For Global Peace with Social Justice in a Sustainable Environment

Polygamy and Mahatma Gandhi

Prof. Dr. Yogendra Yadav

Senior Gandhian Scholar, Professor, Editor and Linguist

Gandhi International Study and Research Institute, Jalgaon, Maharashtra, India

Contact No. – 09404955338, 09415777229

E-mail- dr.yadav.yogendra@gandhifoundation.net;

dr.yogendragandhi@gmail.com

Mailing Address- C- 29, Swaraj Nagar, Panki, Kanpur- 208020, Uttar Pradesh, India

Polygamy and Mahatma Gandhi

Polygamy is a marriage which includes more than two parterres wife or husband. When a man is married more than two women at a time, the relationship called polygene and when a woman is married more than two men is called polyandry. There are two ways of mitigating the evil; the one is to take an accurate record of married and unmarried men and women before they leave India, and the second is to recognize all marriages contracted in accordance with the religions of the parties, so long as they are not repugnant to the general law of the Colony as to polygamy and marriageable age. Indian marriage officers of undoubted integrity might be appointed to compile a record of all marriages, and recognized Indians priests might be given the authority to frame such records. And although under some such regulations, the difficulty will not altogether disappear, we doubt not that it will vary greatly be minimized. 1 The question of polygamy has been quite gratuitously introduced. But the Searle judgment is too clear and too precise to need any explanation. The learned Judge himself said that it was a test case. It was treated as such by both the parties, and the only issue before him was whether marriages solemnized according to the tenets of Islam could be recognized by the Cape courts for the purposes of the immigration law. His Lordship’s decision on the point is unequivocal and emphatic. Such marriages are invalid. It is on this that the protest of the Johannesburg meeting is based. The Government may not, they dare not, follow up the case to its logical extent. But the legal possibilities are there. They were clearly brought out by Mr. Ritch in his speech before the meeting. There are some things which we may not worry over until the actuality stares us in the face; but there are some other things whose possible happening, too, must be avoided at all cost. No Indian husband can rest under the possibility of his wife’s status being questioned and all the consequences of the possibility becoming an actuality. 2

It is true that it was inconvenient for the then Government not to recognize polygamy, because indentured Indians were wanted by an influential class. It is now inconvenient to recognize it for free Indian settlers because they are intruders. It will be interesting to know how the local Government deals with the dilemma. 3 I would respectfully point out that my Association has never understood that the Searle judgment dealt with the question of poly- gamous marriages. Justice Searle’s pronouncement, in the humble opinion of my Committee, is unequivocal “the whole question in the case was whether a wife, married by Mahomedan custom, was a wife within the meaning of the Immigration Act.” And what applies to marriages by Mahomedan custom would apply also to marriages by Hindu custom or to marriages by Zoroastrian custom or to marriages consecrated according to the customs of any religion save the Christian, which were not registered before a Marriage Officer. The question of polygamy has, therefore, I respectfully submit, been quite gratuitously introduced. 4

My Committee had, it was thought, made it clear that, in its request, it had not raised the question of polygamy, which could be treated on its merits. What the Searle judgment does is to disregard marriages contracted in India or in South Africa in accordance with the rites prescribed by Indian faiths. I beg to inform the Hon’ble the Minister that the religious ceremonies in India do not mention polygamy, nor do all Indian faiths necessarily recognize polygamy. All my Association asks for is that monogamous marriages celebrated in India or in South Africa according to the ceremonies prescribed by the great Indian faiths may be lawfully recognized, as they were before the Searle judgment. Where my countrymen bring or have more than one wife the indulgence promised in the Government communication may be exercised till the time is ripe for legal recognition of such marriages. I do respectfully hope that the position taken up by my Association has now been made clear. 5

Then there will remain the question of polygamous marriages. As I have told you, there are not many such cases, but it is necessary to admit or re-admit plural wives of Indians who are already resident in South Africa. No new polygamous unions need be administratively recognized. A list can easily be prepared of those who have more than one wife either in the Union or outside it. My remarks are naturally applicable to the children of these unions also. I may point out that, in the July of 1911, General Smuts gave the assurance that special cases of polygamy would be considered by the Government. As to the fourth point, the question of the legality of the marriages already solemnized in South Africa of the resident Indian population, as also of the marriages hereafter to be solemnized within the Union, is of vast practical importance. A definite assurance that legislation will be introduced next session is necessary to settle this very thorny problem. Regarding the plurality of wives, I have not asked for a general recognition of polygamy. All I contend is that, in continuation of the practice hitherto followed, existing plural wives of domiciled residents should be allowed to enter. And this was the assurance given in the letter quoted by me in my correspondence with you. The number of such wives could be easily ascertained at the present moment, and the toleration may be restricted only to the number so ascertained. 6

With regard to polygamy, I have not asked for legal recognition but the admission, under the powers vested in the Minister, of plural wives without the Government in any way recognizing their legal status. The admission is to be restricted only to plural wives already married to Indians who may be found to be unquestionably domiciled in the Union. This at once restricts the scope of the Government’s generosity and enables them to know now how many such wives will have to be admitted. I have already submitted a plan as to how this can be brought about. In my humble opinion, the letter of the 10th August, 1911, referred to in your communication bears the interpretation I have placed upon it. The British Indian Association raised the question of polygamy and the above-mentioned letter containing the assurance was the reply. I suppose you know that plural wives have actually been admitted by the Immigration Officers and that polygamous unions are even registered on the Transvaal registration certificates. As doubts have arisen as to the meaning of the term “monogamous marriage”, I beg to record that the meaning that the community has placed upon it is that a marriage is monogamous if a man is married to only one woman, no matter under what religion and no matter whether such religion under given circumstances sanctions polygamy or not. 7

You will be surprised to know that the law of South Africa has actually, in the interests of the planting community, even legally recognized polygamy in the case of the indentured Indians. But we are asking for no such legal recognition for plural wives of free Indian settlers. The third point is the retention of the right of South Africa-born Indians to enter the Cape by reason of their birth. The fourth point is the Free State difficulty. This is almost settled. We claim that the new Act does not mean that an Indian who may possibly enter the Free State is required to make as an immigrant the Free State declaration as to prohibition of holding landed property, to farm and to trade. If such is the interpretation placed upon the law by the Government also, there is no dispute. If the Government makes that admission, the whole difficulty is solved. 8

We have used the expression “if they did at all” with reference to the relief granted by the amendments. This qualification has become necessary owing to the attitude of the Government in the case of Kulsumbibi now pending before the Supreme Court. The Immigration Officer at Durban, no doubt upon instructions from the Government, has raised the question whether a marriage celebrated under the rites of a religion which permits polygamy can be called monogamous, although the woman so married may be the only wife of her husband. This issue the Government need not have risen. But they evidently intend to show that the amendments made were not made in good faith. They were made ostensibly to meet the Indian demand for legalization of Indian marriages. Mr. Alexander’s amendments fell short of that. Mr. Schreiner’s was, therefore, accepted. The Government knew that the most popular religions of India, viz., Hinduism and Islam, did not prohibit polygamy. If, therefore, they accepted the amendment with the mental reservation that the adjective “monogamous” would by law still exclude the women married according to the rites of these two great religions, they certainly misled Parliament and the Indian community. We think that the Supreme Court will reject the Government interpretation, but, should its decision be otherwise, it certainly will be necessary to alter the Immigration Act in order to clothe all Indian marriages with legality. Even at this eleventh hour, the Government could withdraw the case and not challenge a decision. Legalization of monogamous marriages already celebrated and to be celebrated in South Africa.

The term “monogamous” to include marriages celebrated according to the rites of religions that may not prohibit polygamy, so long as the woman whose union is to be recognized is the only wife of her husband; (3) the admission of existing plural wives of domiciled Indians without granting such wives a legal status apart from full residential rights. The second point is that the amendment made in the Bill has the effect of recognizing the validity of monogamous marriages. In Kulsumbibi case, the Government purposely raised the objection that the new law does not recognize a marriage solemnized under a religion which permits polygamy. If this interpretation is correct, the difficulty created by the Searle judgment has not been removed and the Government can be accused of a bit of sharp practice. It knew well enough that our demand related to marriages solemnized under the Hindu and Muslim faiths. If it was the Government’s intention not to recognize such marriages, it has deceived us, and also deceived the Parliament, the Imperial Government and the Indian Government. Kulsumbibi case was not brought up by us. It was the Government that did so. The decision is not likely to be what the Government wants it to be. But in case it is, the Government will have to hide its face in shame and amend the law again so as to include within its scope marriages celebrated under our faiths. The third point refers to cases of polygamy. The issue was raised in 1911. If an Indian had more than one wife, all the wives were previously allowed to come in. But the Government brought up the issue and Mr. Justice Wessel ruled that under the law here only one wife could come in. Mr. Cachalia thereupon addressed a letter to the Government and the latter replied that it would consider such cases. We acquiesced in the position. We did not ask for recognition of polygamous marriages but for permission for all one’s wives to enter this country. The Government now says that its letter of 1911 is not to be interpreted as we have done. We are, however, convinced that it can bear no other interpretation. 9

The removal of the annual tax of £3, which ex-indentured Indians men, women, and children are liable to pay as the price of their remaining free from re-indenture in Natal. (2) (a) An amendment of the marriage law of the Union, so as to recognize the legality of monogamous Indian marriages celebrated, whether in India or South Africa, according to the rites prescribed by the Hindu and Mahomedan religions. Although both of these religions countenance polygamy, statistics show that only 1 per cent of Indian marriages are polygamous. (b) Administrative admission of existing plural wives (not more than 100 in all) and their children, of Indians already domiciled. This was the position at the time of the inauguration of Union. Legal recognition of polygamy is not asked for. 10

I agree that whereas amongst some communities marriage is permitted amongst very near relations, it is prohibited among other communities, that whereas some communities forbid polygamy some permit it. Whilst one would wish that there was a uniform moral law accepted by all communities, the diversity does not point to the necessity of abolishing all restraint. As we grow wise in experience our morality will gain in uniformity. Even today the moral sense of the world holds up monogamy as the highest ideal and no religion makes polygamy obligatory. The ideal remains unaffected by the relaxation of practice according to time and place. 11 In his zeal to prevent widows from remarrying, the correspondent has ignored many things. Mussalmans have, indeed, the right to take more than one wife but the vast majority of them have only one wife. The correspondent does not seem to know that, unfortunately, there is no prohibition against Polygamy in Hinduism. Hindus in highest circles have been known to marry more than one wife. Many princes marry an unlimited number. The correspondent further forgets the fact that it is only among the so-called higher classes that widow remarriage is prohibited. Among the vast majority belonging to the fourth division, widows freely remarry, but no untoward consequences have taken place. Though free to take more wives than one, they are as a rule satisfied with one companion at a time. 12

It is my firm opinion that if one partner in marriage has sexual urges it is by no means the duty of the other partner also to have such urge, though it is the right of the partner with the sexual urge to satisfy that urge. This is perhaps one of the causes of polygamy. Just as it will be considered immoral for a man to cohabit with a wife who is ill it should also be considered immoral to cohabit with a wife who has no sexual desire. It is therefore my earnest advice that if Prabhavati has no craving for sex you should give her freedom and find yourself another wife. I see no immorality in that. After all what is to be done? How can your craving be forcibly stifled? You consider sex necessary and beneficial for the spirit. In such a situation I would not consider a second marriage immoral from any point of view. In fact I feel that you’re doing so may well set an example to others. Many young men use force with their wives. Others visit prostitutes. Still others indulge in even worse practices. Prabhavati has chosen to live the life of a virgin. You do not wish to practise brahmacharya. Therefore I see nothing wrong in your respecting the wishes of Prabhavati and finding yourself another wife. If you cannot think of another woman, you should, for the sake of Prabhavati, observe brahmacharya. 13

Hindu Shastras certainly show a marked bias in favour of the male offspring. But this originated at a time when physical warfare was the order of the day and adequate man-power was a sine qua non of success in the struggle for existence. The number of sons that a man had was therefore then looked upon as a mark of virility and strength and to facilitate the begetting of numerous offspring even polygamy was sanctioned and encouraged. But if we regard marriage as a sacrament, there is room in it only for one offspring, and that is why in our Shastras the first offspring, described as dharmaja, i.e., ‘duty-born’, all subsequent issues being referred to as kamaja, i.e., lust-born’. I make no distinction between son and daughter. Such distinction is in my opinion invidious and wrong. The birth of a son or a daughter should be welcome alike. 14

References: