May 12, 2017, 10:52 AM
Is a home wherein the husband and the wife is constantly wrangling together and are averse to anyfellowship with each other worth the name, especially if the marriage be a perpetual bond and freedom from it impossible to secure? Will such a situation not be conducive to moral crimes? The husband as well as the neglected wife might be driven to seek mistresses and friends outside the home to gratify their sexual instinct. Surely the children cannot grow up properly and develop healthy and sound personalities in such a dismal, cloudy and gloomy atmosphere, for the mental health of the children and their sound development are dependent more on the social atmosphere they breathe In rather than a mere parental care. That is whence the abnormalities met with in people’s lives spring. Their roots lie embedded in the life of their quarrelsome parents.
It is also suggested that the right of man to divorce should be restricted, that is divorce should not take effect on the mere pronouncement of it by the man. Only the court should have the authority to decree divorce after appointing arbiters one each from among the people of the man and woman. The arbiters should thoroughly discuss the problem, trying to make the husband desist from his intention and agree to make peace with his wife. If all their efforts fail, only then the divorce should be ordered by the court, not by the husband.
I wonder if there is any legal objection such as due to which the adoption of such a conciliatory measure to restore peace and harmony between then spouses may not be possible. But I do not think there is really any need for the court to step in as the remedy prescribed by the Islamic law is in itself quite sufficient for the purpose. Peace and harmony between the spouses depend more on themselves and their desire to mend then on anything else. If they will be there and both wish peace, the friends and kindred may prove as useful as any court; if there is no will then not even the highest court in the world may succeeds in restoring peace between them. There are the “civilized” nations among whom only a court may decree a divorce after admonishing the parties to exhort them to patch up relations, but still large numbers of divorces to take place there. In America alone the rate of divorce is 40%-the highest in the world.
As to the suggestion that divorcee should take place only if the court is convinced that the fault lies with the wife and in the husband should prove that to live with her is a nuisance, we wonder what honor do these people want to bring to woman by making her live in the house where she is despised and where the husband ever reminds her that he no longer loves her? Should she even then stay on in his house in order to defraud him? Surely the law cannot sanction such a conduct, nor is fraud the only course action for her that she should have to live in that house as a despised and helpless wretch.
Should she then stay in the house of the father of her children to train and up bring her children? But will it be deliverable and in any way helpful in the proper up bringing of children if they live in such an atmosphere permeated with abominable injustice?
The fact is that the solution of all these problems lies in the moral, cultural, psychological and spiritual training and education of society as a whole through a long process of intellectual purgation so as to make virtue and goodness prevail in the end providing a sound basis of social life. The husband will then realize that marital relations are very sacred and should not be disrupted in such an impetuous manner.
Such a process of moral and spiritual elevation is, however, a very long and slow one. It requires that the social life of the community should be regulated by the Islamic law with the help of an incessant struggle and co-operation of all the social institutions-home, school, film, radio, press, literature, religion and the general public to achieve this end. It is a long and arduous process, yet it is the only sure way to secure sound results.
As against this, we must remember that the law is primarily concerned with administration of justice. It aims at giving both parties, the husband and the wife, their due share of it guaranteeing them the right to secure a separation in case they should find that they can no longer live with each other. In this connection, we must also remember that “of all things allowed to men divorce is most hated by God”.
With regard to the institution of polygamy we should not lose sight of the fact that it is just an emergency law. It does not at all represent any fundamental principle of Islamic law: “Marry of the women, whom seem good to you, two, three or four; and if ye fear that you cannot do justice (to so many) then one (only)” (IV: 3).
As pointed out in this verse, what is required of men is justice which being difficult to achieve in polygamy, the injunction virtually comes to imply that men should contract with one wife only. Thus the Islamic law in normal life favors monogamy rather than polygamy. But there are certain circumstances under which monogamy becomes an unjust rather than a just institution. In such extraordinary circumstances, Islamic law leaves the doors open to polygamy, for although in it complete justice is impossible to attain, the disadvantages resulting therefore are far less serious than those flowing them monogamy in such emergencies.
During wars, especially when a large number of men are decimated, balance between the sexes is seriously shaken. In such circumstances, polygamy becomes a social necessity as it may save society from the sexual anarchy that generally follows the decimation of a large number of men with a corresponding rise in the number of women in society who have no male bread-winner. Such women may earn their living, but what about their sexual gratification? This may make them fall an easy prey to the lust of men. But even after this, their most innate craving may still remain ungratified-their craving for children, without whom their whole existence is reduced to a dull, lifeless drudgery.
Should then in such circumstances the widowed women be life to gratify their sex urge as best as they can without having any consideration about the social morals? The French nation suffered this fate. The whole social structure was as a result of it disintegrated, and the French were jolted down from the exalted position they enjoyed in history. Such a social disintegration can be averted only if a man is explicitly permitted by law to have more than one woman at a time provided that he should treat all of them with justice in all things (save to course in the emotional attachment which is beyond man’s control).
In such other emergencies as the one met with during wars the same need for polygamy is indicated. There may be some men who are overactive sexually. Such people can hardly he content with one wife, nor can they check their overflowing sexual energy. They should be permitted by law to have a second wife, for otherwise they may contract illicit sexual relations with girl friend, a situation that can hardly be tolerated by any healthy social set-up.
There are besides this certain other circumstances as well under which polygamy offers the only solution to many problems viz. sterility of the wife or a chronic disease which renders the sexual union impossible. In the first case i.e. when the wife is sterile we may not blame her for it but we should blame her husband for deprived of issue, love for which is the strongest in human heart? The second marriage is the only sensible remedy in such a situation. The first wife may stay on with them or secure a separation. As to the chronically diseased wife let it not be said that sex is in itself a base instinct and, therefore, its gratification should not be sought after by undermining the happiness and well-being of an innocent woman. For, the problem here is not whether sex urge is base or exalted. It is rather of the practical need which none may afford to ignore. If the man willingly forgoes his sexual pleasure and is mindful of his wife’s pleasure, it is most welcome as an act of nobleness and generosity on his part but God does not burden anyone with more than he can easily bear. Moreover, to face the facts as they are is more realistic and better then a spurious nobleness in the guise of which all sorts of infamies are perpetrated as is generally the case with a people amongst whom polygamy is disallowed……. To be continued