Contents
Introduction
Following a petition filed by women’s rights activists, the Supreme Court sought the Union government’s response on challenging the constitutional validity of polygamy and applying Section 82 of the BNS uniformly across all communities; testing whether personal law can withstand contemporary gender-justice standards.
Arguments Against Personal Law Exemption
- Constitutional Equality & Non-Discrimination: Exemption of specific personal laws from bigamy laws violates Article 14 (equality before law) and Article 15 (prohibition of discrimination on grounds of sex). Example: Article 14 Violation.
- Right to Dignity and Gender Justice: Polygamy impairs a woman’s right to live with dignity and equal status within marriage under Article 21. Example: Article 21 Dignity.
- Uniform Criminal Law Standards: Applying Section 82 of BNS (which criminalizes bigamy) uniformly removes discriminatory personal law exceptions. Example: Uniform BNS Application.
- Socio-Economic Vulnerability: Non-monogamous arrangements often leave first wives and children without housing, inheritance, or immediate maintenance guarantees. Example: Maintenance Security Gaps.
- Qualified Freedom: Article 25 religious freedom is subject to public order, morality and health and does not automatically immunise every social practice associated with religion.
However, the Court must distinguish religious faith from secular marital regulation rather than assume that every personal-law rule is a religious essential.
Jurisprudential Evolution
The Supreme Court has progressively subjected family practices to constitutional scrutiny:
| Case | Significance |
| Sarla Mudgal (1995) | Conversion cannot be used to circumvent monogamy requirements under Hindu law (Anti-evasion principle). |
| Lily Thomas (2000) | Reinforced the prohibition against using conversion to contract a second marriage. |
| Javed v. State of Haryana (2003) | Upheld restrictions on persons with more than two children contesting Panchayat elections; polygamy was discussed as not an unavoidable religious obligation. |
| Shayara Bano (2017) | Instant triple talaq was invalidated, with constitutional equality and arbitrariness becoming central to personal-law scrutiny (Constitutional morality). |
Thus, Shayara Bano provides an important but not automatic precedent for examining discriminatory personal-law practices.
Arguments & Protectionist Perspectives
- Protection of Essential Religious Practices: Article 25 protects personal law traditions, provided they do not violate public order, morality, or health. Example: Article 25 Protection.
- Judicial Overreach vs. Legislative Domain: Reform of personal laws is traditionally seen as a legislative task under Article 44 (Uniform Civil Code) rather than a matter for judicial mandates. Example: Article 44 Legislative Mandate.
Arguments Cautioning Against Judicial Overreach
- Religious Autonomy: Article 25 protects freedom of conscience and religion, while personal laws are intertwined with community identity. (Pluralism)
- Separation of Powers: Parliament, not courts may be better placed to undertake comprehensive personal-law reform, particularly in light of Article 44’s Uniform Civil Code directive. (Institutional restraint)
- Risk of Selective Reform: Singling out one community can generate perceptions of majoritarianism unless the principle is framed universally. (Equal treatment)
- Constitutional Balance: The objective should not be uniformity for its own sake, but equality without erasing legitimate religious freedom.
Way Forward
- Extend Section 82 of BNS Uniformly: Eliminate statutory exemptions to ensure criminal penalties for bigamy apply across all religious affiliations. Example: Universal BNS Application.
- Mandate Civil Marriage Registration: Enforce compulsory registration of all marriages and divorces to protect spousal rights and prevent clandestine second marriages. Example: Compulsory Marriage Registration.
- Statutory Guarantees for Matrimonial Rights: Secure fast-track maintenance, housing access, and child custody rights for affected spouses. Example: Fast-Track Matrimonial Relief.
- Protect religious dialogue: Consult community scholars, women’s organisations and civil society while retaining constitutional supremacy. Example: Participatory reform)
- Improve economic agency: Expand women’s financial inclusion, employment and property ownership so formal rights translate into bargaining power. Example: Substantive empowerment.
Conclusion
As Justice D.Y. Chandrachud’s constitutional morality jurisprudence reminds us, dignity and fraternity must animate pluralism; India should reconcile religious freedom with gender equality without sacrificing either constitutional supremacy or diversity.
