The Independent Gateway to Kurdish News and Analyses

Polygamy in the Muslim world and new restrictions in Iraqi Kurdistan

 

Kurdish Herald Vol. 2 Issue 1, February 2010 - by Haje Keli

 

Iraqi Kurdistan finds itself at the crossroads of a number of conflicts. Debates on new Iraqi oil contracts center around the region and its practices, and the neighboring countries of Turkey and Iran periodically treat the region as a battleground, with little regard for its inhabitants. Perhaps precisely because Iraqi Kurdistan is a semi-independent autonomous area and not a fully independent state in its own right, the region presents many debates and conflicts with few clear cut answers. While oil and military maneuvers certainly have their place in the world’s headlines and easily provoke debates among complete strangers and casual observers, it is less known that the Iraqi Kurdistan region is also the site of one of the most interesting societal debates in the Middle East – the debate on polygamy.

 

Countries in the world, highlighted in red, where polygamy is accepted and legal.

 

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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