INTRODUCTION
Polygamy is in our society from the ancient period. In modern times, some legal change has been brought with exceptions regarding personal laws. Though there are lots of places where traditions prevail over laws and polygamy is continuously going on. Under Hindu Marriage Act, 1955 if anyone has already spouse living still marrying another that marriage will be considered as void and it will be punishable as well.
POLYGAMY
Polygamy[1] means marrying multiple spouses or the state of having more than one mate at one time. The term is the opposite of monogamy, which means having only one partner at a time, which is more common practice. Polygamy was always looked with disfavor. Though most of the country made this practice illegal once it was widespread almost the whole of the World and is still practiced by some nowadays.
Forms of Polygamy
Polygamy can be formed mainly as per the following categories:
- Polygamy is the practice of a man having more than one wife or multiple wives simultaneously.
- Polyandry is the practice of women having more than one husband or multiple husbands simultaneously.
- Group marriage is the arrangement in which several males live together with several females, forming a conjugal unit.
DARWINISM OF POLYGAMY IN INDIA
Early foundation
Polygamy is as old as human exists[2]. In ancient India, most of the religion and community allowed polygamous practices. It was common for the king to marry several women to expand their territory and to create a good relationship with other rulers. Polygamy is also there in religious texts. In ancient India, it was a matter of tradition, personal choice and pressure from society, moral and religious obligation. In the traditional sense, one of the characteristics features of a Hindu marriage has been that it was more connected with the performance of religious duties and begetting of a son, who enables a man to get deliverance from the suffering of Hell. So to give birth of a son was one of the most important reasons to practice polygamy.
Polygamy in present day
Nowadays the practice of Polygamy becoming lower, most of the country doesn’t allow polygamy and India also not an exception. The Hindu Marriage Act, 1955 prohibits the practice of Polygamy, which applies to the majority of Indians. Tough there are some other communities that still practice Polygamy with some exception e.g. Muslim law allows Polygamy but in limited number. The latest figures of polygamy, released by their national Family Health Survey (NFHS), 2006 state that 2% of women reported that their husbands had more than one wife. The number of polygamous marriages reduced from earlier which was occurred in 1961 Census[3].
Legal development
The Hindu Marriage Act, 1955 prohibited the practice and polygamy became illegal in India. Ifthe first condition of marriage under Section 5(i) of the act fails that marriage will be void under Section 11 of the Act. Section 17 further render the offending party would be liable for prosecution under Sections 494 and 495 of the Indian Penal Code, 1860. This law is applicable uniformly towards the citizen of India with some exceptions.
RELIGIOUS ASPECTS
India is a vast country and it consists of different religions, caste and personal beliefs of people. As per their own beliefs, they follow their personal laws, discussed below –
Hinduism and Polygamy
Before the Act of 1955, a Hindu could marry any number of wives, if he had a wife or wives living[5]. In Holy books we can see those examples as in the period of Ramayana polygamy practiced by the king Dasharath, father of Ram had three wives Kausalya, Sumitra and Kaikeyi. Mahabharata also there is evidence of polygyny as well as polyandry; the father of Pandavas Pandu had two wives Kunti andMadri[6]. Where polyandry was practiced by Draupadi who was the wife of PanchPandavasand many more examples are there. This practice is continuing from so long, although this practice as always looked with disfavor. It’s been practiced in Hinduism nowadays also.
Islamism and Polygamy
The practice of polygamy did not invent by Islam. Polygamy has existed from the earliest time of human history. In Islamism monogamy practices as a general rule where polygamy is an exception[7]. The Prophet was not in favor of polygamy except some exceptional circumstances. A Muslim man can have maximum four wives at a time and it’s legal under Muslim law. Many holy personalities had many wives at the same time.
LEGALITY OF POLYGAMY
In the context of Personal Laws
The principal law preventing Polygamy or bigamy in India under the Indian Penal Code, but its varying in personal laws and debatable as well, the perspective regarding personal laws[8]are discussing below :
Hindu Marriage Act,1955
The first condition of a valid marriage under Hindu Marriage Act[9] is Monogamy [Section 5(i)], which provides the rule of monogamy and prohibits polygamy. Thus a man or woman whose wife or husband is alive and his marriage is valid and subsisting at the time, cannot marry again, if she or he marries another husband or wife accordingly, will be guilty of committing the offence of bigamy. Section 17 of the Hindu Marriage Act declares that bigamy is an offence and is punishable under Sections 494 and 495 of the Indian Penal Code. Section 17 of the Hindu Marriage Act states that 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 shall apply accordingly. The provision which prohibit bigamy, do not contravene Art .25 of the Constitution.[10]Still in some rural place among Hindus the practice of polygamy accepted.
Muslim Law
Muslim law is uncodified law, so there are no specified provisions regarding polygamy. As it is written in the Quran a Muslim man can marry a maximum of four women at a time but with a specified condition that the wives should be maintained and treated equally after marriage. In Muslim law polygamy is permitted so bigamy is not considered as an offence.
Special Marriage Act,1954
Section 44 of the Special Marriage Act states the punishment for Bigamy and imposes a penalty under Section 494 and 495 of Indian Penal Code,1860.
The Change of religion excuse polygamy?
No, there are lots of cases regarding this. In Sarla Mudgal vs. Union of India and Others.[11]stated as “A marriage solemnized under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion.” It also that that the Second marriage of a Hindu husband after his conversion to Islam is void marriage in terms of Section 494 IPC. Apart from this case Lily Thomas vs. Union of India[12] is another important case where it states that conversion to another religion to commit bigamy is an offense under Section 494 of IPC.
Scope of IPC in the field of polygamy
Section 494 of the Indian Penal Code talks about the punishment of committing bigamy in India. Section 494 states as-
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.[13]
Essentials for considering the offence
Followings are essential to commit the offence of bigamy[14]–
- The accused must have conducted the first valid marriage[15]
- The accused must have married again
- The first marriage must be subsisting[16]
- The spouse must be living
- Both marriages must be valid.[17]
When does marrying twice not amount as an offence?
Section 494[18]would not applied to that person –
- whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction,
- nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage,
- the person shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
CONCLUSION
Though polygamy is a criminal offence now under the Indian Penal Code but until the personal laws does not specifically mention Punishment for Bigamy or illegalize Bigamy, then a person cannot be convicted for the offence of bigamy. As stated in Birendra Bikram Singh vs. Kamla[19]the Allahabad High Court held that “in view of Sections 11 and 17 of the Hindu Marriage Act, there is no remedy in case her husband marries another lady.” The court observed further that in common law she has right to file a suit for declaration that the second marriage of her husband is illegal and void[20].
[1]https://study.com/academy/lesson/what-is-polygamy-definition-history-lesson.html
[2]https://www.google.com/amp/s/www.myadvo.in/blog/polygamy-legal-india/amp/
[3] https://www.ijlmh.com › Poly…PDF
Polygamy in Muslim Law: An Overview – International Journal of Law Management …
[4]https://www.counterview.net/2016/09/polygamy-in-india-down-in-45-yrs.html?m=1
[5]Viraswami v. Appaswami, (1873) 1 Mad HC 475.
[6]https://www.google.com/amp/s/vedkabhed.wordpress.com/2016/05/05/polygamy-in-hindu-dharma/amp/
[7]https://www.google.com/amp/s/vakilsearch.com/advice/muslim-marriage-law-india/amp/
[8] https://www.google.com/amp/s/blog.ipleaders.in/laws-on-bigamy-in-india/amp/
[9]R.K.. Agarwal, Hindu Law (Page no. 46) (Central Law Agency, Allahabad, 2017)
[10]Ram Prasadv.State of U.P., AIR 1961 All. 334
[11]AIR 1995 SC 1531
[12]AIR 2000 SC 1650
[13]Section 494 of the Indian Penal Code,1860
[14]https://shodhganga.inflibnet.ac.in › …PDF
Web results
chapter ii offence of bigamy under indian penal code, 1860 – Shodhganga
[15] Davis v. People, 264, p. 658: 83 Colo. 295; People v. Lewis, 190 N.W.
702: 221 Mich. 164.
[16] Smt. VidyaTomar v. State of Rajasthan and Others 2013 (Criminal Court Cases 131 (Rajasthan).
[17]Kiran Devi v. Thakur Das, 1977 Cri LR (Raj) 79; Bhaurao Shankar
Lokhande, AIR 1965 SC 1564: (1965) 2 Cri LJ 544 (SC).
[18]Exceptions of Section 494 of Indian Penal Code
[19]AIR 1995 All, 243.
[20]R.K. Agarwal, Hindu Law (Page no.121) (Central Law Agency, Allahabad, 2017)
This article has been written by Suparna Roy BALLB student Department of Law, University of North Bengal.
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