The Law on Polygamy among religious groups in India

Context: 

Recently, the Assam Chief Minister has said that the state government will move to ban the practice of polygamy through legislative action, and that an expert committee would be formed to examine the issue.

Practice of Polygamy:

• Polygamy is the practice of having more than one married spouse — wife or husband. 
• The issue is governed both by personal laws and the Indian Penal Code (IPC).

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. 
• A list of 40 districts with the highest polygyny rates was dominated by those with high tribal populations.

Prevention of bigamy under Hindu law:

• Hindu Marriage Act:

• • Parliament passed the Hindu Marriage Act in 1955, outlawing the concept of having more than one spouse at a time. 
  • Buddhists, Jains, and Sikhs are also included under the Hindu Marriage Code. 
  • The Parsi Marriage and Divorce Act, 1936, had already outlawed bigamy.

• Indian Penal Code: 

1. 1. IPC Section 494 (“Marrying again during lifetime of husband or wife”) penalises bigamy or polygamy. This provision does not apply to a marriage which has been declared void by a court — for example, a child marriage that has been declared void.
   2. The law also does not apply if a spouse has been “continually absent” for the “space of seven years”. 
      • This means a spouse who has deserted the marriage or when his or her whereabouts are not known for seven years, will not bind the other spouse from remarrying.
   3. Section 495 of the IPC protects the rights of the second wife in case of a bigamous marriage.

• Under Section 17 of the Hindu Marriage Act bigamy is an offence, and the provisions of sections 494 and 495 of the Indian Penal Code, 1860, shall apply accordingly.
• However, despite bigamy being an offence, the child born from the bigamous marriage would acquire the same rights as a child from the first marriage under the law.

Exception to the Bigamy law for Hindus:

• Goa follows its own code for personal laws. 
• A Hindu man in the state has the right to bigamy under specific circumstances mentioned in the Codes of Usages and Customs of Gentile Hindus of Goa.
• These circumstances include a case where the wife fails to conceive by the age of 25 or if she fails to deliver a male child by the age of 30.

Under Muslim law:

• Marriage in Islam is governed by the Shariat Act, 1937. Personal law allows a Muslim man to have four wives. 
• To benefit from the Muslim personal law, many men from other religions would convert to Islam to have a second wife.

• In a landmark ruling in 1995, the Supreme Court in Sarla Mudgal v Union of India held that religious conversion for the sole purpose of committing bigamy is unconstitutional. 
• This position was subsequently reiterated in the 2000 judgement in Lily Thomas v Union of India.
• Any move to outlaw polygamy for Muslims would have to be a special legislation which overrides personal law protections like in the case of triple talaq.

News Source: Indian Express