BY TRISHLA JAIN,
STUDENT OF AMITY UNIVERSITY, KOLKATA.
BBA LL.B.(H.), 2nd YEAR.
Polygamous marriages have become a feature that stands out in most communities throughout the world. It is deep-seated in the early lifestyles of our ancestors. Polygamous marriages have been the subject of a number of publications, journal articles, heated arguments, discussion papers, a focus for women's activist groups, web pages, and, shockingly, cable television shows over the years. As a result, many distinct regulations relating to polygamy have been implemented in various cultures.
Polygamy is the practise of having multiple spouses at the same time. This can consist of two types, Polygyny and Polyandry. Polygyny is when a man marries multiple women, while Polyandry is when a woman marries many men. In India, laws that are interrelated to polygamy are intensely guided by religion considering it to be a topic of culture. Islam is the only religion where limited polygyny is allowed and there can be four wives while polyandry is totally barred, while in all the other religions it is illegal.
TYPES OF POLYGAMY:
Polygyny, as stated above, is when a man has many wives. This has been a typical tradition in India from ancient times, when kings had several wives and other individuals on high pedestals. The reason for this is that it became a means for them to gain strength and amass wealth, territory, and titles. It served as a status symbol as well. Despite the fact that the general percentage of men who have more than one marriage is minimal, up to a third of the world's population lives in a community that permits it.
Thinking about the characteristics of patriarchal societies around the globe, it is reasonable to conclude that polygamous marriages may result in unequal and discriminative treatment of wives by their husbands. In view of this, there is a dire need to address such treatment of women in polygamous marriages, irrespective of their social, cultural, religious and economic status too.
A woman marrying more than one husband is known as polyandry. This is not a very common concept and leads to asymmetry and might be the explanation of gender inequality. Similarly, society has never held this practice in high regard and has scorned it.
Group marriages are when men and women in a group believe they will marry each other in the group. It's a combination of polygamy and polyandry. Lewis Henry Morgan also suggested that there should exist 10 basic relationships in a group marriage: father, mother, sister, brother, daughter, son, wife, co-wife, husband, and co-husband.
ANCIENT HISTORY OF POLYGAMY:
Polygamy was popular in ancient India in some form or another, with the rich blue-bloods and emperors being the most common participants. In the Vedic time frame, the relations of marriage were generally governed by Upanishads, Sutras or the Smritis and the Hindu husband was permitted to marry again even on the presence of a wife, however, there should exist a legitimate reason for such conduct. In spite of the fact that Vedic Indians mostly practice monogamy, Manu legitimizes that why remarriage can happen giving reasons such as barrenness, ill-temper, ill-health or wrong behaviour by the wife. It is given in the Subodhini and Mitakshara. It is also stated in ancient sources like as the Arthashastra, Smritis, and Epics that a man might have wives from the same caste or below him. Polygamy is shown in Hindu culture in epics such as the Ramayana, where the ruler had three wives. According to the Mahabharata, a Brahmin can have three wives, a Kshatriya can have two wives, and a Vaishya can have a woman from his own community or order. The contract marriage, known as Nikah in Islam, is regarded to be the purest relationship and the basis of society. The Holy Quran states in Chapter IV, Verse 3 that if a Muslim man comes across an orphan woman who has been mistreated by society, he is free to marry her if he can treat all of his wives equally.
A man can have up to four wives, and Islam argues that polygamy is founded on kindness and compassion, and that it is limited polygamy.
There are a few situations where wives have undergone hardships in polygamous marriages. In a study it was discovered that, of the nine ladies in polygamous marriages, all had endured mental abuse; five of them experienced physical, financial and sexual abuse. Even the children suffers when their fathers take other wives and the fact that more kids in the family may lead to less time and attention from the guardians, particularly their fathers. The theory of child suffering in such relationships is commenced on the idea that normally large polygamous families are associated with low resources per head, which unfavorably sway on child’s wellbeing.
Husband’s favoritism for one wife also complicates the relations in the family. Although, it would also be a mistake to believe that all polygamous marriages are abusive. The feelings that polygamy produces injustice among co-wives because the husband cannot care for and consider the needs of more than one wife, and that polygamy offers males "endless power and influence" were widely explained.
RECENT LAWS & STATUTES ON POLYGAMY:
Hindu Polygamy was criminalized under the Hindu Marriage Act, 1955 which came into force on 18th May 1955 and Hindus can only stick to Monogamy. The act states that a Hindu can opt for a second marriage only if the first one has been dissolved either by divorce or death of either of the spouse. Section 11 of Hindu Marriage Act imposes Monogamy, where it is given that bigamous marriages are void from the beginning and the same is punishable under Section 17 of this Act. Even the Indian Penal Code under Section 494 and Section 495 states it to be an offence.
Under IPC to constitute the offence of polygamous marriage the accused should be married and such marriage should be valid, at that point the individual should be married to another person and that marriage must be solemnized at the time the first spouse is alive. In order for the aforesaid provisions to not apply, the first marriage must be declared void by the court or the spouse must have been missing for seven years at the time of the second marriage and has not been heard or thought to be alive, according to the IPC.
Buddhists, Jains and Sikhs are also binding to the provisions of the Hindu Marriage Act and according to Section 5, 11 and 17 bigamous marriages are void and penal.
The All-India Personal Law Board interprets Section 2 of the "Muslim Personal Application Act (Shariat), 1937" as obligatory on all Muslims in India. Muslim Law considers Polygamy as a religious practice and hence, it is not prohibited. If any conflict arises between IPC and the personal laws then the specific law would prevail over the general law. Although, if this practice somehow violates any of our fundamental rights, then they can be struck down and this is the Constitutional aspect of these laws.
POLYGAMOUS MARRIAGE: JUDICIAL DECISIONS:
The idea of the court to take some severe actions over the superseding personal laws is a result of its observation that any liberty in the laws has prompted the citizens to misuse it and it is the duty of the law-keepers to build up a well-organized behaviour. For various judgements that the court accepts to be correct, judicial decisions against the act of polygamy have been made.
Polygamous marriages are a societal problem in Indian society, and the courts have recognised this via numerous judgments. The Bombay High Court rejected the claim that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 was discriminatory in the matter of State of Bombay v. Narasu Appa Mali. The court believed that overriding Hindu religious practises for the sake of social transformation was permissible. It also addressed the fact that such reforms can be implemented by the State Legislature. The Andhra Pradesh High Court cited the same decision in the G. Sambireddy v. G. Jayamma case, holding that Section 11 and 17 of the Hindu Marriage Act, 1955 did not infringe Article 15(1).
OTHER LEGISLATIONS IN CONFLICT:
There are instances where legislatures that have been implemented were conflicted. For example, in the landmark case of Sarla Mudgal & Others v. Union of India, the Supreme Court held that if a Hindu Marriage has been solemnized as per Hindu Marriage Act, then it can only be dissolved on the grounds mentioned in that Act. The previous marriage would not be dissolved even after converting into Islam and then remarrying. Also, until the previous marriage has been dissolved, any Hindu man cannot marry even after converting into Islam.
Mohd. Ahmad Khan vs. Shah Bano Begum, also known as, The Shah Bano Case, was a landmark case in history as well as another well-known and significant case in Muslim personal law. The Supreme Court ruled in this case that the two statutes at issue, Section 125 of the Code of Criminal Procedure and Muslim Personal Law, were not in conflict because they were applied to different subjects, and that when a conflict between statutory and personal law arises, the statutory law takes precedence.
NOT RELIGIOUSLY OBLIGATORY:
Several court orders on the Muslim law allowing four wives stated that the practise is permitted rather than mandatory. In Abdur Rahim Undre v. Padmavati, the Bombay High Court supported this decision. According to Abdur Rahim Undre, under Mohummadan law, the maximum number of spouses is four, although this does not imply that they must have four wives.
Another case, Itwari v. Smt. Asghari & Others, defines the Indian judiciary's and law's position on Muslim personal law and polygamy. In this case, when the husband brought in his second wife, his first wife refused to live with him. It was held by the Allahabad High Court that in India the only reason law accepts polygamy as a practice is because it exists in the Muslim personal laws nonetheless it does not encourage the practice. There is no fundamental right that a husband has, that allows him to force his wife to live with the other wife. It also stated that the Muslim have the right of the second marriage and would not be accused of bigamy but they do not have the right to demand their wives to have the same spouse.
It is quite obvious that Polygamy has existed in ancient Indian society for a long time. It might as a practice look innocuous however that is not the case for the reason that in the present society it deepens the prevailing gender issues. These acts are easily overlooked in an existing patriarchal culture dominated by men. People are ignoring the fact that this leads to a very toxic situation for the succeeding generations as there is discontentment and they are also open to issues like domestic violence. But currently, it has been observed that polygamy in upper strata has become more of a status symbol thus the courts have ensured that they take decisions that push the fact that polygamy in Muslims is definitely not a religious command and can be banned for social change.
Henceforth, simply because polygamy has been a long-standing tradition among Muslims since time immemorial, Hindu religion practitioners cannot challenge the laws that criminalise monogamy among Hindus. As Martin Luther King, a wise man, put it, "It may be true that the law cannot change the heart, but it can restrain the heartless." As a result, laws requiring monogamy are enacted to strengthen society rather than to curtail people's fundamental rights.
State of Bombay v Narasu Appa Mali (1952) AIR 1952 BOM 84
G. Sambireddy v G. Jayamma (1972) AIR 1972 A.P.
Sarla Mudgal v Union of India, 1995 AIR 1531
Mohd. Ahmed Khan v Shah Bano Begum & Others, (1985) 2 SCC 556
Abdur Rahim Undre v Padma Abdur Rahim Undre, (1982) AIR 1982 Bom 341(India)
Itwari v Smt Asghari & Others, (1960) AIR 1960 All 684 (India)
Justin Taylor, You Can’t Change the Heart Through Legislation (December 4, 2014), https://www.thegospelcoalition.org/blogs/justin-taylor/martin-luther-kings-response-to-you-cant-change-the-heart-through-legislation/