Nanny State

The fact that we in Nepal in this day and age are having to block a bill that perpetuates polygamy, and that there are voices justifying it, shows just how ossified the ruling class still is.

It is one step forward, two steps back, and is not surprising given entrenched patriarchy in mainstream society and disregard for constitutionally-stipulated reservation quotas for women at all levels.

Here is a brief recap for those of you not following this saga: a proposed amendment to Article 175 of the Criminal Code attempts to legalise polygamy where an extramarital affair has resulted in a child. It does not state how many partners and children will be accepted, potentially leading to more problems. 

Further, the pretext of protecting children’s and women’s rights purported by the bill is not even valid, legally or otherwise.

Existing civil and criminal codes have mechanisms to establish paternity of a child, not taking into account the circumstances of their birth, providing a clear pathway for birth registration and citizenship. It also allows for inheritance to all children, regardless of the marital status of parents.

But many men refuse to recognise children born out of an extramarital affair, fearing they might be prosecuted for polygamy, or have to further fragment inheritance. But an extramarital affair is not criminalised, unlike polygamy. 

We would do better to resolve this confusion, as well as the lack of clarity in the bureaucracy that asks for a marriage certificate for the civil registration of children when it is not even mandatory.

As for protecting women involved with married men, marriage is not always the solution, other mechanisms for reparation should be looked into. She might also be as guilty as the man, and what of the justice for the first wife? Children are not collateral damage, but they are also not a ticket to legitimise a misdeed.

Even so, if people are not happy in a marriage, they can choose to divorce and remarry. A better solution would be to make the path to legal separation easier and more just for both parties. At present, a man can rarely get a divorce without his wife’s consent, owing to social disadvantages that women face. It is less complicated for women.

“It is unlikely that the bill in its current form will be passed, but the fact that something like this has even come up and we have to have this discussion is a huge relapse,” says lawyer Neha Gurung.

Equally problematic is what the bill does not say in not so many words: that a woman’s identity is her marriage, her husband, her family. She cannot exist as herself. 

Polygamy was criminalised with the enactment of the Muluki Civil Code 2017 and the Muluki Criminal Code 2017 after decades of advocacy by rights groups. This amendment not just threatens to undermine progressive work of the past, but also sets a dangerous precedent. 

“A step like this can take Nepal back by at least 30 years,” warns advocate Diksha Kandel. “And female protection is just a guise, this is not even a gender issue although women will suffer more if this bill were to pass. No one should be allowed double marriage, regardless of their gender.”

Last month, Prime Minister K P Oli urged people to marry “soon” after turning 20 and have three children by age 30. There may be biological merits to having children earlier, and Nepal’s ageing population will be a problem, but it is none of the prime minister’s business if, when or how many children women decide to have. 

And it is hypocritical to ask women to have more children when the government cannot even guarantee that they get citizenship in the mother’s name. Till today, civil registration for marriage must be carried out in a man’s constituency.

Nepal’s laws are still being made by men for men. Women are there just to reproduce. There is outrage and ridicule on social media about the polygamy amendment proposal. 

Wrote advocate Aanchal Adhikari on LinkedIn: ‘Legalizing second marriage on the grounds of pregnancy is not just a legal loophole, it is a moral failure. It emboldens infidelity, erases the pain of the first wife, and degrades women to mere vessels of reproduction.’

Nepal’s former ambassador to Australia Lucky Sherpa wrote on her Facebook: ‘Any move to legalize polygamy or other discriminatory provisions against women is a direct violation of our Constitution and Nepal’s international commitments.’

The amendment is drafted by the Ministry of Law, Justice and Parliamentary Affairs, no less. It has been the judiciary, not the legislature or executive that have upheld women’s rights in Nepal in the past. 

In response to anger in the public sphere, Law Minister Ajay Kumar Chaurasiya clarified that the draft will be amended if certain wordings are objectionable.

But it is not the wording that is the problem, it is the intent. How can a nanny state even think of rectifying infidelity by justifying polygamy?