POLYGAMY UNDER MUSLIM LAW

FINAL DRAFT SUBMITTED IN THE FULFLIMENT OF THE COURSE TITLED

FAMILY LAW

SUBMITTED TO:
Dr. Pooja Srivastava
Faculity of Family Law

SUBMITTED BY:
NAME - UJJWALSINGH PARIHAR
COURSE – BBA.LLB(HONS)
ROLLNO – 2825
SESSION - 2022-2027
Semester 2

17 feb 2023

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

NYAYA NAGAR,PATNA ,800001

1
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the BBA., LL.B (Hons.) Project Report
entitled “Polygamy under muslim law” submitted at Chanakya National Law
University is an authentic record of my work carried out under the supervision of
Dr. Pooja Srivastava I have not submitted this work elsewhere for any other
degree or diploma. I am fully responsible for the contents of my Project Report.

SIGNATURE OF CANDIDATE
NAME OF CANDIDATE: UJJWALSINGH PARIHAR
ROLL NO :- 2825
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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 INDEX

CHAPTER TITLE PAGE NO.

CHAPTER 1 INTRODUCTION 3
AIMS AND
OBJECTIVES
RESEARCH
METHODOLOGY
SOURCES OF DATA
LIMITATIONS
CHAPTER 2 CONCEPT OF 6
MARRIAGE UNDER
MUSLIM LAW
CHAPTER 3 NATURE OF 7
MUSLIM
MARRIAGE
CHAPTER 4 TYPES OF 8
MARRIAGE
UNDER MUSLIM
LAW
CHAPTER 5 POLYGAMY IN 12
MUSLIM LAW
CHAPTER 6 CONCLUSION 17

CHAPTER 7 BIBLIOGRAPHY 18

3
1. INTRODUCTION
Islam came as a protector of rights of individual and dealt with every aspect of human life. The
institution of marriage was amongst these aspects. Islam also recognises the institution of
marriage usually termed as “Nikah” or “Aqd”. Islam condemns unchastity in emphatic terms
and strictly prohibits the illicit relations. This institution of marriage has been ordained for the
protection of society and in order that human beings may guard themselves from foulness and
unchastity. In pre–Islamic Arabia the institution of marriage was lacking of a rigid structure
and the relationship between men and women was very loose. Regular marriages were very
rarely practiced. Before Islam there were different ways of marriages prevalent in the Arab
society but Islam prohibited all of them and permitted only one form of marriage. In this form
of marriage, a man asks the another for the hand of the latter’s ward or daughter, and then
marries her by giving a dower.

The nature of Muslim marriage is a debatable issue as Marriage in Islam is generally considered
as a mere civil contract by the people but this statement is not true to the fullest. Marriage in
Islam has both religious and sacred connotations and it can’t be described as a mere civil
contract. We will discuss this further when we will describe the nature of Muslim marriage.
When we come to types of marriage in Islam it can be divided into three types namely- it may
be valid (sahih), or irregular (fasid), or void from the beginning (batil). There are different
essentials and results of these marriages. Another type of marriage permissible in Islam is
Polygamy. The plight is that its true nature is often misunderstood by people and misused for
their own worldly pleasures. In this work we will deal with this misconception in complete
detail. Marriage in Islam is a powerful and important institution as it has the trio effect on
Legal, Social and Religious aspect of a human being. The Legal aspect deals with laws
governing to marriage, the Social aspect deals with its effects on the society and the Religious
aspect shows its importance in the eyes of religion.

In this work we will first focus on the concept of marriage in Islam along with some of the
definitions of it. Then we will try to explain the nature of a Muslim marriage through various
judicial pronouncements. In the third part we will discuss the three kinds of marriages along
with their essentials and the liability which they create. Then we will try to understand the
concept of Polygamy and clarify the misconceptions related to polygamy in Islam. In the end
we will try to give a brief summary of our work

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1.1. AIMS AND OBJECTIVES

-Concept of marriage under muslim law

-Types of muslim marriage
-Understanding polygemy under muslim law advantages and disadvantages

1.2.RESEARCH METHODOLOGY

For the project research, the researcher will rely upon doctrinal method of research.

1.3.SOURCES OF DATA

The researcher will be relying on secoundary sources to complete the project.

1.4.LIMITATIONS

The researcher has time as well as territorial limitations in completing the project.

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2. CONCEPT OF MARRIAGE IN ISLAM

The institution of marriage is recognised by all civilized societies. Marriage regulates the
conduct and behaviour of men and women when they start living as husband and wife. The
marriage confers a legal and social status, with rights and responsibilities, on the parties who
enter into it. Marriage is regarded as the union of two souls for love and two bodies for
procreation and legalizing of children. Marriage has been defined as a social, noble and sacred
contract that has been referred to in the Holy Qur’an as a solemn covenant.1 In Islamic
Jurisprudence, it means union or aqd. The Holy Qur’an states, “And among His signs is this,
that He created for you wives from among yourselves, that you may find repose in them, and
he has put between you affection and mercy. Verily, in that are indeed signs for a people who
reflect.”2 The Laws, the jurists and the Holy Qur’an summarized Muslim marriage as a legal
relation between male and female with a view to establishing a peaceful society. This
relationship is giving the husband rights upon wife and same to the wife upon husband. It
considers as the basis of social life and beginning of family life. Islam considers marriage to
be a very sacred act and a step towards a better, purer and happier life as well as it finally
connects the couple to the earth and the heaven. Now for a better understanding of concept of
marriage let us look at some of the definitions.

 Nikah in its primitive sense means carnal conjunction. Some have said that it signifies
conjunction generally. In the language of law, it implies a particular contract used for
the purpose of legalising generations.3 HEDAYA
 Marriage is an institution ordained for the protection of the society, and in order that
human beings may guard themselves from foulness and unchastity.4
AMEER ALI
 The Mohammadan jurists regard the institution of marriage as partaking both the nature
of Ibadat or devotional acts and Muamlat or dealings among them.5 ABDUR RAHIM

1
The Noble Qur’an 4:21.
2
The Noble Qur’an 30:21
3
Charles Hamilton, The Hidaya or Guide, A commentary on the Muslim Laws, Kitab Bhawan, New Delhi,
1979, p.25. As quoted in Dr. Kahkashan Y. Danyal, Muslim Law of Marriage, Divorce and Maintenance, Regal
Publications, New Delhi, 1st Edn., 2015,p.3
4
Ameer Ali, Mohammaden Law, Kitab Bhawan, New Delhi, 7th Edn., 1986, p.241. Dr. Kahkashan Y. Danyal,
Muslim Law of Marriage, Divorce and Maintenance, Regal Publications, New Delhi, 1st Edn., 2015,p.4
5
Abdur Rahim, Mohammedan Jurisprudence, Allahabad Law Agency, Allahabad, 1911, p.216. As quoted in
Dr. Kahkashan Y. Danyal, Muslim Law of Marriage, Divorce and Maintenance, Regal Publications, New
Delhi, 1st Edn., 2015,p.4

6
3. NATURE OF MUSLIM MARRIAGE

The nature of Muslim marriage is a bone of contention between scholars as some consider it
as a mere civil contract while others attach a sacramental or religious value to it. One of the
famous judgments that arouse controversies in this area was Abdul Qadir v. Salima6 in which
Justice Mehmood made the following observation “Marriage among the Mohammedans is not
a sacrament, but purely a civil contract.” The opinion of the court in Abdul Qadir v. Salima
was highly criticized. Prof Tahir Mahmood in its criticism wrote “There is a general
misconception that no religious significance or social solemnity attaches to a Muslim marriage
and it is merely a civil contract. This is not true. The Quran does not treat marriage as an
ordinary contract. The prophet described Nikah as his Sunnah and those who know the socio-
religious significance of Sunnah as recognized by Muslims can well understand what marriage
means to a follower of Islam.”7 But after some time came the judgment of Anis Begam v.
Muhammad Istefa8 which tried to solve the issue. Chief Justice Sir Shah Sulaiman in this case
observed: “Marriage (in Islam) is not regarded as a mere civil contract, but a religious
sacrament”. Further the Muslim Marriage is not merely a civil contract because:

 While a civil contract, it cannot be made contingent on a future event, and

 Unlike civil contract it cannot be for a limited time,
 Maher (Dower) is not the same as consideration in a contract of sale.

In the light of above discussion about the nature of Muslim marriage we can prudently
conclude that marriage itself, as a concept is not merely a civil contract. It has the basics of
a contract like offer, acceptance but it also has some sacred or sacramental value to it. When
we describe marriage in Islam as a mere civil contract we neglect the sacred part attached
to it. Under Islamic law marriage comprises of both Ibadat (Devotional Act) and Muamlat
(worldly affairs). Marriage apart from perpetuation of Human race is also for attainment of
chastity. It prevents the human beings from committing what is prohibited by religion.9 So,
Marriage being an Ibadat (Devotional Act) in Islam its religious connotations should not
be ignored and should be taken into consideration while defining marriage in Islam.

6
(1886) 8 AII 149 (FB)
7
Tahir Mahmood, The Muslim Law of India, LexisNexis Butterworths, New Delhi, 3rd Edn., 2002, p.48.
8
(1933) 55 AII 743
9
Dr. Kahkashan Y. Danyal, Muslim Law of Marriage, Divorce and Maintenance, Regal Publications, New
Delhi, 1st Edn., 2015,p.3

7
4. KINDS OF MARRIAGE-VALID, IRREGULAR & VOID

On the basis of the fulfilment of certain essentials/requirements of a valid marriage, under

Muslim law marriage have been classified into three classes:

1. Valid (Sahih)
2. Void (Batil)
3. Irregular (Fasid)

The Ithna Ashari (SHIA) and the Ismaili schools of law do not recognise this distinction
between void and irregular marriages. They treat a marriage either valid or void. Marriages
which are irregular under Sunnis are void for them.

4.1 VALID MARRIAGE

A marriage, which conforms in all with the law, is termed as Sahih, that is, correct. For a
marriage to be valid it is necessary that there should be no prohibitions affecting the parties.
Now, prohibitions may be perpetual, or temporary. If the prohibition is perpetual, the marriage
is void. If it is temporary, the marriage is irregular.

4.1.1 Essential Conditions of a Valid Marriage

The following are main essentials for a valid marriage:

1. Proposal (Ijab)- It is necessary that there should be declaration of proposal on the part
of one.
2. Acceptance (Qubul)- Such proposal of marriage should be accepted by her or by her
guardians or by other party on her behalf as the case may be. It was observed in Ghulam
Kubra v. Mohammad Shafi10 , by Mahmood J. that a man or someone on his behalf or
a woman or someone on her behalf should agree to marriage at one meeting and the
agreement should be witnessed by two adult witnesses. The proposal and acceptance
must be made in unequivocal terms and in the same meeting.
3. Consent- Under all the schools of Muslim law a boy who is of sound mind and has
attained puberty can freely marry personally and without anybody’s consent. Shafei or
Shia major girl cannot marry without a guardian. Category of persons who are

10
AIR 1941 Peshawar 23

8
 incompetent to marry freely and need the consent of a ‘marriage guardian’ for that
purpose include insane persons and minors.
4. Witnesses- According to Sunni Hanafi Law, at least two adult witnesses are required at
the time of solemnisation of marriage. As per Shia Law, the witnesses are not essential.
5. Capacity- To Marry in Islamic law there are two basic attributes of legal competence
to contract a marriage: a. Sound mind, and b. Puberty (Majority). Every Muslim who
is of sound mind and has attained the age of puberty may enter into a valid marriage
contract.

4.1.2. Legal effects of a valid marriage

According to Fyzee there are nine legal effects flowing from a valid marriage:11

1. Sexual intercourse becomes lawful and the children born of the union are legitimate;
2. The wife becomes entitle to dower;
3. The wife becomes entitle to maintenance;
4. The Husband becomes entitle to reasonable restrain the wife’s movements;
5. Mutual rights of inheritance are established;
6. The prohibition regarding marriage due to the rules of affinity comes into operation;
7. The wife is not entitled to remarry after the death of her husband or after the dissolution
of her marriage, without observing iddat;
8. Where there is an agreement between the parties entered into either at the time of
marriage or subsequent to it, its stipulations will be enforced, in so far as they are
consistent with the provisions or the policy of the law; and
9. The offspring born of a valid marriage are legitimate and as such they can inherit from
both their parents;

4.2 VOID MARRIAGE

A marriage, which has no legal results, is termed Batil or Void. A contract of void marriage is
void ab initio i.e., it is void from the beginning. It has no value both in the eyes of religion and
law. The impediment is permanent and cannot be removed. By void( Batil) is meant one the
existence of which is like its non-existence, that is , the marriage never got contracted.12

11
A.A.A Fyzee, Outlines of Mohamaden Law, Oxford University Press, New Delhi, 5th Edn., p.87.
12
Supra note 9 at p.10

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4.2.1 Grounds for a Void Marriage

1. Consanguinity- A man is prohibited from marrying (1) his mother or his grandmother how
high so ever; (2) his daughter or grand-daughter how low so ever; (3) his sister whether full,
consanguine or uterine; (4) his niece or great niece how low so ever; and (5) his aunt or great
aunt how high so ever, whether paternal or maternal. A marriage with a woman prohibited by
reason of consanguinity is void.13

2.Affinity- A man is prohibited from marrying (1) his wife's mother or grandmother how high
so ever; (2) his wife's daughter or grand-daughter how low so ever; (3) the wife of his father or
paternal grandfather how high so ever; and (4) the wife of his son, of his son's son or daughter's
son how low so ever. A marriage with a woman prohibited by reason of affinity is void.14

3.Fosterage- A marriage prohibited by reason of fosterage is void.15

4.2.2 Legal effects of a void Marriage

A void marriage is not a marriage at all. It does not create any civil rights or obligations
between the parties. The children born of such a union are illegitimate and there is no legal
process by which such a union can be made legal. The woman gets no right to dower and has
no observance of Iddat before remarrying. If either party dies during the period of this union,
the other acquires no right of inheritance.

4.3 IRREGULAR MARRIAGE

An Irregular or Fasid Marriage is one which is not unlawful in itself but is unlawful " for
something else" as where the obstacle to inter marriage is temporary or relative or when the
irregularity arises out of a defect in procedure of making the marriage contract, such as absence
of witness.

4.3.1 Grounds for an Irregular Marriage

The following marriages are considered irregular: a) A marriage contracted without required
number of witness; b) A marriage with women during her Iddat period; c) A marriage with
women without the consent of her guardian when such consent is considered necessary; d) A

13
Mulla, Principles of Mohammedan Law, LexisNexis Butterworths, 20th edn. 2013, p.11 of 43
14
Ibid
15
Ibid

10
marriage prohibited on account of difference of religion; e) A marriage with women who is
pregnant, when the pregnancy was not caused by adultery or fornication; f) A marriage with a
fifth wife.

4.3.2 Legal effects of an irregular marriage

1. Dower- In case of irregular marriage contract, if there is no consummation before separation

then no dower has to be paid. But if such marriage is consummated the man has to pay specified
dower or proper dower.

2. Legitmacy of the Children and Inheritance- The children born out of irregular marriage
are legitimate. They are considered legal heirs of both the parents

3. Sanction of Affinity-In irregular marriage if consummation takes place, prohibition of

affinity is established.

4. Maintainance-Whether marriage is valid or irregular the maintenance of children is

incumbent upon the father.

5. Terms of Probation-If the marriage is consummated the wife has to observe Iddat on
separation or death of the husband. If the marriage is not consummated there is no need to
observe Iddat.

4.3.3 A RECENT CASE ON IRREGULAR MARRIAGE AND INHERITANCE

MOHAMMED SALIM v. SHAMSHUDDIN16

Question of Law: In this case the court had to decided that what kind of marriage takes place
between a Muslim and an Idolater and what is the legitimacy and inheritance of children born
out of such marriage.

HELD: The Supreme court held that a marriage between a Muslim man and an Idolater under
Sunni law is neither valid (Sahih) nor void (Batil), but it is merely an irregular marriage (Fasid).
Any child born out of such wedlock (Fasid Marriage) is entitled to claim a share in his father’s
property.

16
Civil Appeal No 5158 of 2013, 2019 4 SCC

11
5. POLYGAMY UNDER MUSLIM LAW

Polygamy is a kind of marriage where a man has more than one wife. One most common myth
associated with polygamy is that it was introduced by Islam. But the truth is Polygamy was a
part of our society from time immemorial. It was socially accepted and also got religious
recognition before Islam. Early Jews and Christians used to practice it. So, it is false to say that
Islam introduced polygamy but what it only did was regularising it and giving equal rights for
all the wives and children. The Quranic verse which deals with polygamy is “…. marry women
of your choice, two or three or four, but if ye fear that ye shall not be able deal justly (with
them), then only one…17

The verse clearly makes clear that polygamy is only a permission with limitations put to it. The
verse was revealed after the battle of Ohud in which 70 Muslims were martyred.18 So, to take
care of the wives and children of those men polygamy was permitted for those who could afford
to take care of the orphans and widows justly. Equality among the wives is most important
aspect. The Quranic verse says that “you are never able to be just and fair as between women,
even if it is your ardent desire.”19

When combining the above two mentioned verses we can prudently say that Polygamy is
discouraged in Islam. In the very famous case of Itwari v. Asgari the Allahabad High court
held that “the right to four wives appears to have been qualified by a better not advice, and
husbands were enjoined to restrict themselves to one wife if they could not be impartial
between several wives, an impossible condition according to many jurists.”20

Misuse of Polygamy for one owns self-interest

There are many cases were non-muslims convert Islam solely for the purpose of marrying
second wife. The right of Muslim male to practice polygamy has been openly abused by such
people in order to escape rigours of divorce and escape prosecution for bigamy at the same
time. But the Supreme court with its judgements prohibited the abuse of this law. Two of the
most important cases in this aspect are enumerated as under.

17
AL QURAN, Surah An-Nisah (The Women), iv:3
18
Supra note 9 at p.20.
19
AL QURAN, Surah An-Nisah (The Women), iv:129
20
AIR 1960 Allahabad 684

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 1. Sarala Mudgal v. UOI. -In this case the court held that second marriage of a Hindu
after conversion to Islam without having the first marriage dissolved under the law
would be void in terms of section 494 of the Indian Penal code. He would be held guilty
of the offence under section 494 of the IPC.21

2. Lily Thomas v. UOI. – The Non-Muslim men in this converted to Islam and asked his
wife to divorce her by mutual consent but the wife refused to do so. The husband then
married another woman who also converted to Islam and started living with her. The
first wife challenged this conversion and argued that this conversion was not for the
love of Islam but for the sole purpose of remarrying. The court held that –
“Prosecution under section 494 IPC in respect of second marriage under Muslim law
can only be avoided if the first marriage was done under Muslim law.” It further stated
that “a person mockingly adopts another religion where plurality of marriage is
permitted so as to renounce the earlier marriage and desert the wife, can not permitted
to take advantage of his exploitation as religion is not a commodity to be exploited.”22

Is there a perfect Solution?

As a realistic religion that legislates real solutions for humanity, Islam avoided
any utopian doctrine. In many of its laws, Islam keeps in mind the flexibility of
the law and the realistic factors and circumstances. A law can not be 100%
good for every person, groups, culture, or country. However, Islam considers
the over all values and gaining. If the advantages of a law overcome its
disadvantages, then that law would be legislated and vise versa. This concept
is driven from Quran: “They ask thee concerning wine and gambling. Say:
"In them is great harm (sin) and some benefits for people; but the harm
(sin) is greater than the benefits (2:219).”

Polygamy, like any other law, has its disadvantages and advantages on both the
husband and the wife. But do those advantages overweigh the disadvantages?
Let the following brief study judge that:

I) Polygamy before Islam

wtg yug ef aeeo ceswre ese yodeve ws atyu yuwv aederyt b d t hye wva yvo
ret wvan gtt esye atyu sya owve a reaer beeo e yvo uyse uwre wr yv heo
yvo nb d t heo
:s tt tnryve ayga ,txn.1 1nl aewrg ws i d t hye wv tdwt , v s a cwws
se bter ba v ese n oote g ea eswn se esye xwtg yug eya yv vvwdye wv ws ese
rwxsee ws atyun ne esye a vwe ese byaen ga ee syde aeev, e sya ceev xrybe beo
v nuwae awb ee ea ceswre atyu

13
 eere vyrryeeo ycwne uev esw bseyeeo wv ese r guwv ese s aewrg twea ws
aewr ea e dea wr we uyrr eo e es uwre esyv wven yse yv efyuxte srwu ese c cte:
awue xewxte ybbnae xrwxseea yvo uyse eseu twws a vsnt enae vwe ew ayg eseg
syo uwre esyv eya uyrr eo ayrys yvo srwu ser twve e sen avee esye gcrysyu txeybe
ce nx wv s u se syo ayyb yvo a unteyvewnatg se eya uyrr eo ew s a uyoe yvo syo
srwu ser ? asuyet
se swttwe v yre awue xsryaea srwu ese c cte

"After he left Hebron, David took more concubines and wives in Jerusalem, and
more sons and daughters were born to him."
2 Samuel 5:13
"He (Solomon) had seven hundred wives of royal birth and three hundred
concubines..."
1 Kings 11:3
"And Lamech took unto him two wives: the name of the one was Adah, and the
name of the other Zillah.
Genesis 4:19
"If a man have two wives, one beloved, and another hated, and they have born him
children, both the beloved and the hated; and if the first-born son be hers that was
hated: then it shall be, when he maketh..."
Deuteronomy 21:15
"if he take him another wife; her food, her raiment, and her duty of marriage, shall
her not diminish." Exodus 21:10

The point here is not to say that monogamy never been practiced or not applicable.
However, it is just a wondering that how come the legalized polygamy in
Islam is inferior to the unlimited clandestine adultery in other religions and
civilizations.

II) Polygamy and the wife acceptance:

a) What if a woman does not accept polygamy

First of all, marriage in one of its phases is a legal contract between the wife and
the husband. Both partners have the right to add any condition that they think it
will help them to protect their future life. So, if a woman thinks polygamy is
against her interest, then she has the full right to announce her objection during the
marriage contract as a condition and a right for a valid contract or else it will be
nullified. Based on that, the husband has to commit to that condition or he would
have no right to keep her as a wife if she decides to get divorced and was approved
by the Islamic court, especially if divorcing the husband is controlled by the wife.

b) What if the wife’s condition is disregarded?

Like in any other law, a person might misuse the law to seek his/her interest. If a
14
husband, who previously has committed in the marriage contract not to marry
another woman, decides to have a second wife, then his current wife has the right
to ask for divorce and raise that issue to the Islamic court. But is it fair that the only
thing the wife can do is to ask for divorce in this matter.

Is that Fair?

Answering that question is not simple since each case has its own circumstances.
First of all, the question would be; why is the husband thinking about another wife,
especially when both partners have agreed to dysfunction polygamy in their
marriage life. In this case and before divorcing, a social worker assigned by the
Islamic Court has to study the case and judges it. For instance, may be the husband
wants children and his current wife is barren but yet he still loves her and wants to
keep her as a wife in addition to his new one. Furthermore, if the wife is the one
who is controlling the divorce process -not the husband- then she can divorce her
husband if that avails her. Overall, Same question would be asked. As an
American is it fair that I can divorce my wife or she can divorce me at any time.

III) Polygamy could be a Natural and social need?

What if:
- There are some men by nature need more than one wife and their wives have
no problem with polygamy.

- Monogamy is not just a theory and is thoroughly practiced, so no more men

were allowed to cheat on their wives. Do you think for that group of people-
who never naturally get satisfied by one wife- Monogamy is a solution and is
sufficient?

- There are women who have no problem in marrying a man already having a
wife especially if a marriage is in their interest.

- The majority of society are women keeping in mind that:

o Marriage age of puberty mostly begins earlier in girls than in boys. o

The power of proliferation of women ceases at a certain age, after which
pregnancy is very rare case, whereas there is no such fixed age for men.

In this case where no enough men, do we tell those women just disregard
your emotion and desire or just abuse yourself through unlawful acts like
being Homosexual.

IV) Homosexuality but not Polygamy!

15
 It is so ironic that several western countries and some American states legalizing
homosexuality under the excuses of genetic and psychological problems or nature,
but yet disregarding vehemently any excuse for polygamy.
Keep in mind that in Homosexuality, a homo is destroying the structure of family
by emphasizing strongly and exclusively on his/her lust and disregarding other
bonds and factors that could create a continuation of a peaceful tranquil society. In
addition to that, Homosexuality makes a person’s live under the emergency of lust
and desire which starts growing infinitely and calls for desire saturation at any time
or any where jeopardizing the pure ordinary relation between any two people.
While in polygamy, the person is restricting him self to more responsibilities and
commitments since he has to be just with his wives and treat them co-equally in
everything: money, living, emotion, etc. By that, he is just establishing a bigger
family and limiting him self to a clear honest accepted relation.

V) Polygamy and its Preconditions in Islam

Islam allows polygamy on some condition and here are some of them:
a- The wife(s) has no objection about polygamy during or
before the marriage contract. And if the husband
disregards that, the wife has the right to raise that to the
Islamic court.

b- Equitable treatment for all the wives c-

Number of wives not to exceed four.

VI) Major disadvantages of Polygamy:

The following are the major disadvantages of polygamy from the Wife
Perspective:
A. Less time with the husband; since his spared time is now shared
between two or more wives

B. Less attention

C. Jealousy and unshared love; since the woman likes to have full
attention and full unshared love from her partner.

D. Family malfunctioning and Chaos since husband spends less time

with the children i.e. less discipline and guiding.

E. Less money saved or given to the wife and children since money
should be shared co-equally with the other family.

16
 F. Population problems that burden the society since both wives (may
be more) are going to have children.

G. Unfairness and discrimination; since the husband can have more

than one partner while the wife should marry only and exclusively
one.

6. CONCLUSION

So, from the above discussion we can prudently conclude the following points. There should
be no misconceptions regarding the nature of Muslim marriage. The nature of Muslim marriage
has both legal and sacramental value and can not be described as a mere civil contract. There
are three kinds of marriages which are valid (sahih), void (batil) and irregular (fasid) and they
have their respective legal effect. Shia law does not recognise irregular marriages and all
irregular marriages are considered void under Shia law. Polygamy is attached as an ill practice
under Muslim law of marriage. But on a closer look we can come to the conclusion that
Polygamy in Muslim law is not encouraged but rather discouraged. The abuse of this law is
also a serious problem. Non-Muslim in order to save themselves from prosecution under
section 494 IPC convert to Islam and enjoy polygamy. But the Supreme Court through the
above-mentioned judgements has tried to curb this practice.

21
AIR 1995 SC 1531
22
AIR 2000 SC 1650

17
 BIBLIOGRAPHY

Books Referred:

 A.A.A Fyzee, Outlines of Mohamaden Law, Oxford University Press, New Delhi, 5th
Edn.
 Abdur Rahim, Mohammedan Jurisprudence, Allahabad Law Agency, Allahabad, 1911.
 Ameer Ali, Mohammaden Law, Kitab Bhawan, New Delhi, 7th Edn., 1986.
 Charles Hamilton, The Hidaya or Guide, A commentary on the Muslim Laws, Kitab
Bhawan, New Delhi, 1979.
 Dr. Kahkashan Y. Danyal, Muslim Law of Marriage, Divorce and Maintenance, Regal
Publications, New Delhi, 1st Edn., 2015,
 Mulla, Principles of Mohammedan Law, LexisNexis Butterworths, 20th edn. 2013.
 Tahir Mahmood, The Muslim Law of India, LexisNexis Butterworths, New Delhi, 3rd
Edn., 2002.

Cases Cited:

 Abdul Qadir v. Salima, (1886) 8 AII 149 (FB)

 Anis Begam v. Muhammad Istefa, (1933) 55 AII 743
 Ghulam Kubra v. Mohammad Shafi, AIR 1941 Pesh 23
 Itwari v. Asgari, AIR 1960 Allahabad 684
 Lily Thomas v. UOI, AIR 2000 SC 1650
 MOHAMMED SALIM v. SHAMSHUDDIN, 2019 4 SCC
 Sarala Mudgal v. UOI, AIR 1995 SC 1531

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