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Sarla Mudgal vs Union of India Case – Laws on bigamy in India

Sarla Mudgal vs Union of India Case – Laws on bigamy in India

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What is Polygamy and Bigamy?

  • Polygamy is the practice of marrying multiple spouses. When a man is married to more than one wife at the same time, sociologists call this polygyny.
  • In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons.

Difference between Polygamy and bigamy

  • The main difference between polygamy and bigamy is that polygamy is the custom or practice of having multiple spouses at the same time, while bigamy is the act of having two marriages without securing a legal severance from the first spouse.  considered illegal in most countries around the world.

Polygamy in Ancient India

  • Polygamy in India is outlawed. While polygamy was not prohibited in Ancient India and was common among aristocrats and emperors, it is believed that it was not a major cultural practice.
  • Every religion had its own set of rules, customs, and traditions. However, concerning polygamy, they all shared the same sentiment—Monogamy was the preferred system of marriage but polygamy was allowed under specific circumstances.
  • Hinduism
    • During the Vedic period, Upanishads, sutras, and smritis governed the regulation of marriage amongst Hindus.
    • It was believed that a Hindu husband is permitted to marry again during the lifetime of his wife, though such marriage when contracted without just cause, is strongly disapproved.
  • Islam
    • Polygamy is allowed, though not mandatory, as a remedial measure for certain situations that may arise from time to time.
    • The institution of marriage changed with the change in rulers.
    • The primary occasion then for the provision of polygamy is in wartime situations. During times of war, the number of men in society is reduced due to war casualties. Consequently, there is an increase in the number of widows and orphans. For such situations, Islam gives the provision of polygamy so that the widows and orphans could continue to have the possibility of family life after the passing of the husband/father.
    • The concept of polygamy in Islam has its roots in compassion and kindness.
    • Hence, Islam proposes polygamy as a solution in a time of crisis. Instead of abandoning large numbers of families, widows, and orphans, in the hope of holding on to some notion of “equality” and monogamous marriage under all circumstances, Islam offers a practical solution keeping in mind the long-term health and spiritual condition of individuals and the society at large.

 Post-Independence IndiaLegal developments

  • The lack of prohibition was in part due to the separation between land laws and religion (independence of the judiciary), and partially since all of the major religions of India portrayed polygamy in a neutral light.
  • Section 494 and 495 of the Indian Penal Code of 1860, prohibited polygamy for Christians.
  • In 1955, the Hindu Marriage Act was drafted, which prohibited the marriage of a Hindu whose spouse was still living.
    • The personal law codified and thereafter put Ban was imposed on bigamy except for the Muslims.
  • Thus polygamy became illegal in India in 1956, uniformly for all of its citizens except for Muslims, who are permitted to have four wives, and for Hindus in Goa and along the western coast where bigamy is legal. A polygamous Hindu marriage is null and void.
  • The Parsi Marriage and Divorce Act, 1936, made bigamy punishable.

Codification of laws in India

  • The British government submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts,specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.
  • BN Rau Committee
    • In 1941, the government formed the B N Rau Committee to codify Hindu law due to an increase in legislation dealing with personal issues at the end of British rule.
    • Based on these recommendations, a bill known as the Hindu Succession Act was passed in 1956 to amend and codify the law governing intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs.
    • There were, however, separate personal laws for Muslims, Christians, and Parsis.
  • To bring uniformity, the courts have often said in their judgments that the government should move towards a UCC.
  • The judgment in the Shah Bano case (1985)is well known.
  • Another case was the Sarla Mudgal Case (1995), which dealt with the issue of bigamy and conflict between the personal laws existing on matters of marriage.

Judgment by the court

  • This is the second instance after the Shah Bano case (1985) in which the Supreme Court again directed the government under Article 44.
  • The conflict between the personal laws- The verdict discusses the issue of bigamy, the conflict between the personal laws existing on matters of marriage, and invokes Article 44 of the Indian Constitution. It is considered a landmark decision that highlighted the need for a uniform civil code.
  • Second marriage an abuse of Personal laws- In this case, Sarla Mudgal v Union of India, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam can solemnize the second marriage. The Supreme Court held that adopting Islam for a second marriage is an abuse of Personal laws.
  • Further said that Hindu marriage can be dissolved under Hindu Marriage Act, 1955e. mere by converting itself into Islam and marry again does not dissolve the marriage under Hindu Marriage Law and thus will be an offense under Section 494 of the Indian Penal Code.

Significance of the Sarla Mudgal judgment

  • It is considered a landmark decision that highlighted the need for a uniform civil code.
  • Sarla Mudgal’s judgment was hailed as precedent for Uniform Civil Code and cited various cases where personal laws of different religions have come into conflict.
  • There was an appeal to the government to have are-look at Article 44 of the Indian Constitution, which suggests a uniform civil code for the citizens.

Implications of UCC

  • Upholding the concept of secularism
    • As Common Civil Code would put in place a set of laws to govern personal matters of all citizens irrespective of religion is perhaps the need of the hour. It is the cornerstone of true secularism.
  • Safeguarding the rights with a Progressive law
    • UCC would be an excellent defender of citizens’ rights. Its passage will be considered progressive legislation.
    • With time, there has arisen a need for a Common Civil Code for all citizens, regardless of religion, to ensure the protection of their fundamental and constitutional rights. The introduction of UCC can also strengthen secularism and national integrity.
  • Will bring efficiency in the system
    • The codification and unification of the variegated personal laws will produce a more coherent legal system.
    • This will reduce the existing confusion and enable easier and more efficient administration of laws by the judiciary.
  • In resonance with Article 15 of the Constitution
    • Such a progressive reform would not only help end discrimination against women on religious grounds but also strengthen the secular fabric of the country and promote unity.
    • There is a need to reform our social system, which is full of inequities, discriminations, and other things that conflict with our Fundamental Rights.
    • There is a Criminal Code that applies to all people irrespective of religion, caste, tribe and domicile in the country but there is no similar code related to divorce and succession which are governed by Personal laws.
  • Protection for Vulnerable Sections of Society
    • The UCC aims to protect vulnerable sections of society, such as women and religious minorities, as envisioned by BR Ambedkar, while also promoting nationalistic fervor through unity.
  • Simplified Laws
    • The code will simplify the complex laws governing marriage ceremonies, inheritance, succession, and adoptions, making them one-size-fits-all. The same civil law will then apply to all citizens, regardless of faith.
  • Do away with Tax discriminations
    • The need for UCC is related to inconsistencies in Tax laws. Like in Hindu Undivided Families they are exempted from taxes whereas Muslims are exempted from paying stamps duty on gift deeds and also it deals with the problem of Honour killings by extra-constitutional bodies like Khap Panchayats.

Challenges ahead

  • India’s cultural, religious diversity
    • Because of India’s diversity, it is difficult to develop a common and uniform set of rules, but our government is working to develop common rules.
  • Constitutional Hurdle
    • Article 25 of the Indian constitution, which seeks to preserve the freedom to practice and propagate any religion gets into conflict with the concepts of equality enshrined under Article 14 of the Indian Constitution.
    • Interference of the state in personal matters. The right to practice one’s preferred religion is guaranteed by the constitution. However, the codification of uniform rules and their compulsion may limit the scope of religious freedom.
  • UCC being seen as an Infringement of religious rights
    • Several communities, primarily minority communities, see the Uniform Civil Code as an infringement on their religious freedom rights.

Way forward

  • Building the trust
    • The government and society will have to work hard to establish trust, but more importantly, they will have to unite with social reformers rather than religious conservatives.
  • Gradual implementation
    • Rather than an all-encompassing approach, the government could gradually incorporate separate aspects such as marriage, adoption, succession, and maintenance into a UCC.
    • The need of the hour is the codification of all personal laws so that prejudices and stereotypes in each of them can be exposed and tested on the anvil of the Constitution’s fundamental rights.
  • Not using it as a political agenda
    • Rather than using it as an emotional issue to gain political advantage, political and intellectual leaders should try to reach an agreement.
    • The issue is not one of minority protection or even national unity; rather, it is one of treating each human being with dignity, which personal laws have so far failed to do.

Mains model question

  • A Uniform Civil Code (UCC) is desirable and need of the hour because it is consistent with the principles of equality, fairness, and justice.” Discuss the issues associated with UCC implementation in light of the statement.

References