Summary of 7.30 “Marriage Laws in Islam IV (Marriage Contract)”
The bulk of the discussion related to the discussion of dowery or marriage gift as Islam calls it.’ We indicated that if it is not mentioned in the marriage contract the contract is still
alid.’ Also, the marriage gift need not be paid immediately but could be differed, a portion could be paid while the rest is deferred depending on the mutual agreement of both sides.’ We also talked about circumstances where the entire amount of marriage gift becomes due to the wife.’ We also discussed the case of adding conditions to marriage contract.’ So long as the conditions stipulated by one side or the other or both so long as there is mutual agreement are acceptable as long as they are not illegal in themselves.’ A brief discussion also issued with respect to the temporary (muta’a) marriage and we indicated that while this was permissible in the very early days of Islam it did not continue to be permissible.’ There are clear evidences that the Prophet indicated that it has been forbidden.’ It was just a stage that Islam went through just like in the stages of drinking.
7.31′ Polygamy in Islamic Law I (Historical Perspectives)
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Host:’ Can you explain the term polygamy and what it refers to?
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Jamal Badawi:
Polygamy is a broader term which is used for plurality in marriage.’ Specifically it refers to the practice of having two or more mates at the same time.’ In the technical sense.’ It is a broad term because it includes two types of plurality of marriage.’ It may include the wife having more than one husband at a time which sociologists refer to as polyandry which is not really what we are dealing with.’ This is not what we are dealing with because in Islam and related religions like Judaism and Christianity polyandry is not permissible at all.
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What we are going to talk about if we use the proper term is polygyny which means one husband who has more than one wife at the same time.’ Since polygyny is not a common term and maybe polygamy is not a common term for some but it is at least relatively more known that polygyny.’ If we were to use the proper term it would be polygyny in Islamic Law.
Host:’ The title of the topic for today’s discussion is Polygamy in Islamic Law could one imply from this that the ideal Muslim family should be a polygamous one?
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Jamal Badawi:
No, this is sometimes a common notion which is not necessarily a correct one.’ Indeed the ideal structure of a Muslim family is that of monogamy (having one husband, one wife and their children).’ Monogamy is presumed to be the normal ideal situation but also Islam did not necessarily condemn polygamy or regard it as being unlawful.’ There is no major outright condemnation of polygamy, nor is there a requirement or desirability in favor of polygamy.’ It is no more of a permissible act that may or may not be desirable in a given situation.’ It is essential to clarify that Islam neither introduced or invented polygamy as might be implied by the writings of some non-Muslims.
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In fact, if we analyze polygamy factually and historically we will find that polygamy is a practice that did exist in many ancient civilizations, many cultures and was consented to in religions such as Judaism and Christianity.’ It is more correct to say that Islam is the only monotheistic religion which dealt more openly with the topic of polygamy and was the first faith to restrict its unlimited practice by establishing certain conditions and control over its practice.
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Host:’ Can we explore some of the historical background of polygamy before we go onto Islam’s position on the subject?
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Jamal Badawi:
Many historians and sociologists tell us that polygamy as a practice was in existence in almost all ancient civilizations.’ For example, it was practiced among ancient Egyptions, Persians, Indo-Europeans, pre-Islamic Arabs and among the Slavs (Yugoslavia, Checkoslovakia and Russia).’ Even in some civilization where the normal code of law was against polygamy it still provided a way out in case polygamy was absolutely needed.’ For example, one famous code in history is known as the Code of Hammurabi.’ In the Code of Hammurabi monogamy was assumed to be the norm but within the code there were exceptions made where a person could have concubines along with their legitimate wife.’ Even in cases where the code of law was relatively more strict against the practice of polygamy like in the practice of Greco-Roman marriages.’ We find that many authorities on the subject and particularly Edward Westermark writes in A Short History of Marriage that the Greco-Roman codes of law liaison between married men and mistresses was not uncommon.’ So whether the law restricted it or not in reality the practice of having more than one female partner was not uncommon.’ This does not mean that in all ancient civilization that polygamy was the norm.’ This would be an over statement because this could only happen when the sex ratio i so low that there are at least two women for every man which of course does not happen.’ This simply show that it was practiced and was acceptable either legally, openly or by exception.’ This was not limited to ancient civilizations but also includes early Jews and Christians too.
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Host:’ Many would be surprised to hear that this was practiced by members of the Jewish and Christian community because many people in the West believe that polygamy is contrary to the Judea-Christian tradition.’ What is the attitude of the Hebrew people towards polygamy?
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Jamal Badawi:
This can be approached from the scripture of the Bible or from the historical sense and how things were interpreted and practiced by Jews.’ Even though the general impression is that polygamy is against Judea-Christian tradition we find that this is not correct.
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We will refer to the Bible (King James version) in the Book of Judges in 6:34 we are told that Gideon was so holy that the spirit of God came upon him and in the same book in 8:30 it says that he had many wives.’ Abdon who judged Israel for eight years had forty sons and of course we can easily say that one can not have forty sons without having more than one spouse.’ The mention of that is in the Book of Judges in 12:14.’ Even more explicitly in the 2 Conical in 11:21-23 we are told that Rehoboam had eighteen wives and threescore concubines.’ It is also well known according to the Bible that David had a hundred wives.’ Jakob is said to have had four wives.’ According to 1 Kings 11:3 it says that Prophet Solomon (Muslims regard him as a prophet) had seven hundred wives and princesses and three hundred concubines.
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More importantly is the case of Prophet Abraham.’ Prophet Abraham is highly regarded and respected by Jews, Christians and Muslims and is regarded as the patriarch of the monotheistic faith.’ The Bible describes Abraham as the friend of God.’ With holy and respected position of Prophet Abraham we all know according to the Book of Genesis 16:3 that he was married to two wives: Sarah his first wife who was barren and Hagar who was the bond woman of Sarah.’ Again the Bible mentions her as a wife.’ So he had two wives at the same time and one can not say that he was sinning or committing any immoral act by having two wives because it is quite obvious from the Book of Genesis that God consented.’ God gave Abraham details on what to do and He never told Abraham to divorce one and only keep one wife.’ Indeed it was mentioned in the Bible that when his first son Ishmael was born that the name was given to him by the angels which means God hears.’ God knew of this and still communicated with Abraham and obviously consented to his practice of having more than one wife.’ From either a Judea or Christian perspectives one can easily say that these great figures who are respected and whose revelations are regarded the main sources of religion and moral teachings are not immoral because they had more than one wife.
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It is not just the text of the Bible but the practice that shows that it was not a theoretical thing that was restricted to the Bible.
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Host:’ Could you expand about what actually was practiced by the Jews?
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Jamal Badawi:
For example according to the dictionary of the Bible the addition edited by James Hasting Published in 1963 in page. 624 ‘Polygamy meets us as a fact.’ For example Abraham, Jacob, the Judge, David, Solomon…” Then later he says ‘In Deuteronomy 17:17 the King is warned not to multiply wives, later regulations fixed the number at eighteen for a king and four for an ordinary man.’
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A noted authority who is usually referred to by many sociologists and historians on the matter of history of marriage is Edward Westermarck who has written several books on the subject.’ In one of his books A Short History of Marriage published in 1926 he says that ‘There is little doubt that the Jews throughout the ages more or less practiced polygamy.’
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In a more explicit explanation in his book The History of Human Marriage published in 1925 Volume 3 pages 42-43 he says ‘Among European Jews polygyny was still practiced during the middle ages and among Jews living in Mohammedan countries it occurred even to this day (1925) and explicit prohibition of it was not pronounced until the convening of the Rabbinical Senate at Vernes in the beginning of the 11th century.” This means that even four hundred years after Islam the practice of polygyny continued and was not explicitly prohibited till the 11th century.’ Then he continues ‘This prohibition was originally made for Jews living in Germany and Northern France, but it was successively adopted in all European countries.’ Nevertheless the Jewish marriage code retained many provisions which originated at the time when polygyny was still legally in existence.’
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It is obvious that polygyny was not regarded as illegal.’ Some writers say that he mentions that polygamy was practiced by Jews in Muslim countries and they ask if that is because of the influence of Islam (and Islam permits polygamy)?’ This is a superficial conclusion because in Muslim countries and within Islamic Law when there are religious minorities like Jews, Christians or otherwise Islam does not interfere with the personal law dealing with marriage and divorce.’ If Jews in Muslim countries who were following their own law wanted to prohibit polygamy Islam would not have interfered.’ Islam neither forced them to practice polygamy nor prohibited them from changing their own personal religious law to make it illegitimate.’ Some writers indicate that when the state of Israel was established on the land of Palestine that some of the Yamane Jews whom migrated in 1948 came to Israel with two or more wives and still they were regarded as legitimate.
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Host:’ What is the position of Christianity on this matter?’ A common belief is that Christianity explicitly prohibits polygamy.
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Jamal Badawi:
It is a common belief but this does not necessarily mean that it is correct when it is examined objectively by looking at the text of the scriptures and its manifestation in history with the approval of the doctors of law.’ It is important to point out that there may be certain references in the Bible which are rather indirect which show that Adam and Eve were a monogamous family and that this was a good model.’ There are statements to the effect that God created one man for one woman or the reverse which seems to assume monogamy.’ This is one thing and to say there was explicit prohibition of multiple marriages is another question.’ We have already shown that the text of the Bible seems to contradict that notion and that it was permissible to Prophets and as we will see it was practiced by priests as some historical authorities point out.’ It is also fair to say that the practice of polygamy among Christians has been relatively less common than it was among Jews or Muslims.’ This does not mean that it was totally absent.
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There are a number of points that one should keep in mind.’ We have already quoted the Old Testament on the matter of polygamy.’ The Old Testament is part of the heritage of Christianity.’ In fact Jesus had been quoted to have said ‘I cam not to destroy the Law or Prophets, I cam to fulfill.” A second point to keep in mind is that in the New Testament there is absolutely no explicit text (to my knowledge) in which Jesus (PBUH) said clearly that it is prohibited, immoral or illegal to marry more than one wife.’ In addition one may point out, as many historians and sociologists indicate, that the relatively more monogamous orientation in Christianity was a combination of a number of factors which were not necessarily based on legal prohibition.’ The factors included the attitude of early Christians towards sex and it being an inevitable evil and something to keep away from and that it is better not to get married.’ It might also have something to do with the preoccupation of early Christian teachers with soul saving which was and still quite prominent.’ In addition Christianity in the early period spread mainly in the Greco-Roman world where the legal norm was to have one wife, so there was no need to legislate it.’ In other words Christianity did not introduce it to the Greco-Roman world.’ An interesting remark made by Edward Westermarck that in the early days Christianity took root among the lower class (people who were poor and down trodden) who could not afford to afford to get married to more than one wife.’ In terms terms of the text of the New Testament I don’t think it is correct to say that there is explicit prohibition of polygamy.
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Host:’ Is there any historical evidence of any Christian church that consented to polygamous marriages?
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Jamal Badawi:
Edward Westermarck said in The History of Human Marriage published in 1925 ‘Considering as monogamy prevailed as the only legitimate form of marriage in Greece and Rome it can not be said that Christianity introduced obligatory monogamy in the western world.’ Indeed, although the New Testament assumes monogamy as the normal or ideal form of marriage it does not expressly prohibit polygyny except in the case of a bishop and deacon.’ It has been argued that it was not necessary for the first Christian teachers to condemn polygyny because monogamy was the universal rule among in whose midst it was preached, but his is certainly not true of the Jews who still both permitted and practiced polygyny in the beginning of the Christina era.” Then he moves on to the attitude of the fathers of the Church and he says ‘Some of the fathers accused the Jewish rabbis of sensuality, but no council of the Church in the earliest century apposed polygyny and no optical was put in the way of its practice by kings in countries where it had occurred in the times of paganism.” Then he started giving explicit examples of polygamous marriages approved by the Church.’ ‘In the middle of the sixth century Diarmait king of Ireland had two queens and two concubines.’ Polygyny was frequently practiced by Merovingian Kings.’ Charles the Great had two wives and many concubines and one of his laws seems to imply that polygyny was not unknown even among priests.’ In later times Phillip of Hess and Frederick William the Second of Prussia contracted bigamous marriages with the sanction of the Lutheran clergy.’ Luther himself approved of the bigamy of the former and so did Melanchthon.’ On various occasion Luther speaks of polygyny with considerable toleration ‘It had not been forbidden by God, even Abraham who was a perfect Christian had two wives.’ It is true that God had allowed such marriages to certain men in the Old Testament only in particular circumstances and if a Christian wanted to follow their example he had to show that the circumstances were similar in his case, but polygamy was undoubtedly preferred to divorce.’ In 1650, soon after the Peace of Westphalia when the population had been greatly reduced by the thirty years war, the Frankish Christag at Nurnberg passed the resolution that thens forth every man should be allowed to marry two women.” This was not only found in history but even among some Christian sects it was advocated as a better solution.’ Certain sects of Christians even advocated polygyny with much fervor.’ In 1531 the Anna Baptist openly preached at Manchester that he who wants to be a true Christian must have several wives.’ And the Mormons as all the world knows regards polygymy as a divine institution.’
