Two brothers marry the same woman in Himachal, reviving ancient polyandry traditions. But is polyandry legal in India? Know the law, legality, and exceptions under Indian Marriage Acts.
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HIMACHAL: A recent wedding in Himachal Pradesh’s Shillai village has revived a centuries-old tradition and raising serious legal questions. Sunita Chauhan’s marriage to two brothers, Pradeep and Kapil Negi, was not only conducted with full community participation but also openly celebrated.
While such a practice may seem unconventional in the modern Indian context, it is not entirely unfamiliar to the Hatti community residing in the region. The tradition in question? Polyandry, a woman having more than one husband.
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What is Polyandry?
Polyandry is a social system where a woman is married to two or more men at the same time. The term comes from the Greek words poly (many) and andros (man).
A common form, called fraternal or adelphic polyandry, involves brothers sharing one wife with mutual consent. In such arrangements, children may be considered the offspring of all husbands collectively, the eldest brother alone, or according to cultural ceremonies that assign paternity.
This differs from polygyny, where a man has multiple wives, sometimes sisters, in a practice known as sororal polygyny.
Types of Polyandry
- Fraternal Polyandry:
Brothers jointly marry one woman, often to prevent division of family land and property. Common in mountainous regions with limited resources, this form ensures family unity and mutual support. Children are considered the offspring of all co-husbands.
- Non-Fraternal Polyandry:
Here, a woman marries two or more men who are not related. Often seen among nomadic or herding communities, these unions are usually temporary and formed for practical needs like protection or economic support during migrations.
- Serial Polyandry:
In this form, a woman marries multiple husbands at different times in her life, typically due to divorce or widowhood. Common in past societies with low life expectancy, it provided stability and care for children from earlier marriages.
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Is Polyandry Legal in India?
Polyandry, though rare, has traditionally been practiced in parts of India, especially in the Himalayan regions of Himachal Pradesh, Uttarakhand, and Jammu & Kashmir. The main forms observed are fraternal and serial polyandry.
Fraternal polyandry was common among tribal communities like the Gaddis and Gujjars, where brothers shared a wife to retain undivided family land and jointly manage livestock—key sources of wealth. These co-husbands shared responsibilities, including childcare and household work.
Serial polyandry occurred mainly among widows in rural areas, where remarriage provided economic support for the woman and her children. The new husband would often care for both his own and her previous children.
With urbanization, education, and legal reforms, polyandry in India has sharply declined. It is now largely considered illegal and socially unacceptable, with efforts focused on shifting community mindsets away from such practices.
According to Section 5 of the Hindu Marriage Act, 1955, a valid Hindu marriage must be monogamous. The provision clearly states that “neither party has a spouse living at the time of the marriage.” This clause automatically renders any polyandrous or bigamous marriage void under the Act.
Furthermore, bigamy is criminalized under Section 82 of the Bharatiya Nyaya Sanhita (BNS). Marrying again during the lifetime of a spouse, without securing a legal divorce, is a punishable offence under this provision.
The Special Marriage Act also includes similar language, affirming that neither party can have a living spouse at the time of marriage.
Exceptions
However, the legal landscape becomes more nuanced when it comes to Scheduled Tribes (STs). The Hindu Marriage Act does not apply to members of Scheduled Tribes, unless explicitly directed by the Central Government through a notification in the Official Gazette. Under Article 342 of the Constitution, Scheduled Tribes are identified based on their traditional customs and social practices.
Advocate Ibad Mushtaq points out that customary practices among Scheduled Tribes are not governed by the Hindu Marriage Act. Therefore, traditional polyandrous marriages like the one in Shillai may be considered valid within their community context.
Adding to that, Advocate Tarini Nayak highlights that the Hindu Marriage Act does carve out exceptions for valid customary practices, as long as they are time-honored and accepted within the community. These practices, however, must withstand scrutiny under the standards of ancientness, certainty, reasonableness, and alignment with public morality and policy.
The Indian Evidence Act also plays a role here. Section 13 of the Evidence Act allows for the admission of customs as relevant facts, especially when a legal right or custom is in question. Courts, over time, have evolved a framework to evaluate whether such customs are valid, weighing them against tests of public policy, morality, and legal reasonability.
Advocate Rajat Nair affirms that while such marriages would be legally void under statutory law, the reality is that unless someone challenges them in court, there is no practical implication. He emphasizes that monogamy is the only legally recognized form of marriage and any deviation—even if culturally sanctioned- is legally tenuous unless proven otherwise in a court of law.
Interestingly, Advocate Tarini Nayak also brings up a possible loophole in Section 5 of the Hindu Marriage Act. The law specifies that at the time of marriage, neither party should have a living spouse. This has led to speculation: if two marriages occur simultaneously, when neither party is legally a “spouse” yet, can the union fall outside the technical scope of a “void” marriage?
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