POLYGAMY
AND POLYANDRY (A PRECAUTION NOTE BY SC)
By:
MUHAMMAD IKRAM
LLM (Authority)
Associate Professor (V) College of Law (GCUF)
149 District Courts, Faisalabad.
One of the purposes of research is to bring together
all relevant material to provide a solution. This view was expressed by
Professor Ghulam Ghous, a renowned scholar while teaching LLM classes,
presently serving as Registrar, Govt. College University, Faisalabad.
Both these issues relate to matrimonial affairs, one relating to an offence
being committed by the husband and the other by the wife. Second marriage
without seeking permission from the first wife is an offence provided by family
laws whereas offence of polyandry is an offence punishable under Section 494
PPC. Both the offences, whether it be polygamy or polyandry carry behind it
Islamic concepts.
“Marriage
(Nikkah) is defined to be a contract which has for its objects the procreation
and the legalizing of children”[1] Initially
marriage was regarded as a Civil
Contract. But subsequently the Federal Shariat Court interpreted Nikkah as Social Contract. For the purposes of as
to what the social contract means it is a question to be decided by a judicial
forum. Social contract in legal common parlance with reference to societal
matters means contract in terms of societal issues or matters relating thereto.[2] The duration of
subsistence of marriage is a matter of uncertainty. It may be for a day, couple
of days or lifelong.
POLYGAMY:
“No
man during the subsistence of an existing marriage shall, except with the
previous permission in writing of an Arbitration Council, contract another marriage,
nor shall any such marriage contracted without such permission be registered
under this Ordinance”.[3] The offence of
polygamy was challenged before Federal Shariat Court, wherein the court held
that the provisions of section 6 of Muslim Family Laws Ordinance 1961 did not
violate any of the injunctions of Islam.[4] It is generally
opined that there are two major causes of polygamy “apart from others”,
i.e. denovo
sexual indulgence and the other by necessity. Misbehavior of wife is also a
contributing factor.
In a
most recent case, the Magistrate
convicted and sentenced the accused husband in a polygamy case, which was upheld even by the Supreme Court. It has
struck a note of warning for all those husbands, who intend to contract a
second marriage, without seeking permission from their first wife/s.[5] Supreme Court
has provided a food for thought and awareness for all those intending to commit
the act of polygamy.[6]
There
is no cavil with the proposition that the Supreme Court vide its judgment in
the matter of interpretation has held that the Supreme Court has the right to
reinterpret the Holy Quran, in a way different from that adopted by the earlier
jurists and Imams.[7] The Holy Quran, on the point of justice
between the wives, has made it clear, that IT IS VERY DIFFICULT TO FULFILL THIS
CONDITION.[8] To my mind and with the concurrence of consultees,
the supreme court hints at better choice of words to
provide more conceptual clarity. Choice of words and clarity of mind are
concomitant.[9]
For
the complaining wife to file a complaint before the Magistrate,
the legal requirement was to seek it to be forwarded to a Magistrate, the act
was to be performed by the concerned Union Council if no such forum was
available, then by its equivalent Municipal Body. The Supreme Court has
streamlined the process of submission of complaint even by an aggrieved as it
has held that it would not be appropriate to impose any particular mode of
submission of complaints in this regard.[10]
In
Muslim Family Laws Ordinance 1961 an amendment
vide Section 6 Sub-Section 5(b), has been made. “On conviction upon complaint
accused be punishable with the simple imprisonment, which may extend to One
Year and with fine of Five Hundred Thousand Rupees.”[11] This piece of
legislation by the married women folk appears to be the fulfillment of their
long standing desire. It is not clear as to what out of recovered fine shall be
payable to the aggrieved?
Further
principles laid down by the Supreme Court that obtaining consent of first wife
is one fact but its confirmation as a safeguard to the fact of contracting
second marriage by the husband, the confirmatory forum is Arbitration Council
as detailed in the relevant law. The wisdom behind it is to keep intact the
consent given by the first wife. The right to file a complaint is available to
the first, second wife and her mother as both fall within the definition of
aggrieved party.[12]
POLYANDRY: (PLURALITY OF
HUSBANDS)
The offence of
polyandry is based on a legal Islamic concept relating to marriage by a wife
during the subsistence of her marriage with her husband. “It is not lawful for
a Muslim woman to have more than one husband at the same time. A marriage with
a woman who has her husband alive and who has not been divorced by him, is void”.[13] If the offence
is committed by a wife then the status of such a marriage is void. If such a
marriage being unlawful is on the initiative of another man, even then it shall
be void. Such an offence is punished with imprisonment which may extend to
seven years and liable to fine as well.[14] Any intrigue
(Hidden Sexual Relationship) by a married woman, whose marriage is still
intact, does not fall within this offence.
The
former husband, who was alive but marriage inviting mischief was solemnized. On
the complaint of former husband, against his wife and another man with whom she
contracted marriage, during the subsistence of her first marriage, both the
accused were convicted and sentenced to two years imprisonment and fine of
Rs.2000/- each. Criminal revision filed, was dismissed. Both the accused sought
leave to appeal before Supreme Court against the dismissal of their joint
criminal revision, which was granted. The sentence of Mst. Rehana Khanam was
maintained, however it was reduced to one already undergone, whereas her second
husband Malik Javid was acquitted by extending him a benefit of doubt.[15]
Non-disclosure by a woman of the fact of
her status being previously married also disentitles her to a discretionary
relief under Article 199 of the Constitution of Islamic Republic of Pakistan.[16]
Both the defining legal terms polygamy and polyandry are also coverable by a
single legal terminology Bigamy. Section 494 PPC appears to be applicable both
to husband and wife.
CONCLUSION:
Proposed
Marriage whether it be arranged or love needs a careful consideration. The
concept of engagement at least for a
period of six months shall be helpful to guess intellectual harmony between the
families and ratio of divorce shall definitely decrease. Mere material
considerations should never prevail. Marriage out of caste, race, clan and
family on basis of equality and mutual respect smells longevity, leads to
egalitarian society formation and cure & free medication of inheritable
family deceases. On the other hand, marriage of convenience must be avoided.
Trend of intrigue must be controlled and curbed.
CONSULTEES:
1. Dr. Aamir Abbas, Teacher Incharge, College of Law, GCUF
2. Mr. Farooq Ahsan, DPP Faisalabad.
3. Mr. Muhammad Saqib Hameed, Advocate High Court. LLM (ULC).
4. Mr. Dilbar Hussain, District Attorney Faisalabad.
[1]. Section 239 Page 329,
Mullah’s Muhammadan Law, by Sir DF Mullah 2004, Mansoor Book House Lahore.
[2]. (SOCIAL CONTRACT DEFINITION to be
traced).
[3]. Section 6 (1) of Muslim
Family Laws Ordinance 1961.
[4]. (See Paragraphs 88 to94, Pages 56-57 ) vide PLD 2000 FSC 1 ( Allahrakha V. Federation of
Pakistan).
[5]. PLJ 2017 SC 351
(Ishtiaq Ahmad V. The State).
[6]. Ibid.
[7]. PLD 1980 SC 160.
[8]. Al-Nisa, Verse No.3.
[9]. Ikram’s View.
[10]. PLJ 2017 SC 351 (Ishtiaq
Ahmad V. State).
[11]. Muslim Family Laws
Amendment Act 2015.
[12]. PLD 1991 SC 1074.
(Faheem ud Din V. Sabeeha Begum).
[13]. Section 245, Page 334
Mullah’s Muhammadan Law, by Sir DF Mullah 2004, Mansoor Book House Lahore.
[14]. Section 494 Pakistan
Penal Code.
[15]. 1987 SCMR 518 (Malik Javid Ali & Another V. Abdul Qadir & another).
[16]. 2009 MLD 373.