Attitudes to polygamy in english law

International and Comparative Law Quarterly

Volumn 52, Issue 2, 2003, Pages 369-400

  Shah, Prakash A ^a  

^a UNIVERSITY OF LONDON   (United Kingdom)

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EID: 85023138055     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/52.2.369     Document Type: Article

References (168)

1. For a definition of ‘personal law’ see J Duncan M Derrett, Religion, Law and the State in India (Delhi: Oxford University Press, 1968), 39–41.
2. See further, M Hooker, Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (Oxford: Oxford University Press, 1975). For the argument that personal law systems pre-date the colonial impact
3. see Werner Menski, Comparative Law in a Global Context. The Legal Systems of Asia and Africa (London: Platinium, 2000), 131–2
4. John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial Law 1–56
5. The term ‘official law’ is used by Masaji Chiba (ed), Asian Indigenous Law in Interaction with Received Law. (KPI: London and New York, 1986), 56 to mean ‘the legal system sanctioned by the legitimate authority of a country’
6. See in detail Menski, Modern Indian Family Law (Richmond, Surrey: Curzon, 2001), 139–230 on India
7. Doreen Hinchcliffe, ‘Polygamy in Traditional and Contemporary Islamic Law’ (1970) 1(8) Islam and the Modern Age, 13–38
8. and David Pearl and Menski, Muslim Family Law, 3rd edn (London: Sweet & Maxwell, 1998), 237–73
9. on Muslim law in South Asia and elsewhere; and J Duncan M Derrett, Introduction to Modern Hindu Law (London: Oxford University Press, 1963), 535–56 on Hindu law in East Africa.
10. In Kenya the applicable law is found in the Hindu Marriage and Divorce Ordinance, 1960 and in Uganda in the Hindu Marriage and Divorce Ordinance, 1961. Nuala Mole, Immigration: Family Entry and Settlement (Bristol: Jordan and Sons, 1987), 44 observes that: ‘The form of Hindu and Muslim marriage is broadly the same amongst the East African Asian communities as in the Indian subcontinent except that polygamy is rare amongst East African Asian Muslims and is not condoned by most communities.’ For South Asian Muslims
11. see similarly Cynthia Salvadori, Through Open Doors. A View of Asian Cultures in Kenya, rev edn (Nairobi: Kenway Publications, 1989), 186
12. n and Hinchcliffe, Through Open Doors. A View of Asian Cultures in Kenya, 27–8 who notes the rarity of polygamy among Ismaili Khojas in Africa, and points to a Holy firman issued by the Aga Khan in 1962, contained within part 7 of the Constitution, that forbade the practice
13. Menski, Modern Indian Family Law, 201–2
14. on Turkey and Tunisia and Ihsan Yilmaz, ‘Dynamic Legal Pluralism and the Reconstruction of Unofficial Muslim laws in England, Turkey and Pakistan’ (unpublished PhD thesis. London: School of Oriental and African Studies, 1999), 228–34 on Turkey.
15. on Turkey. In the recent case of Hassen v Director of Public Prosecutions (CO/182/97), 30 July 1997, QBD (unreported) a conviction of a Tunisian defendant for ‘bigamy’ was quashed ultimately on the basis that the prosecution had not been based on firm evidence about the legal position in Tunisia, where the defendant had contracted a first marriage. He, however, appeared to maintain that under Tunisian law he was allowed to enter into plural marriage. While not conclusive, this background to the case at least raises the question of the disjunction between the official Tunisian law and personal law
16. [1966] P 233, [1967] 1 All ER 737
17. See to similar effect, David Pearl, Family Law and the Immigrant Communities (Bristol: Jordan and Sons, 1986), 39
18. and Carolyn Hamilton, Family, Law and Religion (London: Sweet &Maxwell, 1995), 66.
19. For earlier Hindu cases in British courts see Archana Parashar, ‘Polygamous Marriage in Conflict of Laws’ (1982) II(3) Islamic and Comparative Law Quarterly 187–208 at 192–3.
20. [1975] QB 885
21. Two earlier prosecutions against imams for not following English rules on solemnisation, R v Mohamed (Ali) [1964] 2 QB 350 (actually a case from 1943)
22. and R v Bham [1966] 1 QB 159, also involve polygamy in the background, and conclude by effectively de-recognising nikah ceremonies as a condition of avoiding criminal penalties. Another case with similar implications
23. R v Rahman [1949] 2 All ER 165, is a bigamy conviction where the husband already had a first wife in India. This case was formally overruled in Bham. All three cases involved English women marrying South Asian men.
24. Menski, Comparative Law
25. For earlier potential polygamy cases see Ohochuku v Ohochuku [1960] 1 All ER 253
26. concerning Nigerian Christians and Sowa v Sowa [1961] 1 All ER 687 concerning Ghanaians
27. Arthur Phillips and Henry F Morris, Marriage Laws in Africa (London: Oxford University Press, for International African Institute, 1971)
28. Morris, ‘Indirect Rule and the Law of Marriage’, HF Morris and James S Read (eds), Indirect Rule and the Search for Justice. Essays in East African Legal History (Oxford: Clarendon Press, 1972), 213–50
29. J.N.D. Anderson, Islamic law in Africa (London: HMSO, 1954) is a useful source for Islamic law in British-dominated Africa.
30. Phillips (in Phillips and Morris, Marriage Laws in Africa, 86) explains the ‘softer’ attitude adopted by the colonial states in Africa with respect to polygamy: ‘It may be that the policies of the British and French governments have been to some extent influenced by their experience and commitments in other parts of the world (eg, India and North Africa) where Muslim law prevails.
31. In Phillips and Morris, Marriage Laws in Africa, 86
32. For confirmation of this view in light of social realities in Nigeria, see Emeka Iwuji, Marriage Form in Nigeria (Rome: Tipolitografia, 1983)
33. and in Ghana, see Ken Y Yeboa, ‘Bigamy and Islamic Marriages in the Law of Ghana: the Legislator's Dilemma or Studied Silence?’ (1993–1995) XIX Review of Ghana Law, 69–83.
34. On the other hand, in African countries where non-Orthodox Christianity has been accepted, a vigorous debate continues about the compatibility of Christian (Catholic) doctrine and traditional African customs including polygamy, particularly since Vatican II in the 1960s: see Peter M Kanyadago, Evangelizing Polygamous Families. Canonical and African Approaches (Eldoret, Kenya: AMECEA Gaba Publications, 1991)
35. (1886) LR 1, P&D 130 at 133.
36. For discussion see Sebastian Poulter, English Law and Ethnic Minority Customs (London: Butterworths), 47–51;
37. Richard Jones and Gnanapala Welhengama, Ethnic Minorities in English Law (Group for Ethnic Minority Studies, School of Oriental and African Studies; Stoke on Trent: Trentham), 109–18
38. Parashar, ‘Polygamous Marriage’, 206.
39. ‘Polygamous Marriage’, 206–7.
40. See similarly Lucy Carroll, ‘Definition of a ‘Potentially Polygamous’ Marriage in English Law: a Dramatic Decision from the Court of Appeal (Hussain v Hussain)’ (1984) IV(1–2) Islamic and Comparative Law Quarterly 61–71 at 63 and Hamilton, Family, 69
41. Law Commission, Family Law. Report on Polygamous Marriages (London: HMSO, 1972), 14.
42. Poulter, English Law, 55–6
43. Carroll, ‘Definition’, 67.
44. 26 Poulter, English Law, 56.
45. [1982] 1 All ER 369
46. (1983) 4 FLR 339
47. Carroll, ‘Definition’, 66–7
48. Poulter, English Law, 56.
49. English Law, 58
50. 30 Pearl, Family Law, 46.
51. Family Law 47
52. Carroll, ‘Definition’, 68–71
53. Poulter, English Law, 58
54. Pearl, Family Law, 47
55. Law Commission, Private International Law: Polygamous Marriages—Capacity to Contract a Polygamous Marriage and Related Issues. Law Commission Report, No 146, Scottish Law Commission Report No 96 (London: HMSO, 1985)
56. See, eg, Sumeina Masood [1992] Imm AR 69.
57. For comment, see Sanjiv Sachdeva, The Primary Purpose Rule in British Immigration Law (Group for Ethnic Minority Studies, School of Oriental and African Studies; Stoke on Trent: Trentham, 1993), 155–8;
58. Menski, ‘South Asian Women in Britain, Family Integrity and the Primary Purpose Rule’, Rohit Barot, Harriet Bradley and Steve Fenton (eds), Ethnicity, Gender and Social Change (Basingstoke: Macmillan and New York: St Martin's Press, 1999), 81–98
59. Poulter, English Law, 60–1;
60. Law Commission, Polygamous Marriages. Capacity to Contract a Polygamous Marriage and the Concept of a Potentially Polygamous Marriage. Law Commission Working Paper No. 83 and the Scottish Law Commission Consultative Memorandum No 56 (London: HMSO, 1982)
61. Law Commission, Private International Law: Polygamous Marriages—Capacity to Contract a Polygamous Marriage and Related Issues (Law Commission Report, No 146, Scottish Law Commission Report, No. 96 London: HMSO, 1985)
62. Law Commission, Polygamous Marriages, 84
63. Polygamous Marriages, 107
64. Sebastian Poulter, ‘The Claim to a Separate Islamic system of Personal Law for British Muslims’, Chibli Mallat and Jane Connors (eds), Islamic Family Law (London: Graham and Trotman, 1990), 147–66
65. Marie-Claire Foblets, ‘Conflicts of Law in Cross-Cultural Family Disputes in Europe Today. Who Will Reorient Conflicts Law?’, Marie-Claire Foblets and Fons Strijbosch (eds), Relations Familiales Interculturelles/Cross Cultural Family Relations (Oñati: International Institute for the Sociology of Law, 1999, 27–45;
66. Silvio Ferrari, ‘Introduction’, Silvio Ferrari and Anthony Bradney (eds), Islam and European Legal Systems (Aldershot: Ashgate, 2000), 1–9 esp. at 6–8
67. Establishing just what is the ‘personal law’ here may not be a simple exercise. In the context of debates on shari'a not only are there differences as between the schools of law, but also with respect to the place of pre-Islamic customs, and serious consideration may have to be given to the latter and to how they are changing with migration. Salvadori, Through Open Doors, 184–7
68. explains this for South Asian Muslims in Kenya, and Roger Ballard, ‘Popular Islam in Northern Pakistan and its Reconstruction in Britain’ (Paper presented at the International Workshop on Islamic Mysticism in the West, Buxton, Derbyshire, 22–24 July 2001, also at: ) for South Asian Muslims in Pakistan and Britain. On Muslim law and customs
69. see Pearl and Menski, Muslim Family Law, 38–43
70. and for concerns focused on Britain, see Samia Bano, ‘Muslim South Asian Women and Customary Law in Britain’ 4 Journal of South Pacific Law
71. One line of cases concerns the imputation of polygamy where a prior divorce has not been recognised for failure to comply with the expectations of the official law. Rukshana Begum Choudhury (9665), 20 Jan 1993 (unreported) concerned a refusal to recognise a divorce given to a wife in Bangladesh on the basis that the husband had acquired a domicile in England by that time, and for that reason his subsequent marriage was also not recognised.
72. The Immigration Appeal Tribunal reversed this finding, however, and held that he had never lost his domicile in Bangladesh. In Mohammed A. Hamid (14314), 10 Dec 1996 (unreported) the Immigration Appeal Tribunal heard the appeal of a wife initially refused leave to enter on the basis that her marriage to her Yemeni husband was polygamous. The Tribunal held, however, that neither the husband's prior talaq to his long-standing first wife, pronounced before an imam in Liverpool, nor the subsequent marriage at the Liverpool Islamic Cultural Centre, an unregistered building, were legally effective.
73. See further, Pearl and Menski, Muslim Family Law, 382–98 on the problem of recognition of Muslim divorces in Britain
74. and Jones and Welhengama, Ethnic Minorities, 118–32
75. and Abla Mayss, ‘Recognition of Foreign Divorces: Unwarrantable Ethnocentrism’, John Murphy (ed), Ethnic Minorities, Their Families and the Law (Oxford, UK and Portland, Oregon: Hart, 2000), 51–70 on ethnic minority divorces more generally
76. Pearl, Family Law, 40
77. Roger Ballard, ‘The Pakistanis: Stability and Introspection’, Ceri Peach (ed), Ethnicity in the 1991 Census. Volume Two. The Ethnic Minority Populations of Great Britain (London: HMSO, 1996), 121–49, at 126
78. See also Ballard, ‘Migration and Kinship: the Differential Effect of Marriage Rules on the Processes of Punjabi Migration to Britain’, Colin Clarke, Ceri Peach, and Steven Vertovec (eds), South Asians Overseas. Migration and Ethnicity (Cambridge: Cambridge University Press, 1990), 219–49
79. Roger Ballard, ‘Introduction: the Emergence of Desh Pardesh’, Ballard (ed), Desh Pardesh. The South Asian Presence in Britain (London: Hurst & Co, 1994), 1–34 at 20.
80. See also Satvinder S Juss, Discretion and Deviation in the Administration of Immigration Control (London: Sweet & Maxwell, 1997), 47–8 to similar effect
81. Katy Gardner and Abdus Shukur, ‘ “I'm Bengali, I'm Asian, and I'm living here”. The Changing Identity of British Bengalis’, Ballard (ed), Desh Pardesh, 142–64, at 150
82. John Eade, Tim Vamplew, and Ceri Peach, ‘The Bangladeshis: the Encapsulated Community’, Peach (ed), Ethnicity in the 1991 Census. Volume Two. The Ethnic Minority Populations of Great Britain (London: HMSO, 1996), 150–60, at 151
83. Ballard, ‘Introduction’, 20
84. Ballard, Desh Pardesh. For Bangladeshis specifically see, Katy Gardner, Global Migrants, Local Lives. Travel and Transformation in Rural Bangladesh (Oxford: Clarendon Press, 1995), 114–21
85. Sachdeva, The Primary Purpose Rule, 108–11; Juss, Discretion
86. Pearl, Family Law, 40–1
87. Law Commission, Polygamous Marriages, 47–8.
88. For more recent developments see Ian A Macdonald and Frances Webber (eds), Immigration Law and Practice in the United Kingdom (London: Butterworths, 2001), 423–4
89. Law Commission, Polygamous Marriages, 52.
90. Polygamous Marriages, 47–8.
91. Pearl, Family Law, 48
92. [1979–1980] Imm AR 48
93. Pearl, Family Law, 42–3
94. Pearl, Family Law, 43
95. Johanara Begum and Others v ECO, Dacca (1261), 9 June 1978
96. and Arifun Nessa and Others v ECO, Dacca (3392), 1984 (both unreported)
97. Pearl, Family Law, 43
98. HC 81 (1973), para 37, equivalent paragraphs also to be found in other Rules in force at the time.
99. At [1979–1980] Imm AR 51.
100. Pearl, Family Law, 43, 45
101. Laurie Fransman, British Nationality Law (London: Fourmat, 1989), 204
102. Pearl, Family Law, 44
103. Family Law, 44–5;
104. Fransman, British Nationality, 204.
105. There appears to be a parallel between this line of cases and the early liberal approach of the Immigration Appeal Tribunal to appeals against the application of the primary purpose rule, which later became significantly tighter, see Sachdeva, The Primary Purpose Rule
106. [1983] Imm AR 163.
107. [1986] Imm AR 461.
108. [1985] 2 All ER 733
109. Rafika Bibi (4603) (unreported); see Mole, Immigration, 42–3
110. [1989] Imm AR 1
111. The approach was followed in Sofura Bibi (8601), 24 Feb 1992 (unreported), in another case involving a marriage entered into prior to 1 Aug 1971
112. Another reason for refusal continued to cause problems, however. This was the contradiction that was often apparent in sponsors declaring that they saw the UK as their future home for the purpose of supporting their spouse's settlement application, and the same information then being used by ECOs to argue that the sponsor's domicile of origin had therefore been lost, leading to a declaration of invalidity of the marital relationship. Refusals based on this line of reasoning were, however, successfully challenged before the Tribunal in Rukshana Begum Chowdhury (9965), 20 Jan 1993
113. and before Sedley J in R v Immigration Appeal Tribunal, ex parte Miah (CO/2100/92), 14 June 1994 (both unreported).
114. See, further, David Jackson, Immigration: Law and Practice, 2nd edn (London: Sweet & Maxwell, 1999), 58
115. and Macdonald and Webber, Immigration Law and Practice, 423–4.
116. Juss, Discretion
117. Sachdeva, The Primary Purpose Rule
118. See, in detail, Fransman, ‘Family Settlement Cases: a Denial of Statutory Rights’ (1986) 1(1) Immigration and Nationality Law and Practice 5–15;
119. Fransman, British Nationality, 210–31
120. Fransman, British Nationality, 215
121. Sachdeva, The Primary Purpose Rule, 40
122. The requirement to maintain and accommodate immigrating family members were introduced by changes in the Immigration Rules, HC 503 (1985)
123. see Sachdeva, The Primary Purpose Rule, 91–100.
124. They became crucial in practice after the 1988 Act. On this and more generally on the impact of the 1988 Act, see Prakash A Shah, ‘Bangladeshis in English Law’ (Paper Presented at Conference on ‘Bangladeshis in Britain: Changes and Choices, Configurations and Perspectives’, 24 and 25 May 2002, London Guildhall University, also at )
125. 82 These came into force on 1 Aug 1988 as amendments to the then prevailing statement HC 169, paras 1B-1D; see Peter RH Moss, ‘Statement of Changes in the Immigration Rules HC 555: a Note for Practitioners’ (1988) 3(3) Immigration and Nationality Law and Practice 54–6.
126. HC Debs, vol 122, col 785.
127. 84 HC Debs, col 189
128. Stuart Randall MP, HC Debs, vol 122, col 846.
129. HC Debs, col 826
130. See Poulter, ‘The Claim to a Separate Islamic System’; Sebastian Poulter, ‘Multiculturalism and Human Rights for Muslim Families in English Law’, Michael King (ed), God's Law Versus State Law. The Construction of an Islamic Identity in Western Europe (London: Grey Seal, 1995), 81–7;
131. Hamilton, Family, 71–3
132. Jackson, Immigration, 57.
133. Macdonald and Webber, Immigration Law and Practice, 418 discuss polygamous marriages as one of the areas, together with the recognition of talaq divorces, where there were ‘particular problems likely to be encountered in immigration cases’
134. [1995] Imm AR 249.
135. [1994] Imm AR 326, QBD
136. Zeenat Bibi v Secretary of State for the Home Department [1994] Imm AR 550
137. [1996] Imm AR 582
138. HC 395 (1994), para 296
139. Menski, ‘Family Migration and the New Immigration Rules’ (1994) 8(4) Immigration and Nationality Law and Practice 112–24, at 118
140. [2001] INLR 109
141. [2001] Imm AR 318
142. Pearl, Family Law, 48
143. Prakash Shah, ‘Children of Polygamous Marriage: an Inappropriate Response’ (2002) 16(2) Immigration, Asylum and Nationality Law 110–13
144. Appl. 19628/92, Bibi v UK (Dec) 29 June 1992
145. Karen Reid, A Practitioners' Guide to the European Convention of Human Rights (London: Sweet & Maxwell, 1998), 277
146. Philip Lewis, Islamic Britain. Religion, Politics and Identity among British Muslims (London: IB Tauris, 1994), 2–7, in his Bradford-focused study, highlights education and the burning of the Satanic Verses as the two most prominent features publicly connected with Muslims in the Britain of the 1980s.
147. Both issues had their legal impacts in different ways. The Education Reform Act of 1988 sought to reinforce the notion that worship and religious education in English schools ought to reflect Christian traditions: see A Bradney, ‘The Dewsbury Affair and the Education Reform Act 1988’ (1989) 1(2) Education and the law 51–7.
148. The Satanic Verses affair meanwhile led to a debate on the scope of English blasphemy law: see Jones and Welhengama, Ethnic Minorities, 179–212
149. Pearl and Menski, Muslim Family Law, 74–7
150. Pearl and Menski, Muslim Family Law, 77–80;
151. Yilmaz, Dynamic Legal Pluralism. The growing literature about alternative dispute resolution offered by shari'a councils of various types in Britain testifies to the widening chasm between Muslims and the official legal system.
152. See Zaki Badawi, ‘Muslim Justice in a Secular State’, Michael King (ed), God's Law Versus State Law. The Construction of an Islamic Identity in Western Europe (London: Grey Seal, 1995), 73–80;
153. Lucy Carroll, ‘Muslim Women and ‘Islamic Divorce’ in England’ (1997) 17(1) Journal of Muslim Minority Affairs 97–115;
154. Pearl and Menski, Muslim Family Law, 77–80, 393–8;
155. Sonia Nûrîn Shah-Kazemi, Untying the Knot. Muslim Women, Divorce and the Shariah (London: Nuffield Foundation, 2001)
156. Menski, ‘Asian Laws in Britain and the Question of Adaptation to a New Legal Order: Asian Laws in Britain?’, Milton Israel and NK Wagle (eds), Ethnicity, Identity, Migration: the South Asian Context (Toronto: Centre for South Asian Studies, University of Toronto, 1993), 238–68, at 255
157. Yilmaz, Dynamic Legal Pluralism, 167.
158. Ihsan Yilmaz, ‘The Challenge of Post-Modern Legality and Muslim Legal Pluralism in England’ (2002) 28(2) Journal of Ethnic and Migration Studies 343–54, at 348–9
159. [1998] 1 FLR 375
160. [1998] 1 FCR 301
161. [1997] Fam Law 793.
162. Other similar cases are R v Department of Health, ex parte Misra [1996] 1 FLR 128, QBD concerning entitlement to a pension scheme and widow's benefit where there were two Hindu widows, and Al Mansorri v Social Security Commissioners, 12 July 1995, CA (unreported), concerning widow's benefit where the second wife was also deceased.
163. [2001] 2 FLR 6
164. Gandhi v Patel [2002] FLR 603 is a recent Hindu case where an inheritance dispute leads a widow to resort to court, for her only to discover that her polygamous Hindu marriage contracted in England was a ‘non-marriage’, as distinct from a ‘void’ marriage, thus altogether disentitling her from challenging the will of her deceased husband
165. Foblets, ‘Conflicts of Law’;
166. Ferrari, ‘Introduction’
167. ‘Introduction’.
168. Menski, ‘Asian Laws’ and Ihsan Yilmaz, ‘Law as Chameleon: The Question of Incorporation of Muslim Personal Law into the English Law’ (2001) 21(2) Journal of Muslim Minority Affairs 297–308