Structured definition of equality

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Whilst the concept of equality has been deemed subjective owing to the absence of a structured definition of equality in the verse itself and consequently where this is exemplified by the divergences between the various schools of thought regarding the maintenance owed to each wife and whether it is subject to equal distribution or not, the term equality (‘adl’) in itself becomes problematic owing to the fact that it is used in its concise form in both the verse that sanctions polygamy discussed above and a subsequent verse relating to ‘adl’ in the marital context towards the end of the chapter.

Before analysing the verse in question, it shall serve to contextualise it within the actual section that it is found in and it is consequently of importance to evoke the content of the two preceding verses that form the beginning of a new section within the chapter. The subsequent verse relating to justice or ‘adl’ asserts that “ye are never able to do justice between wives even if it is your ardent desire, but turn not away (from a woman) altogether, so as to leave her (as it were) hanging. If ye come to a friendly understanding and practice self-restraint, Allah is Oft-forgiving, most Merciful” (Yusuf-Ali A. verse 129 chapter 4).

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The latter part of this verse perhaps further reinforces the statement that the constraint regarding equality in the first verse discussed “was construed as a matter for a man’s own conscience, not as establishing a condition precedent for a polygamous marriage” (Hinchecliffe p.13) and hence “binding upon the conscience of the individual man rather than as ‘legally enforceable'”7. As opposed to an explicit disqualification of the polygamous institution in the above verse owing to the fact that equality in its broad and undefined sense was seemingly unattainable, the only prescribed remedy is not to desert the wife or wives that the man feels less attachment to or perhaps affection towards.

The anecdote, or ‘hadith’, in the Prophetic tradition or the ‘seera’, allegedly relates to the Prophet himself the idea that whilst equality in time and money may be achievable, equality in feelings is not8. As a prelude to this verse, the preceding verse addresses women who fear “cruelty or desertion on her husband’s part” prescribing them to reach a settlement with the husband (verse 128).

In the final part of the thesis, it shall serve to analyse some of the respective codes pertaining to polygamy, notably the Tunisian code of 1956. To begin with, the Tunisian code of 1956 states that “polygamy is forbidden”, applying the theory of abrogation – where one verse is believed to chronologically replace another and hence make the rulings of the initial verse invalid – on those two verses described above, where the latter states that equality is impossible to achieve no matter how much one desired to achieve it.

Although this code validates the theory of abrogation in this instance and for the purpose of forbidding that practice, it nevertheless is important to note that the code remained initially ambiguous – save the incurring of “penal sanctions” (Hinchecliffe p.27) – in relation to those who transgress this law by concluding a polygamous marriage, although of course “a law enacted in 1964…declares that all marriage contracts concluded by a party who is already married are void” (Hinchecliffe p.26).

This nonetheless may not deter an individual or individuals from contracting a polygamous contract outside the civil realm as they may view adherence to this code as a contradiction to their private practice of religion thereby reinforcing the notion that polygamy is their fundamental right sanctioned by the ijtihad of the various schools of thought, Prophetic practice and the Quran according to interpretation.

The case of Iraq and Iran for the purpose of containing the practice of polygamy merits analysis, as although it by no means amounts to the interdiction of polygamy, polygamy therein is permitted only where it is in similar context to the Quranic context discussed in the beginning of the thesis. Thus “In Iraq, moreover, such permission will be given only on the following three conditions: 1- that the husband is financially able to support more than one wife;” – subject to the rulings of the respective schools of thought as to how much each is owed in maintenance -, “2- that there is some lawful benefit involved” (italics not part of quote); and “3- that the husband is regarded by the court as capable of according two or more wives equal treatment” (Hinchecliffe p.21).

As Hinchecliffe states, the third stipulation is largely subjective and therefore problematic as is the second stipulation, albeit to a lesser extent if in a Quranic and Prophetic context. Nevertheless one has reason to believe that there is sufficient deterrence implied in such a code to the individual considering polygamy, as “failure to comply with the provisions of the article will result in imprisonment for not more than one year…” and although the Sharia court may decide that the three conditions had been met, the criminal court may oversee such a ruling and “the husband must be returned to the criminal court for sentence” (Hinchecliffe p.21).

In the case of Iranian legislation, there is also considerable deterrence on an individual considering polygamous practice, as he must similarly obtain permission of the court through satisfying the court’s criteria. More significantly for the purpose of comparison is the fact that “the court may hear evidence from the first wife before reaching its decision” and that the latter may appeal against her husband’s decision (Hinchecliffe p.25), thereby giving the wife a voice in the process, which is largely non-existent owing to the fact that the husband, according to the outlines of the ‘sharia’ as it has been compiled through ‘ijtihad’ in the various schools of thought, does not legally have to obtain permission from his wife or wives before re-marrying.

As a digression from the case studies, perhaps the unanimity of the schools pertaining to the above phenomenon where the husband does not have to consult with the current wife or wives before concluding another marriage stems from the fact that the contrary is not explicitly stated in the Quran or the texts claiming ‘hadith’ and ‘sunna’. Finally, perhaps the most important factor to note with regards stipulations made by the wife prior to contracting a marriage citing polygamy, most notably in Egypt, is the fact the adherence to that stipulation (‘laazim’) by the husband translates in the wife being legally entitled to seek an annulment where he transgresses that stipulation but the husband does not incur penal sanctions for defying the contract itself. This further reinforces the notion that it is fundamentally the right of the husband according to customary legislation regardless of such a constraint as stipulation.

In conclusion, it would be inconceivable to assume that polygamy as it is practiced in the modern age, albeit scarcely for economic and social reasons compared to previous periods, will eventually be subject to legislated disqualification owing to its sanctioning in Islamic legislation, which will always possess legitimacy and incur consensus in those Muslim societies if not for its widespread practice, for the mere notion as it is present primarily in the Quranic text. Nevertheless the conditions, such as the ones implicated under Iraqi law, can in a sense confine the practice to the particular context described at the outset.


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