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Reform of Muslim marriage in India

Friday 28 April 2017, by siawi3

Source: http://indianexpress.com/article/opinion/columns/some-personal-questions-triple-talaq-muslim-personal-law-constitutional-bench-supreme-court-unislamic-4631087/

Some personal questions

Need to ask, on sidelines of triple talaq debate: Is polygamy constitutionally valid? Is it un-Quranic?

Written by Javed Anand

Published:April 28, 2017 12:10 am

Of the three issues relating to Muslim personal law in India — triple talaq, nikah halala and polygamy — coming up soon for hearing before a Constitutional Bench of the Supreme Court, the first is an easy-to-pluck low-hanging fruit. Muslims who are hoping for a verdict that declares these practices not only unconstitutional but also “un-Quranic” confidently cite unambiguous verses from the holy scripture on the issue of triple talaq and even nikah halala.

But on the issue of polygamy, they dither in taking a head-on stand against the ulema’s centuries-old, male-centred interpretation of the Quranic injunction.

The Bharatiya Muslim Mahila Andolan’s affidavit in support of Shayara Bano’s petition, for example, seeks the declaration of triple talaq and nikah halala as un-Quranic, but is silent on the polygamy issue. Numerous articles penned in recent months by Muslims for the print media have also remained focused on triple talaq (instant divorce). The odd comment piece on polygamy by a Muslim has, if anything, sought to justify the practice among Muslims through a dubious reference to the plight of Hindu “mistresses” who are “denied the right that a second wife enjoys among Muslims”.

Even the late Bohra reformist, Islamic scholar and a tireless champion for gender justice, Asghar Ali Engineer, remained opposed to a total ban on polygamy since the Quran permits it under certain conditions. Over 20 Muslim majority countries have outlawed triple talaq in recent years. Many have also imposed strict court-supervised conditions before a husband takes a second wife. But most have yet to take the final step: Monogamy.

The ulema’s theological defence of polygamy hangs on a single verse of the Quran which reads: “And if you fear that you may not be just to the orphans, then you may marry whom you please of the women: Two, and three, and four. But if you fear you will not be fair, then only one, or what your right hand possesses (slaves)” (4:3).

The patriarchs of Islam forget to remind their flock of two other relevant verses of the Quran which read: “You will not be able to treat all women equally even if you wish to do so” (4:129), or, “Allah has not made for any man two hearts” (33.4). It has been left to women (some men too) scholars of Islam such as Amina Wadud, Asma Barlas and others to point out that the continued justification of polygamy is not a Quranic licence but a convenient male construct.

In her book Quran and Women: Reading the Sacred Text from a Woman’s Perspective, Wadud points to the verse preceding 4.3 to argue that both verses are specifically about the treatment of orphans, justice to orphans. Wadud challenges the ulema’s blinkered notion of “treating all women equally”.

“In fact, as far as they are concerned, the only measurement of justice between wives is material: Can a man equally support more than one wife? This is an extension of the archaic idea of marriages of subjugation, because (this criteria of) fairness is not based on quality of time, equality in terms of affection, or on spiritual, moral and intellectual support.”

As relevant is the context of the revelation of these verses. The male members in the then-miniscule Muslim population which was counted in hundreds was seriously decimated in the battle of Uhud. This created a major gender imbalance and the very survival of Islam’s followers was at stake. Wadud, among others, systematically demolishes the common justifications in support of polygamy of which there is neither mention, nor sanction in the Quran.

First, there is the financial argument. Since women are financially dependent on men, those who can afford it may marry more than one wife. This is not an argument based on the Quran. Besides, it is no longer true in today’s world that only men engage in paid work.

Two, the argument regarding women’s inability to bear children. This too finds no mention in the Quran. Moreover, with the advance of medical science, it is easy to establish whether infertility has to do with the husband or wife. Also, in today’s world, there are multiple options — adoption being only one of them — for a couple to raise children even if the wife is not able to conceive.

Three, the argument that men have a stronger sexual drive than women. This not only lacks Quranic sanction but, as Wadud argues, it is un-Quranic. “It is clear that the Quran does not stress a high, civilised level for women while leaving men to interact with others at the basest level”.

Four, it is pointed out that the Prophet himself had multiple wives. In a paper titled, ‘There are Worse Things Than Being Alone: Polygamy in Islam, Past, Present and Future’, Heather Johnson makes two points. One, all but one of Mohammad’s wives was a widow. “From all accounts his marriages were inspired not by lust or greed but rather by compassion and diplomatic design. Each of his wives came from a different clan or tribe, his marriages to each was a political alliance.”

Two, Johnson quotes verse 33.50 of the Quran to point out that certain permissions were specifically, “Only for thee (Prophet) and not for the believers (at large)”. In the mid-1990s, two judges from a division bench of the Dhaka High Court had ruled that in the modern context, the only possible interpretation of the Quranic injunction on marriage was monogamy.

It is another matter that in the changed political dispensation in Bangladesh a few days later, the Supreme Court had quashed the high court order. Whether our Constitution Bench should limit itself to the constitutional validity of triple talaq, nikah halala and polygamy, or whether it should also examine them in the light of Quranic teachings, as some petitioners have pleaded, may be a debatable question.

The point, however, remains that there are today Islamic scholars, women and men, who consider the current-day practice of polygamy as un-Quranic, in letter and in spirit.

The writer is Convener, Indian Muslims for Secular Democracy and Co-editor, Sabrang India