu law, the Honourable Supreme Court concluded in this case that monogamous relationships were the standard and ideology of Hindu society, which scorned and condemned a second marriage. Polygamy was not allowed to become a part of Hindu culture due to the influence of religion. The Court also noted that some persons take advantage of even the tiniest of legal privileges and that at this point, the government should step in to discipline such behaviour.
State of Bombay v. Narasu Appa Mali (1951)
In this case, the Bombay High Court ruled that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 was not discriminative. The Supreme Court ruled that a state legislature has the authority to enact measures for public welfare and reforms, even if it violates the Hindu religion or custom. The Court ruled it was up to the Legislature to decide whether or not Mohammedans should be excluded from the purview of the challenged Act. It is not necessary to implement a reform in a single stage. The State Legislature can take a few measures toward progressive change and prosperity.
Javed & Others v. State of Haryana & Others (2003)
The issue, in this case, was whether a disputed provision of the Haryana Act prohibiting anyone with more than two kids from competing or occupying a government position violated Article 25. The Honourable Supreme Court decided that under Article 25 freedom is subjected to social harmony, dignity, and wellness. Muslim law allows for the marriage of four women, but it is not compulsory. This will not be violating religious practice to not marry four women. For the sake of good order and discipline, decency, or security, such conduct of having several wives can be controlled or forbidden by laws.
Countries where polygamy is legal
Polygamy is still practiced in several regions and jurisdictions. Having many spouses is not prohibited and does not result in any penalties or sanctions.
Because of their personal law, the majority of these rules and practices are found in Muslim countries. Polygamy is still lawful and legal according to their tradition and domestic legislation.
Polygamy is permissible and legal exclusively for Muslims in nations such as India, Singapore, as well as Malaysia.
Polygamy is still recognised and practiced in nations such as Algeria, Egypt, and Cameroon. These are the only areas in the world where polygamy is still legal.
Polygamy is considered a curse by Muslim women. Women also have no right to speak against the spouse in this situation, even if he is married for the second or third time.
However, the same polygamy legislation does not apply to Muslim women, as they are prohibited from doing so. A Muslim woman who has had more than one partner is subject to a penalty. She will be put on trial for practicing polygamy, according to Muslim personal laws.
As a result, we can observe that polygamy regulations vary depending on a person’s gender within a single faith. Polygamy is not at all a preferred lifestyle choice. Polygamy comes with several drawbacks. The prevalence of polygamy will cause turmoil in society, if there will be no formal law to regulate it.
Polygamy is a harmful habit that will spread the disease and leave the populace uncontrollable. As a result, polygamy must never be legalised in India. All of the laws covering such practices have been consolidated into a single codified statute, which is a bold move. As a result, this will apply to all Indians.
Conclusion
Polygamy has existed for a long time in Indian society, and even though there are laws outlawing it, it is still practiced in some areas. Polygamy was considered taboo by Hindu Law even in earlier civilisations and was only authorised in restricted conditions. Muslim law, on the other end, enables a man to have four wives, although it is not a requirement for a Muslim man to do so. Polygamy became a prestige statement and it was not prevalent among the poorer layers of society, according to investigations.
Polygamy is now illegal in India, but a Muslim man is permitted to have multiple wives, specifically four in number. This is not at all a religious duty or religious conduct, as the court system has often acknowledged. In the notion of social transformation, the legislature has the authority to outlaw it. Governments, on the other hand, have failed to consider the situation of women, particularly those who embrace Islam and have also hesitated to prohibit similar practices for Muslim men.
Traditions are created in response to the current circumstances of the period in question, and therefore should be abandoned as they become obsolete. Even though the rules relating to polygamy are constitutionally acceptable, they should be altered because the fundamental doctrinal arguments offered can no longer be justified in the context of the present world scenario.
In all religious denominations, present personal laws are mostly founded on the topmost patriarchal views of society. Therefore, a Uniform Civil Code is typically requested by disgruntled women as an alternative to established personal laws, as conservative orthodox individuals continue to believe that reforming personal laws will jeopardise their sacredness and reject them vehemently. The code will make the complicated regulations of civil marriages, inherited wealth, testamentary, and adoptions easier to understand and apply to everyone. All individuals, regardless of their religion, will be subject to the same civil law.
Instead of differentiating regulations based on religious beliefs, a secular republic requires a common law that applies to all citizens. It will address prejudice against disadvantaged individuals and unify the country’s diverse culture.
Frequently asked questions on polygamy
What do you mean by group marriage?
A combination of two different types of polygamy i.e., polygyny and polyandry is called as a group marriage.
What was the first legislation for prohibition of polygamy in India?
The first legislation concerning prohibition of polygamy was introduced in 1860 under the Indian Penal Code,1860 Section 494.
What is the punishment for committing polygamy in India?
An individual who is held liable for committing the offence of polygamy shall be punished under Section 494 of Indian Penal Code, 1860. The punishment includes imprisonment for a maximum period of 7 years or fine or both.
References
- http://www.probono-india.in/blog-detail.php?id=162
- https://www.myadvo.in/blog/polygamy-legal-india
- https://lawcirca.com/the-concept-of-polygamy-in-the-indian-context/
- https://www.legalserviceindia.com/legal/article-4909-practices-of-polygamy-under-muslim-law-in-india.html
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