Polygynous Muslim Marriages in South Africa: Their Potential Impact on the Incidence of HIV/AIDS

This article examines whether there is any relationship between the institution of polygynous marriages in Islam and the incidence or spread of the disease. It is suggested that, while polygyny may be a contributing factor, it is not the institution of marriage per se that relates to the disease (although the prospect of greater infection intra marriage must be present in polygynous marriages, if the husband is the infecting party), but the conduct of the parties to the marriage relationship, whatever its nature. The focus and thrust lies with the institution of polygyny in Islam, the South African response to polygyny, the (potential) impact of polygyny on the incidence of AIDS, and the contribution that both an informed approach to HIV and an enlightened approach to the application of Islamic values could or would have on the limitation of the disease's spread.


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HIV/AIDS 5 is a modern epidemic and introduces new debates in religious and interfaith discussions. Although treatable, it is to date incurable. While AIDS was first recognised in 1981 as a mainly homosexual problem in the USA, it has since then increasingly become a heterosexual problem, as is also the case in South Africa. HIV/AIDS does not discriminate, and no person (regardless of sex, class, race or religion) or region in the world (including Muslim countries) is immune from it. The first cases of AIDS were identified in South Africa in 1982. 6 Today, two and a half decades later, and arguably because of the inertia of the previous apartheid government and mismanagement by the current democratic government, South Africa is "…regarded as having the most severe HIV epidemic in the world" 7 and more than one in eight people [are HIV-positive]. Some eight hundred South Africans die of AIDS on an average day. And the epidemic is spreading at a rate of more than a thousand new infections a day. 8 Muslims are expected to observe a strict moral code of conduct. There is the misguided perception that HIV/AIDS has largely bypassed Muslims because Islam forbids homosexuality and promiscuity. This article examines whether there is any relationship between the institution of polygynous marriages in Islam and the spread of HIV/AIDS. Campaigners against HIV, adopting a health special courts giving effect to its consequences. However, civil courts were reluctant to recognise such marriages as legal marriages (Dlamini 1989 CILSA 330 and 342;Kaganas and Murray 1991 Acta Juridica 133). Customary law in South Africa is the personal law of the majority of Black Africans who constitute the vast majority (over 35 million) of the total population (nearly 45 million). See s 4 below. The Recognition of Customary Marriages Act 120 of 1998 gives full recognition to customary marriages. The Act also gives full legal effect to existing and future polygynous marriages. 5 HIV refers to Human Immunodeficiency Virus -causative agent, invisible, no symptoms. The HIV virus that causes AIDS attacks the immune system in human beings, the body's defence against disease. Over time it damages the immune system so that it can no longer fight infections. Most people who are infected with HIV have a long period when they look and feel quite well. Many people do not even know that they are infected. AIDS refers to Acquired Immune Deficiency Syndrome -visible, symptoms. AIDS is the most advanced stage of HIV infection. An adult person is said to have AIDS when his or her CD4 cell count is 200 cells or less per cubic millimetre (mm3) of blood or has a specifically defined clinical illness. This makes the immune system so weak that the patient develops serious illnesses. This usually happens some years after becoming infected with HIV. In this article the terms HIV and AIDS will be used interchangeably. 6 See Eba "Pandora's box" 19; Ahmed Positive Muslims i-ii and 8. 7 AIDS Foundation sa www.aids.org.za/hiv.htm. See also n 55 for statistics. 8 Steinberg Three-Letter Plague 2.

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and human rights approach, advocate and/or highlight that, compared to monogamy, polygyny either amplifies rates of HIV transmission or is the cause of its spread. Some of the general concerns raised highlight that states' legal condonation rather than discouragement of polygyny has the deleterious effect of perpetuating inequality within marriage; contravenes provisions in international instruments; results in a violation of women's sexual and reproductive health and dignity; and negatively impacts on women's ability to insist on spousal fidelity or condom usage, negotiate their sexuality and choice in leaving such high risk relationships. While not detracting from the popularly held view that women in polygynous relationships may be at greater risk of contracting HIV than their counterparts in monogamous relationships, in briefly addressing some of the concerns raised, this article suggests that, while it may indeed be a contributing factor, it is not the institution of polygyny per se that relates to the disease's spread, but the conduct of the parties to the marriage relationship, whatever its nature (monogamous or polygynous).
The focus and thrust of this article lie with the institution of polygyny in Islam, the South African response to polygyny, the (potential) impact of polygyny on the incidence of AIDS, and the contribution that both an informed approach to HIV and an enlightened approach to the application of Islamic values, which I favour, could or would have on the limitation of the disease's spread. The article is structured accordingly.

The Nature of Polygyny in Islam 9
Muslim Personal Law (MPL) 10 9 This S on polygyny is mainly extracted from a book written by the author ( Of the Prophet Muhammad's nine to eleven wives, only one was a virgin, whom he preferred and loved more deeply or differently than his other wives, and was, therefore, himself not able to treat his wives with absolute equality. This is acknowledged also in the Qur'an itself. 14 While in the socio-economic context the Qur'anic polygyny verses can be quoted to show inequality between the sexes, there is scope in the primary sources to indicate that polygyny was not meant to be a permanent "reward"  16 Interesting to note is the fact that the relevant Qur'anic verse (4:3), although permitting polygyny, does so in the context of dealing compassionately with orphan-girls. This important fact, however, seems to have been of no, or little, consequence or relevance in the subsequent interpretations of these verses. The above-mentioned (polygyny) verses emphasise equal treatment among wives, but acknowledges that this is not possible, no matter how hard a man tries. 17 An orthodox interpretation of these verses measures equal treatment in financial terms (relating to maintenance and housing, etc) with little, if any, regard to emotional and psychological effects.
It is not common knowledge that the Qur'anic verses limiting polygyny and exhorting monogamy were only revealed after Prophet Muhammad had married all his wives. In fact, the Prophet himself was prohibited by God in the Qur'an from contracting any more marriages. 18 The Qur'anic verse prohibiting the Prophet from entering into any more marriages must not only be viewed as normative but indeed unique, in that God made provision for all eventualities, if Muslims are prepared to see it as such.
While Muslim activists of both sexes, like conservative Islamists and modernists, either support or reject the practice of polygyny, the bottom line is that, while reformers have tried to restrict polygyny within an Islamic framework, they find it very difficult to abolish it outright. All women and men, regardless of wealth and educational status, need, therefore, to co-operate in order to bring about change in family law. While certain countries have effected amendments or reforms to codes of personal laws, it must be noted that, on the basis of (the same) Qur'anic injunctions and intention, in some countries polygyny is 16 Q.4:129 and Q.33:4. 17

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Since the form of an Islamic marriage does not preclude further simultaneous marriage(s) by the husband, South African law regarded it as potentially polygynous, even if neither party had more than one partner, and even when the parties intended their marriage to be monogamous. Thus, a potentially polygynous union was equated with a de jure polygynous union. 25 The status quo remained, although much progress was made towards the recognition of polygynous marriages since the end of apartheid and the adoption of the interim 1993 Constitution, 26 with courts starting to recognise some of the effects of Muslim marriages in order to provide relief to women and children in cases of death or divorce. The human rights to freedom of religion and equality were, however, given equal weight in the interim Constitution, and this made it possible that Muslim marriages, once recognised, could be exempt from the Bill of Rights.

1994 to date
The final Constitution appears to guarantee the right to freedom of religion 27 to all South Africans, which entrenches the right to live according to the customs and traditions prescribed by those religions. The Constitution, therefore, lays the groundwork for the recognition and application of religious family law Although no court has yet declared a Muslim marriage valid, and although they mostly refrain from expressing approval of polygyny, 33 courts have given effect to some of the obligations arising from Muslim marriages. Amod v Multilateral Motor Vehicle Accidents Fund 1997 (12)  A secular court has to approve an application by a husband to take another wife. 39 This approval will only be given if the husband can satisfy the court that he will be able to "maintain equality between his spouses," that is, treat his wives equally as required by the Qur'an, 40  where there is one wife, would apply mutatis mutandis to a case where there are several wives. However, failure to obtain such approval, or his wife's permission for that matter, will not invalidate the husband's second marriage, and he merely has to pay a small fine -hardly a deterrent, as has proved to be the case in Pakistan, where the husband either pays a small fine or undergoes a short period of imprisonment. 44 The Draft Bill indicates that each wife in a polygynous Muslim marriage can insist on just and equal treatment between wives, and that failure by the husband to do so provides a wife with valid grounds for divorce. 45 It remains to be seen whether clause 8 will be able to provide sufficient redress to a wife who does not want to be divorced, but, because she prefers to be in a monogamous relationship, refuses to stay with her husband or have conjugal (sexual) relations with him. Such a situation would be unacceptable to traditional Islamic law. 46 Cognisant that polygyny in Islam can be interpreted to embody gender inequality, and be seen to be oppressive to wives, the Draft Bill places restrictions on polygynous marriages, and although inclining towards establishing equality, it is not equality per se but equality in terms of status, human dignity and equal treatment that can be insisted upon. 47

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The suggested legislation has to date not yet been enacted by Parliament. 49 Until such time the South African courts remain the main forum for aggrieved Muslim parties to approach when seeking redress for the hardships caused by the non-recognition of the validity of their marriages.

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The (potential) impact of poligyny on the incidence of HIV/AIDS  Figure 5) the distribution of the population of South Africa by population group is as follows: Black African (79%); White (9,6%); Indian/Asian (2,5%); and Coloured (8,9%). Thus, while this perception is not surprising since Black Africans constitute more than three-quarters of the total population, it is, however, true that socio-economic inequalities and political factors have played a big role In a very recent study on polygyny and HIV in Malawi it was found that, other than just the number of formal unions, factors like spousal infidelity (adultery) on the part of both polygynously married men and women and, very interestingly, the selection of women "who are at higher risk of infection (i.e. those who are at higher marriage orders [for example, in a second or third marriage] and those who are widowed compared to divorced)" to join polygynous unions, produces higher HIV prevalence in such unions . What was furthermore an interesting feature of the study site, was that the highest prevalence rates were found in a district where polygyny was least common, and vice-versa (where polygyny was most prevalent but HIV infection rates was the lowest) (ibid 6 and 13). concern of contracting HIV. Whilst this is true, it is also interesting to note that AIDS transmission via sexual contact is more likely to occur from a male to a female rather than the other way round. 62 This implies that the prospect of greater infection intra marriage must be present in polygynous marriages if the husband is the infecting party, although nothing precludes a wife, competing with several co-wives for sexual gratification from one husband, from engaging in extra-marital sex with an infected party and so transmitting it to the husband.
However, as will be highlighted with hypothetical questions tested on the facts of the Miller case below, it is contended that rather than the institution of marriage itself relating to the disease, it is the conduct of the parties to the marriage relationship, regardless of its nature (polygynous or monogamous).

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marriage and his second. She was also a virgin at the time she married him.
She had no prior knowledge that her husband was infected, and he died without knowing that he was infected. 66 As prescribed by Islam, Ms Miller's first sexual encounter was within a lawful marriage; yet this did not prove to be sufficient to protect her from HIV infection.
Did the fact that she was in a polygynous marriage make her particularly more A second or further wife is often aware that she is entering into a polygynous marriage, and may, therefore, give it due consideration before accepting such a proposal. The first wife, whose permission is not required and who has little choice in the matter, is often unaware of the fact that she has become party to such a marriage if it took place clandestinely, and has even less remedies at her disposal. If, however, she is aware of the further marriage and of any potential risk of contracting HIV, she may, for example, insist on the husband's Inserting clauses in a marriage contract to the effect that the wife would be entitled to divorce her husband should he enter into a polygynous marriage offers little protection to the wife. That Islam permits polygyny is exacerbated by the fact that Islamic divorce laws are interpreted to be particularly stringent, thus placing undue hardship and restrictions on the wife wishing to get out of such a marriage. As far as divorce is concerned, it must be noted that a revocable divorce (raj`i talaq) is one that does not immediately dissolve the marriage in that it does not become effective until the end of the waiting period (idda), which varies in length, prescribed for the wife. The woman is, therefore, still the legal wife of the husband in this case 69 67 Conjugal rights are inherent in, and presumed to arise out, of marriage (WLUML (n 12) 155). Regarding 'sexual access, social practice often demands that the wife make herself available to the husband upon his request' (WLUML (n 12) 156). See n 49.
, and is still obliged to have conjugal relations with him. She, on the other hand, may not remarry until the 68 "Muslim law does not accept the possibility of self-imposed chastity and abstinence" (Pearl and Menski (n 42) 178). Nonetheless, 58% of ulama in the Western Cape who responded to the following question in a survey, "Do you think that the first wife (in a polygynous marriage) has the right to deny conjugal rights to her husband until he produces the results of an Aids test after he marries a second wife?... indicated that the wife does have a right to deny conjugal rights in this situation" (Ahmed (n 6) 218). Cognisant that little over 50% of the respondents were prepared to adopt an alternative approach to Islamic law to deal with health risks implicit in a modern epidemic, this is nonetheless a step forward and should be welcomed. See also footnote 50 and discussion regarding HIV testing which follows in this section. 69 Ahmad Muslim law of divorce 82. 81/161 expiry of this period, while her husband may remarry, and have sex, with up to four women at a time.
Since abstinence before marriage is the Islamic norm, early marriage after reaching the age of puberty 70 is encouraged. While pre-marital and extramarital sex is taboo in Islam, 71 and its practice more prevalent in non-Muslim societies, this does not mean that local Muslims, who do not live in isolation from the larger non-Muslim society of which they form part, do not engage in such activities. Evidently [s]ome…Muslim youth are sexually active and engage in pre-marital sex; some adults are promiscuous, engaging in extra-marital sex.

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There is also a growing frequency of local 'shotgun' or 'MGM' (must get married) marriages for the sake of covering up a prior pregnancy, 73 and 'honour deaths' 74 in certain Muslim countries where brothers kill sisters to save the family's good name and honour. Virginity, although prized, is not a prerequisite for marriage. In some countries 'virginity' tests are often sought to prove that the prospective wife is indeed a virgin. It is not uncommon for non-virgins to make a mockery of these tests by having their hymens surgically repaired.
While this deceit can be reason enough to terminate such a marriage, sight must not be lost of the fact that being a virgin, although commendable, does not

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Despite the fact that it took its cue from certain Muslim countries which have prescribed a minimum age of marriage for both males and females that is higher than the age of puberty 83 prescribed by Islamic law, the Project Committee's suggested marital age of 18 was reduced at the insistence of the public. Muslim marriages will now have to comply with the ages and conditions as set out in terms of the South African Marriage Act, 84 which makes provision for marriages to take place at an earlier age than is the general practice in South Africa. Since early marriage is encouraged in Islam (which promotes physical maturity over mental preparedness), such a reduction in age is preferred over sex outside marriage which is not permitted in Islam but in which some marriage if extra-marital sex occurs regardless of status; precautions to prevent mother to child infections through pregnancy; and accessing HIV intervention programmes aimed at educating men and vulnerable women and children.
AIDS is both a moral issue and a medical problem. We have to find a balance between the need for practical action and a morally correct approach which promotes tolerance and does not infringe upon human rights. Tradition dictates to Muslims that ultimately the greater good must prevail over evil. Because AIDS does not discriminate between the sexes, its spread cannot be prevented without the full and active participation, and (sexual) empowerment, of both sexes. In order to live healthy, risk free and productive lives, we must not only educate ourselves about the disease, but also be open to seeking creative and novel solutions within the parameters of Islam law. 96 Q.4:34. This verse is deemed to be highly controversial in that it has been interpreted to promote gender inequality. although it has no cure, can certainly be prevented by being proactive and making choices that will lead to prolonging life.
As Muslims we must not let our morality become more uncomfortable and unacceptable than the disease itself. Furthermore, preventing the spread of HIV/AIDS presents a unique opportunity for local Muslims and their religious leaders to adopt novel approaches in finding solutions that are within our reach instead of beyond our grasp.
This article has demonstrated that whilst polygyny may be a contributing factor, it does not cause AIDS to spread any more than monogamy guarantees a reduced spread. While Islam does pave the way for its demise, it is believed that rather than restricting or banning polygyny, which has the potential to create unnecessary resistance, safer sex and open polygynous marriages should be encouraged. Polygyny, in any event, is generally on the decline in South Africa where statistics indicate a limited practice thereof and little social need for its continued practice in the Muslim community. Polygyny should, therefore, be left to die a natural death of its own accord.
Islamic tenets governing sexual conduct and the practice of polygyny, if followed, certainly pave the way to prevent its spread. However, given the current reality in South Africa where local Muslims are, to all intents and purposes, fully integrated into the larger society and, therefore, equally susceptible to its temptations, these tenets must be supplemented with additional safeguards to both promote and sustain change in sexual behaviour.

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An educated and increased awareness of the epidemic in the community, coupled with intervention programmes, will encourage informed sexual choices, and enable parties to positively and responsibly influence each other's sexual choices and behaviour both before and during marriage, and regardless of its (polygynous or monogamous) nature.