The High Court has upheld the provision in Muslim family law that requires permission from an arbitration council, not the first wife’s consent, for a second marriage.

In a verdict delivered in August and published in full in December, a bench of Justice Fahmida Quader and Justice Sayed Jahed Mansur dismissed a writ petition seeking to make a wife’s consent mandatory for a husband’s second marriage.

The ruling means the existing provision under Section 6 of the Muslim Family Laws Ordinance, 1961 remains in force, requiring a husband to obtain prior approval from an arbitration council before contracting another marriage.

Supreme Court lawyer Ishrat Hasan, who filed the petition in January 2022, told bdnews24.com that she plans to appeal against the verdict.

WHAT THE LAW SAYS

Under the Penal Code of 1860, contracting a second marriage without the consent of the spouse was punishable by up to seven years in prison and a fine.

Later, the Muslim Family Laws Ordinance, promulgated in 1961, introduced specific restrictions on polygamy.

It states that no person may contract another marriage during the subsistence of an existing one without the prior permission of the arbitration council, and that a marriage contracted without such permission cannot be registered.

To seek approval, a husband must apply to the chairman of the relevant union parishad, stating the reasons and necessity for the proposed marriage and whether the consent of the existing wife or wives has been obtained.

The arbitration council, after hearing both sides, may grant or refuse permission, recording the reasons for its decision.

If permission is refused, either party may seek a review before the assistant judge, whose decision is final.

A man who marries again without the council’s permission may be required to immediately pay the full dower to his existing wife or wives and may face up to one year’s imprisonment, a fine, or both.

WHAT HIGH COURT SAYS

In its judgment, the High Court examined the issue in the light of Islamic law and the Constitution.

Quoting the Quran, the court observed that while Islamic law permits polygamy, it places strong emphasis on marrying only one woman if a man fears he cannot treat multiple wives justly.

The court noted that, under the Hanafi school of jurisprudence applicable in Bangladesh, polygamy is permissible but conditional on a man’s ability to act justly and provide financial support to multiple wives.

Summarising its findings, the court said polygamy is allowed in Islam but subject to strict conditions of fairness and financial capability, and that refraining from multiple marriages is preferable if justice cannot be ensured.

The bench also referred to a 1997 High Court judgment that had recommended replacing Section 6 with a provision banning polygamy, citing examples such as Tunisia and Turkey.

However, it noted that the government has not acted on that recommendation.

The judges observed that if the government were to create a forum either to regulate polygamy strictly from an Islamic perspective or to prohibit it altogether, many controversies surrounding the issue could be resolved.

Rejecting the constitutional challenge, the court held that the process of granting permission for another marriage under Section 6 is neither discriminatory nor arbitrary.

This provision does not curtail or take away the rights of either men or women, nor does it impose any obstacle on the arbitration council in granting or refusing permission, the court said, adding that the council cannot impose unilateral decisions on the parties.

The bench found no violation of the principles of equality under Articles 27 and 28 of the Constitution, stating instead that the provision complements Article 41, which guarantees freedom of religion subject to law.

In its final decision, the High Court ruled that Section 6 of the Muslim Family Laws Ordinance, 1961 does not infringe the fundamental rights of women citizens and discharged the rule.

WHAT THE PETITIONER SAYS

Lawyer Ishrat said there is a common misconception that a husband must obtain his first wife’s consent for a second marriage.

“In reality, the law does not say that. The authority to grant permission rests with the arbitration council,” she said.

She argued that the law does not clearly define the criteria on which the council should grant or refuse permission and that councils may be influenced in their decisions.

“I challenged leaving such an important issue solely to the arbitration council and sought a requirement for the wife’s consent,” she said. “The High Court dismissed the rule, and the full judgment was published in December. We will appeal against it.”