Islamic Family Law and Justice for Muslim Women

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Muslim women in Kabul. (twocentsworth/Flickr)

Polygamy

Ratna Batara Munti, Indonesia
According to Munti, the permission of wife is not essential in the provisions on polygamy, as it is actually for the court to decide whether the husband can practise polygamy or not. Decisions are rather subjective as different judges can give different opinions as to when a husband may be allowed to practise polygamy. There are cases where the husband’s excuse for polygamy is because of the absence of the wife, even though she went away to work due to their economic circumstances. The husband may also apply to the court for permission by saying that he could not get the permission from his wife, and this may be accepted as an excuse, without any further explanation, although the wife is not present or she may be sick or disagree with polygamy. The decisions are made subjectively by the courts.

Nik Noriani Nik Badlishah, Malaysia
Polygamy becomes a problem when men mistakenly think that it is their absolute “male right.” The situation is aggravated due to the fact that Islamic family law is under the separate jurisdiction of each state. Men find it easier to go to another state to contract a polygamous marriage and later apply for registration rather than applying for the court permission before contracting the polygamous marriage. Since the Federal Territories Islamic Family Law Act was amended in 1994, polygamous marriages may be registered even though they were contracted without court permission. Men find it easier to pay a fine when applying for registration after contracting the marriage rather than applying for permission from the court before contracting the marriage. Therefore, her suggestion is that, before the court allows registration of the polygamous marriage that was contracted without permission, the court should also make orders as to the arrangements for the provisions of maintenance for the first wife and children as well as for the first wife’s share of the husband’s property that was acquired before his new marriage. These proposals are to ensure justice to the wife, which is in accordance with the letter and spirit of the Qur’an, which place great importance on justice to the wife.

Halijah Mohammad, Singapore
When a husband wants to practise polygamy, there are certain conditions that must be met. The first criterion is that the husband must prove to the court that he is financially capable of marrying a second wife and at the same time to maintain the first wife. The husband must produce his income tax statement and salary slip as the supportive documents. It is compulsory to satisfy this criterion before going to the other criteria. Secondly, the husband must have the ability to treat both families equally and fairly. For example, in the cases where the first wife complains that during the year in which the husband was cavorting with the other woman, he rarely returned home, the application will usually be rejected. If the two criteria are satisfied, the third criterion is whether there is any lawful benefit to society in the proposed union. If there is, the application is allowed; for example, in cases where the first wife is sick and the second wife is apparently able to assist the husband in his business.

Carmen A. Abu Bakar, the Philippines
In the Philippines, there are two conditions for polygamy under the Code of Muslim Personal Law (Article 27) which are: (i) equal companionship; and (ii) justice treatment. Nevertheless, the conditions have not been explained in detail. Nor is it explained what are the exceptional circumstances in which polygamous marriages may be allowed to be contracted. Her recommendation for reform is that the law should make provision for prenuptial agreements, in order for the husband and wife to decide whether a subsequent marriage may be contracted, by the husband, and giving the option of divorce to the wife.