Adalah’s Newsletter, Volume 20,
November 2005
When the
Right to Family Life Clashes with the Right to a United
Family
By
Sawsan Zaher1
Many political philosophers view
polygamy as a cultural right and assert that the courts should respect and
protect it. The primary claim of these scholars is that no culture is superior
to another and, thus, the courts should be prevented from imposing Western
liberal values on a cultural group that does not share these values. Most of the
feminist literature repudiates this approach and claims that it perpetuates
power relations within a patriarchal society. In addressing this complex issue,
I will argue that, as a rule, prohibitions on discrimination between men and
women as well as infringements of basic human rights should be applied as
overriding principles. Further, I will argue that the underlying motives of
legislation or court decisions should be examined in certain cases as courts, on
occasion, actually perpetuate discrimination between different cultural groups,
on the pretext that “women’s rights should be protected.” Decisions of Israel’s
Supreme Court on the issue of family unification, in which there is
discrimination between Jewish and Arab citizens, provide good examples of this
complex matter.
“A married male who marries another
woman and a married female who marries another man shall be sentenced to five
years’ imprisonment.” Thus stipulates Section 176 of Israel’s Penal Law (1977),
thereby categorizing an act of polygamy as a criminal offense, the punishment
for which is imprisonment in custody.2 There can be no doubt that
designating “polygamy” as a criminal offense was intended, first and foremost,
as a deterrent against the undermining of the institution of monogamous
marriage, one of the foundations of the state’s social system. This was the
lawmakers’ intent when it was legislated and this remains the stance of the
courts in applying it against offenders.3 The phenomenon of polygamy exists in
the country among Palestinian Arab citizens, as well as Jews, particularly among
immigrants from Yemen.4 This having been noted, there can be
no doubt that the phenomenon is more common among the Arab Bedouin in the Naqab
(Negev). According to estimates published by the Ministry of Health in 2001, 36%
of Arab Bedouin women in the Naqab are married to a man who is married to more
than one woman.5
The courts have related to the
deterrent value of the sentence of imprisonment imposed on those found guilty of
this crime and have declared on several occasions that “this matter does relate
solely to the accused currently before the court, as there is a need primarily
to deter others from doing something similar, lest chaos result in all matters
related to the
1 The author is an attorney with
Adalah – The Legal Center for the Arab Minority Rights in
Israel.
2 The phenomenon of multiple marriages
is called both polygamy and bigamy. There is a slight distinction between the
two terms. Bigamy is a situation in which a man marries another woman at the
same time that his first marriage is still valid. Polygamy is a situation in
which a man lives a married life with another woman while his previous marriage
was un-dissolved and without there being a need for a formal marriage ceremony.
Other sources distinguish between the two terms on the basis of the number of a
man’s wives. According to this approach, bigamy describes a situation in which a
man is married to two women, while polygamy is one in which a man is married to
more than two women.
3 See Criminal Case (CC) 4433/04,
State
of Israel v. Debes Khalil, (Nazareth Magistrate Court) decision
issued on 20 March 2005; Criminal Appeal (CA) 185/82, Ahmed
ibn Atiyah Gudah v. State of Israel, (Supreme Court) PD 37 (1)
85.
4 See CA 392/80, State
of Israel v. Abraham Halevi, (Supreme Court) PD 35(2) 698. In
addition, it is worth noting that the phenomenon of polygamy also exists in
Western countries. For example, the Mormons, most of whom reside in the state of
Utah in the United States, practice polygamy despite a legal prohibition on the
practice. See Slark, S. (2004). Are Anti-Polygamy Laws an Unconstitutional
Infringement on the Liberty Interests of Consenting Adults? Journal
of Law & Family Studies, 6.