Must a Wife’s Consent be Obtained to Contract a Second Marriage? Sharīʿa in Pakistan

By John Burden*

Primary Source: Rana Yasif, “First Wife’s Consent for Second Marriage Challenged: Petition Challenges Section 9 of Muslim Family Law Ordinance in Shariat Court,” Express Tribune, May 25, 2024, https://tribune.com.pk/story/2468299/first-wifes-consent-for-second-marriage-challenged.

Introduction

In March 2024, Shahzad Adnan submitted a petition to the Federal Shariat Court of Pakistan challenging Section 9 of Pakistan’s Muslim Family Law Ordinance (1961), which requires a man to obtain the consent of his first wife before contracting a second marriage.[1] Adnan claims that the consent requirement violates sharīʿa and should be declared “repugnant to the injunctions of Islam,” an act which is within the constitutional power of the Court. Among the sources Adnan cites to support his claim are the Qur’ān, ḥadīth, and a modern jurist. The case has not yet been decided, but some evidence suggests the petitioner is unlikely to succeed.

Statement of Facts

The Federal Shariat Court (FSC) is Pakistan’s apex court, whose constitution describes itself an Islamic Republic.[2] The only court higher in Pakistan is the Supreme Court, to which rulings from the FSC can be appealed. The main seat of the FSC is in Islamabad, but the court also occasionally sits in four other major cities in Pakistan—Lahore, Karachi, Peshawar and Quetta. This case is being heard at the Bench Registry in Lahore.

The FSC consists of eight justices, who are supported by a Research Branch and a team of jurisconsults. Three of the eight justices are required to be sharīʿa experts educated in either Islamic law or theology (ulamāʾ), while the other five justices are usually experts in secular law. The Research Branch aids the justices by providing materials, conducting research, and screening cases to ensure that they fall within the court’s jurisdiction and adequately state a claim. The team of jurisconsults is drawn from the leading ulamāʾ across the country.

Under Pakistan’s constitution, the FSC can declare laws “repugnant to the injunctions of Islam,” a power that it has traditionally used to liberalize the law. In 2017, for example, it ruled that IVF and other fertilization processes are compatible with sharīʿa, provided that no third party is involved and that the procedure is limited to married couples.[3] Justices are appointed by the President, however, which means that politics can influence the Court.

Section 9 of the Muslim Family Law Ordinance (1961), which is being challenged here, reads: “No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance. An application for permission under sub-section shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee, and shall state reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto.”[4] To summarize, men must present written evidence of consent from an existing wife before they take on a second wife.

Argument

Petitioner Adnan bases his claim on three sources: the Qur’ān, ḥadīth, and modern jurisprudence. From the Qur’ān, he cites Sūra al-Nisāʾ, Verse 3, which reads: “If you fear you might fail to give orphan women their due rights if you were to marry them, then marry other women of your choice—two, three, or four. But if you are afraid you will fail to maintain justice, then content yourselves with one or those bondwomen in your possession. This way you are less likely to commit injustice.” This passage, Adnan argues, has traditionally been understood as granting men a right to multiple wives regardless of what their existing wives think.

From the ḥadīth, Adnan cites from the Sunan Ibn Māja (1849), Book 9, ḥadīth 5, which reads: “It was narrated from Samurah that: the Messenger of Allah forbade celibacy. Zaid bin Akhzam added, and Qatadah recited: ‘And indeed We sent Messengers before you (O Muhammad), and made for them wives and offspring.’”[5] According to Adnan, the Prophet, by restricting celibacy, confirmed the right of men to take multiple wives.

Finally, Adnan cites from a modern Saudi Arabia-based jurist, Sheikh MS Al-Munajjid (born 1961), who writes: “If a man is able to take a second wife, physically and financially, and he can treat both wives in a just manner, he is allowed to do so according to Islam.”[6] Al-Munajjid is a lecturer and author who runs the popular website IslamQA. Although he appears to have received genuine legal training, he is not affiliated with any institution, and the Saudi Arabian government took down his website for issuing fatwās outside of approved channels.[7]

While the passages Adnan cites from the Qur’ān and ḥadīth have traditionally been interpreted to allow men to take second wives, Adnan overstates his case when he suggests that the right is unrestricted. While Sūra al- Nisāʾ, Verse 3 does allow one to take multiple wives, the passage also places qualifications and restrictions on the practice: one should only do so when he is unable to give women “their due rights” and as sure of his ability to “maintain justice.” These limitations seem to suggest that the right to take additional wives is not an absolute one.

Adnan also omits strong evidence from other parts of the Qur’ān that hurts his case. Sūra al-Nisāʾ 4:129 reads: “You will never be able to maintain justice between [your] wives, no matter how hard you try; so do not totally incline toward leaving her [one of them] hanging; if you do what is right and are [God] conscious, [know] that God is all-forgiving, most-merciful.” Far from encouraging men to take additional wives, this passage strongly discourages it.

Although the case is ongoing, recent rulings show that the FSC actively enforces Section 9 of the Family Law. Earlier this year, the Court convicted Muhammad Aurangzeb Khan of taking a second wife without his current wife’s consent.[8] Although Khan claimed that his wife had given him oral consent in front of her father and brother, he was unable to prove his claim through witness testimony or otherwise. That the FSC has enforced Section 9 of Family Law so recently might suggest that the Court is unlikely to suddenly strike the provision down.

Conclusion

Adnan’s claim for an unrestricted right to take second wives without the consent of existing wives has some merit. He provides authoritative passages from the Qur’ān and ḥadīth, offering plausible readings with support in the sharīʿa tradition. Nevertheless, he fails to acknowledge that his chosen passages also include qualifications and restrictions, and he fails to mention other passages from the Qur’ān that speak against polygamy. Based on its recent rulings and its tradition of liberalization, the FSC seems unlikely to strike down the law. If the FSC chooses to preserve the law, it will have no trouble justifying the decision based on sharīʿa.

Notes:

* John is a 2L at HLS and hopes to pursue a career in litigation. Originally from Cincinnati, Ohio, John completed a Ph.D. in History at Yale University in 2018 and conducted his dissertation research in Munich, Germany as a Fulbright Scholar. The author thanks a reader for providing corrections to a prior version.

[1] Rana Yasif, “First Wife’s Consent for Second Marriage Challenged: Petition Challenges Section 9 of Muslim Family Law Ordinance in Shariat Court,” Express Tribune, May 25, 2024, https://tribune.com.pk/story/2468299/first-wifes-consent-for-second-marriage-challenged.

[2] The following facts are drawn from the FDC’s website: https://www.federalshariatcourt.gov.pk/en.

[3] “Federal Shariat Court Declares Test Tube Babies Legal,” Express Tribune, February 21, 2017, https://tribune.com.pk/story/1334709/federal-shariat-court-declares-test-tube-babies-legal.

[4] “The Pakistan Code,” Ministry of Law and Justice, n.d., https://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-apaUY2Npa5po-sg-jjjjjjjjjjjjj.

[5] Sunan Ibn Māja, Book 9, ḥadīth 5, accessed at https://sunnah.com/ibnmajah:1849.

[6] “Federal Shariat Court.”

[7] “Saudi blocks scholar website after fatwa control decree,” Xinhuanet, September 9, 2013, https://web.archive.org/web/20160916060822/http://news.xinhuanet.com/english2010/world/2010-09/03/c_13477495.htm.

[8] Rana Yasif, “Man Convicted for Solemnizing Second Marriage without First Wife’s Consent,” Express Tribune, March 16, 2024, https://tribune.com.pk/story/2459531/man-convicted-for-solemnizing-second-marriage-without-first-wifes-consent.

(Suggested Bluebook citation: John Burden, Must a Wife’s Consent be Obtained to Contract a Second Marriage? Sharīʿa in Pakistan, Islamic Law Blog (Jan. 23, 2025), https://islamiclaw.blog/2025/01/23/title-needed/) (last updated Feb. 6, 2025)

(Suggested Chicago citation: John Burden, “Must a Wife’s Consent be Obtained to Contract a Second Marriage? Sharīʿa in Pakistan,” Islamic Law Blog, January 23, 2025, https://islamiclaw.blog/2025/01/23/title-needed/) (last updated February 6, 2025)

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