BIGAMY IN HINDU MARRIAGE: A MYTH OR REALITY

3.3 Family Law

Submitted by: -
Debarpita Pande
UG 2016-17
2nd Year Semester II

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

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 TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................................. II

AIMS AND OBJECTIVES .................................................................................................. III

RESEARCH METHODOLOGY ........................................................................................ III

CHAPTERISATION ............................................................................................................ III

CHAPTER 1 : INTRODUCTION ......................................................................................... 1

CHAPTER 2 : BIGAMY IN HINDU MARRIAGE IS A REALITY ................................. 2

2.1 Position of bigamy in Hindu mythology: ......................................................................... 2

2.2 Polygamy in the Hindu Law Books: ................................................................................ 2

2.3 Position today: .................................................................................................................. 4

CHAPTER 3: HINDU MONOGAMY LAWS VIS A VIS MUSLIM BIGAMY LAWS .. 6

CHAPTER 4: MODIFICATION BY LAW COMMISSION OF INDIA ........................... 8

CHAPTER 5: CONCLUSION.............................................................................................. 10

BIBLIOGRAPHY .................................................................................................................. 11

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 INDEX OF AUTHORITIES
Cases

Daniel Latifi and Anr. V. Union of India, 2001 AIR 3958. ....................................................... 4
Moh. Ahmed Khan v. Shah Bano Begum, 1985 SCR (3) 844 . ................................................ 4
Shamim Era v. State of U.P., [2002]SUPP3SCR19; 2002(2). ................................................... 4

Statutes

Hindu Marriage Act 1961 .......................................................................................................... 1

Indian Penal Code (1864). ....................................................................................................... 10
Special Marriage Act......9

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 AIMS AND OBJECTIVES
The project aims at analysing the situations relating to bigamy in Hindu law and its social and
legal consequences. It also aims to compare it with other laws of other religion like Muslim
laws in India along with that it aims to analyse the requirement of new laws and efficiency and
loopholes of existing laws.

RESEARCH METHODOLOGY
The project is a result of doctrinal method of research. It involved analysation of the present
topic and various other situations along with books and commentaries. It even involved study
of different articles.

CHAPTERISATION
The project develops in five chapters. It begins with the introduction in the 1st Chapter where
it deals with provisions of Hindu Law governing bigamy and then it moves to the second
chapter where the bigamy in Hindu Law is discussed right from the Hindu Shastras and evolved
to the contemporary era and situation. The next chapter deals with the parallel study of bigamy
laws in Muslim and Hindu law. Then it discusses about the modifications made by the Law
Commission of India regarding this matter. Finally the Conclusion deals with the loopholes in
law and some suggestions towards the same.

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 CHAPTER 1 : INTRODUCTION
Section 5 of the Hindu Marriage Act1 stipulates that neither of the party should have a spouse
living at the time of marriage. Section 11 of the Act, renders polygamous marriages void. Due
to this, Hindu men who contract bigamous marriages are allowed to go scot-free without any
legal obligations towards their partners.

Even if there are provisions prohibiting bigamy in Hindu Law it is more or less rampant in
India which will be laid down further rendering the monogamy under Hindu Marriage Act a
myth instead of reality.2

It has raised eyebrows of the nation and it is high time that it requires legal attention looking at
the plight of the women who are suffering because of the loopholes in the law.

1
Section 5, Hindu Marriage Act 1961 (hereinafter referred to as HMA).
2
Rahman, A. (2016). Situating law in the land. The Hindu. [online] Available at:
http://www.thehindu.com/opinion/lead/Situating-law-in-the-land/article16083453.ece [Accessed 1 Oct. 2017].

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 CHAPTER 2 : BIGAMY IN HINDU MARRIAGE IS A REALITY

2.1 Position of bigamy in Hindu mythology:

Polygamy and polyandry were prevalent In ancient India, but it is doubtful whether they were
ever popular in the public opinion. It was practiced mostly by the warrior castes, rich
merchants, and feudal lords. Polygamy in ancient India was a matter of personal choice, a status
symbol and at times a social, moral and religious obligation. Marriage in Hinduism was
traditionally and historically meant for progeny and carrying out obligatory duties
(dharmakaryam) in accordance with a person's dharma (duty) so that the four major aims
(purusharthas) of human life could be realized. If polygamy served such ideals, the Hindu law
books did not object to its practice.3

2.2 Polygamy in the Hindu Law Books:

The Hindu law books (dharmashastras) made provision for polygamy, and certain marriage
relationships under special circumstances, not for the purpose of carnal pleasures, but for
procreation and continuation of family lineage. According to them, a woman had no
independence of her own. She always needed the protection of her closest relations so that she
would not seduce men and bring disrepute to herself and her family. Therefore, it was the duty
of her husband and the male members of his family to keep a close watch on her and never
leave her in the company of other males. If her husband died, leaving her childless and without
care and protection, she had the permission to marry his brother, strictly for the purpose of
begetting children and find a shelter1. A woman whose husband left her for a foreign country
or disappeared for a particular period of time, unless he took sanyasa (renunciation), had the
permission to remarray according to her free will.4

In ancient India, women were often sold and purchased freely and publicly in markets and the
people who purchased them had complete ownership rights over them. It was not same as
slavery, but the purchased women were bound to the households or their masters. The law

3
Jayaram, V. (2017). Hinduism and Polygamy. [online] Hinduwebsite.com. Available at:
http://www.hinduwebsite.com/hinduism/h_polygamy.asp [Accessed 18 Sep. 2017].
4
Vidyarnava, Y. (1918). Yajnavalkya smriti. With the commentary of Vijnanevara called the Mitaksara and
notes from the gloss of Balambhatta. Translated by Rai Bahadur Srisa Chandra Vidyarnava : Yjavalkya ,52-3.
:Free Download & Streaming : Internet Archive. [online] Internet Archive. Available at:
https://archive.org/details/yajnavalkyasmrit00yj [Accessed 4 Sep. 2017].

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books declared any marriage between a man and any women he purchased as illegal. The
Yagnavalkya Smriti, a Hindu law book, stipulates that men should marry women who were not
married before. However, the same rule was not mentioned in case of men. The scripture
suggests that if "a man's wife drinks alcohol, is sickly, cantankerous, barren, wastes money,
quarrelsome, begets only female children or is hostile to men, then he may take another wife."
However in the next verse there is a clear indication that the superceded wife should still be
maintained and not abandoned. Yagnavalkya also suggested that if a man had many wives, he
should not ask a younger wife to perform religious duties with him.5

The Baudhayana Dharmashastra, another Hindu law book, prescribes the following rules
regarding the number of wives and the status of children borne out of such wedlocks.6

There are four castes (varna, viz.) Brhmanas, Kshatriyas, Vaisyas, and Sdras. Males
belonging to them may take wives according to the order of the castes, viz. a Brhmana four,
a Kshatriya three, a Vaisya two and a Sdra one. Sons begotten on wives of equal or of the
next lower castes are called Savarnas of equal caste. Those born of(wives of the second or third
lower castes become Ambashthas, Ugras, and Nishdas. Of females wedded in the inverse
order of the castes are born yogavas, Mgadhas, Vainas, Kshattris, Pulkasas, Kukkutakas,
Vaidehakas, and Chandlas.

Many Hindu gods are also depicted as polygamous, with two or more wives. The goddesses
are not actually wives in the physical sense but pure universal energies who assist their gods to
maintain dharma (good order) in the universe. They do not possess physical bodies, though
they can appear in human form if they want to. If we study the history of ancient India, we
realize that polygamy and polyandry were practiced by the rich and the powerful, while the
sages and seers were strictly monogamous or completely celibate. We also notice that whether
it was in the past or in the present, polygamy was never a popular practice in the public opinion.
Yet in the epics and the Puranas we cannot fail to notice the prevalence of the practice and the
tensions and the obstacles it created in the families and in the performance of obligatory duties.
Lord Rama, an incarnation of Vishnu, was strictly monogamous, a practice that was probably
in accordance with the moral standards of Treta yuga (the second great epoch) in which he
incarnated. In contrast, Lord Krishna, another incarnation of Vishnu, who incarnated in the

5
Baudhayana prasna i, adhyya 8, kandik 16, verses 1-8, Bhler, G. (2017). Introduction to the Baudhayana
Dharma Sutra. [online] Hinduwebsite.com. Available at:
http://www.hinduwebsite.com/sacredscripts/hinduism/dharma/bau_intro.asp [Accessed 6 Sep. 2017].
6
Ibid.

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following Dwapara yuga, was polygamous. The Pandavas, to whom he was related through his
sister, practiced both polyandry and polygamy. It was a sign of the declining moral standards
and growing decadence of society, as a part of the progression of human society, in which the
Eternal Dharma was meant to decline gradually from order to disorder, from monogamy to
polygamy to mixed marriages to, finally, sham marriage or no marriage.7

2.3 Position today:

The recent comments of Justice Markandey Katju, a retired Supreme Court judge, in support
of the uniform civil code on the ground that the Muslim personal law is barbaric, backward
and unjust has raised many eyebrows. Citing the reversal of the controversial ruling in the
Shah Bano8 case, these comments seem to lend support to the political agenda of the present
government. Coming from a legal luminary, these comments sound almost pedestrian as they
overlook the gains made by the apex court during the last three decades since the Shah Bano
ruling in 1985, more particularly the path-breaking judgments such as Shamim Ara9 (2002)
and Daniel Latifi (2001)10 which have placed Muslim womens rights on a firm ground,
outlawing arbitrary triple talaq as well as securing the post-divorce economic rights of Muslim
women. Ironically, it is Justice Katjus own judgments such as D. Velusamy (2010) which have
placed the rights of Hindu women on a precarious footing.11

There had been several earlier rulings which had upheld the rights of Hindu women in
bigamous relationships by invoking a legal premise that marriage need not be strictly proved
while awarding maintenance under section 125 of CrPC. But one negative judgment, can
thwart these efforts. It is ironic that in the past 60 years there has not been a sustained campaign
to secure the rights of such women. The Velusamy ruling which labelled such women as
mistresses, keeps and concubines has served to add insult to injury.12

7
Jayaram, V. (2017). Hinduism and Polygamy. [online] Hinduwebsite.com. Available at:
http://www.hinduwebsite.com/hinduism/h_polygamy.asp [Accessed 18 Sep. 2017].
8
Moh. Ahmed Khan v. Shah Bano Begum, 1985 SCR (3) 844 .
9
Shamim Era v. State of U.P., [2002]SUPP3SCR19; 2002(2).
10
Daniel Latifi and Anr. V. Union of India, 2001 AIR 3958.
11
Jamal, A. (2016). Is the Hindu marriage legislation divorced from reality?. Herald. [online] Available at:
https://herald.dawn.com/news/1153359 [Accessed 4 Sep. 2017].
12
DMello, A. (2014). The myth of Hindu monogamy. The Kashmir Monitor. [online] Available at:
https://www.kashmirmonitor.in/Details/73754/the-myth-of-hindu-monogamy [Accessed 4 Sep. 2017].

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Official reports brought out in 1974, almost 20 years after the enactment of the Hindu Marriage
Act (Towards Equality) highlighted the disturbing fact that polygamy among Hindus,
Buddhists and Jains (communities governed by the codified Hindu law) is higher than among
Muslims (Muslims 5.6 per cent, Hindus 5.8 per cent, Jains 6.7 per cent, Buddhists 7.9 per cent).
These percentages conceal the actual number of women who live in legally invalid marriages,
which is huge. Around 65 per cent of the Hindu women who approach us for help are trapped
in these situations.

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 CHAPTER 3: HINDU MONOGAMY LAWS VIS A VIS MUSLIM BIGAMY LAWS

Section 5 of the Hindu Marriage Act stipulates that neither of the party should have a spouse
living at the time of marriage. Section 11 of the Act, renders polygamous marriages void. Due
to this, Hindu men who contract bigamous marriages are allowed to go scot-free without any
legal obligations towards their partners.13

Faced with this travesty of justice, it is important to compare the legal provisions under the
Muslim Personal Law:

Muslim marriage is a contract, hence the consent of a bride is essential;

Women can stipulate conditions which are binding (including monogamy) in the marriage
contract;

Mehr which is stipulated on the basis of the husbands status at the time of Nikah, is the
exclusive property of the wife;

The right of khula through which the wife can dissolve her marriage;

Muslim men who marry more than once are legally bound to fulfil their legal and social
obligations towards each wife including residence and maintenance. An un-Islamic or arbitrary
talaq does not extinguish the rights of a Muslim wife.14

Apart from approaching a darrul-qaza, Muslim women can also approach a civil court to
safeguard their right of maintenance, return of her mehr, custody of children or for dissolution
of marriage under the civil law and for a fair and reasonable settlement upon divorce.15

Despite this, there is a skewed perception that Muslim women have no rights because the
Muslim law is barbaric. It is rather shocking that even a jurist of Justice Katjus stature endorses
this view. This notion has also been internalised by some Muslim womens groups, who wish
to reform the Muslim law along the lines of the Hindu Marriage Act. For instance, a draft
prepared by a group, Bharatiya Muslim Mahila Andolan, attempts to ban Muslim polygamy.

13
Ibid.
14
D'Mello, A. (2014). The myth of Hindu monogamy. Deccan Chronicle. [online] Available at:
http://www.deccanchronicle.com/141023/commentary-op-ed/article/myth-hindu-monogamy [Accessed 4 Sep.
2017].
15
Menski, W. (2012). Hindu law:Beyond Tradition and Modernity. New Delhi: Oxford University Press.

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Feminist legal scholar Flavia Agnes has cautioned that attempts to codify the Muslim law to
bring in legal monogamy should not end up subjecting Muslim women to a plight which is
similar to that of the Hindu second wife. That polygamy cannot be controlled by codification
is a painful lesson which multitude of Hindu women have learnt.

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 CHAPTER 4: MODIFICATION BY LAW COMMISSION OF INDIA

The Law Commission has recommended amendments to the Hindu Marriage Act (HMA) and
other personal laws to the effect that a person whose marriage is governed by such legislation
cannot marry again even after changing religion unless the first marriage is dissolved or
declared null and void.16

In its 227th report submitted to the Union government on Wednesday, the Commission, headed
by Justice A.R. Lakshmanan, also suggested that amendments be made in the Criminal
Procedure Code to make bigamy a cognisable offence.17

It said: For a long time, married men whose personal law does not allow bigamy have been
resorting to the unhealthy and immoral practice of converting to Islam for the sake of
contracting a second bigamous marriage under a belief that such conversion enables them to
marry again without getting their first marriage dissolved.

The Supreme Court outlawed this practice by its decision in 1995, and reaffirmed it again in
2000. In view of this, the Commission took a suo motu review of the subject for examination
of the legal position to suggest changes in family laws.

The Commission said: The law of monogamy under the HMA is indeed full of serious
shortcomings and loopholes. Combined with the Acts provisions relating to marriage rites, it
provides in-built devices for easy avoidance of all the consequences of its violation.

The Commission, accordingly, recommended insertion of Section 17-A after 17 in the HMA
to the effect that if such a marriage is contracted it will be null and void and shall attract
application of Sections 494 and 495 of the Indian Penal Code [relating to bigamy]. A similar
provision be inserted in the Christian Marriage Act, 1872; the Parsi Marriage and Divorce Act,
1936; and the Dissolution of Muslim Marriages Act [DMMA], 1939.

The proviso to Section 4 of the DMMA, saying that this Section would not apply to a married
woman who is originally a non-Muslim if she reverts to her original faith, should be deleted.

In the Special Marriage Act, 1954, a provision should be inserted to the effect that if an existing
marriage, by whatever law governed, becomes inter-religious due to a change of religion by

16
The Hindu (2010). Law Commission: make bigamy, on change of religion, an offence. [online] Available at:
http://www.thehindu.com/todays-paper/tp-national/Law-Commission-make-bigamy-on-change-of-religion-an-
offence/article16530213.ece [Accessed 4 Sep. 2017].
17
Ibid.

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either party, it will thenceforth be governed by the SMA, including its anti-bigamy provisions,
the report said.

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 CHAPTER 5: CONCLUSION

It is evident from the scenario in the society that the bigamy in Hindu Law is no more a myth,
it is indeed a harsh reality detrimental to the respect and rights of the women. It is high time to
curb the loopholes of the Hindu laws of bigamy with stringent penalty provisions and
punishments.

Section 494 of the Indian Penal Code states that Marrying again during lifetime of husband
or wife: Whoever having a husband or wife living, marries in any case in which such marriage
is void by reason of its taking place during the life of such husband or wife shall be punished
with imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine. Exception to this section is that it does not extend to any person whose
marriage with such husband or wife has been declared void by a court of competent jurisdiction,
nor to any person who contracts a marriage during the life of a former husband or wife, if such
husband or wife, at the time of the subsequent marriage shall have been continually absent
from such person for the space of seven years, and shall not have been heard of by such person
as being alive within that time provided the person contracting such subsequent marriage shall,
before such marriage takes place, inform the person with whom such marriage is contracted of
the real state of facts so far as the same are within his or her knowledge.18

Here when the former marriage is being declared void then the wife is the sufferer without she
being guilty of anything. This part should be reconsidered and there should be relief provide to
the woman who had married the man.

18
Section 494. Indian Penal Code (1864).

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 BIBLIOGRAPHY

Newspaper Articles:

1. Rahman, A. (2016). Situating law in the land. The Hindu.

2. Jamal, A. (2016). Is the Hindu marriage legislation divorced from reality?. Herald.

3. DMello, A. (2014). The myth of Hindu monogamy. The Kashmir Monitor.

4. The Hindu (2010). Law Commission: make bigamy, on change of religion, an offence.

Books:

1. Baudhayana prasna i, adhyya 8, kandik 16, verses 1-8, Bhler, G. (2017).

Introduction to the Baudhayana Dharma Sutra.

2. Vidyarnava, Y. (1918). Yajnavalkya smriti. With the commentary of Vijnanevara

called the Mitaksara and notes from the gloss of Balambhatta. Translated by Rai
Bahadur Srisa Chandra Vidyarnava.

3. Menski, W. (2012). Hindu law:Beyond Tradition and Modernity.

Others:

1. Law Commission Reports.

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