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Report No. 227

Hindu Marriage Act 1955

Since times immemorial it was believed - rightly or wrongly - that Hindu religious law allowed an unrestricted polygamy and imposed no specific conditions on the polygamist-husband. The Muslim rulers of India had left the Hindu law on polygamy - whatever it was - untouched and did not impose on any non-Muslim the rules of Islamic law tolerating limited polygamy in a well-defined discipline of equal justice to co-wives.

The British rulers, who did reform many other aspects of Hindu law, also did not abolish the rules on polygamy under the traditional Hindu law and custom. Only the Brahmosamajis had managed to legally adopt monogamy under a special law enacted for them in the erstwhile Bengal province in 1872.

After the advent of independence anti-bigamy laws were enacted for the Hindus by provincial legislatures in Bombay, Madras, Saurashtra and Central Provinces. Finally, in 1955 Parliament enacted the Hindu Marriage Act putting a blanket ban on bigamy for the Hindus. Buddhists, Jains and Sikhs, declaring bigamous marriages on their part in future to be void and penal (see Sections 5, 11 & 17).

One of the conditions for a valid marriage under the Hindu Marriage Act is that "neither party has a spouse living at the time of the marriage" [Section 5 (i)]. Violation of this condition shall make the marriage null and 23void and liable to be so declared by a decree of nullity on a petition filed by either party against the other party (Section 11).

Section 17 of the Hindu Marriage Act once again declares every bigamous marriage among persons governed by the Act to be void and makes it punishable under the anti-bigamy provisions of the Indian Penal Code 1860. It reads as follows:

"Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly."

Though Section 7 (2) says that if a marriage is solemnized through the saptpadi ceremony the marriage will be complete and binding on taking the sevenths step, some High Courts took the view that this is not a special rule of evidence requiring in a case of bigamy proof of the seventh step having been duly taken. - Padullapath Mutyala v Subbalakshmi AIR 1962 AP 311, Trailokya Mohan v State AIR 1968 Ass 22.

Preventing Bigamy via Conversion to Islam - A Proposal for giving statutory effect to Supreme Court Rulings Back

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