The constitutional stakes of Assam’s polygamy ban

ON NOVEMBER 26, the Assam Legislative Assembly passed the Assam Prohibition of Polygamy Bill, 2025, which criminalises the practice of polygamy across the state. Assam will become the third Indian state, after Goa and Uttarakhand’s Uniform Civil Codes, to prohibit polygamy irrespective of religious affiliation, with carve-outs for Scheduled Tribes and Sixth Schedule areas. 

The prohibition applies to any individual attempting to marry again during the subsistence of a lawful marriage. Violations invite imprisonment of up to seven years, with penalties rising to ten years when a person conceals an existing marriage. Clauses 10 and 11 of the Bill give discretionary powers to police officials to enter, inspect, and detain or arrest individuals on the basis of a belief that an offence is likely to be committed, thereby creating a wide scope for subjective assessment by law enforcement. Mandatory reporting also risks deepening surveillance of already vulnerable groups, and collateral penalties, such as disenfranchisement or exclusion from welfare schemes, may end up harming women and children more than the men targeted.

In defence of the Bill, Chief Minister Himanta Biswa Sarma asserted that it does not single out any one community and that its provisions would prohibit the practice not only among Muslims but also among Hindus and Christians. This claim of neutrality, however, must be situated within India’s existing legal framework and Assam’s demographic reality. Assam’s demographic estimates in 2021 suggested that Muslims constituted close to 40 percent of Assam’s population, around 14 million out of 35 million. Given this, it does not preclude acknowledging that this Bill will disproportionately impact the Muslim community in Assam. 

The different manifestations of polygamy and the risks of selective framing

A few days before the passing of the Bill, Sarma had stated that his administration would continue its measures against what he termed “illegal or suspicious Miyas,” noting that “eviction drives will continue, polygamy will end. Nobody can stop me.” The subtext being that polygamy is exclusively associated with Muslims.

It is important to distinguish between opposition to polygamy itself and opposition to the law’s framing and implementation. Studies show that polygamy reinforces gender hierarchies, and the emotional and economic vulnerabilities among women. Its abolition can be defended on both constitutional and feminist grounds, even if the immediate consequences are unevenly felt. The challenge, however, arises when the political dispensation portrays itself as the protector of Muslim women who must be rescued. 

Earlier in 2022, Sarma had stated that a Uniform Civil Code would act as “protection” for “Muslim daughters,” after National Family Health Survey data showed that 3.6% of Muslim women in Assam are in polygamous marriages. 

However, another noteworthy fact is the subsistence of polygamy within the Hindu fold. Even after 70 years of the Hindu Marriage Act, 1955 (HMA), 1.8% of Hindu women in Assam are still in polygamous marriages as per NFHS-5. The HMA had sought to establish monogamy as the legal norm for Hindus.

Before the HMA, which formed part of the larger Hindu Code Bill, polygamy was relatively common among Hindus. The 1974 Report of the Committee on the Status of Women in India titled Towards Equality, published by the Ministry of Social Welfare and Education, documented the persistence of polygyny among Hindus, Muslims and tribal communities (see pages 66–67). This report also contained census data for 1951-60, which showcased that across India, polygynous unions were statistically visible: 5.06 percent among Hindus, 4.31 percent among Muslims and 17.98 percent among tribal groups. In her article, Hindu Men, Monogamy and Uniform Civil Code (1995), Flavia Agnes reproduced this data.

When the Hindu Code Bill was first presented in the Constituent Assembly, many conservative sections, including the RSS, Hindu Mahasabha, religious leaders, and certain members of the Congress party, had opposed the legislation, framing it as an unwarranted interference in religion. The Ram Rajya Parishad contended that the Bill conflicted with Indian culture and women’s duties toward husbands, calling for its repeal if enacted. Dr. Rajendra Prasad, then President of India, had remarked that his wife would never support divorce and attributed support for the Bill to “over-educated” women. 

Dr. B.R. Ambedkar ultimately resigned from the post of the law minister as a result of protest over delays in passing the Bill. He wrote, “No law passed by the Indian Legislature in the past or likely to be passed in the future can be compared to it (Hindu Code) in terms of its significance. To leave inequality between class and class, between sex and sex which is the soul of Hindu society, untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap. This is the significance I attached to the Hindu Code.”

However, the law remains weak in certain situations. Courts have held that a second marriage counts as bigamy only if all essential marriage rituals are properly proved. In Bhaurao Shankar Lokhande v. State of Maharashtra (1965), the accused was not punished for bigamy because the second marriage did not meet the legal requirements of a valid marriage.

Similarly, in Assam, failure to prove solemnization of second marriages have led to acquittals. In Boloram Baruati v. Mt. Surjya Baruati (1968), the Court held that the prosecution was required to prove that the essential saklong ceremonies were actually performed and a bare admission of a second marriage, without evidence of the requisite customary rites, was held insufficient to sustain a conviction under Section 494 IPC.

In Gopal Lekharu v. State of Assam (2005) it was held that the prosecution had failed to establish the essential ingredient of a validly solemnized first and second marriage according to Hindu rites and the conviction and sentence were set aside, and the accused was acquitted. Recently, in Bhupen Nath v. State of Assam (2025), the Gauhati High Court held that a priest’s bare assertion that the marriage was performed according to Vedic rites or "Yajurveda", coupled with a marriage certificate lacking details of the rituals, was insufficient to establish a valid second marriage, warranting acquittal.

The focus, therefore, is not on the social fact of a second union, but on its technical legal validity. A man may enjoy the social and domestic benefits of marriage with another woman while evading criminal sanction for bigamy as the second relationship lacks legal solemnisation. Consequently, the first wife may find it difficult to invoke criminal remedies. As a result, polygamous arrangements continue to exist outside the reach of criminal law, even within communities ostensibly governed by a monogamy mandate.

Against this backdrop, the crucial question is not merely whether polygamy should be banned for all, but how such a ban will be enforced in practice. If a law prohibiting polygamy is extended across communities, will it meaningfully address these technical barriers? The concern, therefore, is not formal equality, but operational equality. The answers depend entirely on how this Bill is exercised. That said, provisions allowing victims to seek compensation are a positive aspect. 

The tiff between personal and fundamental rights

India’s pluralistic legal architecture, in the absence of a uniform civil code, treats marriage, divorce, and succession according to religious personal laws. For most Indian citizens, including Hindus, Christians, Parsis, and others, monogamy is the legal norm. A second marriage during the subsistence of the first is void and criminal under Section 82 of the Bharatiya Nyaya Sanhita, 2023. Muslim personal law stands out as the only major exception. Under the Muslim Personal Law (Shariat) Application Act, 1937, Muslim men are permitted to marry up to four wives. Consequently, Section 82 of the BNS doesn’t apply to them. This legal dichotomy has long fueled calls for reform and a common civil code, making the constitutional question loom at large: Can the State intervene to criminalise a practice that the personal law permits?  

One legal obstacle to answering this is the Bombay High Court’s 1952 ruling in State of Bombay v. Narasu Appa Mali (1951), which held that personal law is not “law in force” under Article 13 and therefore insulated from fundamental rights’ review. This early post-Constitution stance created a constitutional enclave for practices rooted in personal law, even when they directly affected equality, agency, or dignity. 

As Indian constitutionalism evolved toward a rights-centred, transformative model, Narasu increasingly appeared anomalous for privileging tradition over individual dignity. In Shayara Bano v. Union of India (2017), the Court confronted talaq-e-biddat. The majority held the practice unconstitutional under Article 14 and emphasised that because the Shariat Act recognised it, it fell squarely within “law” subject to Article 13. Justice Kurian Joseph concurred separately, grounding his reasoning in the Quran to conclude that “what is bad in Quran cannot be good in Shariat, and what is bad in theology is bad in law as well”. The minority reaffirmed Narasu, but it acknowledged the arbitrariness of the practice and stayed it for six months for the Parliament to legislate. Although Narasu was not overturned, the multiple doctrinal routes in Shayara Bano reflected a larger shift towards treating personal law-based practices as open to constitutional principles, especially when codified or given legal effect.

In the Indian Young Lawyers Association v Union of India (2018), the Sabarimala judgment, Justice Chandrachud’s opinion directly questioned Narasu and contested the idea that personal law norms are immune from constitutional scrutiny. He argued that any rule that governs civil life with legal force must be capable of being tested against fundamental rights. Justice Nariman too signalled that Narasu cannot survive modern constitutional interpretation: 

“However, in a suitable case, it may be necessary to have a re- look at this judgment in that the definition of “law” and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law.”

The ‘essential religious practice’ pathway

Although Narasu concerns the fundamental-rights status of personal laws, courts have consistently held that practices not deemed essential to a religion do not enjoy constitutional immunity from State regulation. Even without resolving the Article 13 question, judicial decisions have repeatedly held that specific practices associated with personal law must satisfy the constitutional tests under Article 25. This has allowed courts to assess practices such as polygamy on the touchstone of the essential religious practice doctrine.  

Illustratively, in Mohd. Hanif Quareshi v. State of Bihar (1958), the Supreme Court upheld a total ban on cow slaughter rejecting the argument that it interfered with religious practices of Muslims. The Court held that sacrificing a cow on Eid was not an obligatory act, and hence not constitutionally protected. This logic has since been applied to religious practices, permissible but not mandatory, to decide whether they warrant constitutional protection. The Gujarat High Court in R.A. Pathan (1980) concluded that a bigamous marriage amongst Muslims is neither a religious practice nor a religious belief and rejected the claim that bigamy enjoys protection under Articles 25.

In Javed v. State of Haryana (2003), the Supreme Court upheld a law disqualifying individuals with more than two children from contesting panchayat elections. The petitioners argued that Islam permitted polygamy and large families. The Court observed:

“The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. In our view, the question of the impugned provision of Haryana Act being violative of Article 25 does not arise.”

Similarly, in Khursheed Ahmad Khan v. State of U.P. (2015), the Supreme Court held that personal law practices like polygamy can be regulated in the interest of public welfare and gender justice as they are not essential practices. 

In a recent Kerala High Court ruling, Justice P.V. Kunhikrishnan analyzed Quranic texts to assert that Islam permits polygamy only in strict conditions, notably, the ability to treat all wives with equal fairness. The Court noted that the true spirit of Islamic law leans toward monogamy and that polygamy is a rare exception, not a rule. It reminded the state of its duty to protect women trapped in exploitative marriages and to counsel men unfit to support multiple spouses. These decisions collectively form a robust constitutional basis for states like Assam and Uttarakhand to legislate bans on polygamy, even among Muslims.

The Bharatiya Muslim Mahila Andolan, an autonomous rights-based mass organisation, in its study released in December 2022, which covered women in polygamous households across eleven states, revealed that 84 percent of respondents believed polygamy should be prohibited, and 73 percent felt that husbands who marry again should face legal penalties. Nearly 45 percent reported that their husbands threatened divorce if they objected to a second marriage, illustrating the coercive environment in which the practice often operates. The overwhelming majority described experiencing betrayal, loss of dignity, and erosion of self-respect when their husbands took additional wives. The report further noted that half of the 289 women surveyed suffered from severe mental trauma, including depression. 

While Assam’s Bill against polygamy is a step forward, its enforcement will be the real test. Mandatory reporting requirements can deepen surveillance within vulnerable communities. Collateral penalties such as disenfranchisement or disqualification from welfare benefits may disproportionately affect women and children, particularly when the burden of proof or documentation is difficult to meet. The measure of success, therefore, will lie not merely in criminalising polygamy but in ensuring that enforcement does not reproduce new forms of exclusion, state overreach, or gendered harm.