IS POLYGAMY AND POLYANDRY PENALIZED UNDER HINDU LAW

Marriage is a bond that not only unites two people, but it also unites two families. The bond between husband and wife is considered so pure that, according to Hindu beliefs, the bond of marriage endures even after the death of one or both spouses. Before the commencement of the Hindu Marriage Act,1955, there were no restrictions on polygamy and polyandry. But now, the Hindu Marriage Act expressly under Section 5[1], Section 11[2] and Section 17[3] Penalizes and abolishes the system of bigamy or polygamy[4]. Poly means multiple or more than one. Andry means husband, and gamy means wife. Now, we can understand what is implied by the terms ‘polygamy’ and ‘polyandry’. Polyandry means that a woman has more than one or multiple husbands. And, polygamy means when a man has more than one wife or multiple wives. Dignity, customs, social wellness, health, etc, became the factors for abolishing polygamy in Hindu Law. But, what matters to us is whether the Hindu Marriage Act, 1955, penalizes polyandry or not, because Section 17 just mentions the punishment for bigamy. Now, let’s shed light on the topic of whether polyandry and polygamy are penalized under Hindu Law. And, knowing about the essentials of valid marriage among Hindus, let’s delve deeper into this topic.

Keywords: Polygamy, Polyandry

INTRODUCTION

Punishment, in simple language, means a penalty which the Court imposes in response to a crime committed by the culprit. It aims to create deterrence, reformation, rehabilitation. Since the punishments also create deterrence, hence, probable crimes which are about to be committed can be avoided. Polygamy and bigamy being penalized under Section 17 of the Hindu Marriage Act, 1955, helps in creating deterrence. The golden lines of Section 5 of the Act lay down that ‘neither party has a spouse living at the time of marriage’, which means that the conditions of valid Hindu marriage exclude polygamy and polyandry. Despite this, no provision is laid down regarding the punishment for polyandry. The probable reason for this may be that the extent of polyandry at that time was not crossing limits that society would be affected. During the time of commencement of this Act, the condition of women was not good, and they had to fight for their rights in society. However, it is important to mention here that every religion respects the dignity of a woman, and even in ancient times, in Hinduism, women were worshipped. She was respected, and protecting her dignity was treated as the most important task. But, the gradual decrease in the status of women with time led to the birth of many social abuses like sati pratha, child marriage, dowry system, etc. To protect woman and their fundamental rights, the addition of bigamy as an offence under Hindu Law was a great initiative. This topic matters a lot in terms of sociology, law, psychology, awareness, health, etc. To initiate with the topic, first we have to go through the essentials of Hindu Marriage as enshrined in the Hindu Marriage Act, 1955. By which, we can understand what constitutes a valid marriage amongst Hindus. Thereafter, we will go through some other provisions of the Hindu Marriage Act, 1955, in the light of this topic.

ESSENTIALS OF VALID MARRIAGE UNDER HINDU MARRIAGE ACT, 1955 (SECTION 5)

The first and foremost essential is that as per the Act, a marriage which can be governed under this Act should be solemnized between two Hindus. Section 2[5] tells us about who Hindus are, which helps us to understand on whom the provisions of the Act will be applicable. Hindus, as per this Act, include Buddhists, Jains and Sikhs also. Another essential is that none of neither spouse should have a spouse living at the time of marriage, i.e. this provision is not only against polygamy or bigamy, but is also against polyandry. Moreover, the first marriage must be valid as per the Act, and despite being in the bond of valid marriage, if the husband simultaneously marries another woman, then he becomes liable for polygamy. Moreover, second wife, as per the Act, holds no status of a wife. Another facet is that neither party to the marriage should be incapable of giving valid consent, and they must not be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation[6]. Moreover, neither party to the marriage has been subject to recurrent attacks of insanity. Hence, insanity and mental disorder are another facet to be taken into consideration for the constitution of a valid marriage under Hindu Law. Another essential is the minimum age at which a valid marriage may be constituted among Hindus. For the bride, it is eighteen years, and for the bridegroom, it is twenty-one years. That is to say that if the bride and bridegroom are of or above the age limit given in Section 5(iii)[7], then the marriage will be considered as valid. This provision also helps in protecting the interests of minor girls and boys. They protect the minor children from child marriage and its hazardous consequences. Another essential is that the parties to the marriage must not be within the degree of prohibited relationship. But exception to this provision is if any custom or usages governing each of the spouse permits them to marry within their degrees of prohibited relationship. Section 2(g)[8] of the Hindu Marriage Act, 1955 defines ‘degree of prohibited relationship’. Apart from this, the parties to the marriage must not be sapindas of each other.  But, exception to this provision is if any custom or usages governing each of the spouses permits them to marry among sapindas. Sapindas is expressly defined under Section 2(f)[9] of Hindu Marriage Act, 1955. Apart from this, Section 7[10] deals with ceremonies of marriage, i.e. those ceremonies which are required to be performed for constituting a valid marriage. Thus, we are now in such a state that we know what constitutes a valid marriage among Hindus. Now, let’s shed some light on the penalty of polygamy and polyandry under the Hindu Marriage Act, 1955.

Penalty of Bigamy under Hindu Marriage Act, 1955 in light of Section 17 of The Hindu Marriage Act, 1955:

If the first marriage is not null and void and the husband had married another woman, then only the offence of bigamy is said to be committed. If the first marriage was void, then the offence of bigamy is not said to be committed, and the woman with whom a valid marriage was constituted shall be[11] Given the status of wife of that person. In the enshrined words of Section 17, the commission of the offence of bigamy is punished with Section 494[12] and Section 495[13] of the Indian Penal Code, 1860[14] (now, Section 82(1)[15] and Section 82(2)[16] Of Bhartiya Nyaya Sanhita, 2023). If either husband or wife is living and any of the spouses if solemnized a second marriage, then, in such condition, such marriage is void in the eyes of law. Void marriage is no marriage, and it creates rights and liabilities between the spouses. Section 82(1) of Bhartiya Nyaya Sanhita, 2023 lays down that a person either committing polygamy or polyandry shall be punished with imprisonment of either term for a term which may extend to seven years and shall also be liable to fine. However, taking into consideration the exception added to this section is also important for deciding the liability of the person accused of committing bigamy. Apart from this, Section 82(2) lays down the punishment in case any person has concealed the fact of his former marriage from the person with whom the second marriage is constituted. As per this provision, such person shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be punished with fine. Therefore, these are the punishments which are given under Bhartiya Nyaya Sanhita, 2023, in case of commission of polygamy and polyandry.

But, in the light of the topic, we have to find out whether polygamy and polyandry are penalized under the Hindu Marriage Act, 1955 or not. Now, let’s delve into a brief study of the topic in the light of Hindu Marriage Act, 1955.

Punishment for Polygamy and Polyandry under Hindu Marriage Act, 1955:

Section 17 punishes for bigamy, and hence, polygamy is punishable under the Hindu Marriage Act, 1955. But Section 17 does not penalize polyandry, and not even no other provision of the Act penalizes polyandry. So, the polyandry though not constitute valid marriage, there exists no punishment related to it in the Hindu Marriage Act, 1955. Moreover, the solemnization of marriage is proved when essential ceremonies related to the marriage have been performed. As held by the Court in Bhau Rao v State of Maharashtra[17], 1965, the Court held that the offence of bigamy is committed only if the required ceremonies and rites of marriage are performed.

Punishment for Polyandry and Polygamy under Bhartiya Nyaya Sanhita:

Bhartiya Nyaya Sanhita, 2023, is the law which newly come to deal with the problems existing in society. It helped in removing the deficiency of Indian Penal Code in dealing with the present situation. It has no lengthy sections like India Penal Code and added various new offences like ‘hit and run’, ‘terrorism’, etc, to deal with the present situation. Section 82(1) and Section 82(2) of the Bhartiya Nyaya Sanhita, 2023 penalize polyandry and polygamy.[18] However, here it is remarkable to note that mens rea is not an essential element to prove the offence of bigamy under Bhartiya Nyaya Sanhita, 2023. Moreover, the conversion of religion does not give license to commit bigamy. In Sarla Mudgal v Union of India,[19],  Court held that the second marriage of an apostate husband is against the principles of natural justice and such marriage is void marriage punishable under Section 494 of the Indian Penal Code, 1860.[20] In this case, the judiciary sought for enactment of a Uniform Civil Code to end the discrimination among various religious communities in the areas of marriage.

Conclusion:

Marriages are validly constituted if they meet all the essentials laid down in the law which governs such marriages. In case of not meeting these essentials, fingers may be pointed out on the validity of marriage. In such a case, if a person commits offences like bigamy, etc, then he can be punished by the Courts by the provisions laid down in the penal laws of the country or personal laws. Polygamy and Polyandry engage a person in bonds of multiple marriage, but what is to be taken into consideration is whether the law permits having more than one wife or husband or not. Every religion has its customs, and in Hindu marriage, monogamy is an essential feature and also forms part of Hindu culture. In Hinduism, as per the Hindu Marriage Act, we get to know that monogamy is an essential condition of valid marriage. Having one husband or one wife is essential for valid marriage in the eyes of Hindu Law, and solemnization of second marriage by performing essential ceremonies and rites, when the first husband or wife is living, constitutes polygamy or polyandry. So far, we understood that bigamy or polygamy is punishable under the Hindu Marriage Act, 1955. While there exist no expressed provisions in regards to the punishment of polyandry. But, it doesn’t mean that we have no law which can stop polyandry. One among which is our criminal law, i.e. Bhartiya Nyaya Sanhita, 2023, which lays down the punishment which is to be given to a person who has subsequently married during the lifetime of a former spouse. However, the Sanhita takes into consideration some exceptional circumstances in which the provisions laid down under Section 82(1) and Section 82(2) do not apply. These include conditions like desertion, etc. Therefore, it can be concluded that polygamy is penalized under Hindu Law, and till now, there exists no provisions for punishment for polyandry in Hindu Law.

REFERENCE(S):

1. The Hindu Marriage Act 1955, s 2, 2(g),2(f),5,7,11,17
2. Indian Penal Code 1860, s 494, 495
3. Bhartiya Nyaya Sanhita 2023, s 82(1), 82(2)
4. Paras Diwan, ’MODERN HINDU LAW’ (25^th edn, Allahabad Law Agency)
5. KD Gaur, ‘THE BHARTIYA NYAYA SANHITA, 2023’ (9^th edn, Lexis Nexis 2024)

[1] The Hindu Marriage Act 1955, s 5

[2] The Hindu Marriage Act, 1955, s 11

[3] The Hindu Marriage Act, 1955, s 17

[4]  Vidhi Judicial Academy,‘ Hindu Marriage Act:- Sec 5’(Vidhi Judicial Academy, undated)  < https://vidhijudicial.com/hindu-marriage-act:-sec5.html> accessed 20 July 2025

[5] The Hindu Marriage Act 1955, s 2

[6]Advocate Khoj,’ Hindu Marriage Act’ (ADVOCATE KHOJ, undated) <https://www.advocatekhoj.com/library/lawareas/hma/eligibility.php?Title=Hindu%20Marriage%20Act> accessed 18 July 2025

[7] The Hindu Marriage Act 1955, s 5(iii)

[8] The Hindu Marriage Act 1955, s 2(g)

[9] The Hindu Marriage Act 1955, s 2(f)

[10] The Hindu Marriage Act 1955, s 7

[11] Pujari Dharani, ‘Section 494 IPC punishment’ (iPleaders, 17 July 2023) <https://blog.ipleaders.in/section-494-ipc-punishment> accessed 21 July 2025

[12] Indian Penal Code 1860, s 494

[13]Indian Penal Code 1860, s 495

[14]Indian Kanoon, ‘Section 17 in The Hindu Marriage Act, 1955’ (Indian Kanoon) < https://indiankanoon.org/doc/1889483> accessed 22 July 2025

[15] Bhartiya Nyaya Sanhita 2023, s 82(1)

[16] Bhartiya Nyaya Sanhita 2023, s 82(2)

[17] Bhau Rao v State of Maharashtra (1965) SC 1964

[18]testbook, ‘Section 82 BNS: Marrying again during lifetime of husband or wife’ (testbook,, undated) < https://testbook.com/judiciary-notes/section-82-bns> accessed 22 July 2025

[19] Sarla Mudgal v Union of India (1995) 3 SCC 635

[20] KD Gaur, The Bhartiya Nyaya Sanhita, 2023 (9^thedn, Lexis Nexis 2024)