What the Recent Ruling on Husband's Second Marriage Means for Women’s Legal Protection

The recent judicial clarification that a Muslim man’s second marriage does not require the consent of his first wife has triggered serious public concern, and rightly so. Far from being mere media exaggeration, the ruling exposes a deeper legal and moral dilemma within Bangladesh’s family law framework. By narrowly interpreting Section 6 of the Muslim Family Laws Ordinance 1961, the court has effectively reinforced male privilege while weakening safeguards designed to protect women within marriage. This decision raises critical questions about constitutional values, gender justice, and the role of courts in interpreting socially sensitive legislation in a rights-oriented manner.

Section 6 of the Muslim Family Laws Ordinance was enacted to regulate polygamy, not to normalize it. The law requires a husband to seek written permission from the Arbitration Council before contracting another marriage during the subsistence of an existing one. The application must clearly state the reasons for the proposed marriage and disclose whether the current wife or wives have expressed agreement. Failure to comply leads to legal consequences, including non-registration of the marriage, immediate payment of dower, and criminal liability. These provisions were intended to create a deterrent framework rather than a procedural formality.

The High Court’s interpretation reduces this protective mechanism to a technical approval process. According to the ruling, the Arbitration Council’s authorization is the decisive requirement, while the first wife’s consent is treated as merely informational. This reading strips Section 6 of its substantive purpose and confines it to administrative compliance. Such an approach ignores the social context in which the law was enacted and the vulnerability it sought to address. By prioritizing procedural clearance over marital consent, the court has diluted the law’s capacity to protect women from arbitrary and unjust marital decisions.

This interpretive stance reflects a troubling form of constitutional minimalism. Rather than engaging with the broader objectives of equality and dignity, the court has chosen the narrowest possible reading of the statute. Where a law is ambiguous, courts are expected to adopt interpretations that expand rights rather than restrict them. In this case, however, the ambiguity was resolved in favour of male authority. This is not neutrality but a conscious judicial choice that reinforces existing gender hierarchies and undermines the transformative potential of constitutional principles.

The ruling sidelines a progressive judicial perspective that views polygamy as fundamentally incompatible with gender justice. Courts have previously observed that the religious requirement for equal treatment among wives is nearly impossible to achieve in practice. Such reasoning suggests that polygamy inherently leads to injustice, advocating for a system where it is prohibited to protect women's rights. This logic remains a powerful integration of ethical principles and modern legal standards, emphasizing that true equality cannot exist under polygamous arrangements.

Despite this jurisprudential foundation, the present ruling makes no serious effort to engage with that reasoning. Instead, it relies on a rigid textual approach that isolates Section 6 from its ethical, constitutional, and social dimensions. By refusing to consider the spirit of the law or its underlying objectives, the court has adopted a mechanical interpretation that weakens women’s legal position within marriage. This approach contrasts sharply with comparative constitutional practices, where courts often read family laws in light of evolving human rights standards.

The implications of this decision extend beyond individual marital disputes. Family law shapes everyday power relations within society, and judicial interpretations directly influence social norms. When courts legitimize polygamy without meaningful consent safeguards, they send a message that women’s autonomy within marriage is secondary. This risks normalizing coercion, emotional harm, and economic insecurity for women, particularly in contexts where social pressure already limits their ability to object to a husband’s decision.

From a constitutional perspective, the ruling raises serious concerns regarding equality before law and protection against discrimination. Bangladesh’s Constitution guarantees equal rights for women and men and obliges the state to prevent exploitation. A legal interpretation that enables unilateral marital decisions by men, without requiring spousal consent, sits uneasily with these commitments. Courts are not only interpreters of statutes but also guardians of constitutional values, and their readings should reflect that responsibility.

The judgment also highlights a deeper tension between formal legality and substantive justice. While the court may argue that it merely applied the text of the law, law does not exist in a vacuum. Family laws, in particular, must be interpreted with sensitivity to social realities, power imbalances, and lived experiences. Treating spousal consent as a peripheral detail ignores the emotional, social, and economic consequences that polygamy imposes on women and children. Another critical concern is the precedent this ruling sets for future cases. By endorsing a narrow reading of protective legislation, the court risks encouraging further erosion of women’s rights through technical interpretations. This may discourage future judicial engagement with progressive reasoning and weaken public trust in the judiciary as an institution capable of advancing justice in sensitive social matters.

The ruling also underscores the urgent need for legislative clarity. If the law remains ambiguous, courts will continue to interpret it in ways that may undermine its original intent. Parliament has the authority and responsibility to amend Section 6 to explicitly require the free and informed consent of existing wives as a mandatory condition. Clear legislative language would prevent restrictive interpretations and reaffirm the state’s commitment to gender justice.

This decision reflects a broader crossroads for Bangladesh’s legal system. The choice is between a conservative textualism that preserves existing power structures and a purposive interpretation that aligns law with constitutional values and social justice. Family law cannot remain static in a society striving for equality. Without meaningful reform and rights-based interpretation, legal protections risk becoming hollow procedures, leaving women exposed within the very institution meant to offer them security and dignity.


MD. Noor Hamza Peash is a legal researcher 
and a freelance columnist.