Is Polygamy legal in Pakistan?
Second marriage law in Pakistan.
What is the punishment for a second marriage in Pakistan?
Can we have a second marriage without divorce in Pakistan?
Before we proceed to explain this topic, it would be appropriate to reproduce Section 6 of the Muslim Family Law Ordinance which deals with the permission in writing from Arbitration Council for contracting second marriage.
A common question is being asked now a days that whether S.6 of Muslim Family Laws Ordinance, 1961 was against the Injunctions of Islam?
The Federal Shariat Court held the case titled as ALLAH RAKHA Vs. FEDERATION OF PAKISTAN reffered as “PLD 2000 Federal Shariat Court 1” that the provisions of section 6 does not violate any of the injunctions of Islam. The Federal Shariat Court observed that the third verse of surah an-nisa (wherein reference is made to polygamy) itself prescribes the precondition of (justice):
“…the very Ayat which gives this permission also prescribes a condition of ( ) and the Holy Qur’an 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.
Now section 6 of the Ordinance as framed, in no manner places any prohibition on having more than one wife. It only requires that the condition of ( ) prescribed by the Holy Qur’an itself should be satisfied by the male who wants to have more than one wife. The provision for constituting an Arbitration Council, therefore, cannot in itself be said to be violative of Injunctions of Qur’an as only a procedure has been prescribed how the Quranic Verse will be observed in its totality with reference to the condition of ( ) placed in the Verse itself.”
The Federal Shariat Court also considered the components of a nikah (marriage in Islam), the rights and obligations of a husband and wife, the love and affection between them and how disputes could arise if the husband were to take another wife:
“…[nikah] is a social contract of very high status and conjoins a couple and the spouses in a sacred association,
with mutual rights and obligations, to be performed in a spirit of love and affection that should last life long, as envisaged by Ayat No. 21 of Surah No. 30, Ayah No.228 of Sura Baqara and Ayah No. 19 of Surah-e-Nisa. Therefore, anything, big or small, that may provide a cause for a breach in mutual love and trust is viewed seriously by Islamic Injunctions. In such situations the Holy Qur’an enjoins upon all Muslims to take appropriate measures to save this sacred union from disruption. Reference in this connection may be made to Verse No. 35 of Surah Al-Nisa, already reproduced hereinabove. Since one of the reasons for such disputes may be the intention of the husband to contract a subsequent marriage of his choice… .”
Concealment by a husband of his previous marriage(s) or contracting another marriage with callous disregard of his wife may disrupt the love, tranquility and mercy ordained by Allah Almighty; “affection” is amongst the favours bestowed by the Almighty for which we need to “give thanks” (verse 78 of surah 16 an-nahl).
The magnitude of this affection is immeasurable; “He hath put affection between their hearts: not if thou hadst spent all that is in the earth, couldst thou have produced that affection, but Allah hath done it” (verse 63 of surah 8 Al-anfal).
Words of Almighty Allah constitute the verses of the Holy Quran and as such are of immense importance to believers; every effort must be made to adhere to them. Almighty Allah directs believers “to study” the Quran and those that do “are the ones that believe therein” (verse 121 of surah 2 al-baqarah).
The Almighty states that to dwell with one’s spouse in tranquility, love and mercy is amongst His “Signs (ayah) for those who reflect (tafakkur)” (verse 21 of surah 30 ar-rum), and, “do not treat Allah’s Signs as a jest” (verse 231 of surah 2 al-baqarah).
Husbands are also required to “deal justly” with their wives and to “live with them [wives] on a footing of kindness and equity” (verses 3 and 19 respectively of surah 4 an-nisa).
If a husband, without his wife’s permission or in secret, takes another wife, Can his dealing with the first wife be categorized just or is he maintaining the footing of kindness and equity? After issuing the warning that wives must be dealt with justly, Almighty Allah wants, “to prevent you [husbands] from doing injustice” by prescribing that in such cases “then only one [wife]” (verse 3 of surah 4 an-nisa).
Section 6 of the Ordinance seeks to prevent injustice being done then it conforms to Islamic injunctions as the said section is reformative and corrective in nature and for measures for prevention of injustice to the existing wife or wives. Arbitration Council is not empowered to make unlawful anything declared lawful by Islam. Nevertheless, the polygamy in Islam is no more or no less than that of a permissible act and has never been considered a command and therefore like any other matter made lawful in principle may become forbidden if it involves unlawful things or leads to unlawful consequences such as injustice.
Section 6 of the Muslim Family Laws Ordinance, 1961 is in consonance with the injunctions of Islam. The said provisions do not place any restriction to contract a second marriage, rather it only relates to seeking permission before entering into a second marriage in order to regulate the structure of society as a whole. Any deviation from the said provision might ensue a number of issues which would frustrate the fabric of relationship within society.
The ordinary stance in the society is that the court could not take cognizance of the offence on the complaint of the first wife if the Union Council would not itself complain to the court. It is actually not correct because Rule 21 of the West Pakistan Muslim Family Law Rules [Punjab] made under the Muslim Family Laws Ordinance, 1961 required the submission of complaint by an “aggrieved party”. Rule 21 reads as under;
“21. No court shall take cognizance of any offence under the Ordinance or these rules save on a complaint in writing by the Union Council, stating the fact constituting the offence.”
Wife is clearly an aggrieved party and can send a written complaint to the Magistrate or through the Administrator, Union Council. The rule did not stipulate whether the complaint is to be submitted to the Court by the wife herself or it may be routed through the office of the Chairman or the Union Council. It would not be appropriate to impose any particular mode of submission of complaints in such regard.
There is no cavil to the proposition that the complaint is filed under the special law i.e Muslim Family Laws Ordinance 1961 where no statutory provision is provided with regard to the right of appeal and such right cannot be supplemented by application since it is settled law that right of appeal cannot be availed unless it is conferred in a clear manner by some enactment or statute or the rules having the sanctity of some law.
Such right is to be specifically provided for and the same cannot arise by implication. Right of appeal is not a mere matter of procedure but is a vested right of a party from the commencement of the action in the court of first instance. Parties by agreement cannot confer jurisdiction upon a Court.
Right of an appeal depends upon the language as used in the statute and if the words of statute have precise and ordinary meaning. Order passed by any court irrespective of the fact whether it is an ordinary criminal court or Accountability statute. Right of appeal cannot be assumed unless expressly given by the statute.