Exclusion In Section 2(2) HMA Not A License For Tribals To Practice Or Justify Polygamy Without Proven Tradition: MP High Court

The Madhya Pradesh High Court has clarified that the statotory exclusions provided to Scheduled Tribes under Section 2(2) of the Hindu Marraige Act, 1955 cannot be used to justify polygamy in absence of proven customary practices. The bench of Justice Vivek Jain observed;"The purpose of Section 2(2) of Hindu Marriage Act, 1956 is to protect the tribal traditions and beliefs. However, it cannot be treated to be a license or tool given to the Tribals to resort to polygamy and to defend polygamy despite there being no tradition in such tribe or there being no practice of polygamy". A criminal revision was filed by one Munni Bai challenging the order of the Trial and Appellant Courts rejecting her application for a succession certificate. The petitioner was married to one Bhagat Singh, who passed away in 2013. From the facts, it was discovered that the deceased had earlier married respondent no 1, Phoolmat Pav, around 1980. The petitioner's claim rested on the assertion that since both parties belonged to a Scheduled Tribe (Pav Tribe), and that polygamy was permissible within the community, both wives would get an equal share in the property. The counsel for the first wife contended that she was the sole spouse of the deceased and that her name alone was registered in the official service records of the deceased. Both the Trial Court and the Appellant Court noted that the petitioner failed to prove the existence of a custom permitting polygamy in the tribe. During the hearing, the bench questioned the counsel for the petitioner whether they could demonstrate any established tradition, judicial precedence or any evidence recognising polygamy as an accepted tradition in the concerned tribe. However, the petitioner's counsel was unable to provide any such evidence. The bench further emphasized that when a member of the scheduled tribe seeks exclusion from the application of Hindu law, the burden lies upon them to prove that the tribe follows distinct and established customs and that the same are consistently practised and socially accepted. The bench further highlighted"In some tribes polygamy or even polyandry are being practiced. They can be argued to be protected despite rigours of Hindu Marriage Act 1956, but for that purpose the concerned Tribe would have to prove its own traditions. It has to be proved that such practices are going on in the tribe and are recognized by such tribe. It has to be proved that its societal norms are different from the religions governed by Hindu Marriage Act, i.e. Hindus, Sikhs, Jains and Buddhists. In the present case, nothing has been proved or placed on record that any practice is continuing in the Tribe which permits polygamy/bigamy for the Tribe members, and that their societal norms are any different". The bench, further relying on the Supreme Court rulings, reiterated that the exclusions under Section 2(2) of HMA are not automatic and the tribe needs to show that it has not been "Hinduised" and continues to follow customs distinct from those governed by Hindu Law. In the present case, the bench noted that no material was placed on record to show that the "Pav Tribe" recognized or practised polygamy or that it was socially accepted. Thus, the bench found no reason to interfere with the impugned orders and dismissed the revision petition. Case Title: Munna Bai v Phootmat Pav [CR-257-2026]Click here to read/download the Order

Exclusion In Section 2(2) HMA Not A License For Tribals To Practice Or Justify Polygamy Without Proven Tradition: MP High Court

Jayanti Pahwa

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