Many see laws addressing polygamy as a barometer of where lawmakers
stand on a spectrum of religious versus secular, or even modern
versus traditional. Such a view is rather simplistic, but not
completely lacking in merit. Indeed, Iraqi Kurdish lawmakers
have directly addressed the issue of polygamy and they have set
forth a unique law addressing
the issue, providing a solution that some see as a compromise
of sorts on the issue.
The word polygamy, by definition, refers to someone having more
than one spouse, be it a husband or wife. When a man takes more
than one wife, this precise situation is referred to as polygyny.
A third term, polyandry, refers to the practice of females having
more than one husband at a time.
The concept of polygamy (more precisely but less commonly described
in this context as polygyny) has become a topic of discussion
in many Muslim countries, in particular the Middle East. While
the Iraqi Kurdish administration has boldly addressed the issue,
it is not the first government of a Muslim majority nation
to take such steps. Indeed, many countries have tried in
some way
to limit the practice of polygamy. In the Syrian personal status
law, for instance, the man must prove to the judge his ability
to financially support the new wife as well as the first. It
is then up to the judge to decide whether the man can take
a second wife.
In classical Shari’a, it is permissible for a Muslim man
to have up to four wives. According to renowned Islam researcher
John Esposito, allowing a man to have four wives was a reform
that improved the status of women; women in Pre-Islamic Arabia
were subjected to unlimited polygamy, and permitting four wives
simultaneously was in fact limiting polygamy. Furthermore, the
Qur’anic verses that state that if the man fears he cannot
treat his wives equally then he should just marry one cannot
be dismissed in any discussion of polygamy in Islam.
There are, however, historians and researchers who contest this
somewhat insider view, claiming that even though polygamy was
practiced in Pre-Islamic Arabia, there was also a widely accepted
tradition for polyandry, both in Mecca and Medina. With the arrival
of Islam, however, polyandry was prohibited.
The controversy around polygamy began at the start of the 20th
century, with Egypt and the Middle East opening up to Europe.
Modern religious reformers, led by Muhammad Abdou, supported
restrictions on polygamy. Abdou developed an argument contending
that polygamy was permitted during Muhammad’s time as a
concession to the dominant social conditions of the time. Verses
3 and 129 of Surah Nisa’ (4:3 and 4:129) set forth the
norm that more than one wife is permissible if equal justice
and impartiality were guaranteed.
Historically, the fundamentalists had a strong reaction to
the reformist views, claiming that one must make a distinction
between
verse 3, which would mean equality between the wives in a material
sense and tangible matters, and equality in verse 129, which
might then mean inner emotions, something a man cannot possible
control.
Tunisia
Soon after independence from France in 1956, Tunisia issued its
Personal Status Law, which was motivated by unofficial draft
codes of Maliki and Hanafi law. A year later, in 1957, Law
number 40 was issued and, with that, polygamy was prohibited.
The main argument in favor of the prohibition was the government’s
claim that the practice of polygamy was outdated and its past
function (i.e., to protect widows and orphans through marriage)
was not relevant to society anymore. The other main argument
was that the Qur’an’s ideal was indeed monogamy.
The views of the reformist Muhammad Abdou were adopted and
the two aforementioned Qur’anic verses, 4:3 and 4:129,
dictated the ideal standard.
Turkey
A Muslim-majority country that preceded Tunisia in outlawing
polygamy is Turkey. Following the collapse of the Ottoman Empire
after World War I, the Turkish Republic was formed and it became
the first and only Muslim government to replace Shari’a
law with a secular legal code. Although the Ottoman Empire restricted
polygamy in 1917 by requiring the approval of the first wife
to any successive marriage of her husband, the founder of the
Turkish Republic, Mustafa Kemal Ataturk, prohibited the practice
altogether. The Turkish civil code was adopted in 1926 and Shari’a
law was no longer in use. While it is rare (and illegal), polygamy
still occurs in Turkey, but only in certain rich urban areas
and in some rural areas. The second wife is called the kuma,
and the ceremony is conducted by an imam. The second wife, however,
has no legal rights under Turkish civil law.
Iraq
Prior to the Personal Status Law, Shari’a was the general
law in Iraq and there was no distinction between civil and personal
status cases. In 1917, the Shari’a courts were responsible
for the personal status affairs of Sunnis, while personal status
issues for the Ja’fari Shi’a school were overseen
by the civil courts. The new Personal Status Act No.188 was announced
in 1959 and functions as the Universal Personal Status Law, which
means that it applies to all Iraqis with the exception of Christians
and Jews.
In accordance with the personal status law of 1959, men are
allowed to take up to four wives. The spouse has to, however,
prove that
he is capable of financing more than one wife, and that there
is lawful benefit from the marriage. Not meeting the terms
of the polygamy law leads to fines and imprisonment. The
committee
that formulated the Iraqi Personal Status Law also referred
to the Syrian Law Number 59 in certain areas of personal
status.
Upon reading the personal status law, it is evident that the
decision is in the hands of the judge who will grant or reject
the man’s petition for marriage to an additional wife.
He is the one who decides if the man has proven his ability to
support additional wives and whether he can treat all wives equally.
Indeed, it is clear that the man may have the ability to take
more than one wife, though the ultimate decision of whether or
not he can legally practice polygamy lies with a judge.
Iraqi Kurdistan (KRG)
In 2008, an amendment to the 1959 Iraqi Personal Status Law
was passed by the Kurdistan Regional Government (KRG) of
northern
Iraq. Up until the passing of this amendment, the man has had
the ability to marry up to four women. According to the new
amendment, the man is limited to marrying a maximum of two
women, and not
four. He can only take the second wife if his first wife is
unable to have children or suffers from a disease. Men who
violate these
restrictions will either serve six months in prison or pay
a fine of 10 million Iraqi dinars.
This is interesting because the Kurdistan Regional Government
(KRG) is an autonomous government ruling over the Kurdistan Region,
which includes the three governorates of Dohuk, Erbil, and Suleymania
in northern Iraq. According to the formal legislation, the Iraqi
Kurdistan Parliament can amend the application of Iraq-wide legislation
if this law in question is not exclusively subject to federal
authority’s powers. There could be many factors motivating
the Kurdistan Region’s to distinguish itself from the rest
of Iraq with respect to the issue of polygamy. Indeed, Iraq’s
Kurds are distinguished from the Arab majority not only in racial-ethnic
terms but also with respect to religious affiliation, as Iraq’s
Arabs are either Shi’ite or belong to the Hanafi school
of Islamic law, while Kurdish Sunni Muslims almost exclusively
belong to the Shafi’i school.
The draft for the amendment was submitted by the Women’s
Rights Protection Committee of the KRG to the Iraqi Kurdistan
Parliament. The amendment changed several aspects of the Personal
Status Law of 1959, one of them regarding polygamy. According
to the committee, the amendment is based on international agreements
and the nature of Kurdish society and community. The committee
also states that amendment is aimed at gender equality, yet is
still in compliance with Islamic law. The leader of the committee,
Pakhshan Zangana stated, “We have come to a conclusion
that polygamy is out of place considering the current situation
in Iraqi Kurdistan Region.”
The reformist view claimed polygamy was a thing of the past
that served its purpose during a time when Muslim society
needed to
take care of unwed women. Some claim that there might still
be use for polygamy in the Kurdistan Region and the reasons
resemble
those of early Islam. According to articles posted by the government,
it seems as though single women are petitioning against a restriction
on polygamy. It also states that years of war in Iraq, combined
with the large number of Kurdish men migrating to the West,
has left the Kurdistan region with a shortage of men compared
to
women. Is this a good enough reason to allow polygamy or preclude
the passage of any restrictions on this practice?
Iraq as a case is rather confusing, as the regional government
in the north that rules over nearly 4 million people has amended
the original Iraqi personal status law by allowing only one
wife in addition to the first one. Reformists like Abdou
stated that
polygamy was an outdated practice that was no longer needed.
Some in Kurdistan protest that polygamy is still needed in
order to marry off single women. The KRG amendments challenge
both
the Iraqi Personal Law of 1959 and the traditional Islamic
allowance of four wives. The committee that put forth the
amendment on
the polygamy law does, however, claim that it is in compliance
with Islamic law. How they justify that statement remains to
be seen.
Polygamy, which is, according to most interpretations, allowed
by Islamic law, remains a topic of great interest and debate
even today. Indeed, those countries that sought to restrict the
practice of polygamy decades ago were nothing less than revolutionary
in their approach to the issue. Indeed, Iraq has placed some
restrictions on polygamy since 1959, though the issue was far
from closed with the promulgation of the new Personal Status
Law that year, which placed certain restrictions on polygamy.
While the Kurdistan Regional Government directly addressed the
issue once again in an Iraqi context by debating the law and
ultimately passing an amendment to this law, the amendment itself
represented yet another compromise between those who support
the practice polygamy in keeping with their interpretation of
Shari’a and those who advocate a wholesale ban on the practice.
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