The Delhi court judge who rejected bail to a maulvi in a forcible marriage case was right in saying that there is no blanket sanction for polygamy in the Koran
In a significant judgment pronounced last month (in State vs. Nadeem Khan case) Delhi’s Additional Sessions Judge Dr. Kamini Lau called upon religious heads, priests and maulvis “to ensure that the religious texts are progressively interpreted and to confirm that it is only those beneficial practices which are in the best interest of all sections of humanity which are encouraged and observed.” She was dismissing the anticipatory bail application of a Maulvi accused of forcibly marrying a young Muslim girl to an already married man who raped her soon after the Nikah. The judge’s remarks, which form part of her eloquent 14-page order, were in response to the maulvi’s defence that there was nothing illegal about his performing the Nikah because the Shariah permitted a Muslim man to have four wives at a time.
The importance of Dr. Lau’s order lies in her scholarly refutation of the medieval belief that polygyny enjoys blanket sanction in Islam. Citing Muslim scriptures the judge avers that “polygamy is neither mandatory nor encouraged but merely permitted. The Koran’s conditional endorsement of polygamy stresses that self-interest or sexual desire should not be the reason for entering into a polygamous marriage” because the original purpose of allowing this practice was “to protect the social and financial standing of the widows and orphans in their community.”
Historical context
Dr. Lau is absolutely right in her analysis. Indeed, except conditional polygyny, the Koran frowns upon all types of non-monogamous relationships within in and outside marriage. Significantly, polygyny itself finds mention just once (4:3) in the entire Koran. Yet Muslim men have abused it over centuries without appreciating the spirit behind its exceptional sanction, which is clearly contextualised in the historical conditions of the time when a large number of women were widowed and children orphaned as Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. Even a simple reading of verses 4: 2, 3 and 127 will show that it was under such circumstances that the Koran allowed conditional polygyny to protect orphans and their mothers from an exploitative society.
Verse 4:2 warns caretakers against devouring the assets of orphans either by merging them with their own, or substituting their “worthless properties for the good ones” of the orphans. And, if the caretakers “fear that they may not be able to do justice” to the interests of the orphans in isolation, the next verse allows them to marry their widowed mothers — on the condition that the new family would be dealt justly on a par with the existing one. For those who are not up to it, the instruction of the Koran was: “Then [marry] only one.”
The sanctity of taking care of widows and their children is further emphasised in 4:127: “And remember what has been rehearsed unto you in the Book [in 4:2 and 3] concerning the orphans of women to whom you give not what is prescribed, and yet whom you desire to marry...” This proves that verse 4:3 is not a hedonistic license to marry several women.
Furthermore, the Koran idyllically describes the marital couple as “spousal mates” created to find “quiet of mind” (7:189) and “to dwell in tranquillity” (30:21) in the companionship of each other. In fact, verse 7:189, which traces the origin of man to a single cell (nafsan waahida), refers to the wife in the singular as zaujaha, thereby emphasising monogamy. Thus, in the Koranic conception, marriage is the emotional bonding of two minds which cannot be achieved simultaneously with more than one woman.
Restricted in many countries
For this reason polygyny is severely restricted in many Muslim countries and totally banned in Tunisia and Turkey, a fact pointed out by Dr. Lau in support of her judgment. In Pakistan for instance, Sec. 6 of the Muslim Family Laws Ordinance, 1961 states that no man, during the subsistence of an existing marriage, can contract another marriage without the permission in writing of the Arbitration Council — a body consisting of representatives of each of the parties to a matter dealt with under the Ordinance — which would grant the sanction applied for after satisfying itself that the proposed marriage is necessary and just.
The Indian Muslim community is perhaps the only Islamic society in the world where utter confusion prevails insofar as the proper definition of Shariah is concerned. Judge Lau brings this up saying, “… in democratic India, it is time to clear certain misconceptions and misgivings regarding Islam. Merely because the Muhammadan Personnel Law does not stand codified, it does not in any manner entitle a violator/ accused to get away with an interpretation which suits his convenience.” Once again she has hit the nail on the head. One fails to understand why the Muslim clerics have always sought to straitjacket the time-transcending polysemic phraseology of the Koran and restrict its meaning to outdated medieval hermeneutics. It is no wonder that a verse in the Koran (25:30) visualises Prophet Muhammad as complaining to God on the Day of Judgment that after his demise his followers had circumscribed the comprehensive message of the Koran.
In this context, one is reminded of the valiant attempt made by the great 14th century jurist Abu Ishaq al-Shatibi of Muslim Spain who in his celebrated legal treatise al-Muwafaqaat fi usool al-Shariah developed the concept of Maslaha (public good) as an essential element of his doctrine Maqaasid al-Shariah (Goals of the Shariah) which he formulated to make Islamic law adaptable to social change. Shatibi argued that an inductive analysis of the injunctions of the Koran and the teachings of the Prophet would reveal that Maslaha is the universal principle that permeates Islam because, the divine intent behind societal sharaa’i (laws) is the masaalih (benefits, good) of the people, both immediate and future. Therefore, any law that does not have Maslaha as its basis cannot be attributed to the Lawgiver.
Surprisingly, even a staunch traditionalist like Ibn al-Qayyim agreed with Shatibi. In his I’laam al-muwaqqi’in he wrote: “The Shariah is all justice, kindness, masaalih and hikma [wisdom]. Hence, any rule that departs from justice to injustice…from Maslaha to Mafsada is not part of Shariah…” It can, therefore, be stated with a fair amount of certainty that the stagnation of Islamic law in India is a result of ignoring the relevance of public interest in lawmaking. It is time Muslim theologians realised that any interpretation of Islam that is amoral, unfair and inconsistent with principles of natural justice and social ethics, cannot claim to represent the Divine Will, and therefore, does not deserve to be epitomised as the Shariah.
(A. Faizur Rahman is secretary general of the Islamic Forum for the Promotion of Moderate Thought. E-mail: faizz@rocketmail.com)
Judge Lau says that texts should be interpreted to “confirm that it is only those beneficial practices which are in the best interest of all sections of humanity which are encouraged and observed”. I would think polygamy a very beneficial practice for an Indian society that as its alternative discriminates against females, illegally aborting ten million female foetuses since the 1990s, and also has a high level of female infanticide, still being prevalent in India’s rural areas: something that Islam specifically bans. The author obviously knows very little about Islam. He uses verses of Quran completely out of context (similar to Osama Bin Laden) as he goes against all the edicts of all the qualified scholars of Islam. The author also surmises that his reasons are why polygamy was “totally banned in Tunisia” by, I may add, its tyrannical dictator Habib Bourguiba, infamous for drinking orange juice during Ramadhan, and like Mr. A. Faizur Rahman opining that Islam should be modernised.
I congratulate Mr. Faizur Rahman for writing this informative article
and i sincerely applaud the ruling given by the judge Dr.Kamini Lau. We
need more progressive thinkers like Mr. Rahman and Dr. Kamini Lau for a
better India. Mr. Rahman's line of thinking will stop a lot of abuse on
young and vulnerable muslim women.
If a man's sexual desire is not satisfied with one wife , the Quran also
permits him to marry another woman instead of committing all nonsense
acts (adultry,brothel,prostitution,rape).but along with satisfying
his/her sexual desire he should also maintain/protect his second wife
socially and financially.Justice should be done among the two or more
wives should prevail at all costs.
Mr. A. Faizur Rahman has written a good article and deserves praise as does the judge. Unfortunately, people misuse religion for their personal gains and bring a bad name for religion.
A brilliant display of abuse of power by secular humanism over religion. The personal
islamic law board in india exists to prevent the intervention of the secular democratic
system of law imposed by the british before they left, on the muslims who live by the
laws of the lord of the universe. Here, Dr Kamini Lau, a secular humanist judge by
profession endowed with the power to judge declares a verdict on an authority in
islamic law who pronounced a valid judgement according to the traditional islamic
law. And then here is a Mr Faizur Rahman, the so called secretary of the think tank
to promote "moderate islam" pandering to the verdict of the false system over islam.
Amazing state of the ummah!
Yes, something seems amiss in the incident where a man performs forcible nikah on
a girl for his second marriage. The answer to this puzzle is in the islamic law itself
and these black-suit pseudo-muslim junkies need not look elsewhere.
We, particularly Muslim women, should take this judgement as a moment to
mobilize and consolidate progressive thoughts in traditional religions
before minority politics subsumes the case, as in case of Sha Bhano case
on maintenance. The overall situation in the country is conducive for
fresh thinking on issues governing gender justice.
Hats off to the author for clearly explaining the views of Islam on
Polygamy. It should be noted that ISLAM "polygamy is neither mandatory nor
encouraged but is just permitted", unless the man is able to provide equal
justice to his wives and children.
I also want to thank the Judge Dr. Kamini Lau for her outstanding
judgement.
Atlast ,in India some body has taken pain to understand and apply Islam's shariat, instead of over looking it. Thanks to the judge. More over, the problem of the community is within. These kind of judgments will build confidence among Muslims on Indian Judicial system and make them go to courts than visiting local maulvis for civil issues.Author of this article has done good job by bringing out practices in various countries and through references from quran.
Mr.Faizur Rehman, big thanks for showing the teachings of Holy Koran in the proper light.No religion teaches or preaches to hurt, neglect-or take advantage of anybody.Conditional polygamy and dowry has been used to exploit women.Hope more en-lighted leaders will give a better and true picture of Islam to others they term"Khaffar"-non believers.
The beauty of interpretation (of, any subject) lies with the doer capability. It is no crime of less capable people drawing wrong interpretation. But capable people consciously and conveniently doing so, to protect their “male-centric” self interest, are a crime at most. The honorable judge of the court, has honored the fellow citizens of this country giving such wonderful insights. I am also equally appreciating s A. Faizur Rahman thoughtful essay.
You should also note that Forcible marriage is not allowed in Islam. The willingness of the woman for the marriage is essential/must.
Well said. It is high time Muslim law is subject to progressive interpretation. Polygamy was never intended to be the ideal to be achieved. It was always an exception, which has been appropriated as a rule.
An outstanding and historical judgement given out .islamic rules have
for long been twisted and used in their favour by many. Hope more
judgments regarding other such religious rules are handled well and
given a clearer picture.
Mr Author what I fail to understand why do polygamy at all in first place? What about the woman who is the first wife? Is she consulted on this marriage? Was she ever asked how she felt about that new member/wife of family? Is she willing to share her love and divide her children's share with her and her children? Polygamy can never be the solution in any of the case. Re marriage can be the solution but polygamy is just clear injustice. And logically speaking how can a so called secular country like India allow religious laws to be used in courts for a particular community. This also have a logical fallacy as our lawyers and judges are taught regular laws but when they go to court acc. to sharia laws this will create utter confusion and illegitimacy of law itself. Laws should be equal for all communities other wise stop calling our country as secular (best word would be secular with terms and conditions acc. to particular community.)
Kudos to Delhi’s Additional Sessions Judge Dr. Kamini Lau. Hope is there
for the country because of people like you! :)
Thank you for educating us and deciphering the recent judgement so that
we understand. We appreciate your article and hope such a discussion
leads to changes for the betterment of society - within Islamic
community as well as outside of it.
As a non-muslim, what comes to mind is how this narrow interpretation is
also abused by non-muslims (i.e. convert to Islam to marry more than
once!), although they do not practice Islam in any other way.
Thank you sir for an informative article. Hope it clears misconceptions
of Islamic shariah on marriage among muslims and non-muslims both.
Every religion is characterised by codes of conduct-both eternal and
temporal. What could be considered true for one epoch may not be
relevant in another epoch!Maturity lies in being able to distinguish
between the two.
It is futile on part of the media to attempt to change and guide the Muslims. Whether it is by projecting Bhori or Ismaili scholars/writer as representing Muslim thought or giving example of Turkey or Tunisia as examples for Muslim law. In Pakistan there is struggle going on to decide the extent of application of Sharia law.
It is interesting to note that in Egypt a concerted attempt was made to force various christian sects to follow one common christian law by so called moderate Christians, secular Muslims, moderate Muslims(whatever those terms mean) and judiciary. The Mullah's in Al-Ahzar overrode that campaign saying that every community has the right to be governed by their own personal laws.
If we are a secular state, why are we worried about interpretation of Koran. It is for
the Islamic states. It only shows that our secularism is a sham and opportunistic. We
can call ourselves secular, only when we pass a common civil laws, independent of all
the religion based personal laws. That is what our constitution directs us to do.
Unfortunately, starting with Nehru, all politicians have played foul with our
constitution.
Good Judgement... Muslim religious scholars should proactively address the issue.
The main misgiving the Muslim community & scholars in India have is that, if they accept
even 1 change in their stand , the politicians will misuse & take away all other things that
Muslim Personal law gives them
Yes, the Judge is right in abandoning FORCED marriage. In ISLAM nothing is allowed/recommended forcefully. Islamic Laws are for all the human being who ever wants to benefit can be benefitted by accepting these laws. This is true that Polygamy is neither RECOMMENDED nor MANDATORY in ISLAM;; but it is ALLOWED with only ONE condition that if a man can make justice between all the wives. This is wrong that a man is required to take permission from his first wife etc. As for the heading of this article PROGRESSIVE Islam, there is nothing like Progressive or Conservative. As per the saying of our prophet Mohammed " ADDINO NASEEHA" Religion is Advice, and also we are advised not to be on the extremes of right and left. The Muslims should not ASSOCIATE with Almighty ALLAH and believe that the Prophet Mohammed was a human being and His Messenger.
Very well said and very informative. Thankyou very much!
Justice Kamini Lau did extinguish the mis-conceptions one had on the practice of ploygamy in Islam.
Pity that the islamic scholars and the relegious leaders saw only the words and not the spirit behind those words and used it to the disadvange of muslim women young and old.
Thank you Judge Lau for a forthright judgement.
It is heartening to note that there has been an earnest intention to
interpret the holy Quran, in progressive measures, surpassing the
stereotypical inferences that provide lop-sided blanket solutions to
most of the social stigmas. The holy scripture clearly rules out
polygamous alliances that bears its genesis from sexual or selfish
overtures. So many of us have been fooled into thinking otherwise- a
product of asymmetrical and imperfect information about Islam and Quran.
It's a thought provoking piece of writing.Every Muslim group claims to
follow Shariah but it is the interpretation that makes a hell of the
difference thereby resulting in conflicting arguments and counter-
arguments.To arrive at a right conclusion what is needed is the
sincerity in intent,objectivity,intellectual honesty and ,of course,
most importantly keeping the context of the concerned Quranic verses
in view.
Rightly said that polygyny is neither mandatory nor recommended but
only permitted.But the situations in which it is permitted are not
specified, understandably as human life is too complex to be codified
in some fixed predictable patterns.The beauty of the Shariah Laws lies
in this flexibility and dynamism along with their inherent inseparable
components that provide the necessary stability.So to limit this
permitted space to few particular situations only is,in my view,
against the spirit of Islamic Shariah .
Space doesn't allow me to go further,,Lets agree to disagree.
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