CHAPTER TWELVE

Polygamy

Table of Contents

The Qur´an says, "If you fear that you will not act justly towards the orphans, marry such women as seem good to you, two, three, four [at a time]; but if you fear you will not be equitable, then [marry] only one or what your right hands own, so it is likelier you will not be partial" (Sura al-Nisa´ 4:3). Polygamy was a widespread phenomenon in pre-Islamic times, just as it was with the Semitic peoples of the time.(1) Muhammad restricted the number of wives to four. The concubines will be treated in a separate chapter. The old interpreters understood the permission in this verse as the largest number imaginable in a legal marriage: "Do not marry off but from one to four, and add no more. If you are afraid you will not deal fairly, if you marry more than one, then marry one only or those your hand controls so that you will not act unjustly."(2) Polygamy is one of those Qur´anic judgments that could not affirm their existence among the Islamic nations, for most Muslims are married to one wife. It is not only that economical obstacles hinder men from doing that, but, we should not forget, it is due to the social problems this practice creates. Marrying another wife is a disgrace to the family of the first one. Moreover, moderate Muslims attempted to interpret this verse in such a way that suited the requirements of the time. Qasim Amin, for example, held that a Muslim could infer from Sura al-Nisa´ 4:3 that polygamy is forbidden, since justice to all wives, which the Qur´an stated as a stipulation for this sanction, is impossible.(3) Yet, a scrupulous Muslim, who feels called to defend and justify all that was written in his honourable book, quotes from the "old" and the "new" to prove the divine wisdom underlying polygamy. Al-Sabuni says, "Polygamy is an age-old institution, but it was an unorganised chaos before Islam. It was liable to fancy and enjoyment, but Islam made it a means of excellent life. The fact that everybody should know is that polygamy is one of the things that Islam boasts about, since it was able to solve a difficult problem that is considered one of the most complicated ones that nations and societies today suffer from. There is no solution to this problem except by going back to the judgment of Islam and adopting its system."(4) The reasons and justifications that Muslim writers give suggest that polygamy has been enjoined only to honour and favour women. "What shall we do when the balance is upset and the number of women becomes many times more than men? Shall we deprive women of the blessing of marriage and motherhood; and thus let her walk the way of whoredom and vice, as it happened in Europe owing to the increase in number among women after the last world war? Or shall we solve this problem by noble ways that preserve the woman's honour, the family's purity and the wholeness of society? Which is more honourable and more ethical, that woman should be bound with a holy bond in which she joins another woman under the shelter of a man in a legal, noble manner, or that we let her become a mistress or a girlfriend of that man, the relationship between them then being sinful and evil?"(5)

Sayyid Qutb adds the following in his commentary:

In case the wife is barren and the husband still has his natural desire, there are only two ways he can go:

1. Either to divorce her in order to replace her with another one able to meet man's natural desire to have children.
2. Or to marry another one and still keep his relationship with the first wife. Some impertinent men and women may undiscerningly prefer the first option. Yet, 99 wives (at least) will heap curses on that person who advises the husband to do that, and thus destroy their homes for no apparent reason. One rarely finds a barren women having any more desire to remarry, but you find often that the barren wife is more secure and relaxed with the little children that the other wife conceives for her husband. They fill the house with activity and joy for her, no matter how miserable she is in her own deprivation.(6)

When reading this sort of defence of polygamy, which sounds ridiculous, it isn't easy to think a great scholar such as Sayyid Qutb did not know about adoption, or did not ask himself what could be done if the man himself is impotent! What is the place of the intimate love relationship between husband and wife? Modern scholars and thinkers do not stop in their defence of polygamy at the "text" and the "reality" only, but they are keen on backing up their viewpoint by the European ideas they hear or read. Al-Sabuni tells us for example: "Christian Germany, whose religion forbids polygamy, has chosen and she found no better choice than that which Islam had already chosen. So Germany permitted polygamy so as to protect the woman from taking prostitution as a profession; which results in onerous damages, the leading one of which is the large number of bastards."(7) It is, of course, unnecessary to add that the Germans have not heard of such a decision. Thus, it appears that Islamic apologists are allowed to circulate lies to further their own cause.

He also quotes (without giving any reference) what a "German female university professor" said: "The solution for the problem of the German woman lies in permitting polygamy. I prefer to be one among ten wives of a successful man than to be the only wife of an insignificant, unsuccessful man. This is not my opinion alone, but the opinion of all the women of Germany."(8)

Mr Sabuni claims that the German youth conference (held in Munich, Germany in 1948) recommended polygamy as a solution for the problem of the increase of women and the lack of men after the Second World War.(9) Aqqad also, quoting one time from the philosophers, and another from the western writers known for their racial tendency, tries to cue the reader in on the universality of polygamy. He says, "Westmark thinks that the matter of polygamy has not been resolved yet in the west as being illegal in all western laws. This issue will be tackled again and again every time the conditions of modern society become harder, in terms of family problems. He wonders in his above-mentioned book, "Will monogamy be the last and only system of the future?" He answers himself, saying, "This question has been answered by different opinions. Spencer thinks that monogamy is the last marital system, and that every change in system must lead up to this end. Dr Le Bon believes that European laws will eventually endorse polygamy. Professor Ehrenfels, however, goes to the extreme of saying that polygamy is necessary for the preservation of the 'Aryan race'. Westmark comments that polygamy gains the upper hand when matters go the way they are supposed to take."(10) The most important of these arguments, listed in the writings of Muslim writers in defence and for the justification of polygamy, can be summed up in four points:

1. They claim that the number of women in the world exceeds that of men; it passes the ratio of four to one.(11) Polygamy, then, is the best solution for this predicament.
2. They argue that the period of fertility with man extends to the age of seventy and beyond. Yet, fertility stops with women at the age of fifty or so. So polygamy is a must, since the earth should be populated through reproduction and diffusion.(12)
3. They talk about actual cases of man's desire to satisfy his natural function (sexual relations) whereas the wife is averse to it due to age or sickness. Polygamy is the sole solution to this problem.(13)

Other things that should be added to the list of special cases for which polygamy is allowed are the prolonged menstrual period of the woman, which prevents the husband from having sex with her, or the strong desire of the adult man for nikah, which cannot be quenched by a single woman, so that man is left with a need for marrying more than one wife to relieve his [agonising] soul.(14) Islam has permitted such men to realise their desire within a legal frame so that Satan should not lead them astray.(15) As to Muhammad Rashid Ridha, he does not list any special cases, but starts off with an assumption that man's nature makes it impossible for him to be satisfied with one woman.(16)

4. The problem of barrenness. On reading the books of modern Muslim scholars and writers who put forward and explain the problem of barrenness in defence of their claim that polygamy is an absolute imperative, one perceives that this is the most powerful argument they have. One should not be astonished at this, since children or the assurance of progeny is the reason for the existence of nikah (which was originally sexual intercourse, or, by way of generalisation, marriage). If we study the biography of Muhammad, we see that the Muslim is in no need of citing social problems, special cases, the decisions reached by "the Conference of Munich", or what a female German professor said to justify polygamy. Muhammad himself, about whom the Qur´an says, "you have a good example in God's messenger" (Sura al-Ahzab 33:21), was the leading example in proving that polygamy in Islam is an established tradition, and not a special revelation. The Messenger of God said, "Whatever I command, that you should adopt, and whatever I forbid you, that you should give over."(17) Sunna (or tradition) is of course the second source of the Islamic Sharia, "of which if someone is ignorant, has no guide in the thick darkness of doubt."(18) This "guide" says about himself, "Marry, for the best person of this [Muslim] nation [i.e., Muhammad] of all other Muslims, had the largest number of wives."(19)

Moderate Muslims, who noticed the faults and imperfections of the Islamic Sharia, have tried to reform the religious system and reconcile it with the requirements of the twentieth century. The first attempt of this kind was that made by the great reformer and thinker Jamal al-Din al-Afghani (1837-1897). He cautioned not to apply this verse because it is impossible to "deal fairly" if a man has more than one wife.(20)

At the turn of the century there arose a discussion among the liberal circles about polygamy, which still stirs a wave of anger and indignation. Arab writers, such as the Egyptian writer Nawal al-Sa`dawi and the Moroccan professor Fatima Marnisi, treated this subject in their writings, which were no less severe than the European social studies in the way they criticise society.

As to the legal position of polygamy in the Islamic world, it now falls under the punishment of law in Turkey and Tunis. In Egypt a law was passed in 1979 that added more restrictions on polygamy in preparation to abolishing it altogether. This law had been suggested by the late president of Egypt, Anwar al-Sadat. The Islamic fundamentalists dubbed it "the law of Jihan al-Sadat". This law stated that a woman can call for divorce once her husband marries another in case of her being pregnant, and that she has the right to keep the house, as well.(21) There are some who think that it is disobedience to God, however, to interpret the verse of polygamy in modern terms.(22)

CHAPTER THIRTEEN

Temporary Marriage of Enjoyment

Table of Contents

Marriage of enjoyment (or pleasure) differs from the conventional marriage in that its aim is not having a regular marital life and begetting children, but to enjoy sexual relations in a "legal" way. The man who practises such a marriage is often someone who spends a long time abroad for any reason, and thus marries a woman temporarily. The period of marriage is limited to the time when the husband leaves the country, and then the marriage is automatically dissolved.

The traditions relating to marriage of enjoyment indicate that Muhammad warranted such practice for his friends especially during the raids (maghazi). Yet, `Umar Ibn al-Khattab strongly opposed it, as he said, "The Messenger of God permitted mut`a [marriage of enjoyment] three times, and after that he forbade it. By God, if I find that anyone practises mut`a, while being married, I will stone him with rocks, unless he brings me four witnesses that the Messenger of God permitted it after he had forbidden it."(1) A tradition in Bukhari claims that he prohibited it.(2) Still, it is a bone of contention between many jurists. It is narrated that `Imran said, "We practised the tamattu` [marriage of enjoyment] in the life-time of the Messenger of God, and then the Qur´an was revealed (3) [regarding tamattu`] and somebody said what he wished [regarding the same] according to his own opinion."(4)

Regardless of the disputes on the details of mut`a in the Sunni schools of thought, one can say that it is equal to fornication, yet the Shiites turned it into some sort of legal marriage. The Sunni jurisprudence, however, allows mut`a, even if it doesn't call it by name. For example, a man may agree to marry a woman in addition to his marriage contract, and bind themselves to divorce as soon as the term they fixed is finished.(5)

Since the Sunni schools of thought all agreed that mut`a was cancelled and prohibited on the basis of traditions narrated about Muhammad,(6) we would like to treat the subject within the Shiite jurisprudence. According to the Shiites, the legality of mut`a is established in both the Qur´an and the Hadith, and in the traditions about their infallible Imams. Their Qur´anic proof is: "and wedded women, save what your right hands own. So God prescribes for you. Lawful for you, beyond all that, is that you may seek, using your wealth, in wedlock and not in licence. Such wives as you enjoy thereby, give them their wages apportionate; it is no fault in you in your agreeing together, after the due apportionate. God is All-knowing, All-wise. Any one of you who has not the affluence to be able to marry believing freewomen in wedlock, let him take believing handmaids that your right hands own; God knows very well your faith; the one of you is as the other. So marry them, with their people's leave, and give them their wages honourably as women in wedlock, not as in licence or taking lovers. But when they are in wedlock, if they commit indecency, they shall be liable to half the chastisement of freewomen. That provision is for those of you who fear fornication; yet it is better for you to be patient. God is All-forgiving All-compassionate" (Sura al-Nisa´ 4:24,25).

Abu `Abdullah from Ja`far al-Sadiq (the sixth Imam of Twelver Shiism) narrated the following about nikah of enjoyment: "God had made it lawful in His Book, and by the mouth of His Prophet, so it is lawful till the day of Resurrection." One day Abu Hanifa said, "O Abu Ja`far, such as you say that, even though `Umar prohibited and forbade it?" He replied, "Even if he did so." He said, "I adjure you by God not to make lawful that which `Umar has declared prohibited." He answered, "You follow the saying of your friend [`Umar], but I follow the saying of the Messenger of God. What your friend said is untrue." Then, `Abdullah Ibn `Umar came forward and said, "Does it go well with you if your wives, daughters, sisters, and cousins do this?" But Abu Ja`far avoided him when he mentioned his wives, daughters, and cousins.(7)

`Abdurrahman narrated: I heard Abu Hanifa asking Abu `Abdullah concerning mut`a, for which he answered, "Which of the two mut`as are you asking about?" He replied, "I have already asked you concerning the mut`a of Pilgrimage, now tell about the mut`a of women in general; is it legitimate?" He answered, "Praise be God! Have you not read the Book of God Most High? It says, 'Since you have thereby sought enjoyment with them, give them their marriage portion as is stipulated.' " Abu Hanifa said, "By God! It is as though I have never read this verse before."(8)

In a tradition ultimately related by `Ali, Abu Hanifa said to Ja`far Ibn al-Nu`man, "O Abu Ja`far, what do you say concerning mut`a; is it lawful?" He replied, "Yes." He asked again, "Then what keeps you from commanding your women to practise it and earn money for you?" Abu Ja`far answered, "Not all professions are desirable, even if they were lawful. Certain folk have certain lots in life and certain social status. But what do you say, Abu Hanifa, concerning [new sweet wine]; don't you claim that it is lawful?" He answered, "Yes." Abu Ja`far asked, "What keeps you then from letting your women stay at taverns selling wine and earning money for you?" Abu Hanifa said, "Tit for tat; and your arrow penetrates even more." The Abu Ja`far said to him, "The verse in Sura al-Ma`arij [70] speaks of prohibiting mut`a, and the tradition of the Prophet also cancelled it." Abu Ja`far replied, "Abu Hanifa, Sura al-Ma`arij is a Meccan Sura, and the verse pertaining to mut`a is Medinan, and your tradition is anyway doubtful and bad." Abu Hanifa said to him, "The verse pertaining to inheritance, as well, speaks of cancelling mut`a." Abu Ja`far answered, "Wedlock has been already established without inheritance." Abu Hanifa asked, "Where do you deduce that from?" Abu Ja`far answered, "If a Muslim man marries a woman of the people of the Book, and then dies, what do you say about her?" He answered, "She does not inherit from him." He said, "See, wedlock is established without inheritance," and they departed.(9)

The Suni schools of thought consider mut`a as abolished on the grounds of Sura al-Mu´minun 23:5, which says, "Believers will succeed! ...who guard their private parts except with their spouses and whomever their right hands may control, since then they are free from blame." Nevertheless, the Shiites claim that this verse is Meccan and that it has been revealed before mut`a was allowed.(10) It seems that the Shiite interpretation is more in harmony with historical reality, since in many credible traditions (that the Sunnis hold as genuine) we have indication of the fact that Muhammad not only allowed marriage of enjoyment, but commanded his friends to practise, as well.(11) Jabir Ibn `Abdillah narrated that "mut`a will remain forever."(12) Ahmad Ibn Hanbal said in Musnad, "God has given permission for the practice of mut`a, and the Messenger of God made it a law."(13) It is evident from the stories related about Muhammad's friends that they had a hard time trying to understand this permission and adapt it to the morals prevailing at that time. Such a fact is vouched for by the above-mentioned statement of `Umar.

We gather from the Shiite traditions that those who seek the "enjoyment of women" are bound by no numerical limitation. Abu `Ubaid narrated that: He mentioned for him the mut`a [and asked] whether it was one of the four [women]. He answered, "Marry a thousand of them; they are hired."(14) The justification that the Shiites give for the marriage of enjoyment is strange. They say that it was warranted for the single man so that he could keep himself restrained (chaste). Abu al-Fath Ibn Yazid narrated: I once asked Abu al-Hasan concerning mut`a, and he answered, "It is lawfully and absolutely warranted for those who are married, as to those who are not, they should keep themselves restrained by mut`a, but if the latter do get married, they are not in need of it, yet it is still warranted for them if they are away [from home]."(15) The reference here is made to the phrase "keep themselves restrained" occurring in Sura al-Nisa´ 4:6, which is utterly irrelevant to the issue of mut`a even according to the best known and oldest Shiite interpretations.(16) It is strange also to know that not all women are fit for mut`a! There are conditions and a description that women have to meet in order to be suitable. The first of these conditions is that the woman has to be a chaste believer. Abu Ja`far was once asked concerning mut`a, and he answered, "mut`a today is not the same as it was before; they were believers then, but today they are not, so ask them."(17) Abu Sara narrated: I asked Abu `Abdillah about it [meaning mut`a], and he said to me, "It is lawful; so only marry a chaste woman, for God Most High said, '...who guard their private parts' (Sura al-Mu´minun 23:5). So do not place your private part where you do not trust your dirham!(18) Whoever wants to marry a woman according to the marriage of enjoyment has to molest her. If she responds with wantonness, then she is not chaste."(19) Muhammad Ibn Abi al-Fudhail narrated: "I asked Abu al-Hasan concerning the wanton beautiful woman; whether it is permissible for a man to enjoy her for a day or more." He said, "If she was known as a prostitute, then she should not be enjoyed or married."(20)

As regards the stipulations for mut`a marriage, they are summed up as follows: Fixed time and fixed hire. Aban Ibn Taghlib narrated: I said to Abu `Abdillah, "What should I say to the woman when I am left alone with her?" He replied, "You should say, 'I marry you for enjoyment according to the Book of God and the tradition of his Prophet, knowing that you inherit nothing and no one inherits from you, for such and such days. And if you like, for such and such years, for such and such dirhams.' You should fix the price that you agree upon, whether little or much. If she says yes, then she accepts; she is your woman and you are worthy of her." I said, "I am ashamed to mention the condition pertaining to the days." He replied, "It is more damaging for you [if you don't do so]." I asked, "How is that?" He answered, "Unless you stipulate [the days], your marriage would be binding, and you will have to pay her alimony during the days of `idda [40 days after divorce], and she would inherit from you, and you would not be able to divorce her except according to the divorce of the Sunna [or tradition]."(21)

The jurists say that it is unlawful to enjoy a Jewish or a Christian woman. Al-Hasan al-Taflis said, "I asked al-Ridha, 'Can a Jewish or a Christian woman be married for enjoyment?' He answered, 'Enjoying a free believing woman is more favourable to me, and she is more irreproachable than they are.' "(22)

CHAPTER FOURTEEN

Divorce

Table of Contents

Divorce, in the terminology of the jurists, is "the abolition of the bond of marriage."(1) Only the man is entitled to initiate divorce. Divorce was known in the Arab Peninsula before the lifetime of Muhammad, and it meant a final and immediate dissolution of the marriage contract. The Qur´an, however, introduced new regulations that were not known to its contemporaries.(2)

The judgments regarding divorce occurring in the sources of fiqh can be summarised as follows: Only the man has the right to divorce, and he does not have to give any reasons.(3) Yet it is regarded as abominable, even forbidden by the Hanafites. The Qur´anic basis for divorce comes in the two verses: "Divorce is [pronounced] twice; then honourable retention or setting free kindly" (Sura al-Baqara 2:229), and "O Prophet, whenever you [and other Muslims] divorce women, divorce them when they have reached their period" (Sura al-Talaq 65:1). As to the Hadith, we find evidence for the permissibility of divorce in what `Abdullah Ibn `Umar narrated: that he had divorced his wife while she was menstruating during the lifetime of God's Messenger. `Umar Ibn al-Khattab asked God's Messenger about that. The Messenger of God said, "Order him [your son] to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again. Then if he wishes to keep her, he can do so; but if he wishes to divorce her he must do so before having sexual intercourse with her. This is the prescribed period [number of days] which God has fixed for the women meant to be divorced."(4)

Hanifite jurists hold that divorce can be one of the following three: excellent, good, or hateful (the one effected at once). The excellent one is when a man pronounces his wife divorced one time while she is clean, having abstained from having intercourse with her since her previous menstruation, with the intention of remarrying her. The good divorce is when a man pronounces his wife divorced three times; on the first, the second, and the third menstruation respectively, while she is clean, having not had intercourse with her. As to the hateful, or atypical divorce, it is to divorce one's wife twice or three times during her menstruation all at once.(5) A free woman should be pronounced divorced three times, and a bondwoman twice. Hateful divorce is also permissible.(6)

In order for divorce to be effective, no goodwill or proper prayer are required. It is effected by the man's saying, "You are divorced," or "I have divorced you." If a man says, "You are divorced from here till Syria," it is one revocable pronouncement of divorce. If he says, "You will be divorced in Mecca [or at Mecca]," her being divorced will be in effect in all other countries. And if he says, "You are divorced before I marry you," it will be no divorce at all. However, if he says "You are divorced if I do not divorce you," or "until I divorce you," or "when I have not divorced you" and she keeps silent, then divorce is in effect. But if he says, "You are divorced unless I do not divorce you," or "if I have not divorced you," she will not be divorced till her death.(7) The jurists are in agreement that divorce can be effected not only through explicit pronouncement, but by implication or in writing as well.(8) Accordingly, a man can say, "Start on your legal period," "Cleanse your womb," or "You are one [time]!" Jurisprudents have gone into detail in regard to this point.(9) If a man pronounces his wife divorced one time, he has the right to have her back during her legal period without her permission. It is enough for him to say, "I have returned to you," or "I retain you."(10) It seems that man's right to have his wife back had been misused during the lifetime of Muhammad: a man would divorce his wife and "return" to her before her legal period was over in order to divorce her afresh, thus forcing her to pay him back the bridal gift he had given her. This compelled Muhammad to correct this situation, so that we now read in the Qur´an: "When you divorce women, and they have reached their term, then retain them honourably or set them free honourably; do not retain them by force, to transgress; whoever does has wronged himself. Take not God's signs in mockery! .....Fear God, and know that God has knowledge of everything" (Sura al-Baqara 2:231-232), and "If he divorces her finally, she shall not be lawful to him after, until she marries another husband" (Sura al-Baqara 2:230). In confirmation of this judgment, the Hadith has it that: "Rifa`ah's wife said to the Messenger of God, "Rifa`ah divorced me finally, and `Abd al-Rahman married me after him. But what he has [namely his penis] is as [limp as] the border of the garment [this means he was impotent]." The Messenger of God asked, 'Do you perhaps want to return to Rifa`ah?' She said yes. But he said, 'No, not until you enjoy intercourse with [`Abd al-Rahman], and he with you.' "(11)

The Dutch orientalist Juynboll states that Muhammad meant to provide a settlement for women through the Qur´anic statement "until she marries some husband other than him [in between]."(12)

Jurisprudents of all schools of thought believe that a man is not obliged to state any reason if he divorces his wife.(13) Yet some modern writers and scholars claim the contrary. Al-Sabuni says, "If all means of reconciliation between the spouses fail, then divorce is inevitable. One of the necessities that make divorce permissible is suspicion on the part of the husband of his wife's behaviour. For example, if he knows that she cheated him [by committing adultery], will he let her spoil his offspring and ruin his life, or will he divorce her? There are other reasons such as impotence or any other sickness that renders it impossible to have an intercourse, any contagious disease that can be transmitted to the other partner, or any of these various similar reasons. God, high to be praised, made it imperative in His law that divorce should be effected over two separate times in between two periods of cleansing [from the menstruation], as the holy Tradition indicates. If the husband desires to retain her, he can, and if he still wishes to divorce, he then can effect the divorce finally. Only a couple that should not remain wedded, for the good of the family and their own good, will be divorced after all this consideration and long-suffering."(14) Often Muslim writers boast about the Islamic law permitting divorce and the judgments of divorce. They claim that Christianity, and its man-made laws that prohibit divorce except on the basis of adultery, place conditions on it that rendered it next to impossible, which contradicts human nature.(15)

We conclude this chapter with the assertion of al-Aqqad: "The law of the holy Qur´an includes both the divine and the secular aspects of life. All the religious sanctity it includes falls under the fact that marriage was supposed to be stripped of its social and sexual benefit, so that worship of God should prevail against the wills of the spouses."(16)

go to CHAPTER 15 - The Womens's Portion of the Inheritance

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