Why The Assam Polygamy Ban Is Both Constitutional And Necessary

Since independence, India has often had several instances of uneasy intersection of legal frameworks, religious freedom, and gender equality. The Assam Prohibition of Polygamy Bill, 2025, upon its enactment, brought this uneasy intersection back to public discourse.

Despite criticism from certain quarters, the bill represents a necessary and long-delayed reform to safeguard women's rights, in the spirit of the dictum 'A Constitution that promises equal citizenship cannot look away from practices that quietly undermine it.'

The Legal Procedure Prior to the Enactment

On 12 May 2023, the State Government of Assam announced the formation of a four-member expert committee headed by retired Justice Rumi Kumari Phukan, with the other members being the state's Advocate General, Devajit Saikia; Senior Additional Advocate General, Nalin Kohli; and senior Advocate, Nekibur Zaman.

The committee was tasked with examining the state's legislative competence to enact a law to end polygamy in Assam. It was to do so by studying the provisions of the Muslim Personal Law (Shariat) Act, 1937, and religious rights in relation to fundamental rights and the Directive Principles of State Policy, with a view to protecting women's rights in marriage. The committee's report concluded that the state has the legislative authority to enact a law prohibiting polygamy.

The report included cases of abandonment and unregistered marriages in polygamy. It also highlighted women's economic vulnerability and the risks from the dereliction of marital obligations, especially during marriage breakdown due to polygamy. The Assam Prohibition of Polygamy Bill seeks to protect women's rights in cases of exploitation arising out of immoral customary practices.

Empowerment of Women

The enacted bill is part of the State Government's mission to empower women in Assam. According to the National Family Health Survey, 32 out of every 100 girls in the state aged 20–24 were married before 18. Among the 100 such child brides, 12 were found to be either pregnant or have already become mothers.

Under these conditions, most women depend on their husbands for income. NCRB data shows that cruelty by husband or relatives is a top crime against women in the state. Legal aid and district courts report a series of cases where women are denied maintenance, inheritance, and welfare due to unregistered, disputed, or polygamous marriages. This bill is intended to address these problems.

Despite critics calling the bill unconstitutional and targeting selected communities, Chief Minister Himanta Biswa Sarma presented it as part of women-centric policies, aligned with other women-empowering schemes such as Orunodoi and Nijut Moina.

Constitutional Authority to Legislate on Marriage

The Assam Prohibition of Polygamy Bill is drafted under the legislative competence conferred by the power of the state to make laws on marriage and divorce as part of the Concurrent List. The expert committee reported that the Assam Legislative Assembly has legislative authority on polygamous practices that infringe fundamental rights of women and exploit the vulnerable section of society.

However, because it addresses a Concurrent List subject, it requires the President's assent to ensure it does not clash with any central laws. With this assent, the State Government can address social realities and protect women's rights within its jurisdiction.

Protection of Women's Fundamental Rights

There are several instances where polygamy could exploit the fundamental rights of women by adversely affecting their dignity, personal security, and autonomy within marriage. It must be noted here that Article 21 of our Constitution protects not only life in the physical sense but also life with dignity, which is undermined by polygamy practices.

Thus, this bill seeks to protect the right to life and personal liberty of a woman who is impacted through physical, emotional, and financial insecurity caused by abandonment or legal ambiguity in marital obligations. It also provides equality for women, as in cases of polygamous marriages, spouses often face unequal access to maintenance, inheritance, and property rights based on the husband's interests, depriving them of their basic rights.

While judicial scrutiny is limited in personal law cases, there are instances in which courts have recognised and clarified that provisions of personal law are not immune from constitutional review when they infringe fundamental rights, thereby reopening the question of polygamy's compatibility with the right to equality and dignity under the Constitution. This is because, with no rational basis to justify gendered discrimination, polygamy undermines equality.

Constitutional developments and Supreme Court jurisprudence have established that polygamy is not an essential religious practice protected under religious rights and therefore must yield to fundamental rights.

Safeguarding Muslim Women

Available data, notably the NFHS-5, have shown that polygamous marriages are significantly more common among the Muslim communities in Assam than among other communities, even as the overall practice has declined.

The persistence of polygamy is closely linked to socio-economic vulnerability, with a higher incidence among women with lower education, limited income, and reduced access to legal remedies, conditions that deepen dependence on marital stability.

District-level patterns further show a concentration of polygamy in Muslim-majority areas of the state, such as Karimganj. Importantly, studies and community-based surveys reflect strong opposition to polygamy among Muslim women themselves, who consistently cite abandonment, denial of maintenance, and financial insecurity following subsequent marriages.

Seen in this light, the Assam Prohibition of Polygamy Bill addresses a community-specific harm by strengthening marital accountability and securing women's rights to dignity, security, and equal protection within marriage.

Abandonment and Legal Security in Marriage

Abandonment by husbands is a significant issue in Assam, particularly among rural and economically vulnerable communities. Women left by their spouses often face immediate financial insecurity, as many rely on their husbands' income for daily needs and have limited access to independent work.

Beyond finances, abandonment impacts legal and social rights, with women struggling to claim maintenance, inheritance, or access to welfare schemes tied to household growth. The emotional toll is profound, affecting decision-making autonomy and social standing within their communities.

Children of abandoned women also face disruptions in education and health support, radically affecting the next generation. Without clear legal recognition and enforceable obligations, abandoned or marginalised spouses face prolonged insecurity. The Assam Prohibition of Polygamy Bill addresses these gaps, providing a protective framework.

Safeguards and Exemptions

The Assam Prohibition of Polygamy Bill is drafted carefully, ensuring constitutional alignment and the state's duty. It assigns responsibilities to local authorities, religious officials, and guardians to prevent polygamous marriages and provides for compensation to affected women.

The bill expressly excludes Scheduled Tribes and areas governed under the Sixth Schedule. This exemption respects tribal communities by providing self-governance through autonomous district and regional councils. These councils have legislative powers over matters affecting their tribes.

Crucially, the legislation is prospective, targeting conduct rather than belief. It penalises only the act of entering into a second marriage while a valid first marriage subsists. Regulating this aspect of marriage avoids criminalising religious faith as it is consistent with established legal principles.

States such as Goa and Uttarakhand have enacted laws to ensure uniformity in marriage and to enforce obligations to protect women's rights. Assam's bill, in furtherance of the same, codifies monogamy as a legal standard, harmonising state action with constitutional morality and judicial precedent, while directly addressing the social problems documented in the state.