Polygamy: Lawful Limits or Religious Rights?

Written by Aliba Tariq “When rights become tools of injustice, they must be reexamined.” What happens when divine commandments collide wit...

Written by Aliba Tariq

“When rights become tools of injustice, they must be reexamined.”

What happens when divine commandments collide with state law? When religious freedom confronts legal accountability? In Pakistan, this clash plays out most vividly in the debate over polygamy, a practice permitted in Islam, yet increasingly regulated by modern legal frameworks. At the heart of this debate lies a provocative question: Is the right to polygamy an unchallengeable religious liberty, or must it submit to the rule of law in the name of justice and equality?

Polygamy, in its simplest definition, refers to more than one marriage at the same time. In the context of Islamic law specifically, it allowed Muslim men to marry four women at the same time, but subject to certain conditions like equality and justice. In a society where tradition, religion and modern legal frameworks often intersect in complex ways, the issue of polygamy in Pakistan continues to ignite intense debate. The recent Supreme Court ruling upholding the conviction of a man who contracted a second marriage without the requisite permission under Section 6 of the Muslim Family Laws Ordinance, 1961, has stirred national discourse. This verdict, delivered by Justice Qazi Faez Isa, reaffirmed the legality of requiring state-sanctioned permission for polygamous marriages, underlining the importance of justice and equity between spouses. The ruling has faced stark opposition from the Council of Islamic Ideology (CII), which considers such legal restrictions on polygamy un-Islamic. Before jumping into this battle, we have to look:

Is the right of a man to marry more than one woman absolute or restricted?

Allah granted the right to marry more than one woman at the same time in the Quran, Surah Nisa, verse 4:3.

“Marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly with them, then only one.”

This verse shows that the right of man to marry is not absolute. There are certain limitations on it under Islamic law. The very first is “Adl”, which means justice. Then again, the question arises who will watch and determine that the person is doing justice and keeping equality between all his wives? The answer to this question is given by the Supreme Court in its verdict in Criminal Petition No. 1252 of 2016. In which the court held that Islam did not give an unconditional right of polygamy to men, but places a significant precondition: justice (Adl). The role of the Arbitration Council, therefore, is to ensure this Quranic prerequisite is fulfilled. The Federal Shariat Court (FSC), in Allah Rakha v Federation of Pakistan (PLD 2000 FSC 1), had earlier ruled in the same vein, confirming that Section 6 aligns with Islamic injunctions as it operationalises the Quranic command for justice. So it means section 6 of MFLO is the point of controversy between the Supreme Court and the Council of Islamic Ideology. Now, again question arises what is in section 6 of MFLO? Section 6 of the Muslim Family Laws Ordinance, 1961 requires a man to obtain prior written permission from the Arbitration Council before contracting a second marriage during the subsistence of an existing marriage. Violation of this provision results in penalties, including imprisonment and fines.

Now, considering the view of the Supreme Court, everyone thinks it is justified. But this debate does not end here Council of Islamic Ideology jumped into this battlefield by opposing the Supreme Court decision. According to the CII’s interpretation, the requirement of permission from an Arbitration Council undermines a man’s religious freedom and personal autonomy in family matters. Their concern extends beyond legalism into the realm of identity politics, arguing that this verdict represents Pakistan’s gradual detachment from its Islamic foundations under the pretext of legal modernity. Yet, critics of the CII argue that it selectively applies religious texts while ignoring verses that emphasise justice, equity and compassion in marital relations. For example, the Quran in Surah Ar-Rum (30:21) describes marriage as a bond of “tranquillity, love and mercy,” values that are jeopardised when a second marriage is undertaken without consent or disclosure.

He has created mates for you from your kind that you may find peace in them, and He has set between you love and mercy.”

In Surah Nisa verse 4:129, Allah commanded to do Adl but also states that man cannot do justice.

“You will never be able to maintain ˹emotional˺ justice between your wives—no matter how keen you are. So do not incline towards one, leaving the other in suspense. And if you do what is right and are mindful ˹of Allah˺, surely Allah is all-Forgiving, Most Merciful.”

The state's imposition of procedural safeguards, such as Arbitration Council approval, is not a restriction on polygamy itself but a mechanism to uphold these Quranic values in practical life. While looking at the whole debate, the Supreme Court's whole decision is based on the Quranic and Islamic Law principle of “Justice” Adl. Justice and equality are prerequisites for polygamy. But again, the question arises:

If a person violates the law and commits polygamy without the prior permission of the first wife and the Arbitration Council, what is the legal status of the second marriage? Whether it is void, voidable or valid?

Though the pre-conditions for a polygamous marriage are set in place, the law does not declare the second marriage contracted without the permission of the Arbitration Council as invalid. However, the husband who enters into such a marriage, under section 6 (5) (a), shall have to:

“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.”

Moreover, under section 6 (5) (b) of the MFLO, such a violation of law is also “punishable with simple imprisonment which may extend to one year, or with a fine which may extend to five thousand rupees, or with both.” It means the purpose of section 6 is not to invalidate the second marriage without the consent of the wife and the Arbitration council, but to create deterrence in society.

Surveys on polygamy in Pakistan reveal a society in transition. According to a Gallup Pakistan survey conducted in 2022, more than 70 per cent of Pakistani women opposed polygamy, while 55 per cent of men agreed that a wife’s permission should be required for a second marriage. These findings reflect a growing awareness among the public about the need for fairness, transparency and justice in marital relationships.

In conclusion, polygamy under Islamic law is not an unfettered right but one that comes with strict conditions of justice and fairness. The Supreme Court's ruling upholding Section 6 of the MFLO is not a deviation from Islamic principles but a reinforcement of them. While the Council of Islamic Ideology views this requirement as a breach of religious autonomy, it arguably overlooks the Quran’s emphasis on Adl (justice) and emotional equity. To bridge the gap between faith and law, the state should promote public awareness about the Quranic prerequisites for polygamy, ensure that the Arbitration Council’s procedures are transparent and accessible, and encourage dialogue between religious and legal institutions to develop a unified, just framework. Ultimately, the law’s procedural safeguards are not meant to restrict religion but to uphold its highest moral values, particularly protecting women from arbitrary and unjust treatment.