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| Sabrina Sadia Ria |
Polygamy refers to the practice of
marrying multiple spouses simultaneously and can be divided into two
categories: polygyny (one man with multiple wives) and polyandry (one woman
with multiple husbands). According to the Muslim Family Laws Ordinance, 1961,
the term “polygamy” primarily pertains to situations where a husband has more
than one wife at the same time. Under Muslim Shari’ah law, polygamy is legally
permissible for men, allowing up to four wives concurrently, but it comes with
specific conditions and limitations. In this article, I will discuss the
Qur’anic provisions along with the statutory procedures regarding polygamy to
present the argument on the debated issue of whether polygamy in the said
Ordinance overrides the Qur’an or not.
The Qur’an
The Holy Qur’an imposes a strong
condition that the husband must ensure just and equal behaviour towards the
wives. The term “behaviour” is broad and hard to define. In Islamic Law, “Adl”
represents the essential principle of justice that must be upheld before
considering polygamy, meaning one must act equitably towards others. Allah
mentions in the Qur’an: “Indeed, Allah commands
justice, grace, as well as generosity to close relatives. He forbids indecency, wickedness, and
aggression. He instructs you so
perhaps you will be mindful. (Qur’an
16:90)”. Adl refers to the term “justice”, to
utilise the human mind, but not to act mechanically or unconsciously, to follow
the true and precise path, to ensure equality. Ensuring justice and equality in
relationships is challenging to measure. There is no clear standard for a
husband to determine what behaviour is just and equal towards his wives. The
most relevant guideline comes from the Qur’anic verse on polygamy (particularly
within the context of polygyny): “And if you fear
that you will not deal justly with
the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that
you may not incline [to injustice]. (Qur’an
4:3)”
The Qur’anic concept of justice
encompasses not only providing basic needs for wives but also equality in love
and esteem, a challenging standard for humans to meet. Polygamy is permitted
under specific conditions, such as during times of war or socio-economic crises,
primarily to protect vulnerable individuals like widows and orphans. It is not
a license for men to indulge personal desires or neglect their wives’ rights.
The Qur’an emphasises fairness for
women and promotes justice (Adl) and gender equality. Justifiable reasons for
additional marriages, including a wife’s illness, are recognised in Islamic
Shari’ah, highlighting the need for equity and responsibility in family
obligations. The debate on polygamy in Islamic jurisprudence reveals a divide
between modernist views, which stress the necessity of financial capability and
fair treatment, and classicist perspectives, which see it as a moral guideline.
The Ordinance
Section 6 of the Ordinance states
unequivocally that a polygamous marriage requires the consent of the existing
wife or wives and written permission from the Arbitration Council, and marriage
without this permission will not be registered under the Muslim Marriages and
Divorces (Registration) Act, 1974. The husband must submit an application with
a fee to the Chairman, furnishing reasonable grounds, along with the consent of
existing wives. The Council has the discretion to grant or deny this
permission. If a man enters another marriage without permission, he must
immediately pay the full dower, whether prompt or deferred amount, to his
existing wife or wives, recoverable as land revenue arrears, if unpaid. The
husband faces punishment of up to one year of simple imprisonment, a fine of up
to ten thousand taka, or both. Thus, failure to comply is a punishable offence.
Aggrieved parties can apply for revision of the Council’s decision to the
Assistant Judge, whose ruling is final and not subject to court challenge.
Rule 14 of the Muslim Family Laws
Rules, 1961 allows the Chairman to grant permission based on legitimate
circumstances deemed necessary and just- Sterility,
physical infirmity, physical
unfitness for the conjugal relation, wilful
avoidance of a decree for restitution of conjugal rights and insanity on the part of an existing wife.
In Jesmin Sultana vs Md. Elias 2 BLC 233, the court held that section
6 of the Ordinance does not assert the second marriage as illegal or invalid.
The legislation stipulates penalties for violations, referencing a Qur’anic
verse that emphasises “just dealings” as a prerequisite for equality. In Ahmed Mia Shaha vs Kazi Abdul Motaleb 23 DLR
181, the court ruled that a polygamous marriage without mandatory
permission is punishable under section 6(5) of the Ordinance.
In conclusion, while the Qur’an
allows polygamy in restricted situations, husbands in our country often
misinterpret and misuse the verse due to a patriarchal social structure. This
leads to a failure to acknowledge the discrimination against women. As a
result, the State aims to prohibit polygamy by declaring it a crime (without
mandatory permission), imposing penalties, and enforcing lengthy procedures.
Thus, the Muslim Family Laws Ordinance, 1961, seeks to discourage husbands from
entering another marriage, emphasising monogamy, and it operates as a
complement to the Holy Qur’an without overriding it.
Author: Sabrina Sadia Ria
LL.B.(Hons.) 3rd Year
Department of Law,
University of Dhaka