Part 1.
India is a beautiful mosaic of diverse cultures, religions, customs, and traditions. marriage is an integral part of these institutions and the lives of the population in the social milieu. marriage tends to legitimize the union of two souls in the societal context. In this article, we are dealing with another aspect of marriage; Bigamy. Bigamy simply refers to the offense of marrying someone while already married to another person. we will delve into different legal aspects of bigamy concerning various socio-religious groups in India. We will also reflect on the idea of polygamy in Islam navigating through different socio-historic factors of the early Islamic period.
According to NFHS data from 2019-20 shows the
prevalence of polygyny was 2.1% among Christians, 1.9% among Muslims, 1.3%
among Hindus, and 1.6% among other religious groups. Having multiple wives is a
common trend in north-eastern tribes.
INTRODUCTION
BIGAMY AND LAW
traditionally,
the practice of bigamy was related to men having more than one wife, practiced
widely in the Indian subcontinent. In India bigamy is governed by the Indian penal
code, 1860, and various personal laws. the practice of bigamy is illegal as per
Section 5 of the Hindu Marriage Act,1955. the condition necessary at the time
of marriage is that both the partners getting married should not be having a
living spouse. section 494 of IPC "Marrying again during lifetime of
husband or wife." penalizes bigamy and polygamy. the offense is defined as
"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."
this section does not apply to any person whose marriage with such husband or
wife has been declared void by a Court of competent jurisdiction, such as child
marriage and other marriages nullified by the family court. this provision also
doesn't apply in a situation where a spouse has been continuously absent for a
period of seven years, and shall not have been heard of by such person as being
alive within that time period. this means that the person is missing or his or
her whereabouts are not known for the stipulated time period. for the offense
of bigamy, both marriages must be valid, and the performance of the second
marriage should be based on the prevalent social norms and traditions. GOA is
the only state in the country that allow bigamy, as well as polygamy. the Hindu
men have the right to bigamy under specific circumstances mentioned in Codes of
Usages and Customs of Gentile Hindus of Goa: When a wife of a previous marriage
is not able to give birth to a child and she reaches the age of 25 years. Or,
When the wife of a previous marriage is not able to give birth to a male child
even after the completion of 30 years of age. Or, When the previous marriage is
dissolved according to the provisions of the Goa Civil Code.
The wording used
concerning the rules of bigamy in the GOA civil code is arguably a topic of
debate among various scholars and rights activists. "that section, by the influx of time, has been redundant. from 1910
onwards no provision was kept for it. no one has been given benefits under
it," the chief minister of Goa said
BIGAMY VS POLYGAMY
Many a time both terms are used interchangeably but, there is a subtle
difference between the two, the former is an offense as per section 494 of IPC
as described in the foregoing segment, and the latter is a situation of having
more than one spouse at a time, so one must engage in bigamy to experience
polygamy. Polygamy is considered a socio-religious practice in the Indian
subcontinent and is not categorically illegal. In bigamy there is a chance that
the spouses don’t know about the possible offense on the other hand same might
not be true about polygamy. spouses live in close vicinity and are possibly
aware of the facts.
POLYGAMY IN ISLAM
In Islam, marriage is a legal arrangement, not sacrosanct like in
Hinduism.it is a contract in which the rights and responsibilities of both
spouses are instituted. the primary purpose of marriage in Islam,
inter alia, is to regulate sexuality and to further extend the family.to
understand polygamy in Islam we need to reflect upon the historical events
around which Islam has evolved and expanded as a religion with its epicenter in
the middle east. It was a period of active wars and battles, one of the
deadliest battles in early Islamic history was the battle of Camel (656) in
which a large number of male population died. the Battle of the Camel was a
brutal affair with 50,000 participants. The number of casualties varies though
some historians suggest Ali lost anywhere up to 5,000 men while A’isha lost
13,000. It was evident that there was a decline in the male population with a
high female population. wars and battles require male soldiers to fight for the clan and, women
are considered child bearers. Hence, polygamy was a social necessity rather
than a matter of choice. All these social and historical factors gave rise to
polygamy as a prevalent institution.
Polygamy is not only limited to Islam, according to David Murray, an
anthropologist, historically polygamy is more common than monogamy.
Islam simply allows polygamy, it is not explicitly mandated to have
multiple wives. Now, the expansion period of Islam is over it is an established
religion with its presence in every continent of the globe. furthermore, In the
modern world -- the ideas of modernity, human rights, and choice of the
individual are considered cardinal principles, we as a civilization need to
navigate the future of polygamy as an institution.