New Delhi: Assam’s proposed law to bar polygamy and penalties under it—which include barring those convicted from contesting elections, securing government jobs and receiving state welfare benefits—has sparked questions about proportionality and potential discrimination.
The Assam Prohibition of Polygamy Bill, 2025, tabled in the state Assembly Tuesday, seeks to prohibit polygamous marriages across the state. But the Bill excludes Scheduled Tribes and areas under the Sixth Schedule of the Constitution, which grants autonomy to tribal regions in northeastern states.
This exemption has sparked debate, with some viewing it as potentially prejudicial to minorities, while others argue that it reflects the degree of autonomy granted to tribal communities from long ago.
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Precedent & concerns
Alok Prasanna, co-founder and lead of Vidhi Centre for Legal Policy, told ThePrint the Bill’s provisions need not be termed “discriminatory” as even the Hindu Code and Hindu Marriage Act, 1955, do not apply to Scheduled Tribes.
“It is a constitutional understanding that the Scheduled Tribes can be governed by their own personal laws, and the Central legislature does not apply to them, especially in the context of family laws,” he said.
Many STs are not Hindus, Prasanna said, adding that while their customs might sometimes overlap with Hindu practices, they often differ significantly. “In fact, even during the colonial-era, the British were very clear that they wouldn’t apply these rules to these communities.”
Prasanna said polygamy exists among Hindus as well. “Even under the existing laws, a second marriage only becomes a criminal offence, based on the complaint of the first wife. Before 1955, when the Hindu Marriage Act was passed, there was no restriction on polygamy for Hindus,” he said.
Citing National Family Health Survey (2019-20) data, he said, polygamy was prevalent in 1.9% of the Muslim population, slightly higher than 1.3% of the Hindu population.
Other experts pointed out that the Assam Bill would require the central government’s approval to effectively outlaw polygamy for all religious communities in the state, including those whose personal laws permit the practice.
Marriage falls under ‘concurrent’ list (Seventh Schedule of the Constitution), which means that both states and Centre can make legislations on the subject. If there is a conflict between the two, the Centre’s stand will prevail.
Dr Swapnil Tripathi, who heads the Charkha Constitutional Law Centre at the Vidhi Centre for Legal Policy, said Assam is “constitutionally barred from legislation on matters like divorce, inheritance and marriage of tribals governed by the Sixth Schedule”.
The Constitution itself authorises distinct legal treatment for these communities, he said, adding that the exemption cannot be considered “discriminatory” in this case. He noted the Supreme Court has cautioned against imposing mainstream legal norms on tribals and emphasised the need to respect their customs and practices.
Priyamvadha Shivaji, Senior Resident Fellow at the Justice, Access, and Lowering Delays Initiative (JALDI) team at the Vidhi Centre for Legal Policy, said the Bill’s statement of objects and reasons claims to “streamline society” and “protect women from hardship”.
Though the intent to support women victimised by polygamous marriages is crucial, the language reflects a “patronising attitude”, she said.
“The intent to streamline society alongside specific moral lines rings hollow as the Bill doesn’t extend to Scheduled Tribes, and areas under the Sixth Schedule, many of whom have unique, long-standing marriage and family traditions,” Shivaji said.
She said that polygamous marriages were already prohibited under Section 82 of the Bharatiya Nyaya Sanhita and Section 44 of the Special Marriage Act.
“This Bill appears to target particularly the Muslim community. As secular provisions prohibiting polygamy already exist, its attempt to introduce harsh penalties may not live up to the standards of the reasonable classification test under Article 14,” Shivaji said. Article 14 of the Constitution guarantees equality before the law.
In India, marriage laws and BNS bar polygamy, but it is a permitted practice under Muslim Personal Law Application (Shariat) Act.
Shivaji raised concerns about other features of the Bill.
“The Bill proposes to bar persons convicted under the law from contesting elections… appears to create a distinct category of persons who would be barred within the state as well as non-residents, which may also prima facie fall short of Article 14,” she said.
Penalties and enforcement
Section 4 of the proposed law defines polygamy as marrying when either party has an existing marriage or spouse from whom they are not legally divorced, or whose marriage is not legally annulled or declared void.
Those inciting or instigating polygamy, or solemnising such marriages, face the same punishment as those entering polygamous unions, the Bill says.
The scope of Bill also extends to non-residents, who perform polygamous marriages within Assam’s jurisdiction.
Persons entering polygamous marriages face up to seven years’ imprisonment and a fine. Those concealing their first marriage from a subsequent spouse face up to 10 years’ imprisonment and a fine. Repeat offenders will receive double the punishment.
Village heads, quazi, parents or legal guardians who dishonestly or fraudulently hide and intentionally participate in solemnising such marriages face up to two years’ imprisonment and a Rs 1 lakh-fine.
The Bill proposes compensation for women victimised by polygamous marriages. Section 16 provides for an authority to which women can apply.
Crucially, the law will not apply to marriages registered before its enactment.
Mandatory reporting
Section 7 of the proposed law mandates that the ‘gaonburah’, village head or quazi in areas where contracting parties reside must inform police about polygamous marriages taking place or being contemplated.
“The parents or legal guardian of the contracting party of polygamous marriage, as soon as they come to know about solemnisation of such polygamous marriage or contemplation of such polygamous marriage by any of their wards shall inform the same to the nearest police station,” the provision states.
Priests, parents or legal guardians found wilfully hiding, neglecting or delaying information to police about polygamous marriages will be held liable under the Act.
“Assam’s Bill broadly criminalises polygamy… all in the name of advancing gender justice. This approach harms the women it claims to protect. Marriages have been structured to ensure women’s dependence on their husbands. However, arrest and imprisonment will not resolve this. They aggravate vulnerabilities of women by abruptly severing wives’ financial support and social stability,” said Lakshmi Menon, research consultant, DAKSH Society, a think-tank on law and judicial reforms.
(Edited by Prerna Madan)
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