SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

More documents

Recommendations

Info

1974 and those specified by personal laws. Thus, according to Article 8, not only is marriage prohibited among direct blood relatives, relatives in a collateral line, those related through marriage, breastfed by the same woman and in the case of polygamous marriages where the bride is a sister, aunt or niece of an existing wife, it is also prohibited among parties who are “related in some other way so that their marriage is prohibited by their religion or other norms.” 3.4 Plural Marriage In most of the research countries, whether plural marriage is allowed or not, depends on the personal laws applicable to religions or communities. In Nepal, the secular code applicable to all persons discriminated against women in this regard. Here, bigamy is illegal and punishable with imprisonment but the marriage is not void. 267 Yet, exceptions are made but not for women: a woman can never have more than one husband. However, a man is permitted to have more than one wife, with the consent of the first wife, if the first wife suffers from an incurable venereal disease, is unable to walk, is blind in both eyes, or if a government-recognized medical board proves that the wife is infertile. 268 But the consent of the wife is not required in all cases: if the wife is living apart from her husband and has taken her share of property, the law assumes her consent. While bigamy is prohibited in India under most personal laws 269 it is not prohibited for Muslims. 270 The Indian Penal Code makes bigamy an offence. 271 In Sri Lanka while the Marriage Registration Ordinance, 1907 applicable to all persons other than Muslims and Kandyans and the Kandyan Marriage & Divorce Act, 1952 prohibit bigamy, 272 the Muslim Marriage & Divorce Act, 1951, which governs Muslims in Sri Lanka recognises the right of Muslim males to enter into polygamous marriages. 273 The law stipulates that if a man wishes to enter into a second marriage he is required to give notice to the quazis in his area, his wife’s area and his future wife’s area and if this is not complied with the second marriage cannot be registered under the Act. Non-registration does not void the marriage but has penal implications including fines and imprisonment for the bridegroom and others who are foisted with the responsibility of registering the marriage. 274 267 Clause 9 of the Chapter on Marriage, Nepal Country Code, 1963. The authors did not have access to the original text or an English translation of this law and relied on an unpublished study and analysis on sexuality and rights undertaken by the Forum for Women, Law & Development, which was made available to the authors. 268 Clauses 9 & 9A of the Chapter on Marriage, Nepal Country Code, 1963. The authors did not have access to the original text or an English translation of this law and relied on an unpublished study and analysis on sexuality and rights undertaken by the Forum for Women, Law & Development, which was made available to the authors. 269 See for example, Section 5(i), Hindu Marriage Act, 1955 (India) and Section 5, Parsi Marriage and Divorce Act, 1936 (India) 270 See ‘Marriage (Nikah) Chapter 11 in I. Mulla, Commentary on Mohammedan Law, Dwivedi Law Agency, 2008 and Section 155 in All India Muslim Personal Law Board, Compendium of Islamic Laws. 271 Section 494, Indian Penal Code 272 Section 18, Marriage Registration Ordinance, 1907 and Section 6, Kandyan Marriage & Divorce Act, 1952 (Sri Lanka) 273 Section 24, Muslim Marriage & Divorce Act, 1951 (Sri Lanka) 274 Sections 17, 82, 83, ibid. 72
In Bangladesh, polygamy is allowed for Muslims 275 and reportedly for Hindus with the personal law applicable to the latter based on ancient religious texts. Like Sri Lanka, Bangladesh has also introduced safeguards for a Muslim man to marry more than one woman but these go beyond the minimal procedural safeguards in the Sri Lankan law. It should be noted that these safeguards are not applicable to polygamous marriages by Hindus in Bangladesh. The Muslim Family Laws Ordinancy, 1961 in Bangladesh provides that a man cannot contract another marriage except with the permission of the Arbitration Council, such permission has to be recorded under the Muslim Marriages and Divorces (Registration) Act, 1974. An application with a prescribed fee is required to be submitted along with reasons for the proposed marriage and whether the consent of the existing wife has been obtained. On receipt of the application, the applicant and the existing wife or wives must nominate a representative so that an Arbitration Council may be constituted. This Council if satisfied that the proposed marriage is necessary and just, can give permission subject to such conditions. The decision of the Council is to be recorded in writing which can be appealed before an Assistant Judge whose decision would be final. A polygamous marriage contracted in contravention to these provisions requires the man to pay the entire amount of dower (explain) immediately and imprisonment upto a year or a fine up to 10,000 taka or both on conviction. Polygamy is allowed in Indonesia and is also subject to safeguards that are far stricter than those in Bangladesh. Indonesia’s Marriage Law, 1974 incorporates the principle of monogamy and states that, “in principle, in a marriage, a man shall only be allowed to have a wife, and a wife shall only be allowed to have a husband.” 276 However, it goes on to allow a court to give permission to a man to have more than one wife. 277 To do so, the man must submit an application to a court which will give permission only if his current wife can no longer perform her obligations as a wife, she has a physical handicap or suffers from an incurable disease or she is incapable of procreation. A man can only submit this application if he has the consent from his current wife/wives, it is certain that he is capable of guaranteeing the living necessities of the wives and their children and that he will give fair treatment to his wives and their children. These restrictions on polygamy were challenged before the Constitutional Court of Indonesia. In Decision Number 12/PUU-V/2007, the Constitutional Court considered the petitioner’s contention that the principle of monogamy and the provisions related to polygamy reduced his freedom to perform religion observance according to his religion namely to practice polygamy as a religious observance and as violative of his Constitutional right to found a family and procreate, to freedom of religion and to be free from discriminatory treatment. The Constitutional Court considered in depth the teachings of Islam in relation to polygamy and found that in fact the actual principle of marriage adopted by the teachings of Islam is the principle of monogamy and that “polygamy is an exception which may be sought under certain circumstances, both objectively in relation to time and place and subjectively, in relation to the parties (the persons practicing polygamy) within the marriage. Such circumstance may normatively be in the form of reasons and conditions stipulated by law and enforced through certain procedures in the court.” 275 Section 6, Muslim Family Laws Ordinance 1961 (Bangladesh) 276 Article 3(1), Marriage Law, 1974 (Indonesia) 277 Article 3(2), ibid. 73
Page 1 and 2:
THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4:
6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6:
ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8:
in the regional reviews. This is a
Page 9 and 10:
provide for information and distrib
Page 11 and 12:
B. METHODOLOGY In keeping with the
Page 13 and 14:
elevant and key laws and judgments;
Page 15 and 16:
The inability of many sexually stig
Page 17 and 18:
Equality irrespective of a person
Page 19 and 20:
The centrality of women’s rights
Page 21 and 22: social standing, religious belief,
Page 23 and 24: according to the physical condition
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29 and 30: However it also noted that every Ri
Page 31 and 32: concerned with declaring that the h
Page 33 and 34: without guaranteeing the personal p
Page 35 and 36: to enlarge the meaning and content
Page 37 and 38: a concept has wider dimensions than
Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
Page 53 and 54: the conviction of the accused for s
Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
Page 59 and 60: interventions and safeguards such a
Page 61 and 62: The opinion of the National Commiss
Page 63 and 64: was married to she would acquire im
Page 65 and 66: to consider the case of a woman see
Page 67 and 68: oth parties and deems all marital p
Page 69 and 70: female who has not attained 12 year
Page 71: Article 16 of the Universal Declara
Page 75 and 76: immovable property. The above propo
Page 77 and 78: consummation of marriage. The incap
Page 79 and 80: Violence, especially sexual violenc
Page 81 and 82: gender norms which many remand home
Page 83 and 84: female or a female to a male. It in
Page 85 and 86: from other forms of inequality as w
Page 87 and 88: c. Whereas victims of violence in h
Page 89 and 90: courts. 350 According to the Commis
Page 91 and 92: The Act provides for the appointmen
Page 93 and 94: Rani 383 it was held that a shared
Page 95 and 96: The Act specifies imprisonment of 6
Page 97 and 98: property jointly or separately held
Page 99 and 100: upees or the amount of the dowry wh
Page 101 and 102: however, is that, of the 10,000 dea
Page 103 and 104: Addararachchi 439 the court conside
Page 105 and 106: harassment, the Indian Supreme Cour
Page 107 and 108: doer’s sexual desire by using doe
Page 109 and 110: In holding that there was no justif
Page 111 and 112: coerce or induce female inmates to
Page 113 and 114: material or detain any person for t
Page 115 and 116: consensual sexual activity with you
Page 117 and 118: The fined amount is to be given to
Page 119 and 120: the State and its citizens is one o
Page 121 and 122: every person “the right against e
Page 123 and 124:
The law also includes the right of
Page 125 and 126:
eing committed. 570 While prosecuti
Page 127 and 128:
Broader provisions related to child
Page 129 and 130:
in order to engage the child in suc
Page 131 and 132:
her.” 631 A person is deemed to h
Page 133 and 134:
that they are denied the fundamenta
Page 135 and 136:
Indonesia’s Constitution recognis
Page 137 and 138:
In Thailand too, abortion is illega
Page 139 and 140:
With regard to the first question,
Page 141 and 142:
Further, any pregnant woman may vol
Page 143 and 144:
childbearing age to establish a hea
Page 145 and 146:
Government could not be held liable
Page 147 and 148:
among those in the reproductive age
Page 149 and 150:
Members' right to protect public he
Page 151 and 152:
7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154:
education as well as non-discrimina
Page 155 and 156:
The exchange of information through
Page 157 and 158:
community.” 727 In each case, the
Page 159 and 160:
Nepal’s Interim Constitution limi
Page 161 and 162:
Sections 292, 292A, 293 and 294 of
Page 163 and 164:
“...any interpretation of 'obscen
Page 165 and 166:
“1 (a) Condones or extenuates act
Page 167 and 168:
In Thailand, places of entertainmen
Page 169 and 170:
8. SEX WORK This section examines h
Page 171 and 172:
The use of raids, and exemptions fr
Page 173 and 174:
clients or make an offer for a sex/
Page 175 and 176:
and non-rehabilitative juvenile jus
Page 177 and 178:
“In view of the aforesaid proposi
Page 179 and 180:
person who commits the act are of t
Page 181 and 182:
as parent or guardian has given his
Page 183 and 184:
with one) on the charge that it was
Page 185 and 186:
for sex workers while emphasizing t
Page 187 and 188:
19. Azimuddin v State of Uttar Prad
Page 189 and 190:
1. Acid Control Act, 2002 2. Acid-O
Page 191:
13. Intellectual Property Act, 2003
show all

SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Create successful ePaper yourself

Delete template?

Save as template?