Social System of Islam- Polygamy in Islamic Law V (Historical Perspectives)

Summary of 7.34 “Polygamy in Islamic Law IV (Historical Perspectives)”

Summary:

We continued our discussion last time of some of the contingent situations which may make polygyny a better solution: for cases such as barrenness, illness and so on.’ We also talked about some of the guaranties and protection provided for women in the case of polygyny whether she is a second wife (so that she is not forced into that situation) or a first wife.’ We indicated a variety of things that could protect her (the wife that is in situation where her husband is remarrying)such as ismah or delegated repudiation where she has the right to a unilateral divorce should her husband take a second wife if it is specified in the contract.’ She could include strict monogamy as a condition for the continuation of her marital relationship or she could go to the judge if she is hurt and feels that her rights and vested interest has been affected by her husband taking a second wife.’ If the judge doesn’t agree we said she can apply the concept of khul’ and make an agreement to return some of the gifts gave to her and she would be relieved from the marital relationship.

Finally, we dealt with the question why Islam does not allow polyandry (marriage of one woman to multiple men) and we discussed this issue from the biological, social, instinctive and psychological aspects.

7.35′ Polygamy in Islamic Law V (Historical Perspectives)

Host:’ What are some disadvantages to polygamy?

Jamal Badawi:

Of course the most obvious disadvantage is the question of jealousy.’ No matter what type of woman with the degree of faith to God, no woman wishes that any other woman shares her husband (shares his love, affection or resources).’ This is a nature human inclination.’ There are disadvantages for men as it is quite a job to keep two wives (not only financially) but it is tough as far as the Islamic requirement of absolute justice (whatever is humanly possible) between all the wives.’ Obviously as a result difficulties, particularly the issue of jealousy, would be a constant problem for the man.’ There are constant quarrels that are likely to arise between the wives which could make his life very difficult.’ Even if there is harmony between the wives they could conspire against him.’ They could harmonious with each-other but conspire together against him to get whatever they can or want from him.’ This kind of struggle could also be passed on to the children.’ If the man has children from more than one wife, there is difficulty in vying for power and the favor of their father.

In addition to this Islamic Law shows that polygamy should be used not abused.’ It should be used as a last resort for certain problems and not as a rule just like any other thing that is permissible.’ There is always a chance of abuse of these concessions.’ The problem boils down to weighing the relative harms and benefits from resorting to this measure.’ Whenever the benefits are greater then polygamy might be a more wholesome solution.

Host:’ Can you elaborate on weighing the harm verses the benefits of polygamy?

Jamal Badawi:

In societies where polygamy has been totally outlawed we find that the problems that can be connected to the prohibition of polygamy are relatively greater than any problems that may result from allowing polygamy.’ In extenuating circumstances, as we have discussed in previous programs, we find that the people who are effected whether they are men or women face very difficult and limited choices if polygamy is not permitted.’ They may be subject to suffering for the rest of their life from the depravation from the warmth of marital life, the satisfaction of their instinctive needs in a moral and wholesome matter and the satisfaction of their need to have children and a family.’ This may lead some women who do not have a chance to get married otherwise to look for jobs in order to support themselves and in some cases in order to support themselves and their children (if they are widowed or divorced with children) who can not find a husband that would be married to them alone.’ No matter how much a woman makes from a job in salary or status it definitely does not compensate for the basic yet strong instinct to experience motherhood and raise a family.’ We find that closing a door to a wholesome and moral solution (such as polygamy if need be) to some of these problems opens the door to moral corruption in society which ultimately leads to the destruction and disintegration of the family.’ It may also lead to more cases of divorce.’ Sometimes a problem like we discussed before can be solved by getting a second wife; if the door is closed the only other alternative would be to get a divorce which is another problem.’ This starts another vicious cycle with the consequences of divorce in the way the effect the woman, man and the children.

When we look at the problem with an objective eye and while putting emotions aside: we find that the various alternatives that are available in view of the moral values, prohibit adultery, illicit sexual relations and which considers sexual relations without commitment to be repulsive, to be less repulsive.’ It is very strange that some people would consider illicit sexual relations to be ok but pure and wholesome marital relationships, even within the context of polygamy, as repulsive.

Would it be better for a person to have a second wife (in the case that it is a necessary step to solve certain problems) who is married publicly, with all her rights and her children’s’ rights intact and has the right to her husband’s inheritance after his death or to for a person to take part in hypocritical monogamy, but in the same time having mistresses and other illicit relationships where there is no protection, no moral laws and there is no commitment?’ On top of that there is also psychological torment that the person goes through when knowing that he is committing infidelity towards his wife and that he is hiding certain things.’ In this case eventually the first wife will have doubt and then shock when she actually finds out about it.

Even in this case we should remember what was mentioned in the very early portions of this program that polygamy as viewed by Islam is not the general rule but rather something to deal with exceptional problems which is both practical and moral.

Host:’ Can you explain to what extent polygamy is common in the Muslim world today?

Jamal Badawi:

Unlike what some people feel as was indicated earlier in these programs some people seem to unfairly and incorrectly associate polygamy with Islam.’ We have seen lots of evidence against that.’ Also, people tend to think that in Muslim countries, because Islam permits polygamy that it is rampant.’ Many times my non-Muslim friends ask when we talk about marriage, ‘how many wives do you have?’ I reply that I have only one wife and that I have at no time felt any need for considering any different options even though Islam permits it.’ It is just a false stereo type and an over generalization.

Various scholars give different figures of polygamous marriages in the Muslim world, depending on the country where the surveys are taken.’ In non of them (contemporary figures) were there any figures which was more than a fraction of one percent.’ Even then we find it to be more common in certain social situations and circumstances like among peasants for example where children are very important part of the family and the economic situation.’ There is no evidence also that there is an increasing or alarming increment in the number of people who are practicing polygamy even in Muslim countries where this is permitted.’ There are no major problem, as such, that is alarming.

Host:’ What is your view of those people who call for the Prohibition or abolition of polygamy in Muslim countries?

Jamal Badawi:

There are some among Muslim scholars and people who have taken that position.’ Quite frankly I consider it to be a very superficial and apologetic position.’ Apologetic because they are simply reacting to all of the unfair accusations made against Islam and Muslims and the stereo types that are quite common in references about Islam by non-Muslims in the West.

One should not react in that way but in fact if we look at it objectively it is not a very useful thing to prohibit polygamy.’ There are at least three basic reasons for that.’ One, is a basic methodical question, is that from a Muslim stand point no human authority should supersede divine authority.’ If Allah, God, gave this concession for polygamy both to the Old Testament Prophets and as we have seen in the Quran then it was definitely for a good reason and from wisdom as He knew that some situations can best be solved through polygamy rather than through divorce or adultery.’ Then who are we as humans to simply respond to attacks and be apologetic, who are we to put our human wisdom above that of our creator?

The second reason why this is not a very good solution is that we have indicated before that the present state of polygamy in the Muslim world is so minute ( 1%) we are not talking about an alarming problem or major danger that calls for absolute and outright prohibition.’ A third reason, is that the outright prohibition of polygamy is a negative approach which simply bans polygamy without providing alternatives to the problems we discussed over the last few programs.’ It simply bans it because people feel it is repulsive but it does not give a wholesome and practical solution to the problem.

There is one case that I am familiar with in one Muslim country where the legal system was modified to prohibit polygamy but it is ruled by a ruler who is quite Westernized and not very committed to Islam and the implementation of the Law of Islam so he just follows whatever comes from the West be it right or wrong.’ This resulted in some funny situations.’ For example if one goes to the judge and acknowledges that the second woman that he has contact with is his legitimate wife and that he is responsible for her legally and responsible for them they will be punished and sent to jail.’ If he goes before the judge and says no that woman is not his wife she is their mistress they let him go free.’ From a Muslim standpoint this is shear hypocrisy.’ If one claims that it was an adulterous or illicit relationship one goes free but if one claims to be responsible and that it is a commitment one goes to jail.’ This indicates the superficiality of this kind of prohibition.’ I don’t think there is a better alternative in cases like this at all.’ In other words to have an outright prohibition creates problems rather than solving them.

Host:’ What kind of restrictions are there that can be put on polygamy in order to restrict some of the problems associated with it?

Jamal Badawi:

Islamic Law provides for stopping abuse.’ This is not done by outright prohibition but by taking other measures.’ However if restriction rather than prohibition is the course of action that is taken it should also be done within the limits of Islamic Law.’ It has been indicated before that there are two major conditions for the use of this concession of polygamy.’ One is the financial ability to look after more than one wife and household.’ Second, is the observance of justice and equality between the wives. ‘We have indicated again that these are very difficult conditions to meet.’ If there is any legislation that insures that these conditions are met it is not against Islamic Law at all.’ The main thing that one has to be carful with is that these conditions or restrictions should not be such that they make it impossible to practice polygamy (which then would push people to break the moral code in Islam).’ There have been claims in the 19th and early 20th century where we find that there were Muslim jurists who called on some measures to prevent abuse of polygamy.’ Among those the famous jurists Shaikh Muhammad Abdo, who as reported by his student Muhammad Rasheed Ridah in Almanar a commentary on the Quran he quotes his teacher, felt that at his time there were so many abuses of polygamy and he hinted that it is not against Islamic Law that certain laws be passed to prevent those abuses.’ There have been several attempts after Shaikh Muhammad Abdo to make several attempts to change the laws but unfortunately most of them amounted to a veto right that required permission from the judge before the second marriage could legally be upheld.’ This again places to much power in the hands of the judge in matters that are very intimate and close to the private life of individuals involved.’ A better proposal was made by another famous jurist known as Shaikh Muhammad Abu Zahra in his book Lectures in Marriage and Desolation of Marriage (translation of the Arabic title) he said that we have to make a distinction between religious conditions and legal conditions.’ There are some religious conditions which are based on the ethical convictions of the individual and his religiosity.’ Not all of these conditions should be turned into a legal condition which requires a judge to sign and approve of.’ He said that the question on the sensitivity of marriage itself should not make the permission of a judge as an absolute precondition for the validity of the second marriage.’ The same idea seemed to have been implemented in Syria in the Personal Law passed in 1953 which said that the judge may refuse to give permission to have a second marriage but if the person gets married without the approval of the judge the contract is legal and acceptable, but the person might be fined for not registering marriage in the proper way.’ This method does not prevent marriage because the judge thinks that one should not.’ These are some the measures that could be taken legitimately without using outright prohibition as a solution.

Host:’ Do you think that in non-Muslim societies permission permitting polygamy may be relevant and useful?

Jamal Badawi:

Even your question might be shocking to some that have been brought up to believe that polygamy is such a terrible thing and that it exceeds in its repulsiveness any other thing whether it is adultery or other social ills or problems.’ If we look at it more honestly we can say that yes it could contribute a great deal in resolving some of the problems in non-Muslim or Western societies.’ Human nature is basically the same, regardless of their ancestors and backgrounds certain things that are quite universal.’ Some of the problems that we discussed last time like the incidence of prolong disease of a wife and a youthful husband, various problems pertaining to bareness are quite universal and are not restricted to one society or another.’ In addition the common social problems pertaining to male/female relationships is something that may vary in tis format but not in its fundamentals from one society to another.’ So, whether we are talking about the East, West, South or North it doesn’t really matter because these are basic social problems which arise inevitably in any society and polygamy could be a solution to those problems.’ The other thing is that one should keep in mind that the West like any other place is not problem free.’ If your question is whether polygamy could offer some help if it is legalized in North America (for example) my answer would definitely be yes because if we look at the social malaise of our time with problems regarding sexual morality, problems with the disintegration of the family, the problems of juvenile delinquency and the divorce ratio (which is sometimes 40% many folds what is found in Muslim societies where polygamy is legalized).’ If one looks at all of these social malaises (I am not saying polygamy alone would solve these problems) but for sure in some of these cases if polygamy was legalized it could provide a more wholesome and practical solution that would avoid the break up of certain marriages.’ Again this could decrees sexual immorality which can be quite rampant when all other doors are closed.

Host:’ Some Westerners have called for the legalization of polygamy rather than condemning it.’ Could you give us an example of this view?

Jamal Badawi:

Annie Besant says that ‘There is pretended monogamy in the West, but there is really polygamy without responsibility.” She goes on explaining that this is just a pretense rather than it being real monogamy that exists in the West.’ Ram Landau says that ‘Polygamy must be considered both natural and legitimate.” He also indicates that ‘In most cases I have found that polygamous behavior or polygamous longing went hand in hand with the essentiality of monogamous nature.” Professor Von Urnfeild says ‘Polygamic marriage order has become necessary order and it will succeed monogamous system.” He goes as far as saying that it will succeed monogamous system because he says that it is morally superior.’ Professor Havelock Elise says ‘In no part of the world is polygamy so prevalent as in Christendom, in no part of the world is it so easy for man to escape the obligation incurred in polygamy.’

I would like to conclude by saying that this is only a sample of many objective Western scholars who thought that perhaps in polygamy there is a more wholesome and practical solutions to many problems.’ I am not quoting these to say that divine commands need any human rationalization but it simply shows that people aside from their religious convictions can see a solution.’ Lets remember what was repeated throughout the sections of this segment of the program that after-all Islam views polygamy, not as the basic or general rule, but as something to meet a contingent solution to a difficult problem in a more wholesome and practical way.

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