Stipulating that the husband cannot take another wife
In Islam it is allowed to practice polygamy. This is an act of Sunnah which the Sahaba also practiced. Polygamy is a form of marriage which has different benefits.
Polygamy can be a great test for the practioner, both for men and women. Both will experience difficulty in this, but this will be more difficult for women.
Is it permissible for the woman to make it a condition that her husband will not marry a second, third or fourth wife? This has caused quite a bit of controversy. The Madhabs spoke out about this and ensured clarity and transparency.
What the Salaf Saliheen said about it
The majority of the Salaf Saliheen believed that such a condition is valid. They argued that the woman is entitled to this because it concerns her.
She also has the right to remain in her city or country if she makes it a condition, including not participating in polygamy.
Some scholars of the Salaf Saliheen were of the opinion that she cannot put such a condition. They deem it to be invalid.
Who declared this condition to be valid
There were many scholars of the past who were of the opinion that the wife can stipulate a condition that the husband cannot take another wife. Below you see some of those scholars and what they said about this subject.
Umar ibn Al-Khattab
١٠٦٠٩ - أخبرنا عبد الرزاق قال: أخبرنا معمر قال: حدثني يحيى بن أبي كثير أن رجلا تزوج امرأة وشرط لها أن لا ينكح عليها، ولا يتسرى، ولا ينقلها إلى أهله، فبلغ ذلك عمر فقال: عزمت عليك إلا نكحت عليها، وتسريت، وخرجت بها إلى أهلك»
كتاب المصنف - عبد الرزاق
Yahya ibn Abi Kathir narrated:
"A man married a woman who made two conditions: that he cannot not marry another woman and that she cannot be removed out of her house (to move in with the husband). 'Umar ibn al-Khattab then ordered this man not to marry another woman and not to take her out of her house."
[Musannaf Abd al-Razzaq 10609]
Imam Malik
[شُرِطَ أَنْ لَا يَتَزَوَّجَ عَلَيْهَا فَإِنْ فَعَلَ فَأَمْرُهَا بِيَدِهَا]
فِيمَنْ شُرِطَ أَنْ لَا يَتَزَوَّجَ عَلَيْهَا فَإِنْ فَعَلَ فَأَمْرُهَا بِيَدِهَا قُلْتُ: أَرَأَيْتَ لَوْ أَنَّ امْرَأَةً شَرَطَتْ عَلَى زَوْجِهَا أَنْ لَا يَتَزَوَّجَ عَلَيْهَا، فَإِنْ فَعَلَ فَأَمْرُ نَفْسِهَا فِي يَدِهَا فَتَزَوَّجَ عَلَيْهَا فَطَلَّقَتْ امْرَأَتُهُ نَفْسَهَا ثَلَاثًا أَيَكُونُ ذَلِكَ لَهَا إنْ أَنْكَرَ الزَّوْجُ الثَّلَاثَ؟
قَالَ: قَالَ مَالِكٌ فِي هَذِهِ الْمَسْأَلَةِ بِعَيْنِهَا: إنَّ ذَلِكَ لَهَا وَلَا يَنْفَعُ الزَّوْجَ إنْكَارُهُ
المدونة لابن سحنون -شرط أن لا يتزوج عليها فإنهم فأمرها بيدها، جلد ٢ صفحة ٧٥
[Chapter: The condition that the man does not marry another woman, and if he does, then the matter is in the hands of the woman]
Ibn Sahnun asked Ibn Al-Qasim (companion of Imam Malik): "Suppose a woman made it a condition that her husband should not marry another woman, but he still married another woman, then she has the right to decide what she wants to do (divorce or stay). Then if he marries another woman and she decides that she wants to divorce because of it, she may divorce herself from him three times. But can she do this if the man contests this?"
Ibn Al-Qasim said, "Malik has said in this matter, 'The right to divorce here lies with the woman, so the man's refusal to divorce has no value here'."
[Al-Mudawannah 2/75 of Ibn Sahnun]
Imam Ahmad
[٢١٥٠ - إن اشترطت عليه ألا يتزوج عليها]
قال إسحاق بن منصور: قلت: امرأة اشترطت على الرجل عند عقدة النكاح ألا تتزوج علي، ولا تتسرى، ولا تخرجني من داري؟
قال: هذِه الشروط كلها لها، فإن تزوج أو تسرى فهي مخيرةٌ، إن شاءت أقامت معه، وإن شاءت فارقته. قال النبي -صلى اللَّه عليه وسلم-: "إِنَّ أَحَقَّ الشُّرُوطِ أَنْ يُوفَى بِهَا مَا أسْتَحْلَلْتُمْ بِهِ الفُرُوجَ".
قال إسحاق: كما قال.
"مسائل الكوسج" (١٠٧٤)
[Chapter: The wife who stipulates in the marriage contract that her husband cannot take another wife]
Ishaq ibn Mansour al-Kawsaj asked Imam Ahmad, "What about the woman who stipulates that her husband cannot marry another woman, nor have a concubine, and not take her out of her own house (to live with him)?"
Imam Ahmad replied: "All these conditions are for her (it is her right). If the man marries another woman or takes her out of her house, then she can choose to stay or to divorce him."
[Masail Kawsaj 1074]
There were also many among the Sahaba and Tabi'een who held that this condition is valid. Those who held the same view include: Amr ibn al-'Aas, Shurayh, Umar ibn Abd Al-Aziz and Tawus.
Who declared this condition to be invalid
There were also scholars who disagreed with the condition not to take another wife. These scholars spoke about it in their books.
Imam Shafi'i and Abu Hanifa disagreed with this condition. They felt that such conditions contradict the Quran and Sunnah.
قال قائل ما الشرط للرجل على المرأة والمرأة على الرجل مما إبطاله بالشرط خلاف لكتاب الله أو السنة أو أمر اجتمع الناس عليه؟ قيل له إن شاء الله تعالى أحل الله عز وجل للرجل أن ينكح أربعا وما ملكت يمينه فإذا شرطت عليه أن لا ينكح ولا يسرى حظرت عليه ما وسع الله تعالى عليه وقال رسول الله صلى الله عليه وسلم (لا يحل للمرأة أن تصوم يوما تطوعا ووجها شاهد إلا بإذنه) فجعل له منعها ما يقربها إلى الله إذا لم يكن فرضا عليها لعظيم حقه عليها وأوجب الله عز وجل له الفضيلة عليها ولم يختلف أحد علمته في أن له أن يخرجها من بلد إلى بلد ويمنعها من الخروج فإذا شرطت عليه أن لا يمنعها من الخروج ولا يخرجها شرطت عليه إبطال ماله عليها قال الله تبارك وتعالى (فواحدة أو ما ملكت أيمانكم ذلك أدنى أن لا تعولوا) فدل كتاب الله تعالى على أن على الرجل أن يعول امرأته دلت عليه السنة فإذا شرط عليها أن لا ينفق عليها أبطل ما جعل لها وأمر بعشرتها بالمعروف ولم يبح له ضربها إلا بحال
كتاب الأم - الإمام الشافعي - ج ٥ - الصفحة ٧٩
One person asked, "Can you name some examples of conditions that contradict the Quran, Sunnah and people's consensus?"
Imam Shafi'i then replied, "Yes, by the will of Allah. Allah allowed the man to marry four wives, so if the woman sets a condition that he cannot do this, then this condition is contrary to the Quran.
Nor can she make it a condition that she cannot be taken out of her house, because Allah said that the husband should support his wife financially."
Nor can the man make it a condition that he will not support her, because this is against her right."
[Al-Umm 5/79 of Imam Shafi'i]
Some of the Tabi'un (students of the Sahaba) such as Al-Zuhri, Sa'eed ibn al-Musayyib and 'Attaa held the same view: that it is invalid to make it a condition that the man cannot take another wife.
So these scholars held the opinion that the woman cannot make this a condition, that the condition is invalid, but that the marriage still remains valid.
Which of the two opinions is correct
The majority of scholars took the view that the condition of not practicing polygamy is valid and permissible.
The leading evidence in this is the narration of Umar ibn al-Khattab when he declared this condition valid. He did this when he was a caliph, and the Sahaba did not contradict him. In addition, Umar ibn al-Khattab is the second greatest Sahabi.
Rebuttal of the counterarguments
Some people believe that making this condition is invalid. Below we describe their arguments on why they believe it is not allowed to set this condition.
1. "It contradicts the Quran"
Some argued that it would be contradictory to make it a condition that the man cannot take another wife.
This argument is incorrect, because it would only have been contradictory if it did not concern the woman. Polygamy is two-sided. When the man decides to marry a second wife, the first wife also must practise polygamy.
The woman can therefore decide for herself whether or not she wants to go along with this. For this reason, it is valid and permitted if the woman sets the condition that the man cannot take another wife.
2. "It is making forbidden what is permitted"
Some argued that when the woman sets this condition, she makes forbidden what is allowed.
This is not the case at all. Setting conditions does not mean that you make something forbidden that is allowed. Because this would then mean that the Prophet (ﷺ) made forbidden what is allowed.
Miswar ibn Makhramah narrated:
"Ali ibn Abi Talib proposed to Abu Jahl's daughter when he was married to Fatimah.
I heard Allah's Messenger (ﷺ) giving a Khutbah in which he said: "Fatimah is from me and I am afraid that she will be subjected to trials in her religion. I do not make permitted what is forbidden, nor do I make forbidden what is allowed , but by Allah, the daughter of Allah's Messenger (Fatimah) and the daughter of the enemy of Allah (Abu Jahl) can never come together (wives of one man).
[Sahih Muslim 2449c, Sahih Bukhari 3110]
It was permissible for 'Ali to marry Abu Jahl's daughter because she became a Muslim, but the Prophet (ﷺ) made it a condition that he cannot do so as long as he is married to Fatimah. Did the Prophet (ﷺ) make Haram which is Halal? No, it is a condition to which the woman is entitled.
Based on this Hadith, several scholars understood that it is valid when the woman makes a condition that the man cannot take another wife nor take her out of her house.
3. "Then she hates what Allah has legislated"
Some believe that putting this condition is proof that the woman hates what Allah has legislated.
So what they claim is false and incorrect. The woman does not make this condition out of hatred towards this law of Allah, but rather because she does not want to go along with it out of jealousy, low Imaan or the great effort it requires.
It is not obligatory on the woman to participate in polygamy, so how could some argue that she would hate it when she puts this condition?
As we can see, this argument is unfair to the woman. She does not make the condition because she hates what Allah has legislated. She only makes this condition because she chooses not to participate in it.
It is a Sunnah to practice polygamy. For example, could we also say that if a Muslim does not perform Sunnah prayers, that he would hate those prayers? No, it remains a choice; the same goes for the woman who has the right to choose whether to participate in polygamy.
