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

The court further held that the objective of marriage is to achieve sakinah or peacefulness and
that, “That is the reason why, for the sake of sustaining a sakinah family, it is considered
reasonable for a husband wishing to practice polygamy to first ask for the opinion and
consent from his wife so that she will not be hurt. In addition, the wife’s consent is required
because it is closely related to the wife’s position as an equal partner and as a legal subject
in a marriage whose dignity and status must be respected.” [emphasis added]
The examination of Islamic teachings also showed that fair treatment to all the wives and
children, which was related to the capacity to provide for current and future wives and
children and the capacity to be present during certain times and in certain places, was a
necessary condition for allowing polygamy. To ensure such fairness, the court held, the State
not only has the authority to regulate polygamy but has an obligation to realise such
fairness. 278 Dismissing the petition an detailing the reasons the Constitutional Court held,
“Whereas the articles in the Marriage Law which state the reasons, requirements and
procedures of polygamy, are none other than an effort to guarantee the recognition of the
rights of wives and future wives the exercise of which becomes their husbands’ responsibility
as the ones engaging in polygamy in the context of realizing the objective of a marriage.”
3.5 Restitution of Conjugal Rights
The personal laws of some of the research countries allow for the restitution of conjugal
rights i.e. enforcing cohabitation in a marriage.
In Bangladesh, provisions for the restitution of conjugal rights exist in the Muslim Family
Laws Ordinance, 1961. Under the Family Courts Ordinance, 1985 only a family court may
deal with cases related to restitution of conjugal rights. Several cases of the High Court have
held the restitution of conjugal rights to be incompatible with the Constitution. Thus, in Nelly
Zaman v. Giasuddin Khan, 279 the court held that with the lapse of time and social
development,
“the very concept of the husband’s unilateral plea for forcible restitution of
conjugal rights as against a wife unwilling to live with her husband has become
outmoded and does not fit in with the accepted State and Public Principle and
Policy of equality of all men and women being citizens equal before law entitled
to equal protection of law and to be treated only in accordance with law as
guaranteed un Articles 27 and 31 of the Constitution of Bangladesh.”
The court also commented on the actions of the lower courts (which passed orders in favour
of the restitution of conjugal rights) in invoking the common law doctrine of les pendens in a
suit for restitution of conjugal rights which relates to the transfer of immovable property. “It
is difficult to appreciate that the right of conjugal relationship with one’s wife can be
compared with the transfer of immovable property unless a woman is considered as
278 While holding that other arguments of the petitioner related to increase in adultery or the number of women
outnumbering the number of men were irrelevant in a Constitutional review, the Court noted that polygamy was
allowed for the first time in Islam after the Uhud war where a number of men had been killed resulting in an
increased number of widowed women and orphans who urgently needed attention. “It was under such a
circumstance that practicing polygamy was allowed and legal (halal) for the first time in the history of Islam.
Even under such circumstance, the legal practice of polygamy was still followed by certain requirements, one of
them being fair treatment.” The Court further held that polygamy does not constitute an act of worship in its
special sense and therefore its regulation is not against the teachings of Islam.
279 34 DLR (1982)
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