THE RADIANT JUSTICE CHAMBERS, OBAFEMI AWOLOWO UNIVERSITY
BIGAMY V POLYGAMY
The Black’s Law Dictionary defined bigamy as ‘the act of marrying one person while still legally married to another' while The Black’s Law Dictionary defined polygamy as “the state or practice of having more than one spouse simultaneously”.
Bigamy is generally a criminal offense governed by Section 370 of the Criminal Code of various southern states in Nigeria and Section 384(1) of the Penal Code of various northern states in Nigeria.
Traditionally, Nigeria is a polygamous society and in that light, the offence of bigamy was not known but the offence was imported into Nigeria as a received English Law
Marrying a second wife while first marriage subsists is a criminal act and an offender is liable to five years imprisonment by virtue of Section 46 of the Marriage Act and seven years for the same offence under Section 370 of the Criminal Code Act.
Bigamy is a subset of polygamy. Bigamy can either be polygyny (where a man marries more than one woman) or polyandry (where a woman marries more than one man).
Polygamy refers to a type of marriage where a man marries more than one wife. In Nigeria, polygamy is strictly a customary law institution. A polygamous marriage enjoys no statutory instrument, a man who wishes to marry multiple wives may do so legally under his native laws and customs (including Islamic law), which permit polygamy.
Be that as it may, polygamy is a strictly customary form of marriage that does not enjoy any statutory flavor. The fact that a marriage contract was not contracted pursuant to the Marriage Act does not make it illegal or not legally recognized. Likewise, the fact that polygamous marriage is unwelcome under the Nigerian Marriage Act does not ipso facto make it illegal, see section 35 of the Marriage Act
Though the official marriage registry only allows for one wife, marriage under "customary" law is allowed.
Upon declaration of a marriage to be bigamous, its implication is that the marriage is void and of no effect but the children born to the marriage before the declaration of bigamy by the court are legitimate children and are therefore not affected by the declaration.
Polygamy itself is not a crime but it becomes a crime when a man takes another wife when there is subsisting marriage under the Act. When it comes to matrimonial matters and causes, Nigeria practices a “dual system” i.e customary marriage and statutory marriage.
The Islamic/customary marriage allows for polygamy, on the other hand, statutory marriage, or what is referred to as “marriage under the act” or “court marriage” does not.
The hallmark of every serious crime is that it involves conduct that is anti-social - something which offends the moral consciousness of society. Bigamy is usually classified as an offence against public morals. Judging from the punishment prescribed for it - imprisonment for seven years - bigamy is among the more serious offences in the Nigerian Criminal Code. Yet it is very rarely prosecuted. Traditionally, Nigeria is a polygamous society; it is lawful for a man to have several wives at the same time provided he marries under customary law. in the eyes of the law there is nothing immoral or anti-social about this.
However, because of the dual system of marriages co-existing in Nigeria, viz, customary (polygamous) and statutory (monogamous), bigamy may be committed in certain circumstances by the mere fact of having two wives at the same time. That this situation should exist in a polygamous society raises the question of what is the purpose of creating these offences and prescribing severe punishments for them. In Nigeria, having several wives is not antisocial for a man. A man wishing to marry more than one wife may lawfully do so under native laws and customs which recognize the polygamous marriage. But because we do not live solely by the laws and customs of our forefathers, it is an offence in certain circumstances to take more than one wife.
The question that may arise is what the purpose of this branch of law is. If a man may lawfully take two wives under one form of marriage why is there a punishment for doing the same thing under another form of marriage?
Do tell us your thoughts in the comments section.
FROM THE DIRECTORATE OF RESEARCH
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