What the Law Actually Says About Polygamy

Recently, a verdict of the High Court Division (HCD) regarding polygamy has created a lot of interest on social media. The photo card of the HCD verdict, which states that the permission of the first wife will no longer be required for a subsequent marriage has been shared on Facebook massively.

There are various misconceptions about law and court systems in our country, even among many highly educated and aware people. One reason for this may be the ambiguous words and language used in the legal text and its interpretation. The language of law is usually not clear.

Moreover, superior courts interpret words used in the statute. Apart from resolving disputes, interpreting legislation is also one of the core functions of court. Therefore, the meaning of a word that we usually know in society can be given a different meaning through the interpretation by the court.

There was never a provision in the law that the permission of the first wife is needed for a second marriage; therefore, the HCD did not say anything new. Then the question may arise as to how people came to know about this misconception for a long time. It may be due to ignorance or not being able to read the law properly or practicing a common mistake in the society for a long time without verifying it.

Family matters (such as marriage, divorce, distribution of property to heirs, maintenance, dower, gift/heba, guardianship, donation of property for religious purposes, etc.) in our country are generally regulated by the rules of respective religions.

In 1961 during the regime of military ruler Ayub Khan, significant reforms were made to Muslim family laws, and the Muslim Family Laws Ordinance (MFLO) was promulgated, which is still in operation in this territory. Basically, section 6 of this MFLO deals with the provision of polygamy for Muslim men.

Although, Section 494 of the Penal Code (PC), 1860 stipulates that if a person remarries while his or her husband or wife is alive, the subsequent marriage has been declared void and that person shall be punished with imprisonment of either description up to seven years and be liable to fine. This provision is not specific to any particular religion but is applicable to everyone and is equally applicable to both men and women.

Muslim law permits polygamy for men although there is no such permission for women. The MFLO, 1961 is a special law while the PC is a general law. Consequently, in accordance with the general principles of law and Section 3 of the MFLO, the obligations of the MFLO shall prevail over any other laws and customs prevailing in the country.

Therefore, if a Muslim man wants to have multiple marriages, he will have to follow the conditions set in Section 6 of the MFLO; otherwise he will be punished.

Nevertheless, to do polygamy under Muslim law, it is mandatory to treat the existing wife/wives fairly and equitably (which includes ensuring equal treatment in terms of time, gifts and other material things) and to have the financial capacity to provide adequate maintenance to them.

But the MFLO does not say anything about these obligations of husband for polygamy.

Court determines the application for polygamy after giving an opportunity of hearing to the existing wife and verifies the health and financial related certificates before deciding application for polygamy in other Islamic countries. On the other hand, the arbitration council does not have the power to call or take witnesses under the MFLO. It is worth mentioning that in 1926 Turkey and in 1957 Tunisia banned polygamy for men despite being Muslim countries.

Our HCD has also previously directed the government to amend the law on polygamy.

However, there are five sub-sections in Section 6 of the MFLO, 1961. The first sub-section states that a man shall not remarry while a marriage is in existence, unless he has previously obtained ‘permission in writing’ from the Arbitration Council (AC). And if a man remarries without the prior written permission of the AC, that subsequent marriage shall not be registered under the Muslim Marriage and Divorce (Registration) Act, 1974.

That means, a man who has been married once and while that marriage is in existence cannot remarry without obtaining prior written permission from the AC. The marriage shall subsist until it is dissolved or until the death of the husband/wife. The AC is defined in Section 2(a) of the MFLO as a council consisting of the chairman and one representative each nominated by both the husband and wife or wives. If anyone fails to nominate his/her representative within the prescribed time, the AC shall be constituted without such representative.

Here, chairman means the Chairman of the concerned Union Parishad or the Mayor of the Municipality or City Corporation or the person designated by the government to perform this duty in the cantonment area or, if there is no elected representative, the person/administrator appointed by the government to perform this duty (for example, there is no elected representative now).

However, if a non-Muslim person is the Chairman or Mayor of a Union Parishad, Municipality or, City Corporation or, if a Muslim Chairman or Mayor is unable to perform his duty for any reason or if he himself applies for polygamy, the concerned Union Parishad, Municipality or City Corporation shall elect a Muslim person from among the members or commissioners to perform this duty.

Now the question is, what will be the legal consequences of that marriage if one remarries without the prior written permission of the AC?

The MFLO does not clarify this issue. 

Therefore, it can be said that although it is a punishable offense, the subsequent marriage will not become null and void automatically.

In 1997, the HCD made the same observation in Jasmine Sultana vs. Md. Elias. The punishment for contravening the provision is imprisonment for a term not exceeding one year (not exactly one year, but any term within one year) or a fine not exceeding ten thousand taka (i.e. any amount between one taka and ten thousand) or with both. Along with this, the punishment for not registering a marriage under Section 5(4) of the Muslim Marriages and Divorces (Registration) Act, 1974 is imprisonment for a term not exceeding two years or a fine not exceeding three thousand taka or with both.

Section 6(2) provides the procedure for applying to the chairman. An application must be made to the chairman following the prescribed manner and by paying the prescribed fee (25 taka) and stating the ground(s) or reason(s) for the proposed marriage (e.g. sterility, physical infirmity, physical unfitness for the conjugal relation, wilful avoidance of a decree for restitution of conjugal rights, or insanity on the part of an existing wife (Rule 14 of the Muslim Family Laws Rules)) along with mentioning whether the existing wife/wives (the law does not mention the permission of the first wife, it says the existing wife or wives) have ‘consent’ (not permission) (if there are more than one wife, then all of them) in order to remarry.

Hence, according to the law, only whether the consent of the existing wife or wives has been taken has to be mentioned in the application.

There is no obligation to take the permission of the existing wife or wives. The AC if satisfied that the intended marriage is ‘necessary’ and ‘just’ may grant the permission subject to fulfilment of condition(s) set by it and record in writing the reasons for such permission. However, the MFLO does not include the obligation to submit medical or any other financial certificate in support of the application.

Therefore, it can be said that since 1961, there was never a requirement of the wife’s permission for polygamy. Interestingly, if the issue of wife’s consent is not indicated in the application, then there is no provision whether the application will be rejected or there will be any other consequences for that. The punishment will only be imposed if the person remarries without the prior written permission of the AC.

If the husband or wife/wives are aggrieved by the decision of the AC, they can file an application in the prescribed manner, within the prescribed time and by paying the prescribed fee for revision to the concerned Civil Judge while the decision of the Civil Judge will be final (Section 6(4)).

However, writ petition can be filed against this judgment before the HCD. Now the question is, what is the remedy of the existing wives/wives if a man marries polygamously without the prior written permission of the AC? In that case, the existing wife/wives will have the right to get their outstanding dower immediately in full (regardless of the mode of payment).

Moreover, if there is no delegation of power of dissolving the marriage in the Nikahnama, the wife can proceed for dissolution of the marriage through court under Section 2(iia) of the Dissolution of Muslim Marriages Act, 1939 by showing the ground of such polygamy without taking permission from the AC.

An important question in this regard is whether the groom is obliged to inform the bride that he is already married and has an existing wife at the time of the subsequent marriage? There is no legal provision for that earlier disclosure. Although clause 5 of the Nikahnama asks whether the bride is a virgin, widow, or divorced woman?

But there is no such clause for men, which is discriminatory. Nonetheless, Section 495 of the PC prescribes that if anyone conceals the fact of an existing marriage while committing an offence under Section 494, he will be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

So, public legal literacy campaigns are essential to eliminate the misconceptions about law and legal processes. The government should take meaningful initiative to ease existing barriers behind access to legal information whereas NGOs, legal academics and law students can engage in dissemination of accurate legal information. Such endeavours will empower individuals with appropriate legal knowledge.

Raisul Sourav is a Doctoral Researcher in Law at the School of Law, University of Galway, Republic of Ireland; an Equality and Rights Activist and a Law  Justice Analyst. Email: [email protected]