Multiple ways to equality

The debate on polygamy and gender justice is more complicated than it is made out to be

Written by Faizan Mustafa | Published:October 28, 2016 12:15 am
equal The central issue is if criminalisation of bigamous marriages is the most effective way to gender justice . (File)

“Where polygamy lacked legal sanction, it frequently existed in the more or less illegal form of concubinage,” said eminent American sociologists J.H. Locke and J.A. Peterson. This author believes in monogamy and is not in agreement with the affidavit filed by the Personal Law Board which is atrocious and appalling on several counts. The central issue is if criminalisation of bigamous marriages is the most effective way to gender justice . There is no magic about monogamy, nor is everything evil about restricted polygamy if it is allowed to all communities. Polygamy is a problem of male-dominated culture and has little to do with the religion of bigamous men. What are the dangers of outlawing polygamy particularly when the law recognises live-in relationships? What is the Indian and western experience in this respect? Is restricted polygamy for all communities with adequate safeguards for women a better option? These are some questions the Law Commission should include in its questionnaire.

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Hindu bigamous husbands go scot-free as the judiciary can do little unless an aggrieved wife lodges a complaint. It is an offence against her, not against society. The Law Commission’s 227th report of 2009 lamented the existing bigamy law under the Hindu Marriage Act, 1955 when it concluded that “it is indeed full of serious shortcoming and loopholes”.

In spite of polygamy being illegal for Hindus except in Goa, official reports brought out in 1974, after almost two decades of prohibition of bigamy, revealed that polygamy is higher among Hindus than Muslims (Adivasis 15 per cent, Hindus 5.8 per cent, Jains 6.7 per cent, Buddhists 7.9 per cent and Muslims 5.6 per cent). No authentic figures are available for the subsequent decades. According to the 1971 census, there were 45.3 crore Hindus and six crore Muslims; as many as one crore Hindu men had more than one wife as opposed to just 12 lakh Muslim men. According to the Third National Family Health Survey of 2006 as many as two per cent women reported that their husbands have more than one wife. Banning polygamy thus has not worked.

At present when a Hindu man deserts his lawfully wedded wife to live with another woman, the only remedy available to the deserted first wife is divorce on grounds of adultery or desertion. However, most abandoned wives may not view divorce as a viable option because of the sacramental nature of Hindu marriage. In any case, prosecution of the husband does not help the first wife. Hindu men who contract bigamous marriages are allowed to go scot-free without legal obligations towards their partners due to the insistence on the “solemnisation” of marriage. Even their registration of marriage is not accepted as proof. Clandestine bigamy among Hindus is worse than open polygamy among Muslims.

Muslim men who take more than one wife are legally bound to provide each wife not only residence but also proper maintenance and equal care and love as the Quran permits polygamy only in exceptional situations with very stringent conditions. Thus, she is better off in comparison to the “second Hindu wife” who has no legal status or rights.The second Hindu wife cannot even claim maintenance from her husband. The Supreme Court in the D.Velusamy case did deny maintenance to a second Hindu wife by holding her as “mistress” and “keep”. Thus banning polygamy amongst Muslims would simply have an equalising effect of making a second Muslim wife as destitute and vulnerable as a second Hindu wife.

The Modi government has quoted examples of a number of Muslim countries (even though most of these countries do not believe in individual liberty) where polygamy is permitted with the consent of the first wife or prior permission of the court. The government has overlooked the fact that in spite of abolition of polygamy, Turkey and Tunisia have not succeeded in controlling or eradicating polygamy. Normative changes are indeed not enough to bring social reform. Leading experts of Indian family law such as Derrett, Anderson and Menski oppose an outright ban on polygamy and favour restricted polygamy.

Even in the US, there is a call to legally recognise polygamy in some situations as the bigamy law has not led to the eradication of polygamy. The percentage of Americans who find polygamy to be morally acceptable has more than doubled since 2001 and polygamy could be legalised in the US as soon as 2040. Unlike in the western world, we have an adverse sex ratio and therefore monogamy would remain the only choice. The missing daughters is the real crisis.

The Modi government erroneously believes that monogamy is the only way to strive for equality between the sexes. Scholars like Adrienne D. Davis argue that polygamous relationships also have the ability to strive for this ideal. They favour recognition of polygamous relationships based on corporate law, such as limited liability companies or partnerships giving all members or partners of marriages equal bargaining power as opposed to status-based rules. Based on these business models, “regulated polygamy” could be more in tune with the “freedom of contract” and “individual autonomy” doctrines than sacramental monogamy. Equal say is to be given to all members, including wives, in entry or exit of any member with rights and liabilities clearly laid down. Let us think of treating marriage as a private limited company.

 

The writer is vice chancellor, NALSAR University of Law, Hyderabad

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  1. P
    Prashant
    Oct 28, 2016 at 9:20 am
    All muslims wants that sharia shd be Implemented,,,they r not able digest the fact that Today india is governed by Narendra damodardas modi,,,,,,,,Not Aurangzeb,or some delhi sulatan
    Reply
    1. A
      Abhinav
      Oct 28, 2016 at 3:59 am
      If this article is taken seriously then conclusion is that polygamy should be brought back in hindu law also because it has not worked as intended!
      Reply
      1. A
        Abhinav
        Oct 28, 2016 at 3:42 am
        This author has started with saying that he believes in monogamy. But his all arguments are in support of polygamy? Shouldn't he first change his belief before convincing others?
        Reply
        1. S
          Sirius
          Oct 28, 2016 at 11:02 am
          Aukaat dikha di ? Jawaab nahin , to Gaali nikane lagi ?
          Reply
          1. S
            Sirius
            Oct 28, 2016 at 7:03 am
            Please use this argument in Court !!! Your derision of Hindu laws here will not work ! SC is hearing a peion filed by aggrieved Muslim ladies , who claimed to have been wronged under Muslim personal laws ...
            Reply
            1. R
              Rajat
              Oct 28, 2016 at 12:59 pm
              At least ban it in law. If it is banned for Hindus, it should be banned for all religions. What a stupid argument by the author. Failure to implement a law does not mean do not legislate at all. PoCA has failed to reign in corruption. Does that mean we let it go? NO.lt;br/gt;Read another article published in the Hindu Newspaper today. Similar argument by that writer mixing hindu and muslim relgions.lt;br/gt;This is the problem with the Muslim community. These men are supposed to be the liberal, educated and forward thinking. If such are the thoughts of these people, forget any hope of reform in Islam from within.
              Reply
              1. R
                Rajat
                Oct 28, 2016 at 12:59 pm
                At least ban it in law. If it is banned for Hindus, it should be banned for all religions. What a stupid argument. Failure to implement a law does not mean do not legislate at all. PoCA has failed to reign in corruption. Does that mean we let it go? NO.lt;br/gt;Read another article published in the Hindu Newspaper today. Similar argument by that writer mixing hindu and muslim relgions.lt;br/gt;This is the problem with the Muslim community. These men are supposed to be the liberal, educated and forward thinking. If such are the thoughts of these people, forget any hope of reform in Islam from within.
                Reply
                1. R
                  Rajat
                  Oct 28, 2016 at 1:00 pm
                  Please quote data from 2016. 1974 statistics to present an argument in 2016. Atrocious. Is this how they teach in NALSAR?
                  Reply
                  1. K
                    K SHESHU
                    Oct 28, 2016 at 4:18 pm
                    Valid points. The problem if gender equality is more complex than it looks and so it needs in-depth analysis
                    Reply
                    1. A
                      Abansal Spslt
                      Oct 30, 2016 at 3:50 am
                      According to 2011 Census Hindu married women outnumber married men by 43.56 lakh. The exact figures are: out of 47,13,97,900 married Hindus, 23,35,20,803 are males and 23,78,77,097 females. It is possible only when 43,56,294 Hindu men were in bigamous or polygamous relationships. Sikh, Buddhist and Jain men are not included among Hindu men. Then why not legitimize the rights of second wife through law?
                      Reply
                      1. A
                        Abansal Spslt
                        Oct 31, 2016 at 5:45 am
                        I never said men have a right to abuse women, please read my comments again. In fact, no human being has a right to abuse another living being. What a wife, first or second or third, should do is up to her and the law. My comment is with reference to the 43 lakh women included in the census data who considered themselves married even though the man already had a wife. Women are not stupid, they do marry to be a man's rightful slave. Most second marriages occur because man and woman love each other; they are not arranged by parents and are solemnized without band, baja, barat. In such situation, what's wrong if the law takes steps to protect the rights of the man, first wife and the second wife?
                        Reply
                        1. R
                          Raj
                          Oct 28, 2016 at 3:26 am
                          Just have two marriages, civil and religious - that need to be done, legal law same for all, religious becomes personal practices. Don't formalize some religious ceremony and recognize a certain ritual as law.
                          Reply
                          1. R
                            Raj
                            Oct 28, 2016 at 3:28 am
                            One law for all, recognize only civil law, don't legitimize some religious ritual in law.
                            Reply
                            1. B
                              bbdd
                              Oct 27, 2016 at 11:36 pm
                              Is there any place on earth, where Mohamed's teachings have brought equality and secularism?
                              Reply
                              1. G
                                Gaurav Dogra
                                Oct 28, 2016 at 6:19 am
                                If Marraige should be treated like private limited company, What is the status of women in that Marraige ? Is it a stock to be traded ? Author reflects a highly Patriarchical and conservative mindset that is still glorifying middle age traditions in 21st century by COMMODIFYING and OBJECTIFYING the women. RIP LOGIC !!!
                                Reply
                                1. H
                                  H Gangadhar
                                  Oct 28, 2016 at 11:00 am
                                  Brilliant arguement.very very convincing.
                                  Reply
                                  1. S
                                    stranger
                                    Oct 28, 2016 at 6:05 am
                                    sorry polygamy is not civil matter. it is as much criminal and immoral to us as murder is. it is also criminal in legal sense for all laws applicable to human beings anywhere in world(not to terrorists as you know) . in fact many instances of murder can be condoned when the murderer has himself/herself been a long oppressed victim and the murdered person a monster oppressor, like our freedom fighters . i know you won't understand. leave your book and 7th ad and come to our age to appreciate my feelings.
                                    Reply
                                    1. S
                                      stranger
                                      Oct 28, 2016 at 4:09 am
                                      murder is illegal but still murder happens, so why not legalize it, typical muzy argument. the problem is people of terror manual sta back with the pedophile of 7th ad and their reasoning might be good for that uncivilized tribes of that place, but has no place in civilized world.lt;br/gt;i am really never more disgusted by those trying to reason polygamy they are a few steps more diabolical than those in the islamic world who try to find out reason for committing terror activities.
                                      Reply
                                      1. N
                                        NLUO Alumi
                                        Nov 4, 2016 at 6:00 pm
                                        This author has been VC of my alma Mater NLUO. Such a hypocritical things he preach.lt;br/gt;lt;br/gt;Himself Having married 3 times, he believes in Monogamy. Double standards.
                                        Reply
                                        1. V
                                          Vinu Koratty
                                          Oct 28, 2016 at 2:41 am
                                          ONE NATION. ONE FLAG. ONE LAW.
                                          Reply
                                          1. J
                                            jayant darade
                                            Oct 28, 2016 at 12:00 pm
                                            You brought whatever statistics to support polygamy is worsening your image as Chancellor. . Those who support polygamy and have more than one daughter think are you ready to accept one broom for all your daughters
                                            Reply
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