Concept
Polygamy is a state of marrying more than two partners or having more than two wives. Polygamy is not a new concept. It I prevalent in the system throughout history. The Indian rulers had multiple wives and the case was similar in the context of the world. The Indian law system later started the crusade toward the right to establish equality which resulted in penalizing the practice of polygamy by people belonging to the Hindus and other religions. Although, the practice is prevalent in the Muslim law having multiple aspects.
The Hindu Marriage Act, 1955
Section 11 – The subsequent marriage during the existence of a prior marriage or the polygamous marriage will stand null and void under Hindu Law. It will be declared null and void by a decree of nullity.
Section 17 – Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.
Section 494 Of The Indian Penal Code
“Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 2 Of The Shariat Act
It provides the entire authority of dealing with questions related to Muslim Marriages to the Muslim Personal Law (Shariat) Application Act, 1937.
Views Of The Supreme Court
- The apex court in the case of Sarla Mudgal v. Union of India ((Sarla Mudgal v Union of India, (1995), SC 1531)) strictly prohibited the practice of polygamy by converting to Islam. The court held that without any legal dissolution of subsisting marriage prior to the conversion to Islam will have same footing as it would have if the person did not convert to Islam. Such practices were outlawed by the court.
- In the case of Lily Thomas v. Union of India ((Lily Thomas v Union of India (2000) 6 SCC 224)), the court reiterated its ratio held in the Sarla Mudgal case and prohibited the practice of bigamy or polygamy by converting to Islam.
18th Law Commission (227th Report) Recommendations
The 18th Law Commission constituted in the year 2006 for years gave recommendations to prevent bigamy via conversion to Islam and bring evolution in the stringency of laws against such practice. The recommendations were as follows:
- Section 17A must be inserted after section 17 in the Hindu Marriage Act 1955, prohibiting the practice of marrying again after converting to Islam and without dissolving the prior subsisting marriages. It would be punishable under section 494 and 495 of the Indian Penal Code 1860.
- The same provision must be incorporated in the acts of different religions the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act, 1936 and the Dissolution of Muslim Marriages Act, 1939.
- Proviso of Section 4 of the Dissolution of Muslim Marriages Act, 1939 must be deleted providing immunity to the non-Muslim woman.
- The anti-bigamy provision must be included in the Special Marriage Act, of 1954 to govern inter-religion marriages.
- Bigamy under section 494-495 must be turned as a cognizable offence by bringing an amendment in the Code of Criminal Procedure.
Current Scenario
There is a plea made before the court in the year 2022 in the case of Reshama v. Union of India ((Akshita Saxena, Plea in Delhi High Court Seeks Muslim Men To Obtain Prior Consent From Existing Wife Before Subsequent Marriage, Notice Issued, Live Law (2 May 2022 3:13 PM), https://www.livelaw.in/news-updates/delhi-high-court-polygamy-muslim-men-second-marriage-wife-consent-198070?infinitescroll=1)) contending that any Muslim marriage again without taking permission from the wife must be declared an unconstitutional practice. Additionally, marrying again without making proper arrangements for accommodation for prior wives and children and without any arrangement for their maintenance must be declared unconstitutional. The petitioner cited the stance of Pakistan and Bangladesh upon regulating the practice of polygamy and bigamy.
Conclusion
Polygamy is an uncelebrated practice that is considered immoral in the eyes of the law. The tradition of converting to Islam for marrying again was condemned and outlawed by the apex court. Furthermore, the recommendations in the 227th Law Report also enlightened the path of prohibiting the application of marrying several times during the subsistence of prior marriage. The crusade has resulted in a plea before the court stating that polygamy in Muslim law for the attainment of sexual desires of men or self-interest must be regulated.
Author – Khushi Shukla, a student of Indore Institute of Law.
Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Adjuva Legal and Adjuva Legal does not assume any responsibility or liability for the same.
