Özet:

Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. The Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, -and limits the maximum number of wives to four. Although polygyny is mubah (permissible) in Islamic law, it is not an absolute right that every man can use arbitrarily. Thus in Islamic law, the legitimacy of polygyny has been attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintnance. However, the observance of these conditions that is left to the mercy of men leads to the exploitation of the right to practice to polygyny and victimization of the first spouse. Therefore, inserting some restrictions for using this right has come to the agenda from time to time in Islamic legal history. The first legal arrangements concerning the restriction of the polygyny (taaddud al-zawjāt) in the history of Islamic law were indirectly made with the Family Law Decree of 1917 which was prepared in the last periods of the Ottoman Empire. Among the late Islamic jurists, the issue of the limitation of polygyny by public authority in Islamic law continues to be discussed. The civil laws of contemporary Muslim countries contain different regulations on the issue. In this article, the restriction of polygyny by the public authority in Islamic family law will be focused on. Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. The Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, and limits the maximum number of wives to four. Thus, relevant verses in the Qur’an (al-Nisa 4/3, 129) and the Prophet’s own practice (al-Ahzab 33/50, 51, 59 al-Tahrim 66 / 3-5) show that it is legitimate for a man to marry more than one woman (up to four) at the same time in Islamic law. Although polygyny is legally permissible (mubah) in Islamic law it is not an absolute right that every man can arbitrarily use. Thus in Islamic law, the legitimacy of polygyny has been attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintenance. On the other hand, there may be some exceptional circumstances permitting polygyny in Islamic law. For example, when the female population is much more than male in the society and when a, woman is not able to fulfill any family duties due to her cureless illness, polygyny is permitted in Islamic law. As it can be understood from the explanations above, polygyny in Islamic law is not a general and mandatory provision that should be applied by every man who has legal capacity to marry. On the contrary, it is an exceptional provision that is justified if there are certain conditions and justifications. According to this; polygyny is a moral and legal institution that is made up of mutual consent based on individual and social conditions and needs in Islamic law. Therefore, men do not have to marry a second woman on their current wives, as well as women have the right to say "no" to marry a married man as a second wife. When the conditions and rationals indicated in the relevant verses and doctrine are evaluated together, it can be said that in order to be able to legitimize the polygyny in Islamic law, there must be three basic conditions: (1) Observing justice among spouses, (2) Having sufficient financial power to provide maintenance for spouses, (3) Existence of individual or social need or necessity. Therefore, in order to prevent the exploitation of polygyny, which is justified under certain conditions and justifications in Islamic law, the aforementioned conditions must be fulfilled. Otherwise, polygyny can cause some problems, unrest and injustice for individual, family and society. Therefore, in the presence of certain conditions and justifications, polygyny accepted in Islamic law as a moral and legal institution aiming at the elimination of individual and social arbitration. Although the legitimacy of polygyny in Islamic law depends on the existence of certain conditions and special circumstances, it is a known fact that they are not always observed in practice. It can be said that the right of polygyny is a subject of abuse in practice. Therefore, the limitation of polygyny by the public authority has come to the fore in Islamic legal history. Today, control of the public authority and inserting some restrictions of polygyny continues to be discussed among the Islamic jurists. In the past, it is possible to say that the control of the exercise of this right has been done relatively by society (social environment). However, nowadays, since the society cannot perform the control mechanism, it is brought up by the state (public authority) on behalf of the society. Among the contemporary Islamic jurists regarding the supervision or limitation of polygyny by the public authority; there are two approaches: "those who accept" and "those who do not accept" such restrictions. Islamic jurists, who accept that public authority is allowed to intervene in polygyny, grounded their views on two perspectives: The first is that the polygyny is legally permissible and the public authority has the authority to limit the permissible (mubah) in Islamic law. The second is that polygyny is restricted with the conditions in the Qur'anic verses such as "husband's observation supervision of justice among his wives" and "having the power to ensure the livelihood (nafaqa) of his wives" and it is more appropriate for the benefit of society and the purpose of the legislator (shari') to be subject to the control of the public authority whether these conditions are present or not. Islamic jurists, who do not agree that the public authority has the right to intervene in polygyny grounded their views on two perspectives as well: First, polygyny is a legitimate right mentioned in the verses in Islamic law and there is no definite proof that this can be prohibited or restricted by the public authority. Secondly, it is contrary to the verses to prohibit or limit the right that the Qur’an makes legitimate (free). Thus, it is possible to say that the opinion that accepts that the public authority has to limit polygyny is more accurate in terms of today’s social conditions. Namely, polygyny is linked to two basic conditions: "husband's observance of justice among his wives and having the power to provide maintenance for his wives. Therefore, the supervision of the public authority on checking the existence of these conditions is more appropriate for the purpose of the legislator (shari legitimizing polygyny and social benefit. In fact, the Ottoman Family Law Decree of 1917 indirectly restricts the right of the husband to marry more than one woman, giving the woman the right to stipulate a condition in each marriage contract that her husband does not marry a second woman. In the 1924 draft of Family Law Decree, which was prepared after the repeal of the Family Law Decree of 1917, but not enacted, it was proposed that the application of polygyny should be presented to the approval judge. In today's Muslim countries, there are three different practices: namely "completely prohibiting polygyny", "releasing polygyny" and "giving the court the right to monitor the existence of necessary conditions ". In countries such as Morocco, Algeria, Iraq, Syria, Indonesia, Malaysia (and Pakistan), the validity of polygyny depends on the permission and supervision of the judicial. Some of these countries who have accepted judicial review have given the judicial control for the requirement of justice, some of them the conditions of justice and maintenance some of them for the conditions of justice, maintenance and a legitimate justification. In sum, in accordance with the provisions of the relevant verses, polygyny in Islamic law is legitimately permissible (mubah). However, the public authority has the right and authority to limit the mubah in Islamic law in the case of the elimination of damage and the necessity of the public interest. On the other hand, the public authority has the right and authority to enact the law in Islamic law by preferring one of the existing ijtihads that meet the needs of the society and conforms to the conditions of age. According to this, when the public authority made a statutory regulation that links the use of the right of polygyny to the permission of the judge, this regulation is binding on society. Therefore, in the event of such a legal arrangement, it is possible for the public authority to allow the men who comply with the conditions and not to allow those who are not to comply with the conditions after conducting the necessary investigation. As a matter of fact, now Family Laws of many Muslim countries now include such legal arrangements. It is also worth mentioning here that there may be a necessity for a man to marry more than one woman (up to four) at the same time in terms of social benefits, when the population of male and female in a society is excessively disproportionate. In such circumstances, it is also possible that the public authority encourages, or even mandates, the marriage of men who have fulfilled the conditions to more than one woman.