One wonders the essence of the law of bigamy. In other words, what did the law of bigamy set out to achieve or to prevent? Is it to protect the sanctity of marriage? Which sanctity? Or is it saying that Africans do not understand what marriage is? If a man already has some mistresses by the side, then there is no sanctity to protect anymore since the man has already violated his marital vows. My take is that if the law is really set out to punish men because they marry more than one wife, it is immaterial that the subsequent wives do not have marriage certificates. If it could be shown that a marriage ceremony took place by furnishing both documentary evidence in form of pictures, Traditional Marriage Invitation Cards; and producing witnesses of the ceremony, then a prima facie case of bigamy is made out. Prosecution for bigamy should then follow.
So my question is if the law is watered down as far as bigamy is concerned, why then is polygamy frowned at and why is the law of bigamy still in effect. Polygamy is not part of the practices that are Ã¢â‚¬Å“repugnant to natural law equity and good conscienceÃ¢â‚¬Â as was handed down to the colonial administrator by their superiors. It is submitted that the law of bigamy is no longer good law and ought to be purged out of our legal system since our socio-economic reality does not even support it. So the law of bigamy is superfluous.
I think the law of bigamy has been overtaken by event. To take the words of Oliver Wendell Holmes Jr., an American Jurist, in his book: The Path of the Law (10 Harv. L. Rev. 456, 459 (1897)
Ã¢â‚¬Å“It is revolting to have no better reason for the rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the pastÃ¢â‚¬Â.
I do not think that it is the governmentÃ¢â‚¬â„¢s business to invade the citizensÃ¢â‚¬â„¢ right of personal privacy, freedom of thought, religion and conscience as enshrined in the First Amendment or Sections 37 and 38 of the 1999 Constitution of the Federal Republic of Nigeria.
Every citizen should have a right to marry as many wives as he could cater for. The Muslim religion recognizes polygyny as many as four wives. The curious thing is that even though Christianity frowns at polygyny, nowhere was it outlawed in the bible. The Hebrew Bible shows that polygyny was practiced by the ancient Hebrews. Though practice was not very common, it was not particularly unusual and was certainly not prohibited or even discouraged by the bible. There is nowhere in the Torah (Jewish sacred writings and teachings mostly on a scroll) or the rest of the bible where monogamy was established as a rule or even laid out as a sanctioned principle. In the bible, there are about forty polygynists, including the prominent ones as Abraham, Jacob, Esau, Moses, David and even Solomon, with little or no further remark on their status as polygynist.
The Torah and even the Five Books of Moses, include a few specific regulations on the practice. In the bible, Exodus 21:10 states that multiple marriages are not to diminish the status of the first wife, while Deuteronomy 21: 15-17 states that a man must award the inheritance due to a first-born son to the son who was actually born first, even if he hates that sonÃ¢â‚¬â„¢s mother and likes another wife more. This implies that the sonÃ¢â‚¬â„¢s hated mother might have been divorced. Again, Deuteronomy 17: 17 states that the king shall not have too many wives.
The levirate marriage, (derived from the latin word Ã¢â‚¬Å“levirÃ¢â‚¬Â, meaning Ã¢â‚¬Å“husbandÃ¢â‚¬â„¢s brotherÃ¢â‚¬Â is a type of marriage in which a woman marries one of her husbandÃ¢â‚¬â„¢s brother after her husbandÃ¢â‚¬â„¢s death, if there were no children, in order to continue the line of the dead husband) has a positive disposition towards polygyny. The institution requires a man to marry and support his deceased brotherÃ¢â‚¬â„¢s widow if he died without having given birth to a son. (Deut. 25: 5-10). Also Leviticus 18:18 was interpreted to mean that a man can only take a second wife if his first wife gives her consent. Also in Exodus 21:10 a man can only take a second wife if he is capable of maintaining same level of the marital duties of food, clothing and sexual gratification as are due to the first wife. So because of these considerations, polygyny is considered impractical both to the Jews and to the Igbos.
However, the Hebrews bible forbids polyandry. Hence, for a woman to have sexual relations when she is married to another would constitute adultery, with the consequences that it would have on her status and that of her children from that Ã¢â‚¬Å“adulterousÃ¢â‚¬Â relationship. The Igbo culture also forbids polyandry. If a man marries more than one wife, it is called polygyny, however, if a woman does same thing it is not called Ã¢â‚¬Å“polyandryÃ¢â‚¬Â but Ã¢â‚¬Å“adulteryÃ¢â‚¬Â. Even if she only talks about doing it, she is considered an adulterous and wayward woman. ThatÃ¢â‚¬â„¢s how lucky women are in our society.
Christianity does not explicitly ban polygyny. New Testament does not explicitly mention or outlaw polygamy, however, verses that teach about leadership, forbid multiple marriage for only church leaders. According to 1 Timothy 3:2, Ã¢â‚¬Å“a bishop must be blameless, the husband of one wife, vigilant, sober, of good behavior, given to hospitality, apt to teachÃ¢â‚¬Â while 1 Corinthians 7:2 says that Ã¢â‚¬Å“each man is to have his own wife, and each woman her own husbandÃ¢â‚¬Â.
Christianity for over 1,000 years has been in favor of Ã¢â‚¬Å“one man one wifeÃ¢â‚¬Â and most Christian philosophers support this position. According to St. Augustine in his book titled: Ã¢â‚¬Å“The Good of MarriageÃ¢â‚¬Â (Chapter 15)
Ã¢â‚¬Å“Although it was lawful among the ancient fathers: whether it be lawful now also, I would not hastily pronounce. For there is not now necessity of begetting children, as there then was, when , even when wives bear children, it was allowed, in order to a more numerous posterity, to marry other wives in addition, which now is certainly not lawful.Ã¢â‚¬Â
St. Augustine saw a conflict between the Roman Civil Law and the Old Testament as regards polygyny but he did not consider it in violation of the scriptures.
The Catholic Catechism taught that:
Ã¢â‚¬Å“polygamy is not in accord with the moral law. Conjugal communion is radically contradicted by polygamy; this, in fact, directly negates the plan of God which was revealed from the beginning, because it is contrary to the equal personal dignity of men and women who in matrimony give themselves with a love that is total and therefore unique and exclusiveÃ¢â‚¬Â (see the Vatican Website)
This is also a normal position among Protestant Churches. This means that the mainstream Christian position is to reject polygamy in principle. However, during the Protestant Reformation, Martin Luther was known to have granted the Langrave Philip of Hesse, (a leading champion of the Reformation and one of the most important German rulers of the Renaissance who for years had been living Ã¢â‚¬Å“constantly in a state of adultery and fornicationÃ¢â‚¬Â) a dispensation to take a second wife. The said marriage was to be done in secret to avoid public scandal. Even fifteen years earlier, and in a letter to the Saxon Chancellor Gregor Bruck, Luther stated that he could not Ã¢â‚¬Å“forbid a person to marry several wives, for it does not contradict the scripturesÃ¢â‚¬Â(See generally Wikipedia, the free encyclopaedia)
Even now, many people I know that are devoted to the church and wanted to receive holy communion are allowed to do so, provided that they denounce all their wives except one that they would take to the alter with. The church turns a blind eye to whatever happens between the man and the other wives that are not recognized by the church. How about the children begotten by these Ã¢â‚¬Å“rejected womenÃ¢â‚¬Â?
Many people just rejoice over the fact that they are the wedded wife and that she has more rights than the other women. That may be true but in our traditional society and in practice, every child in the marriage has their own right in their fatherÃ¢â‚¬â„¢s property. So it is just a matter of Ã¢â‚¬Å“feel goodÃ¢â‚¬Â or psychology or just the bragging right of being called the legal wife. The society would not allow a man to disown his kids whether their mother was taken to the altar or not or whether or not their mother was taken to the court to perform court marriage.
The church and the law recognize that in our African society, it is not possible to order a man to remain with one wife. The peculiar situations in Africa would make it impracticable for some men not to take a second wife. For instance, I know some men that are only sons in their families, got married to beget children especially male children, but unfortunately, were only able to have one male child or no male child. Some of them would be forced to marry again so that his lineage would not terminate. Some would resist the pressure from the family members, but would later succumb to the pressure. In this case, I am not talking about your average primitive and uneducated one, there are cases where you see a well-educated and Ã¢â‚¬Å“polishedÃ¢â‚¬Â men who even studied abroad, but when faced with the reality of life, succumb to the wishes of what society expects.
There are some men that prefer large family. They just want to see kids everywhere in his house. Some do it out to personal preferences.
The society of today is being constrained by the law of bigamy. Again I would argue against this law. In our society today, divorce is on the increase. In American society today, court is flooded with divorce petitions. Even among Nigerians and other African living abroad, divorce rate is on the increase. It is estimated that six in every ten marriages or 60% of marriages among Nigerians living abroad is likely to fail. See the articles written on the topic by the author: MARITAL TRAGEDIES AMONG NIGERIANS IN DIASPORA and MARITAL TRAGEDIES AMONG NIGERIANS IN DIASPORA (PART II)