Polygamy in Pakistan: A Comparative Legal and Religious Analysis

Abstract

This research article offers a critical examination of polygamy practice in Pakistan on both Sharia (Islamic Law) and Pakistani legislative law perspectives. The article discusses the Quranic source of polygamy, takes into consideration the moral and legal dimensions of its practice, and examines the Pakistani law to regulate it through the Muslim Family Laws Ordinance of 1961.  The sayings of Holy Prophet Muhammad (P.B.U.H.) and Fatwas issued by various Islamic scholars such as Ibn Taymiyyah and Ibn Qudama have contributed a vital role to understand basis of Polygamy and its moral conditions.Various landmark judicial judgments are examined to identify the de-facto application and social ramifications of the law. The article insists that although Sharia permits polygamy under stipulated conditions, Pakistani law responsibly imposes checks so that abuse could be prevented while ensuring justice within the framework of a contemporary legal system.

Keywords: polygamy, Pakistani law, Sharia, family law, Muslim Family Laws Ordinance

A Comparison of Legal, Religious, and Social Aspects

Introduction

Polygamy, or the condition of having two or more wives simultaneously, has been a cause of serious argument in Islamic nations. In Pakistan, a state where Islam greatly influences state legislation, polygamy is legal but controlled. This essay aims to explain why Sharia permits polygamy and how Pakistani legislation understands and manages it. Additionally, it aims to explore if the state legislation is in accord with Islamic beliefs and investigates the implications that come into play concerning women’s rights and social justice.

The Fatwas regarding Polygamy

Islamic scholars like Al-Zuhayli (n.d.) contend that polygamy has to be seen not as a natural right but as a conditional permission dependent upon the equitable treatment of wives. Prominent Islamic thinker Ibn Taymiyyah emphasized the need for justice between co-wives and said that the husband must deal with all of his wives justly, especially with regard to time, maintenance, and material needs. Preference or deprivation of the rights of one wife against the other constitutes a grave injustice and a gross violation of Islamic teachings.¹ Sub-chapters, it is systematically incorporated within the broader framework of the chapter on marriage (Kitab al-Nikah). The compiler of the collection, ʿAbd al-Rahman ibn Muhammad ibn Qasim al-Asimi, placed discussions on polygamy under the subheadings al-muharramat fi al-nikah (women prohibited for marriage) and al-qism bayn al-zawjat (division of rights among co-wives).² Imam ibn Qudamah al Maqdisi writes “ If a husband treats his wives with hatred, indifference, or injustice, the woman has the right to seek annulment (fasakh) from a judge (Qazi).³

Polygamy by different school of thoughts

There are some situations according to the Mālikī, Shīʿa, and Ḥanafī schools of thought under which marriage is considered a obligatory act (farḍ). One of those situations is when an individual is faced with strong and uncontrollable sex desires and thus finds it difficult to abstain from having illicit sex (zinā). In this situation, marriage is considered necessary in order to maintain chastity. It is in accordance with Ḥanafī view that there is a further condition making marriage compulsory, i.e., the ability to support a spouse materially; i.e., the person should have the means to ensure sustenance and the payment of the mahr (dower). When a person possesses very little wealth but is worried about committing sin, he is advised to procure a lawful means of income or even take a reasonable loan to fulfill the financial side of marriage. This advice prevents them from committing immorality alone. The Qur’ān discusses this issue in the verse: “Yet it is recommended that the ones who cannot maintain a marriage preserve their chastity until Allah grants them His grace.”⁴                                                                                                                 Imām Shāfi’ī has said that if a male or a female is likely to engage in forbidden interactions, it will be obligatory upon him/her to engage in marriage as a means of protection of their chastity. As per the Ḥanbalī perspective, it is not that one is not properly qualified to carry out the duties of marriage but one should always attempt to find legal ways of being a part of matrimony, hoping that the grace of Allah will guide one to carry out one’s duties. Likewise, Mālikī scholars assert marriage is even for such individuals who might not yet have a stable income, but with conditions. These are:  

1. A person who really dreads committing adultery if he does not marry.                          
2. An individual who, despite such endeavors as fasting, cannot control their lusts and refrain from major sins.

Also, marriage becomes obligatory for:
A lady who cannot protect her chastity and dreads being caught in sinful behavior. One who is physically and mentally well, can support a wife and children, and is worried that remaining unmarried would cause him to commit zinā.⁵

The Historical Practice of Polygamy Across Civilizations

Polygamy has been a well-established social institution for centuries, having once existed in extensive parts of the world, such as the ancient Near East, Far East, Mediterranean cultures, Europe, and in the United Kingdom. In certain cultures, polygamous men not only practiced legal marriage unions but also practiced temple prostitution and woman abduction as war booty. Travel literature and missionary histories in the Christian period also report the practice of polygamy among native tribes in Africa and the Americas. Some of the ancient civilizations attempted to control polygamy by safeguarding the rights of the first wife. For example, the Babylonian Code of Hammurabi required a second marriage only under extraordinary circumstances—such as infertility, illness, or disobedience of the first wife—and even then only with her permission. A famous quote by Pseudo-Demosthenes in the 4th century BC gives us an idea of the social status of women in ancient Greek civilizations: “Mistresses we keep for pleasure, concubines for daily care, and wives to bear us legitimate children and to be faithful guardians of our households” (Speeches Against Neaera, 59:122). In non-Jewish societies, a concubine was a slave woman who lived with a man, often in a polygamous relationship, for the fulfillment of his sexual needs. But the children born of such relationships were not legal heirs.

Polygamous traditions can be summarized in five periods⁶:

1. Biblical Period
2. Jewish Polygamy Age
3. Catholic Period
4. Pre-Islamic Period
5. Islamic Period

 Methodology

This study uses the qualitative approach, making use of the doctrinal legal research approach. The primary sources include the Quran, Hadith, Pakistani law, and court decisions. The secondary sources include academic articles, peer-reviewed journals, and books by Islamic jurists. This approach allows for the comparative analysis of religious and legal views.

Primary sources on Polygamy 

Sharia allows polygamy subject to the condition of justice. According to the Quran:

“And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women—two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline (to injustice).”⁷

Imam Hasan al-Basri (RA) noted that Madinah individuals, motivated by the economic endowments of the orphan boys who were under their care, would, at times, conduct marriages to them without love or care for their well-being. This was one of the reasons for the violation of the orphans’ rights, particularly the unjust postponement of their inheritance until after their death. These practices were, in essence, premised on greed and disregard for moral stewardship (Al-Basri, as cited in Al-Qurtubi, 2006). Another view is that people were not so much bothered by the act of adultery as by the implications that would follow from being unable to cope with their work of administering justice and taking care of orphans. In fear of consequences, they avoided the task. Consequently, they were encouraged to shield themselves from injustice as well as from moral weaknesses, e.g., illicit relations, by marrying women who were legally appropriate to them, thus maintaining moral as well as legal order. It means Qur’an permits a man to marry up to four women; however, this permission is conditional upon his ability to treat all wives with complete justice and fairness. If a man fears that he may not be able to maintain equality among them, he is instructed to marry only one.⁸

In the same Surat Allah says:

“And you will never be able to be equal [in feeling] between wives, even if you should strive (to do so). So do not incline completely (toward one) and leave another hanging. And if you amend (your affairs) and fear Allah—then indeed, Allah is ever Forgiving and Merciful.”⁹

So, Allah knows the condition of hearts, which is why He stated in this verse that, it is not possible for a person to love all his wives equally or to have equal affection for each one — this is beyond human control. However, being financially just, giving each of them equal time, and treating them fairly in worldly matters is within a person’s control, and he will be held accountable for this.  

Another primary source in Islam is Hadith, it means the saying, the action, and the moment on which Prophet Muhammad ﷺ keep silent on the the actions of companions (Sahabas). So,  the following Hadiths are availbe related to polygamy:  1: Prophet Muhammad ﷺ said: Narrated by Abu Hurairah

“When a man has two wives and he is inclined to one of them, he will come on the Day of Resurrection with a side hanging down.”¹⁰

The same sayings of Prophet Muhammad with same narrator is given in Jami at Tirmidhi.

(Jami at Tirmidhi Jami at Tirmidhhp. 12 Hadith No. 1141) 

So, through this Hadith, Prophet Muhammad ﷺ commands us to maintain justice and equality among our wives, and he also warns us of the consequences in the Hereafter. He said that if a person has two wives and he inclines more toward one of them, then on the Day of Judgment, he will come with one side of his body leaning (or paralyzed).

2: Prophet Muhammad ﷺ said: Narrated by Aishah Ummul Mu’minin

“ The Messenger of Allah ﷺ  used to divide his time equally and said: O Allah, this is my division concerning what I control, so do not blame me concerning what You control and I do not. Abu Dawud said: “By it means the heart.”¹¹

This Hadith shows that no matter how pious a person may be, the heart inevitably leans toward one wife at some point, and this is something beyond human control. Even Prophet Muhammad (peace be upon him) would seek forgiveness from Allah regarding this and say, ‘O Allah, this is my distribution in what I can control—such as providing equally in financial matters and time—so do not hold me accountable for what is beyond my control, which is the inclination of my heart.’ Therefore, no one can truly claim that they can establish complete justice between their wives in the way that each one deserves.

Polygamy In Pakistan

In Pakistani law, in particular, Section 6 of the Muslim Family Laws Ordinance (1961), says:¹²

No man, during the subsistence of an existing marriage, shall, except with the prior permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance. (Sub-sec.1)

An application for permission shall be submitted to the Chairman and shall state the reasons for the proposed marriage, and whether the consent of the existing wife or wives has been obtained.(Sub-sec. 2)

On receipt of the application, the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may grant permission if it is satisfied that the proposed marriage is necessary and just. (Sub-sec. 3)  The first three subsections of Section 6 emphasize that a man cannot contract a second marriage during the subsistence of the first without the prior written permission of the Arbitration Council. This legal requirement ensures that polygamy permitted but only when it is proven to be necessary and just, and that the rights and consent of the existing wife or wives are considered. The Arbitration Council, after hearing both parties and their nominated representatives, has the authority to grant or refuse permission, thereby acting as a safeguard against unjust or arbitrary second marriages. And if someone does not comply with these three sections, then he must be punished prescribed in sub section 5(a) and 5(b) which is given below:                              

If a person contracts another marriage without the permission of the Arbitration Council, he shall: Immediately pay the entire dower (mahr), whether prompt or deferred, to the existing wife or wives and if not so paid shall be recovered as arrears of land revenue. (Sub-sec. 5a)                                                   

And be punishable with simple imprisonment which may extend to one year, or with fine, which may extend to five thousand rupees, or with both. (Sub-sec. 5b)

Before 1974, the legal position created by Section 6 limited the institution of criminal proceedings to the Union Council, which alone had the locus standi to initiate a written complaint against a husband who was contravening the concerned provision. This limitation led the courts to adopt a strict interpretation. In Muhammad Islam v. The State and the case of Fateh Muhammad v. Chairman, the courts held that neither the Chairman of the Union Council nor the first wife had the requisite locus standi to initiate proceedings. The accused husbands in both the cases thus successfully evaded prosecution.

In order to fill this gap in the law, there were amendments introduced in 1974 by the Province of Punjab and later in 1992 by Khyber Pakhtunkhwa, substituting the term “Union Council” with “aggrieved party.” This amendment broadened the definition of complainants under Section 6, thus allowing the person prejudically affected by a polygamous marriage, e.g., an unwilling first wife, to approach legal remedy.

In addition to this, the jurisprudence has further extrapolated this concept. In Ejaz Mahmood v. Humaira, the court held that a second wife who married without being informed of her husband’s prior matrimonial relationship is an aggrieved party. Justice Sardar Muhammad argued that such a woman, who had been deceived into marriage, has a legal right under Rule 21, having suffered a personal as well as a legal grievance on account of the fraud.¹³

Refusing a Second Wife

Multiple sources show that, in reality, men conduct subsequent marriages without consulting their first wives, even though there are legal provisions for this. In accordance with a Gender Studies Consultant, on 12 December 2013, men can apply for a second marriage irrespective of whether his first wife agrees or not. Though some husbands disclose their subsequent marriages, others have a preference for hiding them for social or economic objectives. Similarly, the Human Rights Commission of Pakistan (HRCP) and other experts also corroborate that, even though the Muslim Family Laws Ordinance (MFLO) prescribes acquiring official permission for a subsequent marriage, the legal process of obtaining this is, in fact, circumvented (HRCP, 13 December 2013; Yilmaz, 30 Dec. 2011). A Law Professor at Warwick University, on 8 December 2013, also testified that the requirement of advance permission is usually overlooked in reality. Moreover, the Secretary-General of the Women Empowerment Welfare Association (WEWA) also provided additional information that the Chairman of the Union Council can also grant permission for a second marriage even if the first wife does not agree (11 December 2013). Nevertheless, the Research Directorate could not verify the information independently within its limits.

Experts agree that, in reality, a first wife has little power to prevent her husband from marrying another woman. The Professor of Law at Warwick testified that although a wife can withhold consent and summon the assistance of the law, the most she could do is enforce her mahr (dower) or right to divorce (8 Dec. 2013). This is in line with research by Shirkat Gah, whose Advocacy Manager testified that a woman’s only legal option might be to seek a divorce, since Islamic law allows the practice of having up to four wives (11 Dec. 2013). The HRCP also observed that pressure from culture and economic vulnerability are used to discourage first wives from objecting to subsequent marriages (13 Dec. 2013). WEWA’s Secretary-General also explained how husbands might use coercive means, such as violence, theft of assets, or threats of not providing child custody, to get a first wife to consent to a second marriage (11 Dec. 2013). The HRCP also pointed this out, stating that women who object to a second marriage are likely to be subjected to violence (13 Dec. 2013).The Gender Studies Consultant further clarified that while the MFLO requires the permission of current wives, the Quran and Hadith, Islamic literature, do not (12 Dec. 2013). Yilmaz, whose publication appeared in The Journal of Research Society of Pakistan, supports this reading by stating that according to Muslim personal law, a man is not obligated to obtain permission from his current wife or wives for him to remarry (30 Dec. 2011). Moreover, the same Consultant cited that the majority of religious experts in Pakistan completely reject this MFLO provision by arguing that Islamic doctrine does not contain a first wife’s right of veto over her husband’s second marriage (12 Dec. 2013). This document is based on information from publicly available sources researched by the Research Directorate in a short time and is not a definitive legal opinion on any one refugee claim.¹⁴

Legal support in Second Marriage Disputes

Legal Advisory Services: Qualified family law practitioners provide expert legal guidance in matters related to second marriages. Initial consultations are typically offered free of charge. Individuals—whether spouses or prospective parties—facing familial disputes arising from a second marriage are encouraged to seek professional legal advice. 

Filing a Legal Complaint: A wife whose husband has entered into a second marriage without obtaining her prior consent, as required under the law, holds the legal right to initiate proceedings against such a violation.

Defense in Legal Proceedings: In instances where a husband is facing legal action initiated by his wife due to a second marriage, legal representatives are available to advocate on his behalf in court. The objective is to provide a robust defense and safeguard the client against penalties, including imprisonment or fines. 

Assistance in Obtaining Official Permission: For individuals intending to solemnize a second marriage but are unable to secure the first wife’s consent, legal professionals may assist in applying for formal authorization from the Chairman of the Union Council, in accordance with legal procedures. 

Litigation and Alternative Dispute Resolution: Legal experts specializing in family law are equipped to manage second marriage-related litigation and also offer alternative dispute resolution services. These may involve resolving conflicts through negotiation or mediation, either within the judicial system or through out-of-court settlements.¹⁵

Khula

In Islamic law, a woman’s prerogative to seek a divorce from her husband is known as Khula. This right allows a wife to initiate separation if living with her husband becomes unbearable for any reason. She may pursue Khula based on health-related, moral, spiritual, or other personal reasons that emerge after marriage, or if she feels unable to fulfill her marital obligations. Furthermore, following the Nikkah (marriage contract), a wife may request that the authority to pronounce divorce be delegated to her.Allah said:

“Divorce is twice. Then, either keep (her) in an acceptable manner or release (her) with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah — it is those who are the wrongdoers.”¹⁶

The Holy Prophet Muhammad (PBUH) said:

 “A wife who demands divorce from her husband without cogent reasons, the aroma of paradise is Haram on her”.¹⁷

Judicial Khula

 Function of the Qazi (Judge)

Although most Hadiths are quoted regarding the procedure of Khula, none of them particularly show that the Prophet Muhammad (PBUH) issued a final judgment in such cases. Rather, he would either request the husband to agree to the divorce or recommend that the wife reconcile with her suitor. Ultimately, the final decision was left with the couple themselves. Therefore, the intervention of the Qazi itself is not always necessary to start or end Khula. The judge’s intervention is limited to judicial sanction or authorization of the contract negotiated between the parties.¹⁸

 Qazi has no right of Khula

In favor of this view, modern scholars (Muftian-e-Kiram) make a strong argument here: no more than a judge can form a marriage contract without the free will of the man and the woman, a family court judge, similarly, cannot make a unilateral decision to nullify a marriage contract without the mutual consent of the two spouses.¹⁹

 Judicial Practice on Khula Cases

Historically, Pakistani courts required the consent of the husband for the wife’s application for Khula. The seminal case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum was most often referred to as precedent, holding that husband’s consent was a condition precedent to the dissolution of a marriage by Khula. The trial court, as well as the Calcutta High Court, had initially rendered judgments in favor of the wife. The decision was, however, on appeal, overruled by the Judicial Committee of the Privy Council, holding that, in Islamic law governing marriage, men had been given a superior status in issues pertaining to marriage. It held that while a Muslim man could terminate the marriage at his own will, a Muslim woman could only do so by Khula, involving the consent of both the spouses. This doctrine was the basis of judicial practice for almost a century.

However, it was eventually overruled by Pakistan’s higher judiciary, with the breaking point occurring in the case of Balqis Fatima v. Najam-ul-Ikram when the Lahore High Court decided in favor of the wife, declaring that the husband’s assent is not necessary for the grant of Khula. The court held that Khula is a right vested in the wife, which she may exercise through the process of law. The bench also interpreted the words “if you fear” in verse 229 of Surah Al-Baqarah to be addressed to Ulil Amr (those in authority), thus holding that the court or the state could terminate a marriage without the husband’s consent when it was evident that the couple would not be able to reside peacefully and harmoniously.

Judicial Reasoning and Principle

Pakistani courts have generally followed the principle that while polygamy is permitted under Islamic law, it becomes a ground for khula only when accompanied by elements such as cruelty, emotional neglect, or a complete breakdown of the marital relationship. The burden lies on the wife to prove that the husband’s second marriage has made it impossible for her to live with him “within the limits prescribed by Allah”²⁰

Conclusion 

This concludes that Islam permits polygamy but under very strict moral terms. Pakistani law enforces this by establishing legal provisions designed to prevent injustice. Due to the complexity of society and risk of abuse, legal control over polygamy becomes inevitable. The Pakistani system does not defy Sharia but enriches its moral foundation of justice. So, the Pakistani laws supportive to Sharia and both systems are working in Pakistan.

References

1. Al-Zuhayli, W. (n.d.). Al-Fiqh al-Islami wa Adillatuhu (Vol. 7). Dar al-Fikr.
2. Ibn Taymiyya, Majmu al-Fatawa Shaykh al-Islam ‘Ahmad bin Taymiyya, compiled by Abd al-Rahman bin Muhammad bin Qasim al-‘Asimi, Majmoo‘ Fataawa Shaykh al-Islam Ibn Taymiyyah (Vol. 32). Riyadh: Dar al-ʿAlamiyyah.
3. Al-mughni, Volume 7
4. Quran Chapter 4 Surat-un-Nisa verse 3
5. Quran Chapter 4 Surat-un-Nisa verse 129
6. Sunan Abi Dawood Chapter 12 Hadith No. 2133
7. Jami at Tirmidhi Jami at Tirmidhi. 12 Hadith No. 1141
8. Sunan Abi Dawood Chapter 12 Hadith No. 2134
9. (Sunan Abi Dawood Chapter 13 Hadith No. 2226)
10. Qur’an Chapter 2 Surah Al-Baqarah verse 229
11. Section 6 of the Muslim Family Laws Ordinance (1961)
12. Ibn Taymiyya’s Fatwas on polygamy in Medieval Islam (The Fatwas regarding polygamy) by Muhammad Abdun Nasir  

https://pdfs.semanticscholar.org/387a/2444266370b04c0fb96267c64eec2d26a6a6.pdf

13. Polygamy in Shariah Laws by Sunni School of Thought: Classical Approaches (Nikha is Obligatory) by Ms Marium Ayub 

https://jwr.bwo-researches.com/index.php/jwr/article/view/9/10

14. Practice and reforms in legislation of polygamy in Pakistan (the history of polygamy before Islam) by Sara Qayum  | Farhat Ullah | Saira Ali | Arzoo Farhad https://ideapublishers.org/index.php/jhsms/article/view/673/293
15. An Analytical Study of Marriage, Remarriage, Divorce, and Polygamy in the Light of Islam (Polygamy in Islam) by Mian Saadat Ali Nadeem Dr. Abdul Hameed Mr. Nawazish Ali Nadeem 

https://reinci.com/ojs3308/index.php/almisbah/article/view/242/204

16. Practice of polygamy, including legislation; rights of the first wife versus the second, including whether she has the right to refuse a second wife (Refusing a second wife) by https://www.ecoi.net/en/document/1353092.html
17. Unwilling co-wives and the law of polygamy in pakistan (Polygamy in Pakistan by Iqra Saleem Khan

https://heinonline.org/HOL/LandingPage?handle=hein.journals/ucjicneal20&div=7&id=&page=

18. Second Marriage Law in Pakistan | Best Polygamy Lawyer in Islamabad (Legal Services on Second Marriage Disputes)

Second Marriage Disputes Lawyer in Pakistan

Judicial Khula: theory and practice by Muhammad Rafi and Syed Hujat Ullah https://scholar.archive.org/work/ojhvzhyn6jc2vangvhwz3z7ho4/access/wayback/https://alduhaa.com/index.php/al-duhaa/article/download/94/41

Footnotes

1.  “Majmu al-Fatawa” volume 32 page 269 ↩︎
2. Ibn Taymiyya’s Fatwas on polygamy in Medieval Islam ( The Fatwas regarding polygamy) by Muhammad Abdun Nasir ↩︎
3. Al-Mughni, Volume 7 ↩︎
4. Surah An-Nur: 33 ↩︎
5. Polygamy in Shariah Laws by Sunni School of Thought: Classical Approaches by Ms Marium Ayub ↩︎
6. Practice and reforms in legislation of polygamy in Pakistan (the history of polygamy before Islam) by Sara Qayum*  | Farhat Ullah | Saira Ali | Arzoo Farhad ↩︎
7. Qur’an 4:3 ↩︎
8. An Analytical Study of Marriage, Remarriage, Divorce, and Polygamy in the Light of Islam (Polygamy in Islam) by Mian Saadat Ali Nadeem Dr. Abdul Hameed Mr. Nawazish Ali Nadeem ↩︎
9. Qur’an 4:129 ↩︎
10. Sunan Abi Dawood Chp.12 Hadith No. 2133 ↩︎
11. Sunan Abi Dawood Chp.12 Hadith No. 2134 ↩︎
12. Section 6 of the Muslim Family Laws Ordinance 1961 ↩︎
13. Unwilling co-wives and the law of polygamy in pakistan (Polygamy in Pakistan 2nd para) by Iqra Saleem Khan ↩︎
14. Practice of polygamy, including legislation; rights of the first wife versus the second, including whether she has the right to refuse a second wife (Refusing a second wife) by ↩︎
15. Second Marriage Law in Pakistan | Best Polygamy Lawyer in Islamabad (Legal Services on Second Marriage Disputes) by ↩︎
16. Qur’an 2:29 ↩︎
17. Sunan Abi Dawood Chapter 13 Hadith No. 2226 ↩︎
18. Judicial Khula: theory and practice by Muhammad Rafi and Syed Hujat Ullah ↩︎
19. Ibid. ↩︎
20. Qur’an 2:229 ↩︎