Petition to Conduct CBI Enquiry into Murder of Dr J A Mathan

Friday, 25 November 2011

The Marriage and Family Law in Bhutan: Polyandry and adultery

The law of Bhutan derives mainly from legislation and treaties. Prior to the enactment of the Constitution, laws were enacted by fiat of the King of Bhutan. The law of Bhutan originates in the semi-theocratic Tsa Yig legal code, and was heavily influenced through the twentieth century by English common law. As Bhutan democratizes, its government has examined many countries' legal systems and modeled its reforms after their laws.

Family law
Family law is largely a matter of custom, however customary family practices are largely supplemented and superseded by the Marriage Act of 1980, placing marriage largely within the jurisdiction of courts.

The Marriage Act foremost states that persons have "the right to marry any other person, irrespective of status, caste, wealth or appearance," with the exceptions of minority (under 18 for males, under 16 for females) and prohibited consanguinity.
Whether the marriage is contracted according to the customary rites and rituals, following an engagement, or a "love marriage," the law requires couples to obtain a marriage certificate ("nyentham") from a local court or gup (village headman) in order to be legally married.
Requirements for certification include the endorsement of a surety, and that the couple consist of one male bridegroom and one female bride per marriage. Other restrictions on marriage include a limit of three marriages for parties whose marriages repeatedly end in divorce due to their own misconduct.
Remarriage requires the consent of the former spouse, and when widowed, a waiting period of one year. Notably, women in Bhutan may by custom be married to several husbands, however they are allowed only one legal husband.
The legal status of married couples among polygamous and polyandrous households impacts the division of property upon divorce and survivorship, as well as general admissibility of the marital relationship in courts.

In addition to marriage, the Marriage Act thoroughly treats adultery, sexual assaults, separation, divorce, child support, child custody, and a host of compensable offenses. Adultery by a married man is not compensable as adultery in Bhutanese law, however adultery and attempted adultery with a married woman must be compensated by payment ("gawo") from the third party to the husband; when a married woman commits adultery with a religious celibate, both additionally face a six-month term of "rigorous imprisonment." No compensation is permitted, however, if a husband learns of the adultery only after divorce has been granted or if a husband is imprisoned for more than three years (i.e., for a felony). Women receive compensation only when their husbands leave them to legally marry another woman.

Separation requires a payment generally by the party seeking divorce, the amount depending on the length of the marriage, except in the case of spouses separating to take vows of religious celibacy, and in the case of at-home spouses seeking divorce from absent spouses. Separation costs are otherwise imposed on violent spouses, on third parties who induce the divorce, and on wives who admit guilt in adultery. The divorce itself is presented as a deed of divorce ("yikthi"). Divorces are also granted for spouses of those who commit adultery by fraud and rape. Mothers of both legitimate and illegitimate children are entitled to compensation from unwed, separated, or divorced fathers. In the event of maternal mortality, the law imposes a duty on the biological father to pay fines to her family and to raise his child if her family is unable.

The law also provides for compensation and imprisonment for sexual assault, rape, and the death of victims. However rape victims are required to report their attack within 24 hours, and receive Nu.300 in compensation. Protection is somewhat greater for married women: they collect twice the "gawo" compensation, and their husbands are able to collect compensation as well. Under Bhutanese law, married persons cannot be guilty of spousal rape. Notably, the Marriage Act protects husbands' mistresses ("aro-garo"), specifically providing fines for wives who harm the person or property of their husbands' mistresses.

The Constitution of Bhutan prohibits persons married to non-citizens from holding office by election or by royal appointment (Constitutional Offices).:Arts. 23, 31 The Marriage Act mandates a special court petition for Bhutanese desiring to marry non-citizens. The same law imposes a total restriction on promotion for government workers who marry non-citizens, as well as the discharge of any government worker in defense or foreign relations. It also deprives the Bhutanese citizen of many government-related benefits, from land allotment ("kidu"), seeds, and loans, to public and foreign-sponsored education. Bhutanese marriage law prohibits international couples from propagating any religion other than the state religion, Drukpa Kagyu Buddhism, and requires the non-citizen spouse to adopt Bhutanese traditions and customs.

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