Bangladesh’s High Court has upheld an existing provision of Muslim family law that requires approval from an arbitration council—not the consent of a first wife—for a Muslim man to contract a second marriage.
The ruling, delivered in August and published in full in December, rejected a petition that sought to make a wife’s consent mandatory before a husband could marry again. The bench, comprising Justice Fahmida Quader and Justice Sayed Jahed Mansur, ruled that the current legal framework remains valid and constitutional.
The judgment means Section 6 of the Muslim Family Laws Ordinance, 1961 continues to apply, requiring a husband to obtain prior permission from an arbitration council before entering into another marriage while the first marriage is still subsisting.
What the law currently provides
Under Bangladeshi law, restrictions on polygamy for Muslims are governed primarily by the Muslim Family Laws Ordinance of 1961. The ordinance does not prohibit polygamy outright but regulates it by introducing procedural safeguards.
A man seeking permission for a second marriage must apply to the chairman of the relevant union parishad, explaining the reasons and necessity for the proposed marriage and stating whether the existing wife or wives have consented. The chairman then forms an arbitration council, which hears both parties before deciding whether to grant permission.
If permission is denied, either party may appeal to an assistant judge, whose decision is final. A marriage contracted without arbitration council approval cannot be registered.
The law also imposes penalties for violating the procedure. A man who marries again without permission may be required to immediately pay the full dower to his existing wife or wives and may face up to one year in prison, a fine, or both.
Court’s interpretation of Islamic law and constitutional principles
In its judgment, the High Court examined the issue in the context of Islamic jurisprudence and constitutional rights. Citing verses from the Quran, the court noted that while Islam allows polygamy, it places strong emphasis on justice and fairness among wives.
The judges observed that under the Hanafi School of Islamic law—followed in Bangladesh—polygamy is permissible only if a man can ensure equal treatment and financial support for multiple wives. The court added that Islamic teachings encourage monogamy where justice cannot be guaranteed.
The bench also referred to an earlier High Court ruling from 1997, which had recommended replacing Section 6 with a provision banning polygamy, citing reforms in countries such as Tunisia and Turkey. However, the judges noted that no legislative action had been taken on that recommendation.
They observed that clearer regulation or prohibition by the state could help resolve ongoing disputes around polygamy, but stressed that such changes fall within the domain of Parliament, not the judiciary.
Constitutional challenge rejected
Rejecting the constitutional challenge, the court ruled that Section 6 is neither arbitrary nor discriminatory and does not violate the fundamental rights guaranteed under Articles 27 and 28 of the Constitution, which ensure equality before the law and prohibit discrimination.
Instead, the judges said the provision complements Article 41, which guarantees freedom of religion subject to law, public order and morality.
The court concluded that the arbitration council’s role does not deprive women of legal protection, nor does it grant unchecked authority to the council. The process, it said, ensures due consideration of both parties’ positions.
Petitioner plans to appeal
The writ petition was filed in January 2022 by Supreme Court lawyer Ishrat Hasan, who argued that leaving the decision solely to arbitration councils creates scope for inconsistency and undue influence.
She said there is widespread misunderstanding about the law, with many believing a wife’s consent is legally required for a second marriage. “In reality, the law places that authority with the arbitration council,” she said.
Ms Hasan added that the law does not clearly define the criteria for granting permission, which, she argued, can lead to arbitrary decisions. She confirmed that she plans to appeal against the High Court verdict.
The ruling is likely to renew debate over women’s rights, religious law and legal reform in Bangladesh, particularly as questions continue over how polygamy should be regulated in a modern legal framework.
