The recently published verdict of the High Court Division (HCD) on the legality of the polygamy provision in the Muslim Family Laws Ordinance, 1961 (MFLO) has revived the age-old debate concerning wife’s consent to a subsequent marriage by the husband. The HCD has reaffirmed the existing law, citing section 6 of the MFLO as it is. However, the matter needs to be reframed, scrutinised more humanely, and in its context, women’s marital rights requires re-evaluation.
Muslim personal matters like marriage are governed by the MFLO, amongst other laws, in Bangladesh. Under section 6 of the Ordinance, a married Muslim man is required to obtain the prior permission of the arbitration council (a 3-member ad-hoc body) should he want to remarry. A written application is filed with the necessary fees for the Council to sit and reach a decision. Sub-section 5 of the said provision specifies that if a man remarries without the permission of the Council under this provision, he will have to pay the due dower amount at once and also face a penalty. Thus, the provision merely makes the process of polygamy slightly more difficult.
The recently published verdict of the High Court Division (HCD) on the legality of the polygamy provision in the Muslim Family Laws Ordinance, 1961 (MFLO) has revived the age-old debate concerning wife’s consent to a subsequent marriage by the husband. The HCD has reaffirmed the existing law, citing section 6 of the MFLO as it is. However, the matter needs to be reframed, scrutinised more humanely, and in its context, women’s marital rights requires re-evaluation.
Unfortunately, the law does not concern itself with the consent of the first wife in deciding whether the husband should be allowed to remarry. Section 6(2) read with Rule 14 of the Muslim Family Laws Rules, 1961 states that in the application to the arbitration council, whether the permission of the existing wife/ wives has been obtained needs to be mentioned. However, nowhere in the MFLO or in its Rules does it make the wife’s consent a precondition for the permission. Rather, the arbitration council just takes note of it as an ancillary matter in the procedure.
Moreover, the arbitration council is temporary in nature. Hence, it often lacks the judicial prudence and permanence to take such a material decision. Although the council has representation from both the husband’s and the wife’s side, it is mostly the elderly men or father-figures who participate in the arbitration. When represented by men, this can and does lead to oversight of the wife’s interests and emotions. On the other hand, the local government leadership is, statistically seen, to be male dominated. As such, it is not uncommon that the wife’s consent against the second marriage, even if expressed, potentially gets disregarded.
It needs to be kept in mind that the causes of the apparent disparity between the spouses’ positions on polygamy are both structural and societal. First, a technical-textual reading of section 6 of MFLO makes it clear that failure to comply with the provision of taking permission from the Arbitration Council only imposes a small penalty on the husband but does not invalidate any second marriage contracted in violation of the provision. Hence, as noted before, the system is merely a procedural hurdle to male polygamy, not a substantive bar on the practice. In rural Bangladesh, it translates to the subjugation of a wife’s opinion, eventually leading to the economically and emotionally dependent wives accepting their fates.
Second, polygamy without the first wife’s consent at its root has implications for her economic well-being and livelihood as well. A society where an overwhelming majority of married women are structurally made dependent on their husbands for everything, and divorced women still bear the stigma of being home wreckers, does not leave much scope for wives to go against their husbands’ desires. Third, the act of circumventing a woman’s conjugal autonomy with a mere procedural step is an absolute disregard to her rights. In effect, the provision deprives a wife of her conjugal freedom, for the sake of the husband’s unilateral decisions.
Pertinently, the Hanafi school of jurisprudence, which is predominant in Bangladesh, is silent on the question whether a wife’s consent is necessary in permitting the husband’s subsequent marriage. Many Islamic scholars have discouraged polygamy on the grounds of conjugal injustice. In my opinion, in today’ world, a wife’s voluntary and informed consent should also be a deciding factor for allowing polygamy, a position that is assumed by many Muslim countries.
For example, the Indonesian law mandates the consent of the first wife in the husband’s polygamy, whereas Turkey has banned polygamy altogether. Egypt and Morocco have adopted a different approach by allowing the wife to file for divorce on the grounds of the husband’s polygamy. Saudi Arabia, much like Bangladesh, does not mandate a wife’s prior consent for husband’s remarriage. Rather, it allows the wife to insert a ‘no-polygamy clause’ in the marriage contract. All these procedures effectively ensure marital equity.
In conclusion, it is time we elevated the status of wives’ consent in polygamy matters from a mere footnote to a make-or-break element and thus break away from interpretations that disparately impact women.
The writer is lecturer of law at East West University.
