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Islam and Politics (28 Oct 2016 NewAgeIslam.Com)

Exceptional Sanction of Polygamy in Quran Is a Concept of Islamic Law Most Abused By Muslim Men over the Centuries

By A. Faizur Rahman

October 28, 2016

Instead of a blanket ban, the Supreme Court can delegitimise polygyny in India for not being in consonance with the Quranic procedure, just as it invalidated instant triple Talaq in the Shamim Ara case

With the submission of the Bharatiya Janata Party-led Central government’s affidavit in Supreme Court a few days ago, the debate on Muslim personal law has intensified, prompting even the Prime Minister to join the fray in support of the constitutional rights of Muslim women. Although the government’s affidavit did not specifically ask the court to “ban” or “abolish” instant Talaq or polygamy, and concedes that “only some women are directly and actually affected by these practices”, it nevertheless tells the highest court that “the issue of validity of triple Talaq, Nikah Halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality”.

The government affidavit seems to have ignored the fact that in the Shamim Ara case (2002) the Supreme Court, relying on several earlier rulings, had invalidated instant triple Talaq and, by that decision, rendered even Halala redundant and equally illegal. Halala is the un-Islamic temporary marriage a victim of instant Talaq is forced to undergo with another man to remarry her first husband. As is obvious, the delegitimisation of instant Talaq makes Halala unnecessary. An overview of the Shamim Ara judgment and some of the rulings cited in it can be found in Justice K. Kannan’s article “Frames of reference”, published in this newspaper on October 21.

Polygyny in the Islamic Context

Polygamy includes both polygyny and polyandry. The Quran categorically prohibits polyandry and therefore, it is polygyny that the Supreme Court will be ruling on in the present case.

Polygyny, which finds mention just once (4:3) in the Quran, is one of the most misunderstood concepts of Islamic law. It has been abused over the centuries by Muslim men without appreciating the spirit behind its exceptional sanction, which is clearly contextualised in the historical conditions of the time when a large number of women were widowed and children orphaned as Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. Even a simple reading of verses 4:2, 3 and 127 will show that it was under such circumstances that the Quran allowed conditional polygyny, mainly to protect orphans and their mothers from an exploitative society.

Verse 4:2 warns caretakers against devouring the assets of orphans either by merging them with their own or substituting their “worthless properties for the good ones” of the orphans. And, if the caretakers “fear that they may not be able to do justice” to the interests of the orphans in isolation, the next verse allows them to marry their widowed mothers — on the condition that the new family would be dealt justly on a par with the existing one. For those who are not up to it, the instruction of the Koran is: “Then [marry] only one.”

It is clear from these arguments that verse 4:3 is not a hedonistic licence to marry several women. Besides, there are several statements in the Koran which describe husband and wife as “spousal mates” created to find “quiet of mind” (7:189) and “to dwell in tranquillity” (30:21) in the companionship of each other. Indeed, verse 7:189, which traces the origin of man from a single cell (Nafsan Waahida), talks of the wife in the singular as Zaujaha, thereby emphasising monogamy. Thus, marriage according to the Koran is the emotional bonding of two minds which cannot be achieved simultaneously with more than one woman.

If despite this, the Quran permitted conditional polygyny, it was, as stated above, only as a social remedy to alleviate the sufferings of women and orphans in calamitous situations. This can be appreciated from the dreadful state of affairs in West Asia today. In November 2011 The New York Times, citing Iraqi government sources, reported the presence in that country of one million war widows — and at least an equal number of orphaned children — who want to remarry for security and companionship; but there aren’t enough men.

Thankfully, as such conditions do not exist in India, polygyny is not permissible here. The Supreme Court would therefore be justified in delegitimising polygyny practised for reasons other than those mentioned in the Koran just as it invalidated instant triple Talaq in the Shamim Ara case for not being in consonance with the Quranic procedure. Indeed, the court’s imposition of fetters on polygyny would serve as a de facto ban on the practice, thereby rendering unnecessary the need for a blanket ban — sought by some Muslim groups — which would be politically inexpedient in the prevailing circumstances.

Muslim Polygyny V. Hindu Bigamy

From another point of view too, a total ban on polygyny may not be advisable. Latest census data and impact studies conducted by researchers such as Flavia Agnes show that bigamy continues to prevail among the Hindus despite the Hindu Marriage Act, 1955 outlawing it, and Section 494 of the Indian Penal Code (IPC) declaring it a punishable offence.

Chart C-3 of the 2011 Census containing details on marital status by religious community and sex provides the shocking information that among Hindus (not including Sikhs, Buddhists and Jains) married women outnumber married men by 43.56 lakh. To be exact, out of 47,13,97,900 married Hindus, 23,35,20,803 are males and 23,78,77,097 females, thus exceeding the males by 43,56,294. The only inference that could be drawn from these figures is that 43, 56,294 Hindu women are in bigamous relationships with Hindu men unless of course it can be proved they are mostly married to non-Hindus.

One reason for this could be the fact that Section 198 of the Code of Criminal Procedure does not allow any court to take cognisance of an offence punishable under Chapter XX of the IPC (which includes Section 494) except upon a complaint made by the “person aggrieved” by the offence. For a male bigamist, the first wife is the aggrieved person, and if she chooses not to lodge a complaint, her husband cannot be prosecuted.

However, the bigger issue here is that the “second wife” cannot claim rights on a par with the first wife under the Hindu law even if the first wife consents to her husband taking another wife and the “second wife” is informed of the existence of the first before marriage. This seriously compromises the equality guaranteed to her as a citizen under Article 14, and the right to life with dignity assured under Article 21 of our Constitution.

It also brings into question the constitutionality of laws that discourage women from making informed choices; and when they do, penalise them for exercising their human agency in the name of undefined societal morality!

Factoring In Social Reality

The consolation is that our courts are fully aware of the flaws in the Hindu law and have tried to overcome them through deontological interpretations. In the Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga case of 2004, the Supreme Court, while justifying the granting of maintenance to a second wife and her daughter, observed: “…a bigamous marriage may be declared illegal being in contravention of the provisions of the [Hindu Marriage] Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent.” This view was fully endorsed in 2013 by another Supreme Court Bench in the matter of Badshah v. Sou. Urmila Badshah Godse & Anr where it was emphasised that “just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law.”

Unfortunately, ill-informed calls for the abolition of polygyny among Muslims are not based on an appreciation of the change in social reality today which is manifesting itself in the form of a renewed emphasis on individual rights especially with regard to sexual orientation and preference.

Rights of the ‘Second Wife’

If, in the light of the foregoing arguments, a blanket ban on Muslim polygyny is being opposed, it should not be construed as an expression of support for the practice. The point that is sought to be made here is this: if polygyny is abruptly declared illegal for Muslims, without first identifying and addressing the causes of failure of Hindu law in preventing bigamy, it would end up creating the same confusions in the Muslim law, especially with regard to the rights of the “second wife” under Articles 14, 15 and 21.

Therefore, pending examination of the Hindu bigamy law through the prism of these facts, the most judicious option, insofar as Muslim polygyny is concerned, would be to fetter it with Quranic conditions as discussed above.

This should not be a difficult decision given the fact that eight out of the 10 countries cited approvingly in the government’s affidavit have regulated polygyny by making it conditional. It would therefore be improper to hold up these countries as examples in the case of instant triple Talaq — which all 10 have invalidated — while ignoring 80 per cent of them on polygyny.

Source: thehindu.com/opinion/lead/situating-law-in-the-land/article9277434.ece

URL: http://www.newageislam.com/islam-and-politics/a-faizur-rahman/exceptional-sanction-of-polygamy-in-quran-is-a-concept-of-islamic-law-most-abused-by-muslim-men-over-the-centuries/d/108940


  • Dear Cassim says, “The problems are with the followers and not the faith”

    This is true but how long this problem will remain with the followers, why not it comes to an end. That this problem is actually with their not understanding their faith well is upsetting and consequently leads to creating problems for other communities as well. So why not end this root cause of the problem, for becoming good human being as well good follower of the faith? 

    By Ghulam Ghaus Siddiqi غلام غوث الصديقي - 11/21/2016 4:45:51 AM

  • So what this author is saying is, until illegal bigamous marriages among Hindus come down to zero, polygamy among muslims must not be outlawed. and even if it is, at some distant time, outlawed, the reason for outlawing must be based on the Quran, not on plain gender justice. God help the Muslim women.  
    By secularlogic - 11/4/2016 1:02:32 AM

  • The problems are with the followers and not the faith. Muslim women are yet to get the right they enjoyed under Prophet Muhammed. I must agree male chauvinism is yet prevelant. My new out look is that Islam did not come to Muslims - it came to the Moomin. ..
    By Cassim - 11/2/2016 3:53:44 AM

    Organized religion always has been and remains the greatest enemy of women's rights. In all religions, women lost her rights, her standing—even her identity, and motherhood became a God-inflicted curse degrading her status in the world. The religious scriptures and the clergy have been the greatest stumbling blocks in the way of woman's emancipation. The most organized and formidable opponent of women's social, economic and sexual rights remains organized religion. 
    Why do women remain second-class citizens? Why is there a religion-fostered war against women's rights? Because the religious scriptures are the handbooks for the subjugation of women. They establish woman's inferior status, her "uncleanliness," her transgressions, and God-ordained master/servant relationship to man. In some religions, women are possessions: fathers own them, gift or sell them into bondage, even sacrifice them. Some religious books sanction rape during wartime and in other contexts. They are described as having evil, even satanic powers of allurement. Contempt for women's bodies and reproductive capacity is a bedrock of these books. The few role models offered are stereotyped, conventional and inadequate, with such heroines admired for obedience and battle spirit. Even Ramayana shows women as jealous, evil, selfish, untrustworthy and at the root of all problems.

    By Ashok Sharma - 10/30/2016 7:50:13 AM

  • There is very very less polygamy is practised by Indian Muslim(Again a Bad Hindu Influence) please Mr Faizur Rahman do not dragg my Indian Muslim brothers unnecessary, you can say about Pakistani they practised lots.

    You can drag our Indian Muslim brothers when Tablige Jamat undo Hindu brother bad influence of single marriage and start polygamy, the process is going on since last century it has started to give fruits, may be your article will be relevant in Indian Muslim context in coming 50 years when India will be already burdened by huge population bomb.

    By Aayina - 10/28/2016 10:19:46 PM

  • Very well argued and scholarly article but it should not go unchallenged.

    "Conditional polygyny" (as opposed to a total ban on polygyny) will be exploited and expanded and will make a mockery of gender equality (unless balanced by the equally grotesque "conditional polyandry") .

    The article unwittingly shows up the limitations of the Shamim Ara decision of the Supreme Court (2002) on triple talaq. It was based on the need for compliance with Islamic Law rather than on the requirement of equal rights, status and dignity guaranteed by the constitution.

    The Hindu woman who lives as a "second wife" is engaged in an illegal practice from which no rights accrue. The same would apply to any Muslim woman who enters in a "second wife" relationship after a law banning Muslim polygamy is passed. 

    There is no way in which polygyny can be seen as not being violative of gender equality and having the effect of reducing women to second class citizenship.

    By Ghulam Mohiyuddin - 10/28/2016 2:59:50 PM

  • Religions are basically anti-women. They teach that males are superior to females. Still, women seem to be more religious than men.
    Least religious countries have more gender parity whereas more religious countries have more gender gap !!! Just see the list of top 10 countries having least gender gap and the countries at the bottom of the list. Nordic countries Iceland(at no.1), Finland(2), Norway(3) and Sweden(4) are on the top. These are also the least religious countries (having large proportion of atheists too). In the same list, the bottom five are Saudi Arabia (at 141), Syria (142), Pakistan (143), and Yemen(144 or, the last). These are supposed to be the most religious countries at present (in the sense that religion plays a major role in policy making at both political and social level). Among the 144 countries in the report published by the World Economic Forum, Pakistan is the second last (ahead of Yemen only) in Gender Justice. The report can not be condemned easily as biased as its sponsors also include public/private companies from Saudi Arabia (ARAMCO), Kuwait, UAE, Bahrain, Qatar etc.
    By Ashok Sharma - 10/28/2016 1:01:54 PM

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