There can be no place for bigamy in Uniform Civil Code

THE constitutional mandate for the Uniform Civil Code (UCC) is back in the news. Recently, some state governments decided to implement it. Going by the wording of the provision for it under the Constitution, however, the UCC has to be a Central law, applicable “throughout the territory of India” (Article 44). After advising the Central government against the UCC in 2018, the Law Commission of India has now again sought public opinion in this regard.

In May this year, the Assam Government constituted a committee to draft a law for banning bigamy, which will be a major issue to be tackled under the proposed UCC.

The legal position of bigamy in the country needs to be properly understood. Enacted in 1860, the Indian Penal Code had declared bigamy to be an offence, punishable with specified imprisonment and fine (Section 494). Marrying another person by concealing the subsistence of the first marriage would lead to a higher punishment (Section 495). Couched in rather confusing phraseology, these provisions did not specifically exempt any community from their purview but laid down, in effect, that they would apply only if the marriage law applicable to a particular case prohibited bigamy and treated a bigamous marriage as void. The provision was, thus, meant mainly for the Christians as the marriage laws then governing other communities did not regard a bigamous marriage as null and void.

Seven decades after the enforcement of the IPC provision, the princely states of Baroda and Mysore proclaimed new family laws for the local Hindus under which restraints were imposed on the customary practice of bigamy. Later, during 1946-47, the provincial legislatures in Bombay and Madras enacted special laws to prohibit bigamy among all persons governed by the Hindu law in their respective jurisdictions. Finally came into force the Central Hindu Marriage Act, 1955, which declared bigamous marriages to be void and specifically brought them under the purview of the IPC’s anti-bigamy provisions. The Constitutional validity of the Bombay law and the related provision under the Central Act were challenged in the Bombay and Allahabad High Courts, respectively, but both of them affirmed it.

As old habits die hard, these legal measures did not totally wipe out bigamy among the communities they governed. In some cases, married men indulging in bigamy took refuge under the provision of the Hindu Marriage Act on the solemnisation of marriages which declares that the marriage rites prevalent in either party’s community have to be observed, and that in the case of the saptapadi ceremony (parties taking rounds of the holy fire amid chanting of hymns by the officiating priest), the marriage would be ‘complete and binding’ on taking the seventh round. The question when a marriage would be ‘complete and binding’ in case any other ceremony is observed was left unanswered. To escape punishment for bigamy, those indulging in it could claim that their first or second marriage was ceremonially incomplete and, hence, not recognisable by law. The apex court once agreed that the charge of bigamy would not be admissible in such a case (Bhaurao, 1965).

For 40 years since the enactment of the Hindu Marriage Act, unscrupulous men indulged in bigamy by pretending to have converted to Islam, misbelieving that its law unconditionally allows its male followers to have more than one wife without let and hindrance.

The apex court at last put the brakes on this abominable practice by holding that a married man governed by this Act cannot, even after conversion to Islam (genuine or sham), marry again before getting his first marriage properly dissolved; if he gets married, his second marriage will be void and he will still be guilty of the offence of bigamy under the IPC (Sarla Mudgal, 1995). The ruling was eminently in accord though the court did not say so with the true Islamic law which, over a thousand years ago, had allowed bigamy, subjecting it to the extremely difficult condition of treating co-wives absolutely equally. The practice of forsaking a lawfully wedded wife without divorce, marrying another woman and comfortably living with her, indeed, militates against the rules of bigamy in Islam especially if this is done under the garb of having embraced Islam.

By no stretch of imagination can bigamy be regarded as an essential religious practice. The apex court’s viewpoint that it is not covered by people’s right to religious freedom under the Constitution is based on a proper reading of the intelligible Islamic texts on bigamy.

In some recent cases, Muslim men have invoked the Constitution to escape the anti-bigamy provisions under certain general laws applicable to all. In one such case, a man claimed exemption from a family planning measure in Haryana disqualifying parents of more than two children from contesting panchayat elections, arguing that bigamy (allegedly allowed by Muslim law) entails a larger number of children. The foolish plea was rejected, with the court asserting that Muslim law “nowhere mandates or dictates it as a duty to perform four marriages” and that “what is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion” (Javed, 2003).

The same stand was taken by the court when a Muslim government employee sought exemption from the application of a rule under the Administrative Service regulations warranting disciplinary action against married employees who marry again without the government’s prior permission. (Khurshid, 2015).

The practice of bigamy was challenged in the Supreme Court, along with that of triple talaq, in the famous Shayara Bano case (2017), but the court had then excluded it from its deliberations. Later, the issue was brought to the court again and again and was eventually listed last year before a Constitution Bench, which did not take up the matter until its dissolution due to the retirement of two judges. A new Bench was promised by the court in January this year.

In the proposed UCC, bigamy, which is already prohibited under all personal laws except that of the Muslims, can obviously have no space. Even without waiting for the UCC, the anti-bigamy provisions of the IPC cited above can be amended to make them applicable to all religious groups, including the Muslims.

The real problem in this regard will be posed by the Scheduled Tribes, among many of whom bigamy is prevalent, but all of them are excluded from the purview of the Hindu Marriage Act. It will be interesting to see how the proponents of the UCC will tackle this tricky problem.