Tuesday, 28 October 2008

Why This Step-Motherly Treatment For Polygamy?

As India intensively debates the demand for decriminalisation of homosexuality, there is growing consensus everywhere that two consenting adults ought to have the freedom to do almost anything they like as long as they don't harm anyone else. In most Western countries homosexuality is not a crime and homosexuals have the right to marry or enter into civil partnerships. Whilst this is encouraging, I find it surprising that a a similar debate is totally lacking with respect to polygamy. In my opinion, if two consenting adults can do what they like in the privacy of their bedrooms and beyond, three or four or more consenting adults should have a similar right.

Polygamy is a generic term used to describe a situation where an individual (male or female) has multiple spouses. When a man has many wives or partners, it is called Polygyny. When a woman has many husbands or partners, it is called polyandry. Among organised religions, only Judaism and Christianity have strict prohibitions against having more than one spouse. Polygyny is most common among Muslims who have religious sanction for this practice. Polyandry is a lot less common, especially in the modern world. In India it used to be practised on a large scale among matriarchal tribes such as the Khasis of Meghalaya and matrilineal communities like the Nairs and Menons of Kerala. Recently I read a CNN news item regarding the practice of polyandry in Himachal Pradesh.

It is not only among Muslims that you see polygyny being practised. The US has the Mormons or the Church of Jesus Christ of Latter Day Saints who used to practice polygyny on a large scale. Some of them still do.

The ban on polygamy is enforced through the criminalisation of bigamy and adultery. A person commits bigamy when he or she undergoes a marriage ceremony when already married. Section 494 of the Indian Penal Code penalises a person who undergoes a marriage ceremony whilst having a having a living husband or wife, with imprisonment of up to seven years. If the spouse in the second marriage was unaware of the first marriage, the punishment is higher (imprisonment of up to ten years) under Section 495.

Section 497 of the Indian Penal Code says that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.” In other words, only a man can be guilty of adultery and then only if his lover is a married woman. The woman in the adulterous relationship will only be guilty of abetting the offence of adultery. The offence of adultery, as defined in the Indian Penal Code, is meant to protect married men from other men who may steal the affections of their wives.

Now consider this scenario. A married man or woman has an affair outside his or her marriage. The parties in the illicit relationship don't bother to get married. In any event such a marriage will be void and so unless there are religious reasons, there is no incentive in going through a marriage ceremony for a second time. Is there any offence being committed in this example? No, not unless a married woman is having an affair outside her marriage, in which case her lover will be guilty of adultery.

Therefore, the criminalisation of bigamy prevents married people from registering relationships they may be involved in outside their marriage, but does not actually prevent the relationship (unless it amounts to adultery). In my opinion, polygyny and polyandry ought to be legalised, just as homosexuality ought to be decriminalised and homosexuals given the right to have a civil partnership. Every marriage and civil partnership must be registered and the register should be available to the general public for inspection and accessible through the internet. Bigamy and adultery should not be criminal offences, though they should be a ground for divorce. Just as a spouse whose partner cheated on him or her can get a divorce, a spouse whose partner contracts a second marriage should be able to get an immediate divorce. A person who got married without knowing about his partner's first marriage should be able to get compensation for fraud. Criminal law should have no place in the bedrooms of consenting adults.

It may be argued that if polygamy were to be legalised, polygyny will become common, considering the weaker position women occupy in Indian society, whilst polyandry will only take place in poor communities where there is a scarcity of resources. This is a feasible argument, but I believe the answer lies in empowering women by educating them etc. and not in interfering in what consenting adults do.


Jo said...

Nice post Vinod. I hope this will lead to a good discussion on the topic.

princemyshkin said...

Interesting arguments Vinod, I am sending this off to a couple of e-groups that I am part of. Just wanted to point out that polyandry was fairly common amongst some ezhava and dalit castes in Kerala as well, where brothers married one woman. Amongst Nairs, it is not really polyandry as the women could not co-habit with more than one man at a time in practice.