Why is the Supreme Court examining polygamy again?

Why in the News

The Supreme Court has sought the Centre's response to a petition challenging the constitutional status of polygamy under Muslim Personal Law. The court additionally asked the Centre to consider legislative steps to abolish the practice for all citizens, irrespective of religion. The dispute sets a religion specific statutory exemption against the equality guarantees the Constitution extends to every citizen.

What is the legal basis of polygamy in India?

1. The practice: Polygamy is the contracting of a further marriage by a person whose earlier marriage is still subsisting.
2. The permitting provision: Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 applies Shariat rules to matters of marriage and dissolution for Muslims, and it is under this provision that polygamy is permitted.
3. The prohibiting provision: Section 82 of the Bharatiya Nyaya Sanhita, 2023 punishes marrying another person during the subsistence of an existing marriage with imprisonment up to seven years, and it applies to non Muslims.
4. The asymmetry at issue: The same act is a criminal offence for one set of citizens and a protected personal law entitlement for another.

What is the current status of polygamy law in India?

1. Permitted for Muslim men alone: Polygamy remains lawful for Muslim men under the 1937 Act, with the scriptural ceiling being four wives.
2. A criminal offence for everyone else: Bigamy is punishable under Section 82 of the Bharatiya Nyaya Sanhita, 2023, carrying up to seven years, and applies to Hindus, Christians, Parsis and citizens married under civil law.
3. No compulsory registration: Muslim marriages and divorces are not universally required to be registered with State authorities, so a subsisting marriage is often not on any official record.
4. Related practices already struck down: Instant triple talaq was invalidated by the Supreme Court in August 2017, and the Centre followed by framing the Muslim Women (Protection of Rights on Marriage) Act, 2019, making the practice a punishable offence.
5. Polygamy and nikah halala left open: The 2017 bench refrained from ruling on polygamy and nikah halala even though both had been sought, which is why the question returns to the court now.

Constitutional Provisions Related to Personal Law and Gender Equality

1. Article 14: Guarantees equality before the law and the equal protection of the laws to every person within India.
2. Article 15: Prohibits discrimination by the State on grounds of religion, race, caste, sex or place of birth.
3. Article 16: Guarantees equality of opportunity in matters of public employment.
4. Article 21: Protects life and personal liberty, read by the Supreme Court to include dignity and autonomy within marriage.
5. Article 25: Guarantees freedom of conscience and the free profession, practice and propagation of religion, subject to public order, morality and health, and expressly permits the State to legislate for social welfare and reform.
6. Article 44: Directs the State to endeavour to secure a Uniform Civil Code for citizens throughout India, as a Directive Principle.
7. Entry 5, Concurrent List, Seventh Schedule: Places marriage, divorce, infants and minors, adoption, wills, intestacy and succession within the legislative competence of both Parliament and the State legislatures.

What are the petitioners seeking?

1. Criminalisation of polygamy: The five petitioners want polygamy treated as a criminal offence under Section 82 of the Bharatiya Nyaya Sanhita, 2023, for all citizens.
2. Striking down the enabling provision: They have challenged the constitutional validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as violating Articles 14, 15 and 16.
3. Annulment of the exemptions: They have sought annulment of the exemptions granted to polygamy under Muslim Personal Law.
4. Compulsory registration: They want compulsory registration of Muslim marriages and divorces with State authorities, so that a second or subsequent marriage by a man with a subsisting marriage can be prevented.
5. Protection of the first family: Where registration is flouted, they want the first wife and her children to have the first and lasting right to the matrimonial home.
6. Codification of Muslim Personal Law: They want the court to direct the Law Commission of India or the Union government to prepare a draft codifying Muslim Personal Law so that marriage, divorce and succession align with constitutional principles of gender equality.

How has the Supreme Court ruled on plural marriage before?

1. Sarla Mudgal (1995): The Supreme Court held that the second marriage of a Hindu husband after converting to Islam, without dissolving the first marriage, is void, prohibiting conversion undertaken purely to marry again.
2. Lily Thomas versus Union of India (2000): The court reiterated the Sarla Mudgal position, holding that a second marriage contracted after a feigned conversion to Islam was illegal and punishable under Section 494 of the Indian Penal Code, 1860.
3. Shayara Bano (2017): The court invalidated instant triple talaq on the argument that the practice violated the fundamental rights of women, on a petition in which two of the present activists were also involved.
4. The gap the rulings leave: All three rulings addressed the abuse of conversion or the mode of divorce, none tested the validity of polygamy itself under Articles 14, 15 and 16.

Does Islamic scripture itself sanction polygamy?

1. The scriptural position: The Quran encourages monogamy and does not encourage polygamy, contrary to the common contention.
2. The narrow permission: It permits a man up to four wives in special circumstances, such as marrying a widow or an orphan.
3. The condition attached: It makes complete equality between wives incumbent on the man, and because that is a practical impossibility, it asks men to desist from multiple marriages.
4. The text relied on: Verse 3 of Surah Nisa states that if a man fears he will fail to maintain justice, he should content himself with one wife, a verse revealed when many men had multiple spouses running into three figures.

Major debates surrounding polygamy and personal law reform

1. Equality against religious freedom: One position reads Articles 14, 15 and 16 as overriding a religion specific exemption, the other reads Article 25 as protecting a practice integral to a community's personal law.
2. Judicial invalidation against legislative codification: The court can strike down Section 2 of the 1937 Act, but a durable settlement requires Parliament to codify Muslim Personal Law, which is what the petitioners are actually asking for.
3. The essential religious practices test: The dispute turns on whether polygamy is an essential religious practice protected by Article 25 or a permitted social custom open to reform, and the two characterisations produce opposite outcomes.
4. Uniform Civil Code against pluralism: The court's suggestion that the Centre abolish the practice for all citizens irrespective of religion moves the question toward Article 44, which reopens the standing dispute over a Uniform Civil Code.
5. The evidence gap: There is no reliable national dataset on the current prevalence of polygamy, so both sides argue from contested estimates rather than measured incidence.
6. Gender justice inside communities: The debate over whether reform of a minority's personal law is best driven by the courts, by Parliament or by the community itself remains unsettled.

Challenges to abolishing polygamy through law

1. Absence of marriage registration: Without compulsory registration, a subsisting marriage cannot be proved, so a bigamy prosecution collapses at the evidence stage. e.g. Section 494 of the Indian Penal Code, 1860 has historically produced very few convictions because the prosecution must first prove a valid first marriage and then a valid second one.
2. The essential practices doctrine: Courts must first decide whether the practice is essential to the religion before they can regulate it, which is a theological inquiry judges are poorly placed to conduct. e.g. the Sabarimala reference of 2019 sent exactly this question to a larger bench, where it remains pending.
3. Standing and enforcement: A first wife who depends on her husband economically has little incentive to complain, so a criminal provision goes unused. e.g. the low prosecution rate for dowry related matrimonial offences despite a wide statutory framework.
4. Community resistance to codification: Attempts to codify a minority's personal law are read as an intrusion on identity rather than a gender reform. e.g. the reversal of the Shah Bano ruling through the Muslim Women (Protection of Rights on Divorce) Act, 1986.
5. Displacement rather than abolition: Criminalisation can push plural unions outside the legal record, leaving second wives and their children without maintenance or inheritance rights. e.g. Hindu bigamy has continued through unregistered customary unions despite being an offence since 1955.
6. Federal complexity: Marriage and divorce sit on the Concurrent List, so State level marriage registration laws vary and a national standard needs Parliamentary action.

Conclusion

The dispute before the court is not about the scriptural permissibility of polygamy but about whether a statutory exemption can hold when the same conduct is a criminal offence for other citizens. A judicial strike down of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 would remove the permission without supplying the registration and maintenance machinery that makes a prohibition workable. The Centre's response to the notice, and whether it accepts the court's invitation to legislate for all citizens, is the next milestone in the case.

What is Personal Law in India?

1. About: Personal law is the body of rules governing marriage, divorce, maintenance, guardianship, adoption, succession and inheritance, applied to a person according to their religious community rather than their territory.
2. Rationale: It survived as a distinct legal category because the colonial state declined to legislate on the family affairs of religious communities, and the Constitution retained it while placing the subject on the Concurrent List.
3. The four principal systems:
4. Hindu law: Codified through four statutes in 1955 and 1956, covering Hindus, Buddhists, Jains and Sikhs.
5. Muslim law: Largely uncodified, applied through the Muslim Personal Law (Shariat) Application Act, 1937, with limited statutory intervention on divorce and maintenance.
6. Christian law: Governed by the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1869.
7. Parsi law: Governed by the Parsi Marriage and Divorce Act, 1936.
8. The secular alternative: The Special Marriage Act, 1954 offers any two citizens a civil marriage independent of religion, along with a uniform succession regime.

Key Concerns Regarding Personal Law

1. Unequal entitlements between citizens: Rights on divorce, maintenance and inheritance differ by religion, so two women in identical situations receive different legal protection.
2. Gender asymmetry within systems: Several personal law systems give men wider rights over the dissolution of marriage and over property than they give women.
3. Uncodified rules resist reform: Where the law is not written into a statute, amending it requires either judicial intervention or community consensus, both of which are slow.
4. Weak registration infrastructure: Absent compulsory registration across all communities, the State has no record against which to enforce even the rules it has enacted.
5. Article 44 remains unimplemented: The Directive Principle on a Uniform Civil Code has produced State level initiatives rather than a national framework, leaving the constitutional aspiration unfulfilled.

Laws and Rules Governing Marriage and Personal Status in India

1. Indian Divorce Act, 1869: Governs the dissolution of marriage among Christians.
2. Indian Christian Marriage Act, 1872: Governs the solemnisation of Christian marriages.
3. Muslim Personal Law (Shariat) Application Act, 1937: Applies Shariat rules to Muslims in matters including marriage, dissolution, maintenance and succession.
4. Section 2 is the provision under challenge, since it is the route through which polygamy is permitted.
5. Parsi Marriage and Divorce Act, 1936: Governs marriage and divorce among Parsis.
6. Special Marriage Act, 1954: Provides a civil marriage available to any two citizens irrespective of religion, with its own divorce and succession rules.
7. Hindu Marriage Act, 1955: Codified Hindu marriage law and made bigamy void and punishable.
8. Hindu Succession Act, 1956: Codified intestate succession for Hindus, amended in 2005 to make daughters coparceners by birth.
9. Muslim Women (Protection of Rights on Divorce) Act, 1986: Enacted after the Shah Bano ruling to govern maintenance for divorced Muslim women.
10. Prohibition of Child Marriage Act, 2006: Sets the minimum age of marriage and makes child marriage voidable at the option of the minor party.
11. Muslim Women (Protection of Rights on Marriage) Act, 2019: Made the pronouncement of instant triple talaq void and a punishable offence.
12. Bharatiya Nyaya Sanhita, 2023: Section 82 punishes bigamy with up to seven years, replacing Section 494 of the Indian Penal Code, 1860.

Back2Basics: Muslim Personal Law (Shariat) Application Act, 1937

1. What it is: A short central statute that directs courts to apply Muslim personal law to Muslims in the matters it lists.
2. Enacted: 1937, by the Central Legislative Assembly in British India.
3. Subjects covered: Intestate succession, special property of females, marriage, dissolution of marriage including talaq, maintenance, dower, guardianship, gifts, trusts and wakfs.
4. Effect of Section 2: It displaces custom and usage in these matters and substitutes Shariat as the rule of decision.
5. What it does not do: It does not codify Muslim personal law, it only directs which body of rules applies, which is why the substantive rules remain uncodified.
6. Present relevance: It is the statute whose Section 2 is under constitutional challenge in the polygamy petition before the Supreme Court.

Way Forward

1. Enact compulsory marriage registration: A uniform registration requirement for all marriages and divorces, irrespective of religion, creates the record without which any bigamy prohibition is unenforceable.
2. Codify Muslim Personal Law: A codified statute drafted with the community, as the petitioners seek from the Law Commission of India, converts contested custom into reviewable law.
3. Secure the first family's rights first: Statutory protection of the first wife's and children's right to the matrimonial home and to maintenance addresses the harm even where the marriage itself is not annulled.
4. Use the Special Marriage Act, 1954 route: Simplifying and publicising civil marriage gives couples an existing exit from personal law without waiting for its reform.
5. Build the evidentiary base: A national survey of the prevalence of plural marriage would replace contested estimates with measured data on which any legislation must rest.
6. Sequence reform through Parliament: A legislative framework, rather than a bare judicial strike down, supplies the transitional provisions, penalties and remedies that a court order cannot create.

Matching Previous Year Question

“[2019] Which Article of the Constitution of India safeguards one's right to marry the person of one's choice? (a) Article 19 (b) Article 21 (c) Article 25 (d) Article 29 Answer: (b)”