It was not Islam that had initiated polygamy rather polygamy was the widespread customary practice in pre-Islamic Arabia which continued in the later ages by distorting the actual revelation of the Quran. The traditional practice of polygamy is one of the patriarchal practices that create discrimination against women by indicating the fact that equality between men and women has not been realised in society. While interpreting the Quranic verses relating to polygamy, jurists belonging to different schools of thoughts, presented diverse observations regarding the wholesale permission and restrictive approval of polygamy. Verse IV: 3 of the Quran which is also known as 'verse of polygamy' says:
'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 only one, or (a captive) that your right hands possess. That will be more suitable, to prevent you from doing injustice'.
The classical or traditional jurists interpreted this verse as allowing a man to marry up to four wives, while the modernists as well as contextualists observed that this verse legislates monogamy and allows polygamy only under exceptional circumstances. It will be prudent to note that contextualists emphasise the context and background of the verse. This verse actually urges to ensure proper treatment towards the orphan girls, it does not mean to allow blanket permission of polygamy to the men. During the period of revelation, some male guardians, responsible to manage the wealth of orphaned female children, often engaged in unjust management/misappropriation of the wealth of those children. In order to prevent such mismanagement, the Quran allowed them to marry those female orphans. While permitting marriage, Quran, on one hand limited the number of marriages up to four and on the other hand, envisaged that 'the economic responsibility for maintenance of wife would counterbalance access to the wealth of the orphaned female through the responsibility of management'. The quranic injunction aimed to improve the conditions of weaker segments of the society like orphans and the poor in general.
The historical context of Sharia indicated that in order to ensure security and well-being, women were dependent on men. While there were a smaller number of men because of ravage of war in the seventh century, polygamy was allowed to share one husband with the cowives so that women did not become destitute and helpless. This historical justification suggested that the idea behind the permission of polygamy was to provide human care to the orphaned children and to protect the rights of widows and destitute women.
The key argument of modernists is that while the Quran apparently, allowed polygamy, it added a moral rider to the effect that if a man cannot do justice among co-wives, then he must have only one wife. The meaning of justice does not only imply equality in terms of providing food, shelter, and clothing, it also signifies equality in love, affection, and esteem which is impossible to be rendered by a human being. In support of their argument, modernists relied on the quranic verse IV: 129:
'Ye are never able to be fair and just as between women, even if it is your ardent desire'.
The interpretation of this verse along with the previous verse of polygamy indicated that quranic injunction is functional on two levels: (i) a legal level where limited polygamy was permitted under exceptional circumstances (ii) a moral level where Quran had apparently expected that society would transform with the change of time.
The classical jurists, however, did not consider the 'justice' requirement as a condition precedent to a polygamous marriage rather they left the issue to be decided by the private judgment of every individual husband. Their understanding of quranic verse by giving supremacy to the decisions of individual husbands reflected the notion that men are superior to women. They also relied on the quranic verse II:228:
'And women shall have rights equivalent to the rights against them, according to equitable prevailing practice (al-ma'aruf), but men have a degree [of advantage] over them [them]'.
In interpreting this verse, traditionists preferred to emphasise the later portion of the verse that gives superiority of men over women disregarding the parity of men and women. Contextualists while negating the interpretation of traditionists construed the provision to imply that 'men have a degree of advantage over women' was reflected in the legal status of men and women in the previous context which should have no legal implications in the modern context. Ignoring the significance of context in interpreting quranic verses, conservative jurists hold that polygamy as a response to multifarious situations of necessity is a better option than monogamy practiced in the west where positive laws leave loopholes giving tacit approval to extra marital sexual liaisons. Here, it can be argued that the demerits of positive laws cannot be used as a shield to justify polygamy because wholesale permission of polygamy does not reflect the true essence of the quranic injunction.
Though there exists difference of opinions regarding polygamy, contextual interpretation of the above mentioned quranic verses suggests that an unrestricted licence for polygamy is contrary to the spirit of the Quran. While adopting contextual interpretations of quranic injunctions, Islamic communities have imposed restrictions on polygamous marriages in various countries, including Pakistan, Bangladesh, Syria, Iraq, and Morocco and even there is an example of complete abolition of polygamy as in the case of Tunisia, by virtue of the practice of ijtihad. The Tunisian reformers, by virtue of the practice of ijtihad, highlighted that in addition to a husband's financial ability to maintain a couple of wives, the quranic injunction also requires complete impartial treatment among co-wives. This injunction of the Quran should not be taken as a moral instruction but as a legal condition precedent which requires proving impartiality among co-wives through adequate evidence. The reformers maintained that under modern social and economic conditions, the stipulation of impartial treatment was impossible to fulfil and accordingly they declared to prohibit the practice of polygamy under Tunisian Law of Personal Status 1957.
In Bangladesh under the Muslim Family Laws Ordinance (MFLO) 1961, the practice of polygamous marriages has been restricted by imposing few conditions that include the requirement of taking consent from the existing wife and obtaining permission from the Arbitration Council. In addition to legislative restriction and prohibition, judges interpreted the quranic verse of polygamy progressively either by restricting, prohibiting or condemning the practice of polygamy in a large number of judicial decisions (Cases among others include Jesmin Sultana v. Muhamamd Elias 17 BLD 1997 4, Amena Khatun v. Serajuddin Sardar 17 DLR, (1965) 687). Judges also emphasised the condition of equal and impartial treatment that required to be fulfilled by the husband desirous to have more than one wife.
In the Jesmin Sultana case, the High Court Division (HCD) recommended that Section 6 of the MFLO should be repealed and replaced by a section prohibiting polygamy altogether. While coming to this pragmatic decision the court stated that Muslim jurists and scholars are nearly unanimous on the view that it is practically impossible to deal with co-wives justly, and so the quranic injunction that a second wife may be taken under a specific condition is virtually a prohibition. It is noted that though the Appellate Division did not agree with the decision of the HCD, the observation of the HCD regarding polygamy carries significance and may work as a significant guideline in terms of the interpretation of the cases of polygamy.
The above discussion leads to the proposition that the underlying message of the Holy Quran regarding the injunction of polygamy disregards any discriminatory practices against women by virtue of the practice of polygamy. This Quranic proposition corresponds with the equality and non-discrimination principle of the international human rights law. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979, considered as a bill of women's rights, categorically condemns discrimination against women in all forms and urges to ensure equal opportunity and treatment for women. In addition, international human rights instruments including UDHR, ICCPR, and ICESCR also contain provisions against discrimination on the basis of sex. Here, if we consider the contextual interpretation of polygamy through the lens of equality and non-discrimination principle, it would be clear that the Quranic injunction of polygamy complements the norms of international human rights law. In addition, the imposition of justice requirement in case of taking second wife implies that Quranic message not only conforms with the equality principle but also is significant to ensure a dignified life for women.
The writer is an Assistant Professor of Law, University of Dhaka.