Illegal zone of family law: problem of polygamy in Islam

What’s the problem and can it be solved?

Illegal zone of family law: problem of polygamy in Islam
Photo: islamnews.ru

Nowadays polygamy is still closely associated with one religion, Islam. In Russia, Islam is a traditional religion about 20 million people profess across the country. The multimillion Russian ummah — the Muslim community — has men who have several wives.

Moreover, in the state’s opinion, a man can have only one wife: at least a legal marriage can be registered only with one person. Some people consider polygamy as a relic of the past and are very hostile to any talks about the legal description of this practice. At the same time, historically, polygamy was widespread. In his column for Realnoe Vremya, our columnist, expert of the Islamic World Research Centre Karim Gaynullin reflects on the legal and historical aspect of the issue.

Polygamy in non-Semitic societies

If in modern society brought up with the European morals dating back to its ancient version, polygamy is considered as an exceptionally Islamic phenomenon, that’s to say, in ancient times, polygamy was widespread. It provided a myriad of conveniences: regular wars constantly increased the number of widows, campaigns brought a lot of female slaves to the lands of ancient kingdoms, while society always needed to increase the population — to till the land and equip the army.

Indo-European tribes where such practices that are considered today as an exceptional example of barbarianism were popular together with polygamy can serve as an example. For instance, Herodotus writes about Indo-European Thracians tribes:

“Each man has many wives, and at his death there is both great rivalry among his wives and eager contention on their friends' part to prove which wife was best loved by her husband. She to whom the honor is adjudged is praised by men and women alike and then slain over the tomb by her nearest of kin. After the slaying she is buried with the husband. The rest of the wives are greatly displeased by this, believing themselves to be deeply dishonoured.”

A similar custom was spread among most ancient Indo-European cultures. The latest example of the Hindu sati practice, the burial of the wife together with her husband. The practice of sati became one of the causes of disagreement between Hindus and the Muslim government in the Mughal Empire.

In the pagan Scandinavian poem Hávamál, god Odin urges men:

“Praise a wife when dead.” Interestingly, Ibn Fadlan found such a custom, also with the indication of polygamy, in Indo-Europeans — our Rus’ people — a millennium later:

“So when this man died they said to his slave women: ‘Which of you wants to die with him?’ One of them answered, ‘I do.’ From that moment she was put in the constant care of two other women servants who took care of her to the extent of washing her feet with their own hands…”

It is known that before the adoption of Christianity, Prince Vladimir the Great had four wives and a lot of concubines. The Primary Chronicle talks about it:

“Now Vladimir was overcome by lust for women. His lawful wife was Rogneda, whom he settled on the Lybed, where the village of Predslavino now stands. By her he had four sons: Izyaslav, Mstislav, Yaroslav, and Vsevolod, and two daughters. The Greek woman bore him Svyatopolk; by one Czech he had a son Vysheslav; by another, Svyatoslav and Mstislav; and by a Bulgarian woman, Boris and Gleb. He had many concubines — over 300 in Vyshgorod, 300 in Belgorod, 200 in Berestov, a village which is now called Berestovoye. And he was insatiable in fornication, bringing married women to him and corrupting girls.”

Even though the marriage among ancient Greeks and Romans was mainly monogamous, there were institutes of extramarital affairs with women: ritual prostitution and heterosexuals. This happened primarily because of the specifics of the Greek marriage: it was connected with social and family responsibility more than love affairs. A marriage was mandatory. In Laws, Plato offered to punish men for long-term singlehood. Reproduction was attached great importance: Greek poleis were unions of male warriors, and additional force was always crucial there.

Christian chronicler Michael the Syrian mentions polygamy among pre-Islamic Turks in Chronicle that they avoided adultery, had little fornication because they didn’t have a law prohibiting a second and third marriage as well as polygamy.

Genghis Khan had six Mongol wives and a big number of concubines. Nowadays over 16 million people are his genetic descendants. However, according to Mongol rules, only children of his first and main wife Börte could be heirs.

Together with the custom of having several wives, some societies — in Tibet, insular Austronesians — had the custom of having several husbands.

Polygamy in Judaism and Christianity

Polygamy was spread during the era of the Old Testament. Many Biblical characters, including prophets, had several wives. Abraham, Moises, Lamech, Jacob, David and Solomon are among them.

The Old Testament also mentions regulations and human behaviour in a polygamous marriage:

“If a man has two wives, the one loved and the other unloved, and both the loved and the unloved have borne him children, and if the firstborn son belongs to the unloved, then on the day when he assigns his possessions as an inheritance to his sons, he may not treat the son of the loved as the firstborn in preference to the son of the unloved, who is the firstborn, but he shall acknowledge the firstborn, the son of the unloved, by giving him a double portion of all that he has, for he is the firstfruits of his strength. The right of the firstborn is his.” (Deuteronomy 21:15-17)

Polygamy was actively practised in early Judaism. A Jew could have several wives if he could maintain them. The number of wives wasn’t limited, but Jewish wise men don’t advise having more than four. Ashkenazi Jews refused the practice of polygamy in Europe only in the 10th century (Rabbeinu Gershom’s ban). At the same time, for instance, Yemen Jews migrated to Israel together with their polygamous families. Some Ashkenazi rabbis indicate that Gershom’s ban was in force until the year 5000 by the Jewish calendar and became invalid.

Sephardi Jews can practice polygamy with some restrictions. However, since precisely the Ashkenazi culture dominates in modern-day Israel, polygamy is rarely practised.

Christianity quickly grew from a small Jewish group into a general Roman cult, and the Roman morals couldn’t help but influence the religion. Despite the popularity of polygamy in Jews, early fathers of the church considered polygamy as fornication and a reproached marriage. Christians often reference apostles’ messages condemning priests’ polygamy. Also, Christianity often mentions that polygamy among Old Testament kings didn’t lead to success.

In the end, the widespread ownership of constant lovers in European ethnicities can also be considered as some latent polygamy.

Photo: wikipedia.org

Polygamy in Islamic history and Islamic law

It is noteworthy that Islam didn’t invent polygamy, it just legalised and limited the practice that had been existing in Arabs before Islam. The restrictions were on the numbers of wives: if during the pre-Islamic era it wasn’t limited like it wasn’t limited in early Judaism, the Quran prohibits having over four wives.

In the Quranic text, men are warned that it is necessary to be fair to their wives — not to give one more time and gifts than to the others. The man must spend the night with his wives by turn. His wives’ children have equal rights of succession. The Quran says that if there isn’t a possibility of such fairness, one should not have several wives:

“And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hands possess [i.e., slaves]… (an-Nisa, 3).”

In the Islamic practice of polygamy, it is necessary to understand that it is a marriage of a man with every specific wife. It is banned to sleep with several wives at the same time, the Muslim man must provide every woman with a house and money. Obviously, in such conditions, polygamy is affordable only for wealthy men, this is why this practice didn’t exceed 5-10% of the total number of families.

Besides financial problems, there are emotional problems. Many men, Muslims and non-Muslims often idealise polygamy. But from the experience of the men I am familiar with who have several wives, I have heard that it is emotionally tough to spend time with their wives. If one follows the rules and lives by Sharia regulations, such marriage can be psychologically tough for the man. Wives often are jealous of each other, due to which the family constantly faces internal conflicts. “Secret wives” become a big problem for the family: when the husband hides his relations, which partly reminds us of European lovers disguised as Islamic marriage.

On the other hand, some women like having free time in such marriages, especially if previous marriages have children.

There can be different reasons why nowadays a man decided to have several wives. Many men really get married because of their own whim, but this isn’t an exceptional reason. So a woman’s infertility or other health issues can be a possible reason because of which the husband needs another marriage but continues taking care of his first wife. In some cultures, it is acceptable to marry their brothers’ widows. Also, I am familiar with quite tough situations: for instance, a man quickly married after the divorce, whereas his ex-wife decided to return to him.

Photo: islam-today.ru

In some Sharia schools, the woman can demand the man not to have a second wife. However, in the Hanafi school spread in Tatarstan, such a condition isn’t compulsory: it will be a promise, not keeping this promise will be considered as the sin of lying, but the second marriage will be valid and won’t terminate the first one.

Illegal zone of polygamy: between Sharia and Russian legislation

It is often mentioned that polygamy is prohibited in Russia. Indeed, it is impossible to register a civil marriage with several women. Article No. 14 of the Family Code reads: “A matrimony between people at least one of which already is married is not permitted.”

According to the Russian Orthodox Church, one of the mandatory conditions of a religious wedding is registering the marriage in the registry office first. But there is no church for Muslims that could regulate marital relations, while no registration at the registry office, from a perspective of Islamic law, isn’t an obstacle to having a religious wedding. Of course, from our legislation’s point, a religious custom isn’t a legal marriage. However, Islamic marriage in Russian legal terms quite fits the concept of “cohabitation,” and it isn’t prohibited in Russia. By law, it is possible to cohabitate with whoever, and this isn’t a crime. Marriage at the registry office may be considered as “cohabitation,” but may not too. At last, many non-Muslim pairs in Russia practise unregistered cohabitation.

Technically, a visit to the mosque is not a condition for an Islamic marriage (in the Hanafi school): it can be done at home with two witnesses. Words are enough for this: for instance, “Will you marry me?” “Yes.” It is impossible to somehow control this without intruding on people’s private lives.

Otherwise, it will be necessary to impose criminal punishment for having lovers and unregistered cohabitation.

Photo: islam-today.ru

So what’s the problem of polygamy?

The real problem is that the second and subsequent wives in Islamic marriage cannot have the guarantees the civic marriage can provide them with. There are problems with inheritance, the right to the refusal to testify against one’s spouse in the court, the acknowledgment of paternity, division of property, the right to go to the ICU or penitentiary institution. So second wives turn out legally unprotected.

In such conditions, Muslim religious authorities warn of the danger of such marriages. And I agree with them here: polygamy in our conditions is always a risk, first of all, for the woman. But men often don’t expect how others’ reaction and the new format of relations will affect them. However, the specifics of the Islamic religion is so that religious authorities cannot ban those legal provisions that are fixed in classical Islamic books.

So not providing men with the possibility of polygamy is the problem, legalisation isn’t required for this. The problem is how to legally protect those who decide to become a second wife. Because it is often vulnerable groups: widows and single mothers. First wives who are often not informed about their husbands’ other wives suffer too.

Photo: islam-today.ru

Many citizens, including lawyers, indicate the incompatibility between secular and religious law. However, for instance, Doctor of Juridical Sciences and expert in Islamic studies Leonid Sykiäinen, the biggest specialist in Islamic law in Russia (among secular academic sciences), comments on this in an interesting way:

“As for the relations between Sharia and law, it was shown that it doesn’t boil down to the contradictions between them… The religious settlement of disagreements can comply with secular norms (if they don’t’ contradict Russian legislation).

For this purpose, it is not necessary to rethink the format of civil marriages in Russia: we can talk about some additional agreements on cohabitation that are valid in the republics with a big share of the Muslim population that would protect women’s rights and limit men’s dishonest behaviour.

In today’s situation, no matter how negatively secular society considers such initiatives, we face a social problem: society doesn’t have mechanisms that could make it impossible to have second marriages. At the same time, society is hostile to any talks on legalising them.

Karim Gaynullin
Reference

The author’s opinion does not necessarily coincide with the position of Realnoe Vremya’s editorial board.

Tatarstan