Introduction

Polygamy might not be a common phenomenon today as opposed to monogamy but it still continues to be a part of many debates and discussions. No matter how much we want to say goodbye to this practice, we have not been able to do so in a full capacity. According to western beliefs, polygamy is rooted in primitiveness whereas monogamy is a sign of having attained civilization. Despite this belief, polygamy was famously practised in countries including the USA, China, Africa, and India among others. And it still is in many countries.

This article, however, focuses on polygamy as a concept in Indian society. So let’s find out what is polygamy, its history in India and what is the current scenario in India regarding this practice.

What is Polygamy?

Humans have always been known for being polygamous. It was only about 10,000 years ago that monogamy[i] got the lead over polygamy. It was and is still permitted as a practice by many societies. As of today, some countries, mainly Islamic, permit polygamy, some have made it illegal and then there are countries like India where only Muslims are allowed to practice polygamy. Though, it cannot be denied that polygamy was a part of our society irrespective of region or religion. Through various researches and studies, it has been found that polygamy is worldwide, cross-cultural in its scope, it is found on all continents and among adherents of all world religions[ii].

The term polygamy has been made up of two words “polys” meaning many and “gamos” meaning marriage. So, polygamy means a marriage of many. It originates from the Greek word “polugamos” which translates to often marrying.

Thus, polygamy can be defined as a system of marriage where a person is married to more than one spouse at the same time.

Polygamy is referenced frequently in the Bible, Quran, and Torah[iii]. Even the epics of Ramayana and Mahabharata mention instances of this practice along with some other Hindu scriptures. From debates and discussions, polygamy has also found a place in novels, memoirs, TV shows and movies.

Types of Polygamy

In principle, there are three forms of polygamy[iv], namely, polygyny, polyandry, and group marriage.

• Polygyny

It is that system of marriage wherein a man has multiple wives. It is the most common form of polygamy. In ancient India, kings and rulers were known to have multiple wives. Other people in high positions of power too followed this practice. It was a means for them to establish and exert their power as marriage often came with more wealth, land and titles. It was also seen as a status symbol as only a man with wealth and means could afford to have more than one wife.

• Polyandry

It is that system of marriage wherein a woman has multiple husbands. This is, however, a very rare sight. Also, polyandry does not hold the same status as polygyny. It is widely accepted for a man to be married to multiple women but it is not acceptable for a woman to be married to multiple men. This creates an asymmetry between the sexes.

• Group Marriage

Group marriage is an arrangement where the men and women of the group consider themselves married to each other within that group. It can also be referred to as a combination of polygyny and polyandry. According to Lewis Henry Morgan, a group marriage must consist of all ten basic kinship relations which are wife, co-wife, husband, co-husband, mother, father, daughter, son, brother, sister[v].

History of Polygamy in India

India is a land of diversity. Hence, the rules of marriage were never generalized. Every religion had its own set of rules, customs and traditions. However, with respect to polygamy, they all shared the same sentiment—Monogamy was the preferred system of marriage but polygamy was allowed under specific circumstances.

During the Vedic period, Upanishads, sutras and smritis governed the regulation of marriage amongst Hindus. It was believed that a Hindu husband is permitted to marry again during the lifetime of his wife, though such marriage, when contracted without just cause, is strongly disapproved[vi]. Manu has justified this supersession of wife and remarriage during her lifetime[vii] on the basis of barrenness, ill-health, ill-temper, and misconduct on the wife’s part. This supersession of the first wife has been justified and explained in Mitakshara and Subodhini.

He says[viii], “A wife who drinks any spurious liquors, who acts immorally, who shows hatred to her lord, who is incurable of a disease, who is mischievous, who wastes his property, may at all times be superseded by another wife. A barren wife may be superseded in the eighth year, she who brings forth stillborn children or whose children die all infants die in the tenth, she who brings forth only daughters in the eleventh and she who speaks unkindly, without delay.”

Manu has also stated that the first wife is married from a sense of duty and the others are regarded as married from sexual motives[ix].

The institution of marriage changed with the change in rulers.  With Muslim reign came new sets of laws that were applicable to Muslim marriages. Nikah was a contract and marriage was considered the basis of society. A married woman boasted of a higher status. With reference to polygamy in the Holy Quran, it has been stated in Chapter 1V, Verse 3[x]:

“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.”

These lines clearly show that the concept of polygamy in Islam has its roots within compassion and kindness. If a Muslim man is to come across an orphan female, neglected by society and destitute, if possible, he may marry such a woman. If he is not in a position to be just to his subsequent wives then he must only be married to one and not more.

Unrestricted polygamy was not permitted anywhere and yet many sections of society are known to have practised it as such. It was a common practice amongst the Rajputs to have multiple wives. Polygamy, for them, as a means of producing male heirs and consolidating power[xi]. Rao Maldeo is said to have 16 wives while Raja Udai Singh of Marwar had 27. It is said that Raval Bapa married 140 women. It may be an exaggeration but goes on to show how elite Rajputs could possess an unlimited number of wives[xii]. Kulins, Brahmins, princes, wealthy merchants among other rich and elite class of people practised unrestricted polygamy. The lower class, however, stuck to monogamy. As Altekar points out polygamy was a luxury beyond the means of poor[xiii].

The British brought about a change in the Indian society and how marriage was practised. Amongst other social reforms, polygamy was also banned vide section 494 of the Indian Penal Code, 1860. Later on after independence, the Hindu Marriage Act of 1955 prohibited polygamy as a practise among Hindus. Muslims, however, could still have four wives.

Current Scenario

In India, polygamy is positively unlawful. It has been declared as an offence under the Indian Penal Code, 1860. The Hindu Marriage Act, 1955 declares a marriage solemnized when the current spouse is living to be void and punishable as per IPC. The Muslim law, however, still allows a Muslim man to have four wives at the same time. Though no such practice is in existence for Muslim women.

Therefore, in India, polygamy is prohibited and punished except for Muslim men who can have four wives at a time.

Chapter XX of IPC lays down provisions with respect to offences relating to marriage. Section 494 of IPC states that whoever marries another person during the lifetime of husband or wife shall be punishable under this section and such a marriage will be void on the grounds that such a person already has a wife or husband.

To constitute an offence under this section, the following ingredients should exist:

• The accused must be married
• Such a marriage should be valid
• He must have married another person subsequently
• The subsequent marriage must be solemnized while the first husband or wife is still alive

This section will not apply if:

• The first marriage was declared void by a competent Court
• The husband or wife at the time of subsequent marriage has been absent for seven years and has not been heard of as being alive by the person contracting such subsequent marriage

This section is applicable to everyone irrespective of their religion or personal laws.

Section 17 of the Hindu Marriage Act, 1955 states that any marriage between two Hindus will be void if it is solemnized at a date when either party has a husband or wife living. This section further states that the provisions of sections 494 and 495 of IPC shall apply accordingly.

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 states that notwithstanding any custom or usage to the contrary, in questions of marriage where the parties are Muslims, the rule of the decision shall be the Muslim Personal Law. Since it is claimed that the Holy Quran permits a Muslim man to keep four wives at a time, polygamy is allowed for Muslim men under this section.

On a question of conflict between IPC and Personal Laws, the provisions of personal law are applied as it is a principle in law that a specific law prevails over the general law.

Judicial Decisions Regarding Polygamy

In Smt. Parayankandiyal v K. Devi & Others[xiv], the Hon’ble Supreme Court after citing multiple authorities on Hindu law observed that monogamy was the rule and ethos of the Hindu society which derided and rejected a second marriage. The touch of religion did not allow polygamy to become a part of the Hindu culture. The Court also observed that there are people who exploit even the smallest of liberties available under law and at this stage, the law should intervene to discipline such behaviour.

• Social Reform

Courts have clearly acknowledged the existence of the practice of polygamy in the Indian society and consider it a social-ill that needs to be reformed.

The Bombay High Court in State of Bombay v Narasu Appa Mali[xv] rejected the argument that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 was discriminatory. The Court held that a State Legislature is perfectly competent to bring upon legislation for social welfare and reform even if it infringes upon Hindu religion or practice. On the question as to leaving Mohammedans out of the scope of the impugned Act, the Court said that it was a matter to be considered by the Legislature. It is not obligatory to bring about a reform in one step. The State Legislature can take gradual steps for social welfare and reform.

The Andhra Pradesh High Court in G. Sambireddy v G. Jayamma[xvi] referred to the above-mentioned decision and held that sections 11 and 17 of the Hindu Marriage Act, 1955 were not violative of Article 15(1). These sections merely introduced a social reform for the class of persons upon whom the Act applied.

• On Conflict With Other Legislations

In Mohd. Ahmed Khan v Shah Bano Begum & Others[xvii], the Apex Court clarified that there is no conflict between two provisions namely, section 125 of CrPC and Muslim Personal Law, as they operate in different fields and in cases where the conflict between statutory law and personal law arises, the statutory law will prevail.

Sarla Mudgal & Others v Union of India[xviii] is a landmark judgment where the Hon’ble Supreme Court held that a Hindu marriage solemnized under the HMA can only be dissolved on the grounds specified under such Act. Conversion to Islam and remarrying would not dissolve the previous marriage. It is within the right of a Hindu man to embrace Islam but he has no right to marry again without getting his previous marriage dissolved first.

In Javed & Others v State of Haryana & Others[xix] whether an impugned provision of Haryana Act that disqualified people with more than two children from contesting, or holding an elective office was violative of Article 25, the Hon’ble Supreme Court held that freedom given under Article 25 is subject to public order, morality and health. Muslim law permits marrying four women but it is not mandatory as a duty. Not marrying four women will not be against religion. What is permitted or not prohibited by religion does not become a religious practice. Such a practice of having multiple wives can be regulated or prohibited by legislation in the interest of public order, morality or health.

• Not A Religious Mandate

The Courts have also clarified that polygamy is not a mandatory practise under Islam.

In Smt R.A. Pathan v Director of Technical Education & Others[xx], it was held that a bigamous marriage amongst Muslims is not a religious practice, religious belief or a religious mandate.

In Abdur Rahim Undre v Padma Abdur Rahim Undre[xxi], the Bombay High Court held that the provision of Mohammedan law is only permissible or optional in nature and not obligatory. It only lays down a ceiling on the number of wives and does not lay down that every Mohammedan man should have four wives as a matter of right.

In Amina v Hassan Koye[xxii], the Kerala High Court pointed out that it is a popular misconception that the Holy Prophet has recognized polygamy amongst Muslims. The Court even went ahead and stated that those who recite verses of the Sacred Quran or cite the Holy Prophet for finding authority for the practice of controlled polygamy are the real offenders of Islamic Law.

In Saidali K. H. v V. Saleena[xxiii], the Kerala High Court observed that the permission to take more than one wife in Islam is conditional. The mandate issued by the Prophet Mohammad was intended to save the destitute and to protect their belongings. The Court further observed how this mandate has been misused by men who enjoyed the unrestricted freedom to marry women of their choice and then casually pronounced talaq on their whims and fancies. The women and children of such marriages were left seeking justice from courts for their rights and maintenance.

In Itwari v Smt. Asghari & Others[xxiv], where a wife refused to live with her husband as he took a second wife, the Allahabad High Court held that Muslim Law in India considers polygamy as a system to be tolerated and not to be encouraged. It does not confer a fundamental right upon the husband to compel his first wife to live with another woman. The Court further held that a Muslim man can marry a second wife and in doing so he will not be prosecuted for bigamy and his marriage will be valid. But he cannot demand or compel either of his wives to share his consortium.

Conclusion

Polygamy has always existed in Indian society and despite the existence of laws prohibiting this practice, it is still being practised in certain sections. Though, even in ancient times, polygamy was frowned upon under the Hindu laws and was permitted only in certain circumstances. Muslim law, on the other hand, allows for a man to keep four wives but it is not a mandatory right to be practised by a Muslim man. It has been observed that polygamy became a status symbol and was not common amongst the lower strata of society who were poor. Polygamy, in the present day, is an offence in India but allows a Muslim male to have four wives. The Courts have stated time and again that it is not a religious mandate or a religious practice. The State has the power to prohibit it in the name of social reform. But governments have refused to look at the plight of women especially those who follow Islam and have refused to prohibit such practice for Muslim men as well.

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[i] Neel Burton, The Pros And Cons Of Polygamy, Psychology Today (January 4, 2018) available at https://www.psychologytoday.com/us/blog/hide-and-seek/201801/the-pros-and-cons-polygamy

[ii] Miriam Koktvedgaard Zeitzen, Polygamy: A Cross-Cultural Analysis 4 (Berg Publishers, 2008)

[iii] Polygamy, Good Therapy (May 16, 2019) available at https://www.goodtherapy.org/blog/psychpedia/polygamy

[iv] Ibid 3

[v] Ibid 13

[vi] Sir Gooroodas Banerjee, Hindu Law of Marriage And Stridhana, 4^th edition

[vii] K. P. Saksena, Commentary on Hind Marriage Act, 1955, 3^rd edition (1964)

[viii] Manu IX, 101-102: V, 162-168

[ix] Supra 7

[x]  B. S. Verma, Commentaries on Mohammedan Law 78  (Law Publishers Pvt. Ltd., 2011)

[xi] Sabita Singh, How elite medieval Rajputs ignored Hindu laws to practice polygamy, The Print (September 22, 2019) available at https://theprint.in/pageturner/excerpt/how-elite-medieval-rajputs-ignored-hindu-laws-to-practice-polygamy/295161/

[xii] Ibid.

[xiii] Werner F. Menski, Hindu Law Beyond Tradition and Modernity 379  (Oxford University Press, 2011)

[xiv] Smt. Parayankandiyal v K. Devi & Others 1996 AIR 1963

[xv] State of Bombay v Narasu Appa Mali AIR 1952 BOM 84

[xvi] G. Sambireddy v G. Jayamma AIR 1972 A.P.

[xvii] Mohd. Ahmed Khan v Shah Bano Begum & Others (1985) 2 SCC 556

[xviii] Sarla Mudgal v Union of India 1995 AIR 1531

[xix] Javed & Others v State of Haryana & Others Writ Petition 302 of 2001

[xx] Smt. R. A. Pathan v Director of Technical Education & Others 1981 (22) GLR 289

[xxi] Abdur Rahim Undre v Padma Abdur Rahim Undre AIR 1982 Bom 341

[xxii] Amina v Hassan Koye 1985 Cri LJ 1996

[xxiii] Saidali K. H. v V. Saleena Mat. Appeal No. 94 of 2007

[xxiv] Itwari v Smt Asghari & Others AIR 1960 All 684