Polygamy

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Introduction
Polygamy — the custom or practice of a person having more than one spouse at the same time — occupies an outsized place in Indian private law because it sits at the intersection of criminal law, personal law, constitutional freedoms and family remedies. For litigators and family lawyers the question is seldom theoretical: is a second marriage valid, is the accused criminally liable for bigamy, what are the civil consequences for maintenance, custody, succession and legitimacy of children? This article sets out the controlling legal framework and gives practice-oriented guidance on litigating and advising around polygamy in India.

Core Legal Framework
Primary provisions and authoritative statements to keep on the desk:

  • Indian Penal Code, 1860 — Section 494
  • Text (key part): “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…”

  • Practical effect: criminalises contracting a second marriage during the subsistence of the first where the second marriage is void on that account.

  • Hindu Marriage Act, 1955 — Section 5 (conditions for a Hindu marriage)

  • Key condition (Section 5(i)): “neither party has a spouse living…”

  • Practical effect: a marriage among Hindus, Buddhists, Jains and Sikhs where either party has a living spouse is invalid (and thereby invites penal consequences under the IPC and civil remedies under the HMA).

  • Special Marriage Act, 1954 — Section 4 (conditions relating to solemnization)

  • Key condition parallels HMA: parties must be unmarried (i.e., “neither party has a spouse living”).

  • Practical effect: registration under the Special Marriage Act requires monogamy; a marriage solemnised in breach may be void and bring penal ramifications.

  • Muslim Personal Law (Shariat) — classical position

  • Under Muslim personal law recognized in India, a Muslim man may marry more than one wife (subject to Quranic constraints and local custom), up to four wives under classical jurisprudence; Indian law does not statutorily prohibit Muslim polygamy.

  • Practical effect: the criminal offence in IPC Section 494 does not normally apply where the second marriage is permitted by the party’s personal law.

  • Constitutional framework and directive principles

  • Article 25 (freedom of religion) and Article 44 (directive to consider a Uniform Civil Code) are often invoked when polygamy intersects claims based on religion; courts have held that personal law practices are subject to constitutional scrutiny where they affect fundamental rights.

Practical Application and Nuances
How polygamy actually plays out in courts — what judges look for, what evidence matters, and day‑to‑day strategies for arguing the point.

  1. Civil litigation (nullity, matrimonial reliefs, maintenance)
  2. When is the second marriage void? Under HMA/SMA the second marriage is void if the first spouse is alive and the first marriage subsists. A plaintiff seeking a decree of nullity or an injunction must prove the subsistence of the first marriage at the time of the second ceremony.
  3. Reliefs available: nullity or declaration that the second marriage is void; prevention of remarriage; claims for maintenance (under HMA/SMA or domestic violence laws) by the aggrieved first wife; custody/access and guardianship issues for children.
  4. Evidence to prove subsistence of first marriage: marriage certificate, entries in marriage registers, birth certificates of children, joint family records, cohabitation evidence, affidavits of relatives and neighbours, photographs, rent and utility bills showing co‑residence, prior divorce decrees (to show non‑subsistence) or death certificate (to establish that first spouse is not living).

  5. Strategy in pleadings: plead the exact date of the second marriage and plead affirmatively the subsistence of the first marriage with a clear trail of documentary and oral proof. Seek interim injunctive relief where there is risk to matrimonial property or where the wife is pushed out of the matrimonial home.

  6. Criminal prosecutions under IPC Section 494

  7. Elements the prosecution must establish:
    (a) There was a lawful first marriage and it subsisted at the relevant time;
    (b) The accused contracted a second marriage while the first spouse was living;
    (c) The second marriage is void by reason of the existence of the first marriage.
  8. Burden of proof and practicalities: As in all criminal cases, the prosecution must prove guilt beyond reasonable doubt. The usual approach is to rely on the marriage certificate of the first marriage, witness testimony about cohabitation, absence of a valid divorce or death certificate, and corroboration that a second marriage ceremony took place (invitation cards, witnesses, registrar entries, photographs). The accused commonly offers a divorce certificate, death certificate, or proof of valid annulment; the court will examine the authenticity and timing of those documents.
  9. Mens rea and knowledge: Courts have examined whether the accused genuinely believed the first marriage had been dissolved — but mere belief will not necessarily absolve if evidence shows the first marriage subsisted. In practice, the accused’s knowledge and intention are critical in close cases (e.g., where there is an alleged but unregistered foreign divorce).

  10. Procedural considerations: complaints often originate from the aggrieved spouse; police investigation will typically collect documentary evidence and call witnesses. Frivolous prosecutions are not uncommon — expect applications for quashing (CrPC Section 482 or High Court inherent powers).

  11. The special problem of conversion to avoid monogamy

  12. Common litigation scenario: a husband converts to Islam and then solemnises a second marriage to a Muslim woman claiming that conversion permits polygamy.
  13. Judicial approach: courts scrutinize whether conversion actually dissolved the first marriage or whether the conversion was a subterfuge to escape anti‑bigamy rules. If the first marriage was governed by a personal law (e.g., Hindu law) that required monogamy, an abrupt unilateral conversion, without legal divorce, will not permit contracting a valid second marriage and may attract criminal liability (see Sarla Mudgal, below).

  14. Practical proof: date of conversion, formalities of conversion, evidence of continuing marital ties, contemporaneous conduct of the parties and family.

  15. Effects on children, succession and legitimacy

  16. Legitimacy: Courts have generally sought to protect the legitimacy of children; children of void marriages are often treated for purposes of maintenance and succession on the basis of welfare, though specific statutory regimes differ.
  17. Succession: Rights of wives and children in succession may turn on whether a marriage is declared valid or void and on personal law rules. Practitioners must advise clients on inheritance implications contemporaneously with any matrimonial litigation.

Landmark Judgments
– Sarla Mudgal & Ors. v. Union of India & Ors., (1995) 3 SCC 635
– Principle: The Supreme Court held that if a Hindu husband converts to Islam and then contracts a second marriage without divorcing his first wife, the second marriage would be void under the Hindu Marriage Act and the husband could be prosecuted under Section 494 IPC. The Court emphasised that conversion to Islam does not entitle a person to escape the prohibitions of the Hindu Marriage Act that were applicable at the time of entering the first marriage.
– Practical import: Courts should treat conversions done as an instrument to contract a second marriage with close scepticism; practitioners should gather documentary proof of the date and genuineness of conversion and whether a divorce existed.

  • Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1
  • Principle: The Supreme Court struck down the practice of unilateral “instant triple talaq” (talaq‑e‑biddat) as unconstitutional. While the decision addresses repudiation and not polygamy per se, the judgment illustrates the Court’s willingness to subject discriminatory personal law practices to constitutional scrutiny.
  • Practical import: The equal‑protection and gender justice rationales used by the Court are relevant to challenges to polygamy practices where those practices cause demonstrable gender disadvantage.

Strategic Considerations for Practitioners
How to deploy the law for clients and common pitfalls.

  1. For a petitioner (first wife) seeking relief
  2. Assemble a dossier proving the subsistence of the first marriage before issuing a criminal complaint or filing a civil suit: marriage certificate, photographs, family witnesses, joint bank or property records, and proof of cohabitation.
  3. File parallel remedies where appropriate: criminal complaint under IPC 494, civil suit for declaration/nullity under HMA/SMA, petition for maintenance under HMA/SMA or CrPC/Protection of Women from Domestic Violence Act.

  4. Seek interim measures early: temporary injunctions restraining disposal of property, protection of residence, interim maintenance, and custody orders where children are involved.

  5. For the accused (person alleged to have contracted second marriage)

  6. Produce contemporaneous proof of dissolution of first marriage at the earliest (divorce decree, death certificate). If a foreign divorce is alleged, obtain authenticated/translated documents and admissibility opinion.
  7. If relying on conversion, prepare documentary and witness proof of conversion antecedent to second marriage and argue bona fide religious conversion; be prepared for courts to scrutinise motive.

  8. Attack the prosecution’s proof of marriage subsistence by discrediting documentary evidence and highlighting gaps in corroborative oral testimony.

  9. For counsel advising clients of minority religions contemplating polygamous marriages

  10. Give clear, documented legal advice: while Muslim personal law permits polygamy, adverse civil consequences (maintenance, property claims, custody disputes) can follow; if solemnisation is by Special Marriage Act or outside personal law, monogamy rules may apply.

  11. Advise on registration: even if a second marriage is permitted by personal law, lack of registration and absence of marriage contract (nikahnama) can create later evidentiary problems.

  12. Procedural traps and pitfalls

  13. Do not rely solely on affidavits of relationship — courts demand primary evidence (certificates, records).
  14. Beware of false or forged certificates: courts routinely test the authenticity of foreign or unregistered divorce/death certificates.
  15. Criminal prosecutions for bigamy can be used as matrimonial weapons; assess whether civil reliefs (maintenance, injunction) are more appropriate and whether quashing under Section 482 CrPC is available.

Practical checklist for drafting pleadings and examinations
– For petitioner: chronological factual matrix (dates of first marriage, cohabitation, alleged conversion/divorce, date of second marriage), list of documentary evidence, names/addresses of witnesses, precise reliefs sought (criminal complaint support + civil reliefs).
– For accused: affirmative list of dissolution evidence, contemporaneous communications, reasons for second marriage (to negate dishonest intent), evidence of registration or customary permissibility if claiming personal law defence.
– Cross‑examination themes: timeline of events, independent corroboration of conversion/divorce, inconsistencies in family witness statements, entry/exit of parties from matrimonial home, and timing of registrations.

Conclusion
Polygamy in India cannot be treated as a single legal problem — it is a layered question of personal law entitlements, statutory monogamy provisions, criminal offences and constitutional values. For the practitioner the task is forensic: establish (or refute) the subsistence of the earlier marriage with primary documentary and reliable oral evidence; understand which statutory regime (HMA, SMA, IPC) governs the dispute; anticipate conversion or foreign divorce issues; and combine civil and criminal strategies prudently. Landmark decisions, especially Sarla Mudgal, make clear that artful conversions and strategic postures do not necessarily immunise an accused from criminal liability for bigamy. Good practice is documentary preparedness, early interim reliefs, and a careful appreciation of how personal law and general law interact in the facts of each case.