Luisa There have been fairly many feminist readings and critiques of family law. These efforts have taken a serious backseat with the rise of communal fascism especially of the hindutva brand. Will try and give a small bibliograohy from memory at the end of this mail (family law is not something that I know much about, so do not consider my response more seriously than that). On a perfunctionary note, marriages and succession in India is governed by three broad religious codes which unfairly encompass all religions in India - being Hindu, Muslim & Christian and they are called personal laws. These have through precedents and statute been interpreted broadly to include sub-streams (whether these "sub-streams" would want to be included or not) - so there is ample scope for marriages to be recorded without registration and most marriages in India have happened without formal registration (off late there has been efforts afoot to make registration compulsory which has met with a little amount of success). Special marriages act is the secular law governing marriages and a very miniscule number of marriages are registered under this - most often inter-caste and inter-religion - you would of course be aware how rare this is in India. You could try lawyer/authors such as Ratna Kapoor, Flavia Agnes, Brinda Grover, Uma Chakravarthy etc. Apologies for not being more helpful - am sure there are others in this group who can give more information Best
On 31/10/2008, Luisa Steur <[EMAIL PROTECTED]> wrote: > Dear Bobby, > Thanks for your reply. Actually as soon as I sent my e-mail I started > realizing I probably hadn't taken enough account of the immense complexities > of the Indian legal system... Can you say a bit more about this Special > Marriages Act--what does that act entail? (Or where can I read about it?). > Luisa > > > > > ________________________________ > From: Bobby Kunhu <[EMAIL PROTECTED]> > To: [email protected] > Sent: Friday, 31 October, 2008 18:37:56 > Subject: [GreenYouth] Re: Why This Step-Motherly Treatment For Polygamy? > > > Luisa > I am taking the liberty to pass on your comments to Vinod > I thought that I should point out one minor disagreement I have with > your argument; > You say > "(every marriage and civil partnership ..must be registered" makes no > sense --every marriage and civil partnership is registered otherwise > it is not a marriage or a civil partnership but an unregulated and > undefined relationship)." > Under Family Law regulated through personal laws (euphemism for > religious codes - there needs to be a debate on how representational > they are anyways), in India it is possible to contract marriage > without registration. The system does not see marriage as either > "civil" or "partnership" - except under the Special Marriages Act > I could not agree more with > "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." > There are enogh examples of such social engineering that, if not > backfired, are rotting without implementation in the gazette, from the > Dowry prohibition Act to the Atrocities Act > > > Best > Bobby > > On 31/10/2008, Luisa Steur <[EMAIL PROTECTED]> wrote: >> 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/ >> >> >> >> >> > >> > > > -- > Bobby Kunhu http://community.eldis.org/myshkin/Blog/ > > > > > > > -- Bobby Kunhu http://community.eldis.org/myshkin/Blog/ --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. 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