A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

The respondent argued argued that Jesmin Jesmin Sultana Sultana had had voluntarily voluntarily left left his his house house and
and
was residing with her parents without lawful cause, and therefore was not entitled to
maintenance. He relied upon a precedent established in Mosammat Nur Akhter v Md.
Abdul Mabud Chowdhury (1996) 16 BLD 396 in which the he petitioner was held not to
be entitled to maintenance because she had voluntarily left her husband.
Decision
The Supreme Court decided in favour <strong>of</strong> Jesmin Sultana and restored the original
amount <strong>of</strong> prompt dower on the basis that she was compelled to leave the marital
home because <strong>of</strong> her husband’s application to take a second wife. His application for
a second wife was based on the fact that the petitioner was sickly and incapable <strong>of</strong>
performing conjugal relations. The Court held that a husband will only be released
from an obligation to pay the prompt dower in full if a wife voluntarily remits part <strong>of</strong>
the dower. It reaffirmed Jesmin Sultana’s right to maintenance as fixed by the lower
court at 500 taka per month.
The Court noted, although not as part <strong>of</strong> the binding decision, that section 6 <strong>of</strong> the
Muslim Family <strong>Law</strong>s Ordinance 1961, which permits polygamy, is contrary to
Islamic law. It concluded, based on a variety <strong>of</strong> commentators, that Islamic law
holds that in order to practice polygamy a husband must be able to deal “justly”
with all his wives. The Court agreed with Muslim jurists and scholars who take
the view that in the context <strong>of</strong> modern society it is impossible to deal with multiple
wives “justly” and therefore Islamic law in effect prohibits taking a second wife
during an existing marriage. The Court recommended that section 6 <strong>of</strong> the Muslim
Family <strong>Law</strong>s Ordinance 1961 be repealed and substituted with a section prohibiting
polygamy.
Commentary
The matter before the Court did not require a ruling on the legality <strong>of</strong> polygamy,
however the Court took it upon itself to state its opinion on the matter. Its statement,
and ensuing recommendation, that the practice <strong>of</strong> polygamy is contrary to Islamic
law is positive for women. The judges in their discussion <strong>of</strong> the Qu-ran and Sunnah
interpreted the issue <strong>of</strong> polygamy from a broad perspective, using the opinion <strong>of</strong>
jurists and the laws <strong>of</strong> other Islamic countries (e.g. the Tunisian <strong>Law</strong> <strong>of</strong> Personal
Status 1957, which prohibits the practice <strong>of</strong> polygamy). They argued against
the present law on polygamy on the basis that it is contrary to the principles and
present practice <strong>of</strong> Islamic law. The position <strong>of</strong> the Court will provide a valuable
springboard for further jurisprudential discussion and advocacy by women’s groups
and activists.
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Jesmin Sultana v Mohammad Elias (Bangladesh)