Polyandry in India

Source : Indian Express  

Introduction  

The Trans-Giri region in Himachal Pradesh recently witnessed a centuries-old customary practice when Sunita Chauhan married two brothers, Pradeep and Kapil Negi, under the traditional polyandrous system known as 'Jodidaran'. This practice by the Hatti tribe, which was granted Scheduled Tribe status in 2022, has occurred five times in the past six years. The tradition raises complex legal questions about the intersection of tribal customary laws and modern Indian legislation. While polyandry serves to preserve undivided agricultural land and strengthen familial bonds, its legal validity remains contentious under India's constitutional framework. 

What was the Recent ‘Jodidaran’ Incident in Himachal Pradesh ? 

• A woman named Sunita Chauhan married two brothers, Pradeep and Kapil Negi, in the Trans-Giri region of Himachal Pradesh. This marriage followed a centuries-old customary practice of the Hatti tribe called 'Jodidaran', which is a form of polyandry (one woman marrying multiple men). 
  • It occurred recently in the Trans-Giri region of Himachal Pradesh 
  • The practice is locally known as 'Jodidaran' 
  • This was part of a pattern - the Hatti tribe has had five such marriages in the past six years 
  • The Hatti community was granted Scheduled Tribe (ST) status by the Central government in 2022 
• The practice stems from the community's desire to preserve undivided family land, particularly agricultural property, and is believed to strengthen bonds between brothers while providing greater security for women.  
• Polyandry is generally illegal under Indian law, though Scheduled Tribes have certain protections for their customary practices under the Constitution. 

What is Polyandry? 

Polyandry is a marriage system where one woman has more than one husband simultaneously, which has been practiced historically in regions like Tibet, Nepal, and among tribal communities in India such as the Toda in Tamil Nadu, Kinnaura in Himachal Pradesh, and Jaunsaris in Uttarakhand. 

What is the Historical Background of Polyandry ? 

• Polyandry has deep historical roots across various Indian communities, typically emerging as a response to specific socio-economic and environmental challenges. The practice has been documented in several distinct regions: 
  • Himalayan Communities: Mountain tribes including the Paharis, Gaddis, Gujjars, and Kinnaura across Himachal Pradesh and Uttarakhand have long embraced fraternal polyandry as an adaptive strategy. This practice serves to maintain the integrity of ancestral landholdings and livestock resources, preventing their division among multiple heirs while ensuring economic viability and family survival in the harsh mountainous terrain. 
  • Southern India: The Toda community of Tamil Nadu's Nilgiri Hills represents one of the most well-documented examples of polyandrous traditions in South India, where the practice forms an integral part of their social structure and cultural identity. 
  • Punjab's Malwa Region: Economic pressures stemming from progressive land fragmentation have prompted certain agricultural communities in this fertile region to adopt fraternal polyandry as a means of preserving farm viability and preventing further subdivision of already diminished holdings. 
  • Cultural and Literary References: The ancient Indian epic Mahabharata provides perhaps the most renowned literary example of polyandry through Draupadi's marriage to the five Pandava brothers, a practice sometimes termed "Draupadi Pratha," which has served as both a cultural reference point and source of legitimacy for the tradition across centuries. 

What was the Legal Provision Related to Polyandry in Indian? 

• Polyandry is explicitly prohibited under Indian statutory law, with the Hindu Marriage Act, 1955 mandating strict monogamy for Hindus, Buddhists, Jains, and Sikhs, while the Special Marriage Act, 1954 similarly bans all polygamous unions including polyandry. 
• Violators of monogamous marriage laws face legal consequences under Section 17 of the Hindu Marriage Act read with Sections 494 and 495 of the Bharatiya Nyaya Sanhita, which criminalizes bigamy and polyandry with imprisonment and monetary penalties. 
• Scheduled Tribes enjoy a crucial legal exemption under Section 2(2) of the Hindu Marriage Act, 1955, which states that the Act's provisions do not apply to them unless the Central Government specifically directs otherwise through official notification. 
• The Constitution under Article 342 and Part XXI provides Scheduled Tribes with distinct legal status and protection for their customary practices, creating space for tribal customs like polyandry to prevail even when they conflict with general statutory marriage laws. 
• However, tribal customs face constitutional limitations and cannot override fundamental rights guaranteed under Articles 14, 15, and 21, with the Supreme Court consistently holding that customs must evolve and cannot deny basic constitutional rights to individuals. 
• For legal recognition, customary laws must meet stringent criteria defined under Section 3 of the Hindu Marriage Act as rules "observed for a long time" that have "obtained the force of law," while also satisfying standards of certainty, reasonableness, and consistency with public policy. 
• The burden of proof lies on those claiming customary law validity, as courts require substantial evidence demonstrating that such practices actually prevail and are actively practiced within the community when customs are legally challenged. 
• The Uttarakhand Uniform Civil Code enacted in 2024 prohibits polygamy but maintains tribal exemptions under Section 2, explicitly stating that UCC rules do not apply to Scheduled Tribes as defined under Article 366(25) and Article 342, thereby preserving constitutional protection for tribal customary practices including polyandry. 

What was the Court Observation on the Case ? 

• The courts have increasingly evaluated customary laws of Scheduled Tribes against fundamental constitutional rights.  
• The key principle established is that any customary law conflicting with fundamental rights is struck down as unconstitutional. 
• Specific Court Rulings Cited: 
  • Triple Talaq Case: The Supreme Court declared triple talaq unconstitutional under the Muslim Personal Law (Shariat) Application Act, 1937, finding it "arbitrary, unreasonable and violative of Article 14 and 21 of the Constitution, which guarantees the right to equality, dignity and the right to life." 
  • Sabarimala Temple Case (2018): The Supreme Court ruled that the customary practice of prohibiting menstruating women from entering the Sabarimala temple in Kerala was unconstitutional, as it "violated the fundamental rights of women, including the right to equality and the freedom of religion under Articles 14, 15 and 21 of the Constitution." 
  • Ram Charan & Ors. vs Sukhram & Ors. (July 17): In this case about succession rights for tribal women, the Supreme Court held that "when a custom is silent on inheritance, there is no restriction in law that women should be prevented from inheriting ancestral property." 
• Key Supreme Court Observation: The apex court stated: "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 right." This ruling affirmed that excluding female heirs based solely on customary male preferences violates Article 14 of the Constitution. 
• The overall judicial trend shows courts balancing respect for tribal customs with constitutional guarantees of equality and fundamental rights.

Conclusion

The legal status of polyandry in India highlights the ongoing tension between protecting tribal customs and upholding constitutional rights. While Scheduled Tribes enjoy exemptions from certain marriage laws, courts increasingly scrutinize customs against fundamental rights of equality and dignity. The Supreme Court's evolving jurisprudence emphasizes that customs cannot remain frozen in time and must align with constitutional morality. This balance between cultural preservation and individual rights will continue to shape the legal landscape surrounding traditional practices like polyandry.