By Arshad Alam
After declaring instant triple Talaq null and void, the Supreme Court has now accepted a petition to look into the legality of Muslim practices polygamy and Halala.
It must be remembered that what the SC declared illegal was instant triple Talaq and not the unilateral right of divorce which a Muslim still continues to exercise. For a Muslim woman who wants divorce from her husband, there is still no recourse within the Muslim personal law. All that she can do is ask/plead for a Khula which is not equal to the right of divorce. It depends entirely upon the man whether he gives Khula to the woman or not. Muslim women still do not have the right of maintenance post-divorce.
These are struggles which still have to be fought and various Muslim women’s organizations are fighting for these rights. Thus the victory over instant triple Talaq is at best a partial one. One is sure that not only Muslim women’s organization but other women’s organization will come forward to campaign for the abrogation of inhuman practices like polygamy and Nikah Halala.
There must be a time when polygamy did perform certain function. A faulty sex ratio may be one of the reasons why polygamy existed within many cultures including the Arabian one. The probability of men being killed in war was far greater and that’s why most cultures in the world did have a system of polygyny. However, this was not the only reason. The equally important reason was social honour and codes of masculinity. The more wives one had, the more status one could proclaim. Wealth and social status were tied up. You needed to be wealthy in order to feed many wives and one of the ways in which you could flaunt your wealth was by marrying a number of women. A poor person therefore had no chance to marry a number of times. In fact he considered himself lucky if he could marry just once.
Over a period of time, social practices and religious precepts fused into one another. The social function of polygamy becomes enmeshed with the religious teachings and it appeared as if Islam created polygamy in the first place. This is a classic case of mental alienation: a process through which an institution which is socially created appears to have a divine agency. Muslim who argues that polygamy is sanctioned by the Sharia suffers from the same problem. They need to understand that the conditions which gave rise to this institution no longer exist. As a corollary, the social mores which sanctioned and legitimized this institution have also changed. Today, it is no longer understood as the sign of masculinity or a marker of social status. There are other ways now to flaunt the two. Muslims therefore should have no problem in saying it aloud that they themselves want to abrogate these provisions.
By and large the Muslim community in India is poor. Because of this very fact, it is exceedingly clear that the practice of polygyny amongst them would be very few. In fact there are scholarly works to prove this. Incidence of polygyny is found more among the Hindus as compared to Muslims empirically. However, there is an established discourse which links Muslims and Muslims alone with the practice of polygyny. This should make Muslims all the more determined to fight against this practice. Needless to say, the institution is anti-women. Most women do not ever consent to their husbands having more than one wife. Since women are mostly dependent on the financial power of men, they are forced to consent under duress which cannot be considered as informed consent. It must be said that under the circumstances, women have to undergo tremendous emotional stress due to this practice.
The very threat that Muslim men can marry up to four times is like a dangling dagger for Muslim women. It is time that Muslims themselves come forward to abrogate this practice. It does not serve any social function in the present day and age. Rather it is one of the sources through which the Muslim community is being demonised and Muslim men are being portrayed as lascivious beings.
The religious argument for polygamy also does not hold much water. Muslims themselves have argued that rather than being a permission, the Quranic injunction to marry up to four times is in fact a limiting condition in a situation where men were allowed any number of wives. Thus one reading of the Quran is that it put restrictions on the number of wives men could have. If one follows the spirit of the Quran, then perhaps monogamy becomes the ideal form of Muslim marriage as the Quran clearly says that all wives must be treated equally which is an impossible condition.
Slowly and gradually, the Quran exhorts its believers to change the normative framework according to the prevailing circumstances in society. Since the current norm is monogamy, therefore Muslims also must adopt the principle of monogamy. Also the Quranic injunction is that Muslims must follow the law of the land. Since India is a constitutional democracy, Muslims here should have no objection in case there is a law which proclaims monogamy for everyone.
The less it is said about Nikah Halala, the better. It is an atrocious arrangement which is designed to crush the self-esteem of women for no fault of theirs. The sooner it is repealed, the better it is. There are reported cases where Mullahs have made it into a business of providing Halala services, not just in parts of India but also in the United Kingdom.
If a husband and wife after divorce want to live together, nothing should stop them from doing so. The provision of first marrying someone else, getting divorced and then coming to the first partner is not just absurd, it is patently inhuman. Again, Muslims themselves should be the first to call for the abrogation of this practice. It is up to the Muslims to continue these regressive practices and earn a bad name for the community or to speak in one voice and plead the court to outlaw these anti-women practices. The choice is entirely up to them.
Arshad Alam is a columnist with NewAgeIslam.com