Division In Plural Marriages

Allah, the Almighty, All-Merciful, has honoured all mankind with the blessing of Islam and He has honoured women further by choosing them as the means by which human life is nurtured and perpetuated on earth. Furthermore, the rights and honour of the Muslim woman have been made secure by Allah’s directives concerning the treatment of women:

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“... Live with them [women] in kindness and equity ” (Qur’an 4: 19)

Man has been instructed to care for his wives in an equitable fashion. The implication is straightforward and profound. Wives should be accorded the best possible treatment. Even if a man finds that he is bored with his wife or that he dislikes her, he should not mistreat her because it is possible that although he dislikes one quality in her, he may find other qualities which compensate for that which he dislikes. If a man having more than one wife finds that his affection gravitates towards one more so than the other(s), he should treat all outwardly well without turning away from one altogether.

60 Division in plural Marriages

Be

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CAVE re SE By pe) ie) ‘.. Do not turn away altogether and leave her hanging...” (Qur’an 4; 129)

Nor should a husband having more than one wife make his inclination so obvious as to kindle jealousy and ill-feeling which may lead to constant hostility among the wives.

Nevertheless, we must bow to the fact that love is destined by Allah and can not be forced to appear where Allah has not willed it. This situation is analogous to friendships which exist among members of the same sex. We admit to having or having had deeper feelings for one or more of our friends than others, due to greater similarity in interests or greater compatibility for whatever reason. Similarly, parents may actually be fonder of one or more of their children than others among them; however, parents usually refrain from showing this inclination openly and Islam forbids it. Nonetheless, our various friendships are not negated by an inevitable greater intimacy with some of our friends over others, nor does a greater inclination toward one child negate the love that is felt for all. Man is unable to control his emotions in the ultimate sense. They arise in him when he least expects them, hence, he cannot willfully decide where his heart is going to lodge. The fact that man has no real control over love and affection is supported by a number of Qur’anic verses:

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“ . Know that it is Allah who comes between a man and his heart...” (Qur’an 8: 24)

Polygamy in Islam 6l

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“... But Allah put affection between their hearts...” (Qur’an 8: 63)

An illustration of this fact can be seen in a narration from ‘Umar ibn al-Khattéb (.3:,) in which he said,

“When I once said,

‘O’ Messenger of Allah, what if I went to Hafsah and said to her, do not be misled because your co-wife and neighbour (‘A’ishah) is more beautiful and beloved to the Prophet (2s).’

He (the Prophet) smiled approvingly.” !

In another narration, ‘A’ishah (4) stated,

“Allah’s Messenger used to divide his time equally amongst us and would pray, ‘O’ Allah, this is my division in what I posses, so please do not hold me to blame for the division (of affection) which only You control.’ ””

Both hadiths refer to the greater feelings that the Prophet Muhammad (¢) was known to have had for one of his wives over the others. Yet, in spite of his emotional inclinations, he divided his time and wealth equally among all of them. Thus it is recommended, based on the example of the Prophet, that all men

' Collected by Al-Bukhari, (Arabic-Eng. Trans.), vol. 7, p. 108, hadith no. 145 and Muslim. Note: Hafsah was the daughter of ‘Umar and one of the wives of the Prophet (2).

? Collected by Abu Dawid, Sunan Abi Dawid, (Eng. Trans.), vol. 2, p. 572, hadith no. 2129, Tirmidhi, Nasa’i, Ibn Majah and Ahmad, Mishkar al-Masabih, (Eng. Trans.), vol. 1, p. 687 and authenticated by Shaykh al-Albani in Mishkat al-Masabih, vol. 2, p. 965, hadith no. 3235, ftn. 1, as well as by al-Arna‘oot in Jami’ al-Usool, vol. 11, p. 514, hadith no. 9090 fin. 1.

62 Division in plural Marriages

married to more than one wife be equal in the division that they are capable of controlling, namely time and wealth.

The principle of equality

The importance of equitable treatment in regard to time and wealth can not be overstressed as it is the major factor excluding the established pre-requisites for marriage, in general, that a man can weigh and assess in his day to day inter-action with his wives. Unfortunately, there are some modern-day Muslims, under the influences of western thought, who have misinterpreted some Qur’anic verses in order to support their arguments for monogamy and the abolition of polygyny. However, the equality referred to in seerah an-Nisa’:

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“_.. If you fear that you will not be able to deal justly with them then only one...” (Qur’an 4: 3)

— is referring to time and money; whereas, the equality mentioned in seerah an-Nisa’ verse 129 refers to that which no

man or woman has control over but which belongs exclusively to Allah’s decree.

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“You will never be able to do perfect justice between wives even if it is your ardent desire...” (Qur’an 4: 129)

The Prophet*s Companions, ‘Ubaydah as-Salmani (.,) and Ibn ‘Abbas (.,), both stated that the equality spoken of in Surah

Polygamy in Islam 63

an-Nisa@’ verse 129 refers to love and sex.’ Furthermore, we must take note of the fact that even the Prophet (:yz) begged pardon for that which was not in his possession, the feelings of love, affection or sympathy which were known to be greater for one of his wives than the others. Yet, Allah (4), allowed the Prophet (:) to marry a greater number of women than was allowed to ordinary Muslim men. Thus any attempt to forbid polygyny on the basis that a man might love one of the women more than the others is futile and baseless because this factor cannot be used as a gauge for justice in Islamic plural marriages.

Beginning division

Even a man with the most sincere intention and the most upright character might find himself in a dilemma concerning the initiation of time division. He might on numerous occasions experience difficulty in determining which wife he should start the division of his time with. An unbiased decision is necessary because whichever wife one begins with could be looked upon as receiving preferential treatment. If such division is left merely to the whims of the men, the likelihood of their preferences creating injustice is great, not to mention the likely dissatisfaction among the wives who were not chosen, regardless of how reasonable the man may try to be.

No hard and fast methods have been set in Islamic law for how this decision should be made. However, whatever method is used to determine where the division should begin, that method should not unjustly favour any of the wives. A simple method endorsed by Islamic law (by the Prophet’s practice) is the drawing of lots (qur‘ah) each time a process of equal time division is

* Al-Mughni, vol. 7, Pp. 316-7.

64 Division in plural Marriages

necessitated and no previous rights have been established. An example of such necessity would be right after marriage to a new wife if the man already has one or more wives. Immediately after a man gets married again, he must re-organize how his time is divided between his wives. By drawing lots it is possible to determine dispassionately who gets the first time period. If there are three wives, then two drawings would be necessary, one to see who gets the first period of time and then an additional drawing to determine who receives the second time period. And, in the case of four wives, three drawings would be required. Another example is the case where the husband wants to take a trip and is only able to take one of his wives. Yet another is the case when the husband intends to give his wives presents but is unable to do so at the same time.

One possible method of determination mentioned by scholars suggests that the husband write numbers on the lots (slips of paper) indicating the order of the nights, he must then shake the lots within a container and then hand the lots to the individual wives as he picks them from the container.* Thus the drawing of lots can be resorted to whenever the husband needs to assign a portion of his time impartially. The method or form used to draw the lots should preferably be one which is acceptable to all, although the final decision lies in the husband’s hands. There is, however, an exception to this general rule of equity in the assignment of time periods. When a new wife is married, she is given a preferential period of three or seven days within which the husband and wife may get used to each other. At the end of this acquaintance period the cycle of division among all of the wives must begin anew.

* 4l-Mughni, Vol. 7, Pp. 301-302.

Polygamy in Islam 65

Time division

The division of time according to Islamic law is generally made according to the nights, due to the fact that night is usually the time in which mankind relaxes from work and takes rest. During the night, people take refuge in their homes from the struggles of the outside world and men and women spend their most intimate time together. This division of the night and day

was divinely ordained and ordered to suit man’s nature, as Allah (4) states in the Qur’an:

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“... He makes the nights for rest and tranquility...” (Qur’an 6: 96)

EES Ler OE Cte es (VY LSS ay ge) ED hee 518 Lhe de “And made the days as a means of subsistence.” (Qur’an 78: 11)

Thus a man married to more than one wife should divide the nights among his wives while the day is his to earn a living, to take care of other people’s needs or whatever else a man wishes to do as long as it is lawful. If a man is a student he will probably be attending lectures during the day; if he is a merchant, he will be busy in the concerns of his trade and if he is unemployed, then he should be busy seeking employment in order to fulfill the rights that people have on him. Whatever a man’s profession might be, he will probably be engaged in it during a major portion of the day. An exception may be made in the case of a night watchman or anyone whose working hours are mainly at night. In such cases, days would be divided among the wives since his nights are like

66 Division in plural Marriages

the days of others. Hence it could be said that the division of time is based on the time period allotted to sleep or rest.

The resting periods must be divided equally among the wives. A man may divide the nights by giving one to each wife according to the Prophet’s practice; however, he may also divide them on the basis of two to each or three to each wife. If, however, aman has four wives it would be preferable to divide his time on the basis of one night each, whereby, each wife would get a chance to be with her husband every three days. A division on the basis of two nights would mean that each wife would only be with the husband after an interlude of six days. Under normal circumstances, the day up until Maghrib (setting of the sun and the time of the fourth daily prayer) is considered a part of the previous night which started at Maghrib on the previous day according to the lunar calendar. Consequently, the first day of the month of Ramadan, for example, begins at Maghrib on the last day of Sha‘aban (the previous month) and “Lavlatul Jumu ‘ah (literally Friday night)” is Thursday night according to the solar calendar. So if a man wants to rest during the day time, he should do so in the home of the wife with whom he spend the previous night as it is her right. Similarly, his day time meals should be taken at the home of the wife to whom the day belongs. The fact that days are counted as well as nights is based on an authentic hadith in which Sawdah (¢%,) (one of the wives of the Prophet) was reported to have given the whole of her day to ‘A*ishah (4, )- This fact can also be found in ‘A’ishah’s statement,

* Collected by Al-Bukhari. (Arabic-English Trans.), vol. 7, p. 104, hadith no. 139, Muslim, (English Trans.), vol. 2, p. 747, hadith no. 3451 and Abu Dawid, Sunan Abi Dawiid, (English Trans.), vol. 2, p. 572, hadith no. 2130. See also Mishkat al-Masabih, (English Trans.), vol. 1, p. 686.

Polygamy in Islam 67

“The soul of Allah’s Messenger was taken in my house and on my day.”°

Nevertheless, adding the day to the following night according to western practice is also allowable since there would be no difference in total time as long as the man is consistent and equal in the division of his time. He should not allocate time at will but should decide upon a feasible programme and follow it. Nor is he allowed to favour some of his wives with extra time for any reason whatsoever unless he makes up that time to the other wives at a later date. For example, it may seem logical for the husband to spend more time in the residences where there are children (in a case where one or more wives have children and others do not) to be able to fulfill the needs of children. However, the correct approach is to limit such visits to short periods which do not require making up and to take the children out of their homes to parks or to house of the wife whose turn it is, if possible. The children’s right to time is considered independent of their mother’s right according to law and if they are over-lapped injustice to co-wives will result unless the time is made up later on.

The wife's right to time

According to Islamic law, if a man has only one wife, it is obligatory for him to spend one night out of every four with her if he does not have a legitimate excuse not to do so. This principle was deduced from the following incident which occurred during the time of the second Caliph, ‘Umar ibn al-Khattab (4). Once when K*ab ibn Sawr (.28,) was sitting with Caliph ‘Umar ibn al-

° Collected by Al-Bukhari, (Arabic-Eng. Trans.), vol. 7, p. 107, hadith no. 144 and Muslim. See also Mishkat al-Masabih, (Eng. Trans.), Lahore; vol. 1, p. 686.

Division in plural Marriages

Khattab, a woman came to the Caliph and sought his ruling

saying,

“QO? Amir al-Mu’minin,’ | have never seen a man better than my husband. I swear by Allah that he spends the whole night standing in prayer and the whole day fasting.’’ On hearing that ‘Umar prayed Allah to forgive her and praised her good fortune to have so righteous a husband. So the woman shyly got up and began to leave with her husband. K‘ab turned to ‘Umar and quietly said, “O’ Amir al-Mu’minin have you not oppressed the woman with her husband?” ‘Umar replied to K‘ab, “You go ahead and judge between them for certainly you have understood something about their affair that I did not.” K‘ab then said, “Verily, I see her like a woman along with three other women and she is the fourth. So, I rule for him three days and nights in which he can worship and fast and for her a day and a night (in which he must attend to her human needs).” K‘ab then turned to the husband and said, “O’ husband, verily, she has a right that you should sleep with her once in every four days if you are to be just."

‘Umar praised K‘ab for his great judicial abilities and appointed him chief judge of the city of Basrah.

Thus a man who has four wives must allot to each wife one night out of four or some multiple of that ratio mutually agreed

upon. Equal division of time must also be made for women unable

7 Literally “Leader of the faithful”. A title which was given to ‘Umar and the Caliphs who succeeded him as leaders of the Islamic State.

® Collected by Abu ‘Ubaydah Mu‘ammar ibn al-Muthanna in the book, Akhbar Qudat al-Basrah (quoted in al-Mughni, vol. 7, p. 203).

Polygamy in Islam 69

to have sex; for example, sick women, menstruating women, young girls who are not sexually able, women in Nifas (the period after childbirth), women in ihram.? and women who have passed menopause with no desire for sex, unless they decide to give up their right.'° The reason that equal time is insisted upon in Islam even if women are unable to have sex is based upon the woman’s psychological and emotional need for companionship for which matriage was ordained. That need in most cases increases when women are disabled temporarily or permanently. Thus even insane women according to law have a right to equal time division if they are not dangerously insane. Husbands are also required according to Islamic law to divide their time equally even if they themselves are ill as long as the wives demand it. This point of law is illustrated by the Prophet’s wife, ‘A’ishah’s, statement that

“Allah’s Messenger visited all of his wives in turn when he was sick and would ask, ‘Where shall I be tomorrow?” |!

However, when it became difficult for him to move around, he asked permission to remain with ‘A’ishah (V3,). ‘A’ishah related that,

“When Allah’s Messenger was ill, he called all of his wives together and said, “Verily, | am no longer able to visit all of you, so, if you

? Sex is not allowed once one has donned clothing for ‘Umrah or Hajj and made the intention to do one or both of them.

'0 When the Prophet’s third wife, Sawdah, became old, she gave up her turn to be with the Prophet to ‘A’ishah. See Muslim, (Eng. Trans.), vol. 2, p. 747, hadith no. 345.

" Collected by Al-Bukhari, (Arabic-Eng. Trans.), vol. 7, p. 107, hadith no. 144. See also Mishkat al-Masabih, (Eng. Trans.), vol. 1, p. 345.

70 Division in plural Marriages

do not mind that I remain with ‘A’ishah, please allow me to do so.”

If the wives refuse to give that sick or invalid husband permission to stay with the wife of his choice, he should stay with one of them by Qur-‘ah (drawing of lots) or he should stay away from all of them if he prefers. In the case of an insane husband who is not dangerous, it is recommended that a guardian for the women (for example one of their close relatives) should accompany him to help him correctly make this division of time. If the guardian is not equal in his division by favouring one wife over another, and the insane husband regains his sanity, he is obliged to compensate those who did not get their rights.

Time rights of a new wife

The extra free time for acquaintance given to the virgin bride is obviously needed due to the newness of marriage and sex to her, whereas the previously married bride in most cases is familiar with both and needs only a chance to become familiar with her new partner.'? However, the option of seven days is also given for the widow or divorcee in order to allow for cases wherein marriage and sex may be as new to her as to the virgin. This applies in cases where her previous marriage was extremely short or even unconsummated or the lapse of time between her previous marriage and her re-marriage was great. When an already married man marries a new wife, he is allowed by law an acquaintance period with his new wife of seven consecutive days

"= Collected by Abu Dawid, Sunan Abi Dawid, (Eng. Trans.), Vol. 2, p. 573, hadith no. 2132 and authenticated by Shaykh al-Albani in Sahih Sunan Abi Dawid, vol. 2, p. 401, hadith no. 1870.

'S Sharh as-Sunnah, vol. 9, p. 156.

Polygamy in Islam 71

if she is a virgin and three days if she has been married previously. He does this without making up the time for the remaining wife or wives. This law is based on the Sahabi, Anas (.33), report,

“It is from the Sunnah (the Prophet’s practice) if a man matrices a virgin that he stay with the virgin wife for seven days and then divide his time equally after that. And, if he marries a woman who was previously married, not a virgin, he should stay with her for three days then divide his time equally.”!4

However, if the previously married new wife requests seven days for herself, he may also do that but he must make up the full time with the other wives. Abu Bakr ibn al-Harith (.#) reported that on the following morning after the Prophet (zz) married Umm Salamah (<4;), he said to her,

“Do not feel that you are unimportant among your people, for if you wish, I will spend seven days (with you) and spend seven with the rest of my wives or if you wish, I will spend three days with you and divide the time equally after that.” She replied, “Make it three.”

Thus as soon as the new wife has been given her time right, the husband is obliged to begin dividing his time equally among the remaining wives, by drawing lots to determine with whom he will start.

'* Collected by Al-Bukhari, and Muslim (Eng. Trans.), vol. 2, p. 746, hadith no. 3448. See also Mishkat al-Masabih, (Eng. Trans.), vol. 1, p. 686 and Muhammad Rahimuddin’s Muwatta Imam Malik, (Eng. Trans.), Lahore: Sh. Muhammad Ashraf Publishers, 1980, p. 234, hadith no. 1076.

'S Collected by Muslim, (Eng. Trans.), vol. 2, p. 746, hadith no. 3444. See also Mishkat al-Masabih, (Eng. Trans.), vol. 1, p. 686 and Muwatta Imam Malik, (Eng. Trans.), p. 234, hadith no, 1075.

72 Division in plural Marriages

Conjugal rights

According to some scholars, sex is compulsory unless the husband has a valid reason for abstaining.'® This opinion is based on a hadith of ‘Abdullah ibn ‘Amr al-‘As (#5) in which he narrated that the Prophet (x) said,

“O’ ‘Abdullah, have I not been informed that you fast all day and pray all night?”

‘Amr replied, “Yes, O’ Messenger of Allah.”

So the Prophet said,

“Do not do that. Fast and break your fast, stay up at night and pray and then sleep, for verily, your body has a right on you, your eye has a right on you and your wife has a right on you.”!”

Obviously, sex is as much a woman’s right as it is a man’s right because marriage maintains the purity of women as much as it maintains the purity of men. This right is also based on the fact that if women did not have the right to sex, it would not have been made mandatory in Islamic law for the husband to get his wife’s permission to practice ‘Az/ (coitus interruptus). ‘Umar (2) is reported to have said that,

“Allah’s Messenger forbade ‘4z/ with a free woman without her permission.”!®

© Tmams Ahmad ibn Hambal and ash-Shafi‘i felt that sex was not a compulsory part of marriage like the divisions of time and money (al-Mughui, vol. 7. p. 304).

’ Collected by Al-Bukhari. (Arabic-Eng. Trans.), vol. 3, Pp. 110-1, hadith no. -96 and vol. 7, p. 97, hadith no. 127 and Muslim, (Eng. Trans.), vol. 2, Pp. 365-6, hadith no. 2599. See also Mishkat al-Masabih, (Eng. Trans.) vol. 1, p. 435-6.

* Collected by Ahmad and Ibn Majah, Mishkat al-Masabih, (Eng. Trans.),=

Polygamy in Islam 73

That is, the woman has the right to enjoy the complete sex act and bear its fruit if she wishes. Allah said that men and women are protective garments for one another; therefore, it is not fair for a man to deny his wife if she needs him.'? This does not necessarily mean that he must have sexual intercourse with her every four days without fail, but rather that he should spend time with her so that she feels that he is concerned about her; so that the bonds of love, trust and compassion are strengthened between them and so that the wife retains a sense of security within the relationship.

Some scholars deem sex to be compulsory at least once in four months, based upon Allah’s calculation of four months causing divorce when a man swears to avoid his wife sexually.”° In such a case, known as Eela’, if the husband does not have sex with his wife before the end of four months, they are automatically separated by the judge. Marriage was instituted for the welfare of both parties and for removing of harm from both parties. It removes the danger of illicit desire (in most cases) from both parties; therefore, both men and women must be conscious of their duties toward one another. Neither party should be overdemanding, nor should either party be negligent of the other’s needs.

=vol. 1, p. 697 and rated weak (Da‘if) by Shaykh al-Albani in Jrwa@ alGhaleel, vol. 7, p. 70, hadith no. 2007.

'® Sex with your wives has been made lawful during the night of fasting, for they are garments for you and you are garments for them.) (Qur'an 2: 187)

2° (Qur'an 2: 226-7).

74 Division in plural Marriages

Making up time

If a man leaves his wife’s residence for other than work during her day, the beginning of her night or the end of her night and returns immediately (as in the case of prayer), he is not required to make up that time. However, if he goes somewhere for a long period of time or does not return that night, then the time must be made up because his absence has deprived her of her right. He may make up the lost time by being absent from the other wife or wives for a similar time. Since it is allowable for him to leave them both for a complete night, leaving them for a portion of a night is also allowed. He may make up the lost time by being absent from the other wife or wives for a similar period on their days to insure that complete equality is maintained. The time that is made up should preferably be at a similar time to the time that was lost, as in the case of other rights. He may instead choose a free night for himself and return a portion of it to the wife who lost time. Or he could choose to make up the lost time by extending the time of the wife who lost time in such a way that the added time for the first matches half of the lost time for the second, thus equalizing the loss. For example, ifa man having two wives owed one of them two hours, he could resolve the matter by extending the owed wife’s time into the time of the other wife by an hour, thereby leaving an hour owing to the former and the latter, which balances the situation.

It is generally held among scholars that visiting a wife for an extended period during her co-wife’s time is not allowed at night except in the case of dire necessity such as illness or the like. If one of a man’s wives is sick and he wants to visit her at night, it is not necessary for the husband to make up the time if he does not stay for an extended visit but leaves shortly afterward. If he

Polygamy in Islam 75

decided to extend his stay, he must make up for his absence from the other wife once her co-wife gets well. If he visits one of his wives within the night time of another for a few minutes or the like merely to socialize, there is no need to make up time; however, if the visit becomes lengthy, then time must be made up.”! On the other hand, it is not a condition of equality among wives that a man be forced to isolate himself each night for each wife in such a way that no other wife can see him. The Saha@bi Anas said, “The Prophet () used to have nine wives at one time. Whenever he divided his time among them, he would not return to the first until nine days had passed. And, all the wives used to gather each night in the house which he was going to”? Anas also reported that on occasions, the Prophet (2) used to go to all of his wives in a single night and he had nine.** Thus it is reasonable to conclude that it is permissible for a man to sit and talk with a wife during her co-wife’s time as long as the visit is brief. Even if it so happened that he had sex with her during the visit, he would still not have to make up the time if the act occurred within a short time period. Making up time would not be required because sex does not require equal division due to the fact that physical preferences or preferences of the heart do not affect the general principle of equality and a short time period does not have to be made up.™* However, in order to preserve order and family stability, it would be better if the husband simply exercised self-restraint and limited himself to sex with the one whose turn it is unless extenuating

2! Al-Mughni, vol. 7, Pp. 306, 307.

2 Collected by Muslim, (Eng. Trans.), vol. 2, p. 747, hadith no. 3450.

3 Collected by Al-Bukhari, (Arabic-Eng. Trans.), vol. 7, p. 106, hadith no. 142. 4 Some scholars hold that this time should be made up by visiting the wife whose time was used and having sex with her during her co-wife’s time; based on the fact that the short time period in which sex takes place produces rest (sakan) resembling that of a long time period.

76 Division in plural Marriages

circumstances force him to act otherwise. Allah is aware of our intentions. And night visits for other than dire necessity should be consistent and reciprocal in order to avert any display of favouritism and the accompanying jealousies which such visits are bound to produce.

Visiting a wife in the day time of her co-wife’s turn is allowable for purposes of socializing, providing provision, visiting the sick, etc. This principle is based upon a report in which the Prophet’s wife ‘A’ishah (,) said,

“A day would not pass without Allah’s Messenger visiting all of us, one at a time. He would come close to us and fondle us without having sex. And he would continue to visit each one of us until he arrived at the wife whose day it was and there he would pass the night.”

Ideally, a man’s visit to a wife on a co-wife’s day should not be a lengthy one in order to avoid indications of favouritism and the jealousy which it will inevitably produce. Thus if a husband visits for a long time, he must make it up. And, if sex takes place within a short time during a visit in the day, it does not have to be made up.”?° However, the general recommendation mentioned earlier regarding night visits also holds true here. If day time visits are frequent, they should be equally shared in order to avoid any imbalance and jealous reactions.

2° Collected by Abu Dawid, Sunan Abi Dawid, (Eng. Trans.), vot. 2, p. 572, hadith no. 2130, al-Hakim and al-Bayhaqi, and authenticated by Shaykh alAlbani in Sahih Sunan Abi Dawid, vol. 2, p. 400, hadith no. 1868.

2" The other position, as in the case of the night, is that time should be made up by visiting the wife whose time was used and having sex with her during the other one’s time.

Polygamy in Islam 77

If women are in different countries or cities by the husband’s choice, he is required to be equal in the division of his time between them because he has chosen the separation. Neither of the wives’ rights should be dropped because of the separation. He should either visit the absent wife regularly, have her come to him regularly or bring them both together in the same city or country. If the absent wife refuses to come and she is able to do so, her right to division is lost. However, if the husband prefers to keep them in two different countries or cities and the single division is difficult or impossible, he can set the period to be spent with each wife according to what is possible or reasonable, whether monthly, weekly or the like. If the husband is unable to visit his wives for equal periods of time due to considerations of work or economic limitations, the lost time remains a debt owed to the wife which must be repaid at the first available opportunity.

If a wife travels to fulfill a personal desire such as work, trade, education, visiting relatives or friends, or for religious reasons like ‘Umrah, her right to equal division of time and support is dropped since the division of time is for intimacy which she has chosen to forego and support is given to make intimacy possible. In other words, when division and support become difficult, unfeasible or impossible due to reasons emanating from her, the obligation of division and maintenance is dropped. This principle is also deduced from the fact that if the man travels, the division is automatically dropped, as the Prophet (zs) did not make up time after returning from a journey. Thus, if division is dropped when the reason emanates from him, it must also be dropped if the reason comes from her. However, if he has sent her on some errand or if he has her leave the city, her rights of division and support remain intact.

78 Division in plural Marriages

Giving up division rights

A wife may give up her right to division to her husband, to some of his wives or all of his wives if the husband agrees. Since it is his right to take pleasure from her, it must be with his agreement. This principle is based upon the fact that Sawdah (<2,) (one of the Prophet’s wives) gave her day to ‘A’ishah (<4,) (another one of the Prophet’s wives). So the Prophet (2) used to add the time originally allotted to Sawdah to *A’ishah’s time. It is narrated that when Sawdah bint Zam‘ah became old and feared that Allah’s Messenger might divorce her, she said,

“©” Messenger of Allah, I give my day to ‘A’ishah.” And, he accepted it.?”

If the day which is given precedes or follows the day of the wife to whom the day is given, the husband may stay with that wife for two consecutive days, but if the other wives have days in between, the husband is not allowed to put the days together without the permission of the other wives. If the right is given to the husband, he may give it to any one of the wives he wishes to. However, if a wife gives up her time without giving it to another wife or to her husband, he has to divide his time equally among the remaining wives. What is more, the wife who has given up her turn may ask for it back whenever she wishes but she has no right to what has already passed.”* Tt must be noted that it is incorrect for her to give up her time in exchange for wealth and if she has done so, she should return the wealth and he should make up her

>’ Collected by Abu Dawid, Sunan Abi Dawitd, vol. 2, p. 572, hadith no. 2130, and authenticated by Shaykh al-Albani in Sahih Sunan Abi Dawid, vol. 2, p. 400, hadith no. 1868.

24 Sharh as-Sunnah, vol. 9, Pp. 152, 153.

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time. However if it is exchanged for other than wealth, su:h as trying to please her husband, it is allowable. This position is based upon an incident reported by the Prophet’s third wife, ‘A’ shah (<4), in which she said that,

“Allah’s Messenger was displeased with his wife. Safeeyah bint Huyay, because of something that she had done wrong. Safeeyah asked ‘A’ishah if she would accept one of her days in order to make the Prophet (sz) pleased with her and ‘A’ishah agreed. When Safeeyah’s day came, ‘A’ishah took a scarf dyed in saffron and sprinkled water on it so that its perfume would spread, tied it around her head and came and sat next to the Prophet ss). The Prophet (2) said, ‘Go away from me ‘A’ isha for surely it is not your day.’ She replied, ‘This is Allah’s favour which He gives to whomsoever He pleases.’ Then she told him about Safeeyah’s bargain with her and he immediately became pleased with Safeeyah.”*”

Residence rights

It is preferable that each wife have separate living quarters in which the husband visits her because that was the way Allah’s Messenger (x) divided his time. In view of this fact, a husband should not put his wives in the same house unless they agree to a communal arrangement or the house is divided into distinct and separate apartments such as might be found in a duplex. It makes no difference whether the house is large or small if kitchen, bathroom and other facilities are shared, because living together constitutes a type of hardship on them due to the natural jealousies

°° Reported by ‘A’ishah and collected by Ibn Majah and rated weak (Da 7f\ by Shaykh al-Albani in Da ‘if Sunan ibn Majah, p. 150, hadith no. 428.

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which are likely to arise among them. Such living arrangements often lead to arguments and fighting which obliterate the apparent economic benefits of living together. The wives may experience jealousy when he goes to either one of them or they may imagine preferences which could lead one or more of them to experience emotional harm or inhibition. Nevertheless if they agree, it is permissible because it is their might to decide. It is even permissible according to Islamic law for them to sleep in the same bed if it is necessary and they agree to it, but it is not lawful for the husband to have sex with one in the sight of the other even if they agree.” Such an act would be a breach of human decency and would be against the spirit of Islam as regards modesty and privacy. However, there is no harm in living together in the same house or in the same quarters with the basic understanding that all parties will conduct themselves in an Islamic fashion in order to insure harmonious relations. Nonetheless, it should also be realized that such arrangements will naturally inhibit the parties involved as far as free expression of affection goes. For some wives may be more affectionate than others and if no checks are placed on displays of affection in front of less affectionate wives, jealousies are bound to arise. Thus any display of affection on the husband’s part will have to be balanced and restrained.

It is also allowable for the husband to have separate living quarters for himself as well as his wives, and have each wife visit him during her respective day and night. This allowance is possible because a man has the right to move his wife wherever he wishes and if she refuses, her right to division is lost due to her disobedience. Additionally, if he wishes to place all his wives in one home and have them visit him on their respective turns, it is

3° 41-Mughni, vol. 7, p. 300.

Polygamy in Islam &1

also possible. Or if he wishes to visit some of his wives in their homes and have others visit him in his, it is also allowable as he has the right to house them wherever he sees fit as long as the housing is equitable and befitting his means. That is, he can not legally house some of his wives in luxurious housing and others in squalor. Houses or apartments, may vary in size according to the size of the families involved but not in quality unless the differences in quality are due to a wife’s contribution from her own wealth.

Travel rights

If the husband wishes to travel and wants to or is only able to take some of his wives with him, he has to choose among them by drawing lots as all of them have equal rights to travel with him if they wish. This principle is based on the Prophet’s practice as narrated by his wife, ‘A’ishah, wherein she said that,

“Whenever the Prophet wanted to travel, he used to draw lots among his wives and the wife whose lot came out would travel with him.”*!

The husband is then not required to make up the time spent on the trip for the wife or wives who did not travel, regardless of the length of the trip.** Al-Bukhari’s collection of Hadiths further mentions that on one occasion the lots came to ‘A’ishah and Hafsah (may Allah be pleased with them). However, if he takes two wives on a trip with him by drawing lots, he has to treat them

5! Collected by Al-Bukhari, (Arabic-Eng. Trans.), vol. 7, p. 103-4, hadith no. 138, Muslim and Abu Dawid, Sunan Abi Dawid, (Eng. Trans.), vol. 2, p. 573, hadith no. 2133. See also Mishkat al-Masahih, (Eng. Trans.), vol. 1, p. 686.

>? Sharh as-Sunnah, vol. 9, p. 154.

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equally in all the previously mentioned aspects of division. Most Islamic legal scholars take the position that if he travels with one wife without drawing lots, he has sinned and is obligated to make up the time that he resided overnight with her on the road? A man is not obligated to travel with the one the lot falls to if he prefers to travel alone rather than with her. The drawing of lots is necessary to determine who has the right to go with him if he takes someone. However, after drawing lots, choosing to travel alone without good reason should be avoided because of the obvious illfeeling which such a decision would create. If the wife whose lot comes up decides to give her lot to another, she may do so with the husband’s permission. Should she decide not to go, he may insist that she do so as her companionship is his right if her lot comes up. It is allowable for the wives to agree to one of them going without drawing lots because they may give up their right. However, if the husband is not pleased with their choice and prefers another, lots must be drawn unless they agree with his choice. In the event that the husband travels with one and during the trip, decides to go elsewhere, it is still considered part of the trip and no make-up is necessary.

Should a husband transfer his home to another country and he is able to take all of his wives at the same time, he must do so according to law. However, if he decides to take only one, even by drawing lots, he must make up the traveling time and all other time for the others.** If he is unable to take all of his wives at one time or if it is very difficult to do so, it is permissible to send all of them with some trustworthy person and thereby avoid drawing

°? Abu Haneefah said that making up time was not necessary in this case, because it is not possible to make up travelling time with residing time. (a/- Mughni, vol. 7, p. 314)

at Sharh as-Sunnah, vol. 9, p. 154.

Polygamy in Islam 8&3

lots and making up time. But, if he wants to take one or more of them with him to the exclusion of the others, he should only do so by drawing lots. Naturally, if he not only relocates but also settles down with one or more of them, he must later make-up the time spent with them for the others when they arrive.

Spending and clothing rights

It is not necessary for a husband to provide his new wife with all of the luxuries already possessed by his other wives right away. However, he is required to provide her with the basic necessities according to his means and social status. He may, if he chooses to, provide her with any amount of gifts as part of her dowry. However, after marriage all gifts must be balanced.

Equality among women with respect to spending and clothing is not obligatory once the husband has provided each with her basic necessities. For, if equality were made compulsory, he would be unable to do so without placing himself under great duress.*° However, a man should be as just as possible in looking after the needs of the individual wives. The basic principle of Justice as opposed to equality can be more clearly illustrated by the following examples: One wife’s refrigerator breaks down and the other wife’s refrigerator is in good condition. The husband should repair or replace the broken refrigerator without having to replace the other refrigerator because there is no need to do so. Similarly, if one wife is large and needs four meters of cloth in order to make a dress while the other wife is smaller and only needs two and a half meters, buying what is sufficient is all that is required. In cases where tastes differ with perhaps one wife

35 4l-Mughni, vol. 7, Pp. 305, 306.

34 Division in plural Marriages

wanting silk, while the other one prefers cotton, the relative difference in value has to be made up for the wife who wants cotton — if it is more expensive and if she wishes.

Gifts

Personal allowances are not a requirement according to the Islamic law; however, if the husband decides to give one of his wives an allowance, he should give the others the same. Similarly, gifts should be balanced; however, if he buys earrings for one and the other has no desire for earrings, he should give the cost of the earrings to her or buy her something else of equivalent value. Spending for children is not included in the division of wealth among wives; hence, it goes without saying that if one wife has seven children and the other wife has two that the husband must spend more in terms of food and clothing for the larger family.

It can generally be said that moderation in demands has to be maintained if plural marriages are to work among moderateincome spouses. Demanding absolute equality or requiring that the husband make up every minute right can only lead to the strangulation and ultimate destruction of plural marriages. It is not necessary to regard the occasional overlooking of certain minor rights on the part of those involved as major losses or oppression, for Allah does not allow any right to be lost no matter how small. And, good-hearted charity in the interest of harmony and goodwill is always rewarded. If, however, gross injustice exists in any of the previously mentioned areas of rights, the oppressed wife has basically three recourses. First, failing in her own requests for justice, she may ask her natural guardian (Wali’) or an appointed guardian (Wakeel) to intervene and advise her husband to be just. If such an attempt fails, she may request that the court judge the

Polygamy in Islam &5

case, and if the court finds that the husband has indeed been unjust, he can be ordered to be just. She may, subsequently, request a divorce if the husband refuses to comply to the courts orders,*° or she may simply relieve him of the obligation of justice if she feels that maintaining the marriage is more important than obtaining her rights.

36 It should be noted that the commonly quoted hadith in which the Prophet is supposed to have said,

“The most disliked of allowable things by Allah is divorce.”

Collected by Abu Dawid, Sunan Abi Dawid, (Eng. Trans.), vol. 2, p. 586, hadith no. 2173 and Ibn Majah, is weak (Da 7f). See Da if Sunan ibn Majah, p. 155, hadith no. 441.

Section Five