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In our society when one thinks of committing second marriage, the first thing that surrounds his mind is: would it be lawful with his previous wife? It is not because the Quranic right that allows man for polygamy is ambiguous but because of social norms and societal pressure of polygamy. The wave of so-called feminism aims to obstruct this right and what makes them successful in this purpose is Section 6 of Muslim Family Law Ordinance (MFLO) 1961.
The Section 6 has legally restricted a person’s right to polygamous marriage subject to consent of the chairman of arbitration council [Section. 6(1)] and of previous wife/s [Section 6(2)], while no such limits has ever been prescribed by Allah.
Although, in Islam, the concept of dealing all wives equally do exist and what a person should fear about is that he should not leave his previous wife/s in state of suspension. This writing aims to explore the true worth of right to polygamous marriage in Islam along with its significance in our society, especially for women and the interpretation adopted for the restriction of this right in Tunisia and Egypt.
According to Surah 4:3, a sane adult Muslim man is free to commit as many marriages as he want, as long as he has four wives at one time. So, if he still wants to commit another marriage after four wives then he has to divorce one of his four wives. Although this right is not unfettered and has some limits, these limits are better described as moral limits (i-e binding one’s conscience) rather than legal, according to Quran and Hadith. As the Prophet (PBUH) said, the one, who has two wives and inclines more to one and away from the other, will come to the hereafter with half of his body paralysed. (Al-Tabari Jami-ul-Bayan)
Just like this, Quran has also laid down the condition of equality between all the co-wives to enable a man to commit more than one marriage (Surah 4:3). Strangely, the law reforms adopted in Tunisian law of personal status deems to totally prohibit the concept of polygamy and polygeny in Islam.
Before examining the reality and strength of these reforms, the implication of polygamy on women should be analysed.
From the outset polygamy seems to privilege the men in our society and disfavour the women, as they do not enjoy the similar right of polygeny as do the men. But the reality of this right proves that this right is highly in favour of women. Another co-wife is not a cruelty on the women as long as they both are maintained in an equal fashion in terms of their attributes. Polygamous marriage of a man favours female in a manner that it allows a man to have another woman even if his previous wife is not able to fulfil her duties. This helps a man to commit second marriage, if his wife is not able to have kids without divorcing the previous wife. This is the right which favours a woman as man can commit multiple marriages even without divorcing his previous marriage rather than in a situation where he would have to divorce his previous wife before marrying another woman.
Despite these all clarities, since 1956, there has been prohibition of polygamous marriage in Tunisia. Article 22 of code of personal status of Tunisia completely prohibits polygamy for it being not in compliance with Sharia law. Surprisingly, the Tunisian law reformers reached this conclusion by interpretation of Quran. Shortly after this, such reforms were rapidly adopted in Egypt as well.
There is no doubt that Islam discourages the polygamous marriage unless there is complete equality between all wives. In these circumstances, the only question worth considering is that whether polygamy should also be banned in Pakistan. Its implication has already been examined, but to truly conclude the strength of these reforms, the Tunisian law should be examined, first.
To reach this conclusion, the Tunisian lawmakers have placed their reliance on Surah 4:129. First of all, the Tunisian lawmakers adhere to the interpretation of Surah 4:3 (in which there is a command to marry with up to four wives). But the Tunisian law has placed its focus on the wording in this verse, that the right of polygamous marriage can only be enjoyed, if there is no fear of inequality of treatment between wives.
The Tunisian interpreters, then, have questioned the ability of a Muslim man to deal several women equally by relying on Verse 129 of Surah 4, which says that it is impossible to deal several wives equally. Hence, Islam by making polygamy subjected to a condition which is impossible to fulfil, has in effect, completely prohibited several marriages. According to these views, only monogamy could be permissible in Islam.
As far as the current position with relation to polygamy in Pakistan is concerned, the interpretation adopted in Tunisia does not seem to convince the Pakistani legislature much for such changes. So the prospects of ban on second marriage are extremely low even though multiple marriages are not preferred here.
One of the hurdles, which prevent the Tunisian and Egyptian reforms from being adopted in Pakistan, is the interpretation of Verse 129. (Al-Tabari, Jami-ul-Bayan, Vol 7, Page 531)
First of all, the prevalent view of all the schools and sects is that Quran should not be read in a manner to contradict itself. Hence, the Verse 129 can be brought into conformity with Verse 3 of Surah 4, if understood as Tabari interprets it to mean that it’s impossible to treat all wives equally in feelings (love), while his feelings are beyond his control for which he would not be accountable. But the duty on him is to do not let his love for the first wife to ignore the others and to leave in the state of hanging (suspension) so that she should not be left in a condition of neither married nor divorced.
As it has already been discussed, this right of polygamy to a man is of great advantage to a woman. Moreover, the Tunisian interpretation for ban on polygamy does not deny the polygamous marriage of the Prophet Muhammad (PBUH) and his companions. Indeed, they argue that initially there existed the right to polygamy but then by revelation of further verses, it was banned.
In light of these arguments, it is fair to conclude that there is/ should not be any limit on a man’s right to commit second marriage. The debate about the extent of their equal maintenance varies in each school of law. But there is no dispute in any sect regarding the permissibility of polygamous marriage. Despite these all rights, at the end, it is to be concluded that a man must fear committing polygamous marriage without any concrete ground because fear of inequality is always at the peak. However, it should be remembered that bringing another wife on the existing wife is neither a sin nor any bombardment on her.