The Arabs of pre Islamic era were governed by tribal customary law that permitted unlimited polygamy. Islamic law severally restricted this by providing that a husband could not have more than four wives concurrently. Surah AL NISA (Verse 3) is that source of the law of polygamy in Islam. The verse also said that a man must treat all his rights equitably.
The surah has been interpreted to the effect that law obliges the husband to treat his wife equitably and he must spend an equal amount o9f time with each wife.
All the schools are agreed that it is not necessary for a man to obtain any short of permission before remarriage.
The legal remedies for woman whose husband decides to take a further wife are limited. Hinchcliffe has commented that a non Malik wife who reluctantly finds herself a co-wife will have no recourse at all unless her husband agreed to delegate to her the Talaq-e-tafwid. Whether the moral obligation on the Husband to treat his wife equally relates only to nafaqa (material support and maintenance) or also to equal affection has remained heavily contested.
The Quran itself appears to suggest that the later is an impossible task. Surah AL NISA (Verse 129) says that a man shall not be able to deal unfairness and justice between women however much he wished. It has therefore been possible to argue that polygamy was never really allowed in Islam and should consequently be prohibited by modern Muslim law.
The fundamentalist reacted strongly to such a suggestion, arguing that such interpretation would render the Quranic allowance for up to four wives absurd and in operative and that in order to honor it a distinction much be made justice in verse 3 which would mean equality between the wives in material and tangible matters and justice in verse 129 which would mean inner feelings over which man has no control. They quoted traditions (sunnah) of the prophet to substantial their opinion.
The controversary over polygamy started in early 20th century in the grounds that it was an injustice to woman. Many jurists have taken different views on the need for restricting polygamy.
An Indian Muslim author known as Siddiqi takes a balanced view. The permission given by the Quran for polygamy arises out of particular circumstances. There will always be individual cases where polygamy may become necessary in order to avoid more serious social and moral consequences. So it may not be right to prohibit polygamy by legislation since the Quran has made it conditional on a just an equal treatment of the wives. It is open to the countries to prescribe conditions under which polygamy may be allowed.
Polygamy has been subject to reforms and many countries have legislated to impose restrictions on it. The trend is in favor of restriction polygamy of not prohibiting it completely.
The Tunisian jurist took economic criteria as a key element arguing that since in modern socio economic conditions impartial treatment of several wives was a practical impossibility, the essential Islamic conditions of polygamy was impossible to fulfill.
Polygamy is also prohibited in
marriage more than one wife is allowed only by permission of the judge, who shall not grand such permission unless he makes sure of fulfillment of two conditions. Iraq
- The Husband is financially capable of supporting more than one wife.
- That there is a legitimate interest.
A man who contravenes above is liable to a penalty of one year imprisonment and or fine.
The Syrian legislation is less categorical while following same course. The judge has the power to forbid a married man from taking another wife unless there is the legitimate justification and the financial capability to support both wives is proven.
Although the Jordanian law imposes no obvious restrictions upon polygamy. It allows the wife to stipulate I marriage contract that the husband shall not take another wife and entitles the wife to sue for divorce if such same allowance for the wife is repentant in the Moroccan law.
According to the Algerian law, a man who wishes to take a second wife must establish a clear and genuine need. The court will grant him such permission if it is satisfied of such need and further if there is evidence that the man is able and willing to treats the wives and children with equality. The first wife may obtain a on the sole ground of husband second marriage.
The modern south Asian secular view of the law considers polygamy at best as an institution to be tolerated but not encouraged [an Indian case of irwari v asgari]
There has been no direct legislation reform of Muslim personal law in
in the subject of polygamy. Many judges have called for government to enact legislation on this subject. Muslim marriages in Indian are therefore potentially polygamous. And the husband may subject to conditions stipulated by the wife, make arrangement for polygamy which the wife has legally, very little control, unless she has inserted relevant stipulations in her marriage contract. Such stipulation would be enforced in that the wife would be entitled to claim divorce from the husband or a judicial desolation of marriage under the DMMA 1939 India
The Pakistani law in Muslim polygamy was the subject of reform in the context of MFLO 1981.although Pakistan has academically impressive restrictions to men’s right to polygamy in practice the requirement that prior permission for a polygamous marriage be obtained from the council appears to be a formality rather then a effective deterrent. If a second marriage is completed with out the approval of council the second marriage is clearly valid.
Bharatliya says that, there are certain factors under which polygamy historically portrayed as a consequence of wars and the presence of many widows and orphans. However, it is also true that, the existence in law of the right to take a second wife severely hinders the progress of Muslim woman.
But as Menski stated easy divorce rules without a legal right to polygamy would lead to a large pool of divorce woman, many of whom are presumable either ill, infertile or in some way unsuited to full material life. Prohibition of polygamous arrangements would perhaps required the toleration of extra marital relation of man. Hence there has always been ample room for debating whether strict legal monogamy is preferable- or whether restricted right to monogamy should be allowed. Some reforms in the Muslim world have prohibited polygamy whether as other have only imposes certain procedure burden. It is a fact that some Muslim husbands justify there choice in favor of polygamy by arguments phrased in terms of sharia.