UCLA Journal of Islamic and Near Eastern Law

This paper is a legal realist endeavor that seeks to uncover a thorough and exhaustive description of Polygamy Law in Pakistan before moving on to a prescriptive analysis. Having an understanding of the stakes involved, background rules at play and the inadequacies within the law can be immensely useful in identifying the harm and redressing it. Thus, in first separating the “Is” from the “Ought”, Part I describes Pakistani polygamy Law and the limited legal remedies available to unwilling cowives. In Part II, the “background rules” driving the bargain amongst the parties’ to enter (or leave) polygamous marriages is discussed. Thereafter in Part III, a distributive analysis is conducted using “ideal-types” to uncover polygamy’s dual nature as a security or a threat for all the parties impacted by the law. Here I rely on the idea that marital partners “bargain in the shadow of the law” with bargaining endowments created in part by the legal rules. By comparing four typical but contrasting marriages and examining the rules about the formation and breakup of polygamous marriages, the role of the pre-existing and new wife’s consent (or not) and the economic consequences of poly-formation in ongoing and divorcing marriages, I demonstrate that the surpluses generated and distributions currently in place can both benefit and harm the cowives. Finally, Part IV will prescribe a restorative justice approach to the situation of unwilling cowives, arguing that the solution ought to be focused on redressing the social, emotional and economic harm caused to unwilling cowives than simply punishing the perpetrator. Monetary restoration, victim-focused circles, and involvement of the wider community are proposed as alternatives to punishment. My goal with this project is to provide a nuanced and theoretically informed understanding of a topic over which much ink has already been spilled. By using analytical techniques from the legal realist toolkit, I seek to recast the case of polygamy in Pakistan as more than just a “ban it” or “allow it” issue.