I can't help having to react to the serious naivite I see in Vinod George Joseph's article about the function of law in society, about the illusion that law's primary function is to empower marginal groups/relationships. I tend to think that history shows that the law works primarily to enforce the status quo. It is only after a broad social movement and political struggle, when the status quo has changed, that you can adopt the law to make it reflect the new, more liberated status quo. But if you simply extend the reach of the law without there being a powerfull social movements for a different status quo first, what you are doing is simply extending the power of the state to regulate and subordinate any emerging alternatives to the dominant status quo. Such initiatives may be undertaken by well-meaning progressive lawyers but without a broad social movement they will end up placing marginal groups at the mercy of the majority of conservative judges in stead.
Therefore this desire to include more and more marginal groups and marginal relationships into the realm of the law is alien to me. As long as such groups and relationships are not explicitly criminalized (and thus in fact already included in the law), I would think it is a much wiser strategy to keep them out of the reach of the state. "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." says Vinod. First of all, this is of course tautological (every marriage and civil partnership ..must be registered" makes no sense --every marriage and civil partnership is registeredotherwise it is not a marriage or a civil partnership but an unregulated and undefined relationship). But secondly, imagine what it would mean for marginal, non-orthodox relationships if they were told they "must" be registered and available for inspection in a context where there was not a large social movement to break the strong-hold of monogamous, heterosexual, patriarcal relations (and I don't think we're at that point yet in India..if anywhere). It would simply mean that you force any kind of marginal alternatives existing on the fringes of the law to make themselves explicit before the state so that the state can regulate them, so that conservative public opinion can pour scorn on them, and so that dominant values can be legally enforced on them to the point that these relationships simply stop existing or become so much regulated that they stop being alternatives at all. My argument would be that you can only fight reactionary forces using the more progressive law of the status quo and that you can change the law to reflect a more progressive status quo but you cannot change the law to simply force society into a more progressive order without a large part of the population desiring and organizing for this more progressive social order--such an attempt for liberation, that starts rather than ends with the law, inevitably back-fires. Luisa ________________________________ From: Bobby Kunhu <[EMAIL PROTECTED]> To: Greenyouth <[email protected]>; "[EMAIL PROTECTED]" <[EMAIL PROTECTED]> Sent: Friday, 31 October, 2008 15:37:03 Subject: [GreenYouth] Why This Step-Motherly Treatment For Polygamy? http://winnowed.blogspot.com/2008/10/why-this-step-motherly-treatment-for.html Why This Step-Motherly Treatment For Polygamy? Vinod George Joseph 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. -- Bobby Kunhu http://community.eldis.org/myshkin/Blog/ --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [EMAIL PROTECTED] For more options, visit this group at http://groups.google.com/group/greenyouth?hl=en-GB -~----------~----~----~----~------~----~------~--~---
