POLYGAMY IN INDIA: WITH SPECIAL REFERENCE TO THE BULKIEST CONSTITUTION OF THE WORLD

8/2/2019 POLYGAMY IN INDIA: WITH SPECIAL REFERENCE TO THE BULKIEST CONSTITUTION OF THE WORLD

1/12Electronic copy available at: http://ssrn.com/abstract=2018822

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Polygamy as the name suggests means a system of marriage whereby one person has

more than one spouse. It can be of two types. One is polygyny where a man marries more

than one woman, and the other is polyandry, where a woman marries more than one man. In

Islam, limited polygyny is permitted and polyandry is completely prohibited.

The research work1

analyzes the issue of Polygamy with reference to the bulkiest

constitution in the world. Most of the debaters argue that the Indian polygamy law only

prohibits polygamy among one religious group.2

Thus, current Indian law poses a

constitutional paradox because permitting polygamy among Muslim men but prohibiting it

among Hindus under the freedom of religion provisions violates the equal protection

provisions of the Indian Constitution. The author takes a departure from this standpoint and

argues that there are several reasons why Polygamy was not made punishable under the

muslim personal law. The reasons are umpteen, i.e., historical reasons, political reasons, etc.

This paper examines the relevant constitutional provisions that are said to pose a

constitutional paradox often by permitting polygamy among Muslim men in India. And

thereby highlight those provisions as to how they do not violate the rights of the Hindus.

Specifically, this paper contends that we cannot say that the Hindus are being discriminated

and there are several reasons behind the same.

This paper then argues that legislation in India, prohibiting polygamy among

Hindus yet allowing polygamy among Muslims, is not unconstitutional and it doesnt

violate the provisions of Articles 13, 14 and 15 of the Indian Constitution.

* Writer is a IInd Year Student of B.A.(Hons.) LL.B.(Hons.) at National University of Study and Research in

Law, Ranchi, India. Queries can be directed [email protected] paper is submitted to NUSRL, Ranchi, India as a Project Report.

2

SeeHindu Marriage Act of 1955 , S. 17 (Any marriage between two Hindus solemnized after thecommencement of this Act is void if at the date of such marriage either party had a husband or wife living; and

the provisions of the Indian Penal Code . . . shall apply accordingly.)
mailto:[email protected]:[email protected]:[email protected]:[email protected]


2/12Electronic copy available at: http://ssrn.com/abstract=2018822

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RESEARCH HYPOTHESIS- There is a constitutional paradox when on one hand the

Muslims are allowed to practice polygamy and on the other hand the Hindus are penalised

for the same.

At the end of the report it will be clear as to whether the hypothesis with which the

research has started was actually correct or not.

RESEARCH METHODOLOGY- The methodology adopted for the purpose of this

research is a doctrinal method involving the analysis of the Statutes, Case laws, existing

Information accessed from various sources like Books, Websites, articles, journals, research

papers, etc. and analysis of the data and then its interpretation.


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Notwithstanding the Hindu ideal of monogamous marriage as a Samskara, a one-to-

one union for life, traditional Hindu Law clearly permitted polygamy to men in certain

situations and on certain grounds.3

In this Hindu law is similar to Islamic law in approach. As

well as to Chinese laws and African laws, all of which tolerate polygamy to some extent.

Meyer wrote that: Polygamy in India is as old as hills and does not form the slightest offence

in Brahmanic system; although since Vedic times Monogamy is seen as the ideal.4

In ancient Hindu Law, polygamy was the rule rather than the exception, the norm

rather than the ideal and it has an unquestioned place...there was no limit to the number of

wives a man might have; he could have as many as he might afford to procure by different

modes of marriage.5

Altekar6

argues that polygamy reflects a certain social and economic standing in

society:

There are some observations in the late Vedic literature to show that Polygamy was

well established in certain section of the society. In later times also society thought it to be

nothing and usual that men should have several wives;...Polygamy, ofcourse, was a luxury

beyond the means of the poor.

Whatever the real reasons for Hindu polygamy, there is no doubt that it remained

permitted throughout as part of the traditional Hindu system of family law, but it was not

prominent. Polygamy itself was hardly a big issue within the traditional system.

3Menski, Werner F., Hindu Law Beyond Tradition and Modernity, Oxford University Press, Fourth Edn.,

2011, p.3774 Quoted in Menski, Werner F., Hindu Law Beyond Tradition and Modernity, Oxford University Press, Fourth

Edn., 2011, p.378.5Id.

6Id. at p.379


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Not Allowed In Hindus and Allowed In Muslims...

Polygamy among Hindus-

According to the scriptures, a Hindu marriage is indissolvable in life. Nevertheless, polygamy

was rampantly practised in ancient Hindu society. An address by Bhishma to King

Yudhishthira in theMahabharata, succinctly endorses this fact: ABrahmana can take three

wives. AKshatriya can take two wives. As regards the Vaishya, he should take a wife from

only his own order. The children born of these wives should be regarded as equal .

(Anusasana Parva, Section XLIV). Now, polygamy has been gutted out by the modern

law, monogamy is the only option for Hindus. Bigamy for all Hindus is primarily outlawed

Polygamy among Muslims- It is better to refer the Holy Quran- Arabic text and English

translation by the late Maulawi Sher Ali. In Chapter entitled Al-Nisa, this is what has been

stated:7

And if you fear that you will not be fair in dealing with the orphans, then marry as many of

women as may be agreeable to you, two or three, or four ; and if you fear you will not deal

justly, then marry only one or what your right hand possesses. That is the nearest way for you

to avoid injustice.

The above quoted extract merely provides for showing compassion to female orphans

who have been neglected by society and who are forlorn, forsaken and destitute in life. All

that it says is that if a Muslim comes across such a female orphan, he may, if it otherwise is

agreeable to him, contract second marriage, a third marriage and a fourth marriage provided

he is able to deal with second and subsequent wives justly. Therein, there is no religious

injunction directing Muslims to marry more than one wife.8

7

Verma, B.R., Commentaries on Mohammedan Law, Law Publishers Pvt. Ltd.,Twelth Edn.,2011 p. 78; Seealso Fyzee, Asaf A.A., Outlines of Muhammadan Law, Oxford University Press, Fifth Edn., 2011. 8Id. At p. 79


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To marry a second wife depends on the sweet-will of the person and since it is not a

religious injunction, one cannot come to the conclusion that it is a religious practice.

Marriage brings about a relation based on and arising from a permanent contract for

intercourse and procreating of children, between a man and a woman, who are referred to as

parties to the marriage and who after being married, become husband and wife.9

Unlike Hindu Marriage which is a sacrament, Muslim marriage is nothing but a civil contract.

9Tyabjis, Muslim Law, 4th Edn. p. 44 at para 21.


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Despite the polemical character of modernist agenda, the introduction of Hindu

monogamy by modernist legislation was a straightforward process. The Hindu Marriage Act

came into force on 18th

May, 1955 and simply abolished and criminalised Hindu Polygamy,

introducing monogamy as the only rule for Hindu law.10

This looks like a classic case of no-

nonsense legislative intervention. The act leaves no doubt that a Hindu spouse cannot enter a

second legally valid marriage in the lifetime of an existing spouse.

The Hindu Marriage Act, 1955 strictly enforces monogamy. Under Sec. 11 of the Act

bigamous marriages are void. Section 17 of the Act read with Ss. 494 and 495 of IPC makes

such a marriage an offence. Prior to Hindu Marriage Act, there was some piece meal

provincial legislations like in Madras(1949) and Bombay(1948) prohibiting Bigamy.11

Law Commission in its 227 report12 says

Since time immemorial it was believed rightly or wrongly that Hindu religious law

allowed an unrestricted polygamy and imposed no specific conditions on the polygamist-

husband. The Muslim rulers of India had left the Hindu law on polygamy whatever it was

untouched and did not impose on any non-Muslim the rules of Islamic law tolerating limited

polygamy in a well-defined discipline of equal justice to co-wives. The British rulers, who

did reform many other aspects of Hindu law, also did not abolish the rules on polygamy

under the traditional Hindu law and custom. Only the Brahmosamajis had managed to legally

adopt monogamy under a special law enacted for them in the erstwhile Bengal province in

1872. After the advent of independence anti-bigamy laws were enacted for the Hindus by

provincial legislatures in Bombay, Madras, Saurashtra and Central Provinces. Finally, in

1955 Parliament enacted the Hindu Marriage Act putting a blanket ban on bigamy for the

Hindus. Buddhists, Jains and Sikhs, declaring bigamous marriages on their part in future to

be void and penal (See Sections 5, 11 & 17).

10Menski, Werner F., Hindu Law Beyond Tradition and Modernity, Oxford University Press, Fourth Edn.,

2011, p.38911Subba Rao, G.V., Family Law in India,S. Gogia & Co. , Tenth Edn, 2011, p. 178

12http://lawcommissionofindia.nic.in/reports/report227.pdf(as accessed on 1.3.12)
http://lawcommissionofindia.nic.in/reports/report227.pdfhttp://lawcommissionofindia.nic.in/reports/report227.pdfhttp://lawcommissionofindia.nic.in/reports/report227.pdfhttp://lawcommissionofindia.nic.in/reports/report227.pdf


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Article 13 specifically enunciates that the laws inconsistent with the part III of the

constitution shall be void. The Supreme Court in R.C. Cooper v. Union of India13, was of the

view that the theory that the object and form of State action determine the extent of protection

which the aggrieved party may claim, was not consistent with the constitutional scheme

which aims at affording the individual the fullest rights protection of his basic rights. The

state action must, therefore, be adjudged in the light of its operation upon the rights of the

individual and groups of individuals in all its dimensions. InBennet Coleman Co. v. Union of

India14, Ray, C.J., suggested that the true test was the direct effect of the impugned state

action on a particular on a particular fundamental right.

Article 14declares, The State shall not deny to any person equality before the

law or the equal protection of the laws within the territory of India.Certainly, the new

approach has enormously widened the scope of the application of article 14 becuase, as has

been held by the court in A.L. Kalra v Project and Equipment Corpn.15, now for the

application of Article 14 one need not allege any discrimination vis-a-vis others.

16

The Supreme Court inNational Council for Teacher Education Versus Shri Shyam

Shiksha Prashikshan Sansthan17

has re-iterated the Concept of 'Right to Equality' as

enshrined in our Constitution. The apex court stated that the Constitution doesn't allow class

legislation but permits reasonable classification, based upon an intelligible differentia.The

principle underlying the guarantee of Article 14 is not that the same rules of law should be

applicable to all persons within the Indian territory or that the same remedies should be made

available to them irrespective of differences of circumstances. It only means that all persons

similarly circumstanced shall be treated alike both in privileges conferred and liabilities

imposed. Equal laws would have to be applied to all in the same situation, and there should

be no discrimination between one person and another if as regards the subject-matter of the

legislation their position is substantially the same.

13AIR 1970 SC 564.

14 AIR 1973 SC 106: See alsoManeka Gandhi v. Union of India AIR 1978 SC 597.15 (1984) 3 SCC 316.16

See Shukla, V.N., Constitution of India, Eastern Book Company, Eleventh Edn., 2008, p. 80. 17Civil Appeal No.. 1125-1128 of 2011: Available athttp://indiankanoon.org/doc/98280/(as accessed on

1.3.12)
http://indiankanoon.org/doc/98280/http://indiankanoon.org/doc/98280/http://indiankanoon.org/doc/98280/http://indiankanoon.org/doc/98280/


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Article 15(1) prohibits the State from discriminating against any citizen based only

[on] religion, race, caste, sex, or place of birth. Researchers and scholars argue that

allowing the Muslims to practice Polygamy and prosecuting the Hindus for the same

classifies discrimination and hence, the legislation should be amended.18

Laws for the social

reform social reform of Hindus only, e.g., prohibition of bigamy, have been held to be valid,

since the classification was not based on religion only but also on the social advancement of

the Hindus.19

18 Supra F.N. 16.19

Basu, Durga Das, Shorter Constitution of India, Fourteenth Edn.2009, Vol.1, p. 188; quoted in State v.Narsu, AIR 1952 Bom 84; Srinivasa v. Saraswati, AIR 1952 Mad 193; Channamma v. Dayna, AIR 1953 Mys

136.


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The question now arises whether prohibiting polygamy among Hindus, yet allowing

polygamy among Muslims, is unconstitutional and violative of Articles 13, 14 and 15 of the

Indian Constitution? The researcher presents several reasons in support of his answer that it s

not discrimination and hence, it not violative of various articles of the Indian Constitution.

1. Political Reasons Muslims are often considered as vote banks for the politicalheroes. This could be one of the reasons why their personal law was left untouched.

Moreover, in the case of Muslim personal law in the 1950s, the Nehru administration

did nothing in the way of codification or reform. This inaction was taken by most to

be due to governments fear of instigating the minority Muslim communitys protest.

The government relied on the rhetoric of non-interference to explain their failure to

reform or codify Muslim personal law, arguing that they had not taken any action due

to a lack of demand from the Muslim community. As a result, even today the charge

is levelled that the Nehru government lacked the political will to change Muslim

personal law, succumbing to political expediency and backing away from such a

proposition without even testing the waters.20

Public opinion among both the Hindu

and Muslim communities was selectively interpreted rather than systematicallygauged, and interpreted in such a way as to accord with the politics that the

government sought to pursue for political reasons. Muslim opinion was presumed to

be unsupportive of any reform or codification without any attempt to verify this

presumption.

2. Historical ReasonsAnother reason why allowing Polygamy under the Muslim lawshould not be considered as biasness because of a historical proposition. The Prophet

Mohd. (571 AD-632 AD) the last messenger according to Quaran laid down the

principle for his followers that a person may keep as many as four wives only and that

too only in exceptional circumstances prevailing in those days. The Prophet had

allowed the followers of Islam to keep four wives at one time because of the

contemporary reasons. He permitted the men that every man would keep as many as

four wives along with their children. So that no widow or child would die out hunger

20Williams, Rina Verma, Post Colonial Politics and Personal Laws,Oxford University Press, 2006 p. 98


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starvation or illness. Through the system every widow and her children were taken

care of.

(i) The permission that flowed from the prophet was not permanent for all thetimes to come. But, it was only a temporary provision just to manage the

cotemporary problems of war. Along with the provision of keeping for wives

the prophet imposed mandatory conditions upon the persons who might keep

more that 1 wife that if a person keeps more than one wife he must have an equal

eye upon all the wives. That is the principle of equality which was to be observed

and not to discriminate on any grounds whatsoever.

(ii) It was not a general Rule of law. But, only an exception to streamline the societyto deal with the problem of widows and orphans of the people who died in war.

Though, now the Muslim leaders in India have misinterpreted the dictates of the

prophet started receiving undue advantage.

3. Judicial pronouncements and the interpretation of the Constitution in the lightof the Issue in handThe first was State of Bombay v. Narasu Appa Mali21, where

the first constitutional challenge to the provisions of the Hindu Marriage Act, 1955

came from a Hindu male challenging the provision of monogamy. A petition was filed

in the Bombay High Court challenging the monogamy imposed by the Bombay Hindu

Marriage act, 1946. A Hindu Husband pleaded that the stipulation of monogamy

violates his personal freedom and hinders the practice of religion. He also argued that

this dectate is discriminatory against Hindu men, since Muslim men are permitted to

contract polygamous marriages.Rejecting these contentions, the high court held that

personal laws are not laws in force as per the stipulation of Article 13 of the

Constitution and hence they are not void even when they come into conflict with the

provision of equality under the Constitution, because Fundamental Rights cannot

be applied to personal laws.

The subsequent case ofSrinivasa Aiyar v. Sawaswati Ammal22, also advanced

similar arguments. It was argued that prohibiting polygamy denied Hindu men

21AIR 1952 Bom 84 : See also Agnes, Flavia , Family Law : Family laws and Constitutional Claims, Vol.1,

Oxford University Press, New Delhi, 2011, p.28.22AIR 1952 Mad 193; See also Agnes, Flavia , Family Law : Family laws and Constitutional Claims, Vol.1,

Oxford University Press, New Delhi, 2011 p. 29.


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equality before the law and equal protection of law, and further, that it discriminated

against Hindu men on the grounds of religion as it restricted the right to freely

profess, practice, and propagate religion. The Madras High Court held that the Act

does not offend Article 15 which stipulates non-discrimination on the basis of

Sex.


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CCOONNCCLLUUSSIIOONN AANNDDVVIIEEWWPPOOIINNTT

In my view, the paradox that several researchers say is posed by allowing polygamy

among Muslims and not allowing it in Hindus is certainly not true. It is believed that there is

a violation of fundamental rights of the Hindus who are punished when violating the

provisions of the Hindu Marriage Act. But, in fact this is not true. The Courts have

categorically stated that there is no violation of Part III of the Constitution when the

legislation has enacted law enforcing monogamy among Hindus. Also, fundamental rights are

there for the protection of people and not for the people using it as a weapon.

Moreover, the traditional approach towards polygamy cannot be applied in the

contemporary world and people cannot challenge it on the ground that it is violating their

fundamental rights because:

1. This scenario was traditionally used to justify polygamy on the ground that a Hindushould ideally not die without a son, lest the chain of ancestors in the joint family

would be broken,

2. Polygamy was traditionally justified as bringing a man, prestige and status, but thisdoes not make it acceptable in modern conditions.

Henceforth, just because polygamy has been practiced since time immemorial among the

Muslims and the same has not been amended due to reasons aforementioned, the Hindus

cannot challenge the laws that enforce Monogamy among the Hindus. As it is rightly said by

Martin Luther King thatLaws cannot change the heart of the people but it can restrain the

heartless people and therefore the laws enforcing monogamy have been made to streamline

the society and not to abridge their fundamental rights. Due considerations have been given

to both the communities while framing the laws relating to the marital status.

Documents

POLYGAMY IN INDIA: WITH SPECIAL REFERENCE TO THE BULKIEST CONSTITUTION OF THE WORLD