ii. Polygamy
A common argument used to suggest that Islamic law is incompatible with women’s rights is to cite male polygamy—the ability of men to marry multiple wives—as self-evident proof of this incompatibility.86 Polygamy does present a difficult challenge for commentators wishing to demonstrate the compatibility of women’s rights and Islamic law, as there is direct Qur’anic support for this practice, albeit only under specific circumstances.87 The solution within the reformed Mudawana is both clever and practical. First, a polygamous marriage now requires judicial approval, not the husband’s discretion.88 Second, the husband must demonstrate the “necessity” of the second marriage.89 Third, the reformed Mudawana retains a safeguard from traditional Islamic law found within the previous code that makes polygamy impermissible if the wife previously required that the husband not marry a second wife.90 Finally, citing the Qur’an, which states, “[i]f you fear being unfair, marry only one woman,”91 the reformed Mudawana sets the standard for polygamy so high that it “has become a practical impossibility.”92
Previously, the code had few safeguards for polygamy. Women could include a traditional “no polygamy” clause in their wedding contracts, which if breached, dissolved the marriage.93 If there was no clause, a woman could appeal to a judge, who could refuse to authorize a polygamous marriage if it constituted a clear case of injustice to the wife.94 Still, these safeguards provided little protection and did not allow women to refuse polygamy in a meaningful way.
Thus, the reformed Mudawana essentially prohibits one of the most problematic aspects of Islamic law in relation to women’s rights. Importantly, this reform is a procedural end-around that, while not disputing the infallibility of the Qur’an, still prohibits the practice.