INTRODUCTION:
Polygamy is a practice of having more than one spouse at a time. When a male person has two or more wives at a time then he is called as “Polygyny”. And a female is married to more than one husband then she is called as “Polyandry”. The word “poly” means many and “andry” is used to mention male, “gyny” to define female. So, a polygyny is a person having women as wives and polyandry is a woman having many husbands.
The practice of polygamy has been prevailing in society for a long time. Even though it is prevailing from a long time, polygamy is not legalised in India. But when we look into the history of India, we see many emperor and kings following the practice of Polygamy. Such examples are also present in religious scripts and texts written in those days. In those ancient days in India, there was a time where polygamy was not prohibited. It was a well-known fact that the emperors or kings of those days are practicing polygamy. Even in many countries, polygamy was under practice.
But later polygamy was prohibited in India. After Section 494 and 495 of the Indian Penal Code, 1860 came into force the polygamy practice was prohibited. Later, in 1955 the Hindu Marriage Act was drafted. This act stated that Hindus are criminalised if the spouse is married twice even though the other is alive. This act also gave some exceptions to tribe and goa residents. Therefore, polygamy is made illegal in India apart from Muslims and Hindu residents in Goa from 1956.
TYPES OF POLYGAMY:
Polygamy is divided into three types such as polygyny, polyandry, and group marriage.
1. Polygyny
It is the matrimonial structure in which a male individual has numerous wives. Polygamy in this form is more common or widespread. This method was also imitated by others with significant influence and power. Marriage typically came with additional riches, territory, and titles, so it was a method order for them to consolidate and enforce their influence.
2. Polyandry
It is a type of marriage in which a female has several husbands. Nevertheless, this can be an extremely uncommon occurrence. Polyandry is not at all like polygyny with regards to legal standing. A man’s marriage to numerous women is incredibly common, but a female’s marriage to multiple men is frowned upon.
3. Bigamy
When one is already married additionally, the marriage continues to be valid, then married with someone else is known as bigamy plus the person committing this will be called bigamist. The difference between bigamy and polygamy is that in bigamy, the two or more spouses are unaware of each other whereas; in cases of polygamy, two or more spouses are aware of each other’s union to the spouse.
IS POLYGAMY LEGAL IN INDIA?
One can understand the position of polygamy in India by reading the above introduction part. In ancient days, the practice of polygamy has been a part of society without any legal bindings on it. The legal system of those days was not such harsh or strict towards polygamy. Thus, people of those ancient days used practice polygamy without any fear of punishment.
However, in our country the state of polygamy is not clearly defined. Most of the consider polygamy as illegal whereas some other people follow the practice of polygamy. So, the practice of Polygamy in India in legal means varies from religion to religion. There are punishments of imprisonment of seven or more years for practicing polygamy in India. However, there are some exceptions if the first spouse is dead or if the first is having no objection.
We cannot consider by taking exceptions into consideration and say that “polygamy is legal in India”. No man can have more than one wife in India. But it is different in the case of Muslims under their own personal laws. As of Muslims personal law they can have four wives. And it is legal to be a bigamy in Goa. Whereas the Hindus are punished if there are having two or more wives.
As of Indian law, this practice was abolished by the way of the Hindu Marriage Act (1955). Section 5, 11, and 17 of the Hindu Marriage Act, 1955 prohibits Bigamy and declares bigamous marriage as void.
It is banned in Christians by the Christian Marriage Act, 1872, and amongst Parsis by the Parsi Marriage and Divorce Act, 1936. So, Polygamy is abolished in India except for Muslims and Hindus in Goa and Western Coast but one cannot think that polygamy is legal in goa. This concept should be clearly understood by each person. Therefore, a person cannot have more than one spouse but a Muslim can have nearly four wives.
POLYGAMY IN HINDUISM:
In India both Indian law and their person law i.e. their religious law are considered. So, each person is supposed to follow the laws as per the Indian law and their religious law. In ancient days the Indian law was not such rigid. So, a Hindu of ancient days used to practice polygamy. Husband used to marry two wives in those days.
But when the Hindus Marriage Act came into force such practices came to end. Today polygamy became illegal to Hindus all over the country. So, for a person who is Hindu or practicing Hinduism is prohibited from practicing polygamy and it is illegal from them. The Hindu Marriage Act is a codified law which prohibits a Hindu from practicing polygamy.
POLYGAMY IN MUSLIM LAW:
Under Muslim Personal Law Application Act (Shariat) of 1937, a male can marry four wives and keep them with him at a time. Whereas, a female is not supposed to marry more than one person. When a male marries four females, such marriage is valid and legal in Muslim personal law. A female cannot have more than one spouse. This shows the legal status of polygamy under Muslim marriage. Many Muslim women curb the practice of polygamy by taking the help of Special Marriage Act. Under this special act, even a Muslim can marry only one person. He cannot have more than one spouse.
When there is a disagreement between the Indian Penal Code and personal laws, the personal laws are implemented since it is a legal principle that a specific law supersedes the general law.
CASES ON POLYGAMY:
1. Parayan Kandiyal vs. K. Devi & Others (1996)
After considering many resources on Hindu law, the Honorable Supreme Court concluded in this instance that monogamous relationships were the conventional and ideology of Hindu society, which scorned and condemned a moment marriage. Polygamy was not allowed to become a right part of Hindu culture due to the influence of religion. The Court also noted that some persons benefit from perhaps the tiniest of legal privileges and that, at this point, the government should part of to discipline behavior that is such.
2. State of Bombay vs. Narasu Appa Mali (1951)
The Bombay High Court ruled that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 was not discriminative in this case. The Supreme Court ruled that a continuing state legislature can enact measures for public welfare and reforms just because it violates the Hindu religion or custom. The Court ruled it was as much as the Legislature to decide whether or not Mohammedans must certainly be excluded from the purview of the challenged Act. It is not necessary to implement a reform in a single stage.
3. Veena Rani vs. Jagdish Mitter Malhan (1989)
For some classes of people, and under certain circumstances, polygamy was permissible. With time, changes in society were abrogated. The concept of monogamy was highlighted, and polygamy was frowned at. The status of the institution of marriage.
4. Javed & Others vs. State of Haryana & Others (2003)
The issue, in this case, was whether a disputed provision of the Haryana Act prohibiting anyone with more than two kids from competing or occupying a government position violated Article 25. The Honorable Supreme Court decided that under Article 25 freedom is subjected to social harmony, dignity, and wellness. Muslim law allows for the marriage of four women, but it is not compulsory. This will not be violating religious practice to not marry four women. For the sake of good order and discipline, decency, or security, such conduct of having several wives can be controlled or forbidden by laws.
CONCLUSION:
Polygamy is a practice of having more than one spouse at a time. In India, it is not legal to follow the polygamy practice, whereas it is legal for a Muslim male to have four wives at a time which is not vice versa and also the bigamy is legal for a Hindu who is a resident of Goa. Therefore, we see the legalisation of polygamy depends on the basis of gender as per their own personal religious laws.
The act of polygamy is not at all a religious duty or religious conduct, as the court system have often acknowledged and in the notion of social transformation, the legislature has the authority to outlaw it. The practice of polygamy is not a desirable option and it has both pros and cons in society. Governments have failed to consider the situation of women, particularly those who embrace Islam and the government has also hesitated to prohibit practices of polygamy for Muslim men.
Witten By,
Kalpana Nailwal,
Intern, Chanchlani Law World
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