Context: A tribal woman from the Hatti community in Himachal Pradesh married two brothers under a traditional system of Polyandry.
Relevance of the topic:
Prelims: About Hatti tribe and the concept of polyandry in India.
Mains: Legal status of polyandry in India and key SC Judgements.
What is Polyandry?
- Polyandry refers to a marriage system where one woman has more than one husband.
- It has been practiced historically in Tibet, Nepal, and some tribal communities of India like the Toda in Tamil Nadu, Kinnaura in Himachal, and Jaunsaris in Uttarakhand.
- In the Hatti tribe, polyandry is practiced primarily for preserving undivided family property, especially agricultural land, and reinforcing brotherly ties.
The Hindu Marriage Act, 1955:
- The Act governs marriage applicable to Hindus, Buddhists, Jains and Sikhs.
- Section 2(2) of the Act states that its provisions do not apply to STs, unless directed by the Central Government via a notification in the Official Gazette.
- In the absence of such a notification, the Hattis continue to be governed by laws laid down under their customs, which are undocumented and uncodified.
- The Act defines “custom” under Section 3 as a rule that has been observed for a long time, and has obtained the force of law.
Legal Status of Polyandry in India
- Polyandry and Polygamy are outlawed by the Special Marriages Act 1954, the Hindu Marriage Act 1955, and criminalised under the Bharatiya Nyaya Sanhita.
- While marriage is governed by personal laws, customary practices of Scheduled Tribes (STs) are recognised by the Constitution under Article 342. STs enjoy distinct legal status and cultural autonomy under constitutional provisions like Part XXI and the Fifth Schedule.
- But for a customary law to be valid, it must be certain, reasonable, and consistent with public policy.
- When a customary law is challenged, it does not automatically gain legal recognition; courts have to be provided with proper evidence that such customary laws prevail.
Note:
- The Uttarakhand UCC mandates the registration of marriage, establishes equal rights of spouses across religions and communities and prohibits polygamy. However, in line with the constitutional provisions of respecting tribal autonomy, it does not apply to Scheduled Tribes.
- As per Section 2 of the Uttarakhand UCC Rules, 2025, the Code exempts members of Scheduled Tribes (as defined under Article 366(25) read with Article 342), and those whose customary rights are protected under Part XXI of the Constitution.
Key Supreme Court Judgments
Courts have held that customs must align with fundamental rights such as equality, dignity, and liberty; any custom violating these is deemed unconstitutional.
- Triple Talaq Case (Shayara Bano v. Union of India, 2017): The Supreme Court declared the practice of triple talaq as unconstitutional as it was deemed arbitrary, unreasonable and violative of Article 14 and 21 of the Constitution.
- Sabarimala Case 2018: The ban on entry of women of menstruating age into the Sabarimala temple was held discriminatory and unconstitutional, violating Articles 14, 15, and 21. The Court ruled that religious customs cannot override gender equality.
- Ram Charan Vs Sukhram case 2025: In a case related to succession rights for tribal women, the court affirmed that excluding female heirs solely based on customary male preferences violates Article 14 of the Constitution.
In various judgments, the SC has observed that customs too, like the law, cannot remain stuck in time and others cannot be allowed to take refuge in customs or hide behind them to deprive others of their rights.