Supreme Court re-examines the constitutional validity of polygamy
2-minute summary
The Supreme Court of India is re-examining the constitutional validity of polygamy and nikah halala under Muslim personal laws. Prompted by a petition filed by five activists, the Court has sought the Centre's response and suggested legislative action to abolish the practice for all citizens, regardless of religion. The petitioners argue that polygamy violates fundamental rights, specifically gender justice, equality, and dignity. They seek to make polygamy a criminal offence under Section 82 of the Bharatiya Nyaya Sanhita (BNS), which currently penalizes bigamy for non-Muslims with up to seven years of imprisonment. By challenging the exemptions granted under the Muslim Personal Law (Shariat) Application Act, 1937, the petition brings the debate over a Uniform Civil Code (UCC) under Article 44 and the balance between religious freedom (Article 25) and gender equality (Articles 14 and 15) back to the forefront of judicial and public discourse.
Why it's in the news
The Supreme Court has sought the Central Government's response to petitions challenging the constitutional validity of polygamy and nikah halala. The Court also urged the Centre to consider legislative measures to abolish the practice of polygamy across all religions.
Background and context
Under classical Islamic law as applied in India through the Muslim Personal Law (Shariat) Application Act, 1937, Muslim men are permitted to have up to four wives. This practice of polygamy, along with nikah halala (a practice where a divorced woman must marry another man, consummate the marriage, and get divorced again to remarry her former husband), has faced sustained legal challenges. In the landmark Shayara Bano v. Union of India (2017) case, the Supreme Court declared the practice of instant triple talaq (talaq-e-biddat) unconstitutional but left the issues of polygamy and nikah halala to be decided separately. Historically, the Indian judiciary has navigated a delicate balance between protecting religious freedom under Article 25 and upholding fundamental rights like equality (Article 14) and non-discrimination (Article 15). The current petition seeks to align personal law exemptions with the penal provisions of Section 82 of the Bharatiya Nyaya Sanhita (BNS), which criminalizes bigamy for other communities, thereby raising crucial questions about the realization of a Uniform Civil Code (Article 44).
Constitutional provisions
- Article 14 — Equality before law and equal protection of laws, challenged on the grounds of gender-based discrimination in marriage laws.
- Article 15 — Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, specifically addressing gender inequality in personal laws.
- Article 21 — Protection of life and personal liberty, interpreted by courts to include the right to live with dignity, which is impacted by practices like polygamy and nikah halala.
- Article 25 — Freedom of conscience and free profession, practice and propagation of religion, which protects essential religious practices but is subject to public order, morality, and health.
- Article 44 — Directive Principle of State Policy advising the State to secure a Uniform Civil Code for the citizens throughout the territory of India.
Committees and reports
- 21st Law Commission of India Consultation Paper on Reform of Family Law — Suggested that while a Uniform Civil Code is 'neither necessary nor desirable at this stage', personal laws must be reformed to eliminate gender discrimination and inequality, specifically addressing polygamy.
Mains practice: Evaluate the constitutional challenges surrounding the practice of polygamy in India. How can the judiciary balance religious freedoms under Article 25 with the principles of gender justice and equality?
The practice of polygamy under personal laws has emerged as a critical constitutional debate in India, highlighting the tension between religious autonomy and individual fundamental rights.
**Constitutional Challenges Surrounding Polygamy:**
• **Violation of Article 14 and 15:** Allowing polygamy for one community while criminalizing it for others under Section 82 of the Bharatiya Nyaya Sanhita (BNS) creates an arbitrary classification. It discriminates against women based on sex and religion, denying them equal status within marriage.
• **Infringement of Article 21:** The Supreme Court has repeatedly held that the right to life includes the right to live with dignity. Polygamy and associated practices like nikah halala compromise a woman's dignity, mental health, and social standing.
• **The Shield of Article 25:** Proponents argue that personal laws are protected under religious freedom. However, Article 25 is explicitly subject to public order, morality, health, and other fundamental rights. Furthermore, polygamy is generally not considered an 'essential religious practice' necessary to the faith.
**Balancing Religious Freedom and Gender Justice:**
• **Application of Constitutional Morality:** The judiciary must prioritize constitutional morality—which values equality, liberty, and dignity—over societal or customary morality.
• **Test of Essential Religious Practices:** Courts should apply the 'essential religious practice' test to determine if polygamy is fundamental to Islam. Past rulings (e.g., Shayara Bano case) show that practices violating basic human rights cannot claim protection under Article 25.
• **Harmonious Construction:** The Supreme Court can guide the legislature to reform personal laws incrementally, ensuring that freedom of religion does not become a tool for gender-based subjugation.
**Conclusion:**
While religious diversity is a hallmark of Indian secularism, it cannot coexist with gender injustice. A rights-based approach that aligns personal laws with the constitutional ideals of equality (Article 14) and dignity (Article 21) is essential for achieving true social democracy.
Prelims practice questions
Q1. With reference to the Bharatiya Nyaya Sanhita (BNS), consider the following statements: 1. Section 82 of the BNS criminalizes bigamy and polygamy for all citizens of India irrespective of their personal laws. 2. The maximum punishment prescribed under Section 82 of the BNS for marrying during the subsistence of an existing marriage is seven years. Which of the statements given above is/are correct?
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Answer: B. Statement 1 is incorrect because Section 82 of the BNS (which corresponds to Section 494 of the IPC) does not apply to Muslims, as their personal law permits polygamy. The petition in the news seeks to remove this exemption. Statement 2 is correct as the section provides for a punishment of up to seven years for marrying another person during the subsistence of an existing marriage.
Q2. Which of the following landmark judgments of the Supreme Court of India is directly associated with the invalidation of the practice of instant triple talaq (talaq-e-biddat)?
- Shayara Bano v. Union of India
- Danial Latifi v. Union of India
- Sarla Mudgal v. Union of India
- Lily Thomas v. Union of India
Answer: A. In the Shayara Bano v. Union of India (2017) case, the Supreme Court declared the practice of instant triple talaq (talaq-e-biddat) unconstitutional. The issues of polygamy and nikah halala were kept pending to be heard separately.
Q3. Consider the following statements regarding Article 44 of the Constitution of India: 1. It is a Directive Principle of State Policy that directs the State to secure a Uniform Civil Code for the citizens throughout the territory of India. 2. Directive Principles under Part IV of the Constitution are justiciable and enforceable by courts of law. Which of the statements given above is/are correct?
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Answer: A. Statement 1 is correct as Article 44 is a Directive Principle of State Policy (DPSP) aiming for a Uniform Civil Code. Statement 2 is incorrect because DPSPs under Part IV of the Constitution are non-justiciable and cannot be enforced directly by courts of law, although they are fundamental in the governance of the country.
Revision flashcards
- Which section of the Bharatiya Nyaya Sanhita (BNS) deals with the punishment for marrying again during the lifetime of a husband or wife (bigamy)? Section 82 of the BNS (which prescribes a punishment of up to seven years of imprisonment).
- What is the practice of 'Nikah Halala' under Muslim personal law? A practice where a divorced woman must marry another man, consummate the marriage, and get divorced from him before she can legally remarry her previous husband.
- Under which Article of the Indian Constitution is the 'Uniform Civil Code' (UCC) mentioned? Article 44, which is a Directive Principle of State Policy (DPSP) under Part IV of the Constitution.
- Why are Muslim men currently exempt from the criminal provisions of bigamy under Section 82 of the BNS (as of August 2026)? Because their marriages are governed by the Muslim Personal Law (Shariat) Application Act, 1937, which permits polygamy (up to four wives).
- What limitation is explicitly placed on the Freedom of Religion under Article 25 of the Indian Constitution? It is subject to public order, morality, health, and other provisions of Part III (Fundamental Rights) of the Constitution.