Polygamy in Islamic Law - Literature review Example

POLYGAMY AN EXCEPTION RATHER THAN A RULE Introduction Polygamy has been a controversial issue in the Islamic community. From the Orthodox, Ulama argues that Polygamy is part of the Islamic Shari’ah. He gives men the authority to take more than four wives if one wants. The champions of the women’s rights and the modernists maintain that polygamy is permissible in some level and with the strict proviso of equal justice to every wife. According to them, a man does not practice polygamy on the ground likes of other woman or enamored by beauty. The modernists also contend that polygamy is only acceptable by the Qur’an under exceptional cases with a strictly enforceable level of justice. Therefore, the Qur’an norms are majorly in monogamy (Kasim, 2002, p. 112). The Controversy In the orthodox, Ulama only justifies polygamy from a different perspective from the Qur’an. They put an argument that males’ sexual prerequisites are far much countless than women desires. Their perception of polygamy is that women pass through stages of pregnancy and periods of giving birth, therefore, not in a position for a sexual intercourse. Thus, they require several women satisfy their sexual desire during such occasions. In addition, they point that in occasions where a woman is terminally ill, it is wiser to marry a new wife rather than divorcing the first wife. Divorcing may cause her psychological wreck (Pearl, Menski, & Pearl, 1998, P.31). The orthodox find it reasonable for a barren woman. Marrying another wife will not add the barren one woe through a divorce. A barren woman already suffers from a lack of children, therefore, should not undergo additional sufferings. Another prominent argument by the group is that there exist more women than men. Therefore polygamy enables a dignified life for women and not for the life of the infamy, henceforth, not breaching the limits believed to have been set by Allah. The above arguments are not included in the Qur’an nor found in the Sunnah of the Prophet (PBUH). They are inventions and pushed by some ‘Ulama in their justification of polygamy (Bharatiya, 1996, p. 19). Women’s rights supporters or the modernists rebut the above arguments. They claim that it is not scientific proven or neither biological that sexual needs of women are short compared to those of men. It is a woman’s conditioning that puts her to be less sexually active. In a proper environment, a woman, as well as a man, will both be sexually active. They point out that men are not sexual animals hence have the capability to control their sexual demands during woman’s menstrual cycle or birth (Kasim, 2002, p. 132). Many men have managed to persevere even much longer. Not all men are prone to polygamous marriages. They have learned the importance to understand their wives during their hard times, and do not press them for sexual intercourse when their wives cannot cohabit with them. Such understanding is what makes the lifetime partnership more real and enjoyable. Marriage does not entirely entail sexual pleasure. The marriage institution is for a longtime partnership and companionship between the two, apart from the childbearing function (Pearl, Menski, & Pearl 1998, P.37). The modernists argue that polygamy is a method to fulfill man’s sexual lust and rather not to keep a woman under man’s authority. Therefore, they label polygamy as a medieval institution. On the issue of barrenness, there is some sense taking another wife for procreation since reproduction is one of the sacrosanctity of marriage. However, our society has a tendency of blaming it all on women, for their failure to bear a child. Men sometimes may be liable for the same case. Therefore, it is only fair enough for a man to go ahead and get a second wife after medically proven that his wife is barren. A conclusion of her being the cause of childlessness is empty without proof. There need to a substantial justification for a man taking another wife. (Moaddel & Talattof, 2002, p. 89). Some who actively support monogamous marriages advises the application of modern scientific methods that enables a barren woman have a child. Such practices are like the test tube babies. Perhaps, the practicability of this modern science may be less important in this case. It is plausible that there may be a lack of ijma’ on the validity on test tube babies in the Islamic community. It is entirely to the conscience of the woman in question, whether to have it or not (Bharatiya, 1996, p. 27). The Islamic Shari’ah law does not permit an adoption that may be another alternative to save such marriages. The law resolves the case of barrenness by allowing the husband to take another wife or to remain childless. Some prefer being childless. The Qur’an puts it clear that a man has the right to take a second wife only after the woman is medically unfit for conceiving. Qur’an states explicitly that the husband has to use no coercive means, perhaps should ask permission from the woman in taking in a second wife. Further, it requires the man to take such an action only if he is able of ensuring equivalent uprightness to the wives (Bharatiya, 1996, p. 63). The Quran and Polygamy The view that the Qur’an takes on polygamy is from a total spirit and not explained on an isolated verse. Taking into account the context and Qur’an norms helps the masses to understand the intentions of the verses. As far as a multiplicity of wives is our concern. Thus, the verse 4:3 in the Qur’an and verse 4:129 forms the basis of the knowledge. To view the overall spirit, we will take other verses into account (Pearl, Menski, & Pearl, 1998, P.49). In looking at the two verses that makes the direct pronunciation of polygamy, verse 4:3 allows marrying about four wives. On the other hand Verse 4:129 appears to caution about the dangers of a multiplicity of wives. Both the verses have to be read together to tell the Intentions of Allah. The second verse normative compared to the first verse (Kasim, 2002, p. 122). The first verse illustrates that if anyone has reasons to fear of not acting impartially towards orphans, then he should marry in the lawful manner namely two, three or four. However, personal fear of fear of inability to treat them with the same objectivity then espousing only one is the option. The verse provides provision to marry women a person lawfully possess (4:3). Besides, the Qur’an lays down a firm condition in the treatment of all wives. Their treatment has to be with equal fairness. If one cannot meet the obligation, then it is advisable to marry one wife. As it is the work of the judicial institution, Adalah, to determine if the men treat the women with an equal level of fairness. It moves the post from the individual decision to socially regulated system (Bharatiya, 1996, p. 97). There is also an argument whether the fair and equitable treatment applies only on material equitability, or the same applies to equal love. Some of the commentators like the Mu’tazilah argue that love is a necessary for all wives; therefore, men should practice equality of love. As the balance of love is something not practical in the real sense, a person will tend to love one wife more than he will tend to like one. The Qur’an only puts a ban on polygamy. They identify the ban as severe as the words, “all ta’ulu,” where doing injustice is not an option (Moaddel & Talattof, 2002, p.143). The second verse also highlights that no man can be just and fair between women even if he has the passionate desire. The teachings also instruct men not to shift their attention entirely from a woman to the level that they hang. It equips the followers to have friendly indulgent, and practice moderation because Allah is Merciful and Oft-forgiving. The level at which this verse touches on fair treatment and reasonableness to all companions is almost not practical (Pearl, Menski, & Pearl, 1998, P.57). From a closer focus, by reading other verses, we find that the Quran permitted polygamy with an intention of doing away with the injustices to the orphans and widows. From the Arabic expression “yatama” comprising the widows, the Arabs would marry widows and orphans having either wealth or beauty and consider them valuable than four women. They would after that aim to perform injustices and seize their property. The end of Uhud battle identifies with the recognition of the verse. The battle left 10% of the Muslim men population perished. The killings left many orphans and widows helpless. Therefore, the Qur’an permitted such Arabs to marry four wives to prevent the injustices to the orphans. Therefore, the verse, 4:3 considers the crimes as the most fundamental moral category and focus on stopping the abuse. The verse had two objectives; justice to the orphans and the helpless wives by limiting their number to four (Moaddel & Talattof, 2002, p.166). As the Qur’an wanted an ideal solution for women, it made clear in the second verse demanding equal justice to all the wives. It helped to keep a caution on the husbands leaving their first women hanging. Therefore, monogamy is the norm of the Qur’an (Bharatiya, 1996, p. 105). From other verses of Qur’an, in taking the verses in totality, the book uses the word zawj to mean wife and husband, couple. The Qur’an expects one husband for one wife. The first prophet, Adam had only one wife called Hawwa. The book also describes that a husband and her wife are each other’s garment (Pearl, Menski, & Pearl 1998, P.66). Today, most Muslims view considers polygamy as something not recommended and unusual. The practice is familiar with the historical context. It was common during the time of Muhammad since, at this time, marriage was the means of providing for a woman. Many countries today either put a restriction on the practice or outlaw it entirely (Moaddel & Talattof, 2002, p.173). The first state on the ban the practice was Turkey in the year 1926. It based its decisions on the religious reasons. Tunisia followed on the ban arguing that the Qur’an limited the practice. Another reason was that the Qur’an expected equal treatment of all the wives in the marriage, implying its impossibility. The third country to ban it was Israel (Bharatiya, 1996, p. 110). States that still allow the practice though put restrictions on it are; Egypt, India, Algeria, Syria, Jordan, Iran, Kuwait, Morocco, Bangladesh, and Iraq. Different countries have different restrictions on polygamy. Other countries give the power entirely to the first wife, for example, in India, Iran, Algeria, Morocco, Iraq, and Kuwait. Others such as Pakistan and Iran require such permission from a first wife followed by a court proof of the first wife’s consent. Lastly, countries like Malaysia restrict a man to get permission from the wife and the government religious authority (Bharatiya, 1996, p. 133). Conclusion The arguments we hear for polygamy are hardly valid. It invention was for its justification. Such arguments merely explain its existence. Therefore, one has to understand the Qur’an’s teachings on polygamy to try to control the institution of marriage. The Qur’an has a better approach to equality and justice in the present days. Acceptance of polygamy is only possible in highly exceptional cases. The Quran gives dignity to women. Women and men are equal partners. Therefore, no teachings allow for polygamy, people practice it for personal interests. References Pearl, D., Menski, W., & Pearl, D. 1998. Muslim family law. London, Sweet & Maxwell. Bharatiya Janata Party. 1996. Election manifesto 1996. New Delhi, Bharatiya Janata Party. Moaddel, M., & Talattof, K. 2002. Modernist and fundamentalist debates in Islam: a reader. New York, Palgrave Macmillan. Zaitun Mohamed Kasim. 2002. Islam and polygamy. Kuala Lumpur, Sisters in Islam. Ali, S. S. (2000). Gender and human rights in Islam and international law: equal before Allah, unequal before man? The Hague, Kluwer Law International. Bayman, H. 2003. The secret of Islam: love and law in the religion of ethics. Berkeley, Calif, North Atlantic Books. Souaiaia, A. E. 2008. Contesting justice: women, Islam, law, and society. Albany, State University of New York Press. AL-Krenawi, A. 2013. Psychosocial Impact of Polygamy in the Middle East. Dordrecht, Springer. http://public.eblib.com/choice/publicfullrecord.aspx?p=1592960. Read More