According to the Assam government, an expert committee would be formed to examine the issue of practice of polygamy and will ban the practice through “legislative action”.
Practice of Polygamy in India –
- Meaning —
- Polygamy is the practice of having more than one married spouse (wife or husband).
- Traditionally, polygamy – mainly the situation of a man having more than one wife – was practised widely in India.
- Prevalence in India —
- According to the National Family Health Survey-5 (2019-20), polygamy was 2.1% among Christians, 1.9% among Muslims, 1.3% among Hindus, and 1.6% among other religious groups.
- The highest prevalence of polygynous marriages (marriage in which two or more women share a husband) was in the Northeastern states with tribal populations.
- Laws governing the practice — The issue is governed both by personal laws and the Indian Penal Code (IPC).
The Personal Laws –
- The Special Marriage Act 1954 requires that at the time of marriage neither party has a spouse living.
- The Hindu Marriage Act 1955 outlawed the practice of a man having more than one wife.
- However, despite bigamy being an offence, the child born from the bigamous marriage would acquire the same rights as a child from the first marriage under the law.
- Buddhists, Jains, and Sikhs are also included under the Hindu Marriage Code.
- The Parsi Marriage and Divorce Act 1936 had already outlawed bigamy.
- Marriage in Islam is governed by the Shariat Act 1937, which allows a Muslim man to have four wives.
- To benefit from the Muslim personal law, many men from other religions would convert to Islam to have a second wife.
- However, the Supreme Court (SC) held that religious conversion for the sole purpose of committing bigamy is unconstitutional.
- This position was subsequently reiterated in the 2000 judgement in Lily Thomas v Union of India.
The Indian Penal Code (IPC) –
- IPC Section 494 (“Marrying again during lifetime of husband or wife”) penalises bigamy or polygamy with imprisonment up to 7 years and fine.
- This provision does not apply —
- To a marriage which has been declared void by a court.
- If a spouse has been “continually absent” for the “space of seven years”.
- For adulterous relationships that do not qualify as valid marriages under the law.
- Section 495 of the IPC protects the rights of the second wife in case of a bigamous marriage.
- Whoever commits the offence (under Section 494) and has concealed the fact of the former marriage from the person with whom the subsequent marriage is contracted, shall be punished with imprisonment up to 10 years and fine.
Procedure of filing a complaint –
- Generally, the first wife files a complaint that her husband has remarried.
- The court will have to look into whether the husband has entered into a legally valid second marriage.
- The SC reiterated the legal position that the standard of proof must be of marriage performed as per customs.
Exception to the Bigamy Law for Hindus –
- Goa follows its own code for personal laws. So, a Hindu man in the state has the right to bigamy under specific circumstances mentioned in the Codes of Usages and Customs of Gentile Hindus of Goa.
- These circumstances include a case where the wife fails to conceive by the age of 25 or if she fails to deliver a male child by the age of 30.
- However, as per the Goa government, the provision for Hindus is virtually “redundant” and no one has been given the benefit of it since 1910.