Reframing polygamy law

As is well-known, a Muslim man can have as many as four wives based on the Islamic Sharia law, but not more simultaneously. In the backdrop of this general perception of Islam condoning polygamy, the Grand Imam of Egypt's topmost religious institution - the Al-Azhar Mosque - Ahmed Mohamed Ahmed El-Tayeb issued a Fatwa in 2019 claiming that polygamy did not ensure justice for women, and those who practiced polygamy indulged in an unfair practice in the name of Islam. According to Islamic tenet, marrying more than one woman can be justified only when equal treatment can be meted out to all wives. But that is not possible in real life. This interpretation of Islamic law has found acceptance in many Muslim-majority countries of the world including Egypt. 

There are debates on whether polygamy is allowed or disallowed in Islam. But many observers are unanimous in their opinion that Islam discourages polygamy. It is evident from various discourses on Islamic law that the religion considers monogamy as the ideal practice, and polygamy is considered as an exception only. This position of Islam also finds reflection in the legal regime of a number of Islamic countries. Some Muslim states like Tunisia have even banned polygamy by citing Islamic law.

On the other hand, a few Muslim-majority countries like Jordan, Lebanon and Morocco have given wives the right and jurisdiction to prohibit second marriages under matrimonial contracts with husbands. The wives can seek divorce or take recourse to other legal means in case of violation of this condition. Side by side, there are other countries like Iraq who have restricted the use of polygamy through law, although they have not banned it altogether. A wife can refuse permission to a husband who seeks another marriage if he cannot prove the grounds for such action as well as his claim of economic solvency.

Bangladesh imposed some procedural restrictions on polygamy through the Muslim Family Law Ordinance of 1961, although the practice has not been banned altogether. Under section-6 of this ordinance, a Muslim man has to take permission from the arbitration council led by the local union council chairman before entering into another marriage. This reformatory law was enacted based on the recommendations of a law commission, which also brought about changes to the interpretations of Muslim family law including that of divorce through the pronouncement of three 'talaqs'.    

One of the principal purposes of that law was to curb the discriminatory practice of polygamy. But it can be safely said that this objective has not yet been fulfilled. Firstly, it is often observed that permission for polygamy is accorded wholesale by the male-dominated arbitration councils without taking recourse to any proper review. Besides, there is no provision for verifying whether consent has been actually accorded by the first wife, although that is supposed to be mentioned in the petition by the husband. According to a report released by the Human Rights Watch in 2012, as many as 40 Bangladeshi wives did not know about their husbands' second marriages, neither did they have any interaction with the arbitration council. Another negative feature of this law is that the approving authority is a non-judicial council, not a judicial court. There is domination of male-members in most of these arbitration councils, many of whom support polygamy. The law commission that made the recommendations for the Muslim Family Law Ordinance 1961 had also recommended courts as the appropriate forum for approval of polygamy. But in the face of unrelenting pressure from the then vested quarters and religious extremists, this power was ultimately vested in the union councils.

But the social reality of Bangladesh is now quite different from that of 1961. There is therefore scope and ground for a fresh review of the laws and rules related to polygamy. At the same time, attention should also be paid to enhancing the capacity and accountability of the current arbitration councils. Another important aspect is that, many wives have no other option but to accept additional marriages of husbands after taking into account their financial insolvency, as the husbands have the right to take recourse to divorce anytime.

For this reason, alongside taking the initiative to change the law related to polygamy, some other issues should also be examined. Firstly, there is provision in a number of Muslim countries that compel husbands to offer compensations to the wives in case of indiscriminate divorce, which is different from the maintenance money offered during obligatory waiting period for remarriage of Muslim divorcees. This provision is clearly in line with the Islamic Sharia law and can be incorporated in Bangladesh as well. Secondly, it will be difficult to redress the discriminatory treatment of women in families unless the rights of women over family properties are established. Good examples from other countries can be replicated in this area as well, so that women do not become paupers after breakdown of marriages. This is also needed for translating into monetary value the participation and involvement of women in family matters. Thirdly, the state also has a responsibility to ensure that women pauperised due to divorces get state protection and free facilities.

Ensuring justice is the highest standard for any law - whether religious, cultural, national or global. It is for justice's sake that the traditional interpretations of prevailing laws related to polygamy should be constantly monitored, evaluated, amended or improved for catering to the needs of the weaker and vulnerable segments of society. There are clear pathways for improving the status of women under Islam and Islamic law. But the traditional misinterpretations of religious law may continue to dominate if the scope and applications of progressive ideas are not widened further. There is no ground for ignoring the parity of women as well as their rights in family and social sphere, in order to ensure justice and equality for all in our society, economy and polity.

Dr Helal Uddin Ahmed is a retired Additional Secretary and former Editor of Bangladesh Quarterly. [email protected]