By A. Faizur Rahman
Jan 11 2013
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.”
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.