Marriage and Strategic Confrontation: A Critical Analysis of Indian Society

Introduction

Having a definite impact on every cultural, social, economic, political and religious realm, marriage is paramount to all human beings’ physical and psychological well-being. The practice of fornication and adultery is also part of the institution of marriage. The United Nations Committee in General Recommendation no. 21 (the 13th session, 1994) on the convention on the elimination of all forms of discrimination against women reported that polygamy should be discouraged due to violation of a woman’s right to equality with men and because it involves complex emotional and financial hassles (United Nations Entity). Further, the United Nations Human Rights Committee on the General Assembly of the UN denounces (in 2000) that marriage has a direct connection with human dignity, and polygamy not only treats humans unequally and subordinates women, following that such type of marriage infringes the International Covenant on Civil and Political Rights which is why mentioning polygamy should be an outright prohibition (Sharma, ‘Practices of polygamy’, n.d.). Only, state-approved monogamous marriage tantamount to social development which in turn results in social harmony. To maintain social harmony, in contemporary social and political philosophy, marriage is exemplified as an institution bridging the gap between private and public morality and is held responsible for maintaining social harmony. For social harmony, even as Western standards turn down polygamous marriage practices for treating humans unequally, it is significant that treating women less than a man not only subjugates women but also precludes the development of the whole society because the subjugation of women does not confine to damaging half of the population, ‘the free development of individuality is one of the leading essentials of well beings’ (Mill, 1952, p. 294). Similarly, Immanuel Kant’s notion of moral doctrine is at odds with objectifying a human irrespective of gender because it is a violation of the right to humanity, amounting to an individual’s self-destruction (Kant 1991, p. 96). As per Kate Chopin, one should treat men and women as complementary beings because women also have independent, intellectual characteristics and have their own sensuous nature (Delgado & Stefancic, 1992, p. 1042). Ronald Dworkin (1977) and Hart (1963) concur that the consensus is based merely on men’s advocacy, so its approval or disapproval comes at the cost of an individual’s liberty. Social goods and opportunities should not be founded on a specific class, status, race and gender (Rawls, 1971). Conversely, P. Devlin advocates that a man should adopt monogamy or polygamy, depending on public morality, and this principle is adopted by the society. So, the society has a right to protect its own existence (Devlin, 1965).

In the Indian scenario, post-independence, through the ‘Hindu Marriage Act 1955’, for the first time, the principle of monogamy was positioned in the Constitution, which enacted polygamy as a punishable offence not only for Hindu but also for Sikh, Jain and Buddhist communities, despite myriad examples of polygamy in all religions (The Hindu Marriage Act, 1955). Even Persians and Christians, while having different backgrounds, concede monogamy as a legislative rule. On the other end of the spectrum, however, the ‘Muslim Personal Law Applicant Act (Shariat) of 1937’ dating from colonial times permits polygamy (The Muslim Personal (Shariat) Application Act, 1937). Though polygamy was popular in Indian society in the Hindu community, the ‘Hindu Marriage Act 1955’, has eliminated polygamy and detached itself from colonial effect and maintained a direct connection with human dignity, but the Muslim community continued to maintain its continuity, thus discarding human rights by permitting polygamy. Global surveys have revealed low self-esteem of females and children in a polygamous marriage. Alean Al-Krenawi has done a survey on women, with half of them living in monogamous marriages and the rest in polygamous ones. She found that Bedouin-Arab women who belong to the polygamous group suffer from more nervousness, psychological distress, poor appetite and share poor relationships with their respective spouses (Al-Krenawl, 2001). Hence, polygamous marriage practices contribute to violence, trauma, crime and disease—they trample human dignity and treat humans unequally. At present, Article 14 of the Indian Constitution denotes that all citizens are equal before law, and Article 15(1) says that the state cannot discriminate any of its citizens, irrespective of religion, class, caste, creed and even place of birth (Kashyap, 2002). Thus, while the articles in the Indian Constitution do not subordinate women or provide extra rights to men, resulting to ensure the fundamental right to equality, it shows incongruity in delivering a just framework of law by adopting monogamous and polygamous practices together. To illustrate contemporary Indian society’s norm on marriage more explicitly, in this article, I examine to what extent the contemporary Indian Constitution act of marriage fits into Western marriage standards of monogamy or triggers a strategic confrontation.

In this article, I delineate, first, the discourse on marriage in Indian tradition, which indicates that the ‘Hindu Marriage Act of 1955’ secures monogamy for Hindus. This draws from the Vedic marriage principle and ensures humanity as a foremost concern without any discrepancy. In the second section of this article, I examine whether this discourse of the Hindu Marriage Act of monogamy as a social right can be applicable for all its citizens unanimously as a majority concern of India, by comparing Devlin’s majority concern of monogamy in Britain which unfolds through the idea that society has a right to protect its own existence. By this comparison, I have exemplified that the Indian scenario does not allow enforcement of monogamy on the minority by the majority by failing to secure for all its citizens’ dignity for choosing his/her right to lead a good life. This makes them stand, prima facie, on the same footing as Dworkin’s ethical neutralist approach of morality, which castigates Devlin’s enforcement of monogamy. So in the third section of this article, I deal with monogamy as a right to moral independence. And being an ethical neutralist, Dworkin’s argument neutralizes not only Devlin’s hypothesis but also Indian law’s assertion on monogamy and ensures individuals’ dignity that leads him, to some extent, closer to the side of the Kantian ethical aspect. In the fourth section of this article, I elucidate monogamy as an ethical analogue that establishes that a man should not copulate out of his marriage and or objectifying women in the coital activity. This shows the proximity of Kantian doctrine to the views contained in ancient Hindu texts. But contrary to both, Devlin’s enforcement of monogamy and the present status of the Indian civil court’s assertion regarding monogamous and polygamous marriage can stand together in a society. Therefore, in this article, I will examine the practical dilemmas around monogamous or polygamous marriage and to what extent the constitutional act of marriage triggers a strategic confrontation in India.

The Discourse of Marriage in Indian Tradition

As per ancient Hindu texts, marriage in the true sense is not merely a social contract between consenting adults, it is also an important religious sacrament which involves responsibilities towards each other, towards family and society. Thus, marriage is not all about only temporary sensual longings or arbitrary choices; it includes within its ambit—morality, duty, permanence, complement, faith and reverence, making the partners complementary beings. The Rig Vedas supports this claim by asserting that a man becomes complete after getting married as his self is half of the wife (Achari, n.d., pp. 4–5). In this sacrament, the groom must treat her bride as a life partner to accomplish all religious, social and personal duties together. However, Muslim marriage, which does not involve a religious sacrament, should nevertheless ensure social harmony by opposing the subordination of women/providing exclusive rights to men. The Hindu marriage norm which concedes the sacrament of marriage, proposes that spouses have accountability to each other and in this way, the Indian Constitution has consolidated the position of women with all rights. Recently in 2021, the Karnataka High Court judgement supported the claim even after quoting the Quran and Hadith, ‘A Muslim marriage is not a sacrament, (and) does not repel certain rights and obligations arising from its dissolution’ (Times of India, October 20, 2021). In this case, Ezazur Rahman was not ready to discharge maintenance after pronouncing Talaq upon his first wife, Saira Banu, and argued his accountability for the new wife only. Justice Krishna S. Dixit’s verdict was that the very moment when Rahman pronounced Talaq to his first wife, she got right to get maintenance and it is Rahman’s accountability as well, and this accountability he bears before getting married again.

During the British regime in India, there was Sharia law for Muslims, and for Hindus as a majority, Bengal Supreme Court Judge, Sir William Jones (Jones, 1794, The Laws of Manu), first translated Manu Smriti into English from Sanskrit and apprehended that the codification of Hindu law is from the ancient legal text Manu Smriti. The British colonial regime made its rule not only very harsh but also hostile to social reform on the impact of modernization. On the contrary, Manu Smriti has a special provision of law that states that all laws are changeable which is helpful for social reform. Thus, Friedrich Nietzsche called this text as a textbook of Human Ethics, but the British colony’s anti-pre-Christian civilization and racist attitude translated this text with notable philosophical flaws tantamount to social disorder (Elst, 2019). This could help them rule in India with the hidden agenda of flourishing through their ‘divide and rule policy’ that weakened the Hindu-led society and divided them on the basis of the caste system.

On the basis of these laws, the British suppressed Indian people and ruled over India for several decades. Later, on 25 December 1927, under the leadership of Dr Bhimrao Ambedkar this text was burnt on a pyre at the same place where ‘the Mahad water reservoir protest’ ¹ was held as a symbol of the movement to ensure the dignity of suppressed caste and eradicate inequality, thus, securing justice in the society (Narake et al., 2003, p. 25). In fact, the oppression of lower caste by British colonial laws had emerged from this text. After some years, he joined Buddhism to get rid of the caste system of Hindu tradition.

As per Buhler’s ² remarks, the uncertain origin of the Dharma-sutras and Smritis are not able to define definite historical and cultural account, but they depict implicit obedience by the Aryans. Sutras were facilitated by the teachers of Vedic schools to supervise their disciples and later as a source of sacred law to the Aryans. The Sutras, however, are not directly associated with Vedic schools any more. Moreover, Smritis are denounced as mythological legends that are either fictitious or untraceable because of their ancient origin or to retain its divine authority. All such characteristics are dominant in Manu Smriti. Several sages beseech Manu to prescribe their sacred laws, so Manu divulges his origin from self-existent Brahman and the order of the creation and then talks about the duties of all castes. And afterwards, these sages recited the laws to their descendants. Gradually, the text came into existence for individuals after revisions; its verses were modified to make Manu’s story more effective by those who conceded it authentic (Buhler, 1886, pp. xi–xiii). Adverse to this attitude, some scholars construe this Manu Smriti as a colonial version. Several scholars (including Ambedkar’s idea on the origin of the caste system in Hindu culture) are not certain and they mix the varna system with the caste system, which can be misleading. Explicitly, the ‘Vsistha Samhita’ (3.1) asserts that caste, tribes and social system are neither based on the Vedic regulations nor are they divinely sanctioned. Often Manu Smriti was condemned due to its elucidation which equated the varna system of the Hindus to caste bigotry, which however, was a misinterpretation of the varna system that traced it back from Veda (Sonawani, 2017). There are mainly four features of human intelligence: wisdom, nobility, trade and innate facility. They are named Brahmin, Kshatriya, Vaishya and Shudra, respectively, and perform their duties as prescribed for that varna following their vital features. A human being was named according to her/his vital features. Thus, the development of caste by birth is not part of the real varna system. The Bhagavad Gita (one of the most popular texts of Hinduism) is also bound up with the traditional four-fold order of the division of actions and duties that are free from heredity factors leading to a division of liberal human society. But some translators of Bhagwat Gita diverted this truly humanistic division based on human nature rather than heredity into the orthodox Hindus’ view of the caste system (da Cunha Botelho, 2018, p. 9). Thus, such ancient texts are not all about a dogma for all Hindus but codes for all individuals who lived nearby and beyond the Indus Valley. They were designed to balance an individual’s family and social life and simultaneously aimed at liberating mankind from the cosmic birth and death circle.

In classical Indian tradition, Rig Vedic marriage rituals predominantly facilitated monogamy in society so that a man should not associate with more than one wife (RV. X. 85). Manu also lays down many rules and punishments for persons indulging in a coital relationship with a female other than his wife. It leads him to set monogamy as an ideal for the couple. Nevertheless, in the Mahabharat, one can get examples of polygamy and polyandry, and even in Ramayana (e.g., King Dasharatha, Ravana and many others were involved in polygamy). King Dasharatha’s son Shree Ram, however, set an example by advocating monogamy throughout his life—even while living away from his wife Sita, he refrained from thinking of any other woman though she was living an anonymous life, in exile. So while various examples in Hindu tradition exemplify polygamy, monogamy has always been accentuated as an ideal path for all societies which secures human dignity and generates cosmic harmony.

The earliest Hindu text, the Vedas, talk about different kinds of marriages in scattered forms. The Dharma Sutra and Smritis expound mainly eight kinds of marriage, and the content of Manu Smriti, the foremost Dharma-shastra, traces back to the Vedas. Before the Indian Constitution, Manu Smriti was a classical Hindu law text. Out of the eight forms of marriage mainly prevalent in that society, four forms are validated, and the rest are not validated by Manu (Manu Smriti III.20–34):

Brahma Vivah—The most considerable marriage where the groom’s family approach the bride’s father, and the match is based on factors like—Varna, education and good family background that enhances social and cultural prestige. This marriage is observed in all rituals, and the bride’s father prefers a learned groom and his daughter adorned with ornaments and bridal clothes, is handed over as a gift by Kanyadaan to the groom without any goods and valuables.

Michel Foucault asserts that only one (Gandharva marriage) of the eight kinds of Hindu marriage provides females the right to freely choose her life partner. The rest of the marriages concede females under subordination of the father before marriage and under husband/son after marriage. This power transference implies that women not derive power from God but from father, husband/son, resulting in the idea that women can best survive under sheer the protection of males (Foucault, 1990, p. 94). However, Manu Smriti connects a man’s welfare with his reverence for a woman, because a woman’s brother, father, husband, son and even brother-in-law cannot please God if he fails to give reverence to the woman (Manu Smriti, ch. 3, verse 55). Kerry Brown also counters Foucault’s argument by asserting that ancient Indian texts advocate the idea that women should be guarded under some special one due to neither their weakness nor subordination but because they are considered as treasured, so they can never be left unprotected. Here, Brown compares women with crown jewels that cannot be kept anywhere carelessly (Brown, 1988). If we look at the text from a modern perspective, we will certainly identify several discriminations, but, we must keep in mind that the text was compiled ages back when the sociocultural, economic and political climate was immensely different from what it is today. Even though it contends that a man becomes complete after getting married as his self is half of the wife; on the other hand it proclaims the wife as a man’s half-self—urging her to be complete by getting a son (Achari, n.d., pp. 4–5). There are a number of methods explained in Vedas to procure a boy child (Oldenberg, 1993, p. 262). This accentuation on getting a son creates gender inequality. Although people had preferences for sons in the Vedic period, women had freedom in different other aspects of life (education, spouse selection, public activities etc.). Some of them are renowned sages and authors of hymns (Pal, 2019, p. 182). Further, Shakuntala Rao Shastri mentions that in the Rig Veda, it is stated that a single daughter has all legal rights as given to a son which suggests gender equality (Shastri, 1954, p. 4). Also, despite the desire to have a son, once a daughter was born, she was considered auspicious and raised with tender care and love and given freedom in all aspects of life in the earliest Hindu texts. Thus, traditional Indian standards ensure women’s dignity and all fundamental rights that place women as complementary to men; it accentuates the principle of monogamy in Hindu marriage. This approach is also reflected in a notice in the Indian Constitution as the ‘Hindu Marriage Act of 1955’ (Agnes, 1995, pp. 3238–3244) which ensures humanity as a foremost concern without any discrepancy by adopting only monogamous marriage practices. This superseded in Hindu marriage tradition even while polygamy was popular. In the next section of this article, I examine whether the Hindu marriage act which upholds monogamy can be applied for the whole state unanimously because, as Devlin, the Western contemporary social and political philosopher states in his enforcement of morals, society has a right to protect its own existence.

Monogamy as a Society’s Right

In modern Western political thought, for the first time, the Wolfenden Committee was formed in 1954 in the United Kingdom and denoted in its historical report that the law’s function is not to intervene in an individual’s personal realm; thus homosexuality was placed outside the concern of law by proclaiming that morality was an individual’s personal affair (Summers, 2015, p. 2). After this report, there was a lot of debate around private and public morality and whether the state should legislate moral and convectional practices or not. Mill’s idea of the free development of society depends upon the strict distinction of public and private areas. It explicates that individuals’ private realm is not the law’s concern as long as it does not inflict harm upon others (Mill, 1952). Taking this into consideration, unpopular practices such as pornography, homosexuality, gambling and prostitution have come into the ambit of discourse on moral legislation. Devlin puts forward and passes over the distinction of public and private morality and does not support the idea that morality should not be the law’s concern. To bridge the gap between public and private morality, Devlin elucidates the example of marriage. Here, I examine, first, Devlin’s hypothesis on adopting monogamy and then compare its standards with the Hindu Marriage Act that aligns with monogamy.

First, Devlin proclaims that in a society, whether a man should adopt monogamy or polygamy depends on which morality principle is adopted by that society. In Britain, most of the people are Christian, and they believe in the Christian idea of marriage as a moral principle. For that reason, society facilitates monogamy as part of the structure for all. This moral principle transformed into a political principle resulting in non-Christians also following that norm. Irrespective of whether these non-Christians are believers of monogamy or polygamy, they have to follow monogamy. If they want to live in that society, they must follow their common ideas. As this monogamy also discards adultery and fornication, these ideas are not dependent on individual judgements. This argument paves the way of public morality, which does not depend on any particular institution to define monogamy, though defining it as good in itself, and a necessary means to live harmoniously. Society never permits revolt for its existence due to the personal realm directly impacting the public realm (Devlin, 1965, p. 9). Here, Devlin expounds on society as a shared idea that is the underpinning of any established society. Consequently, Devlin advocates that society has a right to protect its own existence.

Further, I discuss to what extent Devlin’s concept of ‘society has a right to protect its own existence’ applies to Indian society. As a Hindu majority country, in India, most individuals follow the Hindu idea of marriage as a moral principle that strictly prefers monogamy, especially after the ‘Hindu Marriage Act of 1955’. Thus, in India, monogamous marriage is advocated by the majority of people. Also, for establishing moral legislation in a state unanimously, a personal moral principle of the majority should be transformed into a political, moral principle of the minority of this state. Consequently, in India, all individuals must follow monogamy as a part of the society that prefers a monogamous type of marriage. For minority communities (non-Hindu), reconciling private and public morality, monogamy is often subordinated to the practice of fornication and adultery which has a direct impact on social harmony not only for non-Muslim minorities (as Jainists, Buddhists, Christians, Persians etc. also accept monogamy), but for Muslims as well. However, monogamy as a practice is not only for Hindus; being a part of the society, Muslims also have to follow this norm.

Devlin’s concept—‘society has a right to protect its own existence’—does not apply to Indian society’s assertion on polygamy for Muslims only. Such an assertion in Indian society is adverse to Devlin’s argument that the law should enforce monogamy upon non-Christians. It represents that every religion has its own moral rules, but society has a right to enforce these morals through law on individuals with respect to their religion. Here, morality is not outlawed but legitimates morality on the basis of the majority’s religion, accelerating deprivation of minorities’ rights and women’s vulnerability. In order to compare both standards, I find that the Indian Constitution does not allow the enforcement of morals on the minority by the majority, which secures the dignity of all its citizens, irrespective of their religions so that they can freely choose for themselves in order to lead a good life. This makes them stand on the same footing as Dworkin’s ethical neutralist approach to morality which lambastes Devlin’s morality rule. Therefore, in the next section, I delineate Dworkin’s argument on the right to moral independence that rebuffs Devlin’s hypothesis and how far Indian society’s norm on marriage is applicable to Dworkin’s doctrine.

Monogamy as a Right to Moral Independence

Dworkin turns down Devlin’s concept that society has a right to follow its own existence because it blocks minority rights against shared morality. As per Devlin’s hypothesis, shared morality is merely enforcement of morals of the majority onto minority on the basis of even conventional practices, and this does not hold the ‘monogamy for all’ as a solely legitimate rule of society. Here, Dworkin contends that Devlin’s shared morality cannot be the sole purpose of legislating or prohibiting any of conventional or unconventional practices within the society. In this regard, blocking minority’s rights on adopting monogamy is on the basis of shared morality, putting majority’s rights above minority’s rights (Dworkin, 1977, p. 246) which discards Devlin’s monogamous marriage as enforcement of society’s right for all individuals, including enforcement upon minority as in the case of non-Christian communities in the United Kingdom. Based on this argument, one can defend ‘Hindu Marriage Act, 1955’ which does not enforce Hindu’s shared morality principle of monogamous marriage on the Muslim minority, and polygamous marriage practices under Muslim personal law justify minority’s moral rights. Thus, it seems, in the Indian context, monogamy for the majority and polygamy for the minority ensure all individuals’ moral right to freely opt for her/himself to lead a good life as per Dworkin’s abstract right to moral independence.

Indeed, the Indian law’s assertion on monogamy and polygamy does not fulfil Dworkin’s abstract right to moral independence (Dworkin 1981, p. 194), ensuring every individual’s moral right to freely choose to lead a good life. The law neither enforces monogamy or polygamy based on the utility of the society nor the application of this marriage is merely latent on the basis of one’s religion. Being an ethical neutralist, Dworkin sets aside all these utilitarian and religious moral rules and acknowledges that a state lucidly facilitates its citizens with an underpinning right to ‘equal concern and respect’ (Dworkin, 1977, p. 273), which makes them equal before the law. Further, Dworkin provides moral independence as an abstract right under the underpinning right to ‘equal concern and respect’ which maintains individuals’ dignity as the foundation in a monogamous marriage, and polygamous marriage practices deprive women of their rights. A wife is treated as less than a husband, which is why a woman suffers from myriad discriminations. Thus, polygamy as asserted by Muslim personal law violates Dworkin’s basic right to ‘equal concern and respect’. Considering this, the Indian penal code’s assertion on monogamy for Hindus and polygamy for Muslims does not justify individuals’ right to moral independence because of contrasting individuals’ foundational right to ‘equal concern and respect’. Dworkin derives all other rights by the right to ‘equal concern and respect’ that does not make the distinction on legislation on the basis of any particular religion. Though other non-Hindu individuals in India, except Muslims, comply with monogamy, it can be argued that if monogamy is good for the well-being of all humans, then why it is applicable on the basis of respective religion only. Polygamy was mostly practiced by affluent personalities and even Mahabharat and Ramayana depict several examples of polygamy, and this practice was not prohibited but openly accepted. No law should vary depending on the particular religious morality for particular communities, thus, neglecting social harmony, in general. Hence, on the basis of Dworkin’s doctrine, one can rebuff Devlin’s hypothesis of the enforcement of monogamy (that a society has a right to make its own morals on the sole basis of conventional practices). His notion also gives flake to the Indian penal code of the Hindu Marriage Act of monogamy, which legitimizes and confines monogamy for the practitioners of the Hindu religion only, and not for Islam followers.

Both Devlin’s ideas on the subject and the Indian law’s assertion on monogamy is eliminated by Dworkin’s moral independence right in which a right must be superseded enforcing the law instead of goal-based hypothesis. Being an ethical neutralist, Dworkin criticizes Devlin’s hypothesis and the Indian penal code’s decision on marriage. He ensures all individuals’ dignity that leads him closer to the Kantian ethical aspect (to some extent), which prescribes that a man should not copulate out of his marriage. Thus, he can pay reverence to humanity which, contrary to Devlin, concedes monogamy without enforcement of the majority on the one hand, and on the other hand, supports Kant’s rejection of objectifying women in the coital activity. Hence, in the next section, I relate Kantian ethics to monogamy and examine whether the Indian scenario fits into this ethical doctrine.

Monogamy as an Ethical Analogue

Through ‘the categorical imperative formula of humanity’, ³ Kant prescribes monogamy as an ethical principle that should be sanctioned by society because monogamy defies treating a woman as an object and inferior to man, steering the egalitarian law and treating all humans equally. It generates ethical responsibility towards humanity, distinguishing human beings from other creatures (Eterovic, 2011, p. 463). Therefore, monogamous marriage is the sheer rule which retains duty towards humanity even in coital activity, justifying monogamy as a basis of ethical principle that eliminates Devlin’s hypothesis of monogamy as enforcement of the majority on minority (as Dworkin discards Devlin’s hypothesis in his right to moral independence which I mentioned in the above section). Otherwise, individuals cannot enjoy an animal drive-by simultaneously upholding the rational requirement that ensures respecting each other as a human beings (Palmquist, 2017, p. 129). The Kantian account of ethical theory propagates that people should possess intrinsic value as an end in itself, including treating a person not merely as a means but as an end; this underlies self-regarding duty towards our body. Rational beings only act according to the laws that are possessed by will (Kant, 1964, p. 95). Taking this into consideration, only rational beings are able to govern their actions upon laws rather than based on instinctual impulses (which is irrational). Overindulgence in coital activity leads an individual to disregard one’s duty and to treat one’s own person as a means to accomplish coital yearning. ‘An inner abhorrence and damage to morality in employing the [sexual] inclination … there is something contemptible in the act itself…’ (Kant, 1997, p. 156). Similarly, Dworkin concedes excess of watching obscene materials implies an adverse effect on a human’s personality to some extent (Dworkin, 1981, p. 195). Moreover, this also aligns Kant to Dworkin to some extent.

Objectifying others means treating others as a commodity which can be owned by anyone. But this proposition is against the principle of humanity because a person can never be treated as a chattel of anyone. To dilute the problem of objectifying women as an object in coital activity, monogamous marriage plays a vital role. Moreover, Kant upholds monogamous marriage as a necessary condition for retaining humanity because it tightens the bond of love between spouses. Suppose, a man X is involved with a woman emotionally and physically, and another person Y is involved with more than one woman. Now certainly, Y will not treat his multiple partners as X would treat his single partner. Thus, monogamous marriage should be sanctioned by the state to preclude treating a person as an object.

The objectification of women in Indian territory is possible due to the legitimization of polygamy in Islam, which breaches the Kantian ethical doctrine. Certainly, religion is a very personal, sensitive, and vital part of all societies. All individuals are free to follow his/her religion on the basis of birth or by choice in India. But what about those Muslim women who legally suffer in conventional polygamous marriage? Allowing this practice would imply that these women would continue to be treated as subservient to men. A civilization cannot progress without the maintenance of marriage as an institution; thus, marriage is a solid foundation for a cultured society. However, on the pretext of conversion, Hindu males often make a mockery of their personal marriage and the law. As we have seen several examples of the conversion of a Hindu male who has already married and wants to marry again, he embraces Islam, and by doing so, he can easily escape his personal law and enjoy polygamy without getting any punishment under ‘Hindu Marriage Act’ as now he has converted himself to Islam without any codified laws of conversion. These acts are a matter of intentional transgressions, and using such loopholes of the Indian Constitution violates women’s dignity and rights and leads to women’s subordination. Smt. Sarla Mudgal, President, Kalyani & Ors vs. Union of India (https://lawtimesjournal.in/smt-sarla-mudgal-president-kalyani-ors-vs-union-of-india/) (Law Times Journal) judgement is a beacon of hope to Hindu women to treat them as complementary to their husbands as it prevents a married Hindu man to solemnize another marriage to convert himself to Islam for the sole purpose of legitimizing his second marriage under the section of 494 IPC. Still, there is an escape root for all unmarried men who desire to enjoy polygamy as they can easily legally adopt polygamy by converting themselves to Islam and hide their intention for embracing Islam. Hence, one cannot justify embracing any religion for the sake of his whimsical attitude. On the one hand, polygamy is a violation of the fundamental rights of the Indian Constitution in one personal law (Islam) because it treats women as second-class citizens, on the other hand, another personal law (Hindu) retains justice and harmony in the same institution of marriage. Therefore, the present status of the Indian civil court does not coordinate with the Kantian ethical doctrine of marriage, whereas ancient Hindu texts accommodate Kantian ethical doctrine, which establishes that a man should not copulate out of his marriage as a monogamous marriage retains humanity. As the earliest Hindu text, Rig Veda acknowledges that marriage is not all about only temporary sensual longings or arbitrary choices; however, it includes morality, duty, permanence, complement, faith, the reverence which makes two partners complementary beings (as I have mentioned in the discourse of marriage in Indian tradition). And, Manu is no exception in all traditional societies that regard chastity and sacrament as the highest virtues in marriage. Consensual and non-consensual coitus is a very complex legal point that remains problematic in the judicial system. Manu has laid down many rules and punishments for persons indulging in adultery (Manu Srmiti, VIII.315–388), which is a significant part of the institution of marriage. Manu also states that a king should punish a person indulging in a coital relationship with a female other than his wife through severe punishments like getting his limbs severed (Manu Srmiti, VIII.325). According to this notion, one can own himself only when treating others not as objects but as fellow humans. It is not possible to curb coital transgressions and men’s domination over women without sanctioning monogamous marriage.

Conclusion

Certainly, the progress and sustenance of any civilization depends on the maintenance of the institution, which is why marriage is the bedrock for a cultured society. Still, this institution should be just so that harmony in a society can be maintained for its continuance. In contemporary Indian society, despite polygamy being a violation of the fundamental rights of the Constitution, and despite the fact that the United Nations Human Rights holds a preventive attitude for polygamy that subordinates women, one personal law has got an exemption and facilitates women as second-class citizens. And, on the other hand, another majoritarian personal law prevails that criminalizes polygamy for retaining justice and harmony though polygamy was a popular practice in all religions. Here, the confinement of monogamy on account of a particular religion is not only a strategic confrontation but also a crisis of human rights. This does not fall under any of the just laws as the Indian Constitution aims at protecting women with all rights. For social development, no one can subordinate women or provide extra rights to men by approving polygamous marriage.

Further, I have compared the present status of the Indian civil court’s assertion regarding monogamous or polygamous marriage practices to the Western standards on monogamy by three different modern social and political hypotheses on monogamy, as a society’s right, as a right to moral independence and as an ethical analogue and argued that the contemporary Indian society’s legislation on marriage does not qualify modern social and political hypothesis. Albeit, the traditional Indian standards which tailor the ‘Hindu Marriage Act of 1955’ secures monogamy with humanity as the foremost concern without any discrepancy and stands closer to the modern social and political hypothesis. Therefore, comparing the standards, I contend that polygamous marriage practices in any state, including India, breach the human rights that try to shun the law. Following that, these transgressions towards human rights put the government in an awkward position, forcing the state to pitch for an exhaustive review of the implementation of the age-old state assertion on polygamous marriage practices and call for an urgent re-evaluation of unequal civil court laws.