Second marriage: whose permission required, the HC verdict, and the relevant law

Referring to a High Court verdict, news articles have been published in various media outlets with headlines such as ‘Wife’s permission is not required for a second marriage’. This has created confusion among the public.

Against this backdrop, the issue has once again come under discussion. When a marriage is still subsisting, that is when there is an existing wife, whose permission is required for another marriage? Which legal provision was challenged through the writ petition, what did the High Court rule, and what does the law actually say? Let us look for the answers.

Section 6 of the Muslim Family Laws Ordinance, 1961, deals with polygamy and the related procedure. According to this provision, no person may contract another marriage during the subsistence of an existing marriage without the prior written permission of the Arbitration Council.

Apart from this, any marriage contracted without such permission cannot be registered under the Muslim Marriages and Divorces (Registration) Act, 1974.

In December 2021, Supreme Court lawyer Ishrat Hasan filed a writ petition in the High Court challenging the validity of Section 6 of the Muslim Family Laws Ordinance, 1961. The petitioner argued that Muslim family law recognises a man’s right to have more than one wife, but the law allows polygamy without ensuring justice and equal rights for the wives.

While multiple marriages are permitted with the approval of the Arbitration Council, the council lacks the authority to verify issues such as maintenance of the wife and other evidence, or to decide matters relating to subsistence allowance. As a result, women’s constitutional rights are undermined, said the petitioner.

Following a preliminary hearing, the High Court issued a rule on 5 January 2022. The rule asked why the procedure of granting permission for another marriage during the subsistence of an existing one, without ensuring equal rights among wives, should not be declared without lawful authority.

It also asked why directives should not be issued to formulate guidelines on polygamy for greater protection of family life.

After the final hearing, the High Court discharged the rule on 20 August last year. The writ petitioner Ishrat Hasan received the full verdict in December. The High Court verdict held that the process for granting permission for another marriage under Section 6 of the Muslim Family Laws Ordinance is neither discriminatory nor arbitrary.

It is stated in the verdict that the law does not curtail or take away the rights of any party, men or women. Nor does it impose any obstacle to the Arbitration Council in granting or refusing permission for polygamy. The Arbitration Council cannot impose any unilateral decision on any party regarding marriage.

The concluding part of the judgment said that Section 6 of the Muslim Family Laws Ordinance, 1961, does not violate any fundamental rights of women citizens of the country in the process of granting permission for polygamy. The arguments advanced in support of the rule lack substance. The rule was therefore discharged.

Under Section 6 (1) of the Muslim Family Laws Ordinance, 1961, if a person’s marriage is still subsisting, he may not enter into another marriage without the written permission of the Arbitration Council, nor may such a marriage be registered under the Muslim Marriages and Divorces (Registration) Act, 1974, without that permission.

Under subsection (2) 1, an application for permission must be submitted to the chairman at the prescribed office along with the prescribed fee. The application must state the reasons for the proposed marriage and whether the consent of the existing wife or wives has been obtained.

Under subsection (3) 2, after receiving the application, the chairman will ask the applicant and each existing wife to nominate one representative. The Arbitration Council so constituted may grant the application if it considers the proposed marriage to be necessary and just, subject to such conditions as it deems reasonable.

Under subsection (4), the Arbitration Council must record the reasons for its decision. Within a specified period, any party may apply for reconsideration to the relevant assistant judge at the prescribed office upon payment of the prescribed fee. The decision of the assistant judge shall be final and may not be questioned in any court.

Subsection 5 of Section 6 sets out the consequences if a person contracts another marriage without the permission of the Arbitration Council. Under clause 5 (a), the entire amount of prompt and deferred dower payable to the existing wife or wives becomes immediately payable, and if not paid, it may be recovered as arrears of land revenue.

Under clause 5 (b), if found guilty upon complaint, the offender may be punished with imprisonment for up to one year, or a fine of up to 10,000 taka, or both.

Lawyer Ishrat Hasan told Prothom Alo that under Section 494 of the Penal Code 1860, if the offence of contracting another marriage was proven, the husband or wife could be punished with up to seven years’ imprisonment.

Later in 1961, the Muslim Family Laws Ordinance was enacted. Under this ordinance, if a husband contracts a second marriage without the permission of the Arbitration Council, he may face up to one year’s imprisonment and a fine of up to 10,000 taka. The law also specifies how the permission must be sought, including prescribed forms and fees.

She said the Arbitration Council is formed with the chairman and two members, and it hears the wife or wives of the person concerned. The council may grant permission or refuse it. This provision has existed in the law from the beginning the High Court did not introduce anything new.

The writ petition challenged the very provision on polygamy under Section 6, arguing that it is inappropriate for the Arbitration Council to hold such power, as the chairman may be biased.

The petition sought a requirement that a wife’s consent be mandatory and that new guidelines be formulated. It also pointed out that there are no guidelines on ensuring equal rights for wives, and that the council lacks the capacity to assess whether a person is physically, mentally, and financially capable of entering into multiple marriages, she added.

Ishrat Hasan further said, “For many years, some people wrongly interpreted the law by claiming that the first wife’s permission is required for a second marriage. In fact, the law never made the first wife’s consent mandatory. What has always been required is the permission of the Arbitration Council.”

“On 20 August last year, the High Court discharged the rule. As a result, the legal provision remains in force. That means a second marriage may take place only after obtaining the Arbitration Council’s permission, just as it was before, and still is now,” she added.

The lawyer mentioned that an appeal will be filed with the Appellate Division against the High Court’s verdict.