Women and Justice: Keywords

Domestic Case Law

Mwanamanga v. Malamulo Mission Hospital Industrial Relations Court of Malawi (2005)

Employment discrimination, Gender discrimination

The defendant employed the plaintiff as a librarian in 1995, but dismissed her from her position in 2000 because she married a polygamist. The plaintiff challenged the dismissal as unfair and asked for an order that her former employer, the defendant, pay compensation and long service pay. In siding with the plaintiff, the Court considered the anti-discrimination provisions of the Constitution, given that the facts underlying the offence took place prior to the Employment Act coming into effect. The Court concluded that the termination of the plaintiff qualified as discrimination. The reasoning underlying the termination effectively prevented the plaintiff from marrying a man of her choice, and from engaging in economic activity through employment, both fundamental constitutionally-protected rights. The Court emphasized that it did not matter that the defendant’s conditions of service prohibited polygamous marriages among its workforce, as such a prohibition contravened the Constitution. In closing, the Court ordered the parties to produce documents and other material relevant to the assessment of compensation for the plaintiff.

H.A.H v S.A.A and Others Supreme Court of Ireland (2017)

Divorce and dissolution of marriage, Gender discrimination, International law

The applicant was given refugee status and had successfully applied for permission for his second wife to join him in Ireland. The present case arose when he sought to have his first wife join him. In considering the legal consequences of a polygamous marriage entered into in another country, the Supreme Court ruled that, where a man had married two wives under the laws of Lebanon, the first marriage is valid under Irish law but the second is not. The appellant (husband) had married two women in a manner permissible under the laws of Lebanon (their previous state of domicile). He sought a declaration, pursuant to Section 29 of the Family Law Act 1995, that his marriage to his first wife was valid on the date of its inception. The High Court found the polygamous marriage entirely invalid. On appeal, the Supreme Court reasoned that: (a) rules of private international law require the State to recognize a marriage validly contracted under a foreign system of law unless such recognition is prohibited by public policy; (b) the Constitution and Irish public policy envisage a marriage as a union between two people based on the principles of equality and mutual commitment; (c) there is therefore no bar to recognizing a marriage “that is in fact monogamous, where the only objection is that the system of law under which the couple married would permit more than one marriage;” and (d) Irish law and the Irish Constitution preclude the recognition of a second or subsequent marriage while the first marriage is valid, although that does not mean that a subsequent marriage can never have legal consequences. The Court granted the declaration of the validity of the first marriage because it was valid when contracted and the husband’s subsequent marriage should not preclude that.

Ramuhovhi and Others v. President of the Republic of South Africa and Others Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2018)

Gender discrimination, Property and inheritance rights

In this case, the Constitutional Court held that §7(1) of the Recognition of Customary Marriages Act 120 of 1998 (RMCA) was inconsistent with 172(2) of the Constitution, and therefore invalid, because it unfairly discriminated against women in polygamous customary marriages entered into before the enactment of the RMCA on the bases of gender and race, ethnic, or social origin. This case followed Gumede v. President of the Republic of South Africa, in which it was held that §7(1) was invalid as to monogamous customary marriages, but left the question of polygamous customary marriages for Parliament. The effect of this ruling was that pre-RCMA marriages continued to be governed by customary law, while post-RCMA marriages were automatically out of community of property. The Court declared that, in the interim until Parliament changes the RCMA, a husband and his wives in pre-RCMA polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property.

P.J.K. v. O.K.K. High Court of Kenya at Kabarnet (2019)

Divorce and dissolution of marriage

The petitioner asked for dissolution of marriage with the respondent. In June 2011, the petitioner went on a foreign peacekeeping mission as a member of the Kenya Air Force. When she returned at the end of the month, she found that the respondent had cohabited with, married, and impregnated another woman. The respondent gave the petitioner an ultimatum between a polygamous marriage or divorce despite the their monogamous civil marriage. The petitioner stated that she had lived separately from the respondent for six years because he tried to force her to enter into a polygamous marriage when she intended to engage into only a single marriage. The court held the respondent guilty of cruelty against the petitioner and found that the marriage had, on account of the respondent’s behavior and the long separation of over six years, irretrievably broken down. The court granted the dissolution of marriage.

Hassam v. Jacobs NO Constitutional Court (Konstitusionele Hof) (2009)

Gender discrimination

The applicant was in a polygamous Muslim marriage. After her husband died intestate, the respondent, the executor of the deceased’s estate, refused the applicant’s claims on the basis that polygynous Muslim marriages were not legally recognised under the Intestate Succession Act. The court held that precluding the applicant from an inheritance unfairly discriminated on the grounds of religion, marital status, and gender, and was therefore inconsistent with section 9 of the Constitution. The court found that section 1 of the Intestate Succession Act was inconsistent with the Constitution and invalid to the extent that it did not include more than one spouse in a polygynous Muslim marriage in the protection afforded to “a spouse.” Accordingly, the applicant could inherit from her late husband’s estate.

Die applikant was in ‘n poligame Moslem-huwelik. Nadat haar man intestaat gesterf het, het die respondent, die eksekuteur van die oorledene se boedel, die applikant se eise geweier op grond daarvan dat poligame Moslem huwelike nie wettiglik erken word onder die Intestate Erfreg Wetgewing nie. Die hof het bevind dat daar onbillik gediskrimineer was teen die applikant op grond van godsdiens, huwelikstatus en geslag, was dus strydig met Artikel 9 van die Grondwet. Die hof het bevind dat Artikel 1 van die Intestate Wet strydig was met die konstitusie (Grondwet) en ongeldig is tot die mate dat dit nie meer as een gade in ‘n poligame Moslem-huwelik insluit tot die beskerming wat aan ‘n eggenoot gegee word nie. Gevolglik kon die applikant uit die boedel van haar oorlede man erf.

Bhe and Others v. Khayelitsha Magistrate Constitutional Court (Konstitusionele Hof) (2004)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law. In SAHRC, the South African Human Rights Commission and the Women’s Legal Centre Trust brought an action in the public interest to declare the rule of male primogeniture contained within section 23 of the Black Administration Act 38 of 1927 invalid. The Constitutional Court declared section 23 invalid, meaning that all deceased estates were to be governed by the Intestate Succession Act 81 of 1987, under which widows and children can benefit regardless of their gender or legitimacy. The Court also ordered the division of estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse and ordered that, in such instances, a surviving spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister for Justice and Constitutional Development by notice in the Gazette.

Hierdie uitspraak het bestaan uit drie verwante sake (BHE, Shibi en SARK) wat saam beslis is en het betrekking op die Afrika gebruiks regsreël van eersgeboortereg. In BHE het 'n moeder 'n saak gemaak om die eiendom van haar oorlede man vir haar dogters te verseker. In Shibi is die applikant volgens die Afrika gewoontereg, die reg ontsê om van die intestate boedel van haar broer te erf. In SAHRC het die Suid-Afrikaanse Menseregte Kommissie en die "Women’s Legal Centre Trust" 'n saak in die openbare belang gebring om die reël van manlike eersgeboortereg wat in artikel 23 van die Swart Administrasie Wet 38 van 1927 ongeldig te verklaar. Die Konstitusionele Hof het artikel 23 ongeldig verklaar wat beteken dat alle boedels van oorledenes onderworpe sal wees aan die Intestaat Opvolgwet 81 van 1987 waaronder weduwees en kinders voordeel kan trek ongeag hul geslag of wettigheid. Die Hof het ook gelas dat boedels onderverdeel word in omstandighede waar die oorledene in ’n poligame huwelik was en deur meer as een eggenoot oorleef word. In welke geval ’n oorlewende eggenoot ’n kind se deel van die intestate boedel erf of ’n waarde van die intestate boedel wat nie die bedrag wat deur die Minister vir Justisie en Grondwetlike Ontwikkeling vasgesteld is, oorskry word soos die kennisgewing in die Staatskoerant nie.

Madame H.T. v. Monsieur Y.K. Supreme Court of Mali (2007)

Divorce and dissolution of marriage

Witnesses testified that Madame H.T. insulted her husband’s co-wife and mother in law. The Appeal Court granted divorce to Monsieur Y.K. on the sole basis that by insulting his mother his first wife had harmed his husband honor and dignity and made marital life impossible. However, quarrels between co-wives do not characterize a serious insult in a polygamous marriage. Moreover, by asking for divorce from the first wife only, the husband committed a serious injustice and violated his duty of impartiality with his wives. Additionally, insults directed at the husband’s mother do not constitute a legal basis for divorce, according to the Code des Mariages et Tutelles (Code of Marriage and Tutelage). Indeed, the Code only considers insults directly addressed at the husband as a basis for divorce. The Court held that such insults were not proved in this case and could neither be inferred from the behavior of Madame H.T. with her husband’s co-wife and mother in law, nor from her confession of having insulted her husband’s co-wife.

Monsieur A.T. v. Madame A.D. Supreme Court of Mali (2004)

Divorce and dissolution of marriage

Both parties were committed to each other in a monogamous marriage. This commitment entails for the wife and husband multiple obligations. Among them, the obligation of cohabitation; the wife must live with her husband and her husband must welcome her. In this case, the husband granted his wife authorization to visit her parents. While she was away, he introduced another woman into his home. Following his wife refusal to come back, he demanded a divorce. The Appeal Court of Kayes held that the husband had broken his monogamous commitment and that the wife’s decision not to go back to her husband’s home until the other woman had left did not qualify for desertion. Hence the divorce at the wife’s tort was not granted. Rejecting this analysis, Monsieur A.T argued in front of the Supreme Court that bigamy cannot be presumed and was never proven and that a presumed bigamy did not exempt the wife from her duty of cohabitation (derived from the Code of Marriage and Tutelage). The Supreme Court held that by marrying a second wife without the express agreement of his lawful wife, the plaintiff had broken the rules of monogamous marriage. As a result, the Court Appeal gave sufficient legal basis to its decision. Moreover, monogamous duties should not be imposed to the wife once the husband had broken his commitment. Conditioning her return to a departure of the other woman did not constitute a desertion. Consequently the Supreme Court ruled in favor of the wife and rejected the divorce request. This case protects women married under the monogamous regime and counterbalances the strong requirement of cohabitation by ensuring that no psychological violence will be endured by having to live under the same roof as another wife.

In re M Insa, Decision No. 12/PUU-V/2007 Constitutional Court of Indonesia (2007)

Gender discrimination, Harmful traditional practices

Petitioner, an Indonesian male, challenged the constitutionality of a marriage law requiring monogamy with an exception that allows polygamy only with the consent of the wife and the permission of the court (Law Number 1 Year 1974 regarding Marriage). The law requires the husband to submit an application to the court of his domicile with his wife’s consent in order to engage in polygamy. Petitioner argued that because the law required the husband to obtain consent from his wife and the court before engaging in polygamy, it violated his right to freely exercise his religion because the teachings of Islam allow polygamy. The government argued that Islamic principles encourage monogamy and only allow polygamy when a wife allows her husband to re-marry for the benefit of their marriage. The court held that the practice of polygamy historically had degraded the status of women and the teachings of Islam required the preservation of the dignity of women. In addition, since the purpose of marriage is to “achieve peacefulness (sakinah),” men are required to first obtain their wives’ consent before engaging in polygamy, thus respecting their wives as legally equal partners. Therefore, the Court rejected petitioner’s claims and held the laws constitutional as they guarantee the recognition of women’s rights and allow husbands to exercise polygamy in accordance with the teachings of Islam.

Sapana Pradhan and Others v. Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

The Forum for Women, Law and Development in Nepal petitioned the Supreme Court to revise a law allowing men to take second wives if their first wife is significantly ill or handicapped and gives consent. The Court found that this law was inconsistent with Article 11 of the Constitution of the Kingdom of Nepal, which guarantees equal rights for women, and with international women’s rights conventions, including CEDAW. In its ruling, the court stated that a husband should care for a sick or handicapped spouse and that requiring consent could promote domestic violence. By taking action to change this law the Court showed a dedication to real reform based on the Constitutional mandate for gender equality, crucially recognizing that accepted traditional practices must be reappraised.

Meera Dhungana and Others v. Office of the Prime Ministers and Others Supreme Court of Nepal (2004)

Gender discrimination

After hearing a petition from the Forum for Women, Law and Development in Nepal, the Supreme Court ruled to invalidate a law allowing men to seek a second wife if, after 10 years of marriage, they have not had a child with their first wife. The Court recognized that this law gave unequal treatment to women and men by not giving comparable recourse to women and implying that infertility was the fault of the woman. The law was therefore inconsistent with Article 11 of the Constitution of the Kingdom of Nepal and with international gender rights conventions including CEDAW. This ruling represents an important step in reevaluating widely accepted laws from a gender equality standpoint. In addition, the Court acknowledged that it was constitutional to employ positive discrimination to guarantee equal rights for women, allowing for proactive defense of women’s rights in Nepal.

Nkabane v. Nkabane High Court of Lesotho (1987)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, Gender-based violence in general, Property and inheritance rights

The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman. The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.

Theko v. Theko High Court of Lesotho (1982)

Divorce and dissolution of marriage

The plaintiff-wife sought the dissolution of her marriage to the defendant on the grounds of his previous marriage under the Sotho custom. The Court declared the marriage to be null and void on the grounds that the plaintiff agreed to the marriage through fraud, believing that the defendant was unmarried at the time and would not have agreed to the marriage if she had known the truth.


قانون الأحوال الشخصية الأردني (Personal Status Law of 2019) (2019)

Divorce and dissolution of marriage, Forced and early marriage, Harmful traditional practices, Property and inheritance rights

Article 10 (A) raised the legal marriage age to 18 from the age of 15. However, Paragraph B of Article 10 carves out discretion for the Judge, upon approval of the Chief Justice, to permit the marriage of anyone who is at least 16 years old if it is deemed to be in his or her best interest based on the Judge’s determination. The person would also acquire a legal capacity in relation to marriage and divorce matters. Article 11 expressly forbids the formation of a marriage agreement where the man is more than 20 years older than the woman, except in the circumstance where the judge has verified the woman’s consent. Before authorizing a marriage, Article 13 requires that: 1) the man has the financial capacity to pay his fiancée’s dowry; 2) the man has the financial capacity to provide marital alimony; and 3) the man disclose to his fiancée that he is already married to another woman; and 4) the court inform the man’s wife or wives of the new marriage contract. In addition, according to Article 21, for a marriage to be valid, the man has to be compatible with the woman in terms of religion and financial capacity. Financial capacity is determined by the capacity to provide dowry promptly and marital alimony if necessary. Article 19 provides that women over the age 18 may marry without the consent of their guardian, if they are of sane mind. Article 37 further allows women to make any stipulations in her marriage contract as she desires, as long as these are not prohibited by Sharia law, do not affect the rights of others, and are not otherwise unlawful. These could include that the husband not prevent her from working outside the home or expel her from the country. Violations of such legal stipulations may result in the nullification of the marriage, and she would be entitled to all her rights associated to the marriage. Not providing marital alimony to the wife (Article 115), and the absence of the husband for a year or more when his place of residence is known (Article 119), not providing marital dowry (Article 139) are all valid grounds for nullifying the marriage according to this Law.

رفعت الفقرة (أ) من المادة 10 سن الزواج ليصبح 18 عام بعدما كان 15 عام، إلا أن الفقرة (ب) من ذات المادة جعلت هناك حالات خاصة يمكن للقاضي فيها السماح بالزواج لمن بلغ عمر 16 عام وذلك في حال كان الزواج ضرورة تقتضيه المصلحة، بعد موافقة قاضي القضاة، وفقًا لتعليمات يصدرها لهذه الغاية. ويكتسب، من تزوج وفق ما سبق، الأهلية الكاملة في كل ما يتعلق بالزواج والفرقة وآثارهما. أما المادة 11 فقد منعت الرجل من عقد زواج على امرأة يكبرها بأكثر من 20 عام دون تأكد القاضي من رضاها واختيارها. بينما أشارت المادة 13 إلى أنه يجب على القاضي التأكد من عدة أمور قبل إجراء عقد زواج المتزوج وهي قدر الزوج المالية على المهر وعلى الإنفاق على ما تجب عليه النفقة، بالإضافة إلى معرفة المخطوبة أن خاطبها متزوج بأخرى. كما أوجبت ذات المادة على المحكمة إبلاغ الزوجات الآوائل بعقد الزواج الجديد بعد إتمامه وذلك بحسب قانون أصول المحاكمات الشرعية. كما نصت المادة 21 أن الكفاءة قس الدين والمال بين المرأة والرجل هي شرط للزوم الزواج، وكفاءة المال تقاس بقدرة الزوج على المهر المعجل ونفقة الزوجة. وبينت المادة 19 أن موافقة الولي لا تشترط في زواج المرأة الثيب العاقلة المتجاوزة من العمر 18 سنة. وذكرت المادة 37 إلى أنه إذا اشترطت الزوجة على زوجها شرطًا تتحق لها به مصلحة غير محظورة شرعًا ولا يمس حق غيرها، مثل أن لا يخرجها من بلدها أو عدم الزواج بغيرها أو أن لا يمنعها من العمل، يعتبر الشرط صحيح وعدم الوفاء بالشروط فسخ العقد بطلب الزوجة ولها أن تطالب بسائر الحقوق الزوجية. عدم تزويد المرأة بالنفقة الزوجية (مادة 115)، وغياب الزوج عن زوجته سنة فأكثر مع معرفة مكان إقامته (مادة 119)، وعجز الزوج عن دفع المهر بعضه أو كله، جميعها أسباب تجعل للمرأة الحق في أن تطلب من القاضي فسخ الزواج.

Penal Code Act (2010)

Abortion and reproductive health rights, Sexual violence and rape, Statutory rape or defilement

The Penal Code prohibits abortion, rape, sexual contact with minors, indecent assault, incest, and bigamy outside of customary law. Abortion is an offence pursuant to the Penal Code Act. Only a registered medical practitioner may terminate a pregnancy if it is necessary to prevent significant harm to the woman’s health, the fetus will be severely disabled, or the woman became pregnant through incest or rape. An adult who has sexual intercourse with a child, defined as under 18 years old, commits an offence and the consent of the child is irrelevant. It shall be defence for this crime if the adult can prove that he or she had reasonable grounds to believe, and did so believe, that the child had attained the age of 18 years.

Law No. 1 of 1974 Marriage Law (1974)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Property and inheritance rights

This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage. The law also sets the requirements for polygamy, which include the first wife’s inability to fulfill her spousal duties (e.g., bearing children), the permission of the man’s current wife or wives, permission from the local Court, and proof that the man will treat all of his wives and children fairly and provide for them equally. Women are prohibited from marrying a second husband. The law also provides the conditions for the cancellation (annulments and divorce) of a marriage, the obligations of husbands and wives, property rights of spouses, the obligations of parents to their children, the legitimacy of children, the requirements of guardianship, foreign marriages, and the children of mixed-religion marriages.

Offenses Against the Family, Chapter 16: Penal Law - Title 26 - Liberian Code of Laws Revised (1978)

Abortion and reproductive health rights, Gender discrimination, Harmful traditional practices

Under Section 16.1 of the Penal Law, bigamy, and polygamy are illegal unless a legal defense is provided. Such defenses include a defendant’s belief that his or her former spouse is dead. Under Section 16.3, abortion beyond the 24th week of pregnancy is illegal. An abortion is legal if it occurs only after a licensed physician determines there is a substantial risk that continuing the pregnancy would gravely impair the mother’s physical and/or mental health. An abortion may also be justified if the child would be born with grave physical or mental defects or if the pregnancy was the result of illegal intercourse such as rape. Additionally, the abortion must be sanctioned by two physicians who have certified in writing the reasons why the abortion is necessary. The Penal Law also prohibits a woman from carrying out an abortion herself by any means once beyond the 24th week of pregnancy.

Swiss Civil Code (2013)

Divorce and dissolution of marriage

Art. 96: A person cannot remarry until the person proves that his or her previous marriage has been annulled or dissolved.

Art. 105: A person can annul a marriage if a spouse was already married when they wed.


Resources Relating to the Effects of Polygamy (2010)

Gender-based violence in general

This memorandum provides some resources on the effects of polygamy on women, men, children and society at large.