The Council of Islamic Ideology (CII) stirred controversies a few months ago by putting forward certain recommendations regarding the mechanism provided under the Muslim Family Laws Ordinance 1961, for putting certain restrictions on polygamy, and the Child Marriage Restraint Act 1929, which prohibits child marriages. While those issues are yet to be settled the council created a fresh controversy by declaring against Sharia the provision of Dissolution of Muslim Marriages Act 1939, seeking dissolution of marriage by a wife on ground of husband entering another marriage without following the provision given under the law.
According to media reports, while presiding over a meeting of CII its chairman Maulana Mohammad Khan Sherani stated that a Muslim woman could not object to the second or subsequent marriages of her husband. He had added that a woman could not demand divorce if her husband married a second, third or fourth time. He was quoted as stating that the council had observed that the relevant provision of the Dissolution of Muslim Marriages Act (DMMA) 1939 was against Sharia and it wanted the government to repeal the same. He stated that the woman could seek separation if she was treated with inequality or cruelty.
Earlier, in March this year CII had declared that Section 6 of the Muslim Family Laws Ordinance (MFLO) 1961, related to polygamy, was against Sharia. Contrary to the CII decision regarding MFLO, the Federal Shariat Court (FSC), another forum set up under the Constitution for examining laws, had on Jan 5, 2000 declared the said provision not repugnant to injunctions of Islam. However, so far there are no findings of the FSC regarding the provision of DMMA.
Lawyers dealing with cases of dissolution of marriages, dower, etc, believe that these provisions, of MFLO and DMMA, which are under debate, are beneficial to women and by invoking them they could get relief from the family courts.
“Section 6 of MFLO prohibits polygamy except with the permission of arbitration council. If a husband marry in contravention of this section he is liable to pay immediately the entire dower, whether prompt or defer, to the existing wife,” said an advocate of Supreme Court Arshid Jamal Qureshi.
He said that if a husband took additional wife in presence of earlier one in violation of the provision of MFLO that could be a ground for dissolution of marriage under DMMA. He added that even if a wife had not been seeking dissolution of her marriage on that ground there were cases when she had filed suit for receiving her dower on the same ground under MFLO.
Mr Qureshi said that CII was only a recommendatory body and it was up to parliament to implement its decisions by amending the relevant laws.
Section 2 of DMMA entitles a woman, married under the Muslim Law, to obtaining a decree of dissolution of marriage on any ground provided therein. Important grounds in the said section are: that the whereabouts of the husband have not been known for four years; that the husband has neglected or has failed to provide for her maintenance for a period of two years; that the husband has been sentenced to imprisonment for seven years or more; that the husband has failed to perform, without reasonable cause, his marital obligations for three years; that the husband was impotent at the time of marriage and continues to be so; etc.
Through MFLO a sub-section II-A was included in Section 2 of DMMA so as to add another ground for dissolution of marriage, which states: “that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance 1961.”The MFLO 1961 was promulgated keeping in view certain recommendations of the Commission on Marriage and Family Laws constituted in 1955.
About Section 6 of MFLO, related to polygamy, the FSC in its judgment in 2000 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/ wives.”
The FSC ruled that there is no doubt that a Muslim male is permitted to have more than one woman as wife with a ceiling of four, at a point of time as the ultimate, but the very ayat (Verse) which gives this permission also prescribes a condition of “Adl” (justice) and the holy 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.
Despite the passage of over five decades since MFLO was promulgated it still remains under debate and certain quarters are averse to it. Supporters of these laws believe that CII has presently been used for political gains and even the appointment of its chairman by the previous government was on political considerations due to which the present interpretations put forward by CII were not acceptable.
Published in Dawn, October 27th, 2014
