The recently proposed amendment to Section 175 of Nepal’s Criminal Code, intended to exempt polygamous unions from being automatically void if the second partner becomes pregnant or gives birth, raises significant legal, ethical, and constitutional concerns. At face value, it claims to protect women and children involved in extra-marital relationships. In substance, however, it legitimizes deception, betrays the first spouse’s legal rights, and threatens to reintroduce a social disease Nepal worked hard to criminalize: polygamy.
The current law under Section 175 is unambiguous. It prohibits “any” person from entering into a second marriage while the first marital relationship remains valid. The provision, implemented from Bhadra 1, 2075 (August 17, 2018), upholds the sanctity of monogamous marriage and ensures that no individual is harmed by unilateral or clandestine decisions to form parallel familial arrangements. A second marriage in such circumstances is void ab initio and subject to criminal sanction, including imprisonment from one to five years and fines ranging from NPR 10,000 to 50,000. The clarity of the law has functioned not only as a legal prohibition but also a normative signal: Nepal, as a constitutional republic committed to gender equality and personal dignity, does not tolerate polygamy.
Undermining legal deterrence
The proposed amendment, however, seeks to introduce a loophole into this framework. If a married person regardless of gender impregnates another individual outside their existing marriage, and a child is born, the new relationship may no longer be rendered void under law. It purports to uphold the rights of the child and to prevent the second woman from being “abandoned.” But while children deserve full legal protection irrespective of the circumstances of their birth, a principle already enshrined in Nepali law, there is no compelling legal justification to link such protection with the recognition of a bigamous relationship as valid marriage.
This amendment introduces several legal inconsistencies. First, it allows a biological event, childbirth to override a statutory prohibition. No civil or criminal legal system can justifiably permit the creation of new rights through the commission of a prohibited act. If an individual commits bigamy, the birth of a child from that unlawful act may necessitate protections for the child, but not exoneration or reward for the adult offender. Second, the draft undermines the deterrent function of the existing law. If pregnancy becomes an escape route from prosecution, then the incentive to follow due process, seeking divorce, formal separation, or full disclosure evaporates. In this way, the draft amendment not only removes legal certainty but also undermines the moral basis of legal enforcement.
It is necessary to confront the emotional argument used to justify this amendment. Proponents argue that women who find themselves in relationships with married men often face societal stigma, and their children are left without legal recognition. However, existing civil and criminal codes already provide mechanisms through which paternity can be established, maintenance enforced, and inheritance rights granted to all children, irrespective of the marital status of their parents. The state’s duty to protect a child cannot and should not be extended to legitimizing the misconduct of adults. The proposed law uses emotional blackmail to erode structural safeguards: it places sympathy where scrutiny is due.
More troubling is the impact on the first wife and her children. In all discussions surrounding this amendment, the emotional, legal, and psychological harm inflicted upon the first wife is conspicuously absent. A woman who has legally committed to a marriage, possibly raised children, invested in a life of shared trust, is suddenly reduced to an expendable figure. If her husband initiates a parallel relationship and fathers a child, it is his new partner whose rights the law seeks to uphold, while the original wife is left without recourse, recognition, or protection. Her mental anguish, social embarrassment, and emotional devastation are invisible in this narrative. This is not legal reform; it is institutionalized betrayal.
The same logic applies to the children of the first marriage. They may now have to legally share paternal identity, property rights, and social space with children born of relationships that undermined their family. This creates psychological instability, legal ambiguity, and long-term social conflict. The amendment is thus not child-friendly; it is conflict-generating. It destabilizes households, corrodes marital trust, and teaches a generation of young citizens that deception can be retroactively legalized.
Contradicting gender commitments
The amendment further contradicts Nepal’s constitutional principles and international legal commitments. Article 18 of the Constitution of Nepal guarantees equality before the law and non-discrimination. Article 38 enshrines the rights of women, ensuring their protection from all forms of violence and reinforcing the need for equal familial rights. Nepal is also a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which demands legal measures to prevent practices that undermine the dignity and status of women. In this context, how can a state that criminalizes polygamy simultaneously offer a route to retroactive legalization based on biological consequences of an illicit act?
Moreover, the proposed revision takes an alarmingly gender-neutral tone on paper, but it is crucial to recognize that its real-world implications will not be gender-neutral. In Nepal’s socio-cultural context, power imbalances, economic dependency, and patriarchal norms mean that such provisions overwhelmingly benefit men, especially married men who choose to deceive. The idea that this law will also protect married women who take second husbands is practically hollow and legally irrelevant, as such instances are negligible in number and incomparable in impact. The law, in effect, becomes a shield for male privilege cloaked in the language of equality.
One must also challenge the claim that this amendment is not an attempt to legalize polygamy. On the contrary, by validating bigamous unions in specific conditions, the law creates a new class of semi-legal polygamy, one that sits in legal limbo but carries all social and familial consequences of a lawful marriage. This is not a reform; it is regression. It reopens the very door that Nepal firmly shut with the 2075 reform after decades of struggle, jurisprudence, and gender justice activism.
Legal consistency demands that polygamy remain both a criminal offense and a civil nullity. If the state now creates exceptions based on childbirth, then it invites fraudulent behavior, encourages extramarital affairs, and fosters competition among women for legitimacy. It pits wives against mistresses, and children against half-siblings, all under the pretext of protection. It rewards deception with recognition, and punishes fidelity with abandonment.
In addition to the legal contradictions, there are procedural irregularities. The proposed amendment has not undergone sufficient public consultation, nor is there clarity on whether it will apply retroactively to relationships formed after 2075. The process appears rushed and opaque, and no clear empirical data or research has been cited to justify such a significant change to Nepal’s family law framework. There has been no evidence presented of systemic injustice so grave as to merit a fundamental reversal of existing legal standards. In effect, a solution is being proposed to a problem that does not exist, while existing problems like the under-enforcement of maintenance laws, failure to register divorces, and weak support systems for single mothers are left unaddressed.
Justice demands accountability
If the government’s intention is truly to protect women and children, there are lawful and equitable means to do so. Strengthen child welfare laws. Provide state-sponsored legal aid for women abandoned by deceitful partners. Enforce paternity laws rigorously. But do not collapse the boundary between legitimate marriage and illicit relationships. That boundary is the foundation upon which modern civil law rests. Diluting it for the convenience of a few wrongdoers is not just bad policy, it is bad law.
It must also be asked: who stands to gain from this amendment? Not the betrayed wife. Not the child, whose welfare can already be protected. Not society, which will now face a legal precedent inviting disorder. The beneficiary is the man who chooses deception, and the system that enables him. If this law passes, we will have effectively declared that in Nepal, infidelity is not only excusable, it is rewardable.
Nepal’s justice system cannot afford to be guided by emotional rhetoric detached from constitutional values. Legal sympathy without accountability becomes legal anarchy. If the amendment is passed in its current form, it will deal a serious blow to gender justice, legal consistency, and social harmony. What the country needs is not legal leniency for betrayal but legal strength for protection of women, of children, and of the very institutions that bind society together.
Let the law remain as it stands: a firm line against polygamy, in defense of fairness and fidelity. Let the state remember that not all emotional appeals are justified and not all proposed solutions are reforms. Some are regressions dressed in sentiment. And it is our constitutional duty to reject them.
