WHAT DO MUSLIM WOMEN WANT VIS-À-VIS POLYGAMY

 

WHAT DO MUSLIM WOMEN WANT VIS-À-VIS POLYGAMY

Dr. Noorjehan Safia Niaz

 

In the report published by BMMA, ‘Status of Women in Polygamous Marriage and the Need for Legal Protection’, Muslim women have in their own words given a piece of advice to Muslim men, to religious groups and to the larger community. One of the respondents in the study says, a woman gives her whole life to her husband but husband does not respect her. A woman lives with this fear all the time that her husband may leave her and that she has no control over him. Men give the example of the Prophet and they think they know everything about Islam. But their behavior betrays their ignorance about their own religion. Change is part of the society then why is change not possible for women? Why is she still subjected to archaic traditions and laws which harm not just a woman but entire families and consequently the community and nation.

 

If men are not able to take care of a woman then why do they need so many wives? This is the refrain of most of the women. Women don’t land up marrying as soon as her husband leaves her. Does she not have her needs or is it that only men have needs and they need to be fulfilled at the first go. Men only misuse polygamy and cheat women. There is no need for polygamy in today’s situation. A husband is not able to take responsibility of one wife and children. Then where is the need for another wife and take on a burden which they cannot handle. How can one neglect ones wife and children who are loving you and are dependent on you? How can she be forced to share her life with some one? A lot of duties are assigned to men in Islam. But they are not ready to fulfil it. They use polygamy and ignore and harass the children. This is the worst of practice. It is against Islam. Men should marry once and not destroy women’s life. They should have one wife and take care of the family properly. They are asking Muslim men to read the Quran and try to understand what it is trying to say about polygamy.

 

Mei musalmano mardo se kehna chati hoo ki kisiki majbori ka fayda mat utho apne paiso ke bal per. Un garib logo ke bacho ko padhao aur insaan banao. ‘I would like to tell Muslim men that they should not take advantage of someone’s helplessness just because they have money. Educate the children of the poor and help them turn into decent humans’.

 

Women ask Muslim men to not cheat their wives. One woman whose husband wanted an educated wife and she was not, says, if he wanted an educated wife then he should have married an educated wife. Why cheat her? To sum up, the relationship between men and women appears at an all-time low when one victim says, ‘Never to trust men. They can change anytime!’

 

In Tamil Nadu the women shared that the Jamaats, group of men who believe they know religion better than others, also justify polygamy. They say both women can stay together and while saying this they completely ignore the personal feelings of both women. They support polygamy and destroy the peace of the family. Such Jamaats must put some conditions on men. They must verify all claims and have all relevant documents of the men with them. Muslim women cannot go to the court or police station always. She requests Jamaat leaders to lead the society as per Quran and ensure justice. In istema, waz, kutba [religious congregations and announcements] the religious leaders must give right advice regarding marriage and divorce. They should not give space for men to desert their wife and children.

 

Main kahna chahti hoon ki mere shauhar ko sazaa milni chahiye.’ ‘I want to say that my husband should be punished.’ Overwhelmingly the women want the state to intervene. It is the state’s responsibility to reform the law as per the Quranic rights of women and to stop violence against them. If the leaders do not listen to women, where is the space for women to voice her concerns? The police also tell the woman to go to the Jamaat for any marital dispute but the Jamaat does not listen to the woman.

 

Muslim women say, ‘polygamy should be banned so that lives of women like me and the lives of our children are not spoiled.’ They want the government to put a stop to this practice. There should be a law for monogamy. If he remarries then he should be punished because a woman’s entire life is in trouble. There must be strict laws regarding second marriage. Each woman must get her rights and it is the responsibility of the government.

 

One woman says, ‘What happened with me was wrong. There should be restriction on it. Otherwise women will loose trust over the institution of marriage. Polygamy must be abolished. Not just the husband but whoever is making him do this marriage, must also be punished’. The government must monitor the system and reform laws to save women and children suffering from polygamy.

 

To the larger Muslim community, the respondents of the Study say, women should be given space to express her feelings and her concerns about her future life. Nobody really cares for her. She needs to be given confidence by the society, by the community. She needs to be empowered. If the husband wants to remarry then he must compensate the woman. Where will she go? We are so far away from the court and the government. We need to change ourselves.

Muslim community needs to understand a woman’s soul. Only when they feel her problem, then only the community, government and everyone will come forward to change.

 

Is the community ready to listen to our voice? All suggestions are for women but nobody says anything to the men. This attitude of the community is the problem. We need law but who respects that? What men do becomes a law. Our community elders need to think this, we need strict rules – but are they ready to change?

 

Women in Tamil Nadu say that the larger community must intervene and tell the Jamaat to work in the favour of victims. Muslim community must follow the Quran and legal rights of women to avoid this situation of first wife and children in the name of polygamy. The community must share information about Quranic rights with women and take steps to reform the law in favour of women. They must not harass the women in the name of polygamy.

‘I request the government and the community that each girl should get her rights.’

 See the full report:

https://notionpress.com/read/status-of-women-in-polygamous-marriages-and-need-for-legal-protection

 

 

 

 

POLYGAMY AND MUSLIM WOMEN'S LIVED REALITY

DAY 21 

POLYGAMY 

What have been the experiences of Muslim women with regards to polygamy? 

In a national study involving 289 Muslim women respondents and 50 in-depth case studies:

• Over 50% of the respondents suffer from mental trauma such as depression, self-blaming, lack of                sleep, frequent aches and pains and suicidal tendencies after their husbands’ remarried. 
• 41% had to move to their parent’s home after their husband remarried. 
• 47% of the respondents did not receive any maintenance from their husband after his remarriage. 
• 42% of the women were told by Qazi to adjust with his new marriage as it is allowed in the Shariat. 
• 22% were asked to take khula. 
• 45% of husbands threatened first wife with divorce if she complained against his second marriage. 
• To top it all, 90% of them said that their permission was not taken. 
• In fact 72% came to know about his second marriage through neighbors and friends. 

This is what happens to a victim of polygamy at ground zero. And this hard reality must never be ignored and hushed up. 

What do Muslim women want? 

According to the study mentioned above:

• 84% of Muslim women have stated that polygamy should be made illegal. 

• 73% have said that their husband should be punished for indulging in polygamy. 

In 2015 BMMA published a national study, ‘Seeking Justice Within Family’, on Muslim women’s views on reforms in the Muslim personal law. According to this study:

• 91.7% of 4710 respondents did not want their husband to have another wife while being married to            them. 

• Close to 73% said polygamy should not be allowed irrespective of the first wife’s consent. 83% did            not want polygamy even if the sex ratio favoured it. 

Constitutionally what safeguards does a Muslim women enjoys, or rather should enjoy vis-à-vis the practice of polygamy?

• Article 14 of Indian constitution of right to equality. Allowing men to have more than one wife is not only an affront to her dignity but a blatant violation of Article 14 of the Indian Constitution. 
• Article 15 states that there shall be no discrimination on the basic of religion, race, cast, gender, place of birth. 
• Article 21 states the right to life with dignity is a fundamental right of every individual. 
• Article 25 (2) says that right to freedom of religion is subject to morality public health and other        fundamental rights. 

A Supreme Court judgment looking at bigamous marriage in Khurshid Ahmed Khan vs state of UP and Orissa 9/2/2015, SC 1662/2015 argued that polygamy cannot be seen as an ‘integral part of religion’ and so does not receive constitutional protection under Article 25. It also argued that any law in favour of monogamy did not violate Article 25. Various High Courts have also made this case. Indian Constitution provides explicitly for equality and non-discrimination and protects personal laws insofar as they do not violate these essential articles. 

Is there a common law applicable to all citizens irrespective of religion, vis-à-vis polygamy?

In India all religious communities, majority and minority are governed by their own family laws according to their religious custom, traditions and holy book. At the same time as citizens of the country, all religious communities can also avail of the non-religious laws, for e.g. laws against dowry, rape law, law against domestic violence etc.  

As per the Indian Penal Code polygamy is a criminal offense under section 494. This law prohibits polygamy sentencing the said husband to 7 years of imprisonment. It is non-cognizable, bailable and compoundable. 

The Special Marriage Act, which is like an optional civil code and which governs inter and intra religious marriage also prohibits polygamy. 

What about the other communities in India? What laws govern them? 

If a person chooses to remain within her personal law, then she will be governed by her personal law. Let us look at the personal laws of each community to see what they say about polygamy. 

• The Parsi Marriage and Divorce Act of 1936 prohibits polygamy. Second marriage while the first is still subsisting is null and void. In addition, the law says that the party to indulges in bigamy will be subjected to the penalties of sections 494 and 495 of the IPC which calls for a 7-year imprisonment. 
• Christian Marriage Act says, “neither of the persons intending to be married shall have a wife or husband still living”. Offenders are governed by the IPC 494. 
• The Hindu Marriage Act of 1955 u/s 11 makes bigamous marriages void. Section 17 of the same Act along with IPC 494 and 495 makes it an offence. The Buddhists, Jains and Sikhs are included under this Act. So bigamous marriages for Hindus, Buddhists, Jains and Sikhs are void and penal 

Thus if a person marries more than once under Hindu Marriage Act, Parsi Marriage and Divorce Act, Christian Marriage Act, Special Marriage Act and Foreign Marriage Act, he/she will be punished according to Indian Penal Code.

Is asking for a ban on polygamy not tantamount to disrespecting the Quranic injunctions? 

Three verses from the Quran very clearly support monogamy. 

• Verse 4:3 - “Marry women of your choice, two, three or four”
• Verse 4:3 - “..... but if you fear that you shall not be able to deal justly with them, then only one.”
• Verse 4:129 - “ You are never able to be fair and just as between women, even if it is your ardent                             desire”

These Quranic verses came in a certain context of war requiring polygamy to ensure justice to widows and orphans again in the context of a tribal 7th century Arabia. In today’s day and age of advanced women and human rights, increased gender rights consciousness, polygamy does not ensure dignity of an individual woman as we saw above in the first Q/A

Quran also talks of marriage as a solemn and sacred alliance between two people based on love, mercy, understanding. In a relationship that has other claimants, how can one achieve that Quranic ideal? 

Quran, which is primary source of shariah, is clear when it says that a man can never be just and equal to more than one wife. Polygamy existed before Islam and the Quran restricted it to 4 wives. This was done in order to set the trajectory for reforming this pre-Islamic practice in the direction of justice. If this trajectory had been followed, polygamy would have been abolished by now. 

The universal Islamic values of equality, justice, wisdom and compassion do not match with the unbridled right to polygamy enjoyed by men. Muslim laws, which claim to be shariah compliant cannot ignore these, core Islamic values as well as the contemporary, lived realities of Muslim women. 

What about polygamy in other Islamic countries?

• Tunisia became the first Arab state to formally abolish polygamy in 1956, the same year it gained official independence. In current times, Tunisia is still one of the very few predominantly Islamic nations that has legally banned polygamy.
• 99.8% of the Turkish population is Muslim with the most popular school of thought being the Hanafi school of Sunni Islam. Turkey is a predominantly Muslim nation that has abolished polygamy, which was officially criminalized with the adoption of the Turkish Civil Code in 1926, a milestone in Atatürk's secularist reforms. Penalties for illegal polygamy are up to 2 years imprisonment.
• The population of Tajikistan is 98% Muslim. In Tajikistan, bigamy and polygamy are criminal offences, punishable by fines of up to 80,000 somoni (10,000 US dollars) or a term of imprisonment up to five years. Bigamy was outlawed in 1999 and polygamy was banned in 2008.
• The Uzbeks are Sunni Muslims, and they are considered to be among the most devout Muslims in all of Central Asia. Thus, about three-fourths of the population is Muslim.
• Polygamy is illegal in Uzbekistan (punishable by up to three years imprisonment) and the nation does not provide for polygamous marriages under civil law or customary law.
• As of 1997, 86.3% of Kyrgyzstan were followers of Islam. The Criminal Code of the Kyrgyz Republic provides for two years of imprisonment for polygamy.
• Turkmenistan is 93% Muslim. Polygamy is prohibited by law in Turkmenistan and legal framework does not provide for polygamous marriages under civil law nor customary law. 
• Polygamy is restricted in Algeria, Bahrain, Malaysia, and Morocco and totally prohibited in Tunisia, Turkey, Kyrgyz Republic, Tajikistan and Uzbekistan. And they all happen to be Muslim majority countries. 

What international covenants come in handy for Muslim women in their quest for justice within family? 

India has ratified the CEDAW treaty, which has for its foundational principles, non-discrimination, substantive equality and state obligation. Article 16 of CEDAW says that state must take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. 

Indian state has to fulfill its obligation of making polygamy illegal for the Muslim community to ensure that Muslim women are treated on par with women of the other communities and also that Muslim women must also be treated as an equal citizen. It is the responsibility of the state to ensure that as citizens Muslim women are treated with dignity within their homes. In terms of human rights standards, polygamy is incompatible with fundamental human rights principle of equality between men and women; it contravenes the CEDAW article 1 definition of discrimination, and violates a woman’s right to dignity. The fact that women can be coerced into entering polygamous relationships or existing wives can be coerced into consenting to additional wives violates the free and full consent to marriage provision of numerous human rights instruments. Since a husband be choose to marry multiple women, which can affect the household finances, women in polygamous relationships are denied their equal rights with regard to property under CEDAW article 16 (1) (h)

The practice of polygamy is also in contravention of the SDG 5 which calls for and adopting, strengthening policies and enforcing legislation for gender equality which is one of the 17 Sustainable Development Goals established by the UN in 2015. SDG5 wants to “Achieve gender equality and empower all women and girls.”

So what should be done?

Indian Muslim community in matters of family must be governed by a comprehensively codified Muslim family law, which must abolish polygamy. In the codified law polygamy must be outlawed and IPC 494 must be made applicable to the Muslim community. 

BASED ON THE LIVED REALITIES OF MUSLIM WOMEN, INTERNATIONAL HUMAN RIGHTS STANDARDS, INDIAN CONSTITUTION AND THE QURAN, POLYGAMY IS UNTENABLE AND UNACCEPTABLE. INDIAN STATE MUST ABOLISH IT. 

References:

1. Status of Women in Polygamous Marriages and Need for Legal Protection, A Report by Bharatiya Muslim Mahila Andolan, 2018

2. Seeking Justice Within Family, A National Study on Muslim Women’s Views on Reforms in Muslim Personal Laws, 2015

3. CEDAW and Muslim Family Laws, In Search of Common Ground, Musawah, 2011.

4. Musawah - Knowledge Building Briefs 01