Pakistani Law and Procedure of Second Marriage
The Muslim Family Laws Ordinance, 1961 prescribed the law about polygamy, permission to second marriage and complaints
- 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.
- 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.
- 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.
- 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.
- 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.
The relevant Sections of the Muslim Family Laws Ordinance, about which the controversy has emerged clearly state that every man during the subsistence of existing marriage shall require prior permission in writing from the Arbitration Council for marrying a second or third time, nor shall any marriage contracted without permission be registered under the Ordinance. The MFLO requires that request for permission be submitted to the Arbitration Council Chairman on a duly prescribed form with a defined fee, and shall also state the reasons for acquiring permission for contracting a second marriage. The Ordinance also requires that at the time of acquiring permission from the Chairman of Arbitration Council it shall also be mentioned whether permission from the existing wife/wives has been obtained thereof. On the receipt of application for permission the chairman of the union council shall ask the applicant and his existing wives or wife 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. Section six of the Ordinance also provides that any man who contracts second or third marriages without the permission of the Arbitration Council shall pay the whole amount or dowry whether deferred or prompt, due to the existing wife or wives. If a man fails to acquire permission he may be held to undergo not less than one year imprisonment or a fine that may be up to Rs 5,000 or both. On section six the FSC in its judgment ruled, “Since this section has not expressly declared the subsequent marriage as illegal and has merely prescribed a procedure to be followed for the subsequent marriages and punishment for its non-observance, we find that the spirit of this section is reformative only as it has prescribed a corrective measure for prevention of injustice to the existing wife or wives.” The FSC also observed in its judgment that no doubt men can have more than one wife but the very ayat (verse) which gives permission also prescribes a condition of adl (justice) and the Quran 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.
Maulana Muhammad Khan Sherani, chairing the Council of Islamic Ideology (CII) recently declared that a man does not require his existing wife’s permission to marry a second time. If I am not exaggerating, the CII has made the second marriage too easy for men. As per the findings of the CII, Sharia allows men to have more than one wife and it further demands that the government of the time should amend the Muslim Family Laws Ordinance, 1961 (MFLO). Section six of the Ordinance stipulates that, “If a person wants to contract a second marriage, while his first marriage exists, he shall have to acquire permission from the Arbitration Council and marriage without such permission shall not be registered.” Contrary to this finding, the Federal Shariat Court (FSC) in June 2000 expressly stated that the said provision was not in violation of Islamic injunctions. Both FSC and CII are two constitutional forums interpreting laws in the light of Islamic injunctions and issuing declarations in this regard. Under the Constitution, the CII Chairman is a decision making authority and he can overrule the wishes of all members if he chooses to. The decisions of the CII are not binding on parliament but the members of parliament should consider them as guiding principles around which policy is framed. On the other hand now Supreme court of Pakistan has upheld the imprisonment of one year for the person / accused contracting second marriage without permission.
Can Husband Contract Second Marriage Where First Wife Refuse Permission To Husband?
YES, where First Wife refuses to allow permission to Husband to contract second marriage. Application can be given by husband to Union Council for allowing him permission to contract second marriage. Can Union Council Refuse To Give Permission To Husband To Contract Second Marriage? YES, Union Council is mandated under the law to examine the facts and circumstances under which husband is contracting second marriage. Only where the Union Council deems that second marriage is necessary and just, can allow husband to contract second marriage.
What Are The Grounds For Husband To Obtain Permission for Second Marriage from Union Council?
It is hardly witnessed in our society that First wife give permission to husband to contract second marriage. If husband deems that it is necessary to enter into second marriage, he can give application to Union Council to allow him permission for Polygamy. Under the law, only where Chairman Union Council is satisfied that Second Marriage is necessary and just may allow husband permission to contract second marriage. Husband is therefore, required to provide the reasons in his application that render it necessary for him to contract Second Marriage.
Some of the Grounds where Permission for Second Marriage is allowed are as follow:
- Wife unable to give birth to baby (Sterility)
- First Wife not performing her conjugal obligation
- First wife has become Physically or mental unfit to perform matrimonial obligation
- Husband is financially sound to maintain both wives and not defaulted in performing maintenance to first wife.
- Any other reason that make it necessary for husband to contract second marriage
Documents Required for issuance of Permission for Second Marriage
Following are the documents we require to apply and obtain permission for contracting second marriage in Pakistan:
• Copy of CNIC of Husband
• Copy of CNIC of First Wife
• Copy of CNIC of proposed Wife
• Copy of Nikahnama or Marriage Certificate issued by NADRA