Consent of existing wife in polygamous marriage: A myth or statutory requirement?

A myth persists among the mainstream population that consent of the existing wife is a mandatory statutory requirement for the remarriage of the husband. Whereas, the concerned legislation Muslim Family Law Ordinance (MFLO), 1961 states otherwise. The legislation does not make the consent of one of the main stakeholders in such marriages, i.e. existing wives – a compulsory prerequisite.

Section 6(1) of the MFLO embodies the basic law on polygamy, which lays down that no man shall contract polygamous marriage without the previous written permission of the Arbitration Council. It also bars registration of a polygamous marriage solemnised without the approval of the Council. Section 6(2) divulges about submission of an application to the Chairman for getting permission. The application shall contain the reason behind such marriage, and whether the existing wife or wives has/have granted consent.

The power of granting such permission is a discretionary power of the Council. Section 6(3) embodies that permission will be granted only if the proposed marriage is "necessary and just." Against the decision of the Council, an appeal in the form of revision shall lie to the concerned Assistant Judge and his decision shall be final. Rule 15 of the Muslim Family Rules, 1961 mentions laying down a concise statement of the grounds on which the new marriage is alleged to be "just and necessary." Rule 14 sketches out a guideline for gauging the justification of such marriage. Some mentionable factors are fertility, physical infirmity, physical incapability for conjugal relations, insanity, and so on. In contravention to the statutory procedures, any dower whether prompt or deferred needs to be paid immediately to the existing wives. Further criminal sanctions are also mentioned in section 6(5). However, non-compliance with the aforesaid statutory requirements does not impact the validity of marriage.

In Abul Basher v Nurun Nabi 39 DLR (1987) 333, a question arose whether the existing wife's consent was a prerequisite for solemnising a second marriage. The court held that the legislative intent of section 6 was to curb the practice of polygamy and to condone it in reasonable scenarios. Section 6(5)(b) penalises polygamous marriage without the previous written approbation of the Arbitration Council but remains silent about the consent of the existing wife. Hence, the legal provisions and judicial precedents make it clear that the consent of the first wife is not a sine qua non for the husband to solemnise remarriage.

It is pertinent to mention that the approval of existing wife might expedite the permission granting procedure from the Council. But the nuances behind such consent should be scrutinised. In assessing the consent given by the existing wife, patriarchal connotations should be taken into consideration. Societal forces and dynamics are too overwhelming for most women in Bangladesh to deter polygamy and many women succumb to the polygamous marriage for the fear of becoming destitute.

Given the narrow ambit of the existing wife's role in such marriages, very few redress exists for women. Nikahnama is a potent weapon in such a situation. Since Shariah allows polygamy, a wife cannot insert stipulations prohibiting her husband from contracting another marriage. Such a stipulation is rendered void and does not fall under the purview of special conditions (clause 17 of Nikahnama).  But she can definitely resort to Talaq-e-Tafweez under clause 18. At the time of marriage, the wife can insert a clause that in the event of a remarriage, she can divorce her husband. Delegation of such right may check the imbalance of power in marriage to a little extent. Moreover, Section 2(VIII)(f) the Dissolution of Muslim Marriage Act, 1939 puts forth the remarriage of the husband as a valid ground for the wife to seek divorce.  

The High Court Division in Jesmin Sultana v Mohammad Elias 17 BLD (1997) 4 recommended the deletion of section 6 and substitution of a section prohibiting polygamy. The Court referred to the Quranic precondition of "to be able to deal justly" among wives for polygamy as incapable of fulfillment in present socio-economic scenario. However, the Appellate Division declared the judgment impugned.

Polygamy has always been an issue of debate between fundamentalists and modernists. The provisions of section 6 is essentially a compromise between both the views. David Pearl and Werner Menski remark that in view of South Asian social and religious dynamics, the complete interdiction of polygamy remains elusive. But it is high time to include the major stakeholders in the picture. It is imperative to make the existing wife a necessary party in the arbitration proceedings. Mere acquiescence of the existing wife in this patriarchal society with deep-rooted stigma of Talaq should not be drawn out as consent.

The Writer is an Official Contributor, Law Desk, The Daily Star.