Sunday, May 19, 2024

One Too Many?

Even as Assam gears up to introduce the law, the question is whether states should spend valuable time and resources passing such laws when a UCC will make them irrelevant

By Dr Swati Jindal Garg

In a recent turn of events, Assam’s Chief Minister Himanta Biswa Sarma announced that the state would move to ban the practice of polygamy through “legislative action”. In pursuance of this goal, the state government constituted a four-member committee to examine the legality of such an action. The minister also announced that the committee was constituted to “examine the legislative competence of the state legislature to enact a law to end polygamy”. He stated that the committee has been directed to submit its report within 60 days. Various religions and communities hold varied views on the system of polygamy. While some sects abhor it, others feel that it is a trend that not only oppresses women, but also disturbs the natural balance of society. 

Polygamy comes from two words: “poly” which means “many” and “gamos” which means “marriage”. Traditionally, polygamy—mainly the situation of a man having more than one wife—was practiced widely in India. However, with the passage of The Hindu Marriage Act, 1955, the practice was outlawed. As Buddhists, Jains and Sikhs are also considered Hindus and do not have their own laws, the provisions in the Hindu Marriage Act apply to them too. Polygamy however, is not prohibited in Muslim legislation because it is recognised as a religious practice and protected under their personal laws. Even though polygamy is permissible and legal exclusively for Muslims in nations such as India, Singapore and Malaysia, it is still recognised and practiced in countries such as Algeria, Egypt and Cameroon as a whole. These are the only areas in the world where polygamy is still legal.

The expert committee constituted had Assam’s Advocate General Debajit Saikia, its Additional Advocate General Nalin Kohli and an advocate at the Gauhati High Court, Nekibur Zamanas members and was headed by retired Gauhati High Court judge Justice Rumi Phukan. It is believed that the panel has already submitted its report even though its contents and recommendations have not been made public. Sarma reportedly said: “Assam is now closer to creating a positive ecosystem for women’s empowerment irrespective of caste, creed or religion.”

The committee was tasked to scrutinise the provisions of the Muslim Personal Law (Shariat) Act, 1937, along with Article 25 of the Constitution in relation to the Directive Principles of State Policy for a Uniform Civil Code (UCC). The Assam government had already made its stand public by saying that it supported the UCC and wanted to ban polygamy immediately in the state. The CM was of the opinion that the UCC was a matter which would be decided by the Parliament, but the state could also take a call on the issue of ending polygamy with the assent of the president. “We want to take one of its segments, polygamy, and ban it immediately. We are planning to introduce the Bill in the next Assembly session in September, and if we are unable to do it for some reason, we will do it in the January session,” the CM said.

Opposition parties have termed this diversionary and communal, especially at a time when suggestions on UCC are being received by the Law Commission. In fact, the All India United Democratic Front’s organisational general secretary and spokesperson Aminul Islam alleged that the BJP leaders and the chief minister were making communal comments related to the UCC, particularly on the issue of polygamy. “They are blaming the Muslim community for following the practice, but their statements are not based on facts,” he reportedly said.

According to the National Family Health Survey (NFHS)-5 2019-21, only 1.4% of the country’s total population practices polygamy, and on the basis of religion, the Muslims account for only 1.9%, Christians, 2.1% and Hindus, 3.1%. He also placed attention on statistics showing that polygamy among the Scheduled Tribes was 2.4%; Scheduled Castes, 1.9%; OBCs, 1.3% and others, 1.2%. He appealed to the state government to conduct a nationwide survey on marriages based on religion for the latest data. 

He also said that in Assam, even though allegations have been leveled about polygamy among Muslims living in riverine areas, since Independence, governments have neglected the health, education and transportation issues of these areas and done nothing to emancipate them. Islam said: “Educated people do not practice polygamy.”

Apart from Assam where a call for banning polygamy has been made, Goa is the only other place in India where it is illegal to have more than one wife—even for Muslims. Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq as it is the only state to have a UCC in the form of common family law.

Time has shown that any change in society has to come from within. This sentiment was also mirrored by the state Congress spokesperson, Mira Borthakur, who reportedly said that any kind of forceful imposition with a political motive cannot be successful in a society. She objected to this move saying that while implementation of the UCC is being considered, enacting a law to end polygamy in the state makes no sense at all. “How can there be uniformity in a diverse region like the Northeast? If the BJP wants to bring uniformity, the stress should be on education. If people are educated, practices like polygamy will end, but the state government instead is closing government schools,” she said. 

She alleged that the chief minister was an “autocrat who wanted to impose certain decisions without taking public opinion into consideration or calling for an all-party meeting”.

Assam Jatiya Parishad’s general secretary Jagadish Bhuyan also reportedly said that the current chief minister since assuming office had always tried to deviate from fundamental issues by making controversial statements. He said that there was a difference between tabling a bill, its passage and its final execution. Claiming that the current government was acting like bygone imperial rulers, Bhuyan said: “The leader of the state has to follow the ‘Rajdharma’ (duties of a statesman) by treating all equally, irrespective of the language, religion, caste or creed, but he follows the politics of division, which is not justified in a democratic government.”

A separate anti-polygamy law may be a necessity today in order to bring about a truly egalitarian society, but it will be redundant if and when the UCC becomes operative. UCC is the need of the hour as it will cover all litigation pertaining to marriage, divorce, succession, inheritance etc, without giving leverage to any personal law and irrespective of religious affiliations. It will also ensure that litigation is not as time-consuming as it is today on these subjects due to separate laws existing in different religions. But the real question is whether individual state governments should spend valuable time and resources passing anti-polygamy laws knowing fully well that the implementation of the UCC would make all this irrelevant. Should not scarce resources be utilised in other areas?

Gender activist Anjuman Ara Begum has also reportedly said that any reforms in personal law must be carried out with utmost care and not be done to antagonise a particular community by creating social disharmony and further polarisation. “Instead of a law on polygamy, the government must first implement mandatory marriage registration to protect the rights of women and children before any other reform in personal laws,” she added.

Incidentally, Pew Research Center says that polygamy is rare throughout most of the world. In the US, having spouselike relationships with more than one person under the same roof was criminalised in 1882. Today, every US state has laws against getting married while already being married to someone else.

In large parts of the Middle East and Asia, polygamy is legal, but not practiced widely. And in some countries—particularly in a segment of West and Central Africa known as the polygamy belt—the practice is frequently legal and widespread.

Only about 2% of the global population lives in polygamous households, and in the vast majority of countries, that share is under 0.5%. Polygamy is banned throughout much of the world, and the United Nations Human Rights Committee, which has said that “polygamy violates the dignity of women,” called for it to “be definitely abolished wherever it continues to exist.” 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi  


News Update