Summary of 7.35 “Polygamy in Islamic Law III (Historical Perspectives)
‘
In the last program we covered the meaning of ‘justice’ which is a prerequisite for polygamy in Islam.’ We also discussed the fact that Islam for the first time (from among all other world scriptures) specified the maximum number of wives to be taken under any circumstances.’ This is a step in the commonly unrestricted practice of polygamy.
‘
The main part of the program analyzed some of the possible reasons why polygamy was permitted in Islam.’ We started Divine Wisdom which allowed it in various religions, even before Islam, which must have a good reason.’ Second, as a universal message to all people of all times and places which might have different cultural needs, social problems and individual problems; Islam proposes practical and wholesome solutions to all of these rather than just talking about idealistic things that does not exist in the world of humans. ‘More specifically we talked about the collective reasons which may make polygamy a more wholesome and compassionate solution.’ Such as the case of low sex ratios as a result of wars and more fatalities among men depending on different circumstances.’ Towards the end of the program we dealt with some circumstances of individual cases such as incurable diseases or a wife who might be confined for years (mental hospital) where any other alternative other than polygamy would be cruel, because it would involve divorcing a sick wife who is in need of support during her suffering or to encourage the husband to do illegitimate things to satisfy his needs.
‘
7.34′ Polygamy in Islamic Law IV (Historical Perspectives)
‘
Host:’ Can we continue with additional examples of individual circumstances?
‘
Jamal Badawi:
A common example is in the case of bareness which can be from the man’s or woman’s side.’ Suppose there is a case of bareness on the woman’s side.’ It is part of the human instinct to want to have children of their own.’ What would a person faced with this do if he wishes to have children of his own which is not possible with his wife?’ Should he suffer for the rest of his life?’ Or should he divorce his wife whom he loves so dearly?’ Of course some people might suggest adoption (Islam does not allow adoption in the Western sense but allows fostering).’ This is possible and if it satisfies his needs and his wife’s needs then it is fine.’ But on the other hand there are some people who wish to have children of their own.’ One would not expect them to suffer for the rest of their lives.’ In a case like this taking a second wife may be, in some cases, a more superior and compassionate solution than divorcing his wife, or going through this type of torture.’ There are similar cases of individuals who have different dispositions (God created people with different energies and feelings) and there may be some exceptional cases where people have the overpowering urge which may not be consistent with the predisposition of his wife.’ In cases like these, rare as they may be, the only alternative would be to push him to commit acts of adultery outside of the marital bonds.’ If such exceptional cases exist it is more moral to have things in the open, to have relationships which are protected legally and are natural, instinctive, marital relationships than to encourage this kind of backroad solution to the problem.’ There could be a variety of situations like this which do not necessarily happen to every person or in every place but it does occur once in a while.
‘
Host:’ We have discussed polygamy from the male perspective, can we look at it from the female’s side?’ Can we look at the options of the second wife?
‘
Jamal Badawi:
In the rules of marriage in Islam the consent of both parties is a prerequisite for the legality of a marital relationship.’ In cases where a woman does not agree and is forced into a given marriage it could be nullified.’ A second wife should not be forced into a relationship with a man who is already married to another wife.’ She has to voluntarily choose and agree to this type of marriage.’ If we put emotions and social orientations aside which might vary and try to look at it on a more honest and objective level.
‘
It should not be too difficult to point out to certain cases where it is a good solution for the second wife.’ An example would be a widow or divorcee who may have three children.’ Her chances for marriage may not be that great; for this woman to marry a man and be his only wife.’ It does happen but it may not be as attractive and her chances may be greatly reduced.’ In a case like this a woman may find out that it is better for her to experience the warmth of marital relationship and to have a male around or a step father to help in the upbringing of her children.’ She may find that her position as a second wife is still better than loneliness and having to struggle alone in life.
‘
There may be cases where a woman may not be in that particular position but in cases of low sex ratio where the youth are not interested in getting married, again the only alternative before her would be to spend her life as a spinster without having experienced the marital relationship.’ If that extends for too long she may be tempted to break moral laws whether for physical or emotional reasons.’ In a case like this she may decide that it is better for her to marry as a second wife rather than to remain single for the rest of her life.’ These examples are not theoretical.’ If we open our eyes and look around us, even in our own neighborhoods, we might see that there may be some cases where a great deal of suffering and depravation is taking place which leads to the breaking of moral law.’ In situations like that Islam offers a solution.’ Instead of saying that one has to suffer for the rest of their life or force individuals to break moral laws it provides a clean and practical solution.
Host:’ What about the first wife?’ Is it necessary that she consent to the husband taking a second wife?’ What options and protection are open to her as the first wife?
‘
Jamal Badawi:
We can not say that the agreement of the first wife to her husband taking a second wife is an absolute prerequisite.’ But we can say that within the spirit of Islam and the spirit of Islamic Law in general that it is only appropriate to have some discussion and consultation about the matter with the first wife.’ A person who gets married to a second wife in secret, or to surprises the first wife after the decision is made is not regarded to have good character.’ This is not a decent act on the behalf of a Muslim.’ We are not talking strictly in terms of legality but appropriateness.’ It is however, possible that the first wife has what amounts to a veto right on her husband taking a second wife.’ In Islamic Law at the time of marriage if the first wife specified in the marriage contract that her husband should not take a second wife many jurists say that this condition is enforceable and would be binding on the husband.’ Various schools differ in the explanation but not the principle.’ In the Hanbali School of jurisprudence they say that marriage could be invalidated if he takes a second wife on the basis of violation or breaking of the marriage contract.’ In other schools like the Maliki School of jurisprudence they said that she could ask for the nullification of the marriage because of harm was inflicted upon her because of his violation of the contractual commitment or agreement.’ This would be a no fault type of divorce on her part.
‘
There is also another for of protection for the first wife.’ This can amount to a veto right on polygamy.’ This is called ismah in Arabic which is translated in English delegated repudiation.’ This simply mean that a woman at the time of marriage may specify in the contract that she would have the unilateral right to divorce her husband in this case.’ In which case if her husband takes a second wife and she doest feel happy with it she has the right according to that clause to divorce her husband unilaterally.
‘
Host:’ What about circumstances where marriage contracts do not place any restrictions on polygamy, does the wife still have the unilateral right to divorce?
‘
Jamal Badawi:
No, it does not mean that she has no protection if it is not specified.’ In Islamic Law a woman is also entitled to seek divorced for good reasons.’ If a wife can show that her husband taking a second wife caused her harm or injustice which is against the pre-condition of polygamy.’ In order for polygamy to be permissible there has to be equal justice: no first and primary wife etc.’ In this case she can go to the judge and ask for divorce.
‘
Host:’ What happens if the judge is not convinced that there is any real harm?
‘
Jamal Badawi:
In Islamic Law there is a system which is not known in the West, which is called khul’ which means that even if there is no fault on the part of the husband (applies to polygamy or other cases) and the judge could not find any fault (with the case above the judge could not find fault except that he simply needed a second wife) the first wife who is not happy can make an agreement with the husband to pay him some financial compensation in order to get out of this marital relationship.’ This compensation is usually in the form of returning the marriage gift, mahr or sadaka, that he gave her for the marital relationship or any other property he gave her because of the marital relationship.’ Justice demands that if she wants to get out of the marriage then at least she should give back the things that he gave her with the understanding that it would be a lasting marital relationship.’ She can apply this option if she feels that it is against her best interest to continue as his wife.’ She also has the other option of staying if she feels that it is comparatively better for her to remain his wife.
Host:’ If she offers to make this payment in order to get out of the marriage is he obligated to accept?
‘
Jamal Badawi:
Yes, the husband has no right to refuse it and they have to work out the financial agreement.
Host:’ Why is polyandry (plurality of husbands) prohibited?
‘
Jamal Badawi:
First we will look at this from an Islamic point of view then from historic and analytical point of view.’ To start with polyandry or having more than one husband for the same wife is not permissible in Islamic Law under any circumstances.’ In fact when we go back to the Quran in the verses which mentioned or alluded to polygamy in (4:3 and 129) it says marry women of your choice, it does not say marry men or women.’ The Quran is very delicate and accurate in its expressions.’ This rules out the notion of polyandry because it was only the female gender that was used.’ Again aside from the fact that there is absolutely no difference among jurists polyandry is not permissible in Islam, if we look at it historically speaking (no just the history of Muslims but the history of the world) we will find that the incidences of polyandry are very rare.’ I am not saying it is not existent, it did exist, and might even still exist.’ It is however very rare in comparison to polygeny.’ We have seen before that even Israelite Prophets in various religions in their early stages of development including Judaism, Christianity and Islam permitted (Islam still permits) polygeny.
‘
When we try to explain why this was more common in all civilizations, religions and different parts of the world.’ Perhaps some analytical questions may be useful.’ First of all, biologically speaking a woman gets pregnant once at a time where as a man may have several kids from his progeny at the same time if he has more than one wife.’ It is well known in all cultures and everybody agrees that every child is entitled to know his lineage, to know who is his mother is and who his father is.
‘
Lets assume for the sake of argument that a woman has more than one husband and she gets pregnant.’ Who’s child would she be carrying?’ When the child is born his mother will be known but if she is married to three husbands his father will not be known.’ This is a very difficult question which has no practical solution if we look at it from a purely biological point of view.
‘
Second, a social aspect, it is not generally the male’s side is the head of the family (even in the contemporary world) not as dictators but he holds some kind of leadership of the family.’ If a woman is married to more than one husband who is the boss?’ This leads to a situation (considering males aggressive and dominating nature) where blood will be spilt.’ I can’t imagine the situation where two husbands are competing for the same wife under one household.
‘
In addition to these biological and social aspects I think there is something that is even more important than that which has to do with the innate and psychological aspect of it.’ For a woman the matter of sex is much deeper than it is for males.’ I am not saying that males don’t have feelings in matters of sex but comparatively speaking the instinctive nature of the female is that sex is very much tied with not just the physical but emotional and feelings aspect (more so than the male).’ It follows from this that her feelings tend to concentrate on one particular person.’ I am talking about a natural healthy female whose mind and values are not polluted by promiscuous situation or rampant loose sexual morality.’ I am not saying this in terms of a theory but I have talked to many females regarding the same issue and I would ask them if they could imagine or perceive themselves to be the wife of more than one man?’ And it is almost a universal answer that it is not comprehendible.’ Of course, imagining herself being a second wife or the first wife of a man who has more than one wife is still also not as pleasant, but the comparative degree is quite different.’ This is why we find some scholars who say that women by nature is much more monogamous in her attitude where as man has some elements of polygamous tendencies.
Host:’ What happens in a situation where the husband is barren or chronically ill?’ What can a woman do if she is not permitted to have more than one husband?
‘
Jamal Badawi:
If a woman faces a problem like that she has various options.’ The woman is not forced to stay in this situation at all.’ If a woman wants to be kind and compassionate it doesn’t mean that she should marry another husband while also looking after her sick first husband (this wont work).’ If she is really sacrificing and wishes for the sake of God or for whatever noble motive she may have to look after her husband and children she may do so.’ If on the other hand to terminate the marital relationship then she can use the same majors described before in case like that.’ We talked about these measures in the case when the husband takes another wife and she the first wife doesn’t agree.’ Now we are talking about a wife whose husband is chronically ill or is confined to a mental hospital and she does not wish to live like that.’ She can apply the same majors: she can go to the judge and ask for divorce and of course that would be a very justifiable reason.’ She can use her ismah if it was specified in the contract, suspended repudiation which might preserve some rights or certain conditions or she can ask for khul’ and she can return the property that he gave to her in return for nullifying the marriage.’ So it is not the same exact thing on both sides.’ God created males and females with different dispositions.’ They are equitable in the basic human and spiritual structure but not necessarily in every aspect of their lives and their nature.’ The solution is there which is equitable rather than it being a superficial and mathematically equal.
‘
These solutions are more than what are found in Western Laws.
