Polygamy in islamic law dr. gamal a. badawi
Published on: Mar 4, 2016
Transcripts - Polygamy in islamic law dr. gamal a. badawi
POLYGAMY IN ISLAMIC LAW Dr. Gamal A. BadawiCONTENTS 1. Introduction 2. Is Polygamy Immoral Perse 3. What is the Legal Status of Polygamy In Islam 4. Can Polygamy be a Better Solution in Some Cases? 5. Why not Polyandry (plurality of husbands for the same women)? 6. Conclusion1. Introduction:Like Judaism and Christianity, (See, Footnotes No. 2,3,4 and 5) Islam does not providean explicit prohibition of polygamy (more correctly polygyny).Unlike Judaism, Christianity and perhaps other religions as well, Islam deals with theissue more clearly and provides certain legal requirements and restraints that amountto the discouragement of such a practice.The reason for not prohibiting polygamy categorically is perhaps due to the fact thatthere are certain conditions which face individuals and societies in different places andat different times, which make the limited practice of polygamy a better solution thaneither divorce or the hypocritical pretence of morality.Our present day feelings about what is “tasteful” or “distasteful” are something wecannot force on all people everywhere, at all times and under all conditions, unless itis a question of a law coming from God. This leads to the following question.2. Is Polygamy immoral Perse?To shorten the discussion, let us begin with the assumption that religions areacceptable sources of “morals”. Let us also select two religions (Judaism andChristianity) which are the closest to Islam, in order to see where they stand on thatissue.
a. In Judaism: It is notable that most of the Old Testament Prophets werepolygamous. According to the Old Testament, Abraham “the friend of God” had morethan one wife, David had one hundred wives, and Solomon is even said to have had700 wives and 300 concubines.If polygamy is immoral perse, then these and other leading figures in the Biblicaltraditions are immoral. In this case, there would be no sanctity attached to the Bible,its Prophets, or its teaching! No sincere Jew, Christian, or Muslim would regard God’schosen Messengers as immoral persons!The Dictionary of the Bible statesPolygamy meets us a fact: e.g. Abraham, Jacob, the Judges, David, Solomon……InDeuteronomy 17:17, the king is warned not to multiply wives; later regulations fixedthe number at eighteen for a king and four for an ordinary man. (Dictionary of theBible (James Hasting Editor), Revised Edition, Charles Scribner’s Sons, N.Y., 1963,p.624)The philosophy behind the legalization of polygamy is explained in the EncyclopediaBibilica:The man who owns his wife as a chattel can on the same principle own as many as hepleases that is to say, as many as he can afford to buy and keep….The Talmudistsformulate the rule that no Jew may have more than four wives, kings may have atmost eighteen. Encyclopedia Biblica (Rev T.K. Cheyene, and J.S. Black, Editors), TheMacmillan Co., London, 1902, vol.3, p. 2946.)It was only at the beginning of the eleventh Century! (about four centuries after theadvent of Islam) that polygamy was expressly prohibited in Jadaism. According toWestermarck:Among European Jews ploygyny was still practiced during the Middle ages, and amongJews living in Muhammadan countries it occurs even to this day. An expressprohibition of it was not pronounced until the convening of the Rabbinical Synod atWorms, in the beginning of the eleventh century. This prohibition was originally madefor the Jews living in Germany and Northern France, but it was successively adoptedin all European countries. Nevertheless, the Jewish Marriage Code tained manyprovisions which originated at a time when polygyny was still legally in existence.(Westermarck, Edward A., The History of Marriage, (5th Edition Rewritten), Macmillanand co. Ltd., London, 1925, vol. III, pp. 42-43.)b. In Christianity: As the Old Testament is a vital part of the Christian faith, itcannot be disregarded in this discussion. It was concerning the Old Testament lawsand the Old Testament Prophets that Jesus (P.) said plainly that he came not to
destroy the Law or the Prophets but rather to fulfill. In addition, there is no passage inthe New Testament that clearly prohibits polygamy. This was the understanding of theearly Church Fathers and for several centuries in the Christian era.Westermarck, the noted authority on the history of human marriage states:Considering that monogamy prevailed as the only legitimate form of marriage inGreece and Rome, it cannot be said that Christianity introduced obligatory monogamyin the Western World. Indeed, although the New Testament assumes monogamy asthe normal or ideal form of marriage, it does not expressly prohibit polygyny, exceptin the case of a bishop and a deacon. It has been argued that it was not necessary forthe first Christian teachers to condemn polygyny because monogamy was theuniversal rule among peoples in whose midst it was preached; but this is certainly nottrue of the Jews, who still both permitted and practiced polygyny at the beginning ofthe Christian era.Some of the Fathers accused the Jewish Rabbis of sensuality, but no council of theChurch in the earliest centuries opposed polygyny, and no obstacle was put in the wayof its practice by kings in countries where it had occurred in the times of paganism. Inthe middle of the sixth century Diarmait, King of Ireland, had two queens and twoconcubines. Polygyny was frequently practiced by the Mervingian kings. Charles theGreat had two wives and many concubines; and one of his laws seems to imply thatpolygyny was not unknown even among priests. In later times Philip of Hesse andFrederick William II of Prussia contracted bigamous marriages with the sanction of theLutheran clergy. Luther himself approved of the bigamy of the former, and so didMelachthon. On various occasions Luther speaks of polygyny with considerabletoleration. It had not been forbidden by God; even Abraham, who was a “perfectChristian”, had two wives. It is true that God had allowed such marriages to certainmen of the Old Testament only in particular circumstances, and if a Christian wantedto follow their example he had to show that the circumstances were similar in hiscase; but polygamy was undoubtedly preferable to divorce. In 1650, soon after thePeace of Westphalia, when the population had been greatly reduced by the ThirtyYears’ War, the Frankish Kreistag at Nuremberg passed the resolution that thenceforthevery man should be allowed to marry two women. Certain sects of Christians haveeven advocated polygyny with much fervor. In 1531 the Anabaptists openly preachedat Munster that he who wants to be a true Christian must have several wives. And theMormons, as all the world knows, regard polygyny as a divine institution.3. WHAT IS THE LEGAL STATUS OF POLYGAMY IN ISLAM? The verse which allows polygamy “was revealed after the battle of Uhud in whichmany Muslims were killed, leaving widows and orphans for whom due care wasincumbent upon the Muslim survivors.(Abd Al-Ati, Hammuda, Islam in Focus, TheCanadian Islamic center, Edmonton Alberta, Canada, 1963, p.103.)
The translation of the verse is as follows:If you fear that you shall not be able to deal justly with the orphans, marry women ofyour choice, two, or three, or four; but if you fear that you shall not be able to dealjustly with them), then (marry) only one…. (Qur’an 4:3)From this verse a number of facts are evident: 1. That polygamy is neither mandatory, nor encouraged, but merely permitted. 2. That the permission to practice polygamy is not associated with mere satisfaction of passion. It is rather associated with compassion toward widows and orphans, a matter that is confirmed by the atmosphere in which the verse was revealed. 3. That even in such a situation, the permission is far more restricted than the normal practice which existed among the Arabs and other people at that time when many married as many as ten or more wives. 4. That dealing justly with one’s wives is an obligation. This applies to housing, food, clothing, kind treatment..etc., for which the husband is fully responsible. If one is not sure of being able to deal justly with them, the Quran say: “then (marry) only one.” (Qur’an 4:3) This verse, when combined with another verse in the same chapter, shows somediscouragement of such plural marriages. The other verse plainly states:“You are never able to be fair and just as between women even if it is your ardentdesire…” (Qur’an 4: 129)The requirement of justice rules out the fantasy that man can “own as any as hepleases.” It also rules out the concept of “secondary wife,” for all wives have exactlythe same status and are entitled to identical rights and claims over their husband. Italso implies, according to the Islamic Law, that should the husband fail to provideenough support for any of his wives, she can go to the court and ask for a divorce. 3. The verse says “Marry,” not kidnap, buy, or seduce. What is “marriage” as understood in Islam? Marriage in Islam is a civil contract which is not valid unless both contracting parties consent to it. Thus no wife can be forced or “given” to a husband who is already married.I is thus a free choice of both parties. As to the first wife: a. She may be barren or ill and see in polygamy a better solution than divorce. b. She may divorce him (unilaterally) if he is married to a second wife provided that the nuptial contract gives her the right of unilateral divorce (Ismah).
c. She can go to court and ask for a divorce if there is evidence of mistreatment or injustice inflicted upon her. But if polygamy is discouraged and loaded with such constraints, could it have beenbetter if the Quran simply forbade it? To answer this question, we may have to raiseanother one:4. CAN POLYGAMY BE A BETTER SOLUTION IN SOME CASES?Scholars in the past and at present, Muslims and non-Muslims, have consistentlypointed out such cases. The following are a few examples which are tied in with thegeneral approach of Islam to individual and social problems. a. Individual cases:1. A man who discovers that his wife is barren, and who at the same time instinctivelyaspires to have children and heirs.In a situation as this, the man would either have to:-Suffer the deprivation of fatherhood for life.-Divorce his barren wife and get married to another woman who is not barren.In many cases, neither solution can be considered as the best alternative. Polygamywould have the advantage of preserving the martial relationship without depriving theman of fathering children of his own.2. A man whose wife becomes chronically ill would have one of possible alternatives:-He may suppress his instinctive sexual needs for the rest of his life. -He may divorce his sick wife at the time when she needs his compassion most, andget married to another woman, thus legally satisfying his instinctive needs. -Or he could compromise by keeping his sick wife, and secretly take for himself oneor more illicit sex partners.Let us discuss these alternatives from the point of view of the Islamic teachings. Thefirst solution is against human nature. Islam recognizes sex and sexual needs andprovides for legitimate means for their satisfaction. The second solution is clearly less
compassionate, especially where there is love between the two parties. Further moredivorce is described by Prophet Muhammad (P) as the “permitted thing which is hatedmost by God.” The last solution is plainly against the Islamic teachings which forbidillicit sexual relations in any form.To sum up, Islam being against immorality, hypocritical pretense of morality, andagainst divorce unless no better solution is available, provides for a better alternativewhich is consistent with human nature and with the preservation of pure andlegitimate sex relationships. In a situation like this, it is doubtful that any solutionwould be better than polygamy, which is, after all, an optional solution.b. Social cases 1. Anthropologists tell us that among various tribes and societies, polygamy is a social and economic necessity. In some very poor areas, the infant morality is very high. Children on the other hand, are a source of additional labour for the earning capacity of the family. To have more children under such situations would require the practice of polygamy. It is by this very reason Christian missionaries in some African regions justified their permission to local people to practice polygamy without being excommunicated from the church. One researcher has even found, through his studies that women in such societies not only accept polygamy, but some of them even prefer this. (See for example Campbell, D., In the Heart of the Bantuland, Seeley, service and Co.,Ltd., London, 1922, p. 160, and Cory H., Sukuma Law and Customs, Oxford University Press, N. Y., 1953, p.52.) 2. Aside from cases where women outnumber men, devastating wars, in the past and at present, have taken their roll mainly among men. The result is not simply more women who cannot find husbands, but even more widows who may aspire to a respectable family life. In such a situation, if polygamy is bad, the limitation on polygamy is even far worse. Both unmarried women and widows are human beings. Unless their instinctive needs are legitimately satisfied, the temptation is great for corruption and immorality. But aside from the moral question these women are also exploited. They are used as tools for men’s pleasure, yet have no guarantees, no rights or security, financial or emotional. Should they become pregnant, it is their burden alone. But even if such women are ready to pay the price for this personally, society also suffers seriously from such situations. The increasing number of illegitimate children born today under conditions such as these provides a potential base for tomorrow’s maladjusted and even criminals. Further more it is inhuman, humiliating for those children to grow up without knowing who their fathers were and without enjoying a lean and normal family life. One question remain:
5. WHY NOT POLYANDRY (PLURALITY OF HUSBANDS FOR THE SAME WOMAN)? It is evident that the nature of women is physiologically and psychologically differentfrom that of men. Psychologically speaking, the woman is monogamous by her verynature. Furthermore, in all cultures, new and old, the headship of the family, isnormally man’s. One can imagine what would happen if the family had two or moreheads. Furthermore, if the woman is married to more than one husband, which wouldbe the father of her children?CONCLUSIONIt is now evident that the association of “polygamy” with Islam is not only unfair orbiased but based on serious misunderstanding. Polygamy was practiced, often withoutlimitation, in almost all cultures. It was sanctioned by various religions, and practicedboth before Islam and for many centuries thereafter. It is presently practiced, thoughsecretly, by the Mormons, (It is estimated that is Utah alone over 30,000 middle-classMormon Americans secretly cling to the practice of plural marriage. The Mormon churchaccepted the principal of Plural Marriage as a revelation from God. It was widely adoptedafter Brigham Young led the Mormons into their “Promised Land”—the Territory of Utah,in 1847. In 1890, however, after polygamy was outlawed a Federal statue, Church fundsand property were confiscated. This apparently led the Church to issue a manifestobanning plural marriage. Church President Wilford Woodruff later declared the manifestohad been divinely inspired. For a first-hand report on the practice of polygamy in the U.S.A. as late as 1967, see Ben Merson, “Husband with More than on Wife.” In Journal, June1967,esp. p. 78) and it is allowed by Christian missionaries in Africa and other areaswhere polygamy is a social necessity.It is both honest and accurate to say that it is Islam which regulated this practice,limited it, made it more humane, and insisted equal rights and status for all wives.What the Qur’anic decrees amount to, taken together, is a discouragement ofpolygamy unless necessity for it exists.It is also evident that the general rule in Islam is monogamy and not polygamy.However, permission to practice limited polygamy is only consistent with Islam’srealistic view of the nature of man and woman and of the various social needs,problems, and culture variations.The question is, however, far more than the inherent flexibility of Islam; it also is thefrank and straightforward approach of Islam in dealing with practical problems. Ratherthan requiring hypocritical and superficial compliance, Islam delves deeper into theproblems of individuals and societies, and provides for legitimate and clean solutionswhich are far more beneficial than would be the case if they were ignored. There is no
doubt that the second wife legally married and treated kindly is better off than amistress without any legal rights or security. There is no doubt also that the legitimatechild of a polygamous father, born in the “full light of the day”, and who enjoys all therights and privileges of a son or daughter, is far better off than the wanted orunwanted illegitimate child (especially if it is a girl).It is fair also to say the polygamy may be harmful in many respects. Islam, however,does not regard polygamy as a substitute for monogamy. Realizing its disadvantagesIslam allows it under strict conditions and when no better alternative is available. Thisis actually consistent with a general rule in Islamic Law, “The Lesser of two evils.” Thismeans that if a harm is certain, and if there is no way to avert such harm unless someother harm is done, then it is better to cause the lesser harm in order to avoid thegreater. It is like a captain who gets rid of the ship’s freight in order to save the livesof the sailors.The vitality, flexibility, and far-sightedness of the teachings of Islam cannot possiblybe attributed to any man or group of men, including Prophet Muhammad (P) himself.Its secret simply lies in its Divine Source, God Most high, who knows in entirety whathuman needs and problems are.Man can reject the guidance of God, become his own god, and establish his ownstandards of morality. Ultimately, however, he may discover the mirage that alludedhim. A few honest questions finally: What is the situation in countries which bannedpolygamy? Do they really enjoy sincere and faithful “monogamy?” What is the degreeof cohesion of the family? Is there any significant number of mistresses,“Sweethearts”, and illegitimate children? How observant are married men and womenof the strict “monogamous” relationship? Are infidelity and secret extramarital sexualrelationships more moral than the legitimate, legally-protected husband-wiferelationships, even under polygamy if there is a pressing need for it? Which of the twosituations is best?After all, Islam by its very nature, is a universal religion which is revealed by Godguide people in all places and at all times.The guidance can hardly be secured by avoiding issues and problems which are real,even as they are relevant to human life on earth with its diversity. Hypocrisy, apology,or burying one’s head in the sand are hardly realistic means of achieving righteoushuman life. They are not effective in achieving moral up liftment either!