Is having two spouses illegal? Here’s what Indian laws say about polygamy | Explained

As Assam orders state government employees to seek prior permission for second marriage, here's deep dive into the Indian laws on polygamy and bigamy.

Akriti Anand
First Published29 Oct 2023
Polygamy is illegal under the Indian Penal Code (IPC).
Polygamy is illegal under the Indian Penal Code (IPC).

 

 

Who is allowed to have more than one wife or husband in India? Well, it depends on the religion you follow. Polygamy — the practice of having more than one spouse at the same time — has often been debated among different groups in India. The concept recently cropped up during the discussion around the Uniform Civil Code (UCC) — which calls for a common law for all citizens of the country, irrespective of their religion.

Just this week, Assam Chief Minister said a state government employee "is not entitled to enter into a second marriage", adding that, "...if some religion allows you to do so, even then as per the rule, you have to get permission from the state government". Sarma has time and again been vocal about banning polygamy in the state, and is all set to propose a Bill for the same during the state assembly session in December, according to the Economic Times.

As the debate over the legality of polygamy or bigamy in India continues, here's in detail what the Indian laws say about it:

Polygamy is illegal under the Indian Penal Code (IPC), but Muslim men are allowed to have up to four wives under Sharia Islamic law. Besides, polygamy also exists in many tribal communities.

But why different rules for different religions?

The Supreme Court, in a verdict uploaded in 2021, had mentioned that India recognizes a plural legal system, wherein different religious communities are permitted to be governed by different ‘personal laws’.

"... but personal laws must meet the test of constitutional validity and constitutional morality, in as much as, they cannot be violative of Articles 14, 15,21 of the Constitution," it added.

A consultation paper on Reform of Family Laws by the Law Commission of India 2018 states that "there are significantly different attitudes towards how a union between two people is imagined". It upholds that "it is important that these different attitudes are respected and not placed in a hierarchy, pitting one religious attitude against another."

"While in Hindu law, marriage is a sacrament, in Christian law, divorce continues to be stigmatised; in Muslim law, marriage is a contract and Parsi law registration of marriage is central to the ritual of marriage," it said.

Now, let's delve into these laws and aspects first:

The Hindu Marriage Act and Indian Penal Code

Bigamy (having two spouses) is prohibited for a select section of society in India under The Hindu Marriage Act, 1955. This Act applies to:

1. To any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj 

2. Any person who is a Buddhist, Jain or Sikh by religion

3. To any other person domiciled in the territories to which this Act extends - who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

What Hindu Marriage Act says

The Act clearly states THIS as one of the "Conditions for a Hindu marriage" - "Neither party has a spouse living at the time of the marriage".

The Hindu Marriage Act, 1955, lists out the punishment of bigamy. It says, "Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living." It adds that "the provisions of sections 494 and 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply accordingly".

Under Indian Penal Code Section 494, if a person marries for the second time during the lifetime of his wife or her husband without divorce, the marriage is void. If convicted of the offence, the person shall be punished with imprisonment of "either description for a term which may extend to seven years". He/She shall also be liable to a fine.

Meanwhile, Section 495 addresses a situation wherein the "same offence" is committed "with concealment of former marriage from person with whom subsequent marriage is contracted". In this case, the person might be sentenced to imprison­ment up to ten years. A fine might also be imposed.

Muslim Personal Law Application Act (Shariat) of 1937

Muslims in India have the right to marry four times as per the Muslim Personal Law (Shariah Application) Act 1937, news agency Reuters reported.

However, in Khursheed Ahmad Khan versus State of UP in 2018, the Supreme Court held that “though the personal law of Muslims permitted having as many as four wives it could not be said that having more than one wife is a part of religion. Neither is it made obligatory by religion nor is it a matter of freedom of conscience.”

Writ petitions have been filed earlier, seeking to "declare Muslim Personal Law which allows polygamy as void as offending Articles 14 and 15 of the Constitution".

The Parsi Marriage and Divorce Act, 1936

The Parsi laws also outlaw bigamy.

The Act says, "Every Parsi - who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved - shall be subject to the penalties provided in sections 494 and 495 of the Indian Penal Code (45 of 1860) for the offence of marrying again during the lifetime of a husband or wife."

The Indian Christian Marriage Act, 1872

The Indian Christian Marriage Act, 1872 also prohibits Indian Christians from marrying the second time, when the wife or husband from the first marriage is living and marriage is not void. "Neither of the persons intending to be married shall have a wife or husband still living," it says.

The Special Marriage Act, 1954

The Special Marriage Act, 1954 also states that special marriages will be solemnised when "neither party has a spouse living".

Upon conversions too it is clarified that another marriage of a spouse (by conversion) would not be considered valid if the previous partner of the spouse continues to remain of the religion under which the marriage was solemnised.

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