If a child has been born from the marriage or the woman is pregnant, she will be punished for the crime of polygamy (1 to 5 years of imprisonment and a fine of 10,000 to 50,000), but such marriage will not be annulled. The government claims that this law has been introduced for children's citizenship and property rights, but rights activists say that it will be mandatory to find the father for the identification of children and that it will give more importance to men.
What you should know
The government has now brought forward a bill to amend the legal system related to polygamy. "Bill to amend the Provincial Criminal Code 2074" is under consideration in the Bill Committee of the Council of Ministers. Preparations are being made to change the existing legal system related to polygamy through this bill.
What is the new arrangement that the government is trying to bring regarding polygamy?
Through this bill, the government has prepared an amendment to section 175 of the Criminal Code, 2074. By amending the provisions of the existing law, which stipulates that a married man or woman can have polygamy, it is being tried to create a law that refers to 'any married person'.
If this amendment is passed by the Parliament, there will be a provision in Section 175 (1) of the Criminal Code, "A married person should not marry another while the marital relationship continues." Along with this, the provision of Section 175 (2) that a woman should not marry a man knowing that he is married will be removed.
The government has put forward a proposal to add (5 a) and (5 b) after sub-section 5 in this section. Section 175 of the Criminal Code currently in force states in sub-section 5, "Marriage according to sub-section 1 shall be automatically annulled." This means that a marriage with a married person is automatically annulled. Polygamy will no longer be automatically invalidated under the law introduced by the government. In certain cases, polygamy will not be abolished, but those who have polygamy will be imprisoned and fined.
For this, the government is going to amend the criminal code and put a new provision. It has been proposed in (5 a) added through the new bill, "Despite what is written in sub-section (5), if a child has been born out of wedlock or if the woman is pregnant, such marriage will not be annulled only because of the punishment for the crime of polygamy." If this provision is passed by the parliament and implemented legally, polygamous women or men will be jailed and fined, but their marriage will continue. There is a new proposal of the government that they will be allowed to live as a married couple after paying the imprisonment and fine.
If a child has been born from the marriage or the woman is pregnant, the crime of polygamy will be punished (1 to 5 years of imprisonment and a fine of 10,000 to 50,000), but such marriage will not be annulled. The government claims that this law has been introduced for children's citizenship and property rights, but rights activists say that it will be compulsory to search for the father for the identification of children and that it will give more importance to men.
Another provision arranged by the government is provision of compensation in the case of marriage by deception or fake marriage in sub-section 5 of section 175. "Despite what is written in sub-section (5), if one of the men or women who marries contrary to sub-section (1) deceives or misleads the other that he/she is not married or unmarried, the court shall give reasonable compensation to the victim of such misrepresentation," said the proposed provision.
According to this proposed arrangement, compensation is arranged for those who are victims of second marriage by bending or faking rather than the situation of pregnancy or child birth. It does not propose a provision that if a marriage has been registered by deception or deception, the registration will remain or be automatically cancelled, this provision only talks about compensation to the victim. As soon as it became public that the government had brought forward this system, there was a protest everywhere. After that, the Bills Committee under the Council of Ministers has formed a sub-committee for further study. What is the government doing after the
protest?
The government was criticized everywhere for introducing a law to recognize polygamy. From social networks to the streets, the government was also asked a question - is the government going to introduce a law to recognize polygamy?
MPs of the ruling party along with the opposition demanded that the government minister should answer the parliament immediately. Government Minister for Law, Justice and Parliamentary Affairs Ajay Kumar Chaurasia stood on the rostrum to answer questions from the public and MPs during the House of Representatives meeting on July 21. Minister Chaurasia said that when some media and social media interpreted the issues proposed to solve the problems during the implementation of the Code including the Civil Code on the basis of assumptions, confusion and anger was created among the common people.
Chaurasia said that based on the report prepared by the committee led by the then Supreme Court judge Anand Mohan Bhattarai and passed by the full meeting of the Supreme Court, now the Criminal Code is going to be amended. He mentioned that the process for timely reforms in the criminal and civil laws was already underway during the previous government's tenure. He said that the process has now been moved forward after the Supreme Court and the previous government put it on the docket for the need to amend the Criminal Code.
'The bill of the Council of Ministers was discussed in the committee. From the discussions, it was found that there is a need for amendments and revisions in the matters of polygamy, age of marriage, advance bail, presidential pardon etc. included in the bill, so a sub-committee has been formed under the coordination of the Law Secretary of the Prime Minister and Cabinet Office to study and submit suggestions in this regard, he said.
Minister Chaurasia informed that the sub-committee formed under the coordination of the Secretary of the Prime Minister's Office, Phaninder Gautam, will have representatives from the Ministry of Law and Women, the Law Commission and the Attorney General's Office. He also promised that no bill including polygamy would be submitted to the parliament that would have a negative impact on the society.
What is the current legal arrangement regarding polygamy?
Part 3 of the Civil Code provides for marriage in family law. Section 67 of the Code states that marriage is considered to be a marriage, "If a man and a woman accept each other as husband or wife through a celebration, ceremony, ceremony or any other act, it will be considered as marriage."
Section 69 provides for the freedom to marry. In which every person has the freedom to marry, establish a family and lead a family life under the law. It is stipulated in this section that regardless of the type of marriage, it should be made public. In Nepal, there is a legal system where the age of marriage must be 20 years. Section 74 of the Civil Code states that a marriage is considered to have taken place if a child is born from physical contact between a man and a woman. "If it is proved that a woman conceives and gives birth to a child through physical contact with a man, then such man and woman will automatically be considered married," according to the provisions of the Civil Code.
Section 74 (2) states that if a woman conceives and gives birth to a child through coercion, and if a woman conceives and gives birth to a child through physical contact with a related man who is punished for incest in a relationship, it is mentioned that marriage is not automatically considered. It is mentioned that there will be no impact on the constitutional and legal rights of the child born from such a relationship.
What are the penalties and fines for polygamy?
Article 11 of the Criminal Code 2074 provides for marriage-related offences. Section 175 of the Criminal Code stipulates that polygamy should not be practiced and the legal penalties and punishments for such marriages. Section 175 states, "A married man should not marry another while the marital relationship continues." A woman should not marry such a man knowing that he is married. It is said about the punishment and penalty for a person who commits polygamy, "The person who commits or causes the offense shall be imprisoned for one year to five years and fined from 10,000 to 50,000 rupees." The Criminal Code also provides that such a marriage is automatically annulled. There is provision for such punishment to be given to both men and women.
Who should sue?
In polygamy, the ex-wife has the legal right to file a complaint against both her husband and the woman who has become a step-wife. Such an offense is governmental. The victim should file a complaint. However, if no one files a complaint, the case will not proceed. In that case, the crime is considered to be admitted. Polygamy is a crime against society. Neighbors and villagers can also become indicators in this. Even if the villagers inform the police, the case will proceed.
The statute of limitations for the crime of polygamy is also provided by the Criminal Code. It is stated in section 176, "A complaint shall not be made after three months from the date of knowing that the offense has been committed under this section." The victim, a person in a single household, a neighbor or any person in the society who finds out that a man has polygamy must file a complaint with the police within three months of finding out. According to the Civil Crimes Code, there is no legal action against the complaints filed after three months.
If the victim, family, neighbors, or society reports or informs the police about the crime of polygamy, the police will proceed with the investigation. Then the police arrest such man/woman for criminal offense and proceed with the investigation. After completing the investigation, the police will hand over the arrested person to the public prosecutor along with the investigation report. The public prosecutor then proceeds with the process by filing a case in court.
What happens to children born when polygamy is annulled?
Children's rights are ensured by the constitution and laws of Nepal. Article 39 of the Constitution provides for the rights of children. Article 39(1) states that "every child shall have the right to be named and registered with his identity." Every child has the right to education, health, nurturing, proper care, sports, entertainment and all-round personality development from the family and the state as fundamental rights.
Section 4 (2) of the Children's Act, 2075 states, "After the birth of a child, the father or mother must register the child's name in accordance with the prevailing law." This Act gives children the right to maintain a relationship with their father or mother or both, or to have regular direct contact or meeting, except in cases where the juvenile court prohibits it. There is a legal provision to allow children under the protection of individuals or organizations to visit their birth parents or families. Section 7 of the Act stipulates that "in the case of divorce or separation of parents for any other reason, both parents will have to bear the cost of raising children according to their financial capacity."
Problems arise when such children grow up and take citizenship. There is no problem in getting citizenship in father's name, but administrative obstacles have to be faced in getting citizenship in mother's name. When citizenship is taken only from the mother's name, the father is searched for. According to existing law, second marriage is automatically void. According to the government officials, there is a problem when searching for the father of the children born from that relationship. The current legal arrangement is that even if the marriage is annulled, the legal rights of the child are guaranteed. But there are administrative difficulties in matters such as obtaining citizenship.
A bill to grant citizenship only in the name of the mother, brought to solve this problem, is under consideration in the Federal Parliament. The bill with the provision of citizenship only in the mother's name has been passed by the House of Representatives and is pending in the National Assembly. In this bill, if the father's name is not written while taking the citizenship, the mother has to 'self-declare'. The district administration or the subordinate area administration office that grants citizenship is going to keep the father's palace empty and take the mother's 'self-declaration letter'.
