Know Your Rights - Polygamy
Aishah* has been married to Hussein* for four years, and they have three children together. She is currently pregnant with their fourth child. For several months now, Hussein has not been staying at home. Sometimes he returns in the evening for his dinner, but after changing his clothes, he will go out again. Aishah and their children do not know when will be the next time they will see him.
She is fairly certain that he has another woman, but is unsure if he has legally married her or not. Aishah heard from her relatives that they have seen Hussein intimate with another woman, and when they press her for details, she can only keep silent in shame. She tried to ask Hussein if he has married another wife, but he hit her and ordered her to not question him on his actions.
Hussein has not been supporting the family financially for quite some time and Aishah was forced to resort to use up her savings, which were almost depleted. Aishah does not know if she can leave their matrimonial home and return to her parent's house for refuge because she is afraid that she might be going against his wish and inadvertently commit "nusyuz" (disobedience). This situation of uncertainty is driving Aishah and their children to pieces with anxiety and worry. Is he practicing polygamy? What are his obligations to his first family if he is? Does he not need to seek her consent or at least inform her if he is planning to take another wife?
Sadly, WAO have received many calls through our counselling lines from women faced with the same predicament as Aishah. In Malaysia, Muslim men are allowed to marry up to four wives under the Islamic Family Law Act/Enactment. Since each State in the country is allowed under the Federal Constitution to decide on its own Muslim family law, the conditions for polygamy vary from State to State according to its own Syariah law. Therefore, it is advisable for you to check with your nearest Religious Office (Pejabat Agama Islam) or contact the Legal Aid Bureau or the Legal Aid Centre in your State to find out what are the procedures and stipulations concerning polygamy in your State.
What are the conditions for polygamy under Malaysian law?
Before marrying a second or subsequent wife, the husband must first make an application to the Syariah Court for permission. As mentioned above, the conditions for granting this permission are slightly different in each State. In Perak, the husband need only to make a declaration before a Syariah Court judge that "he shall be fair to his wives" and obtain a certificate from a Syariah Court judge. There are no other conditions. In Kelantan and Terrenganu, apart from obtaining permission from the Syariah Court, there are also no specific conditions stipulated.
In all the other States, there are four conditions laid down before a man another:
- the proposed marriage must be just and necessary;
- the husband must have sufficient financial means;
- the husband will accord equal treatment to the existing wife/wives; and
- the proposed marriage will not cause darar syarie (danger or harm) to the existing wife.
What is deemed as "just and necessary" is debatable and is up to the judge to decide after hearing the application by the man, and in certain occasions where she attends the hearing, the wife's view. Some applicants cite the reason that the second or subsequent marriage was to 'avoid vice' or zina (adultery). The courts in previous cases have rejected this reason. There is no law in Malaysia which supports lust as a reason for polygamy, as there is nothing in the Qur'an which state fear of committing zina to be considered as a ground for polygamy.
There is a current tendency to focus more heavily on the criteria of "financial means". However, it it important to note that the financial ability of the man to support another household is only one of the factors that is considered while applying for polygamy. The applicant has to show the particulars of his commitments, his financial obligations and liabilities and the number of his dependents (in example, his immediate family members, parents etc.). He may have to show documentary evidence from his employer or company or income tax returns to show his financial ability.
The provision of "equal treatment" is again something that is up for moot and for the judge to exercise his discretion. Similarly, what constitutes darar syarie is up to the judge's interpretation. Although there used to be a condition in the law, which stated that the proposed marriage must not lower the standard of living, enjoyed y the existing wife and children, this condition has slowly been eroded and now none of the State's Syariah laws carry it.
What are your rights as the existing wife?
Most State laws state that the existing wife will be informed about the application. It also allows you to attend the hearing and state your views about the matter, and be given a copy of your husband's application, his supporting declarations and documents. Although none of the state requires the consent of the existing wife to enable a man to practice polygamy, your views are taken into account in most States. However, please bear in mind that it is still only one of the factors considered.
The proposed wife is generally not required to attend the hearing for a polygamy application. In some cases, she may not even be aware that he is already married. To check the marital status of the Muslim man is in practice rather difficult. Although law requires the registration of marriage, there is currently no central computerised database of Muslim marriages. This means that you will have to check every State to find out if he is married to another person. Sometimes, in order to avoid stringent laws in his own state, the husband marries at another State or even across international borders.
The government is currently of the view of streamlining the Syariah laws in all States in Malaysia. The women's movement, in particular Sisters in Islam, are advocating to ensure that women's welfare and views are heard and taken into account in this process.
(Resource: Islam & Polygamy, Sisters In Islam)
*Names changed to protect WAO's client's confidentiality.
Prepared by Jaclyn Kee
Women's Aid Organisation - 20 Years of Service to Women and Children
Fortnightly Column by WAO on Sunday Mail (Reprinted with permission from Sunday Mail)