Himachal tribal woman marries 2 brothers: What the law says on polyandry
Notably, the community was granted the status of Scheduled Tribes (STs) by the Centre in 2022.
Their practice of polyandry has roots in the desire to preserve undivided family land, particularly agricultural land. According to supporters of the tradition, it has also served as a means to reinforce familial bonds between brothers and provided more security to women.
Is polyandry legal in India?
Polyandry and polygamy are outlawed by the Special Marriages Act, the Hindu Marriage Act, 1955 and criminalised under the Bharatiya Nyaya Sanhita. While religious personal laws specifically govern marriage, the Constitution also recognises the relevance of prevailing customary laws among STs.
The Constitution, under Article 342, recognises STs and accords them a distinct legal status. The Hindu Marriage Act, 1955, governs marriage applicable to Hindus, Buddhists, Jains and Sikhs. Section 2(2) of the Act includes a carve-out stating that its provisions do not apply to STs 'unless the Central Government, by notification in the Official Gazette, otherwise directs.' In the absence of such a notification, the Hattis continue to be governed by laws laid down under their customs, which are undocumented and uncodified.
The Act defines 'custom' under Section 3 as a rule that has been 'observed for a long time, has obtained the force of law.' But for a customary law to be valid, it must also hold the standard of certainty, reasonableness, and consistency with public policy. When challenged, these laws do not automatically gain legal recognition; courts have to be provided with proper evidence that such customary laws prevail.
Much debate surrounds the applicability of a Uniform Civil Code (UCC) to such situations. In 2024, the Uttarakhand government, by enacting UCC, provided a legal framework for inheritance, marriage, divorce, and adoption. The UCC mandates the registration of marriage, establishes equal rights of spouses across religions and communities and prohibits polygamy. However, it does not apply to STs, following a Constitutional pattern of upholding their customary practices.
Section 2 of the Uniform Civil Code Rules, Uttarakhand, 2025 states that 'these rules shall not be applicable to the members of any Scheduled Tribes within the meaning of clause (25) of Article 366 read with Article 342 of the Constitution of India and the persons and group of persons whose customary rights are protected under Part XXI of the Constitution of India.'
What has the court said on the issue?
Increasingly, courts have read customary laws prevalent among STs with the rights to equality, dignity and life and liberty as enshrined under the Constitution. Any law that is in conflict with fundamental rights is struck down as unconstitutional.
For example, the Supreme Court declared the practice of triple talaq as customary and therefore unconstitutional under the Muslim Personal Law (Shariat) Application Act, 1937. It was deemed arbitrary, unreasonable and violative of Article 14 and 21 of the Constitution, which guarantees the right to equality, dignity and the right to life.
Similarly, in 2018, the SC ruled that the customary practice of prohibiting women of menstruating age from entering the Sabrimala temple in Kerala was unconstitutional. The apex court held that this restriction violated the fundamental rights of women, including the right to equality and the freedom of religion under Articles 14,15 and 21 of the Constitution.
On July 17, the SC in Ram Charan & Ors. Versus Sukhram & Ors, a case related to succession rights for tribal women, reaffirmed this principle. It held that when a custom is silent on inheritance, there is no restriction in law that women should be prevented from inheriting ancestral property.
The apex court observed that 'customs too, like the law, cannot remain stuck in time and others cannot be allowed to take refuge in customs or hide behind them to deprive others of their right.' The ruling affirmed that excluding female heirs solely based on customary male preferences violates Article 14 of the Constitution.
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