The Myanmar tradition illustrates marriage “a delicate and important social matter”.
Marriage is a communal issue concerns with an individual’s conscience. Solving communal issues by means of law and order instead of conscience will only produce ill consequences.
The marital matters of the Myanmar Buddhists have been practiced in sense of traditional means back in the days, which could be said open and independent.
But such freedom has come to an end on August 31, 2015. The freewill to decide a marriage has been controlled by external forces as well as the real danger of having husbands or wives imprisoned anytime against their wishes.
The last one of race and religion protection laws
The Monogamy Bill, one of the four race and religion laws, was signed by President Thein Sein on August 31 into the law.
This was after the cessation of Dagon City Project which was decried by the Association for Protection of Race and Religion (known by its Burmese acronym Ma-Ba-Tha).
The Ma-Ba-Tha presented the President two demands: one is to adopt four race and religion laws and another is to cancel Dagon City Project over last two years.
Both of the Ma-Ba-Tha’s wishes have been fulfilled months before the November election.
The Population Control Healthcare Law was adopted on May 19. The drafts of Religious Conversion Law and Myanmar Buddhist Women Special Marriage Law were publicised on August 26.
The Myanmar Buddhist Women Special Marriage Law is based on the Buddhist Women Special Marriage and Succession Act (1954) and concerns with the interfaith marriage of Myanmar Buddhist women.
It is reasonable since its purpose is to protect the interest of Myanmar Buddhist women who married the man from another faith. Also the Religious Conversion Law and the Population Control Healthcare Law are sensible.
However, the Monogamy Law is subject to question since it covers all the citizens of Myanmar living in and out of the country.
Myanmar is a monogamous society by default without the enforcement of any law or order as of yet.
The Buddhists’ marriage is not under the influence of religion traditionally. The couples are officially married if their neighbours recognise them as together.
Further the Myanmar Customary Law approves polygamy, not polyandry.
Only the marriages of Christians, Hindi and Muslims fall under the influence of the religion and contradict the Myanmar Customary Law, which is why the Ma-Ba-Tha monks push to stipulate race and religion laws.
The 1872 Christianity Law, the 1955 Hinduism Law, and the 1953 Islamic Law only mention the importance of clergymen in marriages.
The Buddhist monks have no rights to intervene the weddings or divorces of the Buddhist couples.
The Ma-Ba-Tha wants to wipe out the line between the religious and social boundaries.
The three race and religion laws are enough to satisfy their objective, the Monogamy Law is not a necessity.
There are enough criminal code of procedures and penal codes to handle the consequences of a polygamous marriage.
The Monogamy Law only added the controversies and social upheavals.
The purpose of the law
The Monogamy Law may seem simple but is likely to backfire.
The law has four purposes:
- To make sure the husband and wife lawfully solemnised live faithfully till the end of their lives
- To protect women from becoming unlawful wives by practicing monogamous custom
- To keep marital problems and crimes due to extramarital affairs at bay
- To ensure men and women preserve their dignity.
Prohibitions and penalties
The law contains three prohibitions.
The law firstly forbids a married person from entering a second marriage.
If the person wants to remarry, they must present the legal documents of which stating they have officially divorced their former spouses.
The third is any party of a legal and existing marriage cannot marry or cohabit with another partner regardless of the legal, religious or traditional exceptions.
The bottom-line is every married person must abstain from any extramarital affairs.
Those who violate the Monogamy Law may face the jail terms ranging from seven to ten years: Those engaged in adulterous cases may face seven years imprisonment and those remarry while having a legal spouse may face 10 years imprisonment.
Statistics on relationship status for citizens above 15 years of age (Source - DOP)
How it differs from the old law
The Myanmar tradition approves polygamy, not polyandry.
But the newly passed law legalises the polygamous and polyandrous cases happened prior to it.
Moreover the former laws do not stipulate imprisonment of the immoral party whereas the new one does.
Formerly, the wives in polyandrous cases may not face jail term, and the husband may sue only her partner. According to the criminal code of procedure, the wife may be summoned by the court as a witness not as an offender.
Besides, the new law allows the spouse of the unfaithful husband/wife to divorce them whereas the old ones specify that the wife of the adulterous husband may file for divorce, but not instantly annul the marriage. The cuckolded husband can immediately divorce his wife by the both new and old laws.
The offender of a marriage may also lose all the joint possession, including the legacy, after the separation according to the new law while the Myanmar Customary Law only mentions the half ownership of the joint possession.
Further the partners of the extramarital affair may have no claim to the legacy from the first marriage.
The Myanmar Customary Law approves both the polygamy and the mistresses’ claim for the inheritance of the husband’s possessions in half with his wife.
The most important thing is the rights of the children born under an unofficial marriage.
According to the enacted law, children born of illegally married couples shall not lose their child rights. However, no precise benefits for them are stated.
The law does not carry any precise provisions related to children born from the first marriage. Section 488 of the Code of Criminal Procedure sets the payment of child support. Every child born of legitimate or illegitimate marriage has the right to ask for child support from the father.
The newly enacted monogamy law is not complete without specific restrictions. There can be checks and balances after a by-law has been passed. But the prompt enactment of the law could lead to confusion in both legal and social affairs.
Speaking about the legal confusion, this law does not say other marriage-related laws such as the customary law will be abolished. It tends to say that those laws will remain as they are. However, no details are stated which law will be used to settle matrimonial cases. It is because this monogamy law is said to concern all the citizens of Myanmar. There could be legal conflicts between Buddhist and non-Buddhist customary laws. Even if those conflicts could be resolved, married people may raise concerns resulting from law defects.
What concerns are there?
According to the law, the punishment is from a minimum of 8 years' to 10 years' imprisonment. It is stated in the Code of Criminal Procedure that crimes where an offender could be sentenced to seven years in prison are police cases and such an offender could be arrested without arrest warrant.
As the monogamy law prescribes no separate procedures, those cases are within police power, according to the Code of Criminal Procedure. In such cases, no bail is granted and no withdrawal is allowed. What's more, anyone can file a complaint or lawsuit.
When a tip-off about any matrimonial crime is received as stated under Section 154 of the Code of Criminal Procedure, police have the right to conduct investigation freely, according to Section 156.
As soon as police receive information that a married man or woman is engaged in extramarital affairs with another (just for fun or just for one-night stand), they can launch investigation and arrest anywhere any time. When a lawsuit has been filed against the person who committed adultery, the spouse of that person is not in a position to withdraw the case and settle it in a certain social manner.
Although the law does not say that the informer can act as a plaintiff, it is already stated in the Myanmar Buddhist Women's Special Marriage Law. If a married person commits or is assumed to have committed a matrimonial crime, anyone can file a complaint and lawsuit against that person.
This newly enacted law poses a threat to all married people. It will also affect those who have maintained the relationship with their spouses despite having an unhappy marriage. For example, a person still has marital relations with his or her spouse despite being at odds. Suppose that person is in the company of another, according to the social phenomenon, he or she might face a certain threat.
With weaknesses in the law, there could also be traps in all aspects, social, political or economic issues.
Flirtatious persons can be threatened by this law. Meanwhile, they can also pose a threat with the use of this law.
Even a person without a marriage certificate can face social scandal due to the trap by another person. With the abuse of this law, a married man or woman could get into trouble such as blackmailing, broken family, economic difficulties and having their image tarnished. The law allows such cases happen easily.
Supposing a married man was lured and threatened by a woman, the man would be charged and imprisoned. But the law does not allow taking action against the woman. If the woman threatened or blackmailed the man, his family would break up and he would lose his wealth.
Likewise, a married woman could face threat from another man. The man could be imprisoned if the husband of the woman sued him. At the same time, his wife would also face imprisonment.
Such threats and cases did exist in the past but they were settled after careful consideration.
But the new law has allowed prison sentences. As it also allows the third party apart from the two main people involved, there could be more confusion in our society.
Is the monogamy law necessary?
It is wrong to say that Myanmar has multiple adultery cases. According to the census data collected last year, the country has 35.5 million people aged 15 and above. Among them, 61 percent are married men and 58 percent married women. Thirty two percent represent single men and 30 percent single women.
Looking at the number of married people, there is no much difference in percentage: no more than 3 percent. And this is not a worrying situation.
Meanwhile, the number of single men is not significantly different from that of single women.
The national census results show that the married people in the country is in proportion to the population. This is because social problems are usually solved with careful consideration.
But the newly enacted law will allow authoritative decision rather than wisdom and consideration. If so, Myanmar's population and marriage indexes will become unstable.
Young people will stick to the concept that staying single is the best. Consequently, a tradition of living together will reign in the country.
Currently, monogamy is not in urgent need of adoption.
Amendment is necessary
If Myanmar wants to hold the monogamy law, it needs to be amended. Penalty is the first to be amended. The punishment in this law is the severest of all the four laws protecting race and religion. The restrictions and procedures are the next things that need to be amended.
The provisions on cases within police power, arrests without a warrant, no bail granted and anyone's right to file a complaint and lawsuit must be amended. The person concerned should be a plaintiff.
Surely, the law will spark more social confusions and scandals. It pushes for more divorce than cohesion. It does not reflect the reality either. Particularly, the law was passed with a lack of public discussion. So it should be amended after a heated debate with the public members.
Otherwise, we would face more confusion than benefits in our society. With more and more unscrupulous people abusing the law, the Myanmar society will face hatred and tragedies.