DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY SABBAVARAM,

VISHAKAPATNAM, A.P.,

Project title:
Polygamy and its Legal Implications

Subject:
Family Law

Name of the faculty:

Dr. P. Varalakshmi

Name of the candidate:

Mousumi Das

Roll no: 22LLB075

Semester: III
 CERTIFICATE

I, MOUSUMI DAS, hereby declare that this project titled “POLYGAMY AND ITS LEGAL
IMPLICATIONS” submitted by me is an original work undertaken by me, I have duly
acknowledged all the sources and references from which ideas and extracts have been sourced.
This project is free from plagiarism and does not utilize any unfair means whatsoever.

(MOUSUMI DAS)
20LLB075
Semester III
 TABLE OF CONTENTS
1. Acknowledgements
2. Abstract
3. Introduction
4. Religious laws related to polygamy
5. Case laws
6. Impact of polygamy on our society
7. Conclusion
8. Bibliography
 ACKNOWLEDGEMENTS

I would sincerely like to put forward my heartfelt appreciation to our respected Family Law -
1 professor, Ms. Varalakshmi, for giving me a golden opportunity to select this project topic:
“Polygamy And Its Legal Implications”. I have tried my best to collect information about the
project in various possible ways to depict a clear picture of the subject.
 ABSTRACT

Even though marriage is both a public and a private institution, the state restricts who has the
right to marry and grants privileges to select married couples. Simultaneously, the personal
choice to make a lifetime commitment to another person is also recognised if it does not violate
the strictures of the state. According to contemporary philosophy, monogamous marriages are
connected with civilization, whereas polygamy is associated with primitivism. Although it was
not an obligatory conventional idea, polygamy was common in ancient India, especially among
the rich nobility and emperors.

The term "polygamy" is derived from the Greek terms "polys," which means "many," and
"gamos," which means "marriage." Therefore, several marriages are referred to as polygamy.

The Oxford Dictionary defines polygamy as "the act or custom of maintaining more than one
spouse at the same time".

Legally, Hindus and followers of other religions are not allowed to practise polygamy in India,
although Muslim men are allowed to have a maximum of four wives, according the legislation.
Right to religion is given a lot of attention in India, and the Indian Constitution always protects
it. As seen by certain recent historic decisions in which the Constitution has been changed to
reflect the sophisticated mixture of modern ideas and most current advances of cultural shift,
on the other hand, the judicial system plays a crucial role in amending the Constitution by
highlighting procedural justice.

In my project, I will elaborate on the legal implications of polygamy as well as the social issues
surrounding it and why it is innately negative as an institution towards women.
 INTRODUCTION

The objective of the study: The objective of learning about polygamy and its legal
implications can be multifaceted. Polygamy has been practiced in various cultures throughout
history and continues to be practiced in some societies today. Learning about polygamous
practices can provide insight into the cultural and historical context of different societies.
Polygamy raises important legal and ethical questions related to marriage, consent, and
individual rights. Studying the legal implications helps individuals understand the complexities
and challenges faced by legal systems in addressing polygamous relationships. Polygamous
relationships often involve complex power dynamics, especially concerning gender roles and
rights.

Research Methodology: I have engaged in qualitative research mostly, where I have taken
upon myself to analyze non-numerical data regarding the status quo of penal jurisprudence as
well as theoretical input from different eminent criminologists to determine the alternatives to
punishment. I have also done case studies, discourse analysis and content analysis for my
project.

Primary Sources: Legal articles, case notes.

Secondary Sources: include a multitude of websites, blogs and research papers written
by renowned professors and compeers.

Title of the Study: Alternatives to Punishment: A Way Forward in Criminal Jurisprudence

Scope of the study: My study will be specifically limited within the boundaries of our country.

Significance of the Study: Exploring these dynamics can lead to a better understanding of
social inequalities and gender issues within polygamous marriages. Polygamous families have
unique social structures and dynamics. Studying these dynamics can provide insights into
family relationships, parenting, and emotional well-being within polygamous households.
Polygamy can raise concerns related to human rights, particularly women's rights, in instances
where women may lack agency or face discrimination within such relationships. Examining
these issues can contribute to discussions on gender equality and women's empowerment.
Understanding the legal implications of polygamy is crucial for policymakers and legal experts.
It can inform discussions on legal reforms and regulations related to marriage, family law, and
individual rights.

Research Questions:

1) What is polygamy?
2) What are the different types of polygamy?
3) Is it legal?

Mode of Citation: The Researcher has chosen the 21st Edition of Bluebook Style of citations.

DEFINITION

The terms “poly,” which means “many,” and “gamos,” which means “marriage,” are the roots
of the word polygamy1. Thus, several marriages are associated with polygamy. Therefore, a
marriage in which a spouse of any sex is allowed to have multiple partners at the same time is
known as polygamy. In the past, polygamy—primarily, the state in which a man has multiple
wives—was extensively prevalent in India. The Hindu Marriage Act of 1955 made the custom
illegal. Polygamy is prohibited by the Special Marriage Act (SMA), 1954, although interfaith
marriages are permitted. Many Muslim women have taken use of the Act to protect themselves
from being coerced into engaging in polygamy2.

TYPES

Polygyny

1
Definition of polygamy available at: https://www.merriam-
webster.com/dictionary/polygamy#:~:text=1,the%20state%20of%20being%20polygamous
2
Mohd. Ahmad Khan v. Shah Bano Begum And Ors, 1985 (1) SCALE 767; 1985 (3) SCR 844; 1985 (2) SCC
556; AIR 1985 SC 945.
This is the type of marital structure when a man has multiple wives. This type of polygamy is
more typical or prevalent3. It was thought that emperors and monarchs of the Indus Valley
Civilization had multiple spouses4.

Polyandry

This kind of marriage involves a woman having multiple spouses5. That being said, this can be
a very rare event.

Bigamy

If a person is already married and their marriage is still enforceable, it is referred to as bigamy.
The individual who commits this crime is termed a bigamist6. Many nations, including India,
view it as a criminal offence7. Stated differently, it refers to the act of getting married to
someone else while maintaining a legally binding relationship with another individual.

Prevalence in India

polygamy was more common among Christians (2.1%), Muslims (1.9%), Hindus (1.3%), and
other religious groups (1.6%). the northeastern states with large populations of Native
Americans had the highest rate of polygynous marriages. High tribal population areas
dominated a list of 40 districts with the greatest rates of polygyny8.

RELIGIOUS LAWS RELATED TO POLYGAMY

Hindus

Hindu polygamy was to be outlawed and made a crime, according to the Hindu Marriage Act,
which went into force in 1955. The Act carefully requires monogamous relationships in

3
Definition of polygyny available at: https://www.merriam-webster.com/dictionary/polygyny
4
https://www.pujarambh.com/history-of-marriage-in-
india#:~:text=The%20remains%20indicated%20that%20inter,for%20a%20constant%20copper%20supply.
5
Definition of polyandry available at: https://www.merriam-webster.com/dictionary/polyandry
6
Definition of polyandry available at: https://www.merriam-webster.com/dictionary/bigamy
7
Section 17, Hindu Marriage Act.
8
National Family Health Survey-5 (2019–20)
accordance with Section 11 of the Act, which declares polygamous marriages to be void. In
addition to Sections 494 and 495 of the Indian Penal Code, 1860, it is punishable under Section
17 of the same Act. The Hindu Marriage Act covers Buddhists, Jains, and Sikhs as well since
these three religious groups are also regarded as Hindus and do not have their own laws.

Parsi

Bigamy was already prohibited by the Parsi Marriage and Divorce Act of 1936. Any Parsi who
has ever been married is subject to the punishments outlined in the Indian Penal Code for
remarrying, whether they are still alive or not, without first receiving a formal divorce from
their spouse or having their prior marriage deemed void or dissolved.

Muslims

Muslims in India are covered by the provisions of the “Muslim Personal Law Application Act
(Shariat) of 1937,” as interpreted by the All India Muslim Personal Law Board. Since
polygamy is accepted as a religious practise and is therefore not illegal under Muslim law,
Muslims typically preserve and engage in it. However, it is evident that this approach can be
reversed if it is found to infringe upon fundamental rights guaranteed by the constitution.
Personal laws take precedence over the Indian Penal Code in cases of disagreement because it
is a legal principle that a particular law supersedes the general law.

CASE LAWS

Jafar Abbas Masoolmohammad v State of Gujarat9

Facts: On 03.12.1997, the applicant and respondent tied the knot. With reference to the First
Information Report filed by respondent and registered with the Bhavnagar Mahila Police
Station, for the offence punishable under Sections 498A, 323, 504, 506(2), 494, 406, 420 read
with Section 114 of the Indian Penal Code, as well as Sections 3 and 7 of the Dowry Prohibition
Act, the applicant seeks to quash the proceedings of Criminal Case that are currently pending
against the applicant in the Court of the learned Chief Judicial Magistrate, Bhavnagar. The

9
Jafar Abbas Masoolmohammad v State of Gujarat, 2015 SCC ONLINE GUJ 55522016 GLH 2 142.
respondent booked the applicant on the grounds of cruelty against his spouse, voluntarily
causing grievous hurt and provoking his spouse to break public peace, criminal breach of trust,
cheating and marrying another person while he had a spouse living and demanding money from
her. The prosecution's position is that Respondent was separated from and compelled to move
back to her parents' house in Bhavnagar and was divorced by applicant without following the
due process of law. The applicant argues that since a man is allowed to live with more than one
wife concurrently under the Personal Law, he cannot be punished for the offence specified in
Section 494 of the Indian Penal Code.

Issue: The question is whether the applicant may use the court's inherent powers to stop the
proceedings in Criminal Case, which is currently pending in the learned Chief Judicial
Magistrate's Bhavnagar court?

Holding: The Court decided that because a man is allowed to live with more than one wife
concurrently under the Personal Law, the applicant cannot be tried for the offence of bigamy
punishable under Section 494 of the Indian Penal Code. Additionally, the Court solely
considered the issue from the perspective of the Bhavnagar Court's geographical authority
when trying the case.

Reasoning: The Court reasoned that the matter directly relates to the tenets of the Muslim
Personal Law, which allows a Muslim to have up to four different spouses. Additionally, it was
noted that whereas Hindu marriages are regarded as indissoluble and that the State has just
recently established legislation allowing for divorce among Hindus, Muslim law permits
divorce with ease. The Court further pointed out that while the Indian Constitution protects
religious freedom, it forbids religion from negatively affecting people' secular rights or the
ability of the State to control socioeconomic relations. As a result, the Court granted the
applicant's plea that he cannot be charged with the crime covered by Indian Penal Code Section
494.

Ahmedabad Women Action Group v. Supreme Court of India10

10 Ahmedabad Women Action Group v. Supreme Court of India, HWRIT PETITION (CIVIL) NO. 721 OF
1996.
Facts: A series of writ petitions were filed in 1994 by a women’s rights organization in
Supreme court demanding the court:

1. To declare Muslim Personal Law, which violates Articles 14 and 15 of the Constitution and
declares polygamy unconstitutional;

2. To declare as void Muslim Personal Law, which permits a Muslim man to unilaterally grant
his wife a talaq without her agreement or the need for legal recourse, in violation of Articles
13, 14, and 15 of the Constitution;

3. To state that, as defined by paragraph VIII(f) of Section 2 of the Dissolution of Muslim

Marriages Act, 1939, a Muslim husband's simple act of taking many wives constitutes cruelty;
The Muslim Women (Protection of Rights on Divorce) Act, 1986 is deemed invalid due to its
violation of Articles 14 and 15.

4. To further proclaim that the inheritance rules of Sunni and Shia, which discriminate against
females in their share compared to males of the same status, are null and void since they target
males exclusively based on their sex.

Issues: Does Muslim Personal Law violate Articles 13, 14, and 15 of the Constitution by
outlawing polygamy and allowing a Muslim man to unilaterally divorce his wife without her
consent?

Is it true that a Muslim husband and wife taking many wives constitutes cruelty as defined by
Section 2 clause VIII(f) of the Dissolution of Muslim Marriages Act, 1939?

Does the Muslim Women (Protection of Rights on Divorce) Act, 1986 violate Articles 14 and
15 of the Constitution and is thus invalid?

Are the inheritance rules of Sunni and Shia, which discriminate against women in their portion
relative to men of the same standing, invalid as discriminatory against women?

Decision: In certain areas, the Court is unable to enact laws. The legislature is exceedingly
cautious in defining the circumstances on which a marriage may be dissolved, and legislation
intended to dissolve the marriage represents a break from that fundamental concept.
Nonetheless, notwithstanding recent liberalisation of the grounds for divorce, they still
represent an exception to the overall rule that favours maintaining the marital bond even when
the circumstances have turned sour. It is believed that the only circumstances under which a
court has jurisdiction to issue a divorce are those that are expressly stated in a legislative
provision that specifies the grounds for divorce. It cannot be expanded by adding additional,
non-enumerated reasons.

Legislative policy determines whether the Indian Divorce Act should contain a provision for
divorce by mutual consent. Even if a uniform legislation is much desired, its enactment all at
once may be detrimental to the country's integrity and unity. Progressive reform should be
implemented gradually to establish order in a democracy based on the rule of law.

It is claimed that these clauses discriminate against Hindus. The legislature may have believed
that it would be pointless to criminalise Hindu bigamy at the request of the wife because Hindu
spouses might not even file a complaint. Consequently, it is maintained that the argument that
the punitive provisions of the contested Act discriminate against Hindus solely on the basis of
their religion lacks merit.

It has been contended that the Mahomedan people of the State of Bombay ought to have been
covered by the contested Act. The State Legislature erred in dividing its inhabitants based only
on religious beliefs and in not enforcing the Act's prohibitions against non-Hindus since the
Union of India is a secular state. It is now well established that the challenged Act does not
violate the equality before the law promised by Article 14 if the categorization it creates is
supported by reasonable and logical arguments. It's possible that the State legislature believed
the Hindu community was better ready for the proposed reform.

Therefore the claim that the contested Act violates Article 14 must be rejected.

On the subject of whether personal laws are under the purview of Part III of the Constitution,
the State or the Union Legislature may enact laws on matters falling under the jurisdiction of
personal law. However, the term "personal law" is not used in Article 13 because, the framers
of the Constitution intended to exclude personal laws from Part III of the document. Thus,
concurrence is held with the learned Chief Justice when she holds that personal laws have no
place at all under Article 13(1). It is also believed that the learned Judges overlooked the fact
that the parties' personal laws are not addressed in Part III of the Constitution.

While Article 44 aims to remove religion from social relationships, Article 25 ensures religious
freedom under personal law. We cannot include issues of a secular nature, such as marriage
and succession, under the protection of Articles 25, 26, and 27.

We are aware that the Constitution Bench is now considering a challenge to the Muslim
Women (Protection of Rights on Divorce) Act, 1986. Consequently, there is no need to expand
proceedings in that regard.

These writ petitions are thus rejected.

Narasu Appa Mali v State of Bombay11

Facts: The offender, Narasu Appa, was found guilty under Section 5 of the Hindu Bigamous
Marriage Act and given a strict six-month sentence, along with a fine of Rs. 100, by the
Mebsana Magistrate. On the same issue, the Mebsana Sessions Judge denied the appeal. The
Act forbids bigamous weddings amongst Hindus, which by definition includes Sikhs, Jains,
and Buddhists. Section 5 of the Act states that a non-minor who enters into a bigamous
marriage may face up to seven years in prison. Thus, this Act was contested on the grounds
that it violated Articles 14, 25, and 15 of the Constitution.

Issues: What is the constitutional legitimacy of personal laws and are they subject to the
Fundamental Rights provided by the Constitution (Article 13, 14, 15 and 25)?

Contentions of petitioner: It was contended that with reference to Article 25 of the

Constitution, Muslims and Hindu laws where women are allowed to marry once and the men
are allowed to practice polygamy are both discriminating women on the basis of sex which is
in violation of their right under Article 14 of the Constitution. The contention with reference
to Article 13 was that personal laws cannot be included within the purview of the said article

11
Narasu Appa Mali v State of Bombay, 1951 BOMLR 53 779.
as the source of each custom and religion is different and therefore cannot be guided by the
same law, i.e.

Article 13 which provides that certain laws shall be void if they are inconsistent with the
fundamental rights under Part III. The said law cannot be held void as it is in light of social
reform and hence cannot be within the purview of Article 13 of the Constitution. Since the
aforementioned law is in line with social reform and does not fall within Article 13 of the
Constitution, it cannot be declared invalid.

Contentions of respondent: It was argued that the fundamental religious practise and belief
of the society is that a Hindu marriage is a sacramental union of two persons for the production
of a male heir. Because the Act restricts someone's ability to be married again, it violates Article
25 of the Indian Constitution. Additionally, because Muslims are permitted to marry up to four
times (polygamy), the Act discriminates against Hindus based only on their faith, which is
against Articles 14 and 15, which forbid discrimination.

According to Article 13, it was said that personal laws should be included in its scope since
"all laws" is a word that encompasses "all laws in force," including personal laws. It was argued
that basic rights must be applied within their framework and that their applicability to statute
laws and personal laws is equal.

Judgement: The court decided that if a religion practise violates public morals, it should have
a lower priority than the general benefit of the society in which it is practised. In terms of
equality, the Court determined that, in this instance, discrimination against Hindus may be
justified as a social reform, meaning that the Act does not violate Articles 14 and 15. With
regard to Article 13, Justice Gajedragadkar Chagla stated that the eradication of untouchability
would also be null and illegal if personal laws fall under its jurisdiction. As a result, personal
laws are not considered laws for the purposes of Article 13(3) or "laws in force" for the
purposes of Article 372. As a result, the Act's legitimacy was maintained.

IMPACT OF POLYGAMY ON OUR SOCIETY

Significant debate has been held regarding the constitutionality of polygamy, especially in
relation to religions like Islam and Hinduism, and its impact on Indian society has been noted.
India is a secular nation where all religions are treated equally by the law and are not viewed
as superior to or inferior to one another. Every citizen of India is entitled to certain fundamental
rights under the Indian Constitution, and any law that infringes upon these rights is declared
unconstitutional. Any law that violates Part III of the Constitution is void, according to Article
13 of the Constitution.

The Supreme Court noted in R.C. Cooper v. Union of India12 (1970) that the constitutional
provision, which attempts to give the average citizen the broadest possible safeguards of his
fundamental rights, is incompatible with the theoretical approach that the component and
construct of state intervention ascertain the severity of the safeguard that an underprivileged
group may purport. Every person residing in India is guaranteed equal treatment and legal
protection under Article 14 of the Constitution. Article 15(1) of the Constitution states that the
state cannot discriminate against anyone on the basis of their gender, religion, ethnicity, or
place of birth.

CONCLUSION

The Chief Minister of Assam recently announced that a “Expert committee” would be
established to study the matter and that the state government would take “legislative action” to
outlaw the practise of polygamy. It is true that polygamy has long been a part of Indian society,
and even though it is currently forbidden, some places still practise it. Polygamy is not
exclusive to any particular religion or culture, and it has been accepted historically for a number
of reasons.

But, since society has changed, polygamy’s rationale is no longer sound, and it ought to be
outlawed.

12
R.C. Cooper v. Union of India, 1970 AIR 564, 1970 SCR (3) 530.
 BIBILIOGRAPHY

1. Doe, J. (2018), Polygamy Laws in India. Legal India available at:

http://www.legalindia.com/polygamy-laws-in-india

2. Smith, J. A. (2010), Polygamy in Indian Society, New Delhi.

3. Johnson, M. L. (2015), Polygamous Marriages: Legal and Ethical Implications, Indian

Journal of Family Law, 25 (3), 123-145 available at: https://doi.org/xxxxx