Supreme Court on Polygamy: Constitutional Validity, BNS & Muslim Personal Law

Context:

Recently, The Supreme Court of India is examining the constitutional validity of polygamy under Muslim personal law following petitions seeking greater uniformity in the legal regulation of bigamy. The petition was filed by five activists, who sought to bring polygamy within the ambit of Section 82 of the Bharatiya Nyaya Sanhita (BNS) and remove exemptions available under Muslim Personal Law.

What Are the Petitioners Seeking?

The petitioners have challenged Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it recognises personal-law rules relating to marriage and polygamy. They argue that such provisions violate the principles of equality and gender justice under Articles 14, 15 and 16 of the Constitution.

They have sought:

• • • Criminalisation of polygamy under Section 82 of the BNS.
    • Compulsory registration of Muslim marriages and divorces.
    • Codification of Muslim Personal Law in accordance with constitutional principles.
    • Protection of the matrimonial home and rights of the first wife and children where a subsequent marriage is contracted.
    • Preparation of a draft framework by the Law Commission or Union government to align marriage, divorce and succession laws with gender equality.

Triple Talaq and Earlier Proceedings:

• • • Two of the petitioners had earlier approached the Supreme Court in the Shayara Bano case, challenging instant triple talaq. In 2017, the Supreme Court invalidated instant triple talaq.
    • The Court had, however, refrained from deciding the questions concerning polygamy and nikah halala at that time. Subsequently, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, making instant triple talaq a punishable offence.

Position under BNS:

Section 82 of the BNS deals with marrying again during the lifetime of a spouse and provides for imprisonment of up to seven years, subject to the statutory conditions and exceptions. The present controversy concerns whether the existing personal-law framework should continue to permit a Muslim man to have multiple wives while similar conduct is prohibited for others.

Judicial Precedents:

• • • In Sarla Mudgal v. Union of India (1995), the Supreme Court held that a Hindu husband could not convert to Islam merely to marry again while his first marriage remained subsisting. Such a second marriage was held void.
    • In Lily Thomas v. Union of India (2000), the Court reiterated that conversion undertaken merely to circumvent the prohibition on bigamy could not provide a legal escape from the existing matrimonial obligation.
    • Importantly, these judgments dealt with conversion to evade bigamy laws and did not directly declare polygamy under Muslim personal law unconstitutional.

Does Islam Sanction Polygamy?

Islamic texts permit a man to marry up to four women under specified circumstances, while emphasising justice and equal treatment among wives. The relevant discussion is therefore not simply about an unrestricted religious entitlement but also about the conditions attached to the practice.

Is Polygamy a Muslim-Only Practice?

• • • Polygamy is not exclusive to Muslims. NFHS-5 (2019–21) data cited in the debate indicate that the prevalence of multiple marriages differs across communities. The reported figures were approximately 2.1% among Christians, 1.9% among Muslims and 1.3% among Hindus.
    • Thus, the issue must be examined as a broader question of gender justice and matrimonial reform, rather than merely as a Muslim personal-law issue.

Constitutional Dimensions:

• • • The controversy involves:
      • Article 14: Equality before law.
      • Article 15: Protection against discrimination based on religion and sex.
      • Article 21: Life, dignity and personal liberty.
      • Article 25: Freedom of religion, subject to public order, morality, health and other Fundamental Rights.
      • Article 44: Directive Principle concerning a Uniform Civil Code.
    • Marriage and divorce are also included in Entry 5 of the Concurrent List, giving both Parliament and State Legislatures legislative competence.

Way Forward:

The Supreme Court's examination highlights the continuing tension between religious freedom, personal-law autonomy and constitutional equality. Any reform should protect women's dignity and substantive equality while respecting constitutional safeguards and India's pluralistic character.