POLYGAMY
Introduction:
Polygamy means that a man can engage into more than one marriage. The unrestrained polygamy of pre-Islamic Arabia was effectively restricted by Islam and a man was allowed only to marry four wives at one time.
I.) Contemporary Position:
The most relevant Quranic text on this subject is
Surah Al-Nisa, Verse 3, which states:
“If ye fear that ye shall not
Be able to deal justly
With the orphans,
Marry women of your choice,
Two, or three, or four;
But if ye fear that ye shall not
Be able to deal justly (with them)
Then only one
That your hands possess.
That will be more suitable,
To prevent you
From doing injustice”
Under guidance of this Quranic text, evidence form Sunna and massive support from Ijma, all schools, Sunni and Shia, are agreed that a Muslim man can have up to four wives at the same time if he is honest with all of them, i.e. if he can treat them all equally and fairly.
So, it is husband's responsibility to treat the wives equally and he has no need to submit himself to examination by any person or institute in advance of the final decision to contract a second or subsequent marriage. Therefore, it is a matter purely of personal conscience and male discretion.
II.) Controversial Issues:
Polygamy became a controversial issue because of two main reasons. Firstly, due to the ambiguity found in the above mentioned Quranic verse. The meaning of “equality” has been subject to different interpretations, i.e. equal maintenance or equal affection. The Quran itself appears to suggest that treating equally is impossible. S
urah Al-Nisa, verse 129 says that
“Ye shall not be able to deal in fairness and justice between two women however much ye wish”. This pushed for the argument that Islam never in fact gave permission for polygamy and it should be banned completely.
However, certain writers oppose this view and maintain the equality of financial support as the deciding criterion. It was said by Doi that once a Muslim marries more than one wife, it is essential for him to treat them equally in food, residence, clothing and even in sexual relationship as far as is possible. If one is a little doubtful in showing equal treatment in fulfilling their rights, he must not take more wives. Not all schools agree that a polygamous husband should provide all wives with maintenance on exactly the same basis. Doi himself emphasises the impact of different living standards.
Secondly, no corresponding right was given to Muslim women. In my view this tilts the balance in the marriage relationship. The very fact that a husband can marry another woman anytime places him in a much powerful position than the wife and he can use this as a constant threat against her. Worse than that is the fact that legal remedies available to a wife against her polygamous husband are limited. Hinchcliffe states “for the vast majority of Muslim women who find themselves in this unfortunate situation the law, unhappily, provides no solution whatever”. This situation led many women right’s groups to protest that the existence of polygamy hinders the progress in women liberation.
III.) Reasons for Allowing Polygamy:
Surah Al-Nisa was revealed after a battle which had resulted in many men being killed, leaving behind many war widows who found it difficult to provide for their children. It was in this context that polygamy was tolerated in Islam, to provide for the welfare of widows and their orphaned children.
Apart from this, in modern times, unbalanced sex ratio is also a cause for polygamy, i.e. there are more females than men. In hot climatic regions like Arabia, it is the man’s nature to have more than one woman to content himself. In such a situation, it is better to practice polygamy than to indulge in prostitution or extramarital affairs. Multiple marriages may serve as a potential alternative for divorce. Children would be better served if family expansion rather than only separation and dissolution were seen as options.
It is due to these reasons that Islam tolerated polygamy. In fact, the Islamic system, if fully practised, eliminates the dangers of seduction, prostitution and extramarital affairs. Thus, in line with this objective, numerous Islamic countries introduced reforms in this area.
IV.) Legislative Reforms:
The boldest step was taken by Tunisia and only it has abolished polygamy outright. The juristic argument is that since in modern economic conditions, the financial criterion of equal treatment has become impossible to fulfil, therefore, there is no more room for polygamous marriages.
In Syrian law financial ability appears to be the only criterion for polygamy. A judge has the power to deny permission for polygamy if the court thinks that a man cannot financially support two wives. However, if a man marries without the court’s permission, the marriage would still be valid but the man would be liable for penalties.
In Moroccan law, a subsequent marriage cannot take place until the new wife has been informed that the husband is already married. The existing wife has a remedy, in accordance with Maliki law, which allows her a ground for seeking divorce if she is not given proper maintenance.
The Iraqi law also imposed some restrictions on it. A man cannot marry more than one woman without authorisation from a judge who will only grant such permission if the husband can fulfil three conditions:
1.) He is financially capable of supporting an additional wife.
2.) There is no unlawful benefit for the husband in such a marriage.
3.) The Qadi must be satisfied that there was no fear of any unequal treatment of the wives.
Jordan provides no further remedy to women than to rely on stipulations in the marriage contract. In line with the Hanbali doctrine, a wife may seek a judicial divorce if the husband violates such a clause.
The Family Protection Act 1967 in Iranian law radically reformed this area. A man has to first satisfy the court of his financial capability to do justice with his wives. If he marries without the court's permission, it would nevertheless be valid, but the husband would be liable for sentence upto a maximum of two years. Hinchcliffe also noted that a wife who had not consented to the marriage could ask for divorce.
Egyptian law still does not support the complaining polygamously married wife, unless she can establish ill-treatment. Failure to treat a wife on a par with a co-wife could be construed as ill-treatment but Egyptian law does supports polygamously married wives in their claims for divorce.
In India, the situation is governed by the pre-partition Dissolution of Muslim Marriages Act 1939. Under S.2(8)(f) DMMA a Muslim woman shall be entitled to dissolve her marriage if the husband treats her with cruelty, i.e. if he has more wives and does not treat her equitably in accordance with the Quranic injunctions.
In
“Itwari v. Asghari”, a polygamous husband filed a suit for restitution of conjugal relations against the first wife. The judge found that Muslim law permits polygamy but does not encourage it since Quranic injunction showed that achieving perfect equality in the treatment of co-wives is practically impossible.
In
“Shahulameedu v. Subaida Beevi”, a Muslim wife refused to live with her polygamous husband after he failed to maintain her. It was said that the Quran enjoined monogamy upon Muslims and departure therefrom as an exception. Therefore, in the true spirit of the Quran polygamy is severely restricted. Thus, the wife was entitled to maintenance.
The current position in Indian law is therefore clearly that an unwilling wife to a polygamous Muslim marriage can approach the courts for various remedies, but cannot legally challenge the basic right of the husband to make polygamous arrangements.
Reforms in
Pakistan came in the form of S.6 MFLO which appears to restrict polygamy by making it mandatory to seek prior permission from the Arbitration Council.
This looks only of academic value as Rubya Mehdi correctly states that it seems useless in practice because obtaining prior permission form the Arbitration Council appears to be a formality only rather than an effective deterrent.
In
“Ghulam Fatima v. Anwar”, the husband's second marriage had been entered into without agreement of the first wife. This led the first wife to allege that the marriage was invalid as it was in violation of S.6 MFLO. However, the appeal was unsuccessful as the judge noted that even if a marriage is in contravention of S.6, it could not be held invalid.
This case, thus, led many commentators to argue that MFLO is ineffective as an effective deterrent to polygamy because the very fact that polygamy is lawful has a negative effect on woman’s position because it enables emotional pressures to be used as a constant threat to woman. In summary, it is evident that the legal reformers in Pakistan have not seriously attempted to control polygamy. Pearl observed that the law was not very effective and that many men were ignoring the MFLO procedures.