To tackle with
the problem of polygamy successfully a Muslim, at the first instance, has to turn
to Holy Quran for inspiration and guidance. The verse dealing with the problem
of polygamy, lays down that the husbands have the option of having (upto) four
wives at a time, provided they possess the capacity of dealing out justice
evenly amongst them.
The second part
of the verse:
directs a
Muslim, in case of his being apprehensive of not being able to deal out justice
and maintain equality among his wives, to be content with one only.
Only a `leave'
It is a `leave'
with limitations put to it. In the face of this direction, one has to ponder
whether polygamy, in an unrestricted manner, should be allowed in Pakistan and,
for the matter of that, in other parts of the Muslim world.
Dealing out
justice and maintaining equality of treatment among the co-wives, are
conditions precedent to having more than one wife at a time. The conditions
imposed make polygamy beyond the reach of the Muslims of Pakistan, in general.
In their daily conduct the Muslims have so deteriorated that the fear of God
and the idea of mutual obligations have almost become extinct in them. Such
Muslims are undoubtedly expected to misuse the option of polygamy granted to
them by religion. They are expected to neglect criminally one wife in
preference to the other. A polygamous family, under the circumstances, would
present an unhappy picture altogether different from the one envisaged by the
Holy Quran. The existing wife or wives would, invariably, be neglected and
children from them would be devoid of proper love, sympathy and care of their
father. Economic and other complicated matters of life would stare the children
in their faces. Consequently, the entire family would be a prey to famine and
misery.
Intervention
of State:
A Muslim State,
therefore, on principle has to intervene and impose restrictions, through
proper legislative measures on the option or leave of having more then one wife
at a time.
The intervention
of the State, here, must not be construed as interference in religious
injunction, inasmuch as in terms of 'fiqh' the option, of having more than one
wife, is merely a `Rukhsat' granted by God, and not 'azimat' Sayyid Muhammad
Rashid Raza, a learned scholar of Egypt holds that polygamy, in view of the
possibility of mischief, arising from it, must be put a stop to. Islam, indeed,
empowers the `Imam' to stop people from committing an act, which, though legal
(MUBAH), has the possibility of creating an evil. Achieving substantive good is
better than allowing the existence of the possibility of evil.
What Mufti of Egypt says:
Another famous
scholar of Egypt late Mufti Muhammad Abdohu, discussing polygamy is his famous
commentary of the Holy Qur'an Al‑Manar (Vol. 4 PP349‑50) argues
that in the early period of Islam polygamy, though it served the purpose of
mitigating the tribal differences and strengthening the family ties, had no
chance of showing up its dark aspects due to the fresh religious zeal and deep
religious knowledge. If the present day Muslims were possessed of the same
untainted religious knowledge and followed the tenets of Islam with the same
strictness and bowed their heads in submission to the decree of God and to
biddings of the Holy Prophet in the same manner as did the Muslims of the early
period of Islam, then alone polygamy could safely be adopted by them now. In
the context of modern downward trend of the Muslim society, however, adopting
polygamy as sanctioned by religion, is, prima facie, an impossibility. The
spirit and inherent meaning of religious sanction with respect to polygamy has
to be correctly assessed and appreciated before it is made applicable, in the
prevailing conditions of the Muslim Society. There is direct emphasis on
"maintaining justice and equality among the co‑wives". It is a
formidable condition, the fulfilment of which is beyond the capability and
strength of the present day Muslims. Polygamy today has, therefore, no leg to
stand upon. It must, consequently, be given a go‑by.
In some Muslim
countries:
Restrictions
have already been placed on having more than one wife in Iraq and Meracoo.
Second marriage, during the existence of a wife, there depends upon obtaining
previous permission of the Qadi appointed for the purpose.
The obtaining of
such permission in Syria depends on the sound financial position of the husband
intending to have another wife. Iraq, in such cases, seeks the fulfilment of
two conditions viz. the husband's financial position must be secure and that
for the second marriage there must be a pressing righteous cause based on
Shariat. In Tunisia, there is, however, complete prohibition to polygamy,
contravention whereof has been made punishable.
Pakistan:
Pakistan, too,
with a view to place restrictions on polygamy, has formulated laws known as
"Muslim Family Laws Ordinance, 8 of 1961". Section 6 of the said Ordinance
has imposed restrictions on polygamy. The section reads thus:‑‑
Polygamy:
(1) No man,
during the subsistence of an existing marriage, shall, except with the previous
permission in writing of the Arbitration Council, contract another marriage, nor
shall any such marriage contracted without such permission be registered under
this Ordinance.
(2) An
application for permission under subsection (1) shall be submitted to the
Chairman in the prescribed manner, together with the prescribed fee, and shall
state the reasons for the proposed marriage, and whether the consent of the
existing wife or wives has been obtained thereto.
(3) On receipt
of the application under subsection (2), the Chairman shall ask the applicant
and his existing wife or wives each to nominate a representative, and the
Arbitration Council so constituted may, if satisfied that the proposed marriage
is necessary and just, grant, subject to such conditions, if any, as may be
deemed fit, the permission applied for.
(4) In deciding
the application the Arbitration Council shall record its reasons for the
decision, and any, party may, in the prescribed manner, within the prescribed
period, and on payment of the prescribed fee, prefer an application for
revisions in the case of West Pakistan to the Collector and, in the case of
East Pakistan, to the Sub‑Divisional Officer concerned and his decision
shall be final and shall not be called in question in any Court.
(5) Any man who
contracts another marriage without the permission of the Arbitration Council
shall‑
(a) pay
immediately the entire amount of the dower, whether prompt or deferred, due to
the existing wife or wives, which amount, if not be paid, shall be recoverable
as arrears of land revenue; and
(b) on
conviction upon complaint be punishable with simple imprisonment which may
extend to one year, or with fine which may extend to five thousand rupees, or
with both.
The Provincial
Governments of East and West Pakistan, in pursuance of the said Ordinance, have
made provisions and formulated rules on the basis of which an Arbitration
Council has been empowered to grant permissions for contracting a second
marriage. Relevant Rules framed and provisions made in this connection read
thus:‑
"14. In
considering whether another proposed marriage is just and necessary during the
continuance of an existing marriage, the Arbitration Council may, without
prejudice to its general power to consider, what is just and necessary, have
regard to such circumstances, as the following amongst others:‑
Sterility,
physical unfitness for the conjugal relation, wilful avoidance of a decree for
restitution of conjugal rights, or insanity on the part of an existing
wife."
The rules framed
and the provisions made do not, in my humble view, cover the entire ground. The
righteous cause based on shariat ought to have been made the sole basis for
granting permission to contract another marriage during the existence of the
wife or wives. The righteous cause based on shariat has a range that covers all
the circumstances arising in such cases. Obtaining permission from the existing
wife per force, and constituting an Arbitration Council wherein the existing
wife is also represented, are points that stretch the matter too far and make
the same unnatural and illogical. Empowering a Family Court to grant permission
for contracting second marriage after a summary enquiry conducted in the light
of the provisions laid down by Shariat, would have been more appropriate in the
circumstances Of the case.
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