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STUDENT/S: Course title: Research Methods

Name Seat/ Enrolment No. Course code: BA/LAW 404 (C)

1. RAFIUE ALI KHAN H1964115 Class: BA/LLB 4th Semester
Assignment no: 1
Submission date: 24 November 2021
Word count: 3818
Due date: 24 November 2021

PLAGIARISM AND COLLUSION Name of course Madam Tehreem

instructor Farrukh
Plagiarism: using another person’s ideas, designs, words or works
without appropriate acknowledgement.

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 Requirement Checklist

Total Words 3500-5000 ✓

Abstract 100 ✓

Keywords 4-7 ✓

Introduction 150 ✓

Research Problems ----- -----

Limitations ----- -----

Methodology ----- -----

Literature Review 200 ✓

Main Topic ----- -----

Recommendation ----- -----

Conclusion ----- -----

References 25-35 ✓

Plagiarism 30-35% N/A

 ‘Polygamy Laws: A Contradictory Application in Pakistan’

Abstract:

Polygamy has been considered a very controversial subject in the modern society of Pakistan. The
modern Pakistani society criticizes polygamy on violation of women rights. But Islam protects
polygamy along with women rights in polygamous marriages. This paper focuses upon the basic
understanding of polygamy and its execution complying with the Shariah and Laws of Pakistan.
The application of Shariah laws in polygamy that affect the protection of rights of women will also
be examined. In Shariah, the rights of women are given protection with successful marriage but
Pakistani Laws are separately inclining towards either women rights or establishment of successful
marriage. These flaws need to be adjusted properly.

Keywords: Polygamy, Second Marriage, Women Rights, Muslim Family Law Ordinance
(MFLO), Shariah, Marriage conditions.

Introduction:

The polygamy is a practice of man to marry more than one woman at a time. It is prohibited in
many countries of the world but some Islamic countries have recognized the legality of such
practice including Pakistan. The Pakistani government has made laws regarding polygamy in
Muslim Family Law Ordinance. The polygamy laws made in Pakistan are allowing a Muslim male
to marry up to four women at a time. But the implementation of such polygamous laws is based
on the conditions which is to be fulfilled by a man who is going to enjoy the right of polygamous
marriage under the law. The condition on a Muhammadan is on the reasoning of determining
societal needs of Pakistan and not to violate the rights of women. The polygamous laws of Pakistan
deals with the validity of polygamy laid down by Shariah but also restricts Muslim male on the
grounds of violation of rights of women.
Research Problems:

The study in this article is led by the questions which are going to be researched in this article. It
includes the concept of polygamy and why the Pakistani Laws and Sharia are contradicting with
respect to polygamy and what is the status of women rights in practice of polygamy in Pakistan.
These are the basis of this entire article which are developing the justification or the repudiation
of polygamous laws and marriage in Pakistan.

Limitations: The study is based upon the laws regarding practice of polygamy in Pakistan such
as Muslim Family Law Ordinance, the ingredients of shariah with the role of women rights and
the attainment of consent of wife when performing any polygamous marriage in Pakistan.

Research Methodology:

The study done in this article is entirely based on qualitative methodology. The primary research
is done from journal articles published with the same subject and knowledge. The approaches used
in this study is explanatory and critical to know the reasoning for the contradiction in polygamy
and giving a critical view of the subject analyzing the pros and cons of the polygamous laws in
Pakistan.

Literature Review:

Since beginning the laws of polygamy are under contemplation to satisfy the needs of shariah and
sophistication. The era of military dictatorship in Pakistan has brought great deviations from
shariah laws towards the laws of societal needs. But now the Pakistani lawmaking has focused
upon the fulfilment of shariah laws with some conditions intermixed with Pakistani Laws to curb
the problems of society.

Such condition of Pakistani law is called a threat to Shariah by the supporters of polygamy. The
people endorse polygamy as a legal means to satisfy sexual needs rather than going towards any
prostitute (Johnson, 2005). The shariah has got two scenarios that needs to be fulfilled one is sexual
need and other is support for widows. The polygamy supports the childless couple and give a way
to a man to keep a wife and marry another one for progeny without divorcing first wife. (Johnson,
2005). The condition laid down by Pakistani laws are also complying with shariah laws but it also
deals the modernism. However, the feminists and women rights activists consider that polygamy
is only a subordination of women compare to male sexuality. (Johnson, 2005). The rights of
women justify polygamy on the ground that if either man or women could marry multiple partners.
(Johnson, 2005). The women rights are a production of modern world which oppose shariah laws.

The alone contention of sexual desire is lacking the application but if the entire ingredients of
Shariah Laws are included then the success of polygamy can be ensured. The mere justification of
women having multiple partners will be equality, is a flaw. As it is not only prohibited in Shariah
but also International Law will not recognize it as it can cause the problems of identity of children.
Consequently, the supporting point of application of polygamy with respect to shariah laws and
Pakistani laws is the adoption of both laws which also relates to the women rights. Such pattern is
recognized by Pakistani law and is dealing with the marriage problem adequately by imposing
minor condition regulating Shariah and prohibition of violation of women inequality.

Understanding the concept of polygamy in Shariah:

The polygamy has been permitted by Islamic shariah and is only exception to a Muhammadan
man. A Muslim can have up to wives at a time but this entitlement is restricted only to male. A
female cannot practice polygamy. The Quranic knowledge of polygamy provides that ‘If ye fear
that ye shall not Be able to deal justly with the orphans, marry women of your choice Two, or
three, or four; But if ye fear that ye shall not Be able to deal justly (with them), Then only one
(Quran, 4:3). The interpretation of this verse does not suggest that the restriction of polygamy but
it lays down the conditional practice of polygamy to have women of your choice up to four but not
to be unjust to them. In contrast, the similar practice by a female is not permitted in Shariah. The
determining of child and its recognition of his real father will not be possible. This is the denial of
women to be practicing the same entitlement of polygamy in Islam.

The traditional approach of polygamy is based on three reasons i.e. to protect a divorcee woman
who are sick, older and barren, to support the widows in the olden demography of war and to
prevent monogamous relation having extra marital affair as in the west which causes social
inequality and hypocrisy (Marcotte, 2001). The Islamic is also the similar to protect the divorced
women and to support widows and to prevent any extra-marital relation. No state law, customary
law and religious law recognizes the rule of a man to possess many wives as he wants but there
are some norms that suggests such practices (Shah, 2003, p.372). It is a mistake to believe that
polygamous marriages are abusive. The opinions of inequality among wives and failure to afford
the expenses of more than one wife are based upon rationalized feelings (Thobejane & Flora, 2014,
p.1058). The establishment of separatist theocracy is the reason that caused the doctrines of
nineteenth century to ban polygamy (Ertman, 2010, p.295). The basic reasoning banning polygamy
was a political doctrine of separatism which could have made states politically weak by raising
civil movements.

Polygamous Jurisprudence in Pakistan:

The legitimacy of polygamy is seen in many states with the imposition of restrictions and
sanctions. Islamic states have made many reservations led by the rules of Islamic to the Convention
on Elimination of All forms of Discrimination against Women 1979 (Rehman, 2007, p.114). The
restrictions on polygamy and supporting monogamous relations as in Family Law Ordinance
which were termed Anti-Islamic. (Khan, 2013, p.729). In Pakistan and Bangladesh is carried out
by Muslim Family Law Ordinance, but non-compliance of conditions laid down in MFLO does
not invalidate marriage (Shah, 2003, p.371). The MFLO protects women economically and legally
by regulation of marriage and divorce and by restriction of polygamy (Weiss, 2004, p.4). The
Pakistani law demands a man to provide the surety of consent of wife in case of practicing
polygamous marriage and if a man lapses in providing the consent of wife then he will have to get
the permission of arbitration council or union council. This limitation is completing the
requirements of international women rights but also dealing with the pre-requisites of Islamic
injunctions of polygamy. Such requirements are not the opposition of Islamic principle of
practicing polygamy but these are made to prohibit men from violating the rules of Islam and
women human rights. A man can deny the existence of marriage and also deprive the marital rights
of wife as succession, divorce, dower, legitimacy of children if the marriage is not registered. The
abductors and rapist cannot claim that they were married (Shaheed & Shirkat, 1998). This is the
also a defense of women rights and also implementation of violence-free polygamous marriages.
The Pakistani laws are ensuring that no Islamic injunctions and women rights should be infringed
on the support of Islamic obligations. Pakistan cannot remain away from new global currents. It
has to deal its domestic problems with International perspective. If it is not done now then it will
be done later after huge damage (Report of the Commission of Inquiry for Women: Pakistan, 1997).
The Pakistani law on polygamy should guarantee the rights of women as adopted by the world on
universal perspective. This is done to deal with societal problems such as domestic violence and
child negligence. The modern governments should not only view the religious injunctions but
should also curb the emerging needs with the development of legal system and new theoretical
concepts. The improvement of status of women has conceptually collapsed the traditional Muslim
family law (Layish, 2014, p.281).

The terminology of Injunctions of Islam should not be confused with political decisions unless
Pakistan becomes theocracy (Carroll, 2002, p.78). When the sovereignty and governmental system
becomes entirely religious as declared on national level, then the entire conception of polygamy
without any restriction can be identified. Consequently, The Muslim Family Law Ordinance is the
great victory of women causing defeat to the sacred and age-old polygamous prerogative (Rodger
Millers, 2005, p.371). The entire concept theocracy is not adopted till now as the MFLO is in the
midst of both shariah and women rights. With this implementation neither Muslim obligations nor
women rights can be attacked.

The South Asian women were refused by the immigration officials for entry on the problem of
validity of polygamous women, especially Pakistani and Bangladeshi developed the issue of
admission of second wives (Shah, 2003, p.370). English law has failed to eliminate polygamy as
ethnic minorities circumvent official laws (Shah, 2003, p.370). if the international law is not
followed in polygamy then the what is going to be questions that are raised upon deviation. If a
Pakistani man marries with a foreign woman who is abroad and they move to Pakistan after
sometime, now what is the status of applicability of Pakistani men to practice polygamy. English
law domiciliary cannot bind in polygamous marriage as it only supports monogamous relations
for men. A woman being an English domiciliary who engages in polygamous relation in a
jurisdiction allowing polygamous relations, is void. (Shah, 2003, p.377). The application of such
marriage is not held valid where polygamy is practiced but then, will the validity of MFLO be
subjected to ambiguity. Some Muslim states have considered that some global human rights
treaties are contrary to Islamic injunctions but they have also recognized most of them (Weiss,
2004, p.308). If the polygamy is leading to unlawful consequences and injustice then the polygamy
may be tolerated as it not mandatory nor it is recommended in Islam (Carmit, 2009, p.372). The
Victorian judges held the assumption that the marriage is a thought of religious institutions and
the judges should protect Christian values (Hartley, 1969, p.161). This supposition was also giving
the marital rights sources to religion rather than governmental intervention. Article 2 of the
Convention on Elimination of All forms of Discrimination against Women deals with the criticism
of women discrimination. This article and other articles are in conflict with shariah law in the light
of Quran and Sunnah (Arzt, 1990, p.219). Pakistani judiciary have grasped the concept that Islam
is antithetical to Human Rights and has observed that Human Rights and Islam are complimentary
if they are not identical (Unthinkable: Is Islam Compatible with Human Rights Law?, 2016). The
Pakistani legal system is seen deviating from international standards.

A look into women empowerment and women rights:

The polygamy is considered a threat to the rule of human rights. The polygamy is also an exception
to a male Muhammadan to possess up to 4 wives but the rule of equality and right of having only
one spouse is being violated by the practice of polygamy. The shariah has been insensitive towards
women rights and the polygamy is discriminatory and contradicting human rights law. (Rehman,
2007, p.114). The application of polygamy is causing the discrimination against women which is
opposing the universal human rights law. When a man possesses more than one woman at a time,
he can discriminate among his wives. This issue is occurring domestically but the world does not
only condemn domestic discrimination but it is also affecting internationally. Apart form causing
discrimination, the women rights are also violated by inequality. The concept of inequality is
among wives when a man deals with each of them. Nevertheless, the conception of inequality is
also the masculine and feminine standards. If a man is allowed to marry four women at a time then
women should also be allowed to do the same practice. By this act, the concept of equality can be
fully determined with equal standards. What a man does should be done by a woman too. This
assertion is completing the needs of international women rights of shoulder with shoulder. The
patriarchal dominant societies of Muslim world have exploited women and children rights where
the male have interpreted jurisprudence biasedly masculine (Rehman, 2007, p.115). The men want
to rule over women and children as they both are weak in nature. The masculinity never want itself
to be undermined, therefore the men subjugate women by showing their rule and power on many
women which is possible by binding women into polygamous marriages. But many women
support polygamous marriages to find happiness and full satisfaction with their complete family
structure (Thobejane & Flora, 2014, p.1059). There are many women who don’t find it odd to be
in polygamous marriages. They are just abandoning their own rights of enjoyment of marriage as
they are also including other women in their enjoyment of rights. Despite that there are many
administrative and legislative strategies adopted by Islamic societies for ensuring the socio-
economic gender equality and for abolishing polygamy (Rehman, 2007, p.116). But the violation
of women’s constitutional rights is clearly made by the license of male polygamy. The equality of
women with men and the right of enjoying marital life is affected thereby (Carmit, 2009, p.370).
When the desires and needs are not fulfilled then Islamic provisions are ignored to meet the
satisfaction (Keddie, 1990, p.94). Another contention for the men to bind them into polygamy is
that, men only refer to Islamic obligations at the time of women. They ignore other Islamic
provisions but they only refer to practice polygamy and have more authority on women. But the
reason for polygamy is socio-cultural not sexual in Muslim societies (Task Force, 2013, p.108).
This is also evident from many societies that the polygamy is also a domination of cultural impact
and they practice it as their culture is allowing them.

Recommendations:

The polygamy laws in Pakistan should not violate Islamic Injunctions but it also should not drive
away from international standards. The laws should be made flexible for women and for men who
practice polygamy. Those women who want to remain in polygamous relations should never be
compelled neither by women rights and neither by Pakistani laws. The limitation on polygamy
should be allowed in only case where the social issues are at stake such as domestic violence,
children negligence and sexual exploitation. On other hand, the issue of rapist and abductors
should be considered as the arbitration council in Pakistan correctly making it mandatory to
register marriage. Following such statement, the marriage should definitely be registered. If a
marriage is done in villages where application of polygamy or marriage is not practically
implemented then the government should ensure that the Nikhakhaw should refuse to read the
marriage if it is not registered. Furthermore, the motive of man to marry women on the grounds of
satisfying sexuality should be checked by the institutions by knowing the real reasons for its
practice. But the institutions should not restrict polygamy on minor grounds which can cause the
prostitution to become common as the polygamy can ensure the need of sexuality and prohibit men
to go to prostitutes.

Conclusion:

The polygamy has been remaining in controversy but the Islamic concept of polygamy is actually
the support of widows and orphans. It possible for men to incline towards only one woman in a
polygamous relation does not act as safeguard to the rights of wives (Hassan, 2020). Since 911 the
certain grounds have attacked Islam from all sides and are trying deteriorate the image of Islam (The
Concept of Polygamy and the Prophets Marriages, 2019). The similarity in contradiction is also applied to
the polygamy as they consider polygamy a threat to women rights. All Muslim countries are allowing
polygamy but are restricting men to have multiple wives (Ashraf, 2018). But this is only for the bad
situation in polygamy which could cause long term negative effect to women and their families
(Muhammed, 2021). The lapses in practicing polygamy is not everywhere but is limited to some areas who
are in bad faith and are violating the conditions of women rights and shariah in the case of polygamy laws.

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