Why is the Supreme Court examining polygamy again? | Explained
The Supreme Court issued notice to the Central Government on a petition seeking to declare the practice of polygamy under Muslim personal law unconstitutional
The petition was filed by women's rights activists and contends that permitting polygamy for one community while criminalising bigamy for others is discriminatory
Petitioners have sought uniform application of the bigamy provision under the Bharatiya Nyaya Sanhita, removing the personal-law exemption currently available to Muslim men
The matter revives a long-running constitutional debate about the boundary between religious freedom and fundamental rights to equality and dignity
Article 25 — Freedom of Religion and Its Constitutional Limits
Article 25 guarantees the freedom of conscience and the right to freely profess, practise, and propagate religion, but this right is explicitly "subject to public order, morality and health and to the other provisions of this Part [Part III, Fundamental Rights]." Courts have consistently distinguished between practices that are "essential" or integral to a religion (constitutionally protected) and practices that are merely "permitted" but not obligatory (not automatically protected).
Key Details
- Article 25(1) is qualified by public order, morality, and health, and by other Fundamental Rights, including Article 14 (equality) and Article 21 (life and personal liberty)
- Article 25(2)(b) explicitly empowers the State to make laws for social welfare and reform even where they touch on religious practice — the constitutional hook used to justify legislative and judicial intervention in personal law
- In Khursheed Ahmad Khan v. State of U.P. (2015), the Supreme Court upheld a state conduct rule penalising a government servant's second marriage, holding that "what was permitted or not prohibited by a religion does not become a religious practice" — polygamy was found to be permitted, not mandated, by Islam, and therefore not protected as an essential religious practice
The current petition builds directly on the "essential religious practice" test — arguing that since polygamy is merely permitted (not obligated) under Muslim personal law, it does not enjoy Article 25 protection and can be tested against Articles 14, 15, and 21.
The Essential Religious Practices Doctrine and Personal Law Reform
Indian courts have developed the "essential religious practices" test to determine which religious customs merit constitutional protection under Article 25, distinguishing genuinely essential tenets from social or cultural practices that have merely acquired religious sanction over time. This doctrine has been the primary judicial tool for reforming personal law practices — triple talaq, sati, and now potentially polygamy — without a legislated Uniform Civil Code.
Key Details
- In Shayara Bano v. Union of India (2017), a 3:2 majority of a Constitution Bench struck down instant triple talaq (talaq-e-biddat) as unconstitutional, applying similar reasoning that the practice was not essential to Islam and violated Article 14
- Parliament subsequently codified the ban through the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalising instant triple talaq
- The pending polygamy petition follows the same doctrinal template as the triple talaq litigation — arguing a practice is inessential to religion and therefore open to constitutional scrutiny and legislative reform
The Supreme Court's willingness to issue notice signals it may apply the same essential-practices framework used in Shayara Bano, potentially leading to either a judicial reading-down of the personal law exemption or a legislative response akin to the 2019 triple talaq law.
Bigamy Law and the Personal Law Exemption — IPC/BNS Section on Bigamy
Indian criminal law criminalises bigamy generally, but the offence is defined with reference to a marriage that is "void by reason of its taking place during the life of a husband or wife" — meaning it applies only if the personal law governing the parties treats a second marriage as void. Since Muslim personal law (uncodified, based on Islamic jurisprudence) permits a Muslim man up to four wives, a second Muslim marriage is not "void," and bigamy provisions do not apply to Muslim men, while they do apply to Hindus, Christians, Parsis, and Muslim women.
Key Details
- The bigamy offence, earlier under Section 494 of the Indian Penal Code, is now codified as Section 82 of the Bharatiya Nyaya Sanhita, 2023 (which replaced the IPC from July 2024) — the underlying "void marriage" definitional structure is retained
- Hindu Marriage Act, 1955 (Section 5(i) and 17) and other codified personal laws make monogamy mandatory for their communities, triggering bigamy liability on a second marriage; Muslim personal law, being uncodified, does not
- In Sarla Mudgal v. Union of India (1995), the Supreme Court held that a Hindu man converting to Islam solely to contract a second marriage without dissolving the first commits bigamy under Section 494 IPC, and invoked Article 44's Directive Principle on a Uniform Civil Code, though DPSPs remain non-justiciable under Article 37
The petitioners' demand for "uniform application" of Section 82 BNS is a direct request to remove the personal-law carve-out that currently makes a second Muslim marriage not "void" and therefore outside the bigamy provision's reach — the technical mechanism through which any judicial or legislative reform would operate.
- Petition filed by women's rights activists; Supreme Court issued notice to the Centre on July 31, 2026
- Constitutional grounds cited: Articles 14 (equality), 15 (non-discrimination), 21 (life and dignity), and the public order/morality limitation in Article 25
- Current bigamy provision: Section 82, Bharatiya Nyaya Sanhita, 2023 (successor to Section 494, IPC)
- Key precedents: Sarla Mudgal v. Union of India (1995) — bigamy via conversion; Khursheed Ahmad Khan v. State of U.P. (2015) — polygamy not an essential religious practice; Shayara Bano v. Union of India (2017) — triple talaq unconstitutional (3:2)
- Legislative precedent for personal law reform via statute: Muslim Women (Protection of Rights on Marriage) Act, 2019 (post-Shayara Bano)
- Directive Principle invoked in personal law reform debates: Article 44 (Uniform Civil Code), non-justiciable under Article 37