What is polygamy and what does the law in India say?

Recently, Himanta Biswa Sarma, Assam's Chief Minister has stated that the state government of Assam is going to ban the practice of polygamy by means of "legislative action". He also said that an "expert committee" would be created to examine the complete issue.

Polygamy as a practice

The practice of having not one but actually more than one married spouse (wife or husband) is known as polygamy. The issue of polygamy comes under the ambit of both personal laws and the Indian Penal Code (IPC).

Historical background and the present-day laws

In India, polygamy was well-accepted traditionally, mainly in the case of a man having multiple wives. However, the practice was outlawed by the Hindu Marriage Act, of 1955.

The Indian Penal Code too criminalizes the practice. Bigamy (having two living married spouses), and Polygamy (having more than one living married spouse) have been penalized by IPC Section 494. The statements of the Section are:

Section 494 of the Indian Penal Code-

"Marrying again during the 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."

However, it is crucial to note that the provision does not apply to situations where one spouse in wedlock has been "continually absent" for the 'space of seven years" This implies that in the case of desertion in a marriage, the law does not bind the deserted spouse from remarrying. Additionally, the provision also does not apply to marriages declared void by the court.

How does the court define the second marriage?

Let's understand this with the help of a hypothetical situation. Let's assume a man has remarried despite having a wife already alive. Now, the first wife would file a complaint against her husband stating that he remarried. The court will now examine whether the husband has come into a second marriage that is legally valid. In simpler terms, in order to be called a "marriage", the second marriage would require to be performed in accordance with the prescribed customs. In case the second marriage is not a valid one and is simply an adulterous relationship, it will not be qualified as a valid marriage for further proceedings under the law.

What will happen in case the second spouse is not aware of the first marriage?

In such a situation too, the law attempts to shield the innocent. Section 495 of the Indian Penal Code safeguards the second spouse's rights in situations of a bigamous marriage. The section punishes a person with imprisonment and a fine if s/he enters into bigamy and conceals the fact of the first marriage from the second spouse.

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