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Social System of Islam 34 – Polygamy In Islamic Law 4 Womens Options

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Jamal Badawi

Channel: Jamal Badawi

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In the Name of God, the benevolent the Merciful, the creator and the Sustainer of the universe, peace and blessings upon his servant and Mr. Mohammed forever. I mean, I bear witness that there is no god worthy of worship except the one true God. And I bear witness that Muhammad is the messenger and servant of God, as is my fashion I greet you with a greeting that is common among Muslims around the world. It's a universal greetings of peace. It's a greeting that has been used by all the profits from Abraham through the prophet Muhammad, peace be upon the mall, assalamu Aleikum, which means peace be unto you. I'm your host Hamlet Rashid. Today we have our 34th program and our series

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dealing with the social system of Islam. We'll be continuing our discussion of the topic of polygamy and Islamic law. This is our fourth program dealing with the subject. I have joined me on the program as usual Dr. Jamal Badawi of St. Mary's University, but the Jamal Assalamu alaikum.

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Could I ask you to very quickly highlight the main points that we commented on in our third program in this topic dealing with polygamy? Sure.

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We continue than the last program, discussion of the meaning of justice, which is a prerequisite for permitting polygamy.

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We also discuss the fact that Islam for the first time in its own scriptures, and among all word scriptures, specify the maximum number of wives to be taken under any circumstances, which is a step much forward than what was common having unrestricted number of wives in the past.

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And the main part of the program, however, dealt with the some analysis of some of the possible reasons why polygamy was permitted, and Islam starting all the way from divine wisdom, who allowed that to inscriptions of various religions, even before its time, there must be some good reason. Secondly, something pertaining to Islam in particular as a universal message to all people in all times, and places where there might be different cultural needs social problems, and individual problems, and that Islam proposes a practical and wholesome solution to all of this rather than just talk about idealistic thing that does not exist in the world of humans.

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More specifically, we talked a little bit about some of the collective reasons, which may make polygamy a more wholesome, and compassionate solution, the case of lower sex ratio as a result of wars or more fatality among men, depending on circumstances. And we started dealing briefly towards the end of the program, with some of the individual cases, such as

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incurable diseases, or a wife who might be confined for years into a mental hospital, for example, where any other alternative other than polygamy would be cruel, because it involves either divorcing a sick wife was really in bad need of support during her suffering, which might extend for years, or to encourage the husband to go from backdoor to satisfy his needs. Still, polygamy would be a morally superior solution in extreme, you know, in extenuating circumstances such as these. Now, in our last program, we were we ran out of time as you were expanding on some of the individual cases, which might help us to understand this issue a little bit further, I want to perhaps I could ask you

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to, to continue with some further discussion of additional examples, some additional examples of applications. Yes, well, a common example also is the case of Baroness. Of course, Baroness, as you know, could be from the men's side or from the wife side, it could be from either, but suppose there is a case of barrenness on the woman's side has been shown or proven. And the woman doesn't bear any children. Now, it is quite natural and human instinctive need for a human for man and woman for that matter, to want to have children of their own.

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Now, what could a person like that do in his early life he wishes

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have children of his own. But that's not possible with his first wife. Should he be expected to suffer for the rest of his life?

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Or should he divorce his wife, whom he may love so dearly?

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Of course, some people might say, which is quite possible, a possible solution? Why can't he adopt Islam does not allow adoption in the western sense, but that allows fostering, yes. Okay to take a child and look after him, well, that that could be possible. And if that satisfies

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his needs and his wife's needs, that's fine. I mean, there is no objection. But on the other hand, there are some people also who instinctively wish to have children of their own.

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And one would not expect them to suffer for the rest of their lives. In a case like that. Taking a second wife may be, in some cases, again, a more moderate superior and more compassionate solution than divorcing his wife or just going through this torture. There are other similar cases.

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I could only hint that one, there may be some individuals

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who have different dispositions, you know, God created people with different energies and feelings. And it doesn't need much of a stretch of imagination to know that there may be some exceptional cases where a person might have a sort of overpowering urge,

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which might not necessarily be consistent with the predisposition of his wife.

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In some cases, like this rare as it may be, the only other alternative for that person would be to really push him if he's not too pious to commit acts of adultery outside of the marital bonds. Well, Islam deals with the problem more honestly, and face to face, see, all right, if such exceptional case even exist, it is more moral and better to have things in the often to have relationship which are protected, legally, which are natural, instinctive, marital relationship, than to encourage this kind of backdoor type of solution to the problem. So there could be a variety of situations like that, not necessarily, that it happens

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every second or in for every person or every place, but it does occur once in a

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while. So far, in our discussion, we've been discussing this issue of polygamy predominantly from the male perspective, one or perhaps we might be able to look at the other side of the coin now, from the female side, and perhaps start with the situation of the second wife in a polygamous situation, what options are available to her? And when Why should you accept something like that, or Yes, relationship life? Well, just to make a cross reference, in a previous program about the rules of marriage and Islam, it was indicated that the acceptance or consent of both parties, is a prerequisite for the legality of medicine relationship, we talked about cases where if a woman does

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not agree, and she's forced into a given marriage, it could be nullified, we have yet several examples of it. So it must be by agreement on her own freewill to accept the situation like that.

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That means then that a woman, the second life, if you will, is not forced, or cannot be forced, and should not be forced actually into

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relationship with a man who's already married to another wife. Assuming again, that's accepted as a legal marriage, she has to voluntarily choose that and agree to it. Now, if we put emotions and social orientation aside, which might vary from one place to the other, and try to look at it, perhaps on a more honest and objective way,

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it should not be too difficult to point out to certain cases where a for the second wife, this is a good solution. example, suppose you have a widow or diversity, who may have, let's say, three children. Now, her chances for marriage may not be really that great. I mean, to get married to one person as his own and single, right, it happens but it may not be as attractive and her chances might be greatly reduced. Now, in a case like this,

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a woman may find out that it is better for her to experience the warmth of marital relationship, to have some male around

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even a stepfather for her children to help and upbringing of those children. And she may decide that that position her position as a second wife is still better than loneliness and having to struggle alone in life for times to come, because she can tell which is either diversity or weighted.

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There may be other cases where that

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And is not necessarily in that particular position. But in a case of low sex ratio where you are not particularly interested in getting married.

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Again, the only other alternative before her would be to spend her life as so called spinster without having this experience of marital relationship. Or if

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you know, that extends for too long, she may be tempted to break moral laws in order to satisfy her needs, whether physical or emotional. Also, that's another part important parts of it. Now, in a case like that, again, she may decide that it is better for her to get married even as

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a second wife, rather than to remain single for the rest of her life.

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This example that I just gave these two examples are not theoretical. If we really open our eyes and look around us, even in our own neighborhoods, we might find that there may be some cases like this, where a great deal of suffering and deprivation is taking place, and which most often leads also to breaking of moral laws. Well, in situations like that Islam offers a solution instead of saying you suffer for the rest of your life, or no, you can do it and force the individual to violate moral laws. It provides a clean and practical solution for cases like that. But again, it's a matter of acceptance.

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For now, what about the situation of the of the first wife is it necessary that she consented to the husband taking a second wife what kinds of options and protections are open to her as the first wife, we can't say that as a broad the blank principle, that the approval or agreement of the first wife to her husband taking a second life is an absolute prerequisite for taking a second life, we cannot really put it that way.

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But you can say also that within the spirit of Islam and the spirit of Islamic law in general, it is only appropriate to have some discussion and consultation with the first one, of course, there'll be lots of problems and objections. But it is not regarded really as a good

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character on the part of the person to

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get married to a second wife in secret. Or to simply surprise his first wife after the decision is taking this is not really a very appropriate or decent activity. We're not talking strictly in terms of legality, but appropriateness.

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It is, however, possible, that the first wife may have what amounted to a veto right?

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On her husband taking a second wife and Islamic law at the time of marriage, if the first wife or the wife at that time, specify in the marriage contract, that her husband shall not take a second life.

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And many jurists say that this condition is enforceable. And it will be binding on the husband to follow how they explained it. The various schools of jurisprudence differ about the explanation but not the principle. For example, in the Hambali School of jurisprudence, they say that marriage could be invalidated if he takes a second wife on the basis of violation or breaking of the marriage contract. That's their basis. And other schools like Maliki School of jurisprudence. They said she could nullify the marriage or ask for nullification of marriage, not on the basis of breaking the contract, but because of harm bearish, which is one aspect of Islamic law that some harm

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was inflicted upon her because of his violation of that contractual commitment, or agreement, which basically say, again, that she can veto.

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Or you might call it again, like no fault type of divorce on her part. Now, there's also another form of protection for the first wife, which again, amount to basically a veto right on polygamy. And this is called asthma in Arabic, which is translated in English more or less, like,

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you know, delegated repudiation, delegated reputation, which simply means that a woman at the time of marriage

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may specify in the contract, that she would have the unilateral right to divorce her husband.

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Say, just like the husband may have a unilateral light. She also may have the unilateral right to divorce her husband, in which case if the husband takes a second wife and she doesn't feel happy with this, she's as authorized

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According to that clause to divorce

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her husband unilaterally.

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So these are various forms where at the time of first marriage could be specified and provide protection also for the first wife. Well, now what about the circumstance where the marriage contract did not place any restrictions on on the on polygamy?

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Does the wife still have the right unilateral right to to divorce? Well, that's an interesting question many times when they invited to give lectures and talks about various aspects of feminine Islam. And when I mentioned this protections that I discussed in the previous question,

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some of the sisters said, Oh, I wish have known that, you know, it always I wish I would have that only at the time of marriage. But what can I do now? I think it's a legitimate question. No, it doesn't mean that there is no protection, even if it's not specified. Because in a static law, a woman is also entitled to seek divorce, for good reason, good cause.

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For example, if the woman can show that her husband's taking over second wife was not only unnecessary, but caused her that's the main thing caused her harm or injustice, which is, again, is the permission to give polygamy you mentioned before that polygamy is conditioned by certain conditions, one of which of course, is the justice, absolutely justice, there is no first way for primary wife and secondary, they have to be on an equal footing on equal footing. She can go to the judge, and she may ask also for for divorces, this is another way out.

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Well, now what happens in the event that the the judge is not convinced that there is any real harm that has been done? Is there any other option that she can, can fall back on? Well, even then there is still a way out. In Islamic law, there is a system which is not known in the West, which is quite interesting. It's called cola.

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Which means that even if there is no fault on the part of the husband, it applies to polygamy or other cases, even there is no fault and the husband is supporting his family, he is not committing any injustice. Like I said, the judge could not find any fault with him, except that he simply needed for some reason or the other to have a second wife, the first wife was not happy with this can simply make a kind of agreement with the husband to pay him some financial compensation in return for getting out of this marital relationship. That compensation is usually in the form of returning back whatever marriage gifts or Mar,

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or Sabbath as a Slavic term actually

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was given to her at the time of marriage or any other property that he gave her because of the marital relationship. So justice demands, that if she wants to get out on her own, then at least you should get back this, this kind of a thing that she gives, with the understanding that it would be a lasting marital relationship. So she can apply that option if she feels, again, that it is against her interest to continue as his wife, but she still, of course, has the other option that if she feels that it's still comparatively better for her to remain as his wife, she may do so. So there are protections. Yeah, even in that case, yeah. Sort of a supplementary to that in the husband is

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obligated then to if the wife wishes to get out of the marriage, he's an obligated if she offers to make this payment to accept, oh, yes, yes. And Islamic law, he cannot refuse. And this subject is an interesting one, because like I said, we knew for many of the Western viewers and audience, but when we touch on the topic on dissolution of marriage, marriage, you know, marital problems and divorce.

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We can discuss that further. But I can say at this juncture, if yes, you're right. The husband has no right to refuse. But they have to work out, whatever, you know, financial agreement, but in principle, it cannot. It cannot refuse. Yes. And I'm sure as we've gone through the previous four programs in the series, many people who have been watching the program probably have asked themselves. What about the

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plurality of, of husbands? We've talked about the plurality of why? polyandry? I think it is polyandry. What about the situation of polyandry is why not have have morality of husbands? Well, we can look at that. First of all in terms of Islamic law, whether that's permissible not first, as a basic statement, then we can look at it historically and analytically, in order to put the picture together to start with by way of statement

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public

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polyandry, or having more than one husband for the same wife is not permissible in Islamic law under any circumstances, I have to be honest and clear in stating that, in fact, when you go back to the Quran, in the verses which mentioned or alluded to polygamy more particularly chapter four, verses three and 129. It says Franco Mata Bella conveniently said Mary of women

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of your choice, it didn't say men or women and the Quran is very delicate and very accurate and its expression. So that rolls out this notion of of polyandry, because it is only the female gender that was used.

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But again,

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aside from the fact that there's absolutely no difference among jurists that polyandry is it's not permissible in Islam, if you look at it, historically speaking, and that might be illuminating. And when I say historically, I'm not talking about history of Muslims. In just 1400 days, I'm talking about the history of the world in general, I think you would find that the incidence of polyandry more than one husband, to the woman has been very, very rare. I'm not saying non existent, it did exist, it may still exist even in some rare cases, but it has been comparatively very, very rare, as compared with the occurrence of polygyny, or one one husband having more than one wife. And we have

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seen before that even Israelite prophets and various religions in their early stage of development, including Judaism and Christianity, as well as the standard permit.

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And implication of Islam still does permit

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polygyny.

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Now, the one your title explained, why was this more common in almost all civilizations, religions, in different parts of the world, perhaps some analytical questions may be useful. First of all, biologically speaking, biologically, a woman gets pregnant only once.

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Whereas a man may have several infants from his progeny, at the same time, if he has more than one wife. Now, it is well known that in all cultures everywhere,

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everybody agrees that every child is entitled

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to know his lineage, to know who his mother is, and who his father is. There might be some exceptions to that. But I mean, it's almost universally accepted that this is something that any human being would love to know, and determine with a great deal of certainty.

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Now, let's take the assumption for the sake of argument that a woman is married to more than one husband, and she gets pregnant. Now, Whose child is that? When that child is born? Well, his mother would be known, of course, because there is only one mother. Yes, who can burn? But who his father, is it she's married to three husbands?

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Yeah. And this is a very difficult question, you know, and there is no practical solution to that if you look at it, even purely from the biological point of view. Secondly, you can have also another social aspect of it. Of course, when you say social, we have to be cognizant that this may vary from culture to culture and place to place. But on the whole, it is not unreasonable generalization to say that, generally speaking, the male side is the head of the family, generally speaking, including even in contemporary world, not in the terms of dictators, as we'll discuss later on, but still, he holds some kind of leadership of the family.

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Now, if a woman is married to more than one husband, who is the boss,

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you know, it leads to a situation where, again, considering men's or men's competitively aggressive,

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and equality when dominant or dominating nature,

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God created him like that, that there will be blood on the floor. And if you can imagine the situation where two husbands are competing for the same wife, especially if in the same household, it becomes a very unpleasant type of thing. But in addition to this biological and social aspects, I think there's something more important than that, which is basically in it and psychological aspect of it. You see, for

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for a woman, the matter of sex is much deeper than that.

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In May in the men's side, I'm not saying that male also doesn't have any feeling in the matter of six but you're saying competitively speaking, the instinctive nature of woman is that sex is tied, very

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Much not just with the physical aspect, but with emotions and feelings, much more so than the male side.

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It follows from this that her feelings normally tend to concentrate in one particular person. And I'm talking, of course, about a natural, healthy female, who is not, was mine. And values are not polluted by a promiscuous situation or

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rampant, loose sexual morality in society I'm talking about if the person is a broad, and a normal, virtuous type of situation, it's always focused on one man. And

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I'm not talking again, in terms of theory, I have talked to many, you know,

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females on the same issue, and asked that question, can you imagine or perceive of yourself being

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a wife of more than one man? And it's almost universal answer that, you know, it's just unbelievable. Of course, still, imagining herself being a second wife, for the same men or first wife, for a man who has more than one wife is still also,

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you know, not as pleasant, but the competitive degree is quite different. And that's why we find some scholars actually say that woman by nature is comparatively much more monogamous, and her attitude, whereas men has some elements of polygamous tendencies.

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We only have a few minutes left in today's program, I'd like to ask you about the situation where the husband is barren or chronically ill. What can a woman do? She's not permitted to have more than one husband, as we've just been discussing. I mean, why not? Consider multiplicity of husband? Yes, a better solution than divorce? Well, if a woman faces a problem like that, similar to the problem of men,

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she has the various options that we have discussed before, I'll summarize them again. But I think we have to keep in mind that, considering some of the negative aspects of polyandry, or having more than one husband, which makes it rather impossible, really to have an orderly society, when this is practiced on any scale, really,

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still, the woman is not forced into that situation at all. You say, all right, if she wanted to be kind and compassionate, well, it doesn't mean that she can marry another husband. And look after her sick first husband, we have seen that this probably won't work. If she's really sacrificing, and she wishes for the sake of God or whatever other noble motive, she may have to look after her husband and her children, she may do so I mean, nobody forbids her from doing this. If on the other hand, she chooses to terminate this marital relationship, then she can use the same measures that were described before, in a case like that. So in other words, this measures we talked about, in the

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case, the husband wants to take a second wife as she that she doesn't agree. But now we're talking about a wife whose husband is chronically ill, or is confined to a mental hospital or whatever. And she does not wish to just live like that. She can apply the same wishes, can use them here. She can go to the judge and and ask for divorce. And of course, that would be very justifiable reason. She can use her delegated repudiation or asthma. If that was specified in the contract, or suspended repudiation, that is at the time of contract, she may also preserve certain rights conditions.

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Or she can ask for holiday returning back is, you know, property that he gave to her in return for nullifying the marriage. So what we're saying here is that it is not exactly like some people might believe it's just the exact other side of the coin because God created male and female also with some different disposition. They are equitable, and equal in the human, basic human or spiritual structure, but not necessarily in every aspect of their lives. And there's their nature so that the solution is there. But it is an equitable solution rather than simply a superficial mathematical equality. But just one final quick comment that this solution or options are more even than the

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options found even in western laws. Okay, well, we'll have to leave because we've exhausted our time. We want to thank you for watching. Catch you back next week. Assalamu alaikum, peace be unto you.