PRIVATE INTERNATIONAL LAW.

JAIPUR NATIONAL UNIVERSITY

SEEDLING SCHOOL OF LAW AND GOVERNANCE
(2019-20)

PRIVATE INTERNATIONAL LAW.

“CONCEPT OF POLYGAMOUS MARRIAGE –
A BRIEF STUDY”

Submitted To: Submitted By:

Mr.Rahul Singh Dikshita Khurana

Assistant Professor BBA LLB, IX Sem
SSLG, JNU SSLG, JNU

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DECLARATION

I hereby declare that the project work entitled “Concept of Polygamous Marriage- A Brief Study”
submitted to the Seedling School of Law and Governance, Jaipur National University, Jaipur, is a
record of an original work done by me under the guidance of Mr. Rahul Singh, Assistant Prof. (Law)
Seedling School of Law & Governance, Jaipur National University, Jaipur, and this project work is
submitted in the partial fulfilment of the requirements for the award of the degree of Bachelor in
Laws. The results embodied in this project have not been submitted to any other University or
Institute for the award of any degree or diploma.

DIKSHITA KHURANA

(i)

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CERTIFICATE

This is to certify that the project entitled “Concept of Polygamous Marriage- A Brief Study”
submitted to Seedling School of Law and Governance, Jaipur National University, Jaipur, in partial
fulfillment for the award of degree of Bachelor in Law, is a record of bona fide work carried out by
Dikshita Khurana, BBA LLB IX SEM, under my supervision and guidance.

All help received by her from various sources have been duly acknowledged.

No part of this project has been submitted elsewhere for award of any other degree.

(Mr.Rahul Singh)

Assistant Professor

Seedling School of Law and Governance.

Jaipur National University

Place: Jaipur

Date: 15 November, 2019

(ii)

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ACKNOWLEGDEMENT

I have written this project entitled as “Concept of Polygamous Marriage- A Brief Study”.
I am highly indebted to Mr. Rahul Singh, Assistant Professor, Seedling School of Law and
Governance, Jaipur National University, Jaipur for her guidance and constant supervision as well as
for providing necessary information regarding the project and also for developing an analytical
approach for this work.
I would like to express my gratitude towards library staff of the college for support and cooperation
extended by them from time to time.

Dikshita Khurana

9thSemester

Seedling School of Law and Governance,

Jaipur National University,

Jaipur

(iii)

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TABLE OF CONTENTS

Declaration…………………………………………………………………………………i

Certificate…………………………………………………………………………………...ii

Acknowledgement…………………………………………………………………………..iii

CH-1 Introduction…………………………………………………………………………7

CH-2 Polygamous Marriage in India.............……………………………………..............8

CH-3. Characterization……………………………….…………………………………...10

CH-4 Law determining the nature of Marriage……………………………………………12

CH-5 Capacity to Contract a Polygamous Marriage………................................................13

CH-6 Recognition of Polygamous Marriage in England………………………………….15

CH-7 Conclusion…………………………………………………………………………………….17

Bibliography………………………………………………………………………………………….18

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TABLE OF CASES

1. Hyde v. Hyde (1866) L.R. 1 P.&D. 130

2. Baindail v. Baindail, [1946] P. 122, 125
3. Muhammad v. Suna [1956] S.C. 366;
4. Khan v. Khan [1963] V.R. 203;
5. Lee v. Lau [1967] P. 14
6. Warrender v Warrenderand 1835) 2 C 1, & F. 488,532.
7. Chetti v. Chetti 1898 P. 178.
8. Ali v. Ali [1968] P 564, [1966] 1 All ER. 664.
9. Radwan v. Radwan [1973] Fam. 35
10. Baindal v. Baindal 1946] P 122, 126 (C.A.).
11. Mohammad v. Knott [1969] l.Q.B. 1, 13-14.

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1. INTRODUCTION

Many legal systems permit polygamous marriage, under which a man may marry more than one wife.
Muslim countries around the world, including Jordan, allow polygamy, and in a number of African
countries it is permitted for people who celebrate their marriages under Muslim or customary law.
Polygamous marriages at one time, in United Kingdom, caused considerable difficulties in the conflict of
laws. For reasons, the difficulties have been considerably reduced in recent years, but may still exist in
connection with such matters as social security, taxation, and immigration.
In Hyde v Hyde1, an Englishman who had converted to the Mormon faith in 1847, married a Mormon
woman in Utah, United States, in 1853. They lived together in Utah until 1956 when the husband went on
a mission to what is now Hawaii. On arrival there, he renounced his faith and soon after he became the
minister of a dissenting chapel in Derby, England. He petitioned for divorce on the Ground of his wife‟s
adultery after she had contracted another marriage in Utah in accordance with the Mormon faith.
Lord Penzance refused to adjudicate on his petition on the ground that “marriage, as understood in
Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman
to the exclusion of all others,” and that this Mormon marriage was no marriage which the English
Divorce Court could recognize, because there was evidence that polygamy was a part of the Mormon
doctrine, and was the common custom in Utah. He said,” it is obvious” “that the matrimonial law of this
country is adopted to the Christian marriage, and is wholly inapplicable to polygamy2.” He also pointed
out that to divorce a husband at the suit of his wife on the ground of his bigamy and adultery with the
second, or to annul the second marriage on the ground that it was bigamous would be “creating conjugal
duties, not enforcing them, and furnishing remedies when there was no offence.” Lord Penzance at the
end of his judgment made the following important observation.
“This court does not profess to decide upon the rights of succession or legitimacy which it might be
polygamous unions, or upon the rights of or obligations in relations to third persons which people living
under the sanction of such unions may have created for themselves. All that is intended to be here decided
is that as between each other they are not entitled to the remedies, the adjudication, or the relief of the
matrimonial law of England.”

1
(1866) L.R. 1 P.&D. 130
2
Baindail v Baindail, [1946] P. 122, 125

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2. POLYGAMOUS MARRIAGE IN INDIA

Polygamy means a system of marriage whereby a person has more than one spouse. Polygamy can be of
two types – one is polygyny where a man marries more than one woman, and the other is polyandry,
where a woman marries more than one man. Polygamy and polyandry were prevalent in ancient India, but
it is doubtful whether they were ever popular in the public opinion. It was practiced mostly by the warrior
castes and rich merchants. Polygamy in ancient India was a matter of personal choice, status symbol and
at times social, moral and religious obligation. Marriage in traditional Hinduism was meant for progeny
and carrying out obligatory duties in accordance of a person‟s dharma so that the four major aims of
human life could be realized. If polygamy served these ideals, the Hindu law books did not object to its
practice. However, certain rules were laid down for its practice like who can marry more than once,
whom one can marry again, etc. The book Yagnavalkya Smriti prescribes that men should marry women
who were not married before. But the same rule was not mentioned in case of men. This book suggests
that if „a man‟s wife drinks alcohol, is sickly, cantankerous, barren, wastes money, quarrelsome, begets
only female children or is hostile to men, then he may take another wife.‟ In Islam, limited polygyny is
permitted; whereas polyandry is completely prohibited.
In today‟s times, marriage laws are well defined for every religion and these are to be practiced very
strictly. The Hindu Marriage Act of 1955 It is illegal for a man to have more than one wife. Islam is
another religion followed by a large number of people in India and it also has its own set of laws. Quran,
the holy book of Muslims, is the only religious scripture in the world that says „marry only one‟. The
claim is that in no other religious book there is this instruction to have only one wife. According to the
Hindu religious scriptures, whether it be the Vedas, the Ramayana, the Mahabharata or the Geeta, one can
marry as many as one wishes. It was only later, that the Hindu priests restricted the number of wives to
one.
In earlier times, Christian men were permitted as many wives as they wished, since the Bible puts no
restriction on the number of wives. It was only a few centuries ago that the Church restricted the number
of wives to one.
In modern times, a person is bound by the marriage laws laid down by their religion and have to be
adhered to and any deviation from the norms are considered to be illegal. Until recently, no scientific data
also was available at the national or regional level to assess whether polygamy is still practiced or is non-
existent. For the first time data required to study and understand such marriage practices was collected as
part of the 2005-06 National Family Health Survey. Data was collected from both women and men –

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women were asked a direct question whether besides herself, her husband had other wives and men were
asked if they currently have one wife or more than one wife3.

3
https://paa2010.princeton.edu/papers/100754

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3. CHARACTERIZATION.

There are various situations in which it is necessary for an English court to determine the nature of the
marriage.
Historically, in English law a marriage is polygamous not only if it is actually polygamous i.e. the
husband already has a wife or wives when he contracts a further marriage, but also if it is only potentially
polygamous the husband is single, but the nature of the marriage is such that he is permitted to take
further wives. Such a marriage is regarded as polygamous even if the husband never does take another
wife, or even that he solemnly promised to convert the marriage into a monogamous one. Moreover, if the
husband does take more than one wife, no distinction can be made between them4.
Husband‟s personal law does not permit him to take more than one wife, but does permit him to take
concubines; a marriage celebrated under such a law is polygamous, at any rate if concubine is a status
recognized by that law5
The classification of a marriage proceeds in accordance with the lex fori was clearly established in the
case of Lee v Lau6, in which a Hong Kong domiciliary went through a ceremony of marriage in Hong
Kong. In spite of the distinction drawn in Warrender v Warrenderand7, Hyde v Hyde8, between
“Christian” and “infidel” marriages, a marriage may be monogamous although neither party is a
Christian. The crucial question is whether the law under which the marriage is celebrated permits
polygamy; if it does not, the marriage is monogamous. On this basis Japanese marriages, Chinese
marriages after the abolition of polygamy in China in 1931, and Jewish marriages have been treated as
monogamous; so has a composite marriage ceremony at Singapore in mixed Chinese and Jewish form.
The same would no doubt be held of Hindu marriages celebrated in India after the Hindu Marriage Act
1955. A marriage may be monogamous although under the Lex loci celebrationis it can be dissolved by
mutual consent or at the will of either party, with merely formal conditions of official registration. The
essence of a marriage is not qualified by the means where by it may be dissolved if and when that
question falls to be determined. On this ground a marriage celebrated in Soviet Russia in 1924 was treated
as monogamous.

2.1 Change in the Nature of Marriage:

4
Muhammad v. Suna [1956] S.C. 366; Khan v Khan [1963] V.R. 203;
5
Lee v Lau [1967] P. 14
6
Lee v Lau [1967] P. 14.
7
(1835) 2 C 1, & F. 488,532.
8
(1866) L. R. 1 P. & D. 130,133, 133-136.

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However, there is further difficulty of principle. The law of the domicile at the time of the marriage,
whether actual or intended, should not be regarded as relevant in the characterization of the marriage. It
may appear somewhat incongruous to allow the law of a later domicile to change the nature of the
marriage. A learned commentator has suggested that a change of domicile should only have the effect of
changing the nature of the marriage if this is permitted by the lex loci celebrationis. Such an approach
appears to be unduly restrictive.
The first wife‟s rights of succession could also be protected if her marriage remains monogamous despite
the husband‟s second valid marriage. However, it is probable that spouses under polygamous marriages
can succeed as spouses under an English intestate succession. However, if there is a wife under a
monogamous marriage, it is arguable that she should take the whole of the surviving spouse‟s share, to
the exclusion of polygamous wives, in view of her expectation under the monogamous marriage of being
the only wife. It seems clear also that the wife under a monogamous marriage will be entitled to social
security benefits as such, even if there is a subsequent valid marriage. It seems then that the monogamous
character of a marriage is not affected by a subsequent marriage by the husband. It does not become a
polygamous marriage.

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4. LAW DETERMING THE NATURE OF MARRIAGE.

The other fundamental question which arises in connection with potentially polygamous marriages is the
question as to which law determines the nature of the marriage. Two answers are usually put forward :-
(1) the lex loci celebrationis,
(2) the lex domicilii.
Although the lex loci celebrationis is the solution which seems to find most favour in this country, it is
difficult to justify its authority. The function of the lex loci celebrationis in relation to marriage is the
determination of the form of the ceremony. The rights and duties of the parties as married persons adhere
to status, and it is surely a firmly established rule of Private International Law that status is determined by
the lex domicilii of the parties concerned, and therefore it would seem logically to follow that the
existence of the husband‟s right to take an additional wife if he so desires should be determined by the
husband‟s lex domicilii. Becket has pointed out that the determination of the applicable law depends upon
whether monogamy and polygamy are regarded as distinct institutions or not. Thus he states, “The first of
these views (i.e., that the lex domicili applies) proceeds on the assumption that there is but one institution
-marriage which includes both monogamous and polygamous marriage. The lex loci celebrationis only
governs the form of the marriage. Later he states “The alternative view is that polygamous marriage
although it shares the name marriage and has many results and incidents in common with monogamous
marriage, is an entirely different institution, so different that it is necessary to have regard to the actual
ceremony and the lex loci contractus not merely to ascertain whether there was a marriage, but also which
kind of marriage it was.”.
In Chetti v. Chetti9, a Hindu domiciled in India married in London a domiciled Englishwoman. She
claimed judicial separation on the ground of cruelty. The court granted the relief sought. It is therefore
argued that, since the court were prepared to assume jurisdiction over the marriage it could not have been
a potentially polygamous marriage, and it could only be so regarded on the basis that the lex loci
celebrationis determined the nature of the marriage.

9
1898 P. 178.

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5. CAPACITY TO CONTRACT A POLYGAMOUS MARRIAGE.

The law of each party‟s ante nuptial domicile generally governs the question of capacity to marry. But the
issue here is quite confusing, that there has been controversy in identifying the law that governs capacity
to contract a polygamous marriage. However, there is support at common law for this issue to be referred
to the ante nuptial domicile of both the parties, the law of the intended matrimonial home, or the law of
the place of celebration. One argument in favour of the place of celebration should determine whether a
marriage is polygamous or monogamous but this is not sufficient to outweigh the view that issues of
marital status are to be referred to the law of the domicile and it is suggested that capacity to enter a
polygamous marriage is an issue affecting status. Indeed, there was a clear rejection of reference to the
law of the place of celebration by Cumming- Bruce J in Ali v Ali10, where he concluded that a husband
domiciled in England and intending to reside there did not have capacity to confer the status of „wife” on
anyone else, no matter where he purported to marry a second wife.

However; Cumming- Bruce J in Radwan v Radwan11 held that capacity to contract a polygamous
marriage is governed by the law of the intended matrimonial home, which, in that case, was Egypt, and
the fact that the woman was domiciled here was irrelevant. Moreover, when his Lordship informed that
parliament had recently proceeded upon the assumption that the ante nuptial Rule govern, replied that
parliament had acted under a misapprehension. He further suggested that the plain words of what is now
section 11(d) of the matrimonial Causes Act 1973, might be neutralized by section 14(1), which contains
a saving for the rules of Private International Law. But, as he conceded, this would deprive section 11(d)
of all meaning. This decision is no longer important, since parliament intentions have been enacted as
law. According to section 11(d) of the 1973 Act a marriage is void. “In the case of a polygamous
marriage entered into outside England and Wales [if] either party was at the time of the marriage
domiciled in England and Wales. For these purposes a marriage may be polygamous although at its
inception neither party has any spouse additional to the other.”

Section 5(2) of the 1995 Act states that the section does not affect the determination of the validity of a
marriage by reference to the law of another country to the extent that if falls to be so determined in
accordance with the rules of Private International Law. Thus, for example, if one of the parties is
domiciled in a third country (neither England nor the country of celebration), the law of that country will
normally decide whether the party domiciled there has capacity to enter into a marriage celebrated under
a law permitting polygamy. The mere fact that the internal law of the country in question does not permit
10
[1968] P 564, [1966] 1 All ER. 664.
11
[1973] Fam. 35.

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polygamy would not, however, be sufficient: it must be shown that its rules of private international law
would regard the marriage as invalid.

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6. RECOGNITION OF POLYGAMOUS MARRIAGE IN ENGLAND.

The laws of many countries permit polygamy i.e. a man is allowed simultaneously to have more than one
wife. Such is the case in all Moslem countries and a number of African countries in which polygamy is
allowed under their respective customary laws. The question here is; to what extend will English law
recognize a valid polygamy marriage.
In this regard, Before 8th January 1996, English law had developed a number of principles by virtue of
which English courts would recognize a polygamous marriage. Whether is it potentially or actually, for
certain purposes. However, due to the adoption of part 11 of the Private International Law (Miscellaneous
provisions) Act 1995, most of these principles no longer affect potentially polygamous marriages. These
marriages have now assumed statutory recognition. Nevertheless, since these principles remain applicable
to actually polygamous marriage, they will, form the starting point of the decision
English courts are prepare to recognize polygamous marriages in order to invalidate a subsequent
monogamous marriage celebrated in England, as may be illustrated in Baindal v Baindal12, in which a
husband, while domiciled in India, married a Hindu woman in accordance with Hindu rites, whereby
polygamous was permitted. Whilst the wife was still a life, he went through another ceremony of
marriage with an English woman at a registry office in London. Once the second wife become aware of
the second marriage, she petitioned for a decree of nullity of her marriage. The Court of Appeals held
that, as a general rule, the status of an individual depends on his personal law that is the law of his
domicile. By the laws of the husband‟s domicile at the time of his Hindu marriage, he unquestionably
acquired the status of a married man, and English law recognized that. Accordingly, the first marriage
operated such a bar as to render the second marriage void
Equally, a polygamous marriage is recognized, even though the wife is a minor under English law. A
practical example of such recognition can be illustrated in Mohammad v Knott13, where a Nigerian man,
whilst domiciled in Nigeria, entered in to a potentially polygamous marriage with a girl of 13 years of age
under Moslem rites. Shortly thereafter, the couple came to England, where a complaint was made against
the husband to the effect that the girl, due to her age, was in need of case and protection by virtue of
section 2 of the children and young persons Act, (1963). It was held that, although the marriage was
potentially polygamous, it should be recognized by English law as valid and conferring the status of a
wife on the girl.

12
[1946] P 122, 126 (C.A.).
13
[1969] l.Q.B. 1, 13-14.

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Special Statutory Provisions have been made for wives in polygamous marriages in relation to social
security. These are now contained in legislation made under section 12(b) of the social security
Contributions and Benefits Act 1992 as amended by part II of the Private International Law Act 1995,
which provides in general terms that a polygamous marriage is treated as having the same consequences
as a monogamous marriage, if it has either actually always been or for any day, and only for any day,
throughout which if is in fact monogamous. The effect of this provision is that a polygamous marriage is
treated as monogamous for the purposes of statutory protection under part IV of the family law Act 1996,
the latter dealing with domestic violence and the family home - for the purposes of income support,
however, the recognition of polygamous marriages is no longer an issue, since the criterion employed by
the Income support (General) Regulations 1987 is in terms of the nature of the relationship between a
man and a woman as members of the same household.

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7. CONCLUSION

It leads to the conclusion that a Hindu or Muslim who marries in a country has on his return to a country
whose laws recognise polygamy a perfect right to take additional wives since the right to take additional
wives is one of the incidents of status, and will therefore vary as the lex domicilii varies. This conclusion
has been disputed on the ground that a person who celebrates his marriage according to the forms of a
monogamous system of law is thereafter debarred from taking additional wives on the ground that he has
thereby contracted out of the further exercise of his right to take additional wives.
There remains, in support of the lex domicilii, the isolated dictum of Lord Brougham in Warrender v.
Warrender, who stated “ An Englishman marrying in Turkey contracts a marriage of the English kind,
that is excluding a plurality of wives, because he is an Englishman and only residing in Turkey and under
the Mohammedan law only temporarily and accidentally.”
In conclusion it is submitted that English law is not irrevocably committed to the view that the lex loci
celebrationis governs the nature of the marriage, in that this conclusion is not necessarily supported by the
cases usually invoked in its support, and therefore we submit that it is open .to the English courts to
pronounce in favour of the lex domicilii, the application of which is far more consistent with the
principles of Private International Law.

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BIBLIOGRAPHY

1. https://shodhganga.inflibnet.ac.in/bitstream/10603/129467/11/11_chapter%204.pdf

2. https://www.scotlawcom.gov.uk/files/3312/7989/7430/rep96.pdf

3. https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1952.tb02108.x

4. https://www.jstor.org/stable/788743?seq=7#metadata_info_tab_contents

5. https://paa2010.princeton.edu/papers/100754

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