POLYGAMY!

The practice of marrying multiple time is called polygamy. Under Sharia lawthe right of
polygamy is that a man is legally permitted to marry but not more than four wives.Polygamy
was practiced even before the advent of Islam, the Arabs (Jahiliyah) used to marry women as
many as they wished, so Islam did not invent the system of polygamy. According to Diwan and
Diwan, “it can be seen as a definite advancement in the prevailing juristic thought”. Surah Al-
Nisa verse 3 of the Quran emphasis on the right that “if ye fear that ye shall not be able to deal
justly with the orphans, marry woman of your choice, two, three, or four but if ye fear that ye
shall not be able to deal justly with them then only one”. All schools and sects allow polygamy
though subjected to certain conditions. Conditions suchas equally treated, right to have a
separate dwelling, entitled to equal amounts of maintenance (Nafaqa) etc. Under IthnaAshari
law, at same time man is allowed to have 4 wives and unlimited number of temporary wives.

Moreover according to surah Al-Nisa verse 129 of the Quran states that “you are never able to
fair and just between two women even if it is your advent desire”. Hence, it can be seen that
polygamy was really never allowed in Islam. Doistresses that this verse forbids polygamy until
and until there was no chance of inequality of treatment between wives.

Generally for a man to marry for second time or subsequent time he needs not to obtain
permission before he marries. As it is considered as a matter between Allah and man’s own
conscience. Further, Hinchcliffe had same point of view that polygamy is a matter of
conscience. Moreover,Welchmann stated that there is no remedy available for women unless
she stipulated such clause in her marriage contract (Jordan), and that she will have right to
divorce if any act of second marriage occurs. So according to Hanbali’s law in such situation a
woman who puts consent condition can go to Qazi and ask for decree of dissolution. According
to Maliki’s law,in such situation a wife may petition the court for dissolution on several grounds
like in “injury or prejudiciary”, orif she can prove she’s not gettingequal treatment in
comparison to co-wives. However, in certain muslims countries under modern legislation,
husband is bound to take permission from his previous wives.

Further, in Islam fifth marriageis considered irregular marriage (fasid), but still husband and
wife will not be guilty for zina and child from this marriage will also not considered illegitimate.

The law of polygamy is being reformed in many countries. Countries are changing their law of
personal status and imposing some legal restrictions on polygamy. Most of the muslim men are
monogamous and moreover in all the countries practice of Islamic polygamy is not
homogeneous. In Iraq under law of personal status 1959husband financial capability is taken in
to consideration as well as some lawful benefits in order to be eligible for second marriage.
Moreover,new code of family law 2004 amended Moroccan code of personal status 1958
where prior permission of court is required and polygamy is not forbidden. Husband needs to
satisfy that he is capable of having two or more wives and their respective children. Moreover
there should be a justifiable reason to commit polygamy. Further,Doi stated that“Moroccan law
allow wife to include in her marriage contract the provision that the husband shall not take
another wife, then any such violation occurred then divorce can take place”. Moreover, in
Maliki’s law if proper maintenance is not paid to wife then she is allowed to take divorce.

The first and only Muslim country to put ban on polygamy is Tunisia. In Tunisian code of
personal status 1956 it was prohibited. Article 18 states that, if a tries to contract second
marriage will be liable for one year imprisonment or huge fine or both. Quranic verse, surah 4
verse 129 forms the bases of this ban. President Burkiba stated that “by abolishing polygamy he
had not contravene any principle of shria”. Doi stated that polygamy is considered as a criminal
offence in Tunisia. Legal reform in 1964 made polygamous marriage invalid. Moreover,to
restrict husband rights to polygamy,Syria was the first country. The law of personal status 1950
article 17 restricted polygamy by the way of “judge refusing permission for a second marriage
unless the husband has a lawful justification and is capable of maintaining both wives”. Under
1953 memorandum if the law is violated by the husband penal sanction will be imposed on him
though marriage will still remain valid.

In Pakistan,s.6 ofmuslim family law ordinance 1961 states that husband needs to
attainpermission from the local union council to enter into polygamous marriage. While
submitting an application to chairman, consent of first wife and reason must be mentioned
(Aurangzeb Eiazul Hassan Khan). Penal sanctions will be imposed in case if there is a failure of
procedural compliance though marriage will remain valid. This seemstheoretically impressive
but practically it is nothing. InReshumBibi v Muhammad shafi case it was highlighted that
second marriage does not show cruelty of husband and for dissolution of marriage she has to
prove cruelty. In India without the court permission a man can enter into polygamous marriage.