A Refereed Study
Justice between Wives regarding Maintenance
Dr. Abdullah bin Saalih Az-Zeer*
* Assistant Professor of Jurisprudence, Department of Sharee'ah, University of Taif, Saudi Arabia.
Justice between Wives in Maintenance
Preamble
All praise belongs to Almighty Allah who created human beings from water and established among them relations of marriage characterized by intimacy, mercy and love; I praise Him and thank Him for His countless blessings. I bear witness that there is no deity worthy of worship except Allah, with whom we associate no partners and who knows what is hidden in our hearts. I also bear witness that our Prophet Muhammad is the slave and messenger of Allah who has guided us to the best way; may Allah's peace and blessings be upon him, his family and companions. Indeed, the family, as the very foundation of society and the source from which nations and peoples naturally emerge, basically comprises the husband and wife: "O mankind! We created you from a single [pair] of a male and a female, and made you into nations and tribes, that you may know each other. Verily, the most honoured of you in the sight of Allah is (he who is) the most righteous of you. And Allah has full knowledge and is well acquainted [with all things]." (Al-Hujuraat, 49: 13). Moreover, the family is the shelter where human beings find stability and peace of mind and soul. Therefore, the institution of marriage is the foundation on which the entire universe is built, in which the soul can find tranquillity and joy, by which life can be organized and through which chastity can be preserved. Through marriage, Allah joins together lineages among distant people, establishes relations of consanguinity and brings about material and moral wealth: "Marry those among you who are single, or the virtuous ones among yourselves, male or female: if they are in poverty, Allah will give them means out of His grace: for Allah encompasses all, and He knows all things." (An-Nur,24:32) In fact, marriages serve to establish a relationship of amity between husband and wife that brings them closer to each other and eliminates all hardships that the daily life may pose: "Live with them on a footing of kindness and equity. If you take a dislike to them it may be that you dislike a thing, and Allah brings about through it a great deal of good." (An-Nisaa', 4:19) Among the great and wonderful features of the Islamic Sharee'ah is that it attaches equal importance to the interests of the individual and
128 Al-Adl (40) Dr. Abdullah bin Saalih Az-Zeer the community alike. The Muslim community is in need of marriage in order to generate successive generations that add to its strength and maximize its resources in order for it to compete and excel in all walks of life and to have the position it deserves among nations. Moreover, the Muslim individual needs to have a good offspring that will bring about happiness for him in this life and the life to come. He also needs marriage to maintain his chastity and protect himself against prohibited and unlawful acts. It is for this reason that Allah has made it lawful for Muslims to marry one, two, three or four wives in order to realize the interests of both the individual and the community at large. Through the sublime rules Islam has laid down to make the institution of marriage successful, it has at once guaranteed happiness for the individual and dignity for the community. In order for the Muslim family to be blessed and happy, Islam has also established rules of justice in case of polygamy so that both the individual and the community may attain the prospected harmony and concord and prevent any shortcomings and defects that may arise as a result of injustice among wives. This aspect of justice is achieved through numerous subtle rules and controls which Muslim jurists have discussed in ample detail and even written volumes detailing every aspect of justice between wives. However, some of the topics related to this issue need to be elaborated on, especially the one related to equality in maintenance (nafaqah) which I have sought to discuss in the present study. It should be noted that this right of equality is part and parcel of the other rights that should be given to each wife. The main question that arises here is: Is it obligatory on the husband, after fulfilling all his obligations towards his wives, to treat them equally as far as maintenance is concerned? Is this matter within his capacity or not? Introduction Topic One: Is Polygamy the Rule or the Exception? Allah has made polygamy permissible if certain conditions are met, most important among them is justice between wives: "Marry women of
Al-Adl (40) 129 Justice between Wives in Maintenance your choice, two or three or four; but if you fear that you shall not be able to deal justly (with them), then only one."2 Muhammad bin Jareer At-Tabaree comments, "If you guarantee that no injustice will be exercised in treating your wives, you are then permitted to marry two, three or four wives. However, if you fear that you will not be able to treat them justly, do not marry more than one wife."3 Ash-Shaafi'ee contends, "I prefer that the man marries only one wife even if he is permitted to marry more than one."4 The well-known scholar Ash-Shanqeetee writes, "To be fair, one should admit the permissibility of polygamy."5 Some contemporary jurists argue that the original rule regarding marriage is to have more than one wife for those who have the resources to treat their wives justly, for such a practice guarantees more chastity for both the husband and the women he marries, more support for the women who may not find someone to marry and more offspring who will serve to increase the strength of the Muslim nation. It should be noted that the Prophet (may Allah's peace and blessings be upon him) married more than one wife; Allah says, "You have indeed in the Messenger of Allah a beautiful pattern [of conduct] for any one whose hope is in Allah and the Final Day, and who engages much in the Praise of Allah."6 Anas bin Maalik (may Allah be pleased with him) narrated, "A group of three men came to the houses of the wives of the Prophet asking how the Prophet worshipped [Allah], and when they were informed about that, they considered their worship insufficient and said, 'There is no way to compare ourselves with the Prophet [in matters of worship] while his past and future sins have been forgiven.' Then one of them said, 'I will offer the prayer throughout the night forever.' The other said, 'I will fast throughout the year and will not break my fast.' The third said, 'I will keep away from the women and will not marry forever.' Allah's Apostle came to them and said, 'Are you the same
2 Surat An-Nisaa', 4:3. 3 Tafseer At-Tabaree, 7/540. 4 Yahya Al-Umraanee, Al-Bayaan fi Madhhab Al-Imaam Ash-Shaafi'ee, 11/189. 5 Ash-Shanqeetee, Muhammad Ameen, Adhwaa' Al-Bayaan, 3/377. 6 Surat Al-Ahzaab, 33:21.
130 Al-Adl (40) Dr. Abdullah bin Saalih Az-Zeer people who said so-and-so? By Allah, I am more submissive to Allah and more afraid of Him than you; yet I fast and break my fast, I do sleep and I also marry women. So, he who does not follow my tradition in religion is not from me (i.e. not one of my followers).'"7 It should be noted that the above hadeeth concerns polygamy as much as it covers marrying a single wife.8 Topic Two: Wisdom behind the Permissibility of Polygamy There is no doubt that the legislation laid down by Allah for human beings encompasses great benefits, some of which are known to people though many remain beyond their comprehension. The Islamic Sharee'ah is definitely meant to realize the interests of communities and prevent harms. Muslim scholars have elaborated on the secrets and benefits of the permissibility of polygamy, some of which are summed up in the following points: 1. Polygamy adds to the chastity of the members of society, both males and females. Moreover, marrying more than one woman adds to the reward that an individual may attain, as clearly explained by the Prophet (may Allah's peace and blessings be upon him). Abu Dharr narrated, "Some of the people from among the companions of the Prophet (may Allah's peace and blessings be upon him) said to him, 'Messenger of Allah, the rich have taken away the reward. They observe prayer as we do; they keep the fasts as we do, and they give sadaqa (charity) out of their surplus riches.' Upon this the Prophet (may Allah's peace and blessings be upon him) said, 'Has Allah not prescribed for you [a course] by following which you can [also] do sadaqa? In every declaration of the glorification of Allah (i.e. saying Subhaan Allaah) there is a sadaqah, and every takbeer (i.e. saying Allaahu Akbar) is a sadaqah, and every praise of His (saying al-Hamdu Lillaah) is a sadaqah and every declaration that He is One (La ilaaha ill-Allaah) is a sadaqah, and enjoining of good is a sadaqah, and forbidding of that which is evil is a sadaqah, and in man's sexual Intercourse [with his wife] there is a sadaqah.' They (i.e.
7 Reported by Al-Bukhaaree, Muhammad bin Ismaa'eel, Al-Jaami' As-Saaheeh, Book of Marriage, part on Encouraging People to Marry, Hadeeth no. 5063, 3/354. 8 This view is expressed by Sheikh Abdul Azeez bin Baaz. See Fataawaas by the Scholars of the Holy City by Khaalid Al-Juraisee, p. 494.
Al-Adl (40) 131 Justice between Wives in Maintenance the companions) asked, 'Messenger of Allah, is there a reward for him who satisfies his sexual passion among us?' He replied, 'Tell me, if he were to devote it to something forbidden, would it not be a sin on his part? Similarly, if he were to devote it to something lawful, he should have a reward.'"9 2. Polygamy has been permitted because it is a means of increasing the number of progeny. The Prophet (may Allah's peace and blessings be upon him) exhorted Muslims thus: "Marry kind and productive women for I will feel proud of your [large] numbers on the Day of Judgment."10 3. Polygamy is a clear expression of following the example of the Prophet (may Allah's peace and blessings be upon him) for he adopted polygamy. Therefore, men who are capable of meeting the conditions and expenses of polygamy are exhorted to marry more than one woman. Allah says, "You have indeed in the Messenger of Allah a beautiful pattern [of conduct] for any one whose hope is in Allah and the Final Day, and who engages much in the Praise of Allah."11 4. Polygamy is also one way in which Islam secures women's rights. In fact, Islam gives precedence to public interest over personal interest. Polygamy is without doubt a public interest, and Islam has permitted it so that the huge numbers of women compared to men can find husbands. If a man were allowed only one woman, many women would have been left without husbands. Had Islam not permitted polygamy, illegitimate children would have been everywhere, as is the case in western countries nowadays. The first victim of such a state would be the woman herself, who would then have to bring up a child whose father she does not know! What sort of justice is this then? This example clearly points up the great importance Islam attaches to women's rights. It should be noted here that after the Second World War, European women demonstrated in quest of polygamy for the number of spinsters amounted to 25 million.12
9 Reported by Muslim, Book of Zakat, no. 1006, 2/770. 10 Reported by Abu Dawood, no. 2050, 2/542 and An-Nasaa'ee, no. 3227, 6/66 through an authentic chain of narrators. 11 Surat Al-Ahzaab, 33:21. 12 Wahbah Az-Zuhailee, Polygamy, p. 21.
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6. Women are more subject to sexual imperfections and infertility disorders than men. Instead of divorcing a wife having such a defect, the husband may marry another woman and keep the defective wife instead of divorcing her to be able to marry another wife. 7. Some men are oversexed and need more than one wife to satisfy their sexual urges. Imaam Ahmad writes, "I am of the opinion that men of this time should marry two, three or four wives if their intention is to maintain their chastity." 8. Polygamy brings more families into the circle of consanguinity. Marrying more than one wife normally fosters relations among people from different lineages. Allah says, "It is He Who has created man from water: then has He established relationships of lineage and marriage: for your Lord has power [over all things]."13 9. A man may admire a woman for her high morals or religious commitment, or the other way round. The only legal way to join together is through marriage.14 10. Differences may occur between the husband and his wife for which the only solution is divorcing the wife and marrying another one. However, these differences may be settled later on and the husband and ex-wife may wish to go back to each other. The only way to solve this problem is polygamy.15 11. Polygamy increases amity and love between the husband and his wives such that when it is the turn of any one of them, both the husband and wife would feel more craving for the other after three days of separation.16 12. Polygamy is one way of taking care of many families which have many daughters for whom they are unable to find husbands. Indeed, the only way to solve the problems of many spinsters is to apply the institution of polygamy. Moreover, divorced women who find it difficult to marry men who marry for the first time would find it much easier to have husbands among those who are already married.
13 Surat Al-Furqaan: , 25:54. 14 Ihsaan Al-Otaibee, Rules of Polygamy in the Light of the Qur'an and the Sunnah, p. 32. 15 Ibid. 16 Ibid.
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13. Many men die and leave behind their wives with some orphans who find no way to be looked after other than being put under the care of another man through marrying their mother. The Prophet (may Allah's peace and blessings be upon him) said, "The guardian of an orphan and I in Paradise are like this," and he joined his middle and index fingers together [as he said this].17 Hence, polygamy is the best way to find a husband for the widow and a guardian for her orphan children, which is eventually a way to earn more reward from Allah by the husband. 14. Polygamy is a means to richness. Allah says, "Marry those among you who are single, or the virtuous ones among yourselves, male or female: if they are in poverty, Allah will give them means out of His grace: for Allah encompasses all, and he knows all things."18 The Prophet (may Allah's peace and blessings be upon him) said, "Three persons will certainly receive Allah's help: the fighter for the sake of Allah, the slave wishing to free himself and the one wishing to marry for the sake of preserving his chastity."19 He also said, "Marry women, for they will bring you wealth."20 Topic Three: The Permissible Number of Wives Allah has permitted every Muslim man to marry up to four wives, which number should not be exceeded under any circumstances. Allah says, "Marry women of your choice, two or three or four."21 Prior to Islam, men used to marry as many women as they wished without any limits or conditions. When Islam was revealed, it prescribed a limit to the number of women one may marry. Islam prescribes that the maximum number of women a man can marry is four. In compliance with the Islamic teachings, the companions of the Prophet (may Allah's peace and blessings be upon him) who were married to more than four
17 Reported by Al-Bukhaaree, Book of Marriage, no. 5304, 3/413 and Muslim, no. 2983, 4/2285. 18 Surat An-Nur, 24:32. 19 Reported by At-Tirmidhee, no. 1655, 42/157. Abu Eesaa At-Tirmidhee said, "This hadeeth is good." It is also reported by An-Nasaa'ee, Book of Marriage, no. 3218, 6/61. 20 Reported by Al-Haakim in Al-Mustadrak, 2/160. He said, "This is an authentic hadeeth according to the conditions stipulated by Al-Bukhaaree and Muslim. 21 Surat An-Nisaa', 4:3.
134 Al-Adl (40) Dr. Abdullah bin Saalih Az-Zeer wives divorced the wives exceeding four. Qays bin Al-Haarith (may Allah be pleased with him) narrated, "When I embraced Islam I had eight wives. I came to the Prophet (may Allah's peace and blessings be upon him) and mentioned this fact to him. He said, 'Choose four of them.'"22 Ghailaan bin Salamah Ath-Thaqafee (may Allah be pleased with him) embraced Islam and he had ten wives who also embraced Islam. The Prophet (may Allah's peace and blessings be upon him) instructed him to choose four of them and divorce the others.23 There is a consensus among Muslim scholars that a free, healthy Muslim of legal age has the right to marry up to four free Muslim women or less. They have also agreed that marrying more than four women is not permissible for any Muslim other than the Prophet (may Allah's peace and blessings be upon him).24 However, some erroneous points of view contrary to the opinion of the majority of scholars consider it permissible to have more than four wives at a time. Al-Qurtubee writes, "You should know that the numbers two, three and four do not in any way mean that one is permitted to have the total of them (i.e. nine wives), as alleged by some of those who do not understand the Book and the Sunnah and who hold views contradicting those adopted by our rightly-guided predecessors. Their argument that the Prophet (may Allah's peace and blessings be upon him) had nine wives at one time is unfounded because such a case is special for the Prophet (may Allah's peace and blessings be upon him). This wrong contention is adopted by the Shi'ites and some of the Dhahirites. This view reflects their utter ignorance of the [Arabic] language and the Sunnah and a blatantly contradicts the consensus of Muslim scholars."25
22 Reported by Ibn Maajah, Book of Marriage, no. 1952, 1/628. 23 Reported by At-Tirmidhee, Book of Marriage, no. 1128, 3/435 and Ibn Maajah, Book of Marriage, no. 1953, 1/628. 24 Ibn Hazm, Maraatib Al-Ijmaa', pp. 62-63. 25 Al-Jaami' li Ahkaam Al-Qur'an, 5/13. Al-Qurtubee discussed these weak views and refuted them.
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Topic Four: The Benefit of Limiting the Number of Wives to Four It goes without saying that a Muslim should completely submit to all that Allah and his Messenger have ordained, whether he comprehends the wisdom behind such legislations or not. This rule of faith is clearly established in the following Qur'anic statement: "The answer of the believers, when summoned to Allah and His Messenger, in order that he may judge between them, is no other than this: they say, 'We hear and we obey'. It is such as these that will attain felicity."26 When Umm Mu'aadhah (may Allah be pleased with her) asked Aa'ishah, the mother of believers (may Allah be pleased with her) about the wisdom behind the menstruating woman making up for missed fasting days but not for missed prayers, Aa'ishah (may Allah be pleased with her) exclaimed, "Are you a Harurite [Kharijite]?" She replied that she was not a Harurite but she was only asking to know. Aishah replied, "This was happening to us and we were ordered to make up for missed fasting days but not missed prayers."27 So Aa'ishah justified such a case as compliance with the orders of the Prophet (may Allah's peace and blessings be upon him). However, this complete submission to the orders of Allah and His Messenger does not impede the Muslim from trying to understand the wisdom behind some divine injunctions, as the Sharee'ah is originally meant to realize interests and prevent harms. Some scholars have tried their best to explain the wisdom behind limiting marriage to four wives. Ibn Al-Qayyim writes, "The number of wives has been limited to four while the number of female slaves (immaa') has been kept unlimited. This is a clear indication of the perfect and wise legislation which is a manifestation of mercy and the best interest of the Muslim community. Marriage is normally meant to satisfy the sexual needs of both the male and female members of society in a lawful way. However, some men are oversexed and hence need more than one wife to satisfy their sexual needs. Therefore, Allah has given them the right to marry a second, a third and a fourth wife. This number
26 Surat An-Nur, 24:51. 27 Reported by Al-Bukhaaree, no. 321, 1/120.
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