Consent to marry second wife?


The controversial Amendments to the Marriage Bill 2013 have unanimously been passed by the National Assembly despite spirited opposition from the female MPs.

Clause 44 (4) of the Bill highlighted hereunder on whether a husband should seek a consent to marry a second wife gathered most heat during the debate.

44.  (4) Despite subsections (l) and (2), if the marriage is a subsequent marriage, the notification shall also declare whether the current wife or wives has or have been informed of the intended marriage and whether she or they approve or disprove of the intended marriage and her or their reasons for approving or disproving of the intended marriage.

It is obvious that in our society, there are polygamous and monogamous marriages but majority of Muslim marriages in our society are polygamous and Islamic law has made a provision for this type of marriage.

It should first be made clear that a woman who does not want to be a part of a polygamous household does not have to be. Likewise, since a bride’s consent to marriage is required, she is not obliged to accept the proposal of a man who is already married. Pardon me to say that this type of marriage cannot work  in a marriage that has  been arranged or a pregnancy that  forced a marriage.

Borrowing from the judgement of  Mayelane v Ngwenyama and Another

It is obvious that a wife has no effective autonomy over her family life if her husband is entitled to take a second wife without her consent. Respect for human dignity thus:

“requires that her husband be obliged to seek her consent and that she be entitled to engage in the cultural and family processes regarding the undertaking of a second marriage. Given that marriage is a highly personal and private contract, it would be a blatant intrusion on the dignity of one partner to introduce a new member to that union without obtaining that partner’s consent.”

Where subsequent marriages are entered into without the knowledge or consent of the first wife, she is unable to consider or protect her own position. She cannot take an informed decision on her personal life, her sexual or reproductive health, or on the possibly Imageadverse proprietary consequences of a subsequent customary marriage.

Any notion of the wife’s equality as enshrined in article 45 of the Constitution with her husband would be completely undermined if he were able to introduce a new marriage partner to their domestic life without her consent.Meanwhile second and third wives whose husband takes another wife may well have their dignity and equality rights undermined.

ImageThe lack of power of second and subsequent wives would acutely affect their ability to live lives of dignity and respect. They would run the risk of agreeing to enter into “marriages” thinking it is valid when it is not and they would hence not be protected from further exploitation. They would also not be required to give consent for their husband marrying a third or later wife and would therefore not have any say about how their intimate private relationships are arranged. The position of subsequent wives would remain precarious.

In conclusion, there is no limit to polygamy except being able to provide for the family.

 

Additional : http://www.dailymaverick.co.za/opinionista/2013-06-11-polygyny-our-human-rights-half-job/#.UyszCeOSySo

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