Polygamy has been practiced for thousands of years, the earliest evidence of this can be found in   The Law Code of Hammurabi (1780BC)  which in part addresses the issues of polygamy and its legitimacy - Articles 145 stating  “If a man take a wife, and she bear him no children, and he intend to take another wife: if he take this second wife, and bring her into the house, this second wife shall not be allowed equality with his wife.”  and Article 148 states  “If a man take a wife, and she be seized by disease, if he then desire to take a second wife he shall not put away his wife, who has been attacked by disease, but he shall keep her in the house which he has built and support her so long as she lives”[i] . Polygamy (Ta’addud) is not obligatory in Islam,  verse  4: 3[ii] gives an option to the person to exercise his own discretion, it is not saying  that one has to take on another wife, or even it is preferable which would make it a statement of intent, thus it cannot be regarded as anything more than a discretionary option that is to be exercised not in every situation, but the situations that necessitates the exercise of the discretion be that in the interest of the person, or society. One must note the period in which the verses was revealed which was after the defeat at the battle of Uhud[iii] where the losses resulted in many orphans and widow. However, I would submit that one also has to consider that this was also time that Polygamy was widely practised by many people of the earth which included to whom God revealed the Torah and Psalms to[iv], the Jews did not seek to restrict the practice until synod at worms[v] and the Christians waited even longer.  

This is a relevant as God had not ordered in the earlier books to limit the practices even though it was practised widely[vi]. When one looks at Surah Al-Nisa from a holistic point its purpose is to give rights and provide justice to women, something which they had lacked. When verses 4;3 and 129 looked at from this perspective then the point that was being made was to treat them ‘justly’, ‘equitably’ and ‘equally’, in some regards the words are semantic as they can all fall under the global heading of Adl. The prophet himself devised systems to practice Adl, such as the drawing of lots and rotas[vii]. One hand a discretion was given to take more than one, but equally those who were in polygamous marriages and who had turned to Islam were being told to be equitable, hence why the prophet insisted on reducing the numbers for who were married to 4 and in the case of Fatima, the marriage was to remain monogamous.  The revelations cannot just be viewed in isolation one has to have regard to the anthropology of the period to try and understand why God revealed the Surah to understand its purpose when it comes to verse 4:3 and that being God wished to bring justice to where polygamy was required as a need, this is my own view.

For polygamy to arise one had to satisfy a number of conditions Alamgir(2013) notes the conditions as (1) the wife(s) did not object, or have a right to, (2) man can be equitable, (3) has the means and (4) if women are unable to produce children[viii]. Badawi (1998) adds to this to by including a wife who is chronically ill[ix], of unsound mind, is old, has a bad character, or the man has sexual impulses or if there is a societal need i.e when there are more women, than men[x]. The Shia adding a further condition that the man should be able to satisfy each wife’s sexual needs[xi]. All these factors point to the equitable requirement  which is covered by the principles of Adl and in the absence of this regardless of the intentions one would not be able to cross the legitimacy threshold as being Adl is a mandatory requirement otherwise the rights of the women would be fundamentally reduced and could create 2 classes of women, those who were the first wife’s who rights accorded with the intentions of Islam and the 2nd wife’s who would have lesser rights and would take a step back  to the position pre -Islam which is not what in my view seeks, given that God see all as equals[xii]. “Polygamy in Islam is permissible if it leads to justice and it is unlawful or forbidden if it results in grievances and injustices”[xiii]

Having considered the issue there are two things  in my opinion which have to borne in mind when it comes to the practice of polygamy, the first being Adam was only given one mate and secondly the prophet restricted his own daughter’s marriage to one, given he had the power to abrogate the verses of the Qur’an, then one has to consider is this what occurred when he limited the marriage of his daughter to Ali? If so, has an abrogation taken place, these are matters that need to be considered in detail to fully understand the legitimacy of Polygamy. The one thing that can be said, it is not an obligation, but a discretion which is only exercisable where the woman retains the rights that were intended for her. Polygamy is something which is not new[xiv], it was not created by Islam[xv]  and still widely available across many societies[xvi],  but  Islam was one[xvii] of the first to regulate it.

The English law on Polygamy

The Matrimonial Causes Act 1973 prohibited polygamy if either party was domiciled in England and Wales[xviii], Bigamy already being a criminal offence[xix].however, the prohibition of polygamy does not apply if the marriage has occurred outside England and Wales [xx], subject to meeting the domicile test as per Section 5 Private International Law (Miscellaneous Provisions) Act 1995[xxi]  and the lex loci celebrationis[xxii]. Although, polygamy which has occurred overseas will be recognised it does not mean all the wives would be granted leave to enter the country as the Immigration Act 1988 only grants one wife a right to abode[xxiii].   In essence even if a party could justify the act of Polygamy and treat the 2nd wife as a legal wife, the legal difficulty would be they would have to show they were not domiciled in the UK, even if this could be achieved, then only one wife would be given the right to remain in the country.

The views expressed in this article are the personal views of Yasin M Din- Barrister at Law

References

[i] https://mcadams.posc.mu.edu/txt/ah/Assyria/Hammurabi.html#Hammurabi.Law.144

1.   "And if you fear that you will not act justly towards the orphans, marry such women as seem good to you, two, three, four; but if you fear you will not be equitable, then only one.", it is in fact a discretion which has been afforded by God, the discretion lying the “as seem good to you

[iii] 19th March 625CE, it said a 1000 men marched with the prophet, 300 of the hypocrites left, leaving a force of 700 – Ghomari,Taibi(2017), Uhud, the battle of (625C),In.Islam: A Worldwide Encyclopaedia (4 Volumes), page 1591   https://www.researchgate.net/publication/319344640_Title_Uhud_the_battle_of_625C_In_Islam_A_Worldwide_Encyclopedia_4_Volumes  See also see Jawad, Haifaa (1998), The Rights of Women, An Authentic Approach, MacMillan Press Ltd (UK) Page 44

[iv] Badawi, Jamal (1998), Polygamy in Islamic Law  reproduced in Dr. Jamal Badawi examines polygamy in the Muslim, Jewish and Christian traditions- https://www.wakf.com/attachments/article/102/polygamy_in_islamic_law.pdf

[v] Which is send to have occurred at some point after 1160 and 1196 – Jewish Virtual Library- https://www.jewishvirtuallibrary.org/synods

[vi] “In pre-Islamic Arabia polygamy was a common practice; a man was allowed to marry an unlimited number of wives without any restrictions” see Jawad, Haifaa (1998), The Rights of Women, An Authentic Approach, MacMillan Press Ltd (UK) Page 44

[vii] “Narrated Aisha: Whenever Allah's Apostle intended to go on a journey, he used to draw lots among his wives and would take with him the one on whom the lot fell. He also used to fix for everyone of his wives a day and a night, but Sauda bint Zam'a gave her day and night to 'Aisha, the wife of the Prophet intending thereby to please Allah's Apostle”. • Sahih al-Bukhari, Vol. 3, Book of Witnesses, Hadith 853- https://muflihun.com/bukhari/48/853

[viii] Alamgir, Auranzaib, (2013), Islam and Polygamy: A Case Study in Malaysia, Asia-Europe Institute, University of Malaya 50603 Kuala Lumpur Malaysia, p892(Ta’addud)

[ix] Badawi, Jamal (1998), Polygamy in Islamic Law reproduced in Dr. Jamal Badawi examines polygamy in the Muslim, Jewish and Christian traditions-

[x] Jawad, Haifaa (1998), The Rights of Women, An Authentic Approach, MacMillan Press Ltd (UK) Page 48

[xi] Amini, Ibrahim (NPD) An introduction to the Rights and duties of Women in Islam, Al-Islam.org (UK) Page 63

[xii] The Qur’an makes reference on many occasions to “oh you who believe” which is an inclusive statement see Maedah (5): 2 as well as usage of the word ‘Believers’ see Nour (24): 55 Taubah (9): 71

[xiii] Jawad, Haifaa (1998), The Rights of Women, An Authentic Approach, MacMillan Press Ltd (UK) Page 46

[xiv] The Law Code of Hammurabi (1780BC) 

[xv]Jawad, Haifaa (1998), The Rights of Women, An Authentic Approach, MacMillan Press Ltd (UK) Page 42

[xvi] Thobejane, Tsoaledi and Flora, Takayindisa (2014) noting “A study conducted by Berkowitz (2007) notes that about eighty-three percent of human societies permit polygamy. - An Exploration of Polygamous Marriages: A Worldview, Mediterranean Journal of Social Sciences, Vol 5 No 27 December 2014

[xvii]  The Law Code of Hammurabi (1780BC)  which also in part addresses the issues of polygamy and its legitimacy - Articles 145 states  “If a man take a wife, and she bear him no children, and he intend to take another wife: if he take this second wife, and bring her into the house, this second wife shall not be allowed equality with his wife.” And Article 148 states  “If a man take a wife, and she be seized by disease, if he then desire to take a second wife he shall not put away his wife, who has been attacked by disease, but he shall keep her in the house which he has built and support her so long as she lives”- https://mcadams.posc.mu.edu/txt/ah/Assyria/Hammurabi.html#Hammurabi.Law.144

[xviii] Section 11(d)

[xix] Bigamy applies to both men and women and is an offence under Section 57, Offences Against the Persons Act 1861, should it occur in England and Ireland but is subject to the 7-year rule

[xx] House of Commons Briefing Paper 2018, Catherine Fairbairn, Hannah Wilins, Steven Kennedy and Djuna Thurley, 20th November 2018, page 4

[xxi]  Section 5 - Validity in English law of potentially polygamous marriages. (1)A marriage entered into outside England and Wales between parties neither of whom is already married is not void under the law of England and Wales on the ground that it is entered into under a law which permits polygamy and that either party is domiciled in England and Wales.(2)This Section does not affect the determination of the validity of a marriage by reference to the law of another country to the extent that it falls to be so determined in accordance with the rules of private international law - http://www.legislation.gov.uk/ukpga/1995/42/Section/5

[xxii] Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 (23 March 2017) Para 15

[xxiii] Section 2(2) Immigration Act 1988