The Council of Ministers, after massive protests from all sides, has decided to form a task force to revise the draft amendment on polygamy law in Nepal. Before this decision, Minister for Law, Justice and Parliamentary Affairs, Ajay Kumar Chaurasiya, had clarified: the government is not seeking to promote polygamy through the proposed legal amendment, and the aim is to protect the rights of children born out of wedlock. This kind of framing shifts the burden of accountability from the legal system to individual cases of infidelity and dysfunctional marriages, treating them as aberrations rather than manifestations of systemic failure. The narrative exposes the entangled relationship between law, gender and society, while raising broader questions about who bears the consequences, and what voices and lens shape the marriage law in Nepal?
Despite the government’s decision to rethink the amendment, there needs to be a critical uprising until it is reverted. In this article, I argue that the proposed amendment will reinforce the systemic treatment of marriage as a means to establish paternity, and it is acutely detrimental to gender justice in Nepal.
(Ir)relevance of the proposed amendment
The current marriage law requires children to bear their father’s (sur)name to be considered “legitimate”. The Nepali women’s struggle for their identity, their household and economic roles in raising children are undermined. Firstly, the amendment will reaffirm that biological fathers are accountable solely through marriage, while falsely viewing them as well-equipped guardians, always capable of providing and protecting. The widely perceived, dominant masculine role of men as the ultimate provider is legitimized, while it should have been that of a duty-sharer and an equal partner in current times where women’s rights as human rights have been widely-globally ratified. Moreover, the Constitution of Nepal guarantees gender equality as an enforceable right.
Secondly, the amendment will maintain the notion that marriage is primarily a means to legitimize a fathers’ role as a patriarch. There is no alternative legal means for a Nepali woman to demand economic and social responsibilities of fathers for the children born outside marriage. The amendment is further going to perpetuate this systemic malfunction, rather than providing a reasonable recourse for the parties involved.
The minister asserts that the law still stands against polygamy in other circumstances besides those that do not require such “compensation”. Marriage, one or multiple, cannot be an effective reparation in itself. It is a social institution embedded with complex gender power relations.
In heteronormative patriarchal cultures, central to sustainable marriage has been the ideal conduct of wives, not of husbands. Unofficial unions are often secret affairs. Wives are expected to be forgiving and accepting, while the second woman is demonized as the “home breaker”. The husband’s social status is not much affected because the notion related to men as hypersexual “polygamous” beings is widely internalized. The proposed amendment will provide legal cover to men who have unofficially married multiple women or fathered children outside marriage. The affected women and children on both sides will still have to navigate stigma, having to uphold family honor. Thus, polygamy remains a problem and allowing it under specific circumstances does not play a compensatory role, just legitimizes marriage for the purpose of patrilineal recognition.
The paradox of legal reform
Despite the constitutional mandate for gender equality, the marriage law in Nepal is mired in contradictions.
Chapter 1 (Provisions relating to marriage), Section 68 describes marriage as “a permanent, inviolable and holy social and legal bond”, a sacred institution which should not be dissolved, and that the law will try to keep intact. The reality of diverse unintended marital consequences where either party indulges in multiple unofficial sexual/romantic relationships contradicts with this definition.
How many such “inviolable alliances” a man is allowed for his children to be legitimized? Does official marriage guarantee an accountable fatherhood and functional spousal relationship? Also, as polyandry is criminalized too, the amendment creates a systemic gender gap, wherein women are morally obliged to be loyal and men get a pass in garb of patrilineal rights. The law then becomes a tool to regulate women’s sexuality through marriage.
In Nepal, the parliament is mandated to ratify all legal decisions, any legal gap that is addressed by the parliament is based on value judgement. The value judgements should ideally be based on the principles of natural justice, and notion of liberty and equality. This contradicts with the legal framework guided by historically dominant Brahminical Hindu supremacy. Hindu male scholars in the past have portrayed women’s identity in their scriptures as child bearing entities, whose character and conduct should be regulated by “virtuous” men for better procreation. The law defines and regulates the essence of marriage through the very lens. Already problematic, this further puts the inclusion and diversity issue within the parliament as well as the judicial bench under spotlight. Whose voices shape the law in a nation with vastly diverse ethnicities? What power frameworks underpin, and what theories constitute the notion of “liberty” for lawmakers and judicial committees?
Reflecting further, through “compensation” narrative, evidently, the law views women (both in official and unofficial union) in victimhood realm, which warrants recompense, male-protection and dependency.
Alternatively, a legal approach to viewing women as agents opens ways for understanding their choices, needs and gendered predicaments in complex relationships. And, it is also important to assess the patriarchal elements, the ground-level, systemic and dysfunctional situations under which enable such relationships to unfold and majorly affect women. The law should seek to explore what are the regional and global precedents of individuals navigating through such relationships through law? How have the women, men and children been legally supported in those circumstances, without permitting polygamy?
Last but important, in most of the contexts in Nepal, marriage does not involve merely a husband-wife relationship. The power bestowed on the groom as a patriarch extends to his paternal side of the family, multiplying control, surveillance and potential abuse of the bride. Further intersecting issues such as dowry system, obsessive patrilineal claim over children undermine mother’s decisions and rights, intercaste dynamics, etc. There is legal evidence of these factors compounding to affect women disproportionately in Nepal. Legitimizing polygamy under any circumstance will thus fuel violence against women, and lead to proliferated gender conflicts, dysfunctional families and neglected children in the long run.
In conclusion, there needs to be a sincere discourse around the legally mainstreamed patrilineal legitimacy to begin with. It is high time that the lawmakers do not take patriarchy as a given framework to draft laws. For now, the counterproductive, myopic and gender-biased decision for the amendment needs to be reversed immediately.
