By
Adv.P.K.Ibrahim
High Court of Kerala
advpkibrahim(at)yahoo(dot)co(dot)in
Mobile.9447030386.
Islam enjoins marriage on its followers. Marriage is regarded as a religious duty and a moral safeguard. The word "zawj" used in Qur'an refers to mate or companion to mean a wife in the wedlock. The general purpose of marriage is to provide company to one another, love to one another, procreate children and live in peace and tranquility. Quran says:
“And of His Signs is this that He has created for you mates from your own species that you may find peace with them, and created love and mercy between you. Surely in this there are many Signs for those who reflect.”(30:22)
“Marry those of you that are single, (whether men or women) and those of your male and female slaves that are righteous. If they are poor, Allah will enrich them out of His Bounty. Allah is infinite in His resources and All-Knowing. Let those who cannot afford to marry keep themselves chaste until Allah enriches them out of His Bounty.”(Qura’n Annoor 24:32)
Prophet claimed marriage as his tradition and said:“He, who does not follow my tradition in religion, is not from me (not one of my followers)." Volume 7, Book 62, Number 1 Translation of Sahih Bukhari.
Prophet exhorted: "O young man those among you who can support a wife should marry, for it restrains eyes from casting (evil glances), and preserves one from immorality". Sahih Muslim, Ch. (The Book of Marriage) Hadith No.3213, p.703. See also Hadith Nos.3232 to 3235.
In the pre-Islamic era, a man could have as many wives as he chose and the women were treated like chattel without any right whatsoever. Polygamy was practiced, without limitations. It was there before and continues even after Islam. It is not a by product of Islam. Rather its attempt is to limit its scope, make it more humane and ensure equal rights and equal status for all wives in polygamy. Islam provides certain legal requirements and insulates polygamy from its abuse. The Quranic decrees, taken together, demonstrate this aspect.
The practice of a male having more than one wife is known as polygyny and the practice of a female having more than one spouse is called polyandry. The practice of spouses having multiple partners is referred to as polygamy. Here reference to polygamy is used in the sense of polygyny.
The reason for not prohibiting polygamy is due to the fact that there are certain conditions which face individuals and societies in different places at different times, which make the limited practice of polygamy a better solution than either divorce or the hypocritical pretence of morality.When one analyzes the reasons and results of the allowance of polygamy, rather than its explicit prohibition, it will be found that indeed the rulings of the religion of Islam are truly those which suits all times and places.
The approach of men and women differ in their desire for sex. These differences are universal. Men everywhere - whether single or married – is inclined for more sexual partners than women do. According to David Schmitt, a psychologist in Bradley University “Islamic solution provides the only responsible alternative to the naturally ingrained desire in men” (Source: Journal of Personality and Social Psychology. The study involved 16,288 college students from 50 countries in the Americas, Europe, Africa, Asia, and, Australia. ).
While there are individuals who could be monogamous, there is no human society that is strictly monogamous. Western society has long conceded that monogamy can only exist if supplemented by chains of mistresses and affairs. We have also seen what celibacy is all about. It is not only about mistresses and affairs but also child abuse, sodomy and what not? The west has been in trouble simply because they only seek to enjoy the benefits without taking the responsibilities that went with it.
Islam knows that human society is not monogamous. It bravely faces the realities and regulates it with stringent conditions so that justice and fairness is ensured and society is saved from aftermath of its evil effects.
The Verse approving polygamy but limiting its practice 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. The issue of polygamy in Islam is therefore understood in the light of community obligations towards orphans and widows. It is tolerated as a compelling social obligation to meet varied situations confronting human beings. The permission itself is given subject to satisfying certain conditions as is clear from the following verses in the Quraan(4:3):
"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…"
From this verse it is clear that polygamy is neither made mandatory, nor encouraged, but merely permitted and that too out of compassion towards widows and orphans, a matter that is confirmed by the context in which the verse was revealed. But even in such a situation, the permission is restricted with a condition not known to the normal practice that existed till then.
To deal justly with one’s wives is an obligation fastened by the above verse, failure of which negates one’s right to claim the benefit the provision. The above verse, when read with another verse in the same chapter, (that: "You are never able to be fair and just between women even if it is your ardent desire…" Qur’an 4:129.), it is clear that polygamy is not a rule for normal practice but for a use, sparingly. If one is not sure of being able to deal justly with wives, the writ then applicable is: "then (marry) only one." (Qur’an 4:3).
The command to deal justly however does not mean justness in all counts. The verse provides a guideline as to the mischief it sought to remedy by such condition. The word ‘justly’ applies to housing, food, clothing, kind treatment…etc. and exhorts “not to incline too much to one of them (by giving her more of your time and provision) so as to leave the other hanging”.
This approach of Islam rules out the concept of any secondary position to any in the polygamous marriage, for all wives has exactly the same status and 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 court and enforce their right or ask for a divorce.
Marriage in Islam is a civil contract which is not valid unless both contracting parties consent to it. As to the first wife she may be barren or ill and to her polygamy may be a better solution than divorce. She may however has a right to go to court and ask for a divorce if there is evidence of mistreatment or injustice inflicted upon her. When polygamy is loaded with such constraints, Is it possible to content that it would have been better if Islam had foreboded it? To answer this question, we may have to find answer to another question: Is Polygamy a better solution in some cases? Take the following incidences.
A man desires to have children and heir but find his wife barren. In a situation like this, that man would either have to suffer without fulfilling this desire for life or divorce his barren wife to get married to another woman. In many cases, neither solution can be considered as the best alternative. There the answer is Polygamy which has the advantage of not only preserving the marital relationship with the barren woman but also fulfilling the desire of fathering children of his own.
Likewise a man whose wife becomes chronically ill has to either suppress his instinctive sexual needs for the rest of his life or he may divorce his sick wife and get married to another woman, thus legally satisfying his instinctive needs or he may keep his sick wife, and secretly take for himself one or more illicit sex partners. Let us discuss these alternatives from the stand point of view of Islamic Teaching. The first alternative is against human nature. Islam recognizes sex and sexual needs and provides legitimate means for their satisfaction. The second alternative is less compassionate and bereft of human considerations especially where there is love between two parties. The last solution is plainly against the Islamic teaching which forbids illicit sexual relationships in any form. Polygamy is the only alternative to address such marital problems. Instead of divorcing a sick or infertile wife, Islam permits a man to marry another woman while taking care of the first if she chooses to stay with him.
To sum up, Islam being against immorality, hypocritical pretence of morality and against divorce provides for a better alternative which is consistent with human nature and with the preservation of pure and legitimate sex relationships.
Polygamy is also an alternative for a man who desires to satisfy his natural sexual relations within the bounds of marriage, but whose wife may be averse to sex due to age or sickness. Moreover, Islam prohibits sexual relations during a woman’s monthly cycles. Therefore, the prolonged menstrual period of the woman which prevents the husband from having sex with her, or a man whose sexual urge is not satisfied by one wife, may marry another. Islam permits such men to realize their desire within a legal framework, making them responsible for their sexuality.
Let us consider its societal effect. The number of unmarried women and widows exceed the number of men consequent to men dying in wars, violent crimes, and women outliving men. The upsurge in homosexuality further increases the problem. Bertrand Russell wrote:
“And in all countries where there is an excess of women, it is an obvious injustice that those women who, by arithmetical necessity, must remain unmarried and should be wholly debarred from sexual experience.”(Marriage and Morals, p. 47.)
The instinctive needs of human beings unless legitimately satisfied, will lead to corruption and immorality. The women will become tools for men’s pleasures, without any personal, financial or emotional security or rights whatsoever. Should they become pregnant, it is their burden alone. But even if such women are allowed to pay the price personally, the price that cost to the society is colossal. The increasing number of illegitimate children born today under such conditions provides a potential base for criminals. Furthermore it is inhuman, humiliating for those children to grow p without knowing who their fathers were. Polygamy, then, is the only responsible solution for this predicament.
Islam thus goes deeper into the problems of individuals and societies, and provides for legitimate and clean solutions that are far more beneficial than the hypocritical stand against polygamy. Islam finds in polygamy a practical solution to deal with problems that may be confronted in marital relations.
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 also no doubt that the legitimate child of a polygamous father, enjoys better rights and privileges than the illegitimate child (especially if it is a girl) born in an extra marital relation.
Venereal diseases spread in promiscuous societies where extra-marital affairs and prostitution are widespread. This may be due to a husband’s bringing back the diseases he is infected with in an extramarital affair when he returns back to his ‘monogamous’ relationship with his wife. Institutional polygamy controls the spread of sexually transmitted diseases.
One should appreciate the fact that in Islam monogamy is the rule and polygamy is an exception. Islam allows it under strict conditions and when no better alternative is available. Marriage being a contract in Islam, the contracting parties can opt out off polygamy in their contract, if they want to remain monogamous. Muslim women or men who feel outrageous by the provision for polygamy can opt out of polygamy in their contract as Islam permit one to include such conditions and remain still within the fold of Islam.
Islam, by its nature, is a universal religion revealed by God to guide people in all places at all times. This 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. Polygamy in Islam plugs the hole towards promiscuity.
What is the situation in countries that banned polygamy? Do they have sincere and faithful "monogamy”? Whether infidelity and secret extramarital sexual relationships exceeds the legitimate, legally protected husband-wife relationships? Which of the two situations is best? What is the degree of cohesion of the family?
Let us take US for analyzing polygamy. According to Laurel Richardson “What makes this state of affairs (extramarital affairs) possible, of course, is a supply of willing women. Most are single, both because of the growing numbers of unmarried women (there are 34 million in the United States today) and because single women generally have more free time and energy than do their married counterparts. Consider these statistics: One out of every five women today has no potential mate because there are simply not enough single men to go around. A 25-year-old single woman faces a serious undersupply of available men to start with, and the situation gets worse the older a woman gets. Divorced men are much more likely than divorced women to remarry (and they tend to marry younger women), so that there are more than twice as many single women as there are single men in their 40s. Indeed, a woman who divorces at 35 today is likely to remain single for the rest of her life. Caught in a demographic bind while seeking greater autonomy, more and more single women are opting for involvement with married men.” (Laurel Richardson “Another World; More and More Single Women Are Opting for Affairs with Married Men, and the Trend Is Diminishing Feminist Progress,” Psychology Today, vol. 20, February 1986.)
These people, who object to polygamy, accept polygamous life as a form of human behaviour. Many eyebrows are raised at having a second wife, but to have as many 'mistresses' or 'girlfriends' as one likes is accepted in good grace. The contradiction between these two attitudes is conveniently ignored. It may be instructive to quote Mrs. Annie Besant on this point. Mrs. Besant says:
"There is pretended monogamy in the West, but there is really polygamy without responsibility; the mistress is cast off when the man is weary of her, and sinks gradually to the 'woman of the street, for the first lover has no responsibility for her future and she is a hundred times worse off than the sheltered wife and mother in the polygamous home. When we see thousands of miserable women who crowd the streets of Western towns during the night, we must surely feel that it does not lie within western mouth to reproach Islam for polygamy. It is better for woman, happier for woman, more respectable for woman, to live in polygamy, united to one man only with the legitimate child in her arms, and surrounded with respect, than to be seduced, cast out in the Street - perhaps with an illegitimate child outside the pale of the law -unsheltered and uncared for, to become the victim of any passerby, night after night, rendered incapable of motherhood despised by all." -- Annie Besant, The Life and Teachings of Muhammad, Madras, 1932, p.3.
Due to modern restrictions placed on polygamy many societal ills are created and left untreated. The opposition to Islam on polygamy is not because it is immoral or unethical but because it is divine and its acceptance would make men accountable for their extra marital sexuality once for all burying the trend of ‘hire and fire’. The woman who is victims of poverty, widows, and divorcees etc will refuse to become public property when they have scope for finding shelter in some secured homes. It will thus affect the tourism industry that thrives on sex for want of women destitutes.
It is often stated that though it has some advantages, the best option to check its misuse is to prohibit. This principle, if accepted as sound means for an orderly society, it will not only lead to complete anarchy but also lawlessness. The application of such principle will results in scrapping of many laws enacted by the parliament leaving the problem, to multiply without any solution. It is like burning the hut to kill the rat. Just examine the case of one single legislation brought about to meet the menace of dowry deaths. The object for which Section 498A IPC was amended was to combat the menace of dowry death and cruelty. Hence when the amendment was challenged, Supreme Court rejecting the plea for holding the provision as unconstitutional held thus: (seeAIR 2005 SUPREME COURT 3100 "Sushil Kumar Sharma v. Union of India”)
“13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, "action" and not the "section" is questionable. The court or such other authority may when such actions are questioned as of a misuse, the court or appropriate authority may set aside the action and grant appropriate relief to the person aggrieved.
14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. (1997 (5) SCC 536), a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed :
"The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity." It was said in State of Rajasthan v. Union of India (1977 (3) SCC 592) "it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief."
Dealing with another issue on misuse of TADA, in AIR 2004 SUPREME COURT 456 "People's Union for Civil Liberties v. Union of India", Hon’ble Supreme Court held thus:
“this Court cannot go into and examine the 'need' of POTA. It is a matter of policy. Once legislation is passed the Government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, we would like to point out that this Court has repeatedly held that mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional”.
From the aforesaid decisions, the following principles may be taken as well settled in Law.
1. The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.
2. If a statutory provision is otherwise valid, mere possibility of abuse of power in a given case would not make it objectionable, In such cases, "action" and not the "section" is bad. The courts set aside the action and grant appropriate relief to the person aggrieved.
3. The wisdom of man has not yet been able to conceive of a Law sufficient to answer all its legitimate needs and at the same time incapable of mischief.
In Islam monogamy is the rule and polygamy is an exception. Islam allows it under strict conditions and when no better alternative is available .What remedial measures can be taken to prevent abuse of the well-intentioned provision is a matter to be dealt with by devising a vibrant mechanism for which all can contribute their might but not nullifying its very purpose and intention, with a pragmatic holistic approach. Islamic scholars all over the world can make a beginning in this direction to prevent the misuse of polygyny.
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“And of His Signs is this that He has created for you mates from your own species that you may find peace with them, and created love and mercy between you. Surely in this there are many Signs for those who reflect.”(30:22)
“Marry those of you that are single, (whether men or women) and those of your male and female slaves that are righteous. If they are poor, Allah will enrich them out of His Bounty. Allah is infinite in His resources and All-Knowing. Let those who cannot afford to marry keep themselves chaste until Allah enriches them out of His Bounty.”(Qura’n Annoor 24:32)
Prophet claimed marriage as his tradition and said:“He, who does not follow my tradition in religion, is not from me (not one of my followers)." Volume 7, Book 62, Number 1 Translation of Sahih Bukhari.
Prophet exhorted: "O young man those among you who can support a wife should marry, for it restrains eyes from casting (evil glances), and preserves one from immorality". Sahih Muslim, Ch. (The Book of Marriage) Hadith No.3213, p.703. See also Hadith Nos.3232 to 3235.
In the pre-Islamic era, a man could have as many wives as he chose and the women were treated like chattel without any right whatsoever. Polygamy was practiced, without limitations. It was there before and continues even after Islam. It is not a by product of Islam. Rather its attempt is to limit its scope, make it more humane and ensure equal rights and equal status for all wives in polygamy. Islam provides certain legal requirements and insulates polygamy from its abuse. The Quranic decrees, taken together, demonstrate this aspect.
The practice of a male having more than one wife is known as polygyny and the practice of a female having more than one spouse is called polyandry. The practice of spouses having multiple partners is referred to as polygamy. Here reference to polygamy is used in the sense of polygyny.
The reason for not prohibiting polygamy is due to the fact that there are certain conditions which face individuals and societies in different places at different times, which make the limited practice of polygamy a better solution than either divorce or the hypocritical pretence of morality.When one analyzes the reasons and results of the allowance of polygamy, rather than its explicit prohibition, it will be found that indeed the rulings of the religion of Islam are truly those which suits all times and places.
The approach of men and women differ in their desire for sex. These differences are universal. Men everywhere - whether single or married – is inclined for more sexual partners than women do. According to David Schmitt, a psychologist in Bradley University “Islamic solution provides the only responsible alternative to the naturally ingrained desire in men” (Source: Journal of Personality and Social Psychology. The study involved 16,288 college students from 50 countries in the Americas, Europe, Africa, Asia, and, Australia. ).
While there are individuals who could be monogamous, there is no human society that is strictly monogamous. Western society has long conceded that monogamy can only exist if supplemented by chains of mistresses and affairs. We have also seen what celibacy is all about. It is not only about mistresses and affairs but also child abuse, sodomy and what not? The west has been in trouble simply because they only seek to enjoy the benefits without taking the responsibilities that went with it.
Islam knows that human society is not monogamous. It bravely faces the realities and regulates it with stringent conditions so that justice and fairness is ensured and society is saved from aftermath of its evil effects.
The Verse approving polygamy but limiting its practice 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. The issue of polygamy in Islam is therefore understood in the light of community obligations towards orphans and widows. It is tolerated as a compelling social obligation to meet varied situations confronting human beings. The permission itself is given subject to satisfying certain conditions as is clear from the following verses in the Quraan(4:3):
"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…"
From this verse it is clear that polygamy is neither made mandatory, nor encouraged, but merely permitted and that too out of compassion towards widows and orphans, a matter that is confirmed by the context in which the verse was revealed. But even in such a situation, the permission is restricted with a condition not known to the normal practice that existed till then.
To deal justly with one’s wives is an obligation fastened by the above verse, failure of which negates one’s right to claim the benefit the provision. The above verse, when read with another verse in the same chapter, (that: "You are never able to be fair and just between women even if it is your ardent desire…" Qur’an 4:129.), it is clear that polygamy is not a rule for normal practice but for a use, sparingly. If one is not sure of being able to deal justly with wives, the writ then applicable is: "then (marry) only one." (Qur’an 4:3).
The command to deal justly however does not mean justness in all counts. The verse provides a guideline as to the mischief it sought to remedy by such condition. The word ‘justly’ applies to housing, food, clothing, kind treatment…etc. and exhorts “not to incline too much to one of them (by giving her more of your time and provision) so as to leave the other hanging”.
This approach of Islam rules out the concept of any secondary position to any in the polygamous marriage, for all wives has exactly the same status and 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 court and enforce their right or ask for a divorce.
Marriage in Islam is a civil contract which is not valid unless both contracting parties consent to it. As to the first wife she may be barren or ill and to her polygamy may be a better solution than divorce. She may however has a right to go to court and ask for a divorce if there is evidence of mistreatment or injustice inflicted upon her. When polygamy is loaded with such constraints, Is it possible to content that it would have been better if Islam had foreboded it? To answer this question, we may have to find answer to another question: Is Polygamy a better solution in some cases? Take the following incidences.
A man desires to have children and heir but find his wife barren. In a situation like this, that man would either have to suffer without fulfilling this desire for life or divorce his barren wife to get married to another woman. In many cases, neither solution can be considered as the best alternative. There the answer is Polygamy which has the advantage of not only preserving the marital relationship with the barren woman but also fulfilling the desire of fathering children of his own.
Likewise a man whose wife becomes chronically ill has to either suppress his instinctive sexual needs for the rest of his life or he may divorce his sick wife and get married to another woman, thus legally satisfying his instinctive needs or he may keep his sick wife, and secretly take for himself one or more illicit sex partners. Let us discuss these alternatives from the stand point of view of Islamic Teaching. The first alternative is against human nature. Islam recognizes sex and sexual needs and provides legitimate means for their satisfaction. The second alternative is less compassionate and bereft of human considerations especially where there is love between two parties. The last solution is plainly against the Islamic teaching which forbids illicit sexual relationships in any form. Polygamy is the only alternative to address such marital problems. Instead of divorcing a sick or infertile wife, Islam permits a man to marry another woman while taking care of the first if she chooses to stay with him.
To sum up, Islam being against immorality, hypocritical pretence of morality and against divorce provides for a better alternative which is consistent with human nature and with the preservation of pure and legitimate sex relationships.
Polygamy is also an alternative for a man who desires to satisfy his natural sexual relations within the bounds of marriage, but whose wife may be averse to sex due to age or sickness. Moreover, Islam prohibits sexual relations during a woman’s monthly cycles. Therefore, the prolonged menstrual period of the woman which prevents the husband from having sex with her, or a man whose sexual urge is not satisfied by one wife, may marry another. Islam permits such men to realize their desire within a legal framework, making them responsible for their sexuality.
Let us consider its societal effect. The number of unmarried women and widows exceed the number of men consequent to men dying in wars, violent crimes, and women outliving men. The upsurge in homosexuality further increases the problem. Bertrand Russell wrote:
“And in all countries where there is an excess of women, it is an obvious injustice that those women who, by arithmetical necessity, must remain unmarried and should be wholly debarred from sexual experience.”(Marriage and Morals, p. 47.)
The instinctive needs of human beings unless legitimately satisfied, will lead to corruption and immorality. The women will become tools for men’s pleasures, without any personal, financial or emotional security or rights whatsoever. Should they become pregnant, it is their burden alone. But even if such women are allowed to pay the price personally, the price that cost to the society is colossal. The increasing number of illegitimate children born today under such conditions provides a potential base for criminals. Furthermore it is inhuman, humiliating for those children to grow p without knowing who their fathers were. Polygamy, then, is the only responsible solution for this predicament.
Islam thus goes deeper into the problems of individuals and societies, and provides for legitimate and clean solutions that are far more beneficial than the hypocritical stand against polygamy. Islam finds in polygamy a practical solution to deal with problems that may be confronted in marital relations.
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 also no doubt that the legitimate child of a polygamous father, enjoys better rights and privileges than the illegitimate child (especially if it is a girl) born in an extra marital relation.
Venereal diseases spread in promiscuous societies where extra-marital affairs and prostitution are widespread. This may be due to a husband’s bringing back the diseases he is infected with in an extramarital affair when he returns back to his ‘monogamous’ relationship with his wife. Institutional polygamy controls the spread of sexually transmitted diseases.
One should appreciate the fact that in Islam monogamy is the rule and polygamy is an exception. Islam allows it under strict conditions and when no better alternative is available. Marriage being a contract in Islam, the contracting parties can opt out off polygamy in their contract, if they want to remain monogamous. Muslim women or men who feel outrageous by the provision for polygamy can opt out of polygamy in their contract as Islam permit one to include such conditions and remain still within the fold of Islam.
Islam, by its nature, is a universal religion revealed by God to guide people in all places at all times. This 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. Polygamy in Islam plugs the hole towards promiscuity.
What is the situation in countries that banned polygamy? Do they have sincere and faithful "monogamy”? Whether infidelity and secret extramarital sexual relationships exceeds the legitimate, legally protected husband-wife relationships? Which of the two situations is best? What is the degree of cohesion of the family?
Let us take US for analyzing polygamy. According to Laurel Richardson “What makes this state of affairs (extramarital affairs) possible, of course, is a supply of willing women. Most are single, both because of the growing numbers of unmarried women (there are 34 million in the United States today) and because single women generally have more free time and energy than do their married counterparts. Consider these statistics: One out of every five women today has no potential mate because there are simply not enough single men to go around. A 25-year-old single woman faces a serious undersupply of available men to start with, and the situation gets worse the older a woman gets. Divorced men are much more likely than divorced women to remarry (and they tend to marry younger women), so that there are more than twice as many single women as there are single men in their 40s. Indeed, a woman who divorces at 35 today is likely to remain single for the rest of her life. Caught in a demographic bind while seeking greater autonomy, more and more single women are opting for involvement with married men.” (Laurel Richardson “Another World; More and More Single Women Are Opting for Affairs with Married Men, and the Trend Is Diminishing Feminist Progress,” Psychology Today, vol. 20, February 1986.)
These people, who object to polygamy, accept polygamous life as a form of human behaviour. Many eyebrows are raised at having a second wife, but to have as many 'mistresses' or 'girlfriends' as one likes is accepted in good grace. The contradiction between these two attitudes is conveniently ignored. It may be instructive to quote Mrs. Annie Besant on this point. Mrs. Besant says:
"There is pretended monogamy in the West, but there is really polygamy without responsibility; the mistress is cast off when the man is weary of her, and sinks gradually to the 'woman of the street, for the first lover has no responsibility for her future and she is a hundred times worse off than the sheltered wife and mother in the polygamous home. When we see thousands of miserable women who crowd the streets of Western towns during the night, we must surely feel that it does not lie within western mouth to reproach Islam for polygamy. It is better for woman, happier for woman, more respectable for woman, to live in polygamy, united to one man only with the legitimate child in her arms, and surrounded with respect, than to be seduced, cast out in the Street - perhaps with an illegitimate child outside the pale of the law -unsheltered and uncared for, to become the victim of any passerby, night after night, rendered incapable of motherhood despised by all." -- Annie Besant, The Life and Teachings of Muhammad, Madras, 1932, p.3.
Due to modern restrictions placed on polygamy many societal ills are created and left untreated. The opposition to Islam on polygamy is not because it is immoral or unethical but because it is divine and its acceptance would make men accountable for their extra marital sexuality once for all burying the trend of ‘hire and fire’. The woman who is victims of poverty, widows, and divorcees etc will refuse to become public property when they have scope for finding shelter in some secured homes. It will thus affect the tourism industry that thrives on sex for want of women destitutes.
It is often stated that though it has some advantages, the best option to check its misuse is to prohibit. This principle, if accepted as sound means for an orderly society, it will not only lead to complete anarchy but also lawlessness. The application of such principle will results in scrapping of many laws enacted by the parliament leaving the problem, to multiply without any solution. It is like burning the hut to kill the rat. Just examine the case of one single legislation brought about to meet the menace of dowry deaths. The object for which Section 498A IPC was amended was to combat the menace of dowry death and cruelty. Hence when the amendment was challenged, Supreme Court rejecting the plea for holding the provision as unconstitutional held thus: (seeAIR 2005 SUPREME COURT 3100 "Sushil Kumar Sharma v. Union of India”)
“13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, "action" and not the "section" is questionable. The court or such other authority may when such actions are questioned as of a misuse, the court or appropriate authority may set aside the action and grant appropriate relief to the person aggrieved.
14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. (1997 (5) SCC 536), a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed :
"The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity." It was said in State of Rajasthan v. Union of India (1977 (3) SCC 592) "it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief."
Dealing with another issue on misuse of TADA, in AIR 2004 SUPREME COURT 456 "People's Union for Civil Liberties v. Union of India", Hon’ble Supreme Court held thus:
“this Court cannot go into and examine the 'need' of POTA. It is a matter of policy. Once legislation is passed the Government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, we would like to point out that this Court has repeatedly held that mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional”.
From the aforesaid decisions, the following principles may be taken as well settled in Law.
1. The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.
2. If a statutory provision is otherwise valid, mere possibility of abuse of power in a given case would not make it objectionable, In such cases, "action" and not the "section" is bad. The courts set aside the action and grant appropriate relief to the person aggrieved.
3. The wisdom of man has not yet been able to conceive of a Law sufficient to answer all its legitimate needs and at the same time incapable of mischief.
In Islam monogamy is the rule and polygamy is an exception. Islam allows it under strict conditions and when no better alternative is available .What remedial measures can be taken to prevent abuse of the well-intentioned provision is a matter to be dealt with by devising a vibrant mechanism for which all can contribute their might but not nullifying its very purpose and intention, with a pragmatic holistic approach. Islamic scholars all over the world can make a beginning in this direction to prevent the misuse of polygyny.
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