Age of Consent to Rage Against Consent: A Selective Assault on a Recognised Minority Legal Institution

The main constitutional objection to criminalisation of Muslim polygynyPolygynyA specific form of marriage in which a man has more than one wife at the same time. is not that polygyny is an indispensable religious obligation. It is that such criminalisation fundamentally contradicts the Constitution’s commitments to legal pluralismLegal PluralismThe existence of multiple legal systems or traditions operating concurrently within one geographic area., religious autonomy, decisional privacyDecisional PrivacyThe constitutional right of an individual to make fundamental choices about their personal life and body without state interference., equality, dignity and personal liberty.

When these constitutional guarantees are read together, a legislative prohibition of polygyny emerges not as a neutral measure of gender reform but as a selective criminalisation of a family structure associated with Islam, which flies in the face of the same State’s simultaneous acceptance of a broad range of other non-traditional intimate relationships.

Muslim Personal Law occupies a unique constitutional position. It is not merely an uncodified collection of religious customs existing at the pleasure of the State. Through the Muslim Personal Law (Shariat) Application Act, 1937, Parliament itself has mandated that questions relating to marriage, divorce, maintenance, dower, guardianship, gifts, trusts and succession shall be governed by Muslim Personal Law.

The legislature has therefore expressly recognised a distinct normative legal order governing family relations. A prohibition on Muslim polygyny would consequently do more than regulate private conduct: it would selectively invalidate one component of a legislatively recognised legal system that predates the Constitution and was consciously preserved after its adoption.

This constitutional choice is significant. The framers were fully aware of the coexistence of Hindu, Muslim, Christian, Parsi and other personal law systems. Yet they deliberately declined to establish a uniform family law regime, placing the aspiration for a Uniform Civil CodeUniform Civil Code (UCC)A constitutional proposal to implement personal laws applying equally to all citizens regardless of religion. in Article 44 among the Directive PrinciplesDirective PrinciplesGuidelines for the government to consider when framing laws, which are aspirational and not legally enforceable by courts., suggesting persuasive action and not legislative compulsion to secure it (reading the word “shall prohibit” in which prohibition of intoxicants is phrased, and comparing it with “shall endeavour to secure” re Common Civil Code) rather than incorporating it as an enforceable fundamental right.

Legal pluralism was therefore not a temporary compromise but an integral feature of India’s constitutional settlement.

Any legislation that criminalises conduct expressly recognised by one personal law system necessarily diminishes the sphere of autonomy historically guaranteed to a religious minority and must therefore withstand the strictest constitutional scrutiny.

The protection of religious freedom under Articles 25 and 26 reinforces this conclusion. The constitutional guarantee is not confined to practices without which a religion would cease to exist.

Islam is not merely a set of devotional rituals but a comprehensive jurisprudential system governing marriage, divorce, inheritance, maintenance and succession. Muslim family law forms part of the normative structure through which the community regulates its internal affairs.

A law criminalising polygyny therefore interferes not merely with individual conduct but with a recognised component of a religiously grounded legal order.

Even accepting that polygyny is permissive rather than mandatory within Islam and its jurisprudence, constitutional protection cannot logically be restricted only to obligatory practices.

Such an approach would permit the State to dismantle vast areas of religiously recognised conduct merely because they are optional. Marriage itself is not a mandatory religious obligation, yet no one would suggest that the State may therefore criminalise marriage without constitutional justification.

The Constitution protects the freedom to organise one’s life according to religiously recognised norms, whether obligatory or permissive.

The contradiction becomes even more apparent when the Shariat Act is read alongside any proposed prohibition. The State cannot coherently recognise Muslim Personal Law as the rule of decision in matters of marriage while simultaneously imprisoning citizens for acting in accordance with one of its recognised institutions.

The State cannot coherently recognise Muslim Personal Law as the rule of decision in matters of marriage while simultaneously imprisoning citizens for acting in accordance with one of its recognised institutions.

Such selective repudiation demands compelling constitutional justification rather than appeals to social morality or majoritarian preference. The strongest constitutional protection, however, arises from Article 21 as interpreted by the Supreme Court. The right to privacy recognised in Justice K. S. Puttaswamy v. Union of India transformed privacy from a merely spatial concept into one of decisional autonomy, affirming that individuals possess the constitutional right to make intimate choices concerning identity, relationships and family life free from unwarranted State interference.

Marriage is among the most intimate and consequential of these choices. It determines many aspects such as emotional commitments, economic responsibilities, inheritance rights, legitimacy and family structure.

The decision of consenting adults to enter a particular form of marital relationship therefore falls squarely within the protected sphere of personal autonomy.

This principle was further strengthened in Navtej Singh Johar v. Union of India, where the Supreme Court held that constitutional moralityConstitutional MoralityThe doctrine that the Constitution’s core values (like equality and dignity) must prevail over popular or majoritarian public morality. must prevail over majoritarian social morality and rejected the proposition that consensual adult relationships may be criminalised merely because they depart from prevailing social norms.

Shafin Jahan v. Asokan K.M., Shakti Vahini v. Union of India, Lata Singh v. State of Uttar Pradesh, and Asha Ranjan v. State of Bihar similarly affirm that the choice of a life partner belongs exclusively to the competent adult and lies beyond paternalistic State control.

Once these principles are accepted, the constitutional inconsistency becomes impossible to ignore. Today, Indian constitutional law protects same-sex relationships, live-in relationships, inter-faith marriages, inter-caste marriages, reproductive autonomy and intimate relationships that depart entirely from traditional family structures. An adult may maintain consensual intimate relationships outside marriage without attracting criminal sanctions. Yet the same State proposes to imprison consenting Muslims who choose to formalise their relationships through marriage under a legally recognised personal law.

The distinction cannot be justified under Article 14. The law would tolerate plurality in intimate relationships but criminalise plurality in marital relationships. It would permit relationships that carry no enforceable obligations while penalising relationships that create legally binding duties of maintenance, inheritance, legitimacy and financial responsibility. In effect, the law punishes responsibility while tolerating informality.

Such a classification bears no rational relationship to constitutional values and is manifestly arbitrary.

The paradox is even more striking when viewed from the perspective of women’s autonomy.

Contemporary constitutional jurisprudence recognises women as independent rights-bearing individuals capable of choosing their sexual partners, reproductive futures, cohabitation arrangements, same-sex relationships, inter-faith marriages and marriages opposed by their families or communities.

It becomes impossible to explain why the same adult woman is suddenly presumed incapable of consenting to become a second or subsequent wife in a polygynous marriage. Such a prohibition replaces her individual choice with legislative paternalism and denies her precisely the autonomy that constitutional jurisprudence otherwise celebrates.

If coercion, fraud or exploitation exists, the law already possesses adequate civil and criminal remedies applicable across communities. What is constitutionally impermissible is a blanket assumption that Muslim women uniquely lack the capacity to make meaningful decisions regarding their own family lives.

What is constitutionally impermissible is a blanket assumption that Muslim women uniquely lack the capacity to make meaningful decisions regarding their own family lives.

That assumption stereotypes Muslim women as incapable of agency and Muslim men as presumptively abusive, thereby transforming the language of gender justice into a vehicle for selective religious regulation.

The proportionality doctrineProportionality DoctrineA legal test assessing whether a state action is balanced and strictly necessary, rather than being excessively intrusive to fundamental rights. further exposes the constitutional infirmity. Criminal law represents the most intrusive instrument available to the State and must remain a measure of last resort. Concerns relating to maintenance, inheritance or financial security can be addressed through civil regulation, enhanced enforcement of existing obligations and gender-neutral protective legislation without imprisoning consenting adults.

A criminal prohibition is therefore neither necessary nor the least restrictive means of achieving any legitimate constitutional objective.

Viewed in its entirety, the constitutional landscape reveals a troubling asymmetry. The State accommodates same-sex intimacy, live-in relationships, inter-faith unions, inter-caste marriages and a wide spectrum of unconventional family arrangements, yet singles out Muslim polygyny alone for criminal sanction.

The distinguishing feature is not demonstrable constitutional harm but the Islamic character of the institution itself. That selective hostility undermines the neutrality required by Articles 14, 21, 25 and 26. Constitutional liberty cannot protect autonomy when choices align with contemporary liberal preferences while withdrawing that protection when identical autonomy is exercised through a religiously recognised institution.

Equality demands neutrality between competing conceptions of the good life, not the privileging of secular or majoritarian family structures over minority legal traditions.

Ultimately, the constitutional question is not whether monogamy is socially preferable or whether polygyny commands universal approval. The question is whether a constitutional democracy founded upon legal pluralism, religious autonomy, decisional privacy, dignity and equality may imprison fully informed and consenting adults for organising their family life in a manner expressly recognised by their personal law and historically preserved within India’s constitutional framework.

Once framed in those terms, the burden shifts decisively to the State. It must demonstrate why this one form of consensual adult relationship alone warrants the extraordinary sanction of criminal law while every other non-traditional intimate arrangement enjoys constitutional protection.

Unless that burden can be discharged, the criminalisation of Muslim polygyny cannot be regarded as a neutral project of gender reform. It stands revealed as a selective assault on a constitutionally recognised minority legal institution: an attempt to delegitimise what is perceived as Islamic rather than to remedy conduct that is uniquely unconstitutional or unlawful.

Such legislation would therefore represent not the fulfilment of constitutional morality but its abandonment.

Jai Hind