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Muslim / non Muslim marriages in Malaysia

Marriages between Muslims and non Muslims is prohibited under


Islamic law, except in certain limited circumstances. Malaysian
Islamic law is even more limited than some other schools of Islamic
law. International human rights norms however suggest that the
prohibition and criminalisation of interfaith marriages is an
unreasonable restriction on the rights of men and women to marry and
found a family.

Islamic law

Under Islamic law, as I understand it, a Muslim woman can only marry
a Muslim man. However, a Muslim man can marry a Muslim woman or a
Kitabiyyah. See for example section 10 of the Islamic Family Law
(Federal Territories) Act 1984:-

Section 10. Persons of other religions.

(1) No man shall marry a non-Muslim except a Kitabiyah.

(2) No woman shall marry a non-Muslim.

A Kitabiyyah is generally regarded as a Person of the Book i.e. a Jew


or a Christian. Traditional commentators discourage marriages
between Muslims and non Muslims, although there is a divergence of
views on when it is allowed and what restrictions are placed on the
general rule above. See for example Abdur Rahman I’ Doi.

Most Malaysian State Syariah legislation, following the Shafie school,


puts a slight gloss on the above rule. The following is the definition of
a Kitabiyyah taken from the FT legislation:-

Kitabiyah means -

(a) a woman whose ancestors were from the Bani Ya’qub; or

(b) a Christian woman whose ancestors were Christians before the


prophethood of the Prophet Muhammad; or

(c) a Jewess whose ancestors were Jews before the prophethood of


the Prophet ‘Isa;
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*Prophet ‘Isa is of course Christ to Christians. As I understand it, Bani
Ya’qub are the descendants of the Prophet Ya’qub (Jacob To the
Christians?), who had 12 sons who formed the 12 tribes of Israel.

(Incidentally, this means only Malayalee Christians in Malaysia – the


Mar Thomites and the Syrian Christians – would probably comply with
this requirement).

Some States do not have this provision at all, instead only allowing
Muslims to marry Muslims. (I recently learnt that Sarawak only permits
a Muslim to marry another Muslim, whether you are a man or a
woman.)

An interesting discussion on this, which also shows this Malaysian


definition of a Kitabiyyah is perhaps unique to the Shafie school can be
seen in the English Court of Appeal decision in U Viswalingam v S
Viswalingam [1980] 1 MLJ 10.

Malaysian civil law

The Malaysian Law Reform (Marriage and Divorce) Act 1976 does not
apply to Muslims (section 3). Hence, in Malaysia there is no means for
a Muslim to marry a non Muslim under the civil law. In fact, the Muslim
who goes through a marriage or even cohabits with a non Muslim runs
the risk of falling foul of a number of offences under State Syariah
criminal law prohibiting fornication (zina) and close proximity
(khalwat).

This position is of course contrasted with the position in India and


Singapore where by the Special Marriage Act of 1958 and the Woman’s
Charter respectively, a Muslim and a non Muslim can lawfully marry. In
both countries, if two Muslims are getting married to each other, their
marriage is solemnised under Islamic law. It is noteworthy that the
famous Bollywood actor Shah Rukh Khan, a Muslim, and his Hindu wife
Gauri have been happily married since 1991.

International human rights norms

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In addition to the protections for religious freedom and equality under
the law, there are specific protections for the human right, in of itself,
to found a family.

For example, the Universal Declaration of Human Rights provides that


“Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at
its dissolution.”: Article 16(1)

Article 23(2) of the International Covenant on Civil and Political Rights


provides that “The right of men and women of marriageable age to
marry and found a family shall be recognized”. Although the Human
Rights Committee of the United Nations in General Comment No. 19
does not explicitly state that this provision requires the State to
ensure the right to persons of differing religions to marry, it does state
that “the right to freedom of thought, conscience and religion implies
that the legislation of each State should provide for the possibility of
both religious and civil marriages.”

It is also interesting that in the USA, the equality clause of the US Bill
of Rights has been held to prohibit the criminalisation of marriages
between difference races: see the US Supreme Court decision of
Richard Perry Loving et. ux v Virginia (1967) 388 US 1, 18 L Ed 2d 1010
(now dramatised in the Hallmark production “Mr & Mrs Loving”). There
does not seem to be any case on interfaith marriages. However, the
current dispute in the US on the legality of same gender marriages and
how it is ultimately resolved will no doubt be of relevance to this issue.

It seems clear, however, based on a simple reading of the provisions of


the UDHR and ICCPR that to restrict the right of two consenting adults
to live together and to found a family merely because of their differing
religions is contrary to the rights of equality under the law, the right of
religious freedom and the right to found a family contained within
international human rights norms.

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Marriage under Muslim Law

INTRODUCTION

In the pre-Islam Arabia, the laws were favourable towards males and
discriminatory against the women. Polygamy had to be accounted for
in a very few blood relationships like in marriage with one’s real
mother or sister. Marriages were of different kinds and divorce was
simple and easy for the man. With absolute rights vested in men and
no checks led to men denying the women their basic rights.
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Islam brought with it a due status for women and regarded them as
dignified members of the society. ‘Nikah’ literally means ‘to tie up
together’ and referred to the Islamic marriage. It is a matrimonial
contract as well as an institution that gives the women a particular
and high status in the society. Nikah was to ensure stability in a
married life as it bound both the partners together for an indefinite
period and also required the woman to be honoured with the mahr.

Islam allows limited polygamy, i.e. four wives at a time. This was
allowed as during the numerous wars during the Prophet’s time in
Arabia, many Muslim men lost their lives. Thus, the women
outnumbered the men. The war-widows and orphans became destitute
as they had no standing in the society and lead miserable lives. In
order to prevent injustice, Quran allows limited polygamy through the
following Ayat: “marry of the women, who seem good to you, two or
three or four, if you fear that you cannot do justice to so many, then
one.”

Justice refers to equal love and affection as well as boarding and


lodging. The Quran has another Ayat that “you will not be able to deal
equally between your wives however much you wish to do so”. Thus, it
can be safely inferred that though Islam permits four wives at a time it
is actually in favour of monogamy. The Motazila Muslims follow
monogamy strictly. But Muslims all over the globe follow the traditions
of the Prophet and practise polygamy.

As per the statistics, Indian Muslims seem to prefer monogamy.


Though they are allowed to have four wives as per the law, the Muslim
government servants require the government’s permission before
contracting the second marriage. Muslim countries like Turkey and
Tunisia have laws for monogamy. Pakistan has discouraged polygamy
by implementing laws that makes it difficult to marry two or more
times.

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DEFINITION

Hedaya says that “Marriage implies a particular contract used for the
purpose of legalising children.

Justice Mahmood has defined the Muslim marriage as “a purely civil


contract”.

NATURE AND CONCEPT OF MARRIAGE

The object of a Muslim marriage is to legalise children and to a large


extent to regulate and validate the sexual relations. Apart from being a
civil contract, it is also a social and religious institution.

LEGAL ASPECT

Legally speaking a Muslim marriage is a contract for it has a few


elements of a contract. The parties have to be competent and offer,
acceptance and free consent form an important part. Within a limit,
the parties can decide the terms of the marriage and in case of
breach; there are provisions for the rights and obligations of the
parties. It can be safely said that marriage is very similar to a
contract.

SOCIAL ASPECT

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Marriage is a social institution and a social method to give an equal
status to women. The dower, which is essential for a Muslim marriage,
provides a security net for the woman in case of need. Limited
polygamy helps raise the woman’s standing and dignity in the society.
By placing prohibitions on the marriage, the relationships of families
can be regulated and the ill effects of in breeding are avoide

RELIGIOUS ASPECT

Marriage is the tradition of the prophet as well as present in the words


of Quran. Thus, a person who marries gets religious benefits and the
abstainer would have committed a sin. In ANIS BEGAM v MOHD.
ISTAFA (1933)55 All, 743, it has been held to be a religious sacrament.

ESSENTIAL OF A VALID MARRIAGE

A marriage is a valid marriage or Sahih only if it is recognised by the


courts to be lawful.

I) COMPETENCE OF THE PARTIES

a) Age of Puberty

For marriage, dower and divorce, the age of majority under the Muslim
law is the age of puberty and not 18 years of age. Though Hedaya says
the minimum age of puberty for a boy is 12 years and for a girl it is 9
years; it has been fixed at 15 years of age by the Privy Council in the
year 1916. Thus, a boy or a girl of 15 years of age will be presumed to
have attained the age of puberty unless the contrary is proved.

Minor’s Marriage

Under Muslim law, a person under 15 years of age is presumed to be a


minor and has no capacity to give consent for marriage. Unless and
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until the guardian’s consent is not obtained the marriage will be void.
Guardians for marriage are different from guardians appointed by the
court. The order of the priority is as follows:

i) Father;

ii) Paternal Grandfather, how ever high;

iii) Brother or other male members of the father’s family;

iv) Mother; and

v) Maternal uncle, aunt or other maternal relatives.

A remoter guardian for marriage can not get the minor married off with
out actually following the prescribed order and such a marriage will be
void.

Shia Law says that only the father or the paternal grand-father how
ever high can be the guardians for marriage.

The Child Marriage Restraint Act, 1929 provides that a child marriage
exists and will be valid but the guardians and others who conduct it
can be punished. A child marriage can be prevented by an injunction.

Option of Puberty (Khyar-ul-Bulugh)

Under Muslim marriage, a minor on attaining the age of puberty can


exercise the option of puberty wherein the minor can approve or
disapprove the marriage contracted by the guardian who is not the
father or the grand father. If he disapproves, the marriage will dissolve
with immediate effect. If the minor says nothing, it will be presumed
that he has approved the marriage. As per the Shia law, a minor has to
approve his marriage upon attaining the age of puberty.

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If the father or the grandfather has contracted marriage fraudulently or
negligently, the minor can repudiate the marriage on attaining the age
of puberty. A wife can exercise the right even if the marriage was
contracted by her father or her grandfather. There can be no
unreasonable delay in the exercise of the option of puberty. The
husband will lose his right to the option of puberty if the marriage has
been consummated. The wife will also lose her right unless the
consummation has taken place when the wife was still a minor and
against her consent.

b) Soundness of Mind

Lunatics can get married during the lucid intervals for they can
understand the consequences. Idiots on the other hand can not do so.
Idiocy refers to an abnormal state of the mind wherein the person can
not understand the consequences of their actions.

Marriage of insane persons

A person can contract a lawful marriage through a guardian. On


recovering reason the said person can repudiate the marriage.

c) Religion of the parties

The parties can marry any Muslim irrespective of sects or sub sects.

Inter-Religion Marriage

Under Sunni law, a male can marry a Muslim girl of any sect/ sub sect
or even a Kitabia girl. A Kitabia female is one who belongs to a
community that originated in a book revealed by the heavens. Thus,
the Jews and the Christians can be wed to a Sunni male. A marriage
with a non-Muslim or non-Kitabia female, the marriage is merely

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irregular. Under Shia law, a marriage with a non-Muslim or a Kitabia
woman is not permitted. However, a Muta marriage may be contracted
with a Kitabia or Parsi female.

Marriage of a Muslim Female with a non-Muslim male

A Muslim female has no right to contract a marriage with a non-Muslim


even if he is a Kitabia or Parsi. Such a marriage will be void.

The Special Marriage Act, 1954 allows any man or woman to get
married to each other whether a Muslim or a non-Muslim. The
succession will be governed under the Indian Succession Act, 1925.

II) FREE CONSENT OF THE PARTIES

If the parties are sane and adults, they can give consent on their own
and the marriage will be a valid one. If the parties or one of them is
either a minor or insane, the consent has to be obtained by the
guardian. The consent will be deemed free when it is made at will and
given voluntarily and not under any coercion or fraud.

Coercion is when the party is made to consent under the threat of


harm to self or a loved one. All sects and schools render a marriage

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under coercion to be void. The Hanafi School is the only exception. It is
believed in the school that three things can not be undone ever even if
committed as a joke. The three things are marriage, divorce and taking
back.

Fraud refers to a dishonest concealment of facts or presentation of


false facts or statements to obtain consent. The moment the party
whose consent was obtained by fraud comes to know of such fraud, he
or she may accept the marriage as a legal one or altogether reject it.

Mistake of Fact is when the parties agree but not on the same thing.
Consent refers to the meeting of the minds on the same issue. Where
the identity of the bride to be, for example, is mistaken, the marriage
will be void.

III) FORMALITIES IN THE MARRIAGE

Under Muslim law, religious ceremonies are not essential for validating
a marriage. The only essential formalities are that of offer and
acceptance.

Offer and Acceptance

Offer or Ijab signifies the willingness of a party to contract marriage


with another. The offer comes in form of a declaration from the boy or
his guardian. This offer has to be accepted by the girl or her guardian.
This is referred to as acceptance or Qubool. Though no specific form
exists, the words must show the unequivocal intention of the parties
orthe guardians to marry the parties. It may be oral or written. When
written down, it is referred to ass the Kabinnamah.

It is essential that the offer and acceptance occur at the same sitting.
Thus, simultaneous actions must become a joint whole. For example,
the groom to be has to send the offer through another. The bride must

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accept it in presence of others and then the marriage will be a valid
one.

Reciprocity is another important aspect. The acceptance has to be for


the proposal word to word, as it is and without any variations.

Conditional or Contingent Marriage is void even if the event that they


are made dependent upon does in fact occur.

Presence of Witnesses is not essential under the Shia law. Under the
Sunni law, the offer and acceptance needs to two competent
witnesses. A Muslim male who is of sound mind and has attained the
age of puberty is a competent single witness. Two sane Muslim
females who have reached the age of puberty can also be treated as
competent witnesses. Thus, two Muslim women along with a
competent Muslim male witness will be regarded as competent
witnesses for the marriage. Four females will not be regarded as
competent witness. The term ‘witnesses’ does not refer to any one
specifically asked or invited for this purpose only.

Registration under Muslim law is not essential for the validity of the
marriage. But certain enactments provide for registration in the
matters of marriage as well as divorces. The acts do so because then
there exists a proof of the marriage. But even then the registration is
optional only and not mandatory. It has also been held in a few cases
that if the community custom requires registration, even if it is in a
different format, the marriage has to be registered then. Under the
Indian Christian Marriages Act, 1872, the registration of marriage will
be essential if the marriage is between a Muslim and a Christian.

IV) ABSENCE OF PROHIBITION

Prohibition refers to the impediments or restrictions placed on a


person with respect to another person or an action. The Muslim law
provides that the marriage should not be a marriage against Islam or
have any other impediments to it. Absence of prohibition refers to the

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freedom to marry a person for they do not stand in a particular
relationship to each other. For example, a father cannot marry his own
daughter.

Absolute Prohibitions

They are mandatory and have to be followed or else the marriage will
be void. If a person is within the prohibited relationship of the other
party, the marriage cannot take place.

Whether a person is within the prohibited relationship or not can be


decided on the following basis:

a) Consanguinity is relationship by Blood.A Muslim cannot marry


one’s own descendant, however high or descendents of one’ father or
mother no matter how low. Similarly brothers and sisters of one’s
ascendants howsoever high can not be married to. However, there is
no prohibition in the marriage of cousin brothers or sisters.

b) Affinity refers to relation by marriage. A Muslim can not marry the


ascendant or descendant of one’s spouse or the spouse of one’s
ascendant or descendant.

c) Fosterage refers to the relationship of nurture and feeding. A child is


breast fed during its infancy. If the person providing the feeds is
someone other than the biological mother, the infant or child will still
stand in a prohibited relationship with her.

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Relative Prohibitions

Where the compliance is not mandatory but non-compliance will be


frowned upon. Any marriage in violation will be only irregular and not
void. As per Shia law, the marriage will be either perfectly valid or void
and not irregular.

a) Unlawful Conjunctions

A Muslim can not have two wives at the same time if the wives are
related to each other in a way that would have made their marriage
void if they had been of opposite sex. As per the Sunni law, a marriage
against this condition is irregular. The Shia law will treat violation as a
void marriage. The only exception will be if the marriage is with the
wife’s consent.

b) Marriage with the fifth wife

If a Muslim man has more than five wives, it is merely irregular with
respect to the fifth wife. If he divorces a wife or a wife dies, the
irregularity will be removed with respect to the fifth wife.

c) Marriage with a non-Muslim has been discussed early on in the


chapter.

d) Marriage without witnesses is irregular as per Sunni law.

e) Marriage during Iddat is irregular as per the Sunni law and void as
per the Shia law.

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Iddat refers to the period that a woman undergoes after divorce or the
death of her husband. It literally means counting. This period is
essential to ascertain whether the wife/widow is pregnant or not.
During this time, the woman leads a simple and chaste life. The
circumstances where she has to observe Iddat and how are as follows.

1) Dissolution of Marriage by divorce

If the marriage was a valid one and consummated, the duration of


Iddat is three monthly courses. The marriage could have been
dissolved through Talaq, Ila, Zihar or under the Dissolution of Muslim
Marriage Act, 1939. If the woman is pregnant, the period of Iddat
extends till the delivery or abortion of the foetus. If the marriage has
not been consummated, the woman is not required to observe Iddat.

2) Divorce of marriage by the death of the husband

If the marriage was a valid one, the period of Iddat extends up to 4


months and 10 days irrespective of the fact whether the marriage was
consummated or not. If the woman was pregnant at the time, the
period of Iddat is on till the delivery or the abortion or the earlier
specified period, which ever is longer.

3) Death if husband during divorce Iddat

If the husband dies during the divorce Iddat, the wife has to start a
fresh Iddat of 4 months and 10 days from the date of death of the
husband.

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4) Commencement of Iddat

The period of Iddat starts from the date of divorce or death and not
from the date of the wife receiving a notice of the same. Thus, if the
wife gets the notice of such an even after the specified period of Iddat
has expired, she does not have to observe Iddat.

Under Shia law, Iddat need not be observed if the wife is past the
childbearing age or if she has not even attained puberty.

Valid Retirement refers to when a couple spends time together in


private and there is no moral, social or legal restriction in their
intercourse. As per Sunni law, a valid retirement raises the
presumption of consummation of the marriage. Thus, Iddat will have to
be observed even if there was no actual consummation but a valid
retirement has been proved. Shia law does not recognise the concept
of valid retirement.

Husband is prohibited from remarrying during iddat if and only if he


already has four wives. Thus, he can not marry another woman till the
iddat period is over. In case, such a marriage does take place, it will be
merely irregular and not void.

Miscellaneous Prohibitions

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a) Marriage during pilgrimage is void as per Shia law only.

b) Rule of Equality refers to the society’s prohibition on marriage


wherein the husband and wife must be of the same standing and equal
therefore. The marriage in violation of this rule can be invalidated by
the Qazi. The Shia law does not recognise this rule.

c) Re-marriage between the divorced couple is allowed provided a


procedure if followed. The divorced wife has to marry another man
fulfilling all the requisites of a valid marriage. The marriage has to be
consummated. Then the present husband has to divorce her voluntarily
and the wife has to observe Iddat. Then she may marry her first or
former husband. If the procedure is not followed, the marriage will be
merely irregular.

d) Polyandry is not permitted and the second marriage will be void


under Shia and Sunni law.

KINDS OF MARRIAGE

Valid Marriage or the Sahih Marriage

Under all schools of Muslim law, the basic requirements have to be


fulfilled, i.e. the parties are competent, the consent of the parties is
free consent and the offer and acceptance has been duly made.
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Legal Effect of a Valid Marriage

i) The co habitation of the parties becomes lawful and not


immoral;

ii) The children born to a lawfully wedded couple are legitimate


and can inherit accordingly;

iii) For the couple itself, mutual rights of inheritance arise;

iv) The wife can claim dower and has a right to maintenance
and simultaneously the obligation to observe Iddat is bestowed upon
her;

v) Prohibited relations are created due to the marriage;

vi) The legal identity or status of a Muslim woman does not


blend in with her husband’s identity after marriage; and

vii) The parties have rights to regulate the movements of each


other but they can not refrain each other from maintaining a
relationship with their respective families or visits to then.

Void Marriage or the Batil Marriage

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It is an illegal union that exists not in law. Thus, a marriage in violation
of absolute prohibitions or polyandry is a void marriage. Shia law
provides a few additional grounds like marriage during a pilgrimage or
marriage with a non-Muslim or a woman observing Iddat.

Legal Effects of a Void Marriage

No mutual rights or obligations are created for the parties in this


union. The children born to such a couple are deemed illegitimate and
the wife has no rights to dower or maintenance. The parties can
actually marry any one they wish for this marriage does not exist in
law or in fact.

Irregular Marriage or Fasid Marriage

An incomplete marriage where the deviation from procedure or a flaw


can be removed, it is called an irregular marriage. For example, the
marriage with the fifth wife or with a woman observing Iddat will be
treated as an irregular marriage.

Legal Effects of an irregular Marriage

The cohabitation is lawful and the children are legitimate and can
inherit the properties of their parents. Mutual rights of inheritance do
not arise. After consummation only, can the wife claim dower. The wife
does not have to observe Iddat if the marriage is not consummated.

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Temporary marriage or Muta Marriage

It is a unique form of marriage recognised only under the Ithna Asharia


School. It is a union for a particular time only with consideration as a
pre-requisite. The roots can be traced back to the early Arabia, where
men had to travel long and far. To confer legitimacy on the offspring
produced during the travels, the Prophet allowed this Muta or
enjoyment marriage for some time. Later, he prohibited it absolutely.

It is essential that the parties must be competent to contract marriage


because the guardians cannot contract for a Muta marriage. The
Muslim male can contract Muta marriage with a Muslim,

Kitabia or Parsi woman but the Muslim woman can contract the same
only with Muslim men. Any number of Muta wives can be contracted
with.

The formalities of free consent, offer and acceptance as well as


absence of prohibition have to be followed. The dower must be
specified at the time of marriage otherwise the marriage will be
deemed void. The duration of the Muta marriage must be specified or
else it will be deemed as a permanent marriage.

Legal Effects of Temporary Marriage

The cohabitation between parties becomes lawful and consequently


even the children are legitimate children. There will be no mutual
rights of inheritance between the husband and wife. The husband has
to pay the whole dower amount if he leaves without finishing the
duration of the marriage. If the wife were to leave before the expiry of

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the specified time, the husband can deduct a proportionate amount
from her dower.

Maintenance is not available to the wife as a right. There is no divorce


in Muta marriages. It ends on the prescribed time or departure of one
of the parties. Iddat has to be observed for two months if the marriage
has been consummated, else it is not needed. If the marriage
dissolved due to death, 4 months and 10 days is the iddat period.

Marriage Agreements are allowed under Muslim law. Even subsequent


to the marriage, a couple can enter into an agreement for regulation of
their relationship. If the guardians have made such agreements when
the parties are not competent to do so, the agreement will be binding
on them. Any agreement working against Islam is void. For example a
marriage agreement wherein the wife is not allowed to claim her
dower or the couple can stay separately without any reasonable cause
would be illegal.

Marriage agreements are binding on the parties as long as they are


legal. For example an agreement wherein the husband can not
contract another marriage during the subsistence of the first is a valid
agreement. Similarly, an agreement stating that the husband shall not
stop the wife from receiving her relatives at his house at any time is
also valid.

Breach of a Marriage Agreement if the agreement was a valid one


gives rise to rights of refusal for restitution, dower related rights and
in extreme scenarios, dissolution of the marriage.

RESTITUTION OF CONJUGAL RIGHTS

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Restitution of conjugal rights refers to giving back the right to one
party to stay with the spouse. As a couple is entitled to stay together
and enjoy each other’s company, if one spouse stays away without
reason, the other can file a suit to move back with the aggrieved party.
The courts have to look into the circumstances of each case and then
decide. A wife can claim defences against her husband’s claim as
given below:

a) He falsely accused her of adultery;

b) Her prompt dower was not paid on demand;

c) The husband has been expelled from the caste;

d) Cruelty, physical or emotional, by the husband; and

e) Husband converted from Islam to another religion or used


objectionable words against the Prophet, etc.

The Dissolution of Muslim Marriages Act, 1939 has widened the


defences even more.

POLYGAMY IN ISLAMIC LAW

1. Introduction:

Like Judaism and Christianity, (See, Footnotes No. 2,3,4 and 5) Islam
does not provide an explicit prohibition of polygamy (more correctly
polygyny).

Unlike Judaism, Christianity and perhaps other religions as well, Islam


deals with the issue more clearly and provides certain legal

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requirements and restraints that amount to the discouragement of
such a practice.

The reason for not prohibiting polygamy categorically is perhaps due


to the fact that there are certain conditions which face individuals and
societies in different places and at different times, which make the
limited practice of polygamy a better solution than either divorce or
the hypocritical pretence of morality.

Our present day feelings about what is “tasteful” or “distasteful” are


something we cannot force on all people everywhere, at all times and
under all conditions, unless it is a question of a law coming from God.
This leads to the following question.

2. Is Polygamy immoral Per se?

To shorten the discussion, let us begin with the assumption that


religions are acceptable sources of “morals”. Let us also select two
religions (Judaism and Christianity) which are the closest to Islam, in
order to see where they stand on that issue.

a. In Judaism: It is notable that most of the Old Testament Prophets


were polygamous. According to the Old Testament, Abraham “the
friend of God” had more than one wife, David had one hundred wives,
and Solomon is even said to have had 700 wives and 300 concubines.

If polygamy is immoral per se, then these and other leading figures in
the Biblical traditions are immoral. In this case, there would be no
sanctity attached to the Bible, its Prophets, or its teaching! No sincere
Jew, Christian, or Muslim would regard God’s chosen Messengers as
immoral persons!

The Dictionary of the Bible states

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Polygamy meets us a fact: e.g. Abraham, Jacob, the Judges, David,
Solomon……In Deuteronomy 17:17, the king is warned not to multiply
wives; later regulations fixed the number at eighteen for a king and
four for an ordinary man. (Dictionary of the Bible (James Hasting
Editor), Revised Edition, Charles Scribner’s Sons, N.Y., 1963, p.624)

The philosophy behind the legalization of polygamy is explained in the


Encyclopedia Bibilica:

The man who owns his wife as a chattel can on the same principle
own as many as he pleases that is to say, as many as he can afford to
buy and keep….The Talmudists formulate the rule that no Jew may
have more than four wives, kings may have at most eighteen.
Encyclopedia Biblica (Rev T.K. Cheyene, and J.S. Black, Editors), The
Macmillan Co., London, 1902, vol.3, p. 2946.)

It was only at the beginning of the eleventh Century! (about four


centuries after the advent of Islam) that polygamy was expressly
prohibited in Jadaism. According to Westermarck:

Among European Jews ploygyny was still practiced during the Middle
ages, and among Jews living in Muhammadan countries it occurs even
to this day. An express prohibition of it was not pronounced until the
convening of the Rabbinical Synod at Worms, in the beginning of the
eleventh century. This prohibition was originally made for the Jews
living in Germany and Northern France, but it was successively
adopted in all European countries. Nevertheless, the Jewish Marriage
Code contained many provisions which originated at a time when
polygyny was still legally in existence.(Westermarck, Edward A., The
History of Marriage, (5th Edition Rewritten), Macmillan and co. Ltd.,
London, 1925, vol. III, pp. 42-43.)

b. In Christianity: As the Old Testament is a vital part of the Christian


faith, it cannot be disregarded in this discussion. It was concerning the
Old Testament laws and the Old Testament Prophets that Jesus (P.)
said plainly that he came not to destroy the Law or the Prophets but
rather to fulfill. In addition, there is no passage in the New Testament

24
that clearly prohibits polygamy. This was the understanding of the
early Church Fathers and for several centuries in the Christian era.

Westermarck, the noted authority on the history of human marriage


states:

Considering that monogamy prevailed as the only legitimate form of


marriage in Greece and Rome, it cannot be said that Christianity
introduced obligatory monogamy in the Western World. Indeed,
although the New Testament assumes monogamy as the normal or
ideal form of marriage, it does not expressly prohibit polygyny, except
in the case of a bishop and a deacon. It has been argued that it was
not necessary for the first Christian teachers to condemn polygyny
because monogamy was the universal rule among peoples in whose
midst it was preached; but this is certainly not true of the Jews, who
still both permitted and practiced polygyny at the beginning of the
Christian era.

Some of the Fathers accused the Jewish Rabbis of sensuality, but no


council of the Church in the earliest centuries opposed polygyny, and
no obstacle was put in the way of its practice by kings in countries
where it had occurred in the times of paganism. In the middle of the
sixth century Diarmait, King of Ireland, had two queens and two
concubines. Polygyny was frequently practiced by the Mervingian
kings. Charles the Great had two wives and many concubines; and one
of his laws seems to imply that polygyny was not unknown even among
priests. In later times Philip of Hesse and Frederick William II of
Prussia contracted bigamous marriages with the sanction of the
Lutheran clergy. Luther himself approved of the bigamy of the former,
and so did Melachthon. On various occasions Luther speaks of
polygyny with considerable toleration. It had not been forbidden by
God; even Abraham, who was a “perfect Christian”, had two wives. It is
true that God had allowed such marriages to certain men of the Old
Testament only in particular circumstances, and if a Christian wanted
to follow their example he had to show that the circumstances were
similar in his case; but polygamy was undoubtedly preferable to
divorce. In 1650, soon after the Peace of Westphalia, when the
population had been greatly reduced by the Thirty Years’ War, the

25
Frankish Kreistag at Nuremberg passed the resolution that thenceforth
every man should be allowed to marry two women. Certain sects of
Christians have even advocated polygyny with much fervor. In 1531 the
Anabaptists openly preached at Munster that he who wants to be a
true Christian must have several wives. And the Mormons, as all the
world knows, regard polygyny as a divine institution.

3. WHAT IS THE LEGAL STATUS OF POLYGAMY IN ISLAM?

The verse which allows polygamy “was revealed after the battle of
Uhud in which many Muslims were killed, leaving widows and orphans
for whom due care was incumbent upon the Muslim survivors.(Abd Al-
Ati, Hammuda, Islam in Focus, The Canadian Islamic center, Edmonton
Alberta, Canada, 1963, p.103.)

The translation of the verse is as follows:

If you fear that you shall not be able to deal justly with the orphans,
marry women of your choice, two, or three, or four; but if you fear that
you shall not be able to deal justly with them), then (marry) only one….
(Qur’an 4:3)

From this verse a number of facts are evident:

That polygamy is neither mandatory, nor encouraged, but merely


permitted.
That the permission to practice polygamy is not associated with mere
satisfaction of passion. It is rather associated with compassion toward
widows and orphans, a matter that is confirmed by the atmosphere in
which the verse was revealed.
That even in such a situation, the permission is far more restricted
than the normal practice which existed among the Arabs and other
people at that time when many married as many as ten or more wives.
That dealing justly with one’s wives is an obligation. This applies to
housing, food, clothing, kind treatment. etc., for which the husband is
fully responsible. If one is not sure of being able to deal justly with
them, the Quran say: “then(marry) only one.”
(Qur’an 4:3)
This verse, when combined with another verse in the same chapter,
shows some discouragement of such plural marriages. The other verse
plainly states:

26
“You are never able to be fair and just as between women even if it is
your ardent desire…” (Qur’an
4: 129)

The requirement of justice rules out the fantasy that man can “own as
any as he pleases.” It also rules out the concept of “secondary wife,”
for all wives have exactly the same status and are entitled to identical
rights and claims over their husband. It also implies, according to the
Islamic Law, that should the husband fail to provide enough support for
any of his wives, she can go to the court and ask for a divorce.

The verse says “Marry,” not kidnap, buy, or seduce. What is “marriage”
as understood in Islam? Marriage in Islam is a civil contract which is
not valid unless both contracting parties consent to it. Thus no wife
can be forced or “given” to a husband who is already married.
I is thus a free choice of both parties. As to the first wife:

She may be barren or ill and see in polygamy a better solution than
divorce.
She may divorce him (unilaterally) if he is married to a second wife
provided that the nuptial contract gives her the right of unilateral
divorce (Ismah).
She can go to court and ask for a divorce if there is evidence of
mistreatment or injustice inflicted upon her.
But if polygamy is discouraged and loaded with such constraints,
could it have been better if the Quran simply forbade it? To answer this
question, we may have to raise another one:

4. CAN POLYGAMY BE A BETTER SOLUTION IN SOME CASES?

Scholars in the past and at present, Muslims and non-Muslims, have


consistently pointed out such cases. The following are a few examples
which are tied in with the general approach of Islam to individual and
social problems.

a. Individual cases:

1. A man who discovers that his wife is barren, and who at the same
time instinctively aspires to have children and heirs.

In a situation as this, the man would either have to:

27
-Suffer the deprivation of fatherhood for life.

-Divorce his barren wife and get married to another woman who is not
barren.

In many cases, neither solution can be considered as the best


alternative. Polygamy would have the advantage of preserving the
martial relationship without depriving the man of fathering children of
his own.

2. A man whose wife becomes chronically ill would have one of


possible alternatives:

-He may suppress his instinctive sexual needs for the rest of his life.

-He may divorce his sick wife at the time when she needs his
compassion most, and get married to another woman, thus legally
satisfying his instinctive needs.

-Or he could compromise by keeping his sick wife, and secretly take
for himself one or more illicit sex partners.

Let us discuss these alternatives from the point of view of the Islamic
teachings. The first solution is against human nature. Islam recognizes
sex and sexual needs and provides for legitimate means for their
satisfaction. The second solution is clearly less compassionate,
especially where there is love between the two parties. Further more
divorce is described by Prophet Muhammad (P) as the “permitted thing
which is hated most by God.” The last solution is plainly against the
Islamic teachings which forbid illicit sexual relations in any form.

To sum up, Islam being against immorality, hypocritical pretense of


morality, and against divorce unless no better solution is available,
provides for a better alternative which is consistent with human
nature and with the preservation of pure and legitimate sex

28
relationships. In a situation like this, it is doubtful that any solution
would be better than polygamy, which is, after all, an optional solution.

b. Social cases

Anthropologists tell us that among various tribes and societies,


polygamy is a social and economic necessity. In some very poor areas,
the infant morality is very high. Children on the other hand, are a
source of additional labour for the earning capacity of the family. To
have more children under such situations would require the practice of
polygamy. It is by this very reason Christian missionaries in some
African regions justified their permission to local people to practice
polygamy without being excommunicated from the church. One
researcher has even found, through his studies that women in such
societies not only accept polygamy, but some of them even prefer this.
(See for example Campbell, D., In the Heart of the Bantuland, Seeley,
service and Co.,Ltd., London, 1922, p. 160, and Cory H., Sukuma Law
and Customs, Oxford University Press, N.Y., 1953, p.52.)
Aside from cases where women outnumber men, devastating wars, in
the past and at present, have taken their roll mainly among men. The
result is not simply more women who cannot find husbands, but even
more widows who may aspire to a respectable family life. In such a
situation, if polygamy is bad, the limitation on polygamy is even far
worse.

Both unmarried women and widows are human beings. Unless their
instinctive needs are legitimately satisfied, the temptation is great for
corruption and immorality. But aside from the moral question these
women are also exploited. They are used as tools for men’s pleasure,
yet have no guarantees, no rights or security, financial or emotional.
Should they become pregnant, it is their burden alone. But even if such
women are ready to pay the price for this personally, society also
suffers seriously from such situations. The increasing number of
illegitimate children born today under conditions such as these
provides a potential base for tomorrow’s maladjusted and even
criminals. Further more it is inhuman, humiliating for those children to
grow up without knowing who their fathers were and without enjoying
a lean and normal family life.

One question remain:

29
5. WHY NOT POLYANDRY (PLURALITY OF HUSBANDS FOR THE SAME
WOMAN)?

It is evident that the nature of women is physiologically and


psychologically different from that of men. Psychologically speaking,
the woman is monogamous by her very nature. Furthermore, in all
cultures, new and old, the headship of the family, is normally man’s.
One can imagine what would happen if the family had two or more
heads. Furthermore, if the woman is married to more than one
husband, which would be the father of her children?

CONCLUSION

It is now evident that the association of “polygamy” with Islam is not


only unfair or biased but based on serious misunderstanding. Polygamy
was practiced, often without limitation, in almost all cultures. It was
sanctioned by various religions, and practiced both before Islam and
for many centuries thereafter. It is presently practiced, though
secretly, by the Mormons, (It is estimated that is Utah alone over
30,000 middle-class Mormon Americans secretly cling to the practice
of plural marriage. The Mormon church accepted the principal of Plural
Marriage as a revelation from God. It was widely adopted after
Brigham Young led the Mormons into their “Promised Land”—the
Territory of Utah, in 1847. In 1890, however, after polygamy was
outlawed a Federal statue, Church funds and property were
confiscated. This apparently led the Church to issue a manifesto
banning plural marriage. Church President Wilford Woodruff later
declared the manifesto had been divinely inspired. For a first-hand
report on the practice of polygamy in the U.S.A. as late as 1967, see
Ben Merson, “Husband with More than on Wife.” In Journal, June
1967,esp. p. 78) and it is allowed by Christian missionaries in Africa
and other areas where polygamy is a social necessity.

It is both honest and accurate to say that it is Islam which regulated


this practice, limited it, made it more humane, and insisted equal
rights and status for all wives. What the Qur’anic decrees amount to,
taken together, is a discouragement of polygamy unless necessity for
it exists.

30
It is also evident that the general rule in Islam is monogamy and not
polygamy. However, permission to practice limited polygamy is only
consistent with Islam’s realistic view of the nature of man and woman
and of the various social needs, problems, and culture variations.

The question is, however, far more than the inherent flexibility of Islam;
it also is the frank and straightforward approach of Islam in dealing
with practical problems. Rather than requiring hypocritical and
superficial compliance, Islam delves deeper into the problems of
individuals and societies, and provides for legitimate and clean
solutions which are far more beneficial than would be the case if they
were ignored. There is no doubt that the second wife legally married
and treated kindly is better off than a mistress without any legal rights
or security. There is no doubt also that the legitimate child of a
polygamous father, born in the “full light of the day”, and who enjoys all
the rights and privileges of a son or daughter, is far better off than the
wanted or unwanted illegitimate child (especially if it is a girl).

It is fair also to say the polygamy may be harmful in many respects.


Islam, however, does not regard polygamy as a substitute for
monogamy. Realizing its disadvantages Islam allows it under strict
conditions and when no better alternative is available. This is actually
consistent with a general rule in Islamic Law, “The Lesser of two
evils.” This means that if a harm is certain, and if there is no way to
avert such harm unless some other harm is done, then it is better to
cause the lesser harm in order to avoid the greater. It is like a captain
who gets rid of the ship’s freight in order to save the lives of the
sailors.

The vitality, flexibility, and far-sightedness of the teachings of Islam


cannot possibly be attributed to any man or group of men, including
Prophet Muhammad (P) himself. Its secret simply lies in its Divine
Source, God Most high, who knows in entirety what human needs and
problems are.

31
Man can reject the guidance of God, become his own god, and
establish his own standards of morality. Ultimately, however, he may
discover the mirage that alluded him. A few honest questions finally:
What is the situation in countries which banned polygamy? Do they
really enjoy sincere and faithful “monogamy?” What is the degree of
cohesion of the family? Is there any significant number of mistresses,
“Sweethearts”, and illegitimate children? How observant are married
men and women of the strict “monogamous” relationship? Are infidelity
and secret extramarital sexual relationships more moral than the
legitimate, legally-protected husband-wife relationships, even under
polygamy if there is a pressing need for it? Which of the two situations
is best?

After all, Islam by its very nature, is a universal religion which is


revealed by God guide people in all places and at all times.

The guidance can hardly be secured by avoiding issues and problems,


which are real, even as they are relevant to human life on earth with
its diversity. Hypocrisy, apology, or burying one’s head in the sand are
hardly realistic means of achieving righteous human life. They are not
effective in achieving moral upliftment either!

------------------------------------
DISSOLUTION OF MARRIAGE
Divorce (Talaq)

Relevant Question on this Topic:-


Define Talaq? What are the different modes of pronunciation of Talaq?
What is Talaq and what are the essentials of Talaq?
32
What is Divorce please compare Divorce with Khula?

INTRODUCTION

Ø Divorce in legal sense means the dissolution of marriage tie of


husband and wife.
Ø Talaq in its original sense means rejection but under Islamic Law
it is released from marriage tie either immediately or eventually.

DEFINITION OF TALAQ

i) According to Prophet (S.E.W)


“Talaq is the exercise of absolute power of pronouncing unilateral
divorce on his wife by the husband.”
ii) According to Jamal J.Nasir
“The dissolution of a valid marriage contract forth with or a latter date
by the husband, his agent or his wife duly authorized to do so using the
word ‘Talaq’ a derivative or a synonymy three of “

CAPACITY FOR TALAQ

FORMALITIES OF TALAQ

iii) Oral Talaq


iv) Written Talaq
v) Talaq By Signatures
vi) Oral Talaq by express words and proof of intention
In Shia law, Talaq should be pronounced in Arabic

Case Law: Rashid Ahmad Vs. Anisa Khatoon AIR (1932)

Held that Talaq may be pronounced by clear words denoting Talaq and
in this case intention be immaterial.
vii) Presence of Witness
viii) Presence of Wife not required
ix) Communication of Talaq
x) Acknowledgement of Talaq

FORMS OF TALAQ

33
Talaq-al-Sunnah Talaq-al-Bidda

Talaq Ahsan Talaq Hasan Talaq Single irrevocable


TalaqTripple irrevocable

A) TALAQ-AL-SUNNAH
Ø Talaq according to sunnat i.e, the tradition of holy Prophet (s.a.w)
Ø In this type of pronouncement of Talaq is revokeable.
i) Talaq Ahsan
This mode of Talaq consist of a single pronouncement of divorce made
during the period of purity and then is waiting time (iddat).
When the ‘iddah’ is passing husband has two alternatives either to
reconcile with her honorably before the end of the iddah or to free her
and part with her in kindness by the end of iddah.
Requirements of Talaq Ahsan
Consummated Marriage
Single pronunciation
Pronouncement must be made during Tuhr
Pronouncement only in oral divorce
No consummation during iddat.
Talaq Hasan
‘Hasan’ means good or proper. This mode of Talaq is consisted of three
pronouncements during three consecutive periods of purity

Requirements of Talaq Hasan


a) Consummated Marriage
b) Three pronouncements of Talaq

REVOCATION OF AHSAN & HASAN TALAQ

In case of Ahsan Talaq


If husband expresses to his wife that he wants to retains her before
the expiration of the period of iddat.

In case of Hasan Talaq


It can be revoked by not making the third pronouncement of Talaq.

34
B) Talaq-ul-Bida
Biddat means sinful.
Reference Case: Ahmed Giri Vs. Mst. Bigha AIR (1955)
It was held that this is the form of Talaq in which the pronouncement
of Talaq is irrevocable under Islamic Law. This type of Talaq is not good
but valid U/Muhammadan Law.

Single Irrevokable Talaq


If the husband say to his wife “ I divorce you irrevocably” It is enough
and irrevocable Talaq.
Tripple Irrevokable Talaq
If husband says to his wife I divorce you, I divorce you, I divorce you or
says only that “ I divorce you thrice” is sufficient & irrevocable.
C) OTHER FORMS OF TALAQ
i) Implied Talaq
Where no clear words of divorce are used but intention to divorce is
proved.
ii) Illa or Conditional Talaq
Where husband who has attained the age of majority, sound mind says
that he divorce his wife
Zihar
If the husband compares his wife to any other female within prohibited
degree the wife has right to refuse to continue with him until he has
performed penance.
Penance for Zihar
Freeing of Slaves
Fasting for 2 months
Feeding 60 poor persons

Lian

Where a husband charging his wife adultery & the charges is false &
the wife is entitled to sue for it & obtain divorce.

DIFFERENCE BETWEEN KHULA & TALAQ

35
xi) Desire of separation
xii) Consideration
xiii) Acceptance/Consent
xiv) Right of wife

Dissolution of A MUSLIM Marriage

Introduction:
According to Ameer Ali
A valid Mohammedan marriage can be dissolved chiefly through:
Apostasy of either of the spouses; or
By the death of either husband or wife; or
Through divorce initiated by either wife or husband; or
By the exercise of option of puberty.
Condition precedent for Dissolution of Marriage according to Shariah:

There must be valid contract of marriage


*
GROUNDS FOR DECREE FOR DISSOLUTION OF MARRIAGE:
*QURAN: 2:229

“If you fear that the two of you may not be able to keeps the limits
ordered by Allah, there is no blame on either if they redeem
themselves from marriage tie”.

3. JUDICIAL DIVORCE:
a)**** BY WIFE: SEC 2 DMMA 1939
*
*

1.**** Absence of Husband


2.**** Failure to Provide for Maintenance
3.**** Polygamy of Husband
4.**** Imprisonment of Husband
5.**** Failure to Perform Marital Obligations
6.**** Impotency of Husband
7.**** Insanity of Husband
8.**** Leprosy or a Virulent Disease
36
9.**** Option of Puberty
10. Li aan
11. Cruelty
12. Husband is Temperamentally Incompatible
13. Separated for over a year
14. Apostasy
15. Any Other Ground
*
1. Absence of Husband: Sec.2 (i)
*
************************** If whereabouts of husband is not known for
3 years or more, the wife can apply for divorce through Court.
*
Provided:* Decree to take effect after 6 months of its pronouncement.
*
2. Failure to Provide for Maintenance:* Sec.2 (i)
*
********************* If the husband neglected to provide maintenance
to his wife without any reasonable cause for the period of 2 years she
has the right to go to Court to apply for divorce.
*
3. Polygamy of Husband: Sec.2 (ii) a
*
******************* ********Inserted by S. 13 of MFLO, 1961
************** Taking of an additional wife in contravention of the
provisions of MFLO.
*
4. Imprisonment of Husband: Sec.2 (iii)
************* If the husband is imprisoned for a term of 3 years or
upward the wife has the option to apply for divorce in the court.
*
Provided: The Appellate Court has finally decided Case of his
punishment.
*
5. Failure to Perform Marital Obligations: Sec.2 (iv)
*
****** If the husband fails to perform his marital obligations for a
period of 3 years without reasonable cause the wife can go to court for
divorce.
*
6. Impotency of Husband: Sec.2 (v)
**********

37
********** He is impotent at the time of marriage & still it persists.
Burden of Proof: If he says that impotency does not persists the onus
to proof lies on him in a year.
*
7. Insanity of Husband: Sec.2 (v)
*
******************* If the husband has gone insane the wife has the
right to demand divorce.
The period of lunacy has to be for the last 2 years, with or without
lucid intervals.
*
8. Leprosy or a Virulent Disease: Sec.2 (vi)
*
******* If the husband is suffering from some dangerous, contagious
i.e., transferring, transmitting venereal disease for a period of last 2
years.
Example: Testicular or Cervical Cancer: The reason could be because
both diseases affect intimacy & result in decreased sexual activity.
The virus that caused cervical cancer could often be transmitted by
sexual contact & could raise suspicions of infidelity.
Sick spouse is seen as socially unacceptable or because an expected
death would obviate the need for a divorce/Khulla.
*
9. Option of Puberty: Sec.2 (vii)
*
******* It can be exercised on the ground that:
i)****** Her father or other guardian gave her in marriage.
ii)**** Before she has attained the age of 16 years.* (MFLO)
iii)** The marriage had not been consummated.
iv)*** She had repudiated the marriage before she attained the age of
majority.
Minor has the right either to ratify the marriage or repudiate after
attaining majority.
*
10. Lia an: Sec.2 (vii-a)
*
(Inserted by the Protection of Woman (Criminal Laws Amendments) Act
2006. 2nd Dec 2006)
Meaning of Lia an: Accusation of Zina by husband to his wife & refusal
by wife to accept as true.
*
Marriage is brought to an end by fourth oath.

38
*
11. Cruelty: Sec.2 (Viii)
Treats wife with cruelty:
a) i) Habitually Assaults i.e. Beats her physically. Or
********* ii) Makes her life miserable even if such conduct does not
amount to physical ill treatment.
b)**** i) Association with women of low repute. Or
ii) Leads a notorious life.
c)***** Tries to compel her to lead an immoral life.
d)**** Dispossessing wife of her property or not letting her uses it.
e)**** Hinder her to perform her religious duties.
f)******* Unable to treat equally if he has more than one wives.
(Injunctions of Islam).
*
******* 12. Husband Temperamentally Incompatible: Sec. 2 (ix)

The wife can get divorce on this ground. If the wife is unable to get
along due conflicting, clashing and opposing nature of her husband.

13. separated for over a year: Sec. 2 (x)

They are not living for a period over a year. Reconciliation efforts have
failed, marriage can come to end on this ground too.

14. Apostasy: Sec 4

A wife is entitled to get her marriage dissolved on the conversion of


husband to some other religion.
Conversion by wife is not a ground for dissolution of marriage; she can
obtain decree for the dissolution of her marriage on any of the grounds
mentioned in Sec. 2.

15. Any other Ground: Sec 2 ix

Which is recognized as valid for the dissolution of marriage under


Muslim Law.

4.Right to Dower not to be affected:


This Act in no way affect the right of wife to her dower under Muslim
Law on the dissolution of her marriage.

Conclusion:

39
--------------------------------------

40