A woman from the Hatti tribe in the Trans-Giri region of Himachal Pradesh recently married two brothers under a traditional polyandrous practice called ‘Jodidaran’. 

• The incident has reignited the discussion around the legality and constitutional validity of customary tribal practices like polyandry in India.

About Polygamy

• It is the practice of having more than one married spouse — wife or husband. It is of 2 types:
  • Polygyny – one man with multiple wives
  • Polyandry – one woman with multiple husbands

Prevalence of polygamy

• The National Family Health Survey-5 (2019-20) showed the prevalence of polygamy was 2.1% among Christians, 1.9% among Muslims, 1.3% among Hindus, and 1.6% among other religious groups. 
• The data showed that the highest prevalence of polygynous marriages was in the Northeastern states with tribal populations. 

Legal Position on Polygamy in India

• Statutory Prohibition: Polygamy are outlawed by the Hindu Marriage Act, 1955, the Special Marriage Act, and are criminalised under the Bharatiya Nyaya Sanhita.
• Tribal Exemption Clause: Section 2(2) of the Hindu Marriage Act exempts Scheduled Tribes (STs) from its provisions unless the Central Government directs otherwise by notification.
• Definition of Custom: Section 3 defines “custom” as a rule followed for a long time that has obtained the force of law. However, for legal acceptance, it must be reasonable, certain, and not opposed to public policy.
  • The Constitution protects tribal customs, but only if they do not conflict with fundamental rights such as equality, dignity, and life.

Constitutional Status of Scheduled Tribes

• Special Protection Under the Constitution: Article 342 recognizes Scheduled Tribes and grants them a distinct legal status, often upholding their customs over general law unless proven discriminatory.
• Uttarakhand’s UCC Exception: The Uniform Civil Code (UCC) enacted by Uttarakhand in 2024 prohibits polygamy and mandates marriage registration but explicitly excludes Scheduled Tribes from its purview as per Article 366(25) and Article 342.

Judicial Interpretation on Custom vs. Fundamental Rights

• Supreme Court on Triple Talaq: The SC ruled triple talaq unconstitutional, calling it arbitrary and violative of Articles 14 and 21.
• Sabarimala Case (2018): The SC held that barring women of menstruating age from entering the temple violated Articles 14, 15, and 21, despite its customary roots.
• Tribal Succession (2024): In Ram Charan & Ors. vs Sukhram & Ors., the SC ruled that customs must evolve and cannot override women’s right to inherit property. It emphasized that excluding female heirs on customary male preference violates Article 14.

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