POLYGAMY IN ACCORDANCE WITH

MUSLIM FAMILY LAWS,ORDINANCE

1961 AND MUSLIM FAMILY LAWS

Introduction

After independence family laws in Pakistan does not experience any change. Muslim
Family Laws Ordinance was made and enforced in 1961. Constitution of 1956 included a
provision provided for to make existing laws and future law making must be according to
teachings of Islam . Origin or cause to made an ordinance relating to Muslim Family laws
was a interesting one. The then Prime Minister Muhammad Ali Bogra,re married his
secretary Aliyah Begum in 1955 while still having her first wife Begum Hmida and in those
days polygamy was uncommon. Begum Hamida was an active member of a famous
women’s organization ‘All Pakistan Women’s Association’ and that organization launched
organized demonstration against Prime Minister. Along with APWA, United Front For
Women’s Rights (UFWR) demanded to introduce a bill or act for the protection of women
rights such as marriage, polygamy, divorce, maintenance, inheritance and children’s
custody. As a result for such demand on August 4, 1955, the government formed a
Commission on “ Marriage and Family Laws “ to observe the Muslim Family Laws , it was
Headed by Justice Abdur Rasheed and comprise of 7 modernist members (3 female, 4
male ) ,its first report was issued on June 20,1956 . selection of the Commission was
criticized by the Maulana Ehtisham Ul Haq Thanvi , he wrote “most disappointing and
surprising …. neither they had detailed knowledge of Islamic teachings and Injunction nor
they versed in the interpretation and application of those laws “ therefore they rejected the
report. There was also conflict between the modernists and traditionalists on the issues such
as Divorce and Polygamy . then general Ayub khan came into power and his daughter
Naseem was a part of campaign and that was first thing he done to passed the Act of “The
Muslim Family Laws Ordinance “ was enforced on 2nd march 1961. there were four
major provisions of the ordinance:

a) Restriction on the practice of polygamy

b) Compulsory registration of marriage

c) Regulation of divorce procedure

d) Succession

As my topic is polygamy laws so I will discuss about it.

Polygamy

The word “polygamy” owes its origins to the Greek word “ polygamia” means “ the state of
marriage to many spouses”.

Polygamy is defined in black’s law dictionary as “ the offence of having more than one
wives and husbands at the same time.”

According to Islam polygamy is defined as “a system of marriage wherein one person has more than

one spouse “.

Concept of Polygamy in Islam

Islam is a complete code, which protects man’s social and family life as well. For such protection
Islam set a sacred agreement known as Nikah , and provided detailed rules for the “Family Laws”.
polygamy has a very long historical background as many other religion also allowed for it and
same found in the history of Messengers of Almighty Allah. As according to Bible Hazrat Ib
Rahim ( A.S) had three wives,Hazrat Jacob had four wives and the Prophet Daud had nineteen
wives. So as case of Arab before Islam there was a practice of Polygamy , so we can say it is not
the thing introduced by Islam but Islam allowed with restriction to numbers of wives and imposed
obligation on man as to provide same things to other wives as to first. Allah says:

َ ‫سآءِ َم ۡث ٰنى َوث ُ ٰل‬

‫ث َو ُربٰ َع ۚ فَا ِۡن خِ ۡفت ُ ۡم ا َ اَّل ت َعۡ ِدلُ ۡوا فَ َواحِ َدة ً ا َ ۡو َما‬ َ ِ‫اب لَـ ُك ۡم ِمنَ الن‬
َ ‫ط‬َ ‫ط ۡوا فِى ۡاليَ ٰتمٰ ى فَا ْن ِك ُح ۡوا َما‬
ُ ‫َوا ِۡن خِ ۡفت ُ ۡم ا َ اَّل ت ُ ۡق ِس‬
ٓ
﴾4:3﴿ ؕ‫َملَـك َۡت ا َ ۡي َمانُ ُك ۡمؕ ٰذ لِكَ ا َ ۡد ٰنى ا َ اَّل تَعُ ۡولُ ۡوا‬

(4:3)” If you fear that you might not treat the orphans justly, then marry the women that seem
good to you: two, or three, or four.4 If you fear that you will not be able to treat them justly, then
marry (only) one,5 or marry from among those whom your right hands possess.6 This will make
it more likely that you will avoid injustice”.
This command of Almighty Allah has reason for polygamy as to help and tae care of orphan girls
with a condition that the husband must treat the fairly if he does not fulfill such condition he is not
allowed to remarry.

as the ayah revealed Prophet Muhammad (S.A.W.W) declared that anyone having more than four
wives should divorce them and many of the Companions having more than four wives reduce the
number to four by divorcing them .

Polygamy and Muslim Family laws

Pakistan is constitutionally declared Islamic republic state which was established in order to
protect the Muslims and their religious interest . the state promised to make laws according to
Islamic principles. To achieve this purpose the government of Pakistan apply Muslim Personal
Law to its Muslim citizens and the book of Sir Din shah Fardunji Mullah, titled as Principles of
Muhammadan Law is followed by the legal system of Pakistan but some of them favour this book
as authentic source but now mostly it is criticized that the Mulla’s book on this sphere is not a
complete and authentic source by giving reasons as some time Mulla’s book fall short of bringing
out complexity of Islamic law and Islamic law has also most authentic sources for its
implementation , e.g Qur'an, Sunnah and other secondary sources as well but in spite of these
arguments it is in application throughout Pakistan . Mulla’s book on Muslim Personal Law
discussed Polygamy under section 244 as

244. Number of wives:

“A Muslim may have as many as four wives at the same time, but not more. If he marries a fifth
wife when he has already four, the marriage is not void,but merely irregular”.

As we can see that Mulla’s book on Muslim personal does not impose any restriction over such
rule or mentioned about it in detailed and so as matter of importance it may be fined in Pakistan’s
enacted law named as Muslim Family Laws Ordinance 1961.

Polygamy under Muslim Family Law Ordinance 1961

The law of Polygamy is discussed in detail under section 6 of

(1) No man, during the subsistence of an existing marriage, shall except with the previous
permission in writing of the Arbitration Council, contract another marriage, nor shall any such
marriage contracted without such permission be registered under this Ordinance.

(2) An application for permission under Sub-section (1) shall be submitted to the Chairman in the
prescribed manner together with the prescribed fee, and shall state reasons for the proposed
marriage, and whether the consent of existing wife or wives has been obtained thereto.

(3) On receipt of the application under Sub-section (3), Chairman shall ask the applicant and his
existing wife or wives each 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.

(4) In deciding the application the Arbitration Council shall record its reasons for the decision and
any party may, in the prescribed manner, within the prescribed period, and on payment of the
prescribed fee, prefer an application for revision, to the Collector concerned and his decision shall
be final and shall not be called in question in any Court.

(5) Any man who contracts another marriage without the permission of the Arbitration Council
shall,(a) pay immediately the entire amount of the dower whether prompt or deferred, due to the
existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land
revenue; and

(b) on conviction upon complaint be punishable with the simple imprisonment which may extend
to one year, or with fine which may extend to five thousand rupees, or with both.

From above section we cannot make an objection that MFLO 1961 as to prohibiting polygamy
which is lawful under Islam making it unlawful because it has following reasons behind it.

 Polygamy is a permissible act not a command .

As Ayah 3 of Surah Al Nisa (mentioned above)make it clear a person can remarry if he

maintain his wives with just and there is no type of compulsory obligation is found in any
verse of Qur'an.
  Object of polygamy in Islam

The main object which may be found in Islam is to protect the orphan girls and widows. As
for the object required to remarry in Pakistan he has to be take permission of Arbitration
council which in turns required express consent of first wife .

 To protect the rights of existing wives

One main reason to prohibit polygamy under this Ordinance is to protect the rights of
existing wife or wives as it is the first condition of polygamy in Islam to treat the wives with
just .

 Validity of marriage

The MFLO does not say that if marriage is not permitted by the Arbitration Council it will
be illegal or void but it only makes the husband liable to pay the entire amount of existing wives
and he may be imprisoned for one year and have to pay 5,000 as fine. Despite these penalties
marriage itself remains valid .

Law of polygamy and Ulama

MFLO 1961 never carried consensus among the Ulama as the considered it against the Islam and
they argue upon the rule “to take permission of existing wife and that the Qur’anic verses does not
constitute a clear order to prohibit the polygamy .” On other side many scholars including Syed
Abu Al Maududi have favoured the contents of MFLO and of the opinion that the state must do
legislation for this matter .

Suggestions and amendments to law of Polygamy

Every law is in need to be changed according to the current needs of people concerned, the rule of
polygamy is made in 1961 and have not amended ever . some suggestion were made to amend it
in order to make its implementation more effective which are not accepted by legislation.

 The Muslim Family Laws (Amendment) Bill 2010

Bill was presented by the female MNA suggested changes in current MFLO provisions which
included suggestion for Polygamy also . The bill provided for that a husband must provide
medical evidence if he seeks permission for second marriage on grounds that his wife is unable to
fulfill his sexual desires. But it was not passed by the parliament .

 Suggestion of Islamic Ideology Council 2014

Mualana Muhammad khan Sherani while Chairing the IIC declared that a man does not require
permission of his existing wife to marry second time because it is an UN-Islamic rule and
suggested that government should amend the MFLO 1961 but contrary to this suggestion Federal
Shariat Court in 2000 clearly stated that said provisions was not in violation of Islam .

 Case Ayesha Bibi Vs Shahzad Saqib 2017

This case is consider as landmark judgement in history of polygamy law, which is decided by
Judicial Magistrate Ali Jawwad Naqvi of Lahore lower court .In 2015 Ayesha Bibi file a petition
against her husband Shahzad Saqib marrying for the second time without her permission and she
had argued in her petition “to get married without your first wife’s permission is breaking the
law”. Court rejected the argument of her husband that he did not need her permission because his
religion allowed him four marriages . It was held that marrying for second time without existing
wife’s consent is violation of law and Shahzad is liable to six month jail and to pay 20,000 rupees
as a fine.

Consent of wife in Islam

Consent of existing wife for the purpose of second marriage is not found in Islam and MFLO rule
of polygamy is always criticized on such point. According to a prominent Saudi lecturer and
author Shaikh M.S Al Munajjid “if a man is able to take a second wife, physically and financially
and he can treat both wives in a just manner,and he wants to, then he is allowed to do something
to Islam”

. According to Standing Committee for issuing Fatwa “

Conclusion

From the above discussion I am quite clear about the Islamic concept of polygamy and MFLO
1961’s concept of polygamy so to conclude my discussion I can say that existing law of Pakistan
relating to polygamy is somehow relevant to those of Islam . I have following reasons

 Concept of polygamy in MFLO is consistence to Islam that it prohibiting the polygamy

on the ground where a man cannot maintain his wives fairly .
  MFLO also prohibits polygamy because it is a permissible thing but not a command of
Islam . in Islam it is also a man’s discretion whether to remarry or not

In spite of these reasons I have a objection over the rule of polygamy in MFLO as husband
is required to take the permission of existing wife, during the whole study of this topic I have
nothing found about this restriction in Islam . the only restriction which is imposed by the
Islam is just and fair treatment towards wives and person’s financial , physical and mental
capacity and also limitation to number of wives.

So I can say that the law of polygamy under the MFLO is to some extent consisting to Islam
but not as a whole . The condition of consent of existing wife is not a reasonable one because
in Pakistan women are obedient to their husbands and follow commands of their husbands
and such obedience is considered as mark of respect for both spouse in our country and if
wife does not fulfill the commands of her husband than he is also justified in committing
violence to her, so if a husband wants to remarry he can get permission of existing wife by
any mean e.g to give her threat of divorce or deny to maintain her or treat her disrespectfully
or even to use force . And i have also objection over too little amount of fine . if government
was to restrict such thing, then have to made effective measures as to increase the amount of
fine and declare it as a complete offence because getting consent of existing wife is not a big
issue specially in rural areas of Pakistan such as in India under Muslim law polygamy is
completely banned and violation of such law treats under Indian Penal Code. So as serious
matter of family law the law making of it must have to be serious.