Introduction 

• Polygamy comes from two words: “poly,” which means “many,” and “gamos,” which means “marriage.” As a result, polygamy relates to marriages that are several.  
• Polygamy was abolished among Hindus, Buddhists and Sikhs after the enactment of the Hindu Marriage Act, 1955 (HMA). 
• Polygamy is banned among Christians by the Christian Marriage Act, 1872 and among Parsis by the Parsi Marriage and Divorce Act, 1936, however, polygamy continues to be practiced by Muslims because of the protection by the Muslim Personal Laws (Shariat) Act 1937. 

Polygamy and Muslim Law 

• A Muslim man may have as many as four wives at the same time but not more. 
• However, this rule does not apply on Muslim women. 
  • A Muslim woman has to divorce her first husband before contracting second marriage. 
• If he marries fifth wife the marriage will not be void, rather it will be irregular (fasid). 
• Effect of an Irregular Marriage 
  • An irregular marriage may be terminated by either party either before or after consummation by words showing an intention to separate. 
  • An irregular marriage has no legal effect before consummation. 
  • If consummation has not taken place: 
    • The wife is entitled to dower, proper or specified whichever is less. 
    • She is bound to observe iddat but the duration of iddat both on divorce and death is three course. 
    • The issue of the marriage is legitimate. 
    • An iregular marriage though consummated does not create mutual rights of inheritance between husband and wife. 

Landmark Case Laws Relating to Polygamy 

• Javed v. State of Haryana (2003) 
  • It may be permissible for Muslims to enter into four marriages but no religion dictates or mandates an obligation to enter into polygamy. 
  • “Polygamy is injurious to public morals and can be superseded by the State just as practice of ‘Sati’.” 
• Sarla Mudgal v. Union of India (1995) 
  • The question was whether a Hindu husband married under the Hindu law, by embracing Islam, can he solemnize a second marriage? The Supreme Court held that a change of religion does not permit a person to defeat the provisions of law and to commit bigamy. 
• State of Bombay v. Narasu Appa Mali (1951) 
  • The Bombay High Court ruled that the Bombay (Prevention of Hindu Bigamy Marriage) Act, 1946 was not discriminatory. 
  • The SC ruled that a state legislature has the authority to enact measures for public welfare and reforms, even if it violates the Hindu religion or custom. 
• Parayankandiyal v. K. Devi & Others (1996) 
  • The Supreme Court (SC) concluded that monogamous relationships were the standard and ideology of Hindu society, which scorned and condemned a second marriage. 
  • Polygamy was not allowed to become a part of Hindu culture due to the influence of religion. 
• PK Mukmuthu Sha v. PS Mohammed Afrin Banu (2023) 
  • The Madras High Court observed that although Islamic Law allowed a husband to have polygamous marriages, he was obligated to treat all the wives equally.  
  • The bench of Justice RMT Teekaa Raman and Justice PB Balaji thus confirmed a family court order allowing dissolution of marriage finding that the husband had treated the wife with cruelty by not treating her on par and equally with the second wife. 
• Yusufpatel v. Ramjanbi (2020) 
  • The Karnataka High Court observed that even though contracting a second marriage by a Muslim husband is lawful, it often causes "enormous cruelty" to the first wife, justifying her claim for divorce. 

Presumptions in Favour of Constitutional Validity of Polygamy 

• Not Violative of Article 14 (Equality) 
  • Article 14 guarantees equal treatment and equal protection of laws 
  • Intelligible differentia or Separate treatment is often needed for different classes of society. 
• Not Violative of Article 21 (Right to Life) 
  • Article 21 includes the right to quality of life which includes the right to choose one's life partner and marriage law. 
  • It protects privacy and personal intimacies of family life and marriage. 
• Protected Under Article 25 (Freedom of Religion) 
  • Article 25 protects freedom to practice religion, including rituals and ceremonies. 
  • Polygamy is understood as a common practice permitted by Islam. 
  • Courts have held they cannot interfere with religious communities' customary rights and beliefs. 
  • Personal laws are beyond the scope of Article 13(1) and cannot be challenged under Part III of the Constitution. 

Evolution of Constitutional Validity of Polygamy 

Grounds for Challenging the Constitutional Validity of Polygamy 

• Bharatiya Nyaya Sanhita, 2023:  
  • The provisions of Bharatiya Nyaya Sanhita, 2023 (BNS) apply on all Indian citizens and polygamy is an offence under Section 82 of BNS. It was previously punishable under Section 494 of the Indian Penal Code, 1860 (IPC). 
  • It is well settled that common law has primacy over the Personal Laws. 
• Unconstitutionality of Section 2 of the Muslim Personal Law (Shariat) Application, Act:  
  • Section 2 of the Muslim Personal Law (Shariat) Application, Act be declared unconstitutional and violative of Articles 14 (right to equality), 15 (discrimination on ground of religion) and 21 (right to life) of the Constitution, insofar as it seeks to recognise and validate the practice of polygamy. 
    • Section 2 of the Muslim Personal Law (Shariat) Application Act provides that notwithstanding any custom or usage to the contrary, in all questions regarding intestate succession, special property of females including personal property inherited or obtained under contract or gift or any other provision of personal laws, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments), the rules of decision in cases where the parties are Muslims, shall be the Muslim Personal Law (Shariat).  
• Arbitrary or Unjust: 
  • The Constitution neither grants any absolute protection to personal law of any community that is arbitrary or unjust, nor exempts personal laws from jurisdiction of the Legislature or Judiciary. 
• Right under Article 25 is not Absolute:  
  • The freedom of conscience and free profession, practice and propagation of religion guaranteed by Article 25 of the Constitution is not absolute and, in terms of Article 25(1), “subject to public order, morality and health and to the other provisions of this Part”. 

Conclusion 

Polygamy is practiced among Muslims in India. This is a legal practice, but it has several unwanted social consequences. It has several constitutional presumptions in its favor which retains the constitutionality of the practice.  However, as per several critics of the practice, it exacerbated the poor condition of women resulting in inequality in the society.