This article is written by Parth Verma, a student of the School of Law, Christ University, Bengaluru. This article seeks to explain the concept of polygamy including its various types and its legality in India and other foreign countries. 

This article has been published by Sneha Mahawar.

Introduction 

Marriage is of huge importance in any society. It fulfills the purpose of reproduction to carry forward the generations and, at the same time, becomes a social institution. Every individual has the right to marry and to choose whom to marry, which has been laid down in the Constitution as a part of our Fundamental Rights. Yet, marriages to this date take place at the cost of such rights of the people. The major testimony to this fact is that the State has the power to regulate marriages for the reason that it is a subject of legitimate state interest, which is certainly questionable. The personal laws of marriage for different religions also vary from each other, leading to different stances on multiple marriages or polygamy. 

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In recent times, several judgments clearly stated that there should be no concept of multiple marriages by the same male. While it was fine for almost all people belonging to all religions other than Islam, the people practicing Islam were protesting against it because it was previously permissible under their personal laws. This article hence seeks to look into the legality of the concept of multiple marriages or polygamy and whether personal laws governing it should be subordinated to the Constitutional provisions or the laws declared by the courts of the country.

What is polygamy

Polygamy refers to a practice or a social tradition/custom in which a person, whether a male or a female, has more than one spouse, i.e., they have indulged in multiple marriages. The practice of polygamy has been prevalent all over the world for many years, but now it has been criminalized in most countries as well under the various religions. This is so because, over the years, people realized that polygamy was highly unfair to the multiple spouses who were married to a single individual. As a result, almost all countries started preferring monogamy over bigamy and declared polygamy to be an illegal activity. It is certainly violative of the basic human dignity of any individual. There is always a possibility that polygamy results from forced marriages or child marriages and could further even result in the exploitation or torture of married women. 

The stance on polygamy is also very different for different religions. While in the case of Hinduism, polygamy is completely held to be illegal, in the case of Islam, Muslims are permitted under the law to have polygamous relations, but just for the male. In other words, Muslim males are allowed to have multiple wives at the same time, but there should not be more than four. Further, even among the Hindus in Goa, bigamy, i.e., one individual having two spouses at the same time, is prohibited. 

The mention of polygamy has been found in almost all religious texts of different religions. In Hinduism, there has been a mention of polygamy in the Mahabharata, Ramayana, and Bhagavad Gita. The Holy Quran also mentions the legality of polygamy, under which a Muslim man can have a maximum of four wives. In Christianity, polygamy has now become illegal. In recent years, the legality of practicing polygamy under Islam has become a topic of debate and has even spurred violence. Therefore, there’s a need to delve deeper into the various aspects of polygamy.

Forms of polygamy

Polygamy could primarily be practiced in three forms namely polygyny, polyandry, and group marriages. Under the Indian Laws, all these three forms of polygamy are illegal except for the Muslims and the Hindus in Goa.

Polygyny

It refers to a form of polygamy under which one male is married to multiple wives. During the rule of the Mughals, polygyny was quite abundant among the kings. Most of the time, it was used for the purposes of consolidation, as marrying another king’s daughter would also lead to that place being given to the husband. During the Medieval period, this was also very prominent among the Hindu rulers and stood as a symbol of their richness because it was only the affluent who could sustain multiple wives. In Christianity, the Old Testament allowed for practicing polygamy but didn’t outrightly encourage it. The reason was based on ensuring the welfare of widowed or downtrodden women by providing them with an option to remarry.

Polyandry

It refers to a form of polygamy in which a woman could be married to multiple husbands. It is the exact opposite of polygyny and is not a very common practice around the world. In India, though, it was followed in many regions of the country. In the Kinnaur region of Himachal Pradesh, fraternal polyandry was followed, under which the brothers in a family married one woman and had one wife among them. This was primarily to ensure that there was no division of land among the brothers. Even in the Mahabharata, all the five Pandava brothers married Draupadi, which is one of the oldest examples of polyandry in India. However, this is very small in number as compared to polygyny, which reflects the discrimination on the basis of sex in polygamy.

Group marriages

It is also known as ‘conjoint marriage’, under which three or more adults hold a physical or emotional relationship among them and live together. Hence, it can also be stated as a form of polygyny combined with polyandry. Under this system, any three or more persons having the same or different genders could engage in any partnership among them under the institution of marriage. It is almost non-existent all over the world and was once common only among a few tribes. Hence, group marriages are the least common form of polygamy as compared to polygyny or polyandry. It is also not legally permissible in most countries.

These are the major forms of polygamy that are practiced among the people but have now largely been declared unlawful and unjustified because they directly violate the rights of the multiple spouses who are married to an individual.

Polygamy under various religions

In most religions, polygamy has been banned and should not be practiced under the Personal Laws of Hindus, Christians, or even Sikhs. However, in Islam, it is still allowed for males to marry four wives to the maximum.

Polygamy in Hinduism

Ancient and medieval times 

In ancient times, polygamy was highly prevalent among Hindu kings. They used to have multiple wives, but there was no compulsion on them to practice polygamy. Most of the time, it was practiced by the kings to reflect their affluence and for the consolidation of territories. Even in Mahabharata, Bhishma had given teaching to Yudhishtira that a Brahmin can have three wives, a Kshatriya can have two wives, and a Vaishya one belonging to his own community. The children from different wives, in the case of Brahmins or Kshatriyas, were to be treated equally and there shall be no discrimination among them. In Ramayana, King Dashratha also had three wives. This clearly shows the existence of polygamy in Hinduism in the older times.

Under Hindu Laws

Polygamy was completely abolished under the Hindu Marriage Act, 1955 as soon as it was introduced. From thereon, only monogamy was to be practiced among the Hindus, and even bigamy, which is a form of polygamy, was abolished at that point. There are several provisions under the Hindu Marriage Act and the Indian Penal Code which abolish polygamy, which are as follows:

a)  Section 11 of the Hindu Marriage Act, 1955 explicitly states that bigamous marriages are null and void, i.e., they don’t hold any value under the Indian Laws. 

b) Section 17 of the Hindu Marriage Act, 1955 states that if any individual indulged in polygamy after the introduction of this Act, they could be punished under sections 494 and 495 of the Indian Penal Code, 1860.

c) Section 494 of the Indian Penal Code, 1860 states that any individual indulging in Bigamy would be liable to pay a certain amount of fine and could also be imprisoned for a period that may extend to seven years.

d) In continuation of this section, Section 495 of the Indian Penal Code, 1860, when the person has concealed the fact of their first marriage with the spouse whom they have subsequently married, they could be imprisoned for a period extending up to ten years.

All the provisions under the Hindu Marriage Act, 1955 would also be applicable to the Jain, Buddhists, and Sikhs, and hence they could also be punished under these legal provisions if they commit any such offense. Yet it has several loopholes which are taken advantage of by the people to protect themselves from the clutches of the law.

Polygamy in Christianity

New Testament

Under the New Testament, it was stated that the church leaders should only practice monogamy and should not have multiple wives. Apart from that, Paul, the Apostle had clearly indicated that widows should be allowed to remarry even the already married men as this would provide them with a means of sustenance. The women older than 60 years should only be considered as widows and the younger widows should be remarried to curb all their sins. 

Reformation period

The period of reformation refers to the period in the 16th century which marked the beginning of Protestantism. Catholicism was being highly criticized, especially the authority of the papal authorities for the abuse of their powers. This eventually led to the split between the Roman Catholic Church and Protestantism. During this period, there was strong opposition to polygamy. Many thinkers clearly stated that Christians should not have more than one wife, not only because it’s a hoax that God has stated those words but also because it would be highly unfair to the women unless they are suffering from leprosy or have been widowed. Monogamy had become a norm among Christians, and only in such situations where the woman was actually facing trouble and marriage could improve her existing condition, could polygamy be allowed.

Modern period

Again in the modern period, polygamy was considered to be a grave offense against marriage and didn’t reflect the true intention of the Holy Bible or the Almighty. Yet in certain parts of Africa, Catholic Christians indulge in polygamy and marry multiple wives. In India, the Christian Marriage Act, 1872, applies to regulate the matters of marriage among Christians in different parts of the country. However, it doesn’t apply to Christians in Manipur and Cochin. Rather, their personal laws or own statutory provisions applicable in their particular region are to be followed.

Polygamy in Islam

Ancient Period

Polygamy is legalized among Muslim men, i.e., Muslim men can marry multiple wives at the same time, but this should not exceed four. Polygamy was highly prevalent among them since the Mughal Rule. They used to have many wives, and some were considered subordinate to the others. The Mughals used to marry even as a part of certain treaties to gain control over the territory. Marriages in those times were seen as an option to form an alliance between the kings and to resolve conflicts between them.

Modern Period

In the modern period, Indian Muslims are required to follow the legal provisions stated under the Muslim Personal Law Application Act, 1937 which doesn’t prohibit polygamy in any form. Hence, under Islam, polygamy is still practiced and protected. If it is found to be violative of the Constitutional provisions, polygamy could certainly be abolished even when it is allowed under Personal Laws.

Case laws relating to polygamy in India

There have been several speculations by the different judges in the various courts of India regarding whether polygamy should be kept legalized in India or not. Apart from this, certain important information relating to polygamy has also been mentioned in the various case laws over the different years. 

Shayara Bano v. Union of India (2017) 

This is one of the landmark Supreme Court judgements passed in 2017. In this case, it was clearly stated by the Court that the practice of Triple Talaq was unconstitutional and violated the basic fundamental rights of Muslim women. This further laid the floor open for the interpretation of polygamy as being highly arbitrary and unconstitutional. It was stated that polygamy was also clearly violative of Article 21 of the Constitution as the right of women to live with dignity was violated. The fact that a Muslim man is allowed to marry as many wives as he wants is egregious and unfair in nature. This case could act as the foundation to remove polygamy and, more specifically, polygyny, in the future.

Javed and Ors v. State of Haryana (2003)

This case had been filed as a writ petition before the Court challenging the constitutionality of the Haryana Panchayati Raj Act, 1994. This Act prohibited anyone with more than two children from holding any position of authority in the Panchayati Raj System. The issue, in this case, was that the provisions were interfering with the right to freedom of religion of Muslim men as they are allowed to marry four wives and have four children with each wife.

The Court in this case declared that the provisions are not violative of the rights of Muslim men as they fall within the exception of Article 25. The purpose of these provisions was to control the population explosion in the country. Further, the court declared that in those situations where the personal laws are highly unfair towards one gender or one of the communities over the other, they should not be preferred over the constitutional provisions. Similar to this analogy, polygamy is morally unethical and injurious to society at large. Hence, this practice can anytime be superseded by the Constitutional or the legal provisions just like in the case of Sati when it had been abolished.

Khursheed Ahmed Khan v. State of Uttar Pradesh (2015)

In this given case, the Court pointed out a clear difference between the essential and non-essential practices in any religion. While the essential practices are regulated under Article 25 of the Indian Constitution, which mentions the right to freely profess, practice, and propagate any religion. However, the non-essential practices that don’t constitute an important part of any religion would not always be protected. While it is permitted for Muslim men under their personal laws to marry four women, it is not essentially required by their religion. 

Hence, the removal of the Muslim officer in this case from his post for not informing the superior about indulging in bigamy didn’t violate his rights under Article 25 of the Constitution. This is so because bigamy is not an essential practice in Islam. Hence, even if the organizational rules within his place of work don’t allow bigamy among employees, despite the same being a legal practice in Islam, the same would not violate any of his rights.

Priya Bala Ghosh v. Suresh Chandra Ghosh (1971)

This is one of the cases in which the existing legal provisions prove to be highly insufficient in providing fair justice. In this case, the appellant had filed a suit stating that her husband had indulged in bigamy while the first marriage was still in subsistence. He was convicted by the trial court, but later on, the husband appealed before the sessions court. The sessions court stated that since for the second marriage there was no proof of the performance of Saptapadi, one of the most essential rituals to be performed for the solemnization of the marriage.

Hence, it was stated by the courts in this case that admitting the second marriage by the person who indulged in bigamy would not be sufficient. There is also a need to prove that the second marriage took place after performing all the essential ceremonies. The burden of proving the same was on the prosecution. Hence, even when a person admits that they married two wives, they won’t be held liable unless the prosecution proves that all the religious ceremonies were duly performed. 

Abdur Rahim Undre v. Padma Abdur Rahim Undre (1982)

In this case, both the appellant and the respondent were husband and wife. The husband, owing to the immense abuse and violence meted out by his wife against him, had filed an appeal before the court. He had given an oral talaq against the wife and had also sent her a letter regarding the same. He also contended that his four children were under his custody but the possession of his residential flat was still with his wife. 

The court in this case held that the husband failed to prove that his wife had been converted to Islam and they carried out the Nikah ceremony. He also couldn’t prove that he had given the oral talaq. Apart from the facts of the case, the Court further went on to say that marrying four wives under Islam is not a compulsion. It is optional in nature and only lays down the maximum limit on the number of wives that a Muslim man can have at a given point in time. Hence, there is no obligation for any Muslim man to marry four wives or practice polygamy.

Polygamy and same-sex marriages

The decriminalization of homosexuality in recent times has received a good reception from people all over India. Yet, there has been no action on the part of the state to legalize same-sex marriages in India. It is only in certain countries such as Germany, Netherlands, or Australia where same-sex marriages are legally recognized and there are no restrictions on the same. Hence, in these countries in contention, there is a need to determine the presence of polygamy and same-sex marriages at the same time. 

In a group marriage, which is a mix of both polygamy and polyandry, it could be possible to see that both polygamy and same-sex marriage, though in an indirect manner, have been accommodated. This is so because, in group marriages, three or more people belonging to different genders can cohabitate. Hence, even if the people belong to the same gender under group marriages, it would still be a form of polygamy. 

In the United States of America, there has been a constant debate regarding the recognition of same-sex marriages under polygamy wherever it is permitted. The argument raised by many is that when polygamy is allowed, then it should be allowed for all consenting adults above the age of 18, regardless of their genders. In certain states in America, polygamy is still permitted but is absent in the case of same-sex couples indulging in polygamy. As a result, to this date, almost all over the world and not only in the United States of America, same-sex marriages are considered equally disgraceful as polygamy in the world, which is unjustified. Though polygamy could be arbitrary in nature, same-sex marriages are not and rather uphold the right to choose provided to the people for deciding whom to marry. 

Hence, if polygamy has been allowed despite its adverse impact in any region or country, it should also be accompanied by the concept of same-sex marriages, which shouldn’t be excluded from its purview. 

Polygamy on a global level

Polygamy is still practiced in a few countries in the world. As observed in the previous sections, since it is only in the personal laws of Muslims that polygamy is permitted, it is practiced lawfully in the Muslim majority countries. Several countries, such as India, Singapore, and even Malaysia, have allowed the practice of polygamy among Muslims in these countries. It is forbidden for people belonging to other religions. 

Yet in several other countries, it is allowed for the entire population, such as Algeria and Egypt- polygamy is legal even to this date in these countries. However, in most countries excluding those mentioned previously, Polygamy is banned for the entire population. There has been a dire need in recent years to globally impose a ban on polygamy, especially polygyny, which is its most prominent form because it puts married women at a disadvantage. When the husband is marrying another woman, the first wife won’t have any say in it. Further, the same is not applicable for women under Muslim Personal Law, i.e., polyandry is not permitted. This reflects the gender discrimination against women under the Muslim Personal Law. 

Though polygamy has been on a decline at the global level, there still exists a need to bring a complete end to it because it not only violates the rights of women but also degrades their dignity in society. It could act as the beginning of the heinous crimes that women could be subjected to torture and domestic violence. 

Various international instruments at the same time call for equal rights for both the husband and the wife in a family, such as the CEDAW (Convention on Elimination of All Forms of Discrimination against Women). However, the practice of polygyny is a clear violation of this convention. The African Charter on People’s and Human’s Rights furthermore also mentions the responsibility of the state to ensure the moral needs of the family and the discouragement of polygyny is a vital step towards the same. 

Hence at the international level, the need for abrogating this egregious practice of polygyny has been realized. It remains to be seen whether the states still persisting with polygamy even now will respond to it or not. 

Impact of polygamy on the Indian society

Polygamy, as seen in the previous sections, can have an adverse impact on society. It not only creates a turbulent atmosphere in the family but, at the same time, violates fundamental rights of the women. Article 15 of the Indian Constitution abolishes any form of discrimination among the people on the grounds of gender, race, or religion. However, in the case of polygamy, it is clear discrimination against married women. The husband won’t be able to devote adequate time to the multiple wives he has married and to provide them with equal satisfaction. As a result, there would be conflicts and antagonism among the wives arising out of these morally unethical conditions. 

Under the Indian laws, the practice of polygamy is still allowed in Islam whereas it is prohibited for the rest of the religions. This is highly discriminatory and regressive in nature and should not be permitted in a religion (Islam) just because there is no bar on it under the Muslim Personal Laws. Even the heinous practice of Sati had been abolished despite it being a part of Hindu Traditional practices because of its cruel nature on women. In a similar manner, even polygyny should be abolished in Islam.

This practice of polygamy further leads to increased cases of domestic violence or even sexual assault inflicted on women. This eventually has a negative impact on society. After the husband dies, disputes will arise among the wives concerning the distribution of property among them, which would further aggravate the conflicts between them. This not only leads to the exploitation of women but also lowers their dignity in society. It also has a negative impact on the child who is born into such a family. It makes them very cynical (distrust in human society) and impacts their education. This could even bring about a change in their perception of what is good or bad. They either try to isolate themselves from society or could take the wrong step in life, such as committing crimes.

From women to even children in society, polygamy can have a highly negative impact on the majority of society. Hence, efforts have to be made by the State to criminalize polygamy in all its forms to prevent such exploitation of women in society and also to protect youth from indulging in wrongful acts. 

Conclusion

Polygamy, in almost all aspects, is highly oppressive in nature, primarily towards women. This is so because while polyandry and group marriages are extremely rare, polygyny is still very abundant. Under the blanket of personal laws, it has caused huge injustice to Muslim women, especially in India. Even in other religions, there are certain loopholes in the codified laws as a result of which people still indulge in the practice of polygamy. For example, in Christianity, polygamy can be practiced under certain exceptional situations. When a woman, for example, has been widowed, she could marry a person who is already married and has a wife. The focus should be on educating or training her so that she can become self-reliant to sustain herself. In that situation, she won’t need to remarry just to sustain herself. This would also prevent her from any exploitation she might be subjected to in a polygamous marriage and also make her self-sufficient. 

Under Hindu law, only those marriages in which all the rituals have been performed would be included in polygamy if carried out after the first marriage. Hindus, even while having two wives, escape their liability by stating that in the subsequent marriage they failed to perform some rituals, thereby declaring it to be an unlawful marriage. Hence, there is a need to make the laws more stringent so that people can’t escape their liability in a situation where they are in a polygamous arrangement.

Polygamy has been abolished in many countries, but some still persist with it. There is a need to spread awareness among all countries about the ill effects of polygamy and develop a uniform codified law abolishing polygamy all over the world. International legal instruments only have soft power and are persuasive in nature. These should be made more stringent and even, in certain situations, binding in order to bring an end to polygamy, especially polygyny. However, an initiative needs to be taken by all countries to take collective action towards the global abolition of polygamy.

In India, the laws should be equally applicable to all and should not exempt one religion over the other from practicing polygamy. It is a non-essential practice in Islam and an end could be brought to it. The vision of the government was to introduce the Uniform Civil Code in India to combine all the personal laws of the various religions into a single set of codified laws. However, it couldn’t be introduced in India till now. As a result, certain practices such as polygamy are allowed in some religions like Islam and abolished in others. There should be cooperation and agreement among the different religions to introduce this code, which could play a major role in settling the issue of polygamy by abolishing it in all religions.

Hence, through all these actions, polygamy can be removed from this world and would ensure fair and equal rights for both men and women in society.

Frequently Asked Questions (FAQs)

  1.  Is polygamy legal in India?

Polygamy became an illegal practice in India in 1956 for all religions except for Islam and does not apply to the Hindus residing in Goa.

  1. Which law permits polygamy among Indian Muslims?

Polygamy is permitted for Indian Muslims under Muslim Personal Law Application Act, 1937. A Muslim man can have a maximum of four wives under this Act.

  1. In which countries is polygamy completely permitted?

The practice of polygamy is still completely permitted in a few countries such as Algeria, Egypt, and Cameroon. 

References

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