Description

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Picture Courtesy: INDIANEXPRESS

Context

The Assam Legislative Assembly passed a Bill that makes polygamy a cognizable criminal offence in the state.

What is Polygamy?

Polygamy is the custom of having multiple simultaneous spouses (multi-partner marriage), while monogamy involves only two people.

Forms of Polygamy

Polygyny: One man married to multiple wives.
Polyandry: One woman married to multiple husbands.

Its legality varies around the world, being legal in some countries under specific religious laws and illegal in many others.

Prevalence of Polygamy in India

According to the National Family Health Survey (NFHS-5, 2019-21):

The prevalence of polygynous marriages in India has decreased from 1.9% in 2005-06 to 1.4% in 2019-20.
Though legally permitted only for Muslims, NFHS 2019-20 data shows polygyny exists across other communities.

Muslims: 1.9%
Christians: 2.1%
Other religious groups: 1.6%
Hindus: 1.3%

Geographical Concentration: States in the Northeast, with strong indigenous populations, report the highest proportion of women in polygynous unions (e.g., 6.1% in Meghalaya to 2% in Tripura).
Caste and Tribe: Polygyny is most common among:

Scheduled Tribes (2.4%, down from 3.1% in 2005-06).
Scheduled Castes (1.5%, down from 2.2% in 2005-06).

Polygynous marriage is more prevalent among women who are poor, uneducated, rural, and older, suggesting socioeconomic variables are contributing factors alongside geography and religion.

The survey noted a higher prevalence in the Northeastern states, which provides context for the exemption granted to tribal communities in the Assam bill.

Assam's Bill on Polygamy

It aims to establish uniform marital norms for all communities within the state, to address issues of gender justice and women's rights.

Objectives of the Bill

Upholding Gender Justice: Protect the constitutional rights of women to equality (Article 14) and life with dignity (Article 21), which are compromised in polygamous marriages.
Step Towards a Uniform Civil Code (UCC): Precursor to a comprehensive UCC in Assam, fulfilling the directive principle under Article 44 of the Constitution.
Social Reform: Eliminate a practice deemed regressive and detrimental to the social and emotional well-being of women and children.

Constitutional and Legal Framework

State's Legislative Power: 'Marriage and divorce' fall under the Concurrent List (List III) in the Seventh Schedule, granting both the Parliament and State Legislatures the power to legislate on the matter.
Presidential Assent (Article 254(2)): Since the state bill contradicts a central law—the Muslim Personal Law (Shariat) Application Act, 1937—it will require the President's assent to override the central act's provisions within Assam.

Judicial Intervention

Sarla Mudgal vs Union of India (1995): The Supreme Court held that a second marriage by a Hindu man after converting to Islam is void, highlighting the need for a UCC to prevent misuse of personal laws.
Khursheed Ahmad Khan vs State of UP (2015): The Supreme Court clarified that polygamy is not an integral or essential part of the Muslim religion. The right to religion under Article 25 is subject to public order, morality, and health.

Key Provisions of the Proposed Bill

Criminalization: Defines polygamy as a cognizable criminal offense, allowing police to arrest without a warrant.

Punishment: Imprisonment up to seven years and a fine.

Penalty for Abettors: Imprisonment and fines for individuals who solemnize or facilitate a polygamous marriage, including priests, qazis, and family members.

Victim Compensation: Establishes a mechanism to provide financial maintenance and compensation to women who are victims of illegal polygamous unions.

Disqualifications: A person convicted under this law will be ineligible for government jobs, state welfare benefits, and cannot contest any state or local body elections.

Exemptions: The provisions do not apply to members of Scheduled Tribes and areas governed by the Sixth Schedule of the Constitution.

Arguments in Favour	Arguments Against
Promotes gender equality and protects the dignity and rights of women.	Criticised of being politically motivated and selectively targeting the Muslim community.
Acts as a crucial step towards implementing a Uniform Civil Code (UCC).	The exemption for Scheduled Tribes is seen as an inconsistent application of the principle of gender justice.
Aligns with Supreme Court judgments that polygamy is not an essential religious practice.	Critics suggest a comprehensive, consensus-based UCC is better than such legislation.
Follows the precedent of many Muslim-majority nations like Turkey and Tunisia that have banned or restricted polygamy.	Raises constitutional questions regarding its conflict with the central Shariat Act of 1937.

Conclusion

The Assam Prohibition of Polygamy Bill aims to criminalize polygamy, however, it faces criticism for excluding Sixth Schedule areas and Scheduled Tribes, and its legal future depends on Presidential assent and how it handles legal challenges related to potential discrimination.

Source: INDIANEXPRESS

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PRACTICE QUESTION

Q. Discuss how the Constitution balances the freedom of religion with the state’s power to introduce social reform. 150 words

Frequently Asked Questions (FAQs)

It is a law passed by the Assam Legislative Assembly that aims to ban the practice of having more than one spouse in the state. It makes polygamy a cognizable criminal offense with provisions for imprisonment and fines for offenders and those who facilitate such marriages.

The legality of polygamy in India depends on religion. It is illegal and a punishable offense for Hindus, Sikhs, Jains, Buddhists, Christians, and Parsis. However, it is permissible for Muslim men, who are allowed to have up to four wives under the Muslim Personal Law (Shariat) Application Act, 1937.

The Uniform Civil Code (UCC), mentioned in Article 44 of the Constitution, proposes to formulate and implement personal laws for all citizens, irrespective of their religion. State-level UCC bills, like the one passed in Uttarakhand, aim to standardize laws of marriage, divorce, and inheritance. A key feature of such codes is the explicit prohibition of polygamy for all citizens, making monogamy the universal norm.