SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

In Bangladesh, polygamy is allowed for Muslims 275 and reportedly for Hindus with the
personal law applicable to the latter based on ancient religious texts. Like Sri Lanka,
Bangladesh has also introduced safeguards for a Muslim man to marry more than one woman
but these go beyond the minimal procedural safeguards in the Sri Lankan law. It should be
noted that these safeguards are not applicable to polygamous marriages by Hindus in
Bangladesh.
The Muslim Family Laws Ordinancy, 1961 in Bangladesh provides that a man cannot
contract another marriage except with the permission of the Arbitration Council, such
permission has to be recorded under the Muslim Marriages and Divorces (Registration) Act,
1974. An application with a prescribed fee is required to be submitted along with reasons for
the proposed marriage and whether the consent of the existing wife has been obtained. On
receipt of the application, the applicant and the existing wife or wives must nominate a
representative so that an Arbitration Council may be constituted. This Council if satisfied that
the proposed marriage is necessary and just, can give permission subject to such conditions.
The decision of the Council is to be recorded in writing which can be appealed before an
Assistant Judge whose decision would be final. A polygamous marriage contracted in
contravention to these provisions requires the man to pay the entire amount of dower
(explain) immediately and imprisonment upto a year or a fine up to 10,000 taka or both on
conviction.
Polygamy is allowed in Indonesia and is also subject to safeguards that are far stricter than
those in Bangladesh. Indonesia’s Marriage Law, 1974 incorporates the principle of
monogamy and states that, “in principle, in a marriage, a man shall only be allowed to have a
wife, and a wife shall only be allowed to have a husband.” 276 However, it goes on to allow a
court to give permission to a man to have more than one wife. 277 To do so, the man must
submit an application to a court which will give permission only if his current wife can no
longer perform her obligations as a wife, she has a physical handicap or suffers from an
incurable disease or she is incapable of procreation. A man can only submit this application if
he has the consent from his current wife/wives, it is certain that he is capable of guaranteeing
the living necessities of the wives and their children and that he will give fair treatment to his
wives and their children.
These restrictions on polygamy were challenged before the Constitutional Court of Indonesia.
In Decision Number 12/PUU-V/2007, the Constitutional Court considered the petitioner’s
contention that the principle of monogamy and the provisions related to polygamy reduced
his freedom to perform religion observance according to his religion namely to practice
polygamy as a religious observance and as violative of his Constitutional right to found a
family and procreate, to freedom of religion and to be free from discriminatory treatment.
The Constitutional Court considered in depth the teachings of Islam in relation to polygamy
and found that in fact the actual principle of marriage adopted by the teachings of Islam is the
principle of monogamy and that “polygamy is an exception which may be sought under
certain circumstances, both objectively in relation to time and place and subjectively, in
relation to the parties (the persons practicing polygamy) within the marriage. Such
circumstance may normatively be in the form of reasons and conditions stipulated by law and
enforced through certain procedures in the court.”
275 Section 6, Muslim Family Laws Ordinance 1961 (Bangladesh)
276 Article 3(1), Marriage Law, 1974 (Indonesia)
277 Article 3(2), ibid.
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