The Narendra Modi government’s rationale behind the instant triple talaq Bill is that it is aimed at empowering and protecting the rights of Muslim women. But if the government is sincere about the cause, why has it not taken steps to check polygamy, which many Muslim countries have moved to curb? In most Muslim countries, despite strong opposition from the clergy, explicit permission from the first wife is mandatory if a Muslim male wants to enter into a second marriage.
In India, Muslim personal law does not stipulate any such conditions for a second marriage except that the husband should be Muslim and wife should either be a Muslim or Ahl-e-Kitab (people of the Book like Christians and Jews) at the time of marriage.
In Pakistan, Islamabad high court Chief Justice Athar Minallah, in a landmark judgment, has declared that any Pakistani entering into a second marriage needs the approval of the Arbitration Council, even if the husband has consent from the first wife.
Earlier, the general rule was that the first wife’s consent was the only requirement for a second marriage.
While accepting an appeal by Dilshad Bibi and upholding the sentence awarded to her husband by the trial court for entering into a second marriage without the consent of the Arbitration Council and the first wife, Justice Minallah ruled: “A man who intends to contract another marriage during the subsistence of an existing marriage has to observe the procedure and fulfil the conditions prescribed by the legislature otherwise the consequences of imprisonment or fine or both could ensue.”
Interestingly, Justice Minallah invoked an ordinance promulgated during military dictator General Ayub Khan’s regime.
Quoting the Muslim Family Laws Ordinance, 1961, Justice Minallah said: “During the subsistence of an existing marriage, no man shall contract another marriage except with the previous permission in writing of the Arbitration Council.”
The court said that under the Muslim Family Law Ordinance 1961, the person entering into a second marriage without prior permission is liable to punishment and a fine.
Dilshad Bibi’s case
Petitioner Dilshad Bibi and her husband Muzaffar Mir entered into a marriage contract on May 15, 2011, which was duly registered in Islamabad under the Muslim Family Laws Ordinance, 1961.
The couple later moved to Muzaffarabad in Pakistan-administered Kashmir. Mir entered into a second marriage without the consent of the petitioner. Dilshad Bibi thus filed a complaint before the Arbitration Council, which referred it to a magistrate court where the husband was given a one-month jail sentence and fined Rs 5,000. The conviction was set aside by the district sessions court on the plea that the husband was resident of PoK and the provisions of the ordinance of 1961 were not applicable in his case.
Dilshad Bibi challenged the order before the Islamabad high court and Justice Minallah ruled that “a plain reading of the Ordinance of 1961 read with the Rules of 1961 unambiguously shows that it extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan”.
He ruled that the Arbitration Council cannot act mechanically while granting permission because the statute has declared that before doing so, it has to be satisfied that such permission would be just and necessary. A man who enters into another marriage contract during the subsistence of an earlier one in contravention of the provisions of the ordinance of 1961 definitely exposes himself to the risk of being imprisoned or fined or both.
In his judgment, Justice Minallah also made it clear that despite the first wife’s agreement, if the Arbitration Council disagrees with the decision then the person will be liable to punishment.
Like many Muslim countries, polygamy is one of the most contentious issues in Pakistan and the powerful clergy has always opposed any restrictions on the number of wives. They say Quran and Sunnah (traditions of Prophet) do not prescribe any such restrictions.
Even when Ayub Khan’s government brought the Muslim Family Laws Ordinance, 1961, his opponents accused him of interfering with the Islamic law as laid in the Holy Quran and traditions of Prophet.
In his seminal work Pakistan’s New Marriage Law: A Reflection of Qur’anic Interpretation, Freeland Abbott narrates an interesting story behind the 1961 ordinance. Abbott says that the real reason behind its promulgation was an event which took place six years earlier.
He writes: “On April 2, 1995, in the midst of an organised campaign against polygamy, Mohammed Ali Bogra, the then prime minister of Pakistan married a second wife.”
The campaign against polygamy was led by the All Pakistan Women’s Association (APWA) founded in 1949 by Begum Ra’ana Liaquat Ali Khan, a renowned women’s rights activist. The APWA was alarmed by the increase in second marriages after Partition and cases of ignoring the rights of the first wife. It started a campaign for reforms in marriage laws which ultimately culminated in the 1961 ordinance, says Abbott.
However, despite all the safeguards, the Muslim Family Laws Ordinance, 1961, has one major flaw – that if a marriage takes place without permission from the Arbitration Council, it does not make it invalid, only denied official registration.
Rubya Mehdi, the author of The Islamization of the Law in Pakistan, says non-registration means that any grievance arising from such a marriage would be denied judicial relief. However, the 1961 ordinance gives the first wife the right to seek a divorce and demand her mahr (dower).
Most human rights activists are of the view that the Arbitration Council just exists on paper and that the judiciary has been reluctant to impose penalties prescribed by the Muslim Family Laws Ordinance, 1961. They said this was the reason why this law has not been an effective deterrent.
But with a single stroke of his pen, Justice Minallah has dispelled all misgivings about the efficacy and the effective implementation of the Muslim Family Laws Ordinance, 1961.
Asif Ullah Khan is a freelance journalist based in Jaipur and has worked in senior editorial positions at The Times of India, The Hindustan Times Khaleej Times and The Brunei Times.