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.