'Polygamy is a fundamental right of a husband and is sanctioned by the Quran itself'. Discuss.

University Degree Historical and Philosophical studies

‘Polygamy is a fundamental right of a husband and is sanctioned by the Quran itself’. Discuss.

This essay shall aim to assess the presence of verses within the Quranic text pertaining to polygamy against the wider array of literature concerning polygamy found in the Prophetic tradition and modern legislation as symbolized in forms of ‘ijtihad’ or ‘qiyas’, which are “all forms of methodological reasoning on the basis of the Quran and Sunna”. It shall subsequently be shown how such reasoning sanctioning polygamy has been challenged by actors in the increasingly secularised nation states of the Middle Eastern region and how such opposition is embodied in the various respective codes of legislation. It shall be shown that whilst the Quran has sanctioned polygamy, it is nevertheless imperative to contextualise both the verses and anecdotes alluding to such a practice in order contextualise the polygamous phenomenon. Furthermore, even though the various schools of thought have endorsed the practice as legal regardless of the reasons for concluding a polygamous marriage, such a phenomenon has rightly been challenged by those states where Islamic law is pertinent to at least the civil realm of life, as they fear that the practice itself has been taken out of its original intended context, which shall be discussed at length below.

It shall serve firstly to state that the principal verse pertaining to polygamy, found at the beginning of the fourth chapter of the Quran, is placed within a wider context that addresses social components within a newly formed Islamic society described at the outset in chapter three (‘Al Imran’ or ‘The Family of Imran’) and extending into chapter 4 (‘Al Nisa’ or ‘The Women’). The context of the verse has been placed within the narrative of a specific battle, namely that of Uhud, which took place in the third year after the Hijra, or migration, of the Prophet and his Companions from Makkah to Madina. The verse begins in a conditional clause relating to the orphans that the preceding verse had begun addressing in the context of the property of the orphans. This was evidently relevant to the social reality that was created following the defeat at Uhud where those killed had left behind children and spouses. Thus the introduction of the verse relating to marriage in both its polygamous and monogamous form relates to justice and equity when dealing with orphans, of which the prelude is in the preceding verse. The significance of this lies in the sequence of social prioritization placed upon man living in an Islamic utopia where he should morally consider firstly the orphan (or orphans) as a spouse bearing in mind the exceptional margin of justice that is to be accorded to the orphans owing their status, and there is consistent reference to the status and property of orphans throughout the Quranic text. Consequently, as a result of their exceptional status, the verse alludes to the idea that those men who cannot meet the special requirements relating to orphans can thereafter marry those women who seem good to them, and it is important at this stage to note the plural presence of women, which does not only pertain to the fact that men are being addressed collectively, hence in the plural form, but alluding specifically to more than one woman per man. This is immediately reinforced with the quantifying of two, three, or four women proceeded by one in the context of another conditional clause. The order of quantity is also significant to the analysis of this verse as the polygamous form of marriage is in actual fact established before the monogamous form. Monogamy is placed within a conditional clause where it remains as the option for the man who fears that he cannot institute equality between several women as wives. The basis of reasoning in such a form as illustrated above is the fact that the verse could have been structured inversely, that is to say, specifying one wife in principle, unless one can institute equality in which case he would be permitted to take another one, two or three women as additional wives. It can be argued then that the structure of the verse alludes to a specific social structure envisaged in an Islamic utopia where man institutes his marital life in accordance with the social needs, in this case orphans and seemingly widows. In addition to the spousal relationship either in the polygamous or monogamous form is the pursuance of the captives of war where the verse goes on to specify that it is legitimate to pursue one’s captives. Proceeding this small digression from the marital narrative is the assertion that limiting the number of potential wives to four at one time diminishes the chances of injustice being done by pursuing an unrestricted number of women for marital purposes. Another significant factor to note here is the clear break that is made from pre-Islamic tribal customary practice where polygamy, though clearly still present within the Islamic model, is institutionalised through the emergence of conditions for polygamous marriage as opposed to the absence of such conditions in the tribal system.

It is thus hard to underestimate the importance of the reasons for the revelation of such a verse (or ‘asbaab al nuzool’), like many other verses in that same chapter and in the Quran more generally, when understanding the content of the verse.

This is a preview of the whole essay

In the second part of the thesis, it shall serve to deal with the notion of equality within the practice of polygamy, seeing as the Quranic narrative provides no literal translation of the areas of marital life where equality is to be instituted. Nevertheless the consensus (or ‘ijma’) defines the basic areas for exercising equality as the amount of time spent with each wife (‘qasm’) and “the right of each woman to a separate dwelling”. Even though the Quran does not explicitly state the need for each woman to have her own separate dwelling, this was allegedly the practice of the Prophet Mohammad where several narrations of ‘seera’, or stories specifically of the Prophet, allude to the fact that the Prophet would visit several individual dwellings when visiting his wives. Even if one were to take the Quranic text as the sole reliable text for the purpose of studying sanctioned Islamic practice, there are several chapters, of which the most obvious would be chapters 33 (‘Al Ahzab’ or ‘The Confederates’) and chapter 66 (‘Al Tahrim’ or ‘The Prohibition’), both of which speak of the wives of the Prophet, thereby giving reference to polygamous practice by the Prophet himself. Nevertheless it is of relevance to note that the Prophet Mohammad himself had a total of eleven wives at one time, which indicates that there is a differentiation between the Prophetic realm and the general civil realm. Accordingly for example, whilst a Muslim is prescribed to fast from dawn until dusk as indicated in the Quran, narrations of the Prophet Muhammad fasting for several days continuously are apparent in the ‘seera’ thereby reinforcing this notion of differentiation.

Whilst the concept of equality has been deemed subjective owing to the absence of a structured definition of equality in the verse itself and consequently where this is exemplified by the divergences between the various schools of thought regarding the maintenance owed to each wife and whether it is subject to equal distribution or not, the term equality (‘adl’) in itself becomes problematic owing to the fact that it is used in its concise form in both the verse that sanctions polygamy discussed above and a subsequent verse relating to ‘adl’ in the marital context towards the end of the chapter. Before analysing the verse in question, it shall serve to contextualise it within the actual section that it is found in and it is consequently of importance to evoke the content of the two preceding verses that form the beginning of a new section within the chapter. The subsequent verse relating to justice or ‘adl’ asserts that “ye are never able to do justice between wives even if it is your ardent desire, but turn not away (from a woman) altogether, so as to leave her (as it were) hanging. If ye come to a friendly understanding and practice self-restraint, Allah is Oft-forgiving, most Merciful” (Yusuf-Ali A. verse 129 chapter 4). The latter part of this verse perhaps further reinforces the statement that the constraint regarding equality in the first verse discussed “was construed as a matter for a man’s own conscience, not as establishing a condition precedent for a polygamous marriage” (Hinchecliffe p.13) and hence “binding upon the conscience of the individual man rather than as ‘legally enforceable’”. As opposed to an explicit disqualification of the polygamous institution in the above verse owing to the fact that equality in its broad and undefined sense was seemingly unattainable, the only prescribed remedy is not to desert the wife or wives that the man feels less attachment to or perhaps affection towards. The anecdote, or ‘hadith’, in the Prophetic tradition or the ‘seera’, allegedly relates to the Prophet himself the idea that whilst equality in time and money may be achievable, equality in feelings is not. As a prelude to this verse, the preceding verse addresses women who fear “cruelty or desertion on her husband’s part” prescribing them to reach a settlement with the husband (verse 128).

In the final part of the thesis, it shall serve to analyse some of the respective codes pertaining to polygamy, notably the Tunisian code of 1956. To begin with, the Tunisian code of 1956 states that “polygamy is forbidden”, applying the theory of abrogation - where one verse is believed to chronologically replace another and hence make the rulings of the initial verse invalid – on those two verses described above, where the latter states that equality is impossible to achieve no matter how much one desired to achieve it. Although this code validates the theory of abrogation in this instance and for the purpose of forbidding that practice, it nevertheless is important to note that the code remained initially ambiguous – save the incurring of “penal sanctions” (Hinchecliffe p.27) - in relation to those who transgress this law by concluding a polygamous marriage, although of course “a law enacted in 1964…declares that all marriage contracts concluded by a party who is already married are void” (Hinchecliffe p.26). This nonetheless may not deter an individual or individuals from contracting a polygamous contract outside the civil realm as they may view adherence to this code as a contradiction to their private practice of religion thereby reinforcing the notion that polygamy is their fundamental right sanctioned by the ijtihad of the various schools of thought, Prophetic practice and the Quran according to interpretation.

The case of Iraq and Iran for the purpose of containing the practice of polygamy merits analysis, as although it by no means amounts to the interdiction of polygamy, polygamy therein is permitted only where it is in similar context to the Quranic context discussed in the beginning of the thesis. Thus “In Iraq, moreover, such permission will be given only on the following three conditions: 1- that the husband is financially able to support more than one wife;” – subject to the rulings of the respective schools of thought as to how much each is owed in maintenance -, “2- that there is some lawful benefit involved” (italics not part of quote); and “3- that the husband is regarded by the court as capable of according two or more wives equal treatment” (Hinchecliffe p.21). As Hinchecliffe states, the third stipulation is largely subjective and therefore problematic as is the second stipulation, albeit to a lesser extent if in a Quranic and Prophetic context. Nevertheless one has reason to believe that there is sufficient deterrence implied in such a code to the individual considering polygamy, as “failure to comply with the provisions of the article will result in imprisonment for not more than one year…” and although the Sharia court may decide that the three conditions had been met, the criminal court may oversee such a ruling and “the husband must be returned to the criminal court for sentence” (Hinchecliffe p.21).

In the case of Iranian legislation, there is also considerable deterrence on an individual considering polygamous practice, as he must similarly obtain permission of the court through satisfying the court’s criteria. More significantly for the purpose of comparison is the fact that “the court may hear evidence from the first wife before reaching its decision” and that the latter may appeal against her husband’s decision (Hinchecliffe p.25), thereby giving the wife a voice in the process, which is largely non-existent owing to the fact that the husband, according to the outlines of the ‘sharia’ as it has been compiled through ‘ijtihad’ in the various schools of thought, does not legally have to obtain permission from his wife or wives before re-marrying. As a digression from the case studies, perhaps the unanimity of the schools pertaining to the above phenomenon where the husband does not have to consult with the current wife or wives before concluding another marriage stems from the fact that the contrary is not explicitly stated in the Quran or the texts claiming ‘hadith’ and ‘sunna’. Finally, perhaps the most important factor to note with regards stipulations made by the wife prior to contracting a marriage citing polygamy, most notably in Egypt, is the fact the adherence to that stipulation (‘laazim’) by the husband translates in the wife being legally entitled to seek an annulment where he transgresses that stipulation but the husband does not incur penal sanctions for defying the contract itself. This further reinforces the notion that it is fundamentally the right of the husband according to customary legislation regardless of such a constraint as stipulation.

In conclusion, it would be inconceivable to assume that polygamy as it is practiced in the modern age, albeit scarcely for economic and social reasons compared to previous periods, will eventually be subject to legislated disqualification owing to its sanctioning in Islamic legislation, which will always possess legitimacy and incur consensus in those Muslim societies if not for its widespread practice, for the mere notion as it is present primarily in the Quranic text. Nevertheless the conditions, such as the ones implicated under Iraqi law, can in a sense confine the practice to the particular context described at the outset.

Bibliography

Hallaq W., “A History of Islamic Legal Theories”, Ch. “The Formative Period”, Cambridge CUP 1997
Yusuf-Ali A., ‘The Meaning of the Holy Quran’, Amana publications
Hinchecliffe D., “Islam & the Modern Age, 1 (8), November 1970
Welchman L., Islamic Family Law: Text & Practice in Palestine
Summarized Sahih Al-Bukhari, Darussalam publications 1404 h

Hallaq W., “A History of Islamic Legal Theories”, Ch. “The Formative Period”, Cambridge CUP 1997

Yusuf-Ali A., ‘The Meaning of the Holy Quran’, Amana publications, commentary of verse 3, chapter 4

See for example verse 220 of chapter 2 (‘Al Baqara’ or ‘The Cow’), verse 34 of chapter 17 (‘Al Isra’ or ‘The Night Journey’), or verses 6 and 10 of the same chapter, among others.

This is the common interpretation of the final statement of that verse; nevertheless, the complexity of the Arabic language leaves room for alternative translation and interpretation.

The verse discussed has been translated by the following: ‘If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if ye fear that ye shall not be able to deal justly with them, then one, or a captive that your right hands possess. That will be more suitable, to prevent you from doing injustice’ (Yusuf-Ali A., ‘The Meaning of the Holy Quran’, Amana publications, verse 3, chapter 4)

Hinchecliffe D., “Islam & the Modern Age, 1 (8), November 1970, p.15

Welchman L., Islamic Family Law: Text & Practice in Palestine p.81)

Summarized Sahih Al-Bukhari, Darussalam publications 1404 h p.1096