Is Poligamy Legal in India? How Does it Impact Indian Society?
IS POLYGAMY LEGAL IN INDIA? HOW DOES IT IMPACT INDIAN SOCIETY?
- Joncy Lakhani
Polygamy is a practice whereby a person has more than one spouse, and this can be of two kinds, Polygyny and polyandry, in the first kind, a man marries more than one woman and in the next a woman marries more than one man. Polygamy is illegal in India for every religion except for the Islam religion where limited polygyny up to four wives is permitted but polyandry is absolutely prohibited.
This practice of polygamy was prevalent in the ancient India and was most common amongst the rich aristocrats and emperors, but it wasn’t a major cultural practice to be followed compulsorily.As for instance there is a great example of Ramayana, there were 3 wives of Raja Dashratha who was the king of Ayodhya. According to Vedas and Scriptures, a Hindu marriage is in-dissolvable in life. Nevertheless, polygamy was unbridled practiced in ancient Hindu society. A direction by Bhishma to King Yudhishthira in the Mahabharata, succinctly endorses this fact: “A Brahmana can take three wives. A Kshatriya 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”.[1] Now, polygamy is outlawed, monogamy is the only option left for Hindus as bigamy is also not allowed.
STATUTORY PROVISIONS OUTCASTING POLYGAMY IN INDIA.
POLYGAMY IN HINDU LAW
The abolition and criminalization of Hindu Polygamy was put straight forward when the Hindu Marriage Act came into force on 18th May, 1955. The Monogamy was the only option to be adhered to for the Hindu. This seems to be a classic case of no-nonsense legislative intervention. It was made clear that a Hindu spouse was not permitted to have a second marriage unless the first one is dissolved, either by a divorce or due to the death of any spouse.
The Hindu Marriage Act, 1955 warily imposes monogamy under Section 11 of the act where it is mentioned that bigamous marriages are void. And when someone practices it he/she is punished according to Section 17 of the same Act read with Section 494 and 495 of Indian Penal Code, 1860 which makes such an act as offence. The Buddhists, Jains and Sikhs are all included in Hindu they do not have any separate laws, those laws which are there in The Hindu Marriage Act, are also binding to these three religions and thereby according to section 5, 11 and 17 of the Act the bigamous marriages are void and penal.
POLYGAMY IN MUSLIM LAW
The Muslims in India are subject to the provisions of ‘Muslim Personal Law Application Act (Shariat) of 1937, interpreted by All India Muslim Personal Law Board. Prohibition of Polygamy in Muslim law is not found as it is noted as their religious practice and therefore they tend to protect it and practice it. However, it is clearly subject to change if this practice is found to be violating the fundamental rights of the constitution, it can also be struck down and this will be reflected in the later part in detail.
IMPACT OF POLYGAMY ON INDIAN SOCIETY AND CONSTITUTIONAL STANDPOINT.
The India is secular state which considers no religion superior or inferior to one another and sees every religion with an equal eye and respects all its holy books and makes rules adhering to the same. However, there are certain laws which are being argued upon for their constitutionality by the different religions, hereby, Muslim and Hindu and here in subject to the laws pertaining to ‘polygamy’. They argue upon the fundamental rights given by the Constitution under Article 13, 14 and 15 we’ll discuss how polygamy impacts the Indian society.
Article 13 of the Constitution clearly and specifically declares that the laws inconsistent with the part III of the Constitution shall be void. The Apex Court in the case of R.C. Cooper v. Union of India[2], held that the theory that the object and form of state action determine the magnitude of protection which the oppressed party may claim, was not rational with the constitutional scheme which aims at giving the individual the completest rights protection of his basic rights.
Article 14 declares, the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.The Supreme court in various cases such as National Council for Teacher Education v Shri Shyam Siksha Parikshan Sanstha [3] has ingeminate the principle of “Right to Equality” as sanctified in our Indian Constitution.In this it was constituted that the law making bodies were barred from making class legislation but they were permitted to make the laws pertaining to ‘reasonable classification’, the ones those are based upon the ‘intelligible differentia’.
Article 15(1) of the Constitution forbids the state from discriminating against any citizen based only on religion, race, caste, sex, or place of birth. The researcher scholars and some learned persons argue that allowing polygamy in one religion and penalizing others is unfair and this discrimination must be amended by the legislature. This point is cut off by the name of social reforms and religious beliefs of the particular religion.
When you see something burning always you try to find out where the smoke is coming from without hesitating. Polygamy seems harmless to society but most social problems today are as a result of this kind of arrangement as a perspective of a reasonable pure human being. Asserting the men who run these communities have completely free rein and the stamp of approval will only deepen the social problems polygamy causes which are very deceptive in nature. And the victims will become more helpless than they already are as moral reasonability brutally discourage it as a whole. It affects society because there are always semantic disagreements amongst the wives creating a nasty environment for the children hence unhealthy moral code of conduct to raise a family. Domestic Violence is one of the most attached to Polygamous families because of the verbal disagreements that are involved due to its kind of immoral set up.
Polygamy affects the society because it is considered as a supreme medium in the spread of HIV AIDS. Since a man cannot satisfy all his wives both sexually and financially they get slang which is merely barbaric problem of the polygamy system. Polygamy results in property struggles arise when their Husband dies. The women might use immoral means to grab as much as possible of the property in order of preview to existence. In polygamy, there are limited resources and in contrast many people are involved in a core social institution i.e. family. In any sort of family set up unity is always as a riveting factor but there is no unity in a Polygamous family set up because of rivalry prevailing amongst the wives trying to fight for attention and affection from their one husband. Polygamy is associated with felony acts such as sexual abuse hence it affects society badly. As cleansing remarks, this marriage setup called polygamy not only effects the husband and wife, but also prolongs problems into the lives of children who are the products of such marriage. This problematic issue results into trauma in children which affects their studies and the social approach to life and contribute to this global village.
PANORAMIC DENOUMENT
Religion is given the top most priority in our country and the Indian Constitution also shields them whenever required. In contrast judiciary plays a vital role in transforming the Constitution by focusing on the Constitutional morality which we have seen in some latest landmark judgements, whereby the amendments are done in the constitution for the modernized society with the changing trends. The practice of polygamy in Islamic law is legal and in other religions its prohibited all these is discussed above and its impact on the Indian society is also discussed in brief. The constitutional validity of polygamy is also proved but the laws are always subject to change for the betterment of society and this practice may also change or get struck down for the welfare of the people and other reasons.
Henceforth, just because polygamy has been long time practice since time immemorial among the Islam religion and the same has been amended being the subject to the personal laws, the Hindu religion practitioners cannot challenge the laws that prosecute Monogamy among the Hindus. As a wise man Martin Luther King says that Laws cannot change the heart of the people but it can restrain the heartless people and thereupon, the laws imposing monogamy are made to consolidate the society and not to truncate their fundamental rights.
REFERENCES:-
[1] Suraj Kumar Singh, <http://ssrn.com/abstract=2018822>
[2] R.C. Cooper v Union of India, AIR 1970 SC 564.
[3] 17 Civil Appeal <http://indiankanoon.org/doc/98280/>
