PERMANENT MONOGAMY: ISLAMIC RULING? “promise me not to marry another wife after me”

It is established by narrations from some salaf that some women would make a precondition for their husbands not to marry a wife after them, what is the Islamic ruling in respect to this precondition? And can this precondition be correct to be the mahr(dowry) a wife will request from her husband? If such precondition is agreed upon, must it be fulfilled? These questions among others are what this article clarifies….

The basis of fiqh from the life of the salaf is Madh-hab(school of thought), which should not be jettisoned. It is the basis and will in future be the basis. Giving the various differences in the reliable schools of thoughts critical look will guide us in establishing the truth. We will not be dogmatic to a certain school, rather we will be after each school’s evidences put forth, study it critically then arrive at the most correct(tajreeh) which will give us the result of fiqh sunnah(islamic understanding) on the matter.

It is a known stance of the Hanaabillah school of thought that a woman can make a condition for her husband not to marry another wife after her and if he agrees to this, he is obliged by it. So, you read from later scholars fataawa who are hanaabillah in fiqh to tend to this stance, the likes of Ibn Quddamah, Ibn Taemiyah, Ibn Baaz, Ibn Uthaemeen, and major Saudi scholars. It is also said to be the stand of some Maalikiyyah scholars but not the Maalikiyyah Madh-hab because the consensus of the school is what we regard as Madh-hab.

While the Hanafiyyah and Shaafi’iyah outrightly ruled against such precondition because it is an invalid condition.

What are the evidences of the hanaabillah in support of this condition?

The major evidence of the hanaabillah is the athar(narration) of Athram during the life of Umar Bn khattab(radiya Allahu anhu):
“A man married a woman with a condition that she will keep living in her house, then he later wanted to change the housing of the wife, he was fighted upon that and the case was filed to Umar, in which Umar said: “She has her condition and it must be respected” the husband said: “then divorce us”, Umar replied: “You are ignoring the rights during conditions”.

Evidences of those who consider such condition invalid:

1: In response to the evidence provided by the hanaabillah, it clearly shows the narration is not an evidence for precondition(of not marrying another wife after her) being a mahr. Which means what seems a consensus of the sohaabah is that such condition cannot be regarded as a mahr of nikaah.

If the condition is denoting on something good that will be of her benefit and will not harm others, like making a precondition that he must provide a 3 bedroom flat housing, he must get her a car, he must not travel without her, he must not forbid her from visiting her parents. All these are good conditions that doesn’t oppose any shari’ah ruling and some of these conditions were also narrated from the pious female predecessors.

2: The famous and authentic hadith of Bareerah, the slave of Aaisha(radiya Allahu anhaa):

“When Aa’ishah intended to buy Bareerah, her masters stipulated that her walaau(homage, loyalty) should be for them. When the Prophet was told about it, he said to Aa’ishah “Buy and manumit her, as the Walaau is for the liberator” her masters disagreed also, then the Prophet said: “What is wrong with these men stipulating a condition Allah did not make a condition, all conditions that oppose the book of Allah are invalid…”

This hadeeth explicitly states any form of condition that opposes the established ruling of Allah and His Prophet is invalid. This hadeeth is in respect to contract of slavery but the rule of nikaah is the same as business transaction. They are both based on offer and acceptance.

And the consensus of all schools of thought(including the hanaabillah) is: “Whatever conditions stipulated in any of the contracts(aqdu), be it in gifting, or business transaction, or marriage, or rentage, or vow, and etc which contradict what Allah has made permissible for His mankind or permit what Allah has declared forbidden is invalid”
As said by Ibn Taemiyah in his majmuu’ Fataawa.

This kind of condition “do not marry another wife after me” is not what a faithful muslimah should demand as a condition not to talk of condition or mahr to validate a nikaah, because this explicitly is against the verse of the Qur’an in chapter 4 verse 3.

3: Among what those who support such condition tender as evidence is the hadeeth:
المسلمون على شروطهم
“Muslims are known to abide by conditions and promises”.

Yes, Muslims must abide by conditions and promises that does not contradict the shari’ah rulings and do not block a way for other folks.

Another interesting point in this argument is that fiqh as a course teaches relating evidences to the reality.

Sheikh Yuusuf AlQaradaawii has rightly said:
“True fiqh is not what is copied from books, because books represent the reality of its time. Rather true Fiqh is the jurist’s own ijtihad(intellectual exertion) to produce something suitable for his specific time and place, just like the forbearers have exercised Ijtihad suitable for their time and place”

Coming to our reality, if such precondition of not marrying another woman is permitted, the feminists will grow more wings and block ways for their fellow females that are in need of husband. The fact remains it is not every women will marry single brothers. Some will be a 2nd, 3rd or 4th wife in a house of a married man.

Also, what will be the fate of the single aged women, divorcee and widow? Because such precondition did not spare them as well and this will also be against many ahaadith and narrations from the salaf which encourage marrying these less privileged women and causes more harm than good to the Muslim community.

Taking a second, third or fourth wife of an eligible person is not only legislated for the benefits of the man only but for all women to have a husband, to safe the ummah from vices and to help the less privileged among the women folk.

And this is not also an excuse for males who are hypocritical about this and deceive the women of helping the women folk. We have arrays of divorced, widow and aged Muslim women not married at all which should be considered first. The person who insisted on marrying the young virgin girls after the first should not claim he is assisting the society. He is only assisting himself.

In a case of Khul’u(back off) in marriage, which the wife has the legitimate right to back off the relationship for certain permissible reasons, like the husband renounces Islam, turns to be a drunkard, adulterer and the likes, the shari’ah stipulates the wife to return a value price of her mahr, what will the wife(Mrs condition) return in this case?!

A questioner may ask: “what if she collects her mahr and still ask for this particular condition?”

We say: such condition is outrightly invalid and shouldn’t be asked either as the mahr or sub-conditions. She has the legitimate right to ask for many permissible conditions and the husband is in-between agreement or refusal.

CONCLUSION:

If any woman make such precondition as her mahr(dowry), she should be enlightened by the officiating Imam that such condition is not valid to be a mahr, the aqd is valid according to some scholars and that was based on the fact that mahr itself is not a condition or pillar among what validates a marriage contract.

And even scholars who are of the hanaabillah stand and permit such precondition for women say: if the man who agreed to such condition later did not fulfill it, it only gives the wife the legitimate right to seek for a divorce.

Yesterday I read a tweet of a barrister which says 4000 divorce applications have been submitted already in Abuja, Nigeria. Those are the ones who submitted theirs officially, what of those battling with theirs locally and those outskirts Abuja. Is this how we keep compiling lists of divorcees and after that looking for a pious man to marry them?

Still, the husband can agree to such monogamy condition publicly and that does not stop him from marrying the 2nd, 3rd or 4th wife but gives the wife the legitimate right to seek for a divorce, now, if she get divorced, who looses? And mostly she later returns to be a second or third wife of another man. If the new husband’s wife who later married Mrs Condition is also a Mrs Condition, how will she have a husband?

May Allah bless our homes.