Introduction Surah 4:3 verse on polygamy. To end it,

Introduction

What exactly is Polygamy? Well, Polygamy is defined as
marriages that includes more than two partners. It could be when a man has
multiple wives (polygyny) or when a woman has multiple husbands (polyandry). Though,
the most common would be polygyny in all cultures. Well, it is still practice
till the very day and it can be seen to be the most prevalent in Islamic
culture. Polygamy is surprisingly common than most people realize. For
instance, in poorer countries like Benin, it can be found that 55 percent of a
sixth of women share their husbands, of course it is less common in developed
countries.

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Well, there are also Muslim communities that do not permit
polygamy such as countries like Turkey, Tunisia and Israel whereby polygamy is
illegal. However, polygamy is legal in Egypt, India and Bangladesh with restrictions.
It would seem that polygamy is not wrong to be permitted in these countries
because they provide justice to the orphans and widows when wars happened back
in the days. In addition to the Quranic verse Surah 4:3, it was not meant to
utilize polygamy as a way to oppress women, but to ensure that they were taken
care of.

In this essay, in order for us to analyze the topic of
polygamy thoroughly, we will look at the history of polygamy in the first paragraph
whereby we could assess how polygamy is mentioned and practiced in other
cultures and religions. As for the second paragraph, we will go in detail on
polygamy especially in the Islam aspect by utilizing varies sources from
Hadiths and Sunna. This is especially crucial in order to have a deeper
understanding in the subsequent essay. Then, we will assess why polygamy is
permissible in some but not all Muslim communities and assess the different
interpretations of Quran for the Surah 4:3 verse on polygamy. To end it, there
is a significant case law on polygamy that would be discuss which is Jesmin Sultana v Mohammad Elias and
how polygamy is seen in the modern culture. Overall this essay will demonstrate
the arguments on whether polygamy should be permissible or not, if yes, with
what sort of restrictions and if no, with what sort of exceptions? Well to start off, in my opinion,
polygamy should not be permissible in Muslim cultures, communities and nations
but with certain exceptions. It will be discussed in the following.

1. History of
Polygamy

Surprisingly or not, Islam in fact did not invent polygamy,
it merely inherited it. Polygamy actually existed long before Islam came into
the scene of world events. When we look at other religions such as
Christianity, many holy personalities of the Bible had many wives at the same
time such as Abraham and Jacob. Islam merely reformed and modified the system
of polygamy to only having 4 wives when men at that time are used to having
more than 10 of them. In order for Islam to set a more realistic expectation,
it reduces to only able to have 4 wives.

Honestly speaking, the origins of polygamy is uncertain.
Some said that there were a lot of wars and many men died. Hence the women
population boosts swiftly and more women seek for men than men seek for women.
Some also said that the more wives a man had the more military and political
alliances he could forge. For instance, at that time, the number of wives a man
had is deeply connected to the wealth and status of the man.

2. Polygamy in Islam
– Hadiths/Sunnas

As we know, Polygamy is practiced in Islamic culture including
the Prophet himself. Prophet married ten wives during the last thirteen years
of his life. He in fact did not marry other young women or practice polygamy
when his first wife was alive. He did so that other would follow his example to
provide the widows protection and dignity due to the surplus of women (as a
result of men dying in wars), to set the slaves free and to forge friendly
relations.

Polygamy ought
to be seen as a segment of justice in the treatment of widows, however is
essentially adapted upon the need to offer fair care to orphans, according to
the literal reading of the verse. It filled a practical need for that time
period, in enabling widows and orphans to be taken care of in a society in
which women for the most part did not have independent means of financial
support. In any case, the content is evident that polygamy is only permissible
if all wives are treated justly. The Quran then goes on to say that it will
never be feasible for a husband to treat all of his wives fairly. This
effectively limits the possibility of polygamy today. A detailed rendering of
the relevant verses in Surah an Nisa follows:

And if you
have reason to fear that you might not act equitably towards orphans, then
marry from among other women such as are lawful to you – even two, or
three, or four: but if you have reason to fear that you might not be able to
treat them with equal fairness, then only one – or from among those whom
you rightfully posses. This will make it more likely that you will not deviate
from the right course.” (Surah an Nisaa – Women, 4:3).

Barlas (2002)
has argued that the main function of polygamy used to, ‘serves a very specific
purpose: that of securing justice for female orphans’. The Quranic ideal
clearly is to establish monogamous union, which is also affirmed in Sura
Al-Nisa, whereby the Quran notes, ‘You cannot keep perfect balance emotionally
between your wives, however much you desire it’ (IV: 130)

The first
imperative in this verse is to deal justly with orphans, and is directed
towards their male guardians who would be managing their property or wealth on
their behalf. Marriage to female orphans is only supported if and when the
guardian fears that he won’t have the capacity to do his obligation genuinely.
The presumption is that marriage to the orphan will give the husband a greater
stake in carrying out his financial responsibility towards her. It does not by
any means speaks to a prerequisite for every male guardians to marry their
female wards. Second, the verse stresses justice towards the wife (wives) as
well. In other words, polygamy is only possible if the husband have the
capacity to treat his wives justly. Otherwise, he is to marry only one wife, or
even a female slave. The key theme is to prevent him from doing injustice
towards the woman (women) concerned and it will not be within your power to
treat your wives with equal fairness, however much you may desire it, and so,
do not allow yourselves to incline towards one to the exclusion of the other,
leaving her in a state, as it were, of having and not having a husband.

I believe
that the reason to not allowing polygamy would be from the Prophet’s example.
According to the Surah 4:3, it is noted that polygamy is only permissible to
man who can afford it in sense of financially and emotionally. The reason why Prophet
himself able to practice polygamy because he is able to treat his wife justly
and able to protect all his women from evil and deviation. As for the one who
cannot afford that and fears that he will not be able to treat co-wives justly,
he should settle for just one wife, because Allaah says: “but if you fear that
you shall not be able to deal justly (with them), then only one”.

Ash-Shirbeeni
from the Shaafi’i School of jurisprudence, said in Mughni al-Muhtaj 4/207: “It
is a Sunnah not to marry more than one wife if there is no apparent need.”

Furthermore,
in order for the man to marry again or enter a polygamous marriage, there are
certain applications and conditions needed to apprehend, there are also certain
criteria made in pre-nuptial agreement by the first wife to avoid the husband
from getting second or subsequent wives such as application of takhayyar
(eclectic choice) has allowed the incorporation of specific clauses within the
contract of marriage, prohibiting the husband to enter into polygamous
marriages/ other actions detrimental to the interests to the wife. Muslim men
are also required to obtain the written permission of the Arbitration Council;
2nd or consequent marriage is only permissible once the Arbitration
Council is satisfied as to its ‘necessity and just’1
nature in accordance with the Rules laid down in pursuance of the Muslim Family Laws Ordinance 1961.

3. Permissibility of Polygamy
in other Muslim communities

Polygamy is
treated variably in the legal codes of different Muslim nations. While Tunisian
and Moroccan individual status law prohibit polygamy altogether. Syria, Iraq,
Pakistan and Malaysia have made polygamy subject to court permission, and only
granted when certain conditions are fulfilled. In permitting polygamy within
the Islamic family, it raises two fundamental questions: firstly, were there
any rational reasons for permitting polygamous marriages within the Sharia and,
secondly, can polygamy be justified in the light of the prohibition in
international law? An instant response is to suggest that the Sharia has been
insensible towards women’s rights and that continuation of such practices as
polygamy is discriminatory and contrary to modern human rights law. In determining
the rationality of the Sharia principles, it is crucial to regard to the
seventh century Arabian tribal customs as well as the then persisting
socio-economic circumstances.

As we know,
some Muslim countries do allow polygamy and some do not. Even so if they do,
permitting polygamy and actually legally administrating it are two different
things. Countries such as Tunisia, Morocco and Bangladesh does not permit
polygamy (blanket prohibition) whereas countries like Iran, India and Egypt
permits polygamy but with restrictions, meaning the government has set some
criteria and it needs to be met in order for his subsequent marriages to be
legalize.

Honestly
speaking, polygamous marriage is not as simple as it seems. Even if some
countries like Pakistan allows polygamy, there are certain procedures to follow
and it also does not guarantee allowance or legality to it. Pakistan has a
number of limited legislative reforms injected into customary practices and the
operation of family laws. All marriages have to obliged to a system of
compulsory registration under Muslim law. Prior to entering into a polygamous
marriage, Muslim men are required to obtain the written permission of the
Arbitration Council (a Council which consists of a representative of existing
wife (or wives), his own representative and a neutral chairperson). Also, the petitioner
(the men) are required to state the reasons for a proposed polygamous and
inform the Council as to whether the consent or agreement of the existing wife
or wives has been obtained. A second or further marriage is only permissible
once the Arbitration Council is satisfied as to its ‘necessity and just’ nature
in accordance with the Rules laid down in pursuance of the Muslim Family Laws
Ordinance 1961.

In contrast
to Pakistan, the Tunisian legislative prohibition of polygamous marriages
represents a positive and forceful claim of the proper understanding and
re-interpretation of the Sharia. The rationale behind the law is that the
present social, economic and political conditions place an irrebuttable
presumption of monogamous Muslim marriages: the condition of justice and equity
amongst wives perceived not only in an economic and financial sense, but also
from the perspective of love, affection and emotional attachment which cannot
be disturbed equally in a polygamous relationship.

Of course
there are certain conditions that a man has to follow in order for his second
marriage to be legalize such as he has to be financially sufficient to provide
all expenses of each family, physical prowess for completely satisfying the
sexual desires of each wife and able to deliver justice and equality to each
family without favoritism.

 

4. Different
translations and interpretations of Quran

 One benefit that I believe polygamy has in Islam would be
that it addresses the social problems of prostitution and extramarital affairs which
is common in the West. Other than cheating, infidelity is one of the top
reasons for divorce in the West. Islam allows a man to marry more than one wife
with full recognition of the rights of all of them. Interpretation by Barlas
2002 on polygamy verses on Qur’an: a polygamy marriage serves a very specific
purpose: that of securing justice for female orphans, the idea of Quran is
clearly to establish monogamous union which is affirmed in Sura al-Nisa; “You
cannot keep perfect balance emotionally between your wives, however much you
desire it’

Islam family laws derive from two fundamental sources of the
Sharia: the Quran and the Sunna. The Quran represents the accumulation of the
verses revealed by the God to Prophet Muhammad. According to the Islamic faith,
every word of the Quran is divine and cannot be opposed. The Quran is focused
at establishing essential foundations for Muslim societies and guiding these
communities in terms of their rights and responsibilities. The Sunna on the
other hand is the second principal source of Islam. It represents model
behavior and practices of Muhammad. The memorization and transmission of the
Sunna in a literary form is characterized as hadith. Hadith means ‘occurring,
taking place’ represents the ‘report’ of Prophet Muhammad’s Sunna.

The verse most commonly referred to with the topic of
polygamy was mentioned in Quran is in the verse of 4:3 translated by Yusuf Ali:

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.2

Many people
would misinterpret the verse for their own benefits to have multiple wives and
said it is with the permission of the God. For example, most people who
practices polygamy at this modern age probably neglected the verse “but if you
fear that you shall not be able to deal justly then only one will be more
suitable”. Hence, we should take a few things into consideration.

For the line
whereby “One that your right hand possess” it means slave. It is of great
importance to understand the time whereby these verses were revealed. These verses
were revealed after the Battle of Uhud in which many Muslim men were killed
leaving abundance in widows and children. Thus, many argue that these Verses
have been revealed “because of Allah’s concern for the welfare of women
and orphans who were left without husbands and fathers who died fighting for
the Prophet and for Islam. It is a verse about compassion towards women and
their children; it is not about men or their sexuality.”

There are
different interpretations of Quranic verse Surah 4:3 such as the one by
Pickthall ‘And if ye fear that ye will not deal fairly by the orphans, marry of
the women, who seem good to you, two or three or four’ it gives the impression
that the verse is saying that if one cannot deal fairly with orphans then he
should marry among them any he desires. Whereas the translation made by Yusuf Ali
‘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’ it suggests that a person can marry
any woman, whether an orphan or someone else.

The translation made by Sher Ali on the other hand implies
that these women whom a Muslim marries must be other than the orphans ‘And if
you fear that you will not be just in dealing with the orphans, then marry of
other women as may be agreeable to you, two or three or four’. In contrast to
these translations, the versions of Malik, Sarwar and Khalifa insert words into
the Arabic text in order to give the reader the idea that the Quran is
prohibiting Muslims from marrying the mothers of orphans if they are incapable
of dealing kindly with these orphans.

I believe that all this does imply the legality of polygamy
but it should however note the time whereby these verses were revealed. It all
leads to one main purpose to the legality of polygamy which is to serve justice
to both widows and orphans whom lost their husbands and fathers to the wars
which happened very frequently back in the days. Other than that, I believe
that people might have purposely mistakenly misinterpreted the verses on the
Surah 4:3 in order to take advantage and commit polygamy in the name of Islam. It
should however note that in the case of Jesmin3
whereby the High court demanded the repeal of s6 of the Muslim Family Laws
Ordinance 1961 and the imposition of provisions banning polygamy.

Conclusion

In conclusion, I would say that the whole essay supports the
idea that polygamy can be discriminating towards women and it is not exactly
acceptable in the modern culture. As laws in Islam is extremely difficult to
change, the issue of legality of polygamy in the Islamic culture has been
challenged only very recently especially in the past decade only. Although
polygamy serves justice to women and children, I believe that it is not
acceptable as most countries have already acquired peace and it is a very
backward looking. Many historic reasons within the Islamic world for justifying
polygamous marriages are no longer tenable. Polygamy isn’t essential or
significant today for two principle reasons. One, the specific historical
context that legitimized polygamy does not exist today. Women have more options
enabling them to be financially independent, even in situations where they are
widowed or orphaned. The second, and all the more convincing reason, is the
basic to do equity, which forbids having numerous spouses, since, as individuals,
men can’t ever be superbly reasonable and just among them.

1 . “Necessity and just” is defined as
physical unfitness, insanity, infertility, sterility of the wife (wives) and willful
avoidance of a decree for restitution of conjugal rights on the part of the
existing wife (wives)

2 ?Qur’an,
Sura 4 (An-Nisa), Ayah 3

3 Jesmin
Sultana v Mohammad Elias 1997 17 BLD 4

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