Marry

This article is written by Sambit Rath, a B.A. LL.B student of Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, the author aims to provide all the necessary information about the practice of monogamy. 

It has been published by Rachit Garg.

Introduction

The recent instance of a woman marrying herself in India has raised questions about the practice of sologamy. Since the marriage of two people is the most common form of marriage, it becomes difficult for us to imagine what the legal consequences of such a  marriage could be. Although there isn’t any law applicable to sologamy at present, other practices of marriage are properly regulated in India. 

Marriage as a practice dates back to 2350 B.C in the Far East. Humans, being social creatures, have always depended on relationships to fulfill various needs. These relationships can be friendships, family, partners, producer-consumer, etc. In many cultures, marriage has been the way to tie together two people to form a socially acceptable relationship. 

As time has passed, the concept of marriage has evolved and has gone through a few changes. Everyone is aware of the idea of multiple marriages that were popular during the times of kings and queens. This practice of one person marrying multiple individuals is called polygamy. When a married person gets married to another person while his/her spouse is still alive, it is called bigamy, and when one is married to just one person, it is called monogamy. In this article, we shall look into monogamy in detail.

Meaning of Monogamy 

The word ‘monogamy’ generally means a relationship with one partner at a time. According to the Oxford dictionary, monogamy refers to the practice of having only one husband or wife at a time. It is a form of marriage that is well known to everyone in the modern world. Leaving a few exceptions, most societies these days follow this form of marriage. For example, in India, Hindus and Christians follow the monogamous form of marriage. In fact, Christians all over the world follow this practice. Among the other forms, monogamous marriages are the norm in the modern world. 

Origins of Monogamy 

In the early days, marriages normally involved multiple partners. From the Christian perspective, monogamy became the norm somewhere between the 6th and the 9th centuries. It was the outcome of a tussle between the Catholic Church and the nobility, who preferred having multiple wives. Marriages in those days were arranged for various economic or political reasons. This practice of arranging marriages is continued to this date in various cultures all over the world. 

As per the history of Hinduism, the concept of monogamy has prevailed since the Vedic period (1500-500 BCE). Even though other forms of marriage like polygyny and bigamy have been permitted under certain conditions, monogamy has been the dominant form of marriage.

Ancient Greece and Rome are the places from where socially imposed monogamy originated. It was done based on the belief that monogamous groups were at an advantage because fewer men would leave the group to search for wives. This also meant that they would be available for battle and pay taxes, which wouldn’t be the case if men left the group too often in order to find more wives. With the emergence of Christianity in the Roman Empire, the practice of monogamy was promoted even more widely than before.  

Comparison of monogamy with other forms of marriage 

Different societies have different forms of marriage based on their beliefs and logic. In modern society, the idea of live-in relationships is growing rapidly. Sologamy, which means marrying oneself, is a new concept too. Similarly, at various points in history, different forms of marriage were adopted according to the requirements of that time. Let’s compare monogamy with other forms of marriage for a better understanding.

Difference between Monogamy and Sologamy 

Monogamy and sologamy can be differentiated on the basis of:

  • Number of spouses: In monogamy, there is only one spouse for an individual. Whereas, in sologamy, an individual marries themselves, making it a marriage with no spouses.
  • Legality: Monogamy is found in various cultures and there are laws that recognise it, which makes it legal. Sologamy, on the other hand, has no legal existence as there are no laws dealing with it.
  • Popularity: Monogamy is the dominant form of marriage in the modern world. Sologamy is a very new concept and is slowly being adopted by people who strongly believe in self-love.

Difference between Monogamy and Polygamy 

Monogamy and polygamy can be differentiated on the basis of:

  • Number of spouses: In monogamous marriages, one person can marry only one other person, which means only one spouse at a time. In polygamous marriages, one person can have more than one spouse at a time.
  • Legality: Monogamy is considered legal in virtually all countries. On the other hand, leaving out some exceptions, polygamy is considered illegal in most societies.
  • Popularity: Monogamy is the most popular form of marriage in the modern world. Polygamy was once a popular form of marriage in the past, but now it is losing relevance.

Legal scenario of monogamy in India 

India is the birthplace of Hinduism, which preaches that monogamy is the best form of marriage. After the emergence of Christianity and Islam in the country, India became a land of vast cultural differences. Today, the laws dealing with marriages of these three major religions are separate. Out of these three, Hindu and Christian law only accept monogamy as the valid form of marriage. Hindu marriages are governed by the Hindu Marriage Act, 1955, and Christian marriages are governed by the Indian Christian Marriage Act, 1872. 

The Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955, was brought into existence to regulate marriages of Hindu people. Section 5 of the Act talks about the conditions for a Hindu marriage. For our discussion, Section 5(i) becomes important. This provision entails that neither party is allowed to marry someone else if they already have a spouse. To be eligible for another marriage, a married person will have to obtain a divorce first to be eligible for another marriage. So, this provision of the Act prohibits bigamy, polygamy, and polyandry, whereas it provides for only monogamous marriages.

Section 11 of the Act makes any bigamous marriage of Hindus void. Section 17 of the Act makes bigamy a punishable offence and provides for the application of Sections 494 and 495 of the Indian Penal Code, 1860 if one is found guilty of this offence. 

The Indian Christian Marriage Act, 1872 

This Act was enacted to simplify the laws governing Indian Christian marriages. As Christians are staunch supporters of monogamy, it is no surprise that the law dealing with their marriages provides only for monogamous marriages. According to Section 4 of the Act, one or both of whom is (or are) Christian(s) can marry as per the provisions of this Act. Although not specified, the wording of this Section implies that one person can have only one spouse at a time. 

Parties have to be truthful while taking oaths for the registration of their marriage. If found to be lying about their previous marriage, then they can be punished under Section 193 of the Indian Penal Code. Bigamy is not permitted under this Act either, just like in the Hindu Marriage Act, bigamy is not permitted under this Act either. 

Muslim Personal Law (Shariat) Application Act, 1937

This Act deals with marriage, succession, inheritance, and charities among Muslims. Muslims in India are governed by various laws specific to them that are derived from sources such as the Quran, Sunna of Hadis, customs, etc. Muslim personal laws are largely uncodified and that is why they are regulated by these sources.

In Islam, monogamy is the general rule, and according to the Quran, polygamy may be permitted if a man is capable of taking good care of multiple wives. According to Muslim laws, a Muslim man can have a maximum of four wives, whereas a Muslim woman can have only one husband at a time. So we can say that only polygyny is permitted and polyandry is not. Hence, monogamy is to be followed compulsorily by women.

The Special Marriage Act, 1954 

The Special Marriage Act was enacted to make inter-religion marriages legally possible and also act as a middle ground for people not wanting to be regulated by a religion-specific Act. Just like the above two Acts, the Special Marriage Act contains provisions that prohibit bigamy. According to Section 4(a), neither of the parties should have a living spouse. Committing the offence of bigamy would attract penalties under Sections 494 and 495 of the Indian Penal Code, 1860.

Legal scenario of monogamy globally

United Kingdom

The Marriage Act of 1949 is the Act that regulates marriages in England and Wales. Since the UK has historically been a Christian country, it is not a surprise that its laws have reinforced the monogamous form of marriage. According to Section 26 of the Act, only a marriage between a man and a woman can be solemnized. As per Section 26(2)(b), same-sex marriages are permitted too. Hence, monogamous marriages are the only legal form of marriage in the UK.

Russia

The law dealing with marriage in Russia is the Family Code, 1995. According to Article 14 of the Code, no person shall be allowed to marry if they are already involved in another registered marriage. It means only monogamous marriages are permitted and other types of marriages aren’t. 

Australia

Marriage in Australia is regulated by the Marriage Act 1961. It applies uniformly throughout the country. It does not recognize any other form of marriage except monogamous marriages, including aboriginal marriages. Section 23 of the Act provides the grounds on which marriages are void. A marriage in which either of the parties was, at the time of the marriage, lawfully married to some other person, would be void. Thus, Australian marriage law provides for only monogamous marriages.

It is to be noted that the original Act did not define marriage and left it to the courts to apply the common law definition. It was only after the Marriage Amendment Act, 2004, that marriage was defined as the union between a man and a woman. Later in 2017, the definition was changed, and the words “a man and a woman” were replaced with “2 people.”  This allowed monogamous same-sex marriages in Australia. 

China

Traditionally, in China, polygamy has a long history. But monogamy is the norm in modern-day China. It is the only legal form of marriage except for some minorities, such as Tibetans are allowed to practice polyandry. Since the promulgation of the Marriage Law in 1950, monogamy has replaced the long history of polygamy. The law states that the New-Democratic marriage system was based on the free choice of partners, monogamy, and equal rights of both sexes. Further, it explicitly stated that bigamy shall be prohibited. Thus, the intention of the policymakers from the beginning was to have a society where a family constituted of one man, one woman, and their children. In 1981, a new Marriage Law was promulgated. It made a few changes, but the rule of a monogamous marriage remained same. As per Article 2 of the Act, a legal marriage system consisted of a monogamous form of marriage with a free choice of partners. Hence, it can be concluded from this provision that, at present, monogamy is the only form of marriage that is legal in the People’s Republic of China.

South Africa

Much like India, South Africa is a diverse country with different religions and cultures. These cultures have their own practices, and the legal system of South Africa has recognized these practices. That is why, according to the Recognition of Customary Marriages Act, 1998, polygynous marriages are allowed subject to certain conditions. Apart from this, in a civil marriage, monogamy is the sole legal form of marriage. The Marriage Act of 1961 regulates civil and religious marriages between a man and a woman. Although no Section of the Act specifically talks about monogamous marriages, the language used in the Act provides for monogamous marriage. Similarly, the Civil Union Act of 2006 allows marriage between two people regardless of sex. The definition of ‘civil union’ as per the Act defines it as a voluntary union of two adults. Also, Section 8 of the Act talks about requirements for solemnisation and registration of civil unions. A person may be a partner or spouse in one marriage at any given time. Thus, two out of three marriage laws in South Africa permit monogamous marriages only.

Important Case Law

Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988)

Facts of the case

  • In this case, the appellant got married to the respondent in June 1974 under Hindu Law. The respondent already had a subsisting marriage and the wife was alive.
  • Alleging ill-treatment, the appellant left the house and filed for maintenance in 1976. Her application was rejected by the Trial Court and later by the High Court.

Issue of the case 

  • The issue before the Court was whether a woman marrying a Hindu man who has a subsisting marriage is eligible to claim maintenance.

Judgement of the Court 

  • The Apex Court held that a woman marrying a man having a legal spouse would not be eligible to claim maintenance as the marriage would be null and void as per Section 11 of the Hindu Marriage Act.
  • The marriages that do not fulfil the conditions of Section 5 of the Act are considered void from the beginning. These have to be ignored as not existing in law at all.

Conclusion 

Monogamy, being the most common form of marriage, is becoming the norm in most societies. The other forms are losing their popularity as time passes. One of the reasons could be that having more partners would complicate a lot of things, like maintenance, transfer of property, nomination, etc. The laws are being simplified to deal with things effectively, and this is an outcome of that. For the most part in the modern era, monogamy has been the dominant form of marriage, leaving the middle east countries as exceptions. 

The recent instance of an Indian woman marrying herself has raised a lot of questions and has got people to wonder if it is something new. But as it turns out, it is not so new and thus indicates a future where sologamy would be a choice for people who do not want a partner. It sure sparks a lot of legal debates, and it is to be seen how modern societies approach this novel concept. Up until that point, monogamy seemed to be the top choice for people in most countries. 

Frequently Asked Questions (FAQs) 

What is the punishment for bigamy in India? 

Bigamy is a non-cognizable and bailable offence under Section 494 of the Indian Penal Code, 1860. Anyone committing the offence of bigamy shall be punished with imprisonment which may extend to 7 years or with a fine or in some cases, both.

Why is polygamy legal in India but not bigamy? 

Polygamy is legal because it is recognised in Islamic texts, whereas, bigamy is not recognised in any text of any religion. Also, bigamy is a form of cheating because the spouses of that person are often not aware of each other’s existence, whereas, the spouses are well aware of each other in polygamy as they live under the same roof.

Which form of marriage is common in India? 

Monogamous marriages are the dominant form of marriage in India. It is because Hindus and Christians strictly follow monogamy. Indian Muslims, although allowed to have multiple partners, most have only one partner.

References


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here