Polyandry back in spotlight after brothers marry woman in Himachal: What law says

India Today

5 days ago

A recent wedding in Himachal Pradesh's Shillai village has brought the ancient tradition of polyandry back into public discourse.The ceremony, where Sunita Chauhan married two brothers—Pradeep and Kapil Negi—was held with full community participation, highlighting this practice among the Hatti community.While the event was celebrated openly, it has raised important legal questions: Is polyandry legal in India? Can this marriage stand legal scrutiny?advertisement
Is polyandry legally recognised? As far as the law is concerned, polyandry is not legally recognised in India. Under the Hindu Marriage Act, 1955 — which governs marriages among Hindus — a valid marriage must be monogamous.Section 5 of the Act stipulates that "neither party has a spouse living at the time of the marriage." This makes bigamy or polyandry (having multiple husbands) legally invalid.In fact, bigamy is punishable under Section 82 of the Bharatiya Nyaya Sanhita (BNS), which criminalises marrying again during the lifetime of a spouse without legal divorce.Even the Special Marriage Act, a person cannot have more than one living spouse at the time of marriage.The Act states that at the time of the marriage, neither party has a spouse living, which means that if either person is already married to someone who is still alive, the new marriage is void under the Act.However, it is important to note that the Hindu Marriage Act does not apply to the members of any Scheduled Tribe, unless the Central Government, by notification in the Official Gazette, otherwise directs.Under the Constitution, "Scheduled Tribes" refers to such tribes or tribal communities, or parts or groups within them, as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution.As far as cases like the present one are concerned, Indian personal law does allow for customary practices to be taken into account, especially in tribal communities.Section 13 of the Evidence Act provides for facts which are relevant when right or custom is in question, which basically allows parties to present evidence to establish customs, when those customs are legally in issue.Through judicial interpretation its also been evolved by courts that customs have to pass certain tests, including whether they are ancient, certain, reasonable, not opposed to public policy, morality, etc.Through judicial interpretation, it has also been established by the courts that customs must pass certain tests — including whether they are ancient, certain, reasonable, and not opposed to public policy or morality.Speaking to India Today TV, Advocate Rajat Nair said that under the law, these marriages would be void but someone has to challenge it. If there is consensus and immediate family members have no problem and no one approaches the court, occasion to seek this marriage as void will not arise.advertisementHe said that under law, marriage would be recognised only with one person, and person can't be married to two persons at same time.He agreed that these cases may fall under the grey area as these practices persist as customary tradition in certain areas and amongst some tribal communities, adding that courts have repeatedly emphasised that monogamy is the only valid form of marriage under the actOn the other hand, Advocate Ibad Mushtaq said that as far as practices of Scheduled Tribes are concerned, the same are not governed by the Hindu Marriage Act. Thus, no disability attaches to the customary practices of STs. The marriage would therefore be valid.Advocate Tarini Nayak said that the Hindu Marriage Act, 1955 does carve out certain exceptions in favour of certain customary practices, thereby allowing for the possibility of multiple marriages if sanctioned by custom.Furthermore, a potential loophole exists within Section 5 of the Act, which stipulates that at the time of the solemnization of marriage, neither party should have a spouse living.advertisementThis wording arguably implies that if a person marries two persons simultaneously—without either party being or having a 'spouse' in a legal sense at that precise moment—such a union may technically fall outside the ambit of a void marriage, thus creating an interpretative gap in the statutory scheme.- Ends