Polygamy has been prevalent in India since the times of the Ramayana. King Dasharath practiced polygamy, as did several others in the Treta Yuga. As a practice, polygamy was common among Hindus before the Hindu Marriage Act of 1955 came into force and outlawed it. But the practice has continued, sometimes quite conspicuously.
The Constituent Assembly debates on the Hindu Code Bill stressed that to bring about a society where men and women are equal, there cannot be a disparate set of rules on polygamy. Extending the ban on polygamy to Muslim communities has been the thrust of the BJP’s ‘Uniform Civil Code’, as a key item on its past manifestos.
The Muslim Personal Law in India allows a husband to have four wives. While it is claimed that this policy position finds force in Sharia law, Islamic scholars have argued that the provision for multiple wives under Quranic law is subject to the fulfilment of onerous conditions. Indian courts have also, on various occasions, interpreted the Quranic injunction on multiple wives as being subject to the ability to look after more than one wife. The practice of polygamy in Islam dates back to a different time when men went to battle and would leave behind women and children who lackedresources to provide for themselves. Marriage was a way of protecting and providing for such orphaned children and widowed women. The Quranic injunction was intended to place limits and conditions on the practice. But it morphed into a practice devoid of its rationale and became the focal point for righteous outrage among several Hindu groups.
The UUCC on polygamy
This is why the Uttarakhand UCC (UUCC) prohibits any resident of Uttarakhand, whether Hindu, Muslim, or other, from practising polygamy. It does this by stating that parties seeking to register a marriage under the UUCC (which is compulsory) must not have a living spouse at the time of marriage. Practising polygamy is also a ground for judicial separation and divorce, available exclusively to women. With this, the only major marriage reform that the BJP’s UCC represented for its loudest votaries was achieved in Uttarakhand. It is little surprise, then, that no other marriage reform, of the kind one would expect in a civil code, exists in UUCC.
If the UUCC were simply a polygamy prohibition Bill, then a separate Bill focussed only on polygamy may have been a preferable approach. This would have provided an opportunity to deal with issues associated with the practice in a comprehensive manner, instead of a stray provision imitating existing law. The provision under the UUCC fails to afford any form of protection to wives who may be in existing polygamous marriages unwillingly. It fails to take into account the fact that extra-legal polygamous marriages may continue to exist through ceremonies despite the ban. Maintenance provisions provide no clarity on the status of second wives in a polygamous marriage. Outlawing practices with no concomitant protections for vulnerable parties tarnishes the Uttarakhand’s UCC immeasurably.
No other notable changes
However, the UUCC does not present itself as simply a polygamy prohibition Bill. Yet, its other provisions leave much scope for improvement. The scheme of mandatory registration of marriages under the UUCC largely replicates the scheme under the earlier Uttarakhand Compulsory Registration of Marriage Act of 2010. While non-registration does not invalidate a marriage, it invites a penalty. This may disproportionately affect marginalised communities and women since the burden of the penalty is shared by both parties. The 2010 Act recognised the power dynamics in heterosexual relationships by placing the burden of registration on the husband. This is not reflected in the UUCC. As a result, the compulsory registration regime in the UUCC has diluted the safeguard already available to women.
The draft also misses out on a crucial opportunity to provide better financial protection for women upon the dissolution of marriage. It retains archaic formulations based on the idea of preventing destitution of women and not their inherent dignity. A scheme of mutual sharing of the benefits of partnership has not been incorporated. It is not a modern legislation that one can expect a UCC to be.
Colonial provisions continue
Key to this failure to make itself modern is the UUCC’s unfortunate reinforcement of the colonial provision for restitution of conjugal rights. RCR is the requirement to cohabit with one’s partner, on the court’s order. The abolition of RCR has been recommended time and again by feministscholars as well as the Law Commission of India in its 2018 report. The doctrine of restitution of conjugal rights has its roots in church law, based on Christian ideas of the non-dissolubility of marriage. Under the regime of the ecclesiastical courts in England, non-resumption of cohabitation after a decree of RCR was punishable with excommunication and later, with imprisonment.
This colonial relic was transported to India in the Indian Divorce Act of 1869 and subsequently, the Hindu Code Bill, the Hindu Marriage Act of1955, and even Muslim and Parsi laws. During the Constituent Assembly debates on the Hindu Code Bill, it was even pointed out that restitution of conjugal rights is not a part of Hindu personal law.
RCR has grave ramifications for women, in light of the gendered power dynamics in India, by forcing them to cohabit in what might be severely hostile conditions. While the UUCC has been posited as an attempt to move towards decolonisation, retaining RCR as a remedy has the opposite effect. An exercise of reform being undertaken in 2024 needs to rethink this antiquated provision seeped in Victorian moralities.
If the UUCC is to truly be a template that India can adopt, much work remains to be done. Its colonial remnants must be identified and suitably excised, its provisions for the protection of women need to be workable and comprehensive, and it cannot feel like a Hindu code in disguise. The marriage provisions in the UUCC fall short on all these counts. Other states drafting UCCs must do better.
The authors are with the Vidhi Centre for Legal Policy. Views are personal.
(Edited by Prashant)