Bigamy And The Uniform Civil Code
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Category: General Law
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BIGAMY AND THE UNIFORM CIVIL CODE
Varidhi Khaitan, Bhavya Sharma & Dhruv Parag Kulkarni, O.P. Jindal Global Law School
ABSTRACT
The paper critically examines the legal, social, and constitutional dimensions of bigamy in India and explores what the recently enacted Uttarakhand Uniform Civil Code has to say with respect to this age-old problem. The study traces the historical evolution of bigamy from its religiously regulated origins to its criminalization under the Indian Penal Code and the Bhartiya Nyaya Sanhita, underlining the inconsistencies inherent in India's plural personal-law framework - in particular, the differential treatment accorded to bigamy under Muslim personal law and the customary autonomy extended to Scheduled Tribes. The analysis argues that such tolerance for polygamy, as decreed by Muslim law, furthers significant gender-based disparities and causes emotional and economic harm to women and children, further exacerbating broader social instability.
By evaluating the ban on bigamy within the Uttarakhand UCC, the study also shows that a uniform regime can further gender justice, social harmony, and constitutional equality and may possibly rationalize marriage regulation. Simultaneously, however, it questions the continued indulgence granted to Scheduled Tribes within the code and argues that such indulgence deprives the code of its asserted purpose of uniformity. The paper draws comparative lessons from Goa's Portuguese Civil Code, recommending that a Pan-Indian uniform civil code is still a necessity to align family law to constitutional goals and eradicate discriminatory personal-law exemptions.
It concludes by emphasizing that what is required is a balanced, inclusive uniform civil regime that would ensure equality, protect vulnerable spouses and children, and uphold India's commitments to monogamous, rights-based family structures.
CURRENT STANDING OF BIGAMY
In the Indian legal tradition, until the enactment of the Indian Penal Code in 1860, the question of how many spouses a man can have was in the exclusive domain of religion. The rules and regulations related to this practice were found in religious legal texts. Earlier, neither the traditional Hindu law nor Islamic law prohibited bigamy. This imposition of monogamy was brought on by the British as they sought to align the Indian system with the British system, wherein their local ecclesiastical courts punished those indulging in bigamy. Lord Macaulay created sections 494 and 495 (bigamy punishment and concealment) within the IPC to tackle polygamy. This legislature directly opposed local religious practices and imposed a colonial set of rules on the local population.
1 The Bhartiya Nyaya Sanhita defines bigamy under section 82- as the act of marrying another person while a previous marriage is still valid. 2 The position of Indian legislatures on the topic of bigamy is one-sided, with most personal laws strictly prohibiting the practice. The Hindu Marriage Act, 1955 (which includes Hindus, Jains, Sikhs and Buddhists), the Parsi Marriage and Divorce Act, 1936, the Indian Christian Marriage Act, 1872, as well as the Special Marriage Act, 1954, expressly prohibit bigamous marriages and render them void. On the other hand, the Muslim personal law has a contrasting view, permitting a Muslim man to have up to four wives simultaneously. It is this difference in views within the same legal system that creates convolution and thus the need for a Uniform Civil Code.
Under the Sharia law, a man can have four wives at the same time, if he treats them equally in all aspects, including financial support, affection and rights. This is in accordance with the teachings of the Quran in Surah An-Nisa (4:3). Although this practice is allowed, it is rarely seen amongst Indian Muslims as many prefer monogamy due to economic reasons. The Supreme Court has pointed out in many cases that polygamy, although allowed, is not an essential and important religious practice under Islam. 3 Another talking point is about the treatment of Scheduled Tribes (STs) under these personal 1 Kiran B. Jain, Vice of Bigamy and Indian Penal Code: Ramifications of an Archaic Law, 32 J. Indian L. Inst. 386, 386–399 (1990), https://www. jstor. org/stable/43952311. 2 Ministry of Home Affairs, The Bharatiya Nyaya Sanhita, 2023, No. 45 of 2023, Dec.
25, 2023, Ministry of Home Affairs, Government of India, https://www. mha. gov. in/sites/default/files/250883_english_01042024. pdf. 3 Xperts Legal, Bigamy in India: A Legal Overview, Xperts Legal (blog), https://xpertslegal. com/blog/bigamyin-india-a-legal-overview/.
laws. STs have been excluded from the Hindu Marriage Act under section 2(2) which expressly states that the Act does not apply to members of STs unless the Central Government specifically directs otherwise. This exemption finds justification under Articles 25 (guarantees the fundamental right to freedom of religion, ensuring that all individuals can freely profess, practice, and propagate their religion) and 29 (protects the cultural and educational rights of minorities by guaranteeing their right to conserve their distinct language, script, or culture, and by prohibiting discrimination in state-maintained or aided educational institutions based on religion, race, caste, or language.
It is part of the fundamental rights and ensures these communities can preserve their heritage and have equal access to education) of the Constitution which recognize and protects the autonomy of tribal customs and practices. They primarily follow their own uncodified or documented customary laws and traditions for marriage, which are considered valid. These customary laws may or may not permit bigamy for the tribe. The Uniform Civil Code implemented in Uttarakhand does not cover Scheduled Tribes either, this has brought mixed reactions from the public as the STs appreciate the exclusion, as it protects their independence, whereas others argue that since the civil code is “Uniform”, it shall apply to all, and an exclusion defeats the purpose. 4 In the case of Sarla Mudgal v.
Union of India (1995) the core question was that can a Hindu husband who wants to marry a second time, have the option of converting to Islam to take advantage of the allowance of bigamy under Muslim law? The court found that mere conversion does not dissolve a Hindu marriage. A marriage celebrated under the Hindu Marriage Act can solely be dissolved through legal proceedings of divorce under section 13 of the act. The changing of religion does not automatically end the marriage. The court ruled that a second marriage by a Hindu husband, after conversion to Islam, without the dissolution of the first marriage, is void. Such a person would be guilty of bigamy which is a crime punishable by up to 7 years of prison time and a fine under 494 IPC (82 BNS).
The court expressed that permitting conversion just to evade monogamy would render the Hindu Marriage Act, which imposes strict monogamy, meaningless. It declared that conversion solely for the sake of getting remarried cannot be held good in law. The court considered that such behaviour 4 Tanmayee Tyagi, UCC: Debate Simmers over Scheduled Tribes’ Exclusion, Times of India (Feb. 9, 2024), https://timesofindia. indiatimes. com/city/dehradun/ucc-debate-simmers-over-scheduled-tribesexclusion/articleshow/107542234. cms.
contradicts justice, equity, and good conscience, as it takes away the sole purpose of introducing the concept of monogamy with the HMA.
OPINION ON BIGAMY
Families are the building blocks of a society. The creation of a family begins with marriage, which functions as both a social and legal institution that unites individuals in mutual commitment and responsibility. The provisions and issues of the laws governing marriage not only has a crucial role in shaping families but also an important role in impacting society, gender equality, overall social harmony, and the moral and cultural framework of a community. The Muslim personal law allowing bigamy raises concerns which indirectly also impacts how society functions. Permitting only husbands to have more than one wife, while prohibiting the same for wives, reflects clear gendered injustice in the society, while undermining the concept of mutuality and equality in a marriage.
Furthermore, bigamy creates demographic imbalance by increasing the number of unmarried men compared to women and disturbing the ratio between married men and women in society. The practice of bigamy under the Muslim personal law contradicts the idea of modern democratic society. It seeps in the practice of patriarchy in the family system, and a general idea is assumed by people that females are subordinate to their husbands, enforcing the idea of male dominance in the family structure. This affects the individual identity of women and social harmony and justice at large. Although the Quran emphasizes equal treatment of all wives by the husband, this is not reflected in the actual practice of bigamy under Muslim personal law. In reality, women may feel inequalities in terms of financial, emotional and sexual support- “It is the women who must bear the brunt of bigamy/polygamy.
As, men proceed to marry without officially going through a divorce and positioning their wife through all sorts of mental harassment, simply because of the Muslim Law that allows them to keep four wives. It is an open case of violation of the fundamental and human rights of women. It is a way of treating their wives as chattel. Studies have also reported a higher ratio of somatization, depression, anxiousness, aggression, psychoticism and psychiatric disorders where bigamy has occurred. The wives have additionally suffered with a reduced life, no marital satisfaction, a baffled
family functioning and low self-worth. All this is due to the fact that it is highly distressing for a woman to see her husband commit polygamy out of lust, or with a mindset to have children at a faster rate than Hindus by taking advantage of Sharia to legitimatize their actions”5 It is also important to take into consideration the interest of the offsprings in marriages of bigamy. Children in such families, where bigamy is practiced, may face emotional and psychological challenges, unequal treatment, and may be affected due to uncertainty over inheritance, parental responsibility and financial support. Such provisions of bigamy also challenge section 14 and 15 of the constitution of India which reflects idea of equality and nondiscrimination.
In addition, as such laws still prevails people may convert more frequently to Muslim to be governed under the Sharia law, with the sole intention to practice bigamy. This conversion as reflected in Sarla Mudgal v. Union of India case mentioned above, raises legal and social concerns. Conversion for convenience can affect communal rights and be perceived exploitative. Therefore, a Uniform Civil Code is required to prevent such misuse of personal law. The Hindu Marriage Act, 1955 (which Hindus, Jains, Sikhs and Buddhists), the Parsi Marriage and Divorce Act, 1936, the Indian Christian Marriage Act, 1872, as well as the Special Marriage Act, 1954, rightly prohibit bigamy as it protects the rights of spouses and children. It enforces equality, justice, stability, social harmony, fairness and mutual respect in marriage, and reflects the idea of mutual commitment.
These laws recognize that a stable family structure is essential to maintain social stability.
BIGAMY LAWS IN THE UTTARAKHAND CIVIL CODE
Uniform civil code is a common set of laws governing various facets of civil life, including marriage, divorce, adoption, and inheritance, it is intended to replace religiously based personal laws. Promoting gender equality, secularism, and the fundamental rights protected by the Indian Constitution are the goals of the UCC. “The term 'civil code' means a law which is related to civil matter and precisely "civil code" refers to a branch of law which is total codification of civil legislation. When the ‘Uniform' adjective is used with 'Civil Code', it refers to a code which is uniformly applicable to all the
5 Parul Khera, Bigamy: An Unfair Practice Against Women, The Hans India (July 24, 2021),
https://www.thehansindia.com/news/national/bigamy-an-unfair-practice-against-women-697706.
citizens. Thus, “Uniform Civil Code" refers to a code which is a collection of legal rules which are applied to all the citizens uniformly.”6 Laws introduced in Uttarakhand civil code under bigamy are- Section 4 of the Uttarakhand Uniform Civil Code (UCC) Act, 2024 prohibits bigamy by stating that a valid marriage can only occur if "neither party has a spouse living at the time of the marriage". This condition is one of five requirements listed for a valid marriage under the code. Section 4(1): Specifies that neither party can have a living spouse at the time of the marriage, which bans bigamy and polygamy. Under section 4 of the Uniform Civil Code Bill, the government listed five conditions for the solemnisation of marriage between a man and a woman. The marriage will be only considered valid if-
1. Neither party has a spouse living at the time of the marriage.
2. At the time of the marriage, neither party-
(a) is incapable of giving valid consent in consequence of unsoundness of mind; or (b) though capable of giving valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage; or (c) has been subject to recurrent attacks of insanity.
3. The man has completed the age of twenty-one years and the woman the age of eighteen
years.
4. The parties are not within the degrees of prohibited relationship unless the custom or usage
governing one of them permits marriage between the two. Provided that such customs and usage are not against public policy and morality. 6 Siddharth Singh, Unraveling the Uniform Civil Code (UCC): Evolution, Implications, and Challenges in Contemporary India, 4 Int’l J. Crim., Common & Stat. L. 45, 45–49 (2024), https://www.criminallawjournal.org/article/67/4-1-13-452.pdf.
5. The marriage is not prohibited under any law in force.7
ASSESSMENT OF BIGAMY CONCERNING UTTARAKHAND CIVIL CODE
The State of Uttarakhand covers an area of 53,483 sq km, which is 1.63% of the geographical area of the country.8 The population of Uttarakhand forms 0.83 percent of India as per details from Census 2011. Hinduism is majority religion in state of Uttarakhand with 82.97 % followers. Islam is second most popular religion in state of Uttarakhand with approximately
13.95 % following it.9 It is believed that numerically Uttarakhand has only 0.16 percent of the
total tribal population of India. 10 The introduction and implementation of the civil code in Uttarakhand marks a significant step towards forming a stable social framework within the state by taking a notable step of prohibiting bigamy. It creates uniformity among the people of the state where each religion ought to follow the code irrespective of their personal laws. The code gets rid of the complicated and ambiguous laws within the state and upholds the constitutional principle of equality and gender justice. Implementation of the code is also a major step towards meeting the constitutional goal mentioned in Article 44 of the Constitution, which envisions the establishment of a Uniform Civil Code for all citizens. The code not only protects and promotes the rights of women but also brings in gendered neutral ideas in the state.
Historically women have always been placed in a vulnerable and subordinate position in the society. However, Uttarakhand breaks this stereotype and brings them in equal position to men and promotes mutuality and equality in marriages. We believe that Uttarakhand has taken the first progressive step as it addresses longstanding issue of bigamy. Out of all the states in the county, Uttarakhand although having small population has set up an example for the rest of the states. It is strengthening the legal framework of Uttarakhand and other states should also take similar steps for the welfare of families and society at large. Since ages women are stuck in the same loop, experiencing the
7 Devesh Kumar, Uttarakhand UCC Bill Bans Bigamy, Polygamy; Lists 5 Conditions for Solemnisation of
Marriages, Mint (Feb. 6, 2024), https://www.livemint.com/news/india/uttarakhand-ucc-bill-bans-bigamypolygamy-lists-5-conditions-for-solemnisation-of-marriages-11707214319642.html.
8 Forest Survey of India, India State of Forest Report 2019: Vol. II Uttarakhand 2019, FSI,
https://fsi.nic.in/isfr19/vol2/isfr-2019-vol-ii-uttarakhand.pdf.
9 Uttarakhand Population 2025 | Sex Ratio & Literacy Rate 2025, Census2011.co.in,
https://www.census2011.co.in/census/state/uttarakhand.html. 10 Digar Singh Farswan, Tribes in Uttarakhand: Status and Diversity, 4 Int’l J. Multidisciplinary Rsch. & Dev. 89, 89–93 (Jan. 2017), https://www.allsubjectjournal.com/assets/archives/2017/vol4issue1/4-1-37-946.pdf.
very same difficulties in marriage. However, in Uttarakhand, women no longer need to suffer, they are free from the cycle of rudimentary social practices. Personal relationships are now governed by respect and fairness, outdating all the stereotypes. In polygamous families, competition among spouses often leads to jealousy, emotional neglect, and conflict. Children from different spouses may experience discrimination and insecurity, affecting their mental well-being and sense of belonging. This result in domestic instability spreads in broader society which increases social tensions. A society is made up of families and marriage, and related laws play a crucial part in how
families are formed, meaning marriage and related laws play a big part in shaping the composition of society. Not only do they govern who can marry who but also the responsibilities of the parties in a marriage. By having strict laws against bigamy which apply to all, the legislative wing can make sure that second wives are not subjected to emotional and financial neglect. Also, to prevent bigamy, the UCC should also simplify divorce proceedings, so parties are not bound by their previous marriage before marrying again. A quicker system of formulating divorces will make sure that parties do not enter a second marriage without dissolving their first. A single civil code will streamline administration, registration and dispute resolution between parties. This better system would reduce friction between the law and the citizens, creating a harmonious and stable society.
However, The UCC does not align with article 25 and 26 of the constitution of India because if someone claims that bigamy is protected by their religion the n UCC denies that right by law, which becomes a point of conflict because it limits their ability to practise their religion. Minority communities like Muslims may argue that the UCC goes against their previous right to polygamy. But this is a sacrifice that the citizens of the country should make to achieve goals of equality and unity laid out in the constitution. Article 26 gives religious bodies some autonomy to manage their religious affairs. UCC might infringe that autonomy. If a religion mandates that a person may have multiple spouses, then prohibition can be seen as denying the right to practice religion. That could be claimed as invasion of Article 25.
It is crucial to note that the law introduced under bigamy in the UCC, mentioned above, resembles the conditions of marriage in section 5 of the Hindu Marriage Act, 1955. This is concerning as the main aim of the UCC is to bring uniformity in laws, but just incorporating the laws of Hindu marriage can raise critical questions by people who used to follow others
personal laws other than HMA in Uttarakhand. Why is there no change in the laws of marriage in UCC? Though most of the people living in Uttarakhand are Hindus but it is important to observe that the Muslims are the second majority. So, can it be said that the people in Uttarakhand, regardless of the personal laws they used to follow, are now following the conditions mentioned in the HMA? An example of implementation of a civil code has already been seen in Goa with the Portuguese Civil Code. Goa’s family law code has its roots to the Portuguese Civil Code of 1867 taken after Goa’s liberation in 1961. It is like the UCC as it ensures equal treatment of all religions in matters of marriage and divorce. The Portuguese civil code ensures equal inheritance and marital rights for men and women, aligning with the gender equality goals of the UCC.
Reduced domestic conflicts and ensured equal rights in inheritance and maintenance for all spouses and children. The success of Goa’s system over past years provides a model of social harmony and gender justice that the Uttarakhand UCC now seeks to emulate. The goa code also provides for streamlined marriage and divorce processes just like the UCC proposes to do. Although not a perfect example, the Portuguese Civil Code lays groundwork and benchmarks for the implementation of a new UCC.
NATIONWIDE INTRODUCTION OF UNIFORM CIVIL CODE AND RELATING IT
TO BIGAMY
The need for a Uniform Civil Code has been expressed for decades, with Uttarakhand’s state government taking a brave and important step by introducing its own UCC, it begs the question; Should a UCC be implemented nationwide? Our answer is Yes. Not only would a UCC align the several personal laws withing the country with the Constitution’s commitments to equality and national unity, but it would also ensure fair and equal treatment for all in matters related to marriage and other related laws. Article 44 of the Constitution, which comes under the Directive Principles of State Policy (DPSP), says “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. ”11making the creation of the UCC not merely political preference but a constitutional directive that deserves serious, rightsbased legislative attention.
11 “Article 44: Uniform Civil Code for the Citizens, Constitution of India: net, Centre for Law & Policy Research Trust, https://www. constitutionofindia. net/articles/article-44-uniform-civil-code-for-the-citizens/.
The unequal treatment for bigamous relationships creates two main problems. First, it undermines the concept of equal citizenship under the law by treating religious identification as a license to enjoy family-law advantages that are denied to others. Second, it promotes patriarchal control over women's marital and financial security by acknowledging multiple marital claims for men but not for women, thus institutionalizing gendered authority in marriage. A UCC would prohibit both men and women from being in a bigamous relationship. This aligns with the views that Uttarakhand CM Pushkar Singh Dhami, who stated after the Uttarakhand Civil Code was implemented that the code “aims to bring uniformity in society and at the same time, empower women and make them self-reliant.
”12 This prohibition of bigamy, even for Muslims would solve the problem of women who are second or third wives of a man being emotionally and financially neglected. Not only women, but children born out of other marriages may have to face the troubles of being neglected by their father. Although the Quran only allows for polygamy if the man treats the wives and children equally, this is rarely ever seen in practice. By prohibiting bigamy and polygamy, even for Muslims, the law would not have to rely on the man’s integrity and degree of care towards his wives, as there would be no ‘wives’ in the first place. The most famous argument against the UCC is that it would affect cultural autonomy and minority rights. While this objection deserves to be taken into consideration, it cannot be the reason for doing away with a UCC.
While the right to follow freely any religion is of immense importance, it shall not be affected by this UCC. One might argue that polygamous relations are important to Islam (although this has been disproved by the Supreme Court as mentioned above), this “cultural practice’ cannot be placed above its creation of gender discrimination and the unequal treatment of citizens under law. A carefully drafted UCC can, if done with extensive consultations and should be one that respects cultural diversity while also guaranteeing the protection of basic human rights and gender equality. Section 2 of the Uttarakhand Civil Code specifies that the code does not apply to members of Scheduled Tribes, like how the Hindu Marriage Act also excludes STs. 13 12 Kautilya Singh, Uttarakhand Asseāmbly Passes UCC Bill, Becomes First State to Implement Uniform Civil Code, Times of India (Feb.
8, 2024), https://timesofindia. indiatimes. com/city/dehradun/uttarakhand-assemblypasses-ucc-bill-becomes-first-state-to-implement-uniform-civil-code/articleshow/107511085. cms.
13 The Uniform Civil Code of Uttarakhand Bill, 2024, PRS India (2024),
https://prsindia.org/files/bills_acts/bills_states/uttarakhand/2024/Uniform-Civil-Code-Uttrakhand-bill-2024.pdf.
This exclusion, however, in our opinion, does not align with the reasons for creating a UCC. The word “uniform” itself means that it should be the same for all, if bigamy which was allowed for Muslims, is prohibited under this code for all, it should also be prohibited for member of STs. The argument of protecting their customary practices fails here as bigamy may also be considered as a customary practice for Muslims, yet this code nullifies it.
This prohibition of bigamy, even for Muslims would solve the problem of women who are second or third wives of a man being emotionally and financially neglected It should be recognized that the Fifth and Sixth schedule of the constitution makes it difficult for state government to impose this code on STs as laws that might relate to the customs and practices of ST communities cannot be made applicable to them without the approval of the Governor. 14Keeping this in mind then, the code should not be publicized as being equal for all, as it does not apply to a significant part of the population of the country. The UCC should not be considered as an attack on religion, it is an example of a constitutional bargain, one which would be for the betterment of all people.
By making marriage laws uniform will make sure that society stays monogamous, but for this to be achieved the UCC should be amended to also include members of ST communities. Enforcing the UCC would ensure that the goal set in Article 44 is achieved and that the personal laws serve every citizen equally. However difficult the implementation of the UCC may be, it would be an incredible step towards national equality and unity, something that all laws of this nature shall strive to achieve.
14 Alok Prasanna Kumar & Prathiksha Ullal, Excluding STs from Uttarakhand UCC Exposes a Fundamental
Problem in Its Concept, ThePrint (Feb. 28, 2024), https://theprint.in/opinion/excluding-sts-from-uttarakhanducc-exposes-a-fundamental-problem-in-its-concept/1980948/.