The issue runs much deeper than a mere seeking of permission from the first wife. It involves the methodology of the CII in interpreting the texts of the Quran and the Sunnah. Theoretically, the CII should be following the Hanafi system of interpretation, which is also called the Hanafi school (of interpretation), because the Hanafis are in a majority in Pakistan. A school, we may remind ourselves, is a system of interpretation and not a sect. The word ‘sect’ was used incorrectly by the British for these schools. The CII must choose some methodology so that the public and the jurists can understand their rulings; it is not enough to say that the CII follows the discipline of usul ul-fiqh (Islamic jurisprudence).
Avoiding all technical jargon, we may recall that Mary Robinson (Former UN high commissioner for human rights) once said: “Human rights are inscribed in the hearts of people; they were there long before lawmakers drafted their first proclamation.” She was emphasising the views of John Locke, and the later American position, that human beings originally existed in a state of freedom and acquired their rights before states stepped into the picture. These rights were not surrendered to the state, therefore, human rights lie outside the ambit of the law and cannot be restricted.
Jeremy Bentham, on the other hand, rejected human rights calling them “nonsense on stilts.” He maintained that it is the state that grants rights and it is the state that takes them away. In other words, everything remains prohibited, unless the state permits it or what the state does not expressly prohibit is permitted by the state, but it can prohibit it. Something like this is upheld by our constitution (Art. 4(b)): “no person shall be prevented from or be hindered in doing that which is not prohibited by law.”
In the Shariah too, jurists take up two positions. The first position states that originally all things were permitted, but the Shariah came and prohibited certain things. All those things that the Shariah did not prohibit retain their original status of permissibility. This is expressed in a general principle: “The original rule for all things is permissibility.” Now the question is: if the Shariah did not prohibit something, who are we to prohibit such permitted things?
The other position adopted by some jurists is that everything was originally prohibited. The Shariah came and permitted things just as it reemphasised the continued prohibition of other things. If you wish to permit something, come up with an evidence of permission from within the Shariah.
The CII could not have adopted the second position. The second position would say that as everything is prohibited, the state is not granting permission to the husband to marry again without consulting the existing wife. The permission granted in the Quran of marrying “two,” “three,” or “four” is acknowledged, but as seeking permission of the existing wife is not expressly excluded by the verse, it still remains in place; the state is merely reaffirming it by requiring the husband to seek permission from the existing wife.
The CII, then, must have adopted the first position. The argument according to this first position of permissibility could be something like the following. The original rule for all things is permissibility as stated by the general principle. This permissibility has been affirmed for up to four wives by the verse (4:3) which says: “If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three or four.” In other words, the original rule of permissibility has been restricted to four wives. This permission appears to be absolute and no restriction has been placed on the husband in marrying up to four.
The seeking of permission of the existing wife for additional marriages is nowhere to be found; the original rule of permissibility is not disturbed. These provisions are clear. If the Shariah has not placed a restriction in the form of permission of the second wife, who are we to impose such a restriction, especially when the original rule for all things is permissibility? The law imposing this incorrect restriction must, therefore, be set aside.
The reasoning provided above may appear reasonable to some, but it suffers from certain defects. First, the full general principle, intentionally stated in a short form above, because that is what most scholars think it is, is as follows: “The original rule for all things, except sexual activity, is permissibility.” This means that all relations involving sex are transferred to the second position meaning thereby that they are originally prohibited.
The verse of the Quran has merely permitted up to four. All other restrictions like permission from the first wife and so on remain intact, and the state can impose them expressly. The ruling of the CII on the issue becomes questionable merely on this ground. Let us, however, look at things less technical.
Verse 2:75 says: “Allah hath permitted trade and forbidden usury.” Verse 4:29 says: “But let there be amongst you traffic and trade by mutual goodwill.” The permission to trade here is absolute and unrestricted, just like the permission to marry up to four women. If an Afghan sells goods to a dealer in Peshawar and brings the goods across the border, there should be no restriction on the absolute right of the parties to execute the transaction. On what grounds do we impose customs duties (which are only valid for trading with the enemy), and on what grounds we prohibit the transaction when the duties are not paid, by calling it smuggling? Should we shut down all regulatory bodies and licensing system introduced for regulating trade? After all the permission to trade, like the permission to marry, is clear in the Quran.
A Muslim is supposed to bring his own weapons and horse (if he can find one) to participate in jihad. He can only do so if he is allowed to bear arms. On what grounds do we restrict the right to bear arms for all citizens through a licensing system that restricts it to a privileged few? A Muslim male can lawfully cohabit with a female slave if he owns her. This permission is clear. On what grounds do we restrict the right of a person to buy a slave girl from some country where they are sold when some human trafficker is selling the slave girl (trade being free that includes buying a slave girl)? On what grounds have we introduced the registration of marriages through a prescribed form when the right to marry is unfettered? Why have we prescribed a procedure for divorce when the right to divorce is unrestricted?
The Almighty has preferred the interests of women over those of men on many occasions. The Quran prescribes penalties for falsely accusing women of unlawful intercourse. Men are not mentioned; the rule is extended to them through certain methods adopted in interpretation. When a husband accuses his wife and takes oaths in the procedure of lian, the counter oaths of the wife are given preference. It was due to the same reason, among others, that the offence of rape was detached recently from the original hadd penalty of zina bi’l-jabr. The original rule attempted to protect the interest and reputation of the rapist by keeping the rule a part of hadd. Detaching rape from the original rule prefers the interests of women over those of men planning rape.
The Muslim Family Laws Ordinance may have many defective provisions, but this is not one of them. The seeking of permission of the first wife should stay on the statute book. In fact, preferring the interest of women over men, item 18 of the nikahnama, enquiring about delegation of the right of divorce to the wife, should be changed.
The delegation of divorce should be made mandatory, that is, every prospective bride should have this right. This will avoid so many problems of litigation. At present, a woman who wants this right has to ask for it specifically. The role should be reversed; let the husband have the option to deny this right. If he does not, the right stands delegated. Let the CII ponder over this suggestion.
The writer is a former professor of Shariah and law.