POLYGAMY A LEGAL
TABOO
AN
ANALYSIS OF SECTION 6 OF MUSLIM FAMILY LAW ORDINANCE 1961 VIS-A-VIS ITS
APPLICATION AND EXECUTION BY THE COURTS
By:
RAFAQAT BASHIR AWAN
Advocate High Court,
Polygamy
is a marital affair which has either been restricted, curtailed or prohibited
under different laws or taken as taboo under different and various social
norms.
Before
adverting to the logical interpretation of the concept of polygamy and its
application in
A
grave misunderstanding amongst the masses is observed that in any case a person
who wants to conduct second marriage has to seek permission from the
arbitration council. I am afraid that is not the case, permission from the
council is required only in case where the marriage does exist between the
parties but it never subsists as required under the law. Meaning thereby that
while a couple is living together, performing their matrimonial obligations, in
that eventuality if the husband wants to conduct another marriage then he has
to seek permission from the council and if they are living apart from each
other and the marriage does exist but they are not performing their marital
obligation by all means then we cannot say that there is subsistence of the
existing marriage between the parties.
We
have to draw line between the concept of existence of marriage and the
subsistence of existing marriage. A marriage may be existing
between spouses but it may not be subsisting as a family, spouses are living
apart and Ghair Abadi is
present among them. To my mind, in the situation discussed, we cannot say that
the marriage is subsisting between them although it does exist by all legal
means.
Therefore,
the requirement of law, before making a husband bound down to recourse and
resort to arbitration council before getting solemnize the second marriage,
that there should be subsistence of marriage between spouses and not near
existence of marriage.
As
per the black's law dictionary the definition of subsistence as well as
existence of something is defined as: "subsistence means to support and to
maintain etc" while existence means "the things which is present or
remain for time being or for certain period of time".
No
permission is required by law if a marriage is existing
but not subsisting. In order to avail shelter of the Section 6 of Family Muslim
Law Ordinance, 1961, one has to prove that marriage between spouses is not only
existing legally but also subsisting between them.
Therefore,
to my view all proceeding against those husband who conduct second or further
marriages during the Ghair Abadi
period of their first marriage, are illegal proceedings and also against the
varies of the Section 6 of the Family Muslim Law Ordinance, 1961. They are
being incarcerated for nothing. Courts have to construct the law in its true
letter and spirits, undue favoritism in favour of
female spouse is not warranted under the law. Court should not overshadow law
and justice by over overwhelming spring of femininism,
as it would create dis-balance for dispensation of
justice and the equilibrium of equity and fair play would be disturbed which
would consequent upon injustice, blackmailing in particular segment of society.
I
hope view point on the construction of Section 6 of Family Muslim Law Ordinance,
1961 would be taken to consideration and hopefully pondered over by legal
fertility.
I
being student of law lay my interpretation regarding the above cited issue
before my fallows and I hope it would be appreciated or corrected if I am
wrong.