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Final question for MMDA reforms in Sri Lanka: Is the practice of polygamy Islamic?

3 months ago

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By Ermiza Tegal Last month a news report suggested that the final obstacle to placing a bill before Parliament to reform Sri Lanka’s Muslim Marriage and Divorce Act (MMDA) of 1951 (as amended) is the question of whether the practice of polygamy should be permitted or not.  Some claim that polygamy is a fundamental element of the religion and cannot be curtailed and some say it can be permitted under strict conditions. There are also those who believe that it can be completely restricted to respond to the harmful effects the practice of polygamy causes to Muslim women, children, and families as a whole.  I am writing this article to urge, in particular,  the yet unconvinced Muslim reader to consider the possibility that the complete restriction of polygamy is fundamentally consistent with Islam, its jurisprudence, and its values. This approach centres the prevention of harm to Muslim women and children and, more broadly, to Muslim families in Sri Lanka. I will not be making arguments that draw on constitutional guarantees and international human rights law here.   The harms caused by polygamy   In my own experience of advising on Muslim family law disputes, I have come across such profound hurt and harm that has been caused by the practice of polygamy.  I particularly recall an older woman who found out after over 20 years of marriage that her husband had another family, a second wife who was the same age as their daughter. She came to know of the second marriage when she was asked to move out of the home to make way for the second wife.  The woman would recount all the times she sacrificed her comfort for her husband, even during illness, to make ends meet and to ensure he was looked after. The memory of her agony and her questions of disbelief at what was happening to her remain with me. Their daughter too was devastated and felt betrayed. He refused to support either of them. Last year, I was also stunned to witness a mother pleading for maintenance for her seven young children from a father who had several other wives and 20 children in all. The man was refusing to maintain them until the woman and children, who had escaped physical violence at his hands, returned to his residence. She was a victim of the practice of polygamy and a system of justice that did not assist her. The reality is that Muslim women’s organisations in Sri Lanka have been raising their concerns about the harms resulting from polygamy for decades. If one were interested in a typology of harms, some common types of harm are mentioned in the Muslim Personal Law Reform Action Group (MPLRAG) Policy Paper on Polygamy of 2022. I have summarised a few below:
  1. Husbands making threats to wives about taking another wife with the motives of extracting work, obedience, money, and non-consensual physical and sexual activity.
  2. Abandonment of existing wife or wives after the next marriage is contracted.
  3. Failure to maintain the existing wife and children after the next marriage is contracted. Women unable to maintain, provide food, provide security, and ensure proper education for children causes intergenerational harm and loss of opportunity to secure education and employment.
  4. Second and third marriages contracted without registration. Birth certificates of children from such marriages often do not bear the name of their father. This causes problems at schools and loss of inheritance. 
  5. The practice fosters amongst Muslim men the false sense that they do not need to afford Muslim women dignity and respect. 
  6. Loss or erosion of love, affection, kindness, and tranquillity as Islamic virtues of intimate relationships. The practice reinforces a hierarchical power-based relationship rather than one of mutual respect and responsibility, compassion, and security.
Each kind of harm mentioned above often has a devastating impact on the lives of the women and children concerned, leading to tremendous material, social, and emotional suffering. I have also encountered firsthand the inability of our institutions to prevent harm or repair the damage once it is done.   Islamic jurisprudence on polygamy and harm   There is considerable scholarship establishing that the Qu’ran does not recommend polygamy. Those saying that it is an inviolable right of men refer to a phrase underlined below which is actually couched within a verse that ought to be read as a whole. The verse read in full is actually a warning against committing an injustice (and causing harm). Surah an Nisa 4:3, states: “If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, three or four, but if you fear that you shall not be able to deal justly [with your wives], then marry only one ... That will be more suitable, to prevent you from doing injustice.” Read in context, the verse above is a restriction to curtail and introduces fairness and justice for wives at a time when the pre-Islamic social practice of polygamy was unrestricted. It was a Surah (verse) that was revealed after the Battle of Uhud when there was an increase in the number of widows and orphans.  Read in the light of the Sunnah (the practices of the Prophet), the Prophet (peace be upon Him) in fact led a monogamous life with his first wife for over 25 years. Also as narrated by Al-Miswar bin Makhrama, the Prophet (peace be upon Him) forbade his son-in-law, Ali ibn Abi Talib, from marrying another woman unless he first divorced the Prophet’s daughter, Fatima. Polygamy, in fact, has been restricted in a majority of Muslim-majority and Muslim-minority countries precisely because of a recognition of the harm that results from the practice (for more details see the Musawah Policy Brief on Polygamy).  The Grand Imam of Al-Azhar, Sheikh Ahmed El Tayeb, in 2019, is reported to have said that polygamy could be unjust to women and children and thus harmful to society and that a Muslim man who wants to have multiple wives “must obey conditions of fairness”; otherwise, it is forbidden to have multiple wives.    Proponents of polygamy avoid talking about harm   Male-dominated groups speaking on behalf of the Sri Lankan Muslim communities they seek to represent have often defended the practice of polygamy as an important feature of the religion. It is spoken of in terms of a right or privilege to be protected. Reading through the justifications given from time to time, it is regrettable to note that harms experienced by women or children are not acknowledged or dealt with.  Indeed, some of the submissions made to the Justice Marsoof Committee (MMDA Reforms Committee Report, 2018) were alarming in that groups had suggested measures to undermine proposed safeguards for polygamous marriage. The All Ceylon Young Muslim Men’s Association (YMMA) Conference had suggested that even if the Quazi (adjudicator), after an inquiry into an application for a polygamous marriage, did not grant permission for it, that should not affect the marriage if the applicant marries despite the finding.  In an annex to the 2018 proposals by the Justice Marsoof Committee to introduce restrictions, a dissenting position by a group that included representatives from the All Ceylon Jamiyyathul Ulama (ACJU), took the view that since it is deemed that man is capable of deciding for himself whether he could maintain a wife when entering the first marriage, no ‘external screening process’ for subsequent marriages should be necessary. It seems that proposals for greater fairness and justice were met with arguments to support men avoiding accountability within the practice of polygamy. The lack of acknowledgment of harms caused and the avoidance of talking about consent of existing or future wives are an alarm bell.    I will not address in detail the lesser arguments we often hear of:
  1. a) ‘Why abolish it, it is hardly practised’
  2. b) ‘It is a privilege bestowed by God and cannot be removed’ 
  3. c) “If abolished, we will be encouraging adultery.” 
I will only ask: 
  1. a) If it is hardly practised (which is not true), should we still not prevent harm?
  2. b) Where in the Qu’ran or Sunnah has polygamy been described in terms of a right or privilege?
  3. c) Are we putting women, children, and families at risk of harm for the purpose of giving men a ‘respectable’ means of having multiple sexual partners?
By contrast with expedient arguments such as those described above, it is Qur’anic values of love and compassion (‘mawaddah wa rahmah’), serenity (‘sakinah’), kindness (‘ihsan’), human dignity (‘karamah’), consultation and mutual consent (‘tashawur wa taradi’), that which is commonly known to be right (‘ma‘ruf’), and justice, fairness, and equity (‘adl, qist, insaf’), that must all guide our consideration of the issue of polygamy.  I believe that if we truly apply these values today, the only outcome is the complete restriction of the practice.    Strict conditions on polygamy will not prevent harm   It is very likely that the compromise position of strict conditions will not serve to prevent many of the harms I listed at the start of this article. Studies conducted in Indonesia, Malaysia, Turkey, and Nigeria have demonstrated that regulation has been largely unworkable and the systems put in place to impose criteria are often undermined. In Sri Lanka, the proposed officials and mechanisms for the regulation of polygamy will not have the resources nor independence to ensure that there will be a better outcome.     Conclusion   The State has a large role to play when it comes to preventing harm to its citizens. With regards to the non-Muslim reader, there are strong constitutional arguments that can guide their interventions (see the MPLRAG Policy Paper on Polygamy of 2022).  Non-Muslims too have a responsibility not to allow the polygamy debate be used to fuel racist rhetoric or humiliate and to make ‘others’ of their fellow citizens. Lightly said, every religious grouping has some archaic discriminatory practices in their closets that is overdue for reform. The abolition of polygamy does not go against Islam which recognises the inherent risks of harm in polygamous marriage and seeks to prevent these. The call for the abolition of polygamy is consistent with both constitutional law and Islamic jurisprudence and is not a difficult call to heed if one truly cares about ensuring just and kind relationships in the married and family lives of Sri Lankan Muslims. It is vital to have a considered conversation about polygamy within Muslim communities of this country. We really need to cultivate care for those affected and engage in constructive dialogue. We need to stop being suspicious of change, ask questions, and improve the understanding and reasoning in moving towards values of justice. ‘Shariah,’ after all, means ‘the path’. It is a path to achieving the fundamental principles of Islam. (The writer is an Attorney-at-Law in Sri Lanka with LLB and LLM [London], and presently a Visiting Fellow of the Harvard Law School Program on Law and Society in the Muslim World. Please direct all comments to ermiza@gmail.com)   Sources:  
  1. https://www.mmdasrilanka.org/polygamy-in-sri-lanka/
  2. https://www.musawah.org/wp-content/uploads/2021/04/Policy-Brief-3-Ending-Polygamy.pdf 
 

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