|VOLUME 1|ISSUE 2|APRIL 2018|ISSN: 2581-3595|
MONOGAMY IN INDIA – A MYTH?
AUTHORED BY: PRAGASH BOOPAL, B.B.A.LL.B (Hons), SCHOOL OF LAW, SASTRA UNIVERSITY
India is a diverse country with a variety of religions and languages. The administration of justice remains a hurdle due to numerous statutes necessitating the recognition of different sects. The real problem arises with the practice of separate civil laws for different communities. Thus the complication arose in delicate areas like marriage, divorce and other personal issues. With the accelerating fashion-drifted society, it becomes really difficult to stick on to the cultural heritage and customs we practiced. Though it is necessary to crush the superstitions with technology and logic, it becomes equally important to structure the institutions of personal life. This article will be concentrating on different personal laws, the constraints and vacuum within them and the contradiction with the criminal law and the constitution of India. The distinguishing feature of this essay will be an analysis with the help of the recent judgments provided by the Supreme Court of India.
VARIOUS RELIGIONS AND MONOGAMY
India was ruled over by Kings practised polygamy for the purpose of procreation of children due to death vulnerability from frequent wars. It is the same all over the world but India stands unique for its practice as in religious texts we can see references to the deities, messengers of God and strict followers of God to practice polygamy. Hence Indians before the independence thought it as a privilege and right of the powerful and wealthy to have more than one wife. With the advent of the twentieth century, we can see the human tendency progressing towards scientific society rather than being the blind followers of traditional practices. So men started questioning various practices (started from prohibition of Sati). One such effort was the Indian succession Act, making the followers of the Act to comply with the uniform procedures. This voluntary participation encouraged people to follow the principles said in it, creating a sense of belonging as nation and served as a Uniform Civil Code for Succession.
After Independence, Hindu personal rights were subjected to a drastic change of codification. The law enacted by the parliament eliminated various religious practices that were said to be mandatory. Again the element of the voluntary participation and adherence to the rites made the Act admirable and received a warm welcome from Hindus themselves. One such leap is the inclusion of polygamy as a ground for nullity of marriage. If a Hindu Husband is indulged in Bigamy then on the complaint by the aggrieved party (his first wife, second wife, if the first marriage was not disclosed to her and her next friend, if she is a minor, person of unsound mind etc.,) then only court is allowed to take action. The second marriage will be null and void for the reason that spouse is living or the previous marriage was not brought to an end. Similarly polygamy is not allowed in Christian marriages making the monogamy a strict practice for a social, civilised and dignified individual. Religions like Jainism, Buddhism and Sikhism are brought under the Hindu marriage Act, reducing the possibility of conflict of cultural and religious opinions.
In India, apart from Muslim community all the personal laws are codified. The reason why Muslim personal laws are different is because of its beehive complexity and the unique principles validated by Shariadh Act, 1937. This Act permits polygamy, NikkahHalala, NikkahMutah and NikkahMisyar making it different from other religions. With codified laws, we can see individuals following the practices that suit the daily life and only the mandatory customs but in case of Muslims we can see the conflict within themselves and between others.One among them is the practice of polygamy.
Bigamy is made an offence under Indian Penal Code, 1860 but we can see that in case of Muslims the action arises only when the Muslim husband marries a woman after his fourth marriage. The issue is who must file a case? The offences like bigamy and adultery not only involves privacy but also the public interest. Nowadays we can evidently view the influence of the media and peers in potential minds. These offences shake the morality and tends to contaminate the public order.
The offence of bigamy is not taken in cognizance by state and instituted only on the complaint of the aggrieved party. This eliminates the essence of making this act an offence. Since it is going to be an option of the aggrieved party, there is a higher possibility that the party will be acting under threat, intimidation, promises and unjustified lust or desires. This reduces the possibility of filing of cases despite harm is done. There will be no offence when the act is accepted by the husband or wife which will promote polygamy or polygyny in some cases.
LACK OF UNIFORMITY
Though in civil matters, Indians follow different personal laws, in case of criminal laws, the uniformity is adhered to. The exception can be seen in bigamy where polygamy is allowed for the Muslim community. The main reason for the inclusion of polygamy in the Muslim community is the valour and war deeds of the Muslims. In Arab and other Muslim Countries, due to the participation in the wars made the men population go very low that the women population boomed up. In order to maintain the population balance and to procure more men for more war and territorial achievements, the Caliphs and Kings of the Muslim community allowed polygamy. In the modern era, there comes no need for any war (at least infantry), and we can evidently see a similar practice, Triple Talaq becoming constitutionally invalid. The reason for triple Talaq is to marry the unwilling Greek women who asked Muslim warriors to divorce their women so that they can escape from the clutches of the warriors within three months. Similarly when we put the same tests described in ShayaraBanu case we can understand that there is no need for polygamy to be practised.We can affirm that Polygamy is not a necessary religious practice or basis of Quran, making bigamy a strict offence.
CONSTITUION OF INDIA AND MONOGAMY
Monogamy is introduced with the view of protecting the rights of women and to save them from being treated as sexual objects but now it is considered as a hurdle to the privacy of the individuals. The tug of war is among privacy, secularism and public order all being the basic structure of the constitution.
Right to Privacy: Since it is an offence related to marriage affecting both the personal and societal life of the parties, the offence of bigamy is conducted in camera allowing a restrictive locus standi. This curtails women rights, because of Indian culture and practice. The tradition and associations like KhapPanchayat not only affect the individual’s rights but also turmoils the societal value of their families. Making the cases public will result in undue disadvantage not only to the offender but also to the victim. Similarly, having a narrower cognizance have an undue influence over the parties and there will be misuse of fundamental right to choose his/ her life partner.
Secularism: Secularism in India is different from that of the Western countries. Here it is the right of every individual to practice, profess their religion except it affects the public order. It also involves the practice of rituals and rights which are essential for the religion. Muslim community includes polygamy as a traditional and long practised custom, which gives the position of legal binding over other laws and it is strengthened by inclusion in the personal law. Thus any law which is made invalidating polygamy and allows marrying only one woman, will result in violation of Article 25 of the constitution of India. But with the recent case on ShayaraBanu, the question of polygamy can be removed.
Polygamy is violative of Article 14 of the Indian constitution as the two classifications of Muslims and other religions; and men and women have no rational nexus with the object. Since the other religious men also practised Polygamy, the special status is an inequality. Moreover, it is derogative of the rights of women. Decisively, it affects the right to live with dignity for women as they are treated as souvenirs of men and sexual objects, making it violative of Article 21 of Indian Constitution. In addition, this practice is not a custom which is essential for professing Islam, as the removal of custom will not affect the religion and it is not the essence of Quran. Thus it becomes essential to frame a uniform bigamy clause so that the plea of religious right will not interfere.
Public Order: It is the reasonable restriction which must be followed while exercising the right to religion or any other fundamental right. Since the offence of Bigamy is having a diluted flavour, the public order, interest and morality is at risk. It will influence the minds of children and have an impact on the notion about marriage. This shapes the future minds and affects the society at large. More importantly, the risk of women getting exploited is more and there will be related offences to hide other marriages resulting in the moral character of the individuals to go down. Ultimately, it will affect the unity of the nation with increased crime rates.
PROBLEMS AND SOLUTION
The monogamy we follow is not strictly implemented, and it is evident that there are several cases that are unreported either because of the mutual consent or intimidation. This will influence the society by changing the perception that individuals have over the institution of marriage. Instead of developing a sense of responsibility, this idea will increase the care-free mentality. Indian society is evolving at a rapid pace through questioning the customs and acceptance of living together relations to eliminating triple talaq. By promoting this view, the chances of misunderstanding the valuable judgments and law will arise, ultimately posing India as an immature society with well organised legal system.
The offence of bigamy can be made stringent, by making the punishment clause uniform for all the offenders or making the essential amendment in Indian Penal Code, extending its application to all the members irrespective of the religion. It can be corrected by declaring that Polygamy is constitutionally invalid through Apex Court, making it a perfect precedent and law.
Consequently, the problems with the offence of bigamy being so frequent and unknown, is the restrictive locus standi and lack of uniformity. Making bigamy an offence which can be complained by anyone will affect the privacy of the individuals and also lead to multiplicity of cases. But ultimately, it will improve the societal moral standards of the society, which promotes the equality and eliminates gender discrimination. Allowing this offence to be actionable by anyone will be a check and balance over the immoral husband or wife. Since all the religions have accepted monogamy and even Muslims accept to live with better standards rather than to stick with outdated customs, it is possible to eliminate polygamy and it will serve as a wonderful opportunity to praise humanity and equality among us.
The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.
Id, §. 5(i).
Id, §. 17; The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860, §§. 494, 495.
Supra note 1, §. 11.
The Christian Marriage Act, 1872, No. 15, Acts of Parliament, 1872, §. 60.
Supra note 1, §. 2.
The Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 1937, §. 2.
Shayara Banu v. Union of India, AIR 2017 SC 4609.
R. Rajagopal v. State Of Tamil Nadu, 1995 AIR 264.
 S.R. Bommai v. Union of India, 1994 AIR 1918.
Shakti Vahini v. Union of India and Ors, 2018 SCC OnLine SC 275.
 INDIA CONST. art. 25.
Id, arts. 141, 142.