THE KERALA MUSLIM MARRIAGE AND DISSOLUTION BY TALAQ (REGULATION) BILL
A BILL to declare. that, among the Muslims in Kerala, Monogamy is the general rule and Polygamy a just exception, permissible only in socially exceptional circumstances and that also subject to compassionate conditions, and to provide further that divorce by Talaq can be effected only subject to special conditions,
BE it enacted in the Fifty Ninth Year of the Republic.
1. Short title, extent and commencement of the Act.
(i) This Act may be called The Kerala Muslim Marriage and Dissolution by Talaq (Regulation) Act.
(ii) It shall extend to the whole of the State of Kerala.
(iii) It shall come into force on such date as the Government may notify in the Gazette.
2. Definition.--(a) 'Conciliation Council', hereinafter referred to as Council, means a body constituted under Section 4(a).
(b) 'Chairperson' means the Chairperson appointed under Section 4(b).
(c) 'High Court' means the High Court of Kerala.
(d) 'Person' means any major Muslim man.
(e) 'Registrar of marriages'. means the Local Registrar of marriages (Common) as defined in Rule 5 of the Kerala Registrar of marriages (Common) Rules 2008.
3. The Act to override other laws etc.—The provisions of this Act shall have effect. notwithstanding any law, custom or usage followed hitherto, in the matter of contracting another marriage during the subsistence of a marriage already conducted and for effecting dissolution of marriage by Talaq.
4. Constitution of Conciliation Councils--(a) Government shall constitute in each District a Conciliation Council consisting of a Chairperson and two other members to perform the powers conferred under this Act.
(b) For each Conciliation Council, Government shall, after having prior consultation with the Chief Justice of the High Court, appoint a retired District Judge or a Judicial Magistrate or Munsi 'IT belonging to the Muslim Community as Chairperson, on such terms and conditions as may be prescribed.
(c) The other two members shall be persons chosen by the parties to the application as their respective nominees.
(d) The expenses of the proceedings, including the payments, if any, to be made to the nominated members of the Council shall be borne by the parties as directed by the Chairman of the Council.
(e) The Council may frame its own rules of procedure in accordance with the principles of natural justice and fair play.
(f) The Council shall not be bound by the procedures applicable to ordinary Courts or Arbitral Tribunals as prescribed in the Code of Civil Procedure or The Arbitration Act 1996 or any other Act or Rules.
5. Monogamy shall be the Rule.--Monogamy shall be the rule binding on every Muslim, man or woman.
Provided that a Muslim male shall, under exceptional circumstances stated in this Act, be permitted to take a second wife in compliance with the condition set out herein.
6 Marrying again during life- time of husband or wife is an offence.—If any married Muslim, man or woman, marries again during the subsistence of the first marriage, the party who violates shall be guilty of bigamy under the Indian Penal Code and punishable as such.
Provided that the husband shall, in Law, be allowed to marry only with the consent in writing before a Notary Public or a Judicial Officer expressing her
consent to the second marriage and briefly giving her reasons for the consent.
7. Duties of husband on second marriage under the Act.—The husband, in the event of his marrying again under the above proviso to Section 6, shall be liable to provide reasonable accommodation and privacy as well as just alimony or maintenance sufficient for the wife to sustain herself in reasonable comfort. The affected spouse shall be entitled to seek redress by petitioning the Court of the Magistrate of First Class having jurisdiction over either party. No Court fee shall be payable for such proceedings and, free legal aid shall be provided to her by the Legal Services Authority or by any Advocate in the panel. approved by the District Court; the fee for such legal services shall be made available by the Legal Services Authority concerned.
8. Compensation payable on violation of the provisions in Section 5.—Any marriage contracted in contravention of Section 5 shall be void but the victim of such second marriage shall be granted such compensation as the Judicial Magistrate having jurisdiction over either party deems just.
9. Marriage of Muslim shall be contract.—Marriage of Muslims shall be a contract entered into with the free consent of both spouses and shall be governed by the terms of such contract in writing. Such contract may contain provisions for divorce which are consistent with monogamy, public policy, social justice to the wife and other conditions which are not opposed to the Qur'an or the teachings or hadith of the prophet.
11. Female spouse entitled. to divorce only through court.—The female spouse shall be entitled to divorce only through Court or with the approval of the Conciliation Council on grounds of irretrievable break down irreparable by conciliation. Such conciliation shall be a condition precedent and shall be tried by the Conciliation Council whose unanimous decision alone will be binding.
12. Decree for divorce on the basis of a written agreement—In case both spouses enter into a compromise sanctioning divorce on the ground of irretrievable breakdown and such agreement is attested after due enquiry by a Civil or Criminal Judicial Officer, a competent Court, Civii or Criminal, may grant divorce without further Forensic procedure.
13. All Marriages conducted after the Act to be Registered.—All marriages and divorces of Muslims taking place after this Act comes into force shall be registered before Registrar of marriages as defined in. Section 2(e) of this Act, who shall certify such registration after ascertaining the consent of both parties.
Monday, January 19, 2009
KERALA HC JT ON POLYGAMI
IN THE HIGH COURT OF KERALA AT ERNAKULAM
1. SAIDALI K.H., S/O HASSAN,
... Petitioner
Vs
1. V.SALEENA, D/O ABOOBACKER,
... Respondent
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
JUDGMENT
Harun-Ul-Rashid, J.
Can a Muslim husband exercise his right of divorce indiscreetly?
Can he marry more than one upto four at a time - is it an unbridled
authority for him? If not, should Muslim women suffer this tyranny for
all times? Should their personal law remain so cruel towards these
unfortunate wives? These are some of the questions arising for
consideration in this case.
2. This appeal is directed against the order of the Family Court,
Thrissur in O.P. No.1095 of 2006. The said Original Petition was filed by
the respondent/wife under Section 2(ii), (iv) and (viii) (a) (d) and (f) of the
Dissolution of Muslim Marriages Act, 1939 for dissolution of her marriage
with the appellant. By the impugned order, the Family Court allowed the
Original Petition. Hence, the appeal by the husband. The parties herein
are referred to as petitioner and respondent as in the Original Petition.
3. The marriage between the petitioner and respondent was
solemnised on 1.6.2002. Their only child is now aged five years. The
petitioner/wife alleged that her husband and his family members behaved
very cruelly towards her contrary to her expectations, that they ill treated
her mentally and physically and misappropriated 46 sovereigns of gold
ornaments which were given to her at the time of marriage. She further
alleged that after two months' of the marriage, her father was forced to give
Rs.50,000/- to the respondent/husband for starting a garment shop and that
the respondent/husband and his family members frequently ill treated her
demanding more dowry and even asked her to leave the matrimonial home
if more dowry was not paid. It is also pleaded in her petition for divorce
that the respondent failed to perform his marital obligations, that he
withdrew from co-habiting with her and also failed to maintain her and
their child. According to the petitioner, her status in the matrimonial home
was that of a housemaid. It is also pleaded by her that her husband is a
man of means, that he is running a barber shop as well as a garment shop,
that he has landed property and is getting a monthly income of Rs.15,000/-
and inspite of that he is not willing even to satisfy the basic needs of the
petitioner and the child. In paragraph 8 of the petition, it is pleaded that
the respondent/husband has married another lady by name Regina. In
paragraph 10 of the petition, she has stated that their relationship as
husband and wife has irretrievably broken and that the respondent
deliberately deserted her and the child. She has also stated that the failure
on the part of the respondent/husband to perform his marital obligations
and to maintain her and the child has also led to their separation which
cannot be repaired or revived.
4. The respondent filed a detailed objection denying the averments
contained in the petition. He denied having ill treated the petitioner
demanding more dowry and also the misappropriation of gold ornaments
given to her at the time of marriage. He also pleaded that the entire gold
ornaments are still in her possession. He also stated that he used to
maintain his wife and child. He denied that he is the proprietor of a barber
shop and a garment shop. He also denied his monthly income as alleged
by the petitioner. According to him, the petitioner/wife left the
matrimonial home without any reason and that he is ready and willing to
live with the petitioner and child and maintain them. He filed O.P.
No.360 of 2004 before the Family Court, Thrissur for restitution of
conjugal rights and O.P. No.614 of 2005 for custody of his child. It is
further contended by him that he is not bound to maintain the
petitioner/wife since she is living separately for no reason. The averment
contained in paragraph 8 of the petition that the respondent has contracted
a second marriage is not denied in the objection filed by him.
5. Section 2 of the Dissolution of Muslim Marriages Act deals with
the grounds for a decree of dissolution of marriage. The Section reads as
follows:
"Grounds for decree for dissolution of
marriage:- A woman married under muslim law
shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of
the following grounds, namely :
(i) that the whereabouts of the husband
have not been known for a period of four years;
(ii) that the husband has neglected or has
failed to provide for her maintenance for a
period of two years;
(iii) that the husband has been sentenced
to imprisonment for a period of seven years or
upwards;
(iv) that the husband has failed to
perform, without reasonable cause, his marital
obligations for a period of three years;
(v) that the husband was impotent at the
time of the marriage and continues to be so;
(vi) that the husband has been insane for
a period of two years or is suffering from leprosy
or a virulent venereal disease;
(vii) that she, having been given in
marriage by her father or other guardian before
she attained the age of fifteen years, repudiated
the marriage before attaining the age of eighteen
years:
Provided that the marriage has not been
consummated;
(viii) that her husband treats her with
cruelty that is to say,--
(a) habitually assaults her or makes her
life miserable by cruelty of conduct even if such
conduct does not amount to physical ill-
treatment, or
(b) associates with women of evil repute
or leads an infamous life, or
(c) attempts to force her to lead an
immoral life, or
(d) disposes of her property or prevents
her exercising her legal rights over it, or
(e) obstructs her in the observance of
her religious profession or practice, or
(f) if he has more wives than one, does
not treat her equitably in accordance with the
injunctions of the Quran;
(ix) on any other ground which is
recognised as valid for the dissolution of
marriages under Muslim Law :
Provided that --
(a) no decree shall be passed on ground
(iii) until the sentence has become final;
(b) a decree passed on ground (i) shall
not take effect for a period of six months from the
date of such decree, and if the husband appears
either in person or through an authorised agent
within that period and satisfies the court that he
is prepared to perform his conjugal duties, the
court shall set aside the said decree; and
(c) before passing a decree on ground
(v) the Court shall, on application by the
husband, make an order requiring the husband to
satisfy the court within a period of one year from
the date of such order that he has ceased to be
impotent, and if the husband so satisfies the court
within such period, no decree shall be passed on
the said ground."
The grounds for dissolution of marriage alleged in the petition are: (i)
failure to provide maintenance to the wife for two years, (ii) failure to
perform the marital obligations, (iii) subjecting the wife to physical and
mental cruelty, (iv) depriving her of her property and (v) contracting a
second marriage but not treating her equitably in accordance with the
injunctions of the Qur'an.
6. Going by the pleading in the Original Petition, we find that there
is sufficient foundation in the grounds raised for dissolution of marriage.
Before the Family Court, the respondent admitted the fact of having
contracted a second marriage on 9.4.2006. The Family Court did not post
the case for evidence, but decided the case on 25.1.2007 holding that since
the second marriage is admitted by the respondent/husband, the
petitioner/wife is entitled to a decree of divorce. The Family Court also
held that the respondent/husband having married again, the petitioner/wife
was not willing to join him and that the said fact is sufficient to grant a
decree for dissolution of marriage.
7. Though the petitioner sought a decree for dissolution of marriage
on different grounds under the Dissolution of Muslim Marriages Act,
without adverting to any such ground, the Family Court granted divorce on
the only reason that the respondent/husband contracted a second
marriage. The question now raised in this appeal is whether the wife is
entitled to a decree of divorce for the only reason that the husband
contracted a second marriage. If the reason stated by the Family Court is
to be accepted, a Muslim man cannot marry more than once when his first
marriage subsists. Apart from the religious and legal aspects of marriage,
there is a social aspect also under Islamic law. Islamic law gives a high
social status to the women after marriage. Restrictions are placed upon
the unlimited polygamy of pre Islamic times and a controlled Polygamy is
allowed. Prophet Mohammed both by example and precept, encouraged
the status of marriage. The prophet restrained polygamy by limiting the
maximum number of contemporaneous marriages and by making absolute
equity towards all, obligatory on the man. It is worthy to note that the
clause in the Qur'an which contains the permission to contract four
contemporaneous marriages is immediately followed by an injunction
which puts the preceding passage to its normal and legitimate
dimensions. The former passage says that a man can marry two, three or
four times, but not more. The subsequent lines declare that if the man
cannot deal equitably and justly with all, he shall marry only one.
8. In India, polygamy is positively unlawful. It calls for a strong
moral if not a religious factor to eradicate polygamy from among the
Mussalmans. We have recognized the custom of drawing up a deed of
contract of marriage containing a formal renunciation of the right on the
part of the future husband to contract a second marriage during the
existence of the first. On execution of such a contract, a Muslim wife as of
right is entitled to enforce the terms.
9. True, Islam recognizes polygamy. The Holy Qur'an in Chapter 4
Verse 3 (Al Nisa'a - meaning "woman") teaches as follows:
"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 that your right hands possess. That
will be more suitable to prevent you from doing
injustice."
The permission to take more than one wife is made conditional, that is , he
should be able to deal justly with all the wives. The prophet has permitted
polygamy and has limited it to four. But it has been further ordained to
deal with them justly in matters of food, dress, residence and cohabitation
without discrimination, irrespective of whether one is rich or poor, high or
low. It is not permissible for a man to marry more than one woman if he
apprehends that he will be dealing with them unjustly or that he will be
failing in respecting their rights. If he is able to fulfill his duties to three
but not able to fulfill his duty towards the fourth, then the fourth marriage
is prohibited for him. If he is able to fulfill his duties to two but not able
to fulfill his duty towards the third, then the third marriage is prohibited
for him. Likewise, if he is able to fulfill his duties to one but not able to
fulfill his duty towards the second, then the second marriage is prohibited
for him. This is what the Quranic verse establishes: "Marry two or
three or four women of your choice. If you fear that you will not be
able to do justice to them, then marry only one. Otherwise you accept
those who are brought under your control as captives of war." What
has been commanded by God is external and possible equality in dealings.
10. Various authors and authoritative writings say that there cannot
be any equality in love and affection since it will not be possible to
maintain equality in those matters. This applies to sexual relationship
also. A man who is not infatuated by one woman may be infatuated by
another and the man cannot be blamed for such an attitude. The law
regarding equality does not apply to him in this regard because it is beyond
his capabilities. It is , therefore, clear that Qur-anic injunctions in the
matter of dealing justly and fairly with all the wives is in matters of
residence, food, cohabitation, dress etc. and not in love and affection.
11. The practice of having more than one wife, though not totally
prohibited, is discouraged by imposing stringent conditions making it
almost impossible to keep more than one wife at a time. These stringent
conditions were imposed on the man even during the life time of Prophet
Mohammed. The concept of polygamy, limited to four, with restrictions
was permissible during that time due to unavoidable facts and
circumstances prevalent during the said period. Going by Quranic
versions, permission to marry more than one woman, but not more than
four was given at a time when there were lots of orphans, widows and
captives of war who were unable to lead a dignified life and their strength
was far more than the men which gave rise to social problems in the
society. Appeal to the people to marry orphans, widows and captives of
war was necessitated on account of social inequality, economic distress
and like conditions to which women were put to suffer. The mandate
issued by Prophet Mohammed was intended to save the destitute and to
protect their belongings . Even after fifteen centuries, some people of
our country seem to be very particular in following the aforesaid tenets of
Islam unmindful as to whether such circumstances exist or not. People of
the community contract more than one marriage mostly for their personal
pleasure. There is no system in our country to ascertain and decide
whether such persons are eligible to contract more than one marriage
during the subsistence of the first marriage. We have seen women and
children standing in the verandah of courts who are either divorced
women or second, or third or fourth wife of such persons seeking
maintenance from their husbands. Unrestricted freedom to marry women
of their choice was enjoyed by men and subsequently to casually
pronounce talaq according to their whims and fancies. The indiscreet
conduct of such persons in marrying and keeping more than one wife is
continuing without any restriction. Most of such marriages are illegal
since they are against Quranic injunctions. What is the status of the wife
and children born in such marriages?
12. We find the Bhishmacharya of Indian judiciary V.R. Krishna
Iyer J. in his celebrated decision as early as in 1970 in Shahulameedu v.
Subaida Beevi, reported in 1970 K.L.T. 4 has referred to the very same
situation in his inimitable style in the following terms:
"It follows from these passages that the
Koranic injunction has to be understood in the
perspective of prevalent unrestricted polygamy
and in the context of the battle in which most
males perished, leaving many females or orphans
and that the holy prophet himself recognised the
difficulty of treating two or more wives with
equal justice and , in such a situation, directed
that an individual should have only one wife. In
short, the Koran enjoined monogamy upon
Muslims and departure therefrom as an
exception. That is why, in the true spirit o the
Koran, a number of Muslim countries have
codified the personal law wherein the practice of
polygamy has been either totally prohibited or
severely restricted. (Syria, Tunisia, Morocco,
Pakistan, Iran, the Islamic Republics of the
Soviet Union are some of the Muslim countries
to be remembered in this context). A keen
perception of the new frontiers of Indian law
hinted at in Art. 44 of the Constitution is now
necessary on the part of Parliament and the
Judicature.
A. Yusuf Ali in his commentary on the
Holy Quran has pointed out with reference to the
original text, in its proper context, that the
prophet first strictly limited the unrestricted
number of wives of the "Times of Ignorance" to a
maximum of four, provided you could treat them
with perfect equality in material things as well as
in affection and immaterial things. As this
condition is most difficult to fulfill, the
recommendation was understood to be towards
the practice of monogamy. Mr. Justice
Hidayatullah in his Introduction to Mulla's
Principles of Mahomedan Law, 16th Edn, has
approved of the modernisation of the family law
of the Muslims including the abolition of
polygamy.
13. In this context, we have noticed a piece of legislation in
Pakistan. Muslim Family Laws Ordinance, 1961 (No.8 of 1961)
(hereinafter referred to as "the Ordinance") was issued to give effect to
certain recommendations of the Commission on Marriage and Family
Laws. Section 6 of the Ordinance deals with polygamy and provides for
appointing an Arbitration Council consisting of the Chairman and
members. Sub-section (1) of Section 6 reads as follows:
"(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.
As per sub-section (2) of Section 6 of the Ordinance, for a person to
contract another marriage, he shall apply to the Chairman in the
prescribed manner together with the prescribed fee and shall state the
reasons for the proposed marriage and whether consent of the existing
wife or wives has been obtained. Sub-section (3) mandates that the
Arbitration Council constituted, if satisfied that the proposed marriage is
necessary and just, grant the permission applied for. Sub-section (4)
directs the Arbitration Council to record its reasons for the decision and
the aggrieved party can file a petition to the Appellate Authority. Sub-
section (5) of Section 6 stipulates that if a man contracts another marriage
without the permission of the Arbitration Council, he shall pay
immediately the entire amount of the dower due to the existing wife and if
not paid shall be recoverable as arrears of land revenue and on conviction
upon complaint be punishable with simple imprisonment which may
extent to one year, or with fine which may extend to five thousand rupees,
or with both.
14. Under sub-section (1) of Section 7 of the Ordinance, any man
who wishes to divorce his wife shall, after pronouncing talaq, give notice
to the Chairman in writing of his having done so and shall supply a copy
thereof to the wife. Sub-section (2) of Section 7 provides that whoever
contravenes the provisions of sub-section (1) shall be punishable with
simple imprisonment for a term which may extent to one year, or with fine
which may extend to five thousand rupees, or with both. Other conditions
are also stipulated in sub-sections (3) to (6) of Section 7 of the Ordinance
for effecting Talaq.
15. It is a well accepted view that the arbitrary unilateral power to
inflict instant divorce does not accord with Islamic injunctions. The Holy
Qur'an expressly prohibits a man to seek pretext for divorcing his wife, so
long as she remains faithful and obedient to him. In the absence of serious
and permissible grounds, no man can justify a divorce, either in the eye of
religion or law. If he abandons his wife or puts her away in simple
caprice, he draws upon himself the divine anger, for the curse of God, said
the Prophet, rests on him who repudiates his wife capriciously. The law
administered in Muslim countries like Iraq is that the husband must
satisfy the court about the reasons for the divorce. These provisions are
intended to regulate, control and supervise the sanctity of marriage and
divorce. By enacting such laws, an effective system is brought about for
protecting society and women from indiscreet marriages and divorce.
Even in the 21st century, though the practice of polygamy is allowed in the
strict sense by Islam, there is no system or measures in India to supervise
or control such indiscreet marriages and divorce. Ulemas, Khazis and
Clergymen in India have not given their serious thoughts to this social
problem nor have they chosen to appeal to the Government to make
appropriate legislation on the subject. A legislation for setting up bodies
at central and regional levels to regulate, control and supervise the
sanctity of marriage and divorce is the need of the hour.
16. Explanation to Section 125(3) Cr.P.C. reads as follows:
"If a husband has contracted marriage with
another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal
to live with him."
The Supreme Court had occasion to consider a question which is relevant
in this context in the decision reported in Subanu alias Saira Banu v.
A.M. Abdul Gafoor, A.I.R. 1987 S.C. 1103. The Apex Court held that
right has been conferred on the wife under the Explanation to Section 125
(3) Cr.P.C. to live separately and claim maintenance from the husband if
he breaks his vow of fidelity and marries another woman or takes a
mistress. The Explanation is of uniform application to all wives including
Muslim wives whose husbands have either married another woman
otherwise than in accordance with the teachings of Quran or taken a
mistress. The Apex Court further held that in this connection, any offer to
take the first wife back cannot be considered to be a bona fide offer unless
the husband offers to set up a separate residence for her, for a husband
who marries again cannot compel the first wife to share the conjugal
home with the co-wife.
17. In the decision reported in Lily Thomas v. Union of India,
A.I.R. 2000 S.C. 1650, the Apex Court held that inspite of the first
marriage, a second marriage can be contracted by the husband under
Mohammedan Law subject to certain religious restrictions. In paragraph
61 of the judgment, Justice R.P. Sethi observed that Muslim Law is based
upon a well recognized system of jurisprudence providing many rational
and revolutionary concepts which could not be conceived by the other
systems of Law in force at the time of its inception. It is further observed
that the concept of Muslim law is based upon the edifice of Shariat and
that Muslim Law as traditionally interpreted and applied in India permits
more than one marriage during the subsistence of one and another though
capacity to do justice between co-wives in law is condition precedent and
that even under Muslim Law plurality of marriages is not unconditionally
conferred upon the husband. It is also observed that the progressive
outlook and wider approach of Islamic Law cannot be permitted to be
squeezed and narrowed by unscrupulous litigants, apparently indulging in
sensual lust sought to be quenched by illegal means, who apparently are
found to be guilty of the commission of the offence under the law to
which they belonged before their alleged conversion.
18. We appeal to all concerned within the community and the
administrative authorities and the Government to study the problem faced
by the helpless and destitute women and children and to bestow thoughts
on the ways and means to alleviate such social problems.
19. Coming to the case on hand, we find that the reasons stated by
the Family Court that the second marriage contracted by the
respondent/husband and the refusal of the petitioner/wife to live with the
husband on account of his second marriage are not by themselves
sufficient grounds to grant a decree for dissolution of marriage under the
Dissolution of Muslim Marriages Act. Refusal of the wife to share the
conjugal home with the co-wife is justified for claiming maintenance. In
such circumstances, it is the duty of the husband to set up separate
residence for her. At the same time, we find that the petitioner/wife had
pleaded several other grounds permissible under law for divorce.
Inequitable treatment to one wife against the Quranic injunction gives rise
to a tenable claim for divorce. The Family Court failed to examine
whether the petitioner/wife was entitled to a decree for dissolution of
marriage under any or all the heads for which there is sound foundation
in the pleadings.
20. In the result, the order under appeal is set aside and the case is
remanded to the Family Court, Thrissur for fresh disposal in accordance
with law. There will be no order as to costs.
21. We place on record our deep appreciation for the strenuous
efforts taken by Adv. Sri. M.P.M. Aslam as amicus curiae and for his
valuable assistance. We would also like to make a special mention of
the able assistance of Sri. E.S..M. Kabeer, learned counsel for the
appellant and Smt. A. Parvathi Menon, learned counsel for the respondent.
The Registry shall send a copy of this judgment to the Ministry of
Law and Justice, Government of India, New Delhi, the Chief Secretary to
the Government of Kerala, Thiruvananthapuram and the Chairman, Kerala
State Wakf Board.
1. SAIDALI K.H., S/O HASSAN,
... Petitioner
Vs
1. V.SALEENA, D/O ABOOBACKER,
... Respondent
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
JUDGMENT
Harun-Ul-Rashid, J.
Can a Muslim husband exercise his right of divorce indiscreetly?
Can he marry more than one upto four at a time - is it an unbridled
authority for him? If not, should Muslim women suffer this tyranny for
all times? Should their personal law remain so cruel towards these
unfortunate wives? These are some of the questions arising for
consideration in this case.
2. This appeal is directed against the order of the Family Court,
Thrissur in O.P. No.1095 of 2006. The said Original Petition was filed by
the respondent/wife under Section 2(ii), (iv) and (viii) (a) (d) and (f) of the
Dissolution of Muslim Marriages Act, 1939 for dissolution of her marriage
with the appellant. By the impugned order, the Family Court allowed the
Original Petition. Hence, the appeal by the husband. The parties herein
are referred to as petitioner and respondent as in the Original Petition.
3. The marriage between the petitioner and respondent was
solemnised on 1.6.2002. Their only child is now aged five years. The
petitioner/wife alleged that her husband and his family members behaved
very cruelly towards her contrary to her expectations, that they ill treated
her mentally and physically and misappropriated 46 sovereigns of gold
ornaments which were given to her at the time of marriage. She further
alleged that after two months' of the marriage, her father was forced to give
Rs.50,000/- to the respondent/husband for starting a garment shop and that
the respondent/husband and his family members frequently ill treated her
demanding more dowry and even asked her to leave the matrimonial home
if more dowry was not paid. It is also pleaded in her petition for divorce
that the respondent failed to perform his marital obligations, that he
withdrew from co-habiting with her and also failed to maintain her and
their child. According to the petitioner, her status in the matrimonial home
was that of a housemaid. It is also pleaded by her that her husband is a
man of means, that he is running a barber shop as well as a garment shop,
that he has landed property and is getting a monthly income of Rs.15,000/-
and inspite of that he is not willing even to satisfy the basic needs of the
petitioner and the child. In paragraph 8 of the petition, it is pleaded that
the respondent/husband has married another lady by name Regina. In
paragraph 10 of the petition, she has stated that their relationship as
husband and wife has irretrievably broken and that the respondent
deliberately deserted her and the child. She has also stated that the failure
on the part of the respondent/husband to perform his marital obligations
and to maintain her and the child has also led to their separation which
cannot be repaired or revived.
4. The respondent filed a detailed objection denying the averments
contained in the petition. He denied having ill treated the petitioner
demanding more dowry and also the misappropriation of gold ornaments
given to her at the time of marriage. He also pleaded that the entire gold
ornaments are still in her possession. He also stated that he used to
maintain his wife and child. He denied that he is the proprietor of a barber
shop and a garment shop. He also denied his monthly income as alleged
by the petitioner. According to him, the petitioner/wife left the
matrimonial home without any reason and that he is ready and willing to
live with the petitioner and child and maintain them. He filed O.P.
No.360 of 2004 before the Family Court, Thrissur for restitution of
conjugal rights and O.P. No.614 of 2005 for custody of his child. It is
further contended by him that he is not bound to maintain the
petitioner/wife since she is living separately for no reason. The averment
contained in paragraph 8 of the petition that the respondent has contracted
a second marriage is not denied in the objection filed by him.
5. Section 2 of the Dissolution of Muslim Marriages Act deals with
the grounds for a decree of dissolution of marriage. The Section reads as
follows:
"Grounds for decree for dissolution of
marriage:- A woman married under muslim law
shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of
the following grounds, namely :
(i) that the whereabouts of the husband
have not been known for a period of four years;
(ii) that the husband has neglected or has
failed to provide for her maintenance for a
period of two years;
(iii) that the husband has been sentenced
to imprisonment for a period of seven years or
upwards;
(iv) that the husband has failed to
perform, without reasonable cause, his marital
obligations for a period of three years;
(v) that the husband was impotent at the
time of the marriage and continues to be so;
(vi) that the husband has been insane for
a period of two years or is suffering from leprosy
or a virulent venereal disease;
(vii) that she, having been given in
marriage by her father or other guardian before
she attained the age of fifteen years, repudiated
the marriage before attaining the age of eighteen
years:
Provided that the marriage has not been
consummated;
(viii) that her husband treats her with
cruelty that is to say,--
(a) habitually assaults her or makes her
life miserable by cruelty of conduct even if such
conduct does not amount to physical ill-
treatment, or
(b) associates with women of evil repute
or leads an infamous life, or
(c) attempts to force her to lead an
immoral life, or
(d) disposes of her property or prevents
her exercising her legal rights over it, or
(e) obstructs her in the observance of
her religious profession or practice, or
(f) if he has more wives than one, does
not treat her equitably in accordance with the
injunctions of the Quran;
(ix) on any other ground which is
recognised as valid for the dissolution of
marriages under Muslim Law :
Provided that --
(a) no decree shall be passed on ground
(iii) until the sentence has become final;
(b) a decree passed on ground (i) shall
not take effect for a period of six months from the
date of such decree, and if the husband appears
either in person or through an authorised agent
within that period and satisfies the court that he
is prepared to perform his conjugal duties, the
court shall set aside the said decree; and
(c) before passing a decree on ground
(v) the Court shall, on application by the
husband, make an order requiring the husband to
satisfy the court within a period of one year from
the date of such order that he has ceased to be
impotent, and if the husband so satisfies the court
within such period, no decree shall be passed on
the said ground."
The grounds for dissolution of marriage alleged in the petition are: (i)
failure to provide maintenance to the wife for two years, (ii) failure to
perform the marital obligations, (iii) subjecting the wife to physical and
mental cruelty, (iv) depriving her of her property and (v) contracting a
second marriage but not treating her equitably in accordance with the
injunctions of the Qur'an.
6. Going by the pleading in the Original Petition, we find that there
is sufficient foundation in the grounds raised for dissolution of marriage.
Before the Family Court, the respondent admitted the fact of having
contracted a second marriage on 9.4.2006. The Family Court did not post
the case for evidence, but decided the case on 25.1.2007 holding that since
the second marriage is admitted by the respondent/husband, the
petitioner/wife is entitled to a decree of divorce. The Family Court also
held that the respondent/husband having married again, the petitioner/wife
was not willing to join him and that the said fact is sufficient to grant a
decree for dissolution of marriage.
7. Though the petitioner sought a decree for dissolution of marriage
on different grounds under the Dissolution of Muslim Marriages Act,
without adverting to any such ground, the Family Court granted divorce on
the only reason that the respondent/husband contracted a second
marriage. The question now raised in this appeal is whether the wife is
entitled to a decree of divorce for the only reason that the husband
contracted a second marriage. If the reason stated by the Family Court is
to be accepted, a Muslim man cannot marry more than once when his first
marriage subsists. Apart from the religious and legal aspects of marriage,
there is a social aspect also under Islamic law. Islamic law gives a high
social status to the women after marriage. Restrictions are placed upon
the unlimited polygamy of pre Islamic times and a controlled Polygamy is
allowed. Prophet Mohammed both by example and precept, encouraged
the status of marriage. The prophet restrained polygamy by limiting the
maximum number of contemporaneous marriages and by making absolute
equity towards all, obligatory on the man. It is worthy to note that the
clause in the Qur'an which contains the permission to contract four
contemporaneous marriages is immediately followed by an injunction
which puts the preceding passage to its normal and legitimate
dimensions. The former passage says that a man can marry two, three or
four times, but not more. The subsequent lines declare that if the man
cannot deal equitably and justly with all, he shall marry only one.
8. In India, polygamy is positively unlawful. It calls for a strong
moral if not a religious factor to eradicate polygamy from among the
Mussalmans. We have recognized the custom of drawing up a deed of
contract of marriage containing a formal renunciation of the right on the
part of the future husband to contract a second marriage during the
existence of the first. On execution of such a contract, a Muslim wife as of
right is entitled to enforce the terms.
9. True, Islam recognizes polygamy. The Holy Qur'an in Chapter 4
Verse 3 (Al Nisa'a - meaning "woman") teaches as follows:
"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 that your right hands possess. That
will be more suitable to prevent you from doing
injustice."
The permission to take more than one wife is made conditional, that is , he
should be able to deal justly with all the wives. The prophet has permitted
polygamy and has limited it to four. But it has been further ordained to
deal with them justly in matters of food, dress, residence and cohabitation
without discrimination, irrespective of whether one is rich or poor, high or
low. It is not permissible for a man to marry more than one woman if he
apprehends that he will be dealing with them unjustly or that he will be
failing in respecting their rights. If he is able to fulfill his duties to three
but not able to fulfill his duty towards the fourth, then the fourth marriage
is prohibited for him. If he is able to fulfill his duties to two but not able
to fulfill his duty towards the third, then the third marriage is prohibited
for him. Likewise, if he is able to fulfill his duties to one but not able to
fulfill his duty towards the second, then the second marriage is prohibited
for him. This is what the Quranic verse establishes: "Marry two or
three or four women of your choice. If you fear that you will not be
able to do justice to them, then marry only one. Otherwise you accept
those who are brought under your control as captives of war." What
has been commanded by God is external and possible equality in dealings.
10. Various authors and authoritative writings say that there cannot
be any equality in love and affection since it will not be possible to
maintain equality in those matters. This applies to sexual relationship
also. A man who is not infatuated by one woman may be infatuated by
another and the man cannot be blamed for such an attitude. The law
regarding equality does not apply to him in this regard because it is beyond
his capabilities. It is , therefore, clear that Qur-anic injunctions in the
matter of dealing justly and fairly with all the wives is in matters of
residence, food, cohabitation, dress etc. and not in love and affection.
11. The practice of having more than one wife, though not totally
prohibited, is discouraged by imposing stringent conditions making it
almost impossible to keep more than one wife at a time. These stringent
conditions were imposed on the man even during the life time of Prophet
Mohammed. The concept of polygamy, limited to four, with restrictions
was permissible during that time due to unavoidable facts and
circumstances prevalent during the said period. Going by Quranic
versions, permission to marry more than one woman, but not more than
four was given at a time when there were lots of orphans, widows and
captives of war who were unable to lead a dignified life and their strength
was far more than the men which gave rise to social problems in the
society. Appeal to the people to marry orphans, widows and captives of
war was necessitated on account of social inequality, economic distress
and like conditions to which women were put to suffer. The mandate
issued by Prophet Mohammed was intended to save the destitute and to
protect their belongings . Even after fifteen centuries, some people of
our country seem to be very particular in following the aforesaid tenets of
Islam unmindful as to whether such circumstances exist or not. People of
the community contract more than one marriage mostly for their personal
pleasure. There is no system in our country to ascertain and decide
whether such persons are eligible to contract more than one marriage
during the subsistence of the first marriage. We have seen women and
children standing in the verandah of courts who are either divorced
women or second, or third or fourth wife of such persons seeking
maintenance from their husbands. Unrestricted freedom to marry women
of their choice was enjoyed by men and subsequently to casually
pronounce talaq according to their whims and fancies. The indiscreet
conduct of such persons in marrying and keeping more than one wife is
continuing without any restriction. Most of such marriages are illegal
since they are against Quranic injunctions. What is the status of the wife
and children born in such marriages?
12. We find the Bhishmacharya of Indian judiciary V.R. Krishna
Iyer J. in his celebrated decision as early as in 1970 in Shahulameedu v.
Subaida Beevi, reported in 1970 K.L.T. 4 has referred to the very same
situation in his inimitable style in the following terms:
"It follows from these passages that the
Koranic injunction has to be understood in the
perspective of prevalent unrestricted polygamy
and in the context of the battle in which most
males perished, leaving many females or orphans
and that the holy prophet himself recognised the
difficulty of treating two or more wives with
equal justice and , in such a situation, directed
that an individual should have only one wife. In
short, the Koran enjoined monogamy upon
Muslims and departure therefrom as an
exception. That is why, in the true spirit o the
Koran, a number of Muslim countries have
codified the personal law wherein the practice of
polygamy has been either totally prohibited or
severely restricted. (Syria, Tunisia, Morocco,
Pakistan, Iran, the Islamic Republics of the
Soviet Union are some of the Muslim countries
to be remembered in this context). A keen
perception of the new frontiers of Indian law
hinted at in Art. 44 of the Constitution is now
necessary on the part of Parliament and the
Judicature.
A. Yusuf Ali in his commentary on the
Holy Quran has pointed out with reference to the
original text, in its proper context, that the
prophet first strictly limited the unrestricted
number of wives of the "Times of Ignorance" to a
maximum of four, provided you could treat them
with perfect equality in material things as well as
in affection and immaterial things. As this
condition is most difficult to fulfill, the
recommendation was understood to be towards
the practice of monogamy. Mr. Justice
Hidayatullah in his Introduction to Mulla's
Principles of Mahomedan Law, 16th Edn, has
approved of the modernisation of the family law
of the Muslims including the abolition of
polygamy.
13. In this context, we have noticed a piece of legislation in
Pakistan. Muslim Family Laws Ordinance, 1961 (No.8 of 1961)
(hereinafter referred to as "the Ordinance") was issued to give effect to
certain recommendations of the Commission on Marriage and Family
Laws. Section 6 of the Ordinance deals with polygamy and provides for
appointing an Arbitration Council consisting of the Chairman and
members. Sub-section (1) of Section 6 reads as follows:
"(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.
As per sub-section (2) of Section 6 of the Ordinance, for a person to
contract another marriage, he shall apply to the Chairman in the
prescribed manner together with the prescribed fee and shall state the
reasons for the proposed marriage and whether consent of the existing
wife or wives has been obtained. Sub-section (3) mandates that the
Arbitration Council constituted, if satisfied that the proposed marriage is
necessary and just, grant the permission applied for. Sub-section (4)
directs the Arbitration Council to record its reasons for the decision and
the aggrieved party can file a petition to the Appellate Authority. Sub-
section (5) of Section 6 stipulates that if a man contracts another marriage
without the permission of the Arbitration Council, he shall pay
immediately the entire amount of the dower due to the existing wife and if
not paid shall be recoverable as arrears of land revenue and on conviction
upon complaint be punishable with simple imprisonment which may
extent to one year, or with fine which may extend to five thousand rupees,
or with both.
14. Under sub-section (1) of Section 7 of the Ordinance, any man
who wishes to divorce his wife shall, after pronouncing talaq, give notice
to the Chairman in writing of his having done so and shall supply a copy
thereof to the wife. Sub-section (2) of Section 7 provides that whoever
contravenes the provisions of sub-section (1) shall be punishable with
simple imprisonment for a term which may extent to one year, or with fine
which may extend to five thousand rupees, or with both. Other conditions
are also stipulated in sub-sections (3) to (6) of Section 7 of the Ordinance
for effecting Talaq.
15. It is a well accepted view that the arbitrary unilateral power to
inflict instant divorce does not accord with Islamic injunctions. The Holy
Qur'an expressly prohibits a man to seek pretext for divorcing his wife, so
long as she remains faithful and obedient to him. In the absence of serious
and permissible grounds, no man can justify a divorce, either in the eye of
religion or law. If he abandons his wife or puts her away in simple
caprice, he draws upon himself the divine anger, for the curse of God, said
the Prophet, rests on him who repudiates his wife capriciously. The law
administered in Muslim countries like Iraq is that the husband must
satisfy the court about the reasons for the divorce. These provisions are
intended to regulate, control and supervise the sanctity of marriage and
divorce. By enacting such laws, an effective system is brought about for
protecting society and women from indiscreet marriages and divorce.
Even in the 21st century, though the practice of polygamy is allowed in the
strict sense by Islam, there is no system or measures in India to supervise
or control such indiscreet marriages and divorce. Ulemas, Khazis and
Clergymen in India have not given their serious thoughts to this social
problem nor have they chosen to appeal to the Government to make
appropriate legislation on the subject. A legislation for setting up bodies
at central and regional levels to regulate, control and supervise the
sanctity of marriage and divorce is the need of the hour.
16. Explanation to Section 125(3) Cr.P.C. reads as follows:
"If a husband has contracted marriage with
another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal
to live with him."
The Supreme Court had occasion to consider a question which is relevant
in this context in the decision reported in Subanu alias Saira Banu v.
A.M. Abdul Gafoor, A.I.R. 1987 S.C. 1103. The Apex Court held that
right has been conferred on the wife under the Explanation to Section 125
(3) Cr.P.C. to live separately and claim maintenance from the husband if
he breaks his vow of fidelity and marries another woman or takes a
mistress. The Explanation is of uniform application to all wives including
Muslim wives whose husbands have either married another woman
otherwise than in accordance with the teachings of Quran or taken a
mistress. The Apex Court further held that in this connection, any offer to
take the first wife back cannot be considered to be a bona fide offer unless
the husband offers to set up a separate residence for her, for a husband
who marries again cannot compel the first wife to share the conjugal
home with the co-wife.
17. In the decision reported in Lily Thomas v. Union of India,
A.I.R. 2000 S.C. 1650, the Apex Court held that inspite of the first
marriage, a second marriage can be contracted by the husband under
Mohammedan Law subject to certain religious restrictions. In paragraph
61 of the judgment, Justice R.P. Sethi observed that Muslim Law is based
upon a well recognized system of jurisprudence providing many rational
and revolutionary concepts which could not be conceived by the other
systems of Law in force at the time of its inception. It is further observed
that the concept of Muslim law is based upon the edifice of Shariat and
that Muslim Law as traditionally interpreted and applied in India permits
more than one marriage during the subsistence of one and another though
capacity to do justice between co-wives in law is condition precedent and
that even under Muslim Law plurality of marriages is not unconditionally
conferred upon the husband. It is also observed that the progressive
outlook and wider approach of Islamic Law cannot be permitted to be
squeezed and narrowed by unscrupulous litigants, apparently indulging in
sensual lust sought to be quenched by illegal means, who apparently are
found to be guilty of the commission of the offence under the law to
which they belonged before their alleged conversion.
18. We appeal to all concerned within the community and the
administrative authorities and the Government to study the problem faced
by the helpless and destitute women and children and to bestow thoughts
on the ways and means to alleviate such social problems.
19. Coming to the case on hand, we find that the reasons stated by
the Family Court that the second marriage contracted by the
respondent/husband and the refusal of the petitioner/wife to live with the
husband on account of his second marriage are not by themselves
sufficient grounds to grant a decree for dissolution of marriage under the
Dissolution of Muslim Marriages Act. Refusal of the wife to share the
conjugal home with the co-wife is justified for claiming maintenance. In
such circumstances, it is the duty of the husband to set up separate
residence for her. At the same time, we find that the petitioner/wife had
pleaded several other grounds permissible under law for divorce.
Inequitable treatment to one wife against the Quranic injunction gives rise
to a tenable claim for divorce. The Family Court failed to examine
whether the petitioner/wife was entitled to a decree for dissolution of
marriage under any or all the heads for which there is sound foundation
in the pleadings.
20. In the result, the order under appeal is set aside and the case is
remanded to the Family Court, Thrissur for fresh disposal in accordance
with law. There will be no order as to costs.
21. We place on record our deep appreciation for the strenuous
efforts taken by Adv. Sri. M.P.M. Aslam as amicus curiae and for his
valuable assistance. We would also like to make a special mention of
the able assistance of Sri. E.S..M. Kabeer, learned counsel for the
appellant and Smt. A. Parvathi Menon, learned counsel for the respondent.
The Registry shall send a copy of this judgment to the Ministry of
Law and Justice, Government of India, New Delhi, the Chief Secretary to
the Government of Kerala, Thiruvananthapuram and the Chairman, Kerala
State Wakf Board.
Tuesday, January 13, 2009
POLYGAMI
WIVES RATHER MISTRESSES
M.A.Rashid
Advocate
In a recent Judgment (Saidali Vs Saleena ) a Division Bench of Kerala High Court dealt with a very controversial aspect of Muslim Personal law - Polygamy. The DB opined that " Even after 15 centuries, some people of our country seems to be very particular in following the aforesaid tenets of Islam unmindful as to whether such circumstances exist or not". Let us examine whether such circumstances exist or not.
Polygamy is a Greek word meaning "the practice of multiple marriages". There are two types of Polygamy. Polygyny is the practice of having more than one wife at one time. Polyandry is the practice of having more than one husband at one time. As historically confirmed, polygamy has been known since the origin of mankind itself. According to Hindu scriptures Many religious personalities had multiple wives. King Dashrat, had more than one wife. Krishna had several wives. In the Holy Bible Abraham had three wives (Genesis 16:1, 16:3, 25:1),Moses had two wives (Exodus 2:21, 18:1-6; Numbers 12:1)Jacob had four wives (Genesis 29:23, 29:28, 30:4, 30:9)David had at least 18 wives (1 Samuel 18:27, 25:39-44; 2 Samuel 3:3, 3:4-5, 5:13, 12:7-8, 12:24, 16:21-23)Solomon had 700 wives (1 Kings 11:3).[3]. It was understood by the leaders of Christendom that there is no intrinsic immorality or sinfulness in plurality of wives. One of the greatest fathers of the Christian Church (St. Augustine) has declared that polygamy is not a crime where it is a legal institution of a country, and the German reformers, even as late as the sixteenth century, allowed and declared valid the taking of a second or even a third wife, contemporaneously with the first, in default of issue, or any other cause." (Ameer Ali, Life and Teachings, p. 220, and also Ameer Ali, Mohammedan Law, Vol. II p. 23)
When Islam first appeared in the 7th century it effected improvements and changes in individual and social life by bringing in new laws and prohibiting or regulating the existing ones. The practice of regulated polygamy falls into the regulation category. Islam did not invent polygamy, but rather has regulated it. Before Islam, a man could marry as many women as he wanted or could afford. Islam put a limit on the number of women that a man could marry, along with some tough conditions.
The verse that allows Muslim men to marry more than one woman is as follows: "Marry women of your choice, two, or three, or four; but if you fear that ye shall not be able to deal justly (with them), then only one." (Qur'an, 4:3).
From this verse a number of facts are evident:
1. That polygamy is neither mandatory, nor encouraged, but merely permitted.
2. That the permission to practice polygamy is not associated with mere satisfaction of passion. It is rather associated with compassion toward widows and orphans, a matter that is confirmed by the atmosphere in which the verse was revealed.
3. That even in such a situation, the permission is far more restricted than the normal practice which existed among the Arabs and other people at that time when many married as many as ten or more wives.
4. That dealing justly with one's wives is an obligation. This applies to housing, food, clothing, kind treatment..etc., for which the husband is fully responsible. If one is not sure of being able to deal justly with them, the Quran say: "then(marry) only (Qur'an 4:3)
Another verse which is commonly used by the critics to say that even Quran disallowed Polygamy , "You are never able to be fair and just as between women, even if it is your ardent desire", intentionally skipping the rest of the verse saying, "But do not turn away (from a woman) altogether, so as to leave her (as if were) hanging (in the air). .(Qur'an 4:129) While allowing marriage with up to four wives, this verse discourages its practice by imposing some tough conditions such as achieving justice between wives, and encourages marrying only one. This is a very tough lifestyle for any man. As a result, the great majority (about 99%) of Muslim men have only one wife. This fact is true for all Muslim countries with slight differences in the marginal rate. This large percentage of monogamy was more or less maintained throughout the history of Islam. According to a survey conducted of the Ottoman archives, the percentage of men married to only one wife never fell below 92%. That is, only 8% of the total male population was married to more than one wife at any one time. As per the 1975 census of India Hindus are more polygynous than Muslims. The report of the 'Committee of The Status of Woman in Islam', published in 1975 mentions on page numbers 66 and 67 that the percentage of polygamous marriages between the years 1951 and 1961 was 5.06% among the Hindus and only 4.31% among the Muslims. According to Indian law only Muslim men are permitted to have more than one wife. It is illegal for any non-Muslim in India to have more than one wife. Despite it being illegal, Hindus have more multiple wives as compared to Muslims. Earlier, there was no restriction even on Hindu men with respect to the number of wives allowed. It was only in 1954, when the Hindu Marriage Act was passed that it became illegal for a Hindu to have more than one wife.
Why is polygamy permissible? The answer is simple: there are places and times in which there are compelling social and moral reasons for polygamy. As the above Quranic verse indicates, the issue of polygamy in Islam cannot be understood apart from community obligations towards orphans and widows. Islam as a universal religion suitable for all places and all times could not ignore these compelling obligations.
Sometimes polygamy becomes a practical solution to serious social problems. Throughout history, and still in developing and third-world countries, women depended on men's economic support. Some women may not be able to bear children. In such cases, if the husband wants to have children, he may marry again instead of divorcing his first wife. A "barren" woman may find it hard to marry again if this weren't permissible. Moreover, after wars, there is usually a shortage of young men. This was evident in Australia after World War I, as it was difficult for many widowed women or even young ladies to marry as there was a limited amount of available men. To maintain the stability of society in such instances, some men should be allowed to marry more than once. More importantly, their second wife should be a widow. For example, after World War I, the famous writer Victor Marqveritte, after the decrease in the male population of France, said the following: "18 million European women have been the victim of the system of living as a widow because of the death of their partners. As a result, they are condemned to misery, economically and morally".
By nature males and females are born in approximately the same ratio. A female child has more immunity than a male child. A female child can fight the germs and diseases better than the male child. For this reason, during the pediatric age itself there are more deaths among males as compared to the females. During wars, there are more men killed as compared to women. More men die due to accidents and diseases than women. The average life span of females is more than that of males, and at any given time one finds more widows in the world than widowers.In the USA, women outnumber men by 7.8 million. New York alone has one million more females as compared to the number of males, and of the male population of New York one-third are gays i.e homosexual. The U.S.A as a whole has more than twenty-five million gays. This means that these people do not wish to marry women. Great Britain has four million more females as compared to males. Germany has five million more females as compared to males. Russia has nine million more females than males. God alone knows how many million more females there are in the whole world as compared to males.Even if every man got married to one woman, there would still be more than thirty million females in U.S.A who would not be able to get husbands (considering that America has twenty five million gays). There would be more than four million females in Great Britain, 5 million females in Germany and nine million females in Russia alone who would not be able to find a husband. Another important thing is that 98% of the prison populations are Males.
Country Male Population Female Population
Russia 46.1% 53.9%
UK 48.6% 51.5%
USA 48.8% 51.2%
Brazil 49.7% 50.27%
• In addition, surplus of women who are not financially maintained by a husband is a cause of increased prostitution in the society.
In her book The Life and Teachings of Muhammed, Dr. Annie Besant says:
"There is pretended monogamy in the West, but in reality, there is polygamy without responsibility; the mistress is cast off when the man is weary of her ... the first lover has no responsibility for her future, and she is a hundred times worst off then the sheltered wife in a polygamous home."
"When we see thousands of miserable women who crowd the streets of Western towns during the night, we must surely feel that it does not lie in the Western mouth to reproach Islam for polygamy. It is better for woman, happier for woman, more respectable for woman to live in polygamy, united to one man, only with a legitimate child in her arms and surrounded with respect, than to be seduced and then cast out into the streets, perhaps with illegitimate child outside the rule of law, uncared, unsheltered, to become victim of any passer-by, night after night, rendered incapable of motherhood, despised by all."One can clearly see that there are many benefits which result from the allowance of polygamy. Many societal ills are left untreated, if not created or worsened, due to modern restrictions placed on polygamy.
Actually there are three kinds of polygamy practiced in Western societies:
• Serial polygamy, that is, marriage, divorce, marriage, divorce and so on any number of times.
• A man married to one woman but having and supporting one or more mistresses.
• An unmarried man having a number of mistresses.
Bertrand Russell says:
"And in all countries where there is an excess of women, it is an obvious injustice that those women who by arithmetical necessity must remain unmarried should be wholly debarred from sexual experience." (Marriage and Morals, p. 47)
George Bernard Shaw advised the people of Europe to adopt the system of polygamy to save Europe from inundation of adultery.
Another Western writer, J. E. McFarlance; writes in his "The Case for Polygamy or The Case against the System of Monogamous Marriage": "Whether the question is considered socially, ethically or religiously, it can be demonstrated that polygamy is not contrary to the highest standards of civilization. The suggestion offers a practical remedy for the Western problems to destitute families; the alternative is continued and increased prostitution, concubine and distressing spinsterhood."
If women do outnumber men, only one course of action has to be opted for out of the three following options:
(1) to judge that some women be deprived for life of having their sexual needs met;
(2) to permit keeping mistresses, with adultery acknowledged as thus legitimate;
(3) or to allow polygamy.
Undoubtedly Polygamy is more sublime and chaste than Concubines. A mistress has no access to rights nor does her children. Even in England now Courts are recognizing Polygamous marriages. "In Conflict of Laws" John Green wood Coller observed: " The law appears to have drawn back from regarding all polygamous unions as not being marriages; since the consequence would have been that a large portion of Queen Victoria's subjects would have been bastards"
rashid@answeringlaw.com
M.A.Rashid
Advocate
In a recent Judgment (Saidali Vs Saleena ) a Division Bench of Kerala High Court dealt with a very controversial aspect of Muslim Personal law - Polygamy. The DB opined that " Even after 15 centuries, some people of our country seems to be very particular in following the aforesaid tenets of Islam unmindful as to whether such circumstances exist or not". Let us examine whether such circumstances exist or not.
Polygamy is a Greek word meaning "the practice of multiple marriages". There are two types of Polygamy. Polygyny is the practice of having more than one wife at one time. Polyandry is the practice of having more than one husband at one time. As historically confirmed, polygamy has been known since the origin of mankind itself. According to Hindu scriptures Many religious personalities had multiple wives. King Dashrat, had more than one wife. Krishna had several wives. In the Holy Bible Abraham had three wives (Genesis 16:1, 16:3, 25:1),Moses had two wives (Exodus 2:21, 18:1-6; Numbers 12:1)Jacob had four wives (Genesis 29:23, 29:28, 30:4, 30:9)David had at least 18 wives (1 Samuel 18:27, 25:39-44; 2 Samuel 3:3, 3:4-5, 5:13, 12:7-8, 12:24, 16:21-23)Solomon had 700 wives (1 Kings 11:3).[3]. It was understood by the leaders of Christendom that there is no intrinsic immorality or sinfulness in plurality of wives. One of the greatest fathers of the Christian Church (St. Augustine) has declared that polygamy is not a crime where it is a legal institution of a country, and the German reformers, even as late as the sixteenth century, allowed and declared valid the taking of a second or even a third wife, contemporaneously with the first, in default of issue, or any other cause." (Ameer Ali, Life and Teachings, p. 220, and also Ameer Ali, Mohammedan Law, Vol. II p. 23)
When Islam first appeared in the 7th century it effected improvements and changes in individual and social life by bringing in new laws and prohibiting or regulating the existing ones. The practice of regulated polygamy falls into the regulation category. Islam did not invent polygamy, but rather has regulated it. Before Islam, a man could marry as many women as he wanted or could afford. Islam put a limit on the number of women that a man could marry, along with some tough conditions.
The verse that allows Muslim men to marry more than one woman is as follows: "Marry women of your choice, two, or three, or four; but if you fear that ye shall not be able to deal justly (with them), then only one." (Qur'an, 4:3).
From this verse a number of facts are evident:
1. That polygamy is neither mandatory, nor encouraged, but merely permitted.
2. That the permission to practice polygamy is not associated with mere satisfaction of passion. It is rather associated with compassion toward widows and orphans, a matter that is confirmed by the atmosphere in which the verse was revealed.
3. That even in such a situation, the permission is far more restricted than the normal practice which existed among the Arabs and other people at that time when many married as many as ten or more wives.
4. That dealing justly with one's wives is an obligation. This applies to housing, food, clothing, kind treatment..etc., for which the husband is fully responsible. If one is not sure of being able to deal justly with them, the Quran say: "then(marry) only (Qur'an 4:3)
Another verse which is commonly used by the critics to say that even Quran disallowed Polygamy , "You are never able to be fair and just as between women, even if it is your ardent desire", intentionally skipping the rest of the verse saying, "But do not turn away (from a woman) altogether, so as to leave her (as if were) hanging (in the air). .(Qur'an 4:129) While allowing marriage with up to four wives, this verse discourages its practice by imposing some tough conditions such as achieving justice between wives, and encourages marrying only one. This is a very tough lifestyle for any man. As a result, the great majority (about 99%) of Muslim men have only one wife. This fact is true for all Muslim countries with slight differences in the marginal rate. This large percentage of monogamy was more or less maintained throughout the history of Islam. According to a survey conducted of the Ottoman archives, the percentage of men married to only one wife never fell below 92%. That is, only 8% of the total male population was married to more than one wife at any one time. As per the 1975 census of India Hindus are more polygynous than Muslims. The report of the 'Committee of The Status of Woman in Islam', published in 1975 mentions on page numbers 66 and 67 that the percentage of polygamous marriages between the years 1951 and 1961 was 5.06% among the Hindus and only 4.31% among the Muslims. According to Indian law only Muslim men are permitted to have more than one wife. It is illegal for any non-Muslim in India to have more than one wife. Despite it being illegal, Hindus have more multiple wives as compared to Muslims. Earlier, there was no restriction even on Hindu men with respect to the number of wives allowed. It was only in 1954, when the Hindu Marriage Act was passed that it became illegal for a Hindu to have more than one wife.
Why is polygamy permissible? The answer is simple: there are places and times in which there are compelling social and moral reasons for polygamy. As the above Quranic verse indicates, the issue of polygamy in Islam cannot be understood apart from community obligations towards orphans and widows. Islam as a universal religion suitable for all places and all times could not ignore these compelling obligations.
Sometimes polygamy becomes a practical solution to serious social problems. Throughout history, and still in developing and third-world countries, women depended on men's economic support. Some women may not be able to bear children. In such cases, if the husband wants to have children, he may marry again instead of divorcing his first wife. A "barren" woman may find it hard to marry again if this weren't permissible. Moreover, after wars, there is usually a shortage of young men. This was evident in Australia after World War I, as it was difficult for many widowed women or even young ladies to marry as there was a limited amount of available men. To maintain the stability of society in such instances, some men should be allowed to marry more than once. More importantly, their second wife should be a widow. For example, after World War I, the famous writer Victor Marqveritte, after the decrease in the male population of France, said the following: "18 million European women have been the victim of the system of living as a widow because of the death of their partners. As a result, they are condemned to misery, economically and morally".
By nature males and females are born in approximately the same ratio. A female child has more immunity than a male child. A female child can fight the germs and diseases better than the male child. For this reason, during the pediatric age itself there are more deaths among males as compared to the females. During wars, there are more men killed as compared to women. More men die due to accidents and diseases than women. The average life span of females is more than that of males, and at any given time one finds more widows in the world than widowers.In the USA, women outnumber men by 7.8 million. New York alone has one million more females as compared to the number of males, and of the male population of New York one-third are gays i.e homosexual. The U.S.A as a whole has more than twenty-five million gays. This means that these people do not wish to marry women. Great Britain has four million more females as compared to males. Germany has five million more females as compared to males. Russia has nine million more females than males. God alone knows how many million more females there are in the whole world as compared to males.Even if every man got married to one woman, there would still be more than thirty million females in U.S.A who would not be able to get husbands (considering that America has twenty five million gays). There would be more than four million females in Great Britain, 5 million females in Germany and nine million females in Russia alone who would not be able to find a husband. Another important thing is that 98% of the prison populations are Males.
Country Male Population Female Population
Russia 46.1% 53.9%
UK 48.6% 51.5%
USA 48.8% 51.2%
Brazil 49.7% 50.27%
• In addition, surplus of women who are not financially maintained by a husband is a cause of increased prostitution in the society.
In her book The Life and Teachings of Muhammed, Dr. Annie Besant says:
"There is pretended monogamy in the West, but in reality, there is polygamy without responsibility; the mistress is cast off when the man is weary of her ... the first lover has no responsibility for her future, and she is a hundred times worst off then the sheltered wife in a polygamous home."
"When we see thousands of miserable women who crowd the streets of Western towns during the night, we must surely feel that it does not lie in the Western mouth to reproach Islam for polygamy. It is better for woman, happier for woman, more respectable for woman to live in polygamy, united to one man, only with a legitimate child in her arms and surrounded with respect, than to be seduced and then cast out into the streets, perhaps with illegitimate child outside the rule of law, uncared, unsheltered, to become victim of any passer-by, night after night, rendered incapable of motherhood, despised by all."One can clearly see that there are many benefits which result from the allowance of polygamy. Many societal ills are left untreated, if not created or worsened, due to modern restrictions placed on polygamy.
Actually there are three kinds of polygamy practiced in Western societies:
• Serial polygamy, that is, marriage, divorce, marriage, divorce and so on any number of times.
• A man married to one woman but having and supporting one or more mistresses.
• An unmarried man having a number of mistresses.
Bertrand Russell says:
"And in all countries where there is an excess of women, it is an obvious injustice that those women who by arithmetical necessity must remain unmarried should be wholly debarred from sexual experience." (Marriage and Morals, p. 47)
George Bernard Shaw advised the people of Europe to adopt the system of polygamy to save Europe from inundation of adultery.
Another Western writer, J. E. McFarlance; writes in his "The Case for Polygamy or The Case against the System of Monogamous Marriage": "Whether the question is considered socially, ethically or religiously, it can be demonstrated that polygamy is not contrary to the highest standards of civilization. The suggestion offers a practical remedy for the Western problems to destitute families; the alternative is continued and increased prostitution, concubine and distressing spinsterhood."
If women do outnumber men, only one course of action has to be opted for out of the three following options:
(1) to judge that some women be deprived for life of having their sexual needs met;
(2) to permit keeping mistresses, with adultery acknowledged as thus legitimate;
(3) or to allow polygamy.
Undoubtedly Polygamy is more sublime and chaste than Concubines. A mistress has no access to rights nor does her children. Even in England now Courts are recognizing Polygamous marriages. "In Conflict of Laws" John Green wood Coller observed: " The law appears to have drawn back from regarding all polygamous unions as not being marriages; since the consequence would have been that a large portion of Queen Victoria's subjects would have been bastards"
rashid@answeringlaw.com
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