Opinion: The Importance Of Banning Polygamy In India

Following the Law Commission's call for public input on the Uniform Civil Code (UCC) and the subsequent mention by Prime Minister Narendra Modi, a considerable amount of commentary has been generated on the topic. Some have endorsed the UCC citing equality and gender justice. Others have criticized it saying it won't take into account the country's diverse socio-cultural realities. In this column, we delve into the contentious matter of polygamy, a practice that is problematic. Polygamy, a custom entrenched in certain cultural and religious practices, can lead to serious repercussions in terms of gender equity and justice. A retired High Court Judge-led Panel in Assam has recently recommended Assam government to ban polygamy. Subsequently,  the media reports suggest that Assam is planning to bring in a law banning polygamy this financial year. 

Traditionally, polygamy has been prevalent in India. The Hindu Marriage Act, 1955, outlawed this practice for Hindus. Ditto for Sikhs, Jains, and Buddhists through their respective personal laws. It is also forbidden under the Special Marriage Act, 1954, which enables inter-religious marriages. However, polygamy is permissible for Muslims under the Shariat Protection Act. Also, polygynous marriages are common in many tribal communities.

As a result, there have been cases of people converting to Islam to remarry without the legal dissolution of their first marriage. The Supreme Court declared such conversions solely for the purpose of a second marriage as invalid in the 1994 Sarla Mudgal verdict.

The verdict was reiterated in the case of Lily Thomas v. Union of India. These judgements have aimed to prevent the misuse of religious freedom to circumvent laws against polygamy, emphasizing that the legal dissolution of the first marriage is necessary prior to conversion and remarriage.

However, this approach presents complex social and legal challenges. It is the second wife and children born from such marriages that bear the brunt of this injustice. It becomes difficult for them to exercise their rights to maintenance and inheritance.

Thus, such conversions for remarriage tend to create legal ambiguities and can lead to social and familial strife.

In March 2023, however, a bench comprising Chief Justice DY Chandrachud, Justices PS Narasimha and JB Pardiwala was requested by Ashwini Upadhyay to hear cases on the constitutionality of polygamy and nikah halala. To which, the Chief Justice responded: "I will consider it. At an appropriate stage, I will constitute a Constitution bench". The court's decision to reexamine the validity of polygamy can be seen as part of its broader commitment to promoting gender equality and protecting the rights of women.

Polygamy has been subject to feminist criticism due to its implications for gender inequality and the subjugation of women. Feminist scholars argue that polygamy perpetuates patriarchal power structures. At the same time, it also reinforces the unequal treatment of women within marriage and the family. Some scholars contend that polygamy allows men to have multiple wives, while women are limited to one husband, resulting in a power imbalance and the unequal distribution of resources. This power imbalance is exacerbated by societal norms. Such norms often burden women with more family responsibilities than men, even when they seek work outside the home.

A study from Emory University noted increased levels of violence toward women and children in polygamous relationships, and that abuse can come from both husbands and co-wives. As India strives for social harmony and unity amidst its diverse religious and cultural practices, it is crucial to promote practices that uphold the principles of equality and justice. Polygamy, particularly when it's associated with religious conversion solely for the purpose of a second marriage.

There is also a need to highlight the economic dependency of women on their husbands, which can lead to vulnerability, exploitation, and fear of divorce. The multiple wives often are solely economically dependent on their husbands. As a result, this limits their autonomy and agency within the marriage. This economic dependency perpetuates gender inequalities and restricts women's ability to make independent decisions.

Feminist scholars argue that polygamy reinforces the notion of women as unequal to men and perpetuates the subjugation of women. Polygamy also disempowers women in their sexual relationships and reflects a culture of misogyny. It is viewed as a form of male privilege and control over women's lives.

But despite being practised by some groups, polygamy is not widespread in India, according to the National Family Health Survey-5. The prevalence of polygamy was 2.1% among Christians, 1.9% among Muslims, 1.3% among Hindus, and 1.6% among other religious groups. These low prevalence rates indicate a general societal move away from this practice, suggesting that a ban may be in line with evolving social attitudes.

Drawing upon the philosophical frameworks provided by the likes of John Stuart Mill and Simone de Beauvoir, the discussion of individual liberty and equality highlights the troubling dimensions of polygamy. Mill, a staunch proponent of individual freedom, argued that such freedom is only limited when it begins to harm others, which can be seen in the practice of polygamy that inherently generates harm through power imbalances and gender inequity. Simon de Beauvoir's feminist philosophy advocates the liberation of women from oppressive societal structures, clearly opposing systems like polygamy that diminish women's agency.

The economic, psychological, and social ramifications of polygamy further underscore these inequities, creating a precarious and unjust situation for women. The views of contemporary scholars, the societal trend away from polygamy, and the potential negative impact all affirm the necessity of a ban. As we collectively strive for an equitable society, it is essential to reassess practices such as polygamy that impede such progress and continue to subvert the principle of equal rights. Outlawing polygamy would not only uphold the societal march towards equality and justice but would also resonate with the philosophical underpinnings of freedom, equity, and respect for all individuals.

(Bibek Debroy is the Chairman, Economic Advisory Council to the Prime Minister (EAC-PM) & Aditya Sinha is Additional Private Secretary (Policy & Research), EAC-PM.)

Disclaimer: These are the personal opinions of the authors.