Polygamy

 Introduction
 Before Islam unlimited polygamy was practiced
 Surah 04: Verse03 has been interpreted by jurists to have restricted man’s right of
polygamy to four concurrent wives plus any number of slave girls
 Quran authorizes four marriages as long as he treats his wives equitably and spends
an equal amount of time with each wife. This restriction was interpreted as a matter
for a man’s own conscience, rather than establishing a condition precedent for
polygamous marriages
 All sects agree that it is not necessary for a man to obtain any sort of permission before
he marries a second or subsequent wife
 However a man can’t validly conclude a contract of marriage with a woman related to
an existing wife within the prohibited degree since it is unlawful
 Surah 04: Verse 129 Quran itself acknowledges that it is impossible for a man to treat
several wives equally in all respects
 Doi = He has argued that above verse has forbidden polygamy until and unless
there is no fear of inequality of treatment between wives. And hence only
monogamy is permissible in Islam
 Tunisian reformers have adopted Doi’s view and have forbidden polygamy in
country
 Despite this the prevalent opinion is not in line with Doi’s interpretation. This is
due to the reason that Quran must not be interpreted in a way which contradicts
itself. the second verse referred only to the fact that a man could not control the
degree of affection in which he held his various wives. But despite the fact that he
love one wife less than another, he must not neglect her and provide her with
equal nafaqa (material support and maintenance).
 Rights of Co-Wives
 Right to Separate dwelling
 Dwelling must be structurally sound, in a safe location, separate from co-wives and
other members of husband’s family. Wife can refuse to cohabit with the husband
if these requirements aren’t met.
 Right to Maintenance
 The right of equal amount of maintenance for co-wives is a question which varys
from sect to sect
 Hanafis/Hanbalis/Malikis = Standard of living of each wife is determinate of
maintenance each wife will receive
 Shafis/Ithna Asharis = Grant equal maintenance to all co-wives
 Right to spend equal time with husband
 Hunchliffe = Wife’s right is to husband’s companionship only, this right doesn’t
extend to sexual relations.
 However, this is fairly controversial since upon the conclusion of a marriage, it is a
fundamental right of both spouses to enjoy conjugal relations. But equal division
of nights amongst wives can be exempted if a new wife is a virgin, because the
husband is then obliged to spend 7 consecutive nights with her, and if not a virgin,
then 3. He is under no duty to make up these nights to his other wives.
 Remedy available to wife if she is not getting her rights
  For vast majority of Muslim women, the law provides no solution if they are in this
unfortunate situation
 Hanbali = Women with the consent of her husband may insert in marriage contract a
clause which states that husband would not take a co-wife. However if husband
marries despite this, his second marriage will be perfectly valid. But the wife will have
the remedy to go to a Qazi and ask for a decree of dissolution on grounds that husband
is in breach of the agreed clause.
 Maliki = Wife may petition the court for dissolution on several grounds including
‘injury or prejudice’, if she can prove that she is not being treated equally with other
co-wives.
 Hence generally a wife who reluctantly finds herself a co-wife will have no recourse
unless her husband delegates to her the right to repudiate/divorce herself or
pronounces a repudiation himself.
 Modern legislation in certain Muslim countries introduces the condition for the
husband to seek an existing wife’s permission before contracting another marriage
 Fifth marriage while he already has four wives
 It will be invalid
 However
 Both parties will not be guilty of zina
 Children from the marriage will be legitimate
 In case of separation (which eventually has to take place) the wife has to observe
iddat
 Inheritance
 If a man dies leaving two or more wives
 They take 1/4th each of no surviving child
 They take 1/8 if there are children
 Muslim countries changing their law and imposing legal restriction on polygamy
 Qatar
 Largest Gulf state
 Amiri Decree 22 of 2006 = It does not restrict polygamy but provides that
second/subsequent wife should be informed of:
 Husband’s Financial position
 Husband’s contracting a second marriage
 Iran
 The Family Protection Act 1967 provided that a husband who wished to marry a
second wife should seek the permission of the court. Failure to comply was an
offence which could incur a period of imprisonment and a fine. S 17 of the Family
Protection Act 1975, provided that the court would not give consent to a second
marriage unless (1) the first wife agreed to it or (2) the husband proved a certain
set of circumstances.
 However the law was amended in 2008 and the traditional Shi’a law was
reinstated which allows a husband to have up to 4 wives, and any number of
temporary wives, without the permission of the court or his existing wives.
 Morocco
 Polygamy is not forbidden, but subject to permission of court. The court must
satisfy itself that:
  Husband is capable of treating two or more wives equally, as well as their
respective children
 He has the ability to guarantee each of his wives and children the same quality
of life
 He has sound reasons to marry more than one woman
 The decisive criteria for court will always be apprehension of unequal treatment
 Although a woman can try to avoid this by introducing monogamy clause in
marriage contract
 Tunisia
 The Tunisian Code of Personal Status of 1956 prohibited polygamy outright,
making Tunisia the first Muslim country to abolish polygamy within the framework
of the Shariah. The basis of the reform is the Quranic verse of polygamy itself. This
verse permits polygamy only where a man has no fear that he may not be able to
treat more than one wife equally. The reformers say that this is impossible for all
but the Prophet (pbuh), so that in fact the Quran itself forbade polygamy.
However, the overriding reason for reform was that polygamy was totally unsuited
to the 20th century. In Art 18, any man contracting a second marriage is liable to
imprisonment for one year or for a massive fine or to both. Polygamous marriages
were made invalid through legal reform in 1964, which makes it stand out even
more from other countries.
 Turkey
 Abolished Polygamy
 India
 Muslims may still marry subsequent wives without obtaining permission from the
court.
 However increasingly common amongst Muslims of Bombay province is to register
their marriages under the Special Marriages Act of 1954 (amended in 1976). Once
a marriage is so registered, it must remain monogamous or the husband will be
guilty of bigamy and second marriage will be void.
 ITWARI V ASGHARI
 India’s stance towards polygamy
 Pakistan and Bangladesh
 Muslim Family Laws Ordinance (MFLO) 1961
 S.6
 A man must obtain the permission of a local Arbitration council. When
submitting an application to the Chairman for permission, the man must
state his reasons for marrying another wife and whether or not existing
wives have consented.
 However, S.6 is a paper tiger, a set of legal formalities which many people
largely ignore in practice and whose violation carries minimal legal sanctions.
The basic message is clear: failure of the husband to seek permission of the
wife and/or Arbitration Council does not render the polygamous marriage
invalid or void, while it does give rise to criminal as well as civil consequences
(s 6 (5))
 MOHAMMAD ASLAM V GHULAM M. TASLEEM
 Syria
  The Syrian Law of Personal Status of 1953, Art 17 empowered the judge/Qazi to
refuse permission to a man to contract another marriage if it is established that
he is not in a financial position to support two wives: finances are the sole
criterion. However, if a second marriage is contracted in contravention of the legal
provisions of the state, it was deemed valid, with defaulting men made liable to
penalties. Further provisions were made to safeguard the legitimacy of the
children from such marriages.
 Conclusion
 It is apparent that the various reforms in the Muslim world do not amount to a
complete ban on polygamy.
 However, in modern times, polygamy is decreasing. This is not due to restrictions
which the law has in some instances paced upon its practice, but because
 (1) economic conditions which make it difficult for a man to support two or more
households
 (2) to the spread of education, which has made women less willing to accept a
polygamous marriage and husbands less inclined to think such an arrangement
desirable.
 Doi (1984) feels that these reforms have not been useful, driving men into secret
extra-marital relations instead of allowing them the peaceful enjoyment of polygamy.
Furthermore, restrictions on polygamy which are not accompanied by similar
restrictions on the power of the husband to divorce his wife unilaterally work to the
disadvantage of the woman.
 There is clearly not enough academic legal writing which emphasizes the voices of
women in this context.