Maulana Muhammad Khan Sherani, chairing the Council of Islamic Ideology (CII) recently declared that a man does not require his existing wife’s permission to marry a second time. If I am not exaggerating, the CII has made the second marriage too easy for men. As per the findings of the CII, Sharia allows men to have more than one wife and it further demands that the government of the time should amend the Muslim Family Laws Ordinance, 1961 (MFLO). Section six of the Ordinance stipulates that, “If a person wants to contract a second marriage, while his first marriage exists, he shall have to acquire permission from the Arbitration Council and marriage without such permission shall not be registered.” Contrary to this finding, the Federal Shariat Court (FSC) in June 2000 expressly stated that the said provision was not in violation of Islamic injunctions. Both FSC and CII are two constitutional forums interpreting laws in the light of Islamic injunctions and issuing declarations in this regard. Under the Constitution, the CII Chairman is a decision making authority and he can overrule the wishes of all members if he chooses to. The decisions of the CII are not binding on parliament but the members of parliament should consider them as guiding principles around which policy is framed.
The MFLO was promulgated in 1961 keeping in view the recommendations provided by the Commission on Marriage and Family Laws (CMFL) established in 1955. The CMFL published its report in the official gazette on June 20, 1956. The recommendations prepared by the CMFL were included and considered at the time of enacting the MFLO 1961. The more serious issues pending before the CII have been ignored. For instance, discussing a code of conduct to end sectarianism, the Protection of Pakistan Ordinance, the conduct of the electronic media and so many other issues. This marriage law business has been a waste of time. The FSC in 2000 decided 37 petitions filed under Article 203-D of the Constitution of Pakistan. Through these petitions, petitioners challenged sections four, five, six, and seven of the MLFO for being repugnant to the injunctions of Islam. Section four regards the entitlement of shares of grandchildren in the inheritance of their deceased father; section five regards the registration of marriage; section six is about permission of the Arbitration Council for contracting a second marriage, and section seven deals with the notice of Talaq (divorce) sent to the chairman of the union council and the formation of arbitration councils in this regard. While hearing the petitions, a full bench of the FSC comprising of the then Chief Justice Mian Mahbud Ahmad, Justice Dr Fida Mohammad Khan and Justice Chaudhry Ejaz Yousaf, in one of the petitions enunciated that sections four and seven are repugnant to the injunctions of Islam. The judgement of the bench is reported as PLD 2000-FSC. Further, the bench observed that sections five and six of MLFO 1961 were not repugnant to the injunctions of Islam. The said judgment was challenged before the Shariat Appellate Bench of the Supreme Court by several petitioners and the case has been pending there since.
Section six of the MFLO about which the controversy has emerged clearly states that every man during the subsistence of existing marriage shall require prior permission in writing from the Arbitration Council for marrying a second or third time, nor shall any marriage contracted without permission be registered under the Ordinance. The MFLO requires that request for permission be submitted to the Arbitration Council Chairman on a duly prescribed form with a defined fee, and shall also state the reasons for acquiring permission for contracting a second marriage. The Ordinance also requires that at the time of acquiring permission from the Chairman of Arbitration Council it shall also be mentioned whether permission from the existing wife/wives has been obtained thereof. On the receipt of application for permission the chairman of the union council shall ask the applicant and his existing wives or wife to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may be deemed fit, the permission applied for. Section six of the Ordinance also provides that any man who contracts second or third marriages without the permission of the Arbitration Council shall pay the whole amount or dowry whether deferred or prompt, due to the existing wife or wives. If a man fails to acquire permission he may be held to undergo not less than one year imprisonment or a fine that may be up to Rs 5,000 or both. On section six the FSC in its judgment ruled, “Since this section has not expressly declared the subsequent marriage as illegal and has merely prescribed a procedure to be followed for the subsequent marriages and punishment for its non-observance, we find that the spirit of this section is reformative only as it has prescribed a corrective measure for prevention of injustice to the existing wife or wives.” The FSC also observed in its judgment that no doubt men can have more than one wife but the very ayat (verse) which gives permission also prescribes a condition of adl (justice) and the Quran has laid emphasis in the same verse on the gravity and hardship of the condition which Allah Himself says is very difficult to be fulfilled.
In culmination, I submit that FSC decisions and findings on section six of the Ordinance should be followed by the courts and law making authorities. The decision of the CII allowing men to marry a second time without acquiring permission from the existing wife and not fulfilling the procedure as laid down in MFLO 1961 is a clear violation of the law of the land. Pakistan is a country where Sharia law and common law principles are so mixed that they cannot be segregated, which creates legal problems. The Quran emphasises equality of women in all aspects of life but polygamy in Pakistan and all over the Muslim world is on the rise, which is alarming. Women should not be used as tools for pleasure and as cheap commodities. I believe the right to marry a second time should be provided to men under strict rules and reasons. In a male dominated society, it seems reasonably easier for men to seek permission from the Arbitration Council Chairman as required by the MFLO 1961.
The writer is an advocate of the High Court and lectures on the Law of Succession. He can be reached at [email protected]