The practice of having more than one wife prevailed in ancient India. In modern times, The Hindu Marriage Act, applicable to the majority of Indians, prohibits its practice and declares the marriage void if either of the partners has a living spouse at the time of marriage. However polygamous marriage exists though its extent is not known.
Polygamy And Bigamy
Polygyny is the most common and accepted form of polygamy, entailing the marriage of a man with several women. Polygamy in India is, in general, prohibited and the vast majority of marriages are legally monogamous. Polygyny among Christians was banned in the late 19th century, while The Hindu Marriage Act, 1955 banned polygamy for Hindus. Currently, polygyny is only allowed among Muslims; but it is strongly discouraged by public policy. Muslims are subject to the terms of The Muslim Personal Law(Shariat) Application Act of 1937, interpreted by the All India Muslim Personal Law Board. The prevalence of polygyny in India is very low: among married women, only 1.68% of Hindus, 2.45% of Muslims, 2.16% of Christians, and 1.16% of other religions live in polygynous marriages.
In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy laws do not apply to couples in a de facto or cohabitation relationship or that enters such relationships when one is legally married. If the prior marriage is for any reason void, the couple is not married, and hence each party is free to marry another without falling foul of the bigamy laws. In India, it is legal only for Muslim men but very rarely practiced and up to 10 years’ imprisonment for others except in the state of Goa for Hindus due to its civil code.
Current Scenario Of Polygamy
In India, polygamy has been declared as an offence under the Indian Penal Code 1860. The Hindu Marriage Act, 1955 declares a marriage solemnized when the current spouse is living to be void and punishable as per IPC. The Muslim law, however, still allows a Muslim man to have four wives at the same time. Though no such practice is in existence for Muslim women. Therefore, in India, polygamy is prohibited and punished except for Muslim men who can have four wives at a time.
Section 17 of the Hindu Marriage Act, 1955 states that any marriage between two Hindus will be void if it is solemnized at a date when either party has a husband or wife living. This section further states that the provisions of sections 494 and 495 of IPC shall apply accordingly.
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 states that notwithstanding any custom or usage to the contrary, in questions of marriage where the parties are Muslims, the rule of the decision shall be the Muslim Personal Law. Since it is claimed that the Holy Quran permits a Muslim man to keep four wives at a time, polygamy is allowed for Muslim men under this section.
Sarla Mudgal & Others v Union of India is a landmark judgment where the Hon’ble Supreme Court held that a Hindu marriage solemnized under the HMA can only be dissolved on the grounds specified under such Act. Conversion to Islam and remarrying would not dissolve the previous marriage. It is within the right of a Hindu man to embrace Islam but he has no right to marry again without getting his previous marriage dissolved first.
Current Status Of Bigamy
In India currently, there are different personal laws for different religions for prohibiting bigamy:
- Hindu Marriage Act 1955 – Section 1 of Subsection (a), (b) and (c) states which specific religion and persons come under this Act. Thus, under Section 17 of the Hindu Marriage Act, any person considered Hindu according to Section 1 marries again during the life of the first husband/wife, shall be punished under the Indian Penal Code provision.
- Parsi Marriage and Divorce Act– Section 5 of this act declare Bigamy null and void or dissolved and impose a penalty under Section 494 and 495 of the Indian Penal Code.
- Christian Marriage Act – Even though the Christian Marriage Act doesn’t have specific provisions for Bigamy, the Form of Register Marriage is only for Bachelor/Spinster and Widow/Widower. For Marriage Certificate Section 60 Sub Section (2) states that “neither of the persons intending to be married shall have a wife nor husband still living”, and making false oath or declaration is punishable under Section 193 of IPC, this clarifies that more than one marriage will be considered illegal under this act.
- Special Marriage Act 1954 – Section 44 of this act states the punishment for Bigamy and imposes a penalty under Section 494 and 495 of the Indian Penal Code.
- Foreign Marriage Act 1969 – Section 19 of this act states the punishment for Bigamy and imposes a penalty under Section 494 and 495 of the Indian Penal Code.
- Muslim Marriage Law – There is no codification or specific provisions for this law. It is written in Quran that a Muslim male can marry two, three, or four times, if they are capable to treat and respect each wife equally after marriage, if not then only one. Muslims in the rest of the country are subject to the terms of The Muslim Personal Law (Sharia) Application Act of 1937, interpreted by the All India Muslim Personal Law Board.
There are loopholes in the law that protect women from being rescued from a second marriage. Even under criminal law, it is extremely difficult to prove bigamy, as the marriage has to be validly performed to prove the offence of bigamy. Usually, these loopholes in the law are exploited by men to defend themselves in such cases. Therefore lawmakers should make clear provisions to protect and safeguard women who have been exploited or duped with a second marriage.