Reform of the Islamic Family Law on Polygamy, 1996

Memorandum On Reform of the Islamic Family Laws on Polygamy

Submitted to Yang Amat Berhormat Perdana Menteri Malaysia
Datuk Seri Dr Mahathir Mohamad
on 11 December 1996 by Sisters in Islam and Association of Women Lawyers

INTRODUCTION

In the fight of the ongoing debate on polygamy in Malaysia, and given the current initiative by the Government to strengthen and promote the family institution and family values, we hereby propose several amendments and suggestions to the laws and regulations on polygamy to ensure that justice is done to women and children as envisaged by the Qur'an.

If the family is indeed seen as the basic unit of any society, then the rights and prerogatives of Muslim males as traditionally understood, and which in practice have often subverted the very sanctity of marriage and family, must be reevaluated. This is to ensure that the pursuit of what is regarded by patriarchal societies as men's rights will no longer cause grave harm and injustice to women and children.

The current debate on polygamy is a reflection of how popular misconceptions and fallacious arguments about men's rights are actually rooted in tradition and values that regard women as inferior and subordinate to men. This is further reinforced by the use of religion to sanctify these prejudices. If we believe that Islam is a liberating religion that uplifted the status of women and gave them rights that were considered revolutionary 1400 years ago, then that same spirit of liberation and justice must inform Muslim societies today.

Those who promote polygamy in this country have used several arguments that we feel are untenable.

First, it is said that polygamy is the "right" of every Muslim male and that to challenge this right is to challenge the word of Allah (s.w.t.). However, a reading of verse 4:3 in the Qur'an clearly shows that polygamy is not an unconditional right in Islam, but a responsibility to ensure that justice be done to widows and orphans.

If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly (with them), then only one. That will be more suitable to prevent you from doing injustice. (Surah AI-Nisa, Verse 3; translation by Abdullah Yusuf Ali)

This emphasis on justice is further reinforced by verse 4:129 which states:

You are never able to be fair and just as between women, even if it is your ardent desire …(Surah Al-Nisa, Verse 129).

The letter and the spirit of the verse on polygamy, revealed following the tragedy of the battle of Uhud, is concerned with the overriding welfare and protection of women and children following the death of dozens of Muslim men in the still formative Muslim community of Medina. In those circumstances, Allah (s.wt.) could have sanctioned the unlimited practice of polygamy of the time, but instead, Allah (s.w.t) restricted the practice to a maximum of four wives.

By stressing the need for just conduct toward women and for equal treatment of all wives, and recognising the impossibility of doing so (4:129), verse 4:3 cannot be seen as one that promotes polygamy. It is not a command for men to practise polygamy. The verse, in fact, promotes monogamy as the original and ideal state of marriage in Islam. Several great reformers of the nineteenth century such as Sheikh Muhammad Abduh, the Mufti of Egypt at the turn of the century, and Sayyid Ahmad Khan and Mumtaz Ali of the indian subcontinent had regarded polygamy only as a tolerated institution of the past that should, in the present circumstances, give way to the Qur'anic ideal of monogamy.

Abdullah Yusuf Ali in his commentary on the verse also stated that since the condition for equality in polygamy is so difficult to fulfil, then he understood the verse to recommend towards monogamy. It is interesting to note that in a revised edition of Abdullah Yusuf Ali's translation and commentary of the Qur'an, his recommendation on monogamy was expediently removed by the publishers.

In the practice of polygamy in this country, in its advocacy by many in religious authority or otherwise, and in the implementation of the laws, polygamy is often regarded as an unconditional right of Muslim men. While saying that they are only following the traditions of the Prophet (s.a.w.), those who promote polygamy have conveniently omitted the fact that Prophet Muhammad (s.a.w.) remained monogamous throughout his marriage to Siti Khadijah (r.a) which lasted 25 long years until her death in the tenth year of his prophethood, and that his subsequent polygamous marriages were to widows and divorcees, for political and tribal reasons.

The only virgin he married was Aishah (r.a.). The advocates of polygamy also omit to cite the authentic hadith (in Sunan lbn Majah) which reported that Prophet Muhammad (s.a.w.) did not allow Saidina Ali (r.a.) to marry another woman "...unless and until Ali lbn Abi Talib divorces my daughter (Fatimah), for surely she is part of me and what troubles and agitates her troubles and agitates me too; and what harm befalls her befalls me too."

Second, those who advocate polygamy have often cited that there is nothing in the Qur'an nor the Sunnah of the Prophet that requires a Muslim husband to seek his wife's consent before he takes a second wife. Therefore there is no need for the existing wife to be consulted, nor for her consent to be obtained. How can there be justice in a polygamous marriage if the existing wife does not agree to it or worse still, is not even consulted?

The Qur'an as a book of divine guidance is eternal and universal, but neither the Qur'an nor the Sunnah offer specific detailed rules for everything. To do this would render a universal message irrelevant in changing times and circumstances. To meet the challenges of change, the jurists therefore established the principle of al-siyasa al-syariyya, which recognises the right of a state to enact legislation by choosing opinions from among the four schools of jurisprudence to serve the best interest of the community on matters where there is no specific text in the Qur'an or Hadith. It is a fact that the great majority of Islamic rulings are reached through the medium of qi'yas, i.e. judgment upon juristic analogy.

Adopting the principle aal-siyasa al-syariyya, Malaysia embarked on a remarkable programme of reformation of Islamic family laws which introduced among others the restrictions on the practice of polygamy to help ensure that justice is done as envisaged by the Qur'an. As interpreted into law, this means that the decision to marry a second or subsequent wife no longer rests on the Muslim male in this country.

The state which is vested with the responsibility of administering justice is now entrusted with the task of scrutinising the application for polygamy to ensure that it meets with the notion of justice envisioned by the Qur'an. Again as translated into law, the state set five specific conditions which need to be fulfilled, in addition to consultation with the existing wife, before a decision is made on the right of a husband to practice polygamy.

However, in practice, and through amendments made by the various states, the original substance and spirit of this law reform has been violated. In Perak, the decision to contract a polygamous marriage rests solely on the husband. The Syariah court is not required to grant permission, nor have conditions or punishments been set. In Kelantan and Terengganu, the specific conditions for polygamy have also been deleted, leaving the Syariah judge to use his own discretion to decide on whether a husband is eligible to take another wife.

Selangor and the Federal Territories were two jurisdictions which had remained faithful to the original draft of the Islamic family law reforms. However, over the years several retrogressive amendments (1988 in Selangor and 1994 in FT) were made, robbing women and children of the protection afforded them by the principal Act/Enactment in its original form, especially on matters pertaining to polygamy and divorce.

Third, it is often cited that polygamy is an institution sanctioned by Islam to enable men to satisfy their lust through legitimate means. However, nowhere in the Qur'an is there any intimation that polygamy is a solution to men's alleged unbridled lust. Nor do the laws of Malaysia recognise lust as a condition for polygamy. Islam teaches self-control, self-discipline and self-purification. The solution to an immoral society whether in the West or in the Muslim world is not polygamy. If this was so, one would see the end of adultery, rape, incest and prostitution and other such social ills and crimes in Muslim countries or among Muslim men wherever they are.

Indeed in Malaysia, statistics show that 60 per cent of convicted rapists are Malay men, 73 per cent of those who are HIV positive are Malays, 70 per cent of drug addicts are Malay men, the majority of reported cases of incest and domestic violence are perpetrated by Malay men, the majority of cases of abandoned babies are committed by Malays. If indeed polygamy is the panacea for such social ills, why do the Muslim Malays of our country form a disproportionate portion of the perpetrators in all these cases.

The solution to men's alleged unbridled sexual drive is not polygamy, but a change in attitude and values from a belief that it is a man's right to indulge his Just to a belief that a man, unlike other lifeforms, was created with an intellect and a capacity to control his base desires and instincts and to obey Allah's call to piety, discipline and respect for the opposite sex.

Fourth, a fallacious justification for polygamy often cited is a demographic fiction that there are 14 women to every man in Malaysia. This has been repeated over and over again by many advocates of polygamy over radio and television, in the press and in their public talks. However, figures from the 1991 National Population Census issued by the Statistics Department show that there are in fact 103 men to every 100 women in Malaysia and that men exceed women in every age group except in the 60 years and above group.

The propagation of such a preposterous demographic statistic is ill-conceived as it exposes those in religious authority to public ridicule. It is demographically impossible for any country to have such a farfetched proportion of women to men unless that country practises male infanticide or abortion of male foetuses on a large scale. As far as we know, such practices are not part of the Malaysian culture.

In the interest of justice to all its citizens, and as part of the Government's campaign to strengthen the family and arrest social decay, we urge the Government to review the amendments made to the Islamic Family Law statutes by the various states and to repeal or amend those provisions which have resulted in injustice to women and children. The implementation of the conditions for polygamy must also be tightened and clear procedures established to better reflect the spirit and substance of the law which was intended to restrict the practice of polygamy in this country.

We hereby attach our comments and recommendations on the provisions on polygamy in the Islamic Family Law. Another memorandum will be submitted on the overall reform in the substance and administration of Islamic Family Law in the country.

REFORMS ON POLYGAMY

1. Amendments to the Islamic Family Law

Section 23(1) of the Islamic Family Law Act/Enactments was amended to allow polygamous marriages contracted without the required permission of the Court to be registered.

Section 23(4) (e) which provides that the proposed polygamous marriage should not directly or indirectly lower the standard of living enjoyed by the existing wife and dependants has been deleted.

Concerns
The registration of such polygamous marriages is subject to section 123 of the Act which provides for the penalty of a fine not exceeding RM1,000/- or imprisonment for a term not exceeding six months or both for the offence of practising polygamy without permission. In practice, however, this penalty has not served as a deterrent. As far as we know, no man has been imprisoned for contracting a polygamous marriage without the Court's permission. It is also rare for the maximum fine of RM1,000 to be imposed.

A more common practice is a fine of $300. The amendment to Section 23(1) has, in effect, encouraged husbands intending to practise polygamy to circumvent the Act by contracting a polygamous marriage outside the State. For example, in 1985, the Selangor Syariah Courts granted permission for polygamy in 82 cases. However, 350 cases of illegally contracted polygamous marriages were detected. This has increased to 410 up to September this year. This flagrant and prevalent disregard of the law must be addressed. How can those in authority inculcate respect for Islamic law when Muslim men know that they can break the law, or ignore court summonses and court orders, and yet not be punished for their transgressions.

Recommendations
(i) The penalty provision viz. section 123 of the Act be amended to provide for an increased penalty in the form of a minimum fine of RM1,000 and a mandatory custodial sentence of not less than four weeks. The maximum sentence should also be extended from the present six months to one year. This must be enforced strictly in order to deter errant husbands from taking advantage of the loophole in the law and also to inculcate respect for Islamic family law among Muslims. It has been found in other jurisdictions that a mandatory jail sentence in cases of domestic violence has dramatically lowered the incidence of continued violence. In the same manner, in cases of polygamy without court permission which occurs because men regard such acts as their unconditional right, mandatory imprisonment can prove to be a more effective deterrent.

(ii) Reinstate paragraph (e) of section 23(4) which provides that the proposed polygamous marriage should not directly or indirectly lower the standard of living enjoyed by the existing wife and dependants.

(iii) An amendment be introduced to allow the court to make an order in respect of the wife's and children's maintenance, as well as the wife' s share of the property jointly acquired by her and her husband prior to his new marriage. This order should be made automatically by the court without the need for the aggrieved wife to make a specific application. We strongly feel that it is unjust for a wife who has struggled together with her husband to uplift their standard of living to be subsequently deprived of enjoying the just fruits of her labour and sacrifice when her husband marries another woman. The interest of the aggrieved wife and children must be protected. A division of property and assets could at least mitigate some injustice from the financial point of view.

This order should also be made before a polygamous marriage contracted in contravention of the Act can be registered. Should a husband fail to register the marriage, then the first wife can apply to the court for maintenance and for a division of the harta sepencarian.

(iv) Insert a clause similar to section 127(2) of the Johor Islamic Family Law Enactment 1990 which provides as follows:
"127(2) Any person who has more than one wife who has failed to give justice to the wives on maintenance, clothing, place of abode and their entitlement according to Hukum Syarak commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment."

A specific clause for punishment should injustice in polygamous marriages occur will further help protect the interest of the women and children.

2. Tighten and Streamline the Implementation of Section 23(3)
Section 23(3) of the Islamic Family Law Act (FT) 1984 provides that an application for polygamy shall be accompanied by a declaration stating the grounds on which the proposed marriage is alleged to be just and necessary, the present income of the applicant, particulars of his commitments and his ascertainable financial obligations and liabilities, the number of his dependants, including persons who would be his dependants as a result of the proposed marriage, and whether the consent or views of the existing wife or wives on the proposed marriage have been obtained.

Concerns
This provision has usually been implemented in irregular and random ways. It is often left to the husband to choose what he wants to submit as evidence to support his declaration, if at all. Often, supporting documentary evidence is not submitted. In considering a husband's application for polygamy, the Syariah Court judge must in the first place scrutinise his application form and the accompanying declaration to help him decide whether the man is eligible to take another wife according to Section 23(4).

Moreover, we find the design of the Application Form, as issued by the Selangor Syariah Court, misleading. It presumes that permission for polygamy will be granted as a matter of course. The form includes item number 4 which requests for information on the date of the planned polygamous marriage, the place where it will be held, the village and district of the mosque which has jurisdiction, and item number 6 which requests for the names and details of two witnesses.

This form is not an application for marriage, but an application for permission to contract a polygamous marriage in which other conditions have to be fulfilled and other parties have to be consulted. Therefore, it should not give the applicant the erroneous impression that permission would be granted by asking for details of a marriage that might not be permitted to take place.

Recommendations
(i) The Syariah Court must issue a prescribed Declaration Form together with an Application Form to all applicants for polygamy.

(ii) Application Forms for permission to contract a polygamous marriage should not include information such as items 4 and 6 as described above that assumes that permission would be granted. Filling up this form is but the first of many steps that an applicant has to go through in the process to obtain permission for a polygamous marriage.

(iii) Declaration Form should contain the relevant sections to be filled in detail by the applicant as required under Section 23(3, including sections:for the applicant to declare whether the consent or views of the first wifehave been obtained. The wife's signature is a requirement to indicate whether she has been consulted or not. Failure to consult should be a factorto be considered in the judge's decision on whether to grant permission ornot.

It is only fair that the wife, as a partner in the marriage contract, must be consulted regarding her husband's intention at this preliminary stage to change the terms of the contract. It is iniquitous for the wife to learn of the husband's intention only at the stage when she is summoned to appear before the Syariah Court under Section 23(4);

for the applicant to make a declaration to the truth of his statements and thatany false declaration would render him liable to be charged under Section 38 of the Act. The signatures of two witnesses are required to attest to the declaration.
The Form must also require the applicant to produce:

1. supporting medical report to prove that the proposed marriage is just and necessary because of the wife's sterility, physical infirmity, wilful avoidance of an order to restitute conjugal rights, or insanity.
2. supporting documents from his employer or company, his banks, as well as income tax statements, to prove his net income after deductions for debts and other liabilities.

Tighten the Implementation of Section 23(4)
It is often reported that Syariah judges tend to give emphasis to a man's financial capacity to support more than one family in deciding whether he should be given permission to contract a polygamous marriage. Scant regard is given to the other three conditions which the applicant has to fulfil under Section 23(4). The burden of proof must be on the applicant to prove to the court that he has fulfilled all the four conditions necessary to practise polygamy. The 1990 judgment of the Selangor Syariah Appeals Committee in the case of Aishah Abdul Rauf vs Wan Mohd Yusof Wan Othman should be used to establish guidelines for a more just implementation of Section 23 (4).

Recommendations
(i) As stated in the decision of the Selangor Syariah Appeals Committee in the above mentioned case, all four conditions - just and necessary, financial means, equal treatment and no harm caused to the existing wife - are of equal importance and must be proven independently. This means that even if the applicant can prove that he can financially support a second family, he still needs to prove to the Court that he is able to fulfil the other three conditions.

(ii) The applicant must enclose specific supporting documents and provide responsible witnesses to attest to his character and ability to be fair and just and that the proposed marriage would not cause darar syarie (harm affecting wife in respect of religion, life, body, mind, moral or property). We propose that for:

condition (a): the Court should request that medical and other evidence (including witnesses) be produced to prove that the wife is sterile or physically infirmed or unfit for conjugal relations or is insane or is wilfully avoiding an order for restitution of conjugal relations;

condition (b): the applicant must produce supporting documents from his employer or company, his banks, as well as income tax statements, to prove his net income after deductions for debts and other liabilities;

condition (c): witnesses, including the applicant's existing wife, must be produced to corroborate the applicant's claim that he is able to accord equal treatment to all his wives. A mere verbal declaration that the applicant would be fair, without proof and supporting evidence from witnesses, is not acceptable. The husband's conduct as a God-fearing man fulfilling the tenets of Islam, his conduct as a husband, father and son should be taken into consideration by the Court.

condition (d): the existing wife and witnesses must be called and medical evidence be produced to prove that the proposed marriage would not cause darar syarie to the existing wife.

condition (e): with the reinstatement of this condition, the Court should consider the applicant's statement of income, his income tax statements and other financial documents, including any source of income from his proposed second wife to prove that there will not be a drop in the standard of living of the existing wife and children.

(iii) The judge must establish during the consultation with the existing wife if her consent has been given freely or that it has been obtained under duress. It has been brought to our attention that it is common practice for the first wife to be threatened with divorce unless she gives her consent before the judge. After the court appearance, she would return to the court to express her disagreement to the proposed marriage, revealing that her consent was obtained under the threat of divorce and abandonment.

(iv) The applicant's intended wife must also be summoned to the Court to meet with the first wife for consultation to help her consider the realities of a polygamous marriage and whether the applicant can really fulfil the conditions required for such a marriage.

4. Taklik Agreement
The current standard taklik agreement provides for divorce in cases of desertion, non-maintenance or cruelty. There is no provision for redress in cases where the husband contracts a polygamous marriage without the agreement of the existing wife.

The rule that a husband who has agreed in his marriage contract not to take another wife during the subsistence of the marriage would be bound by such a stipulation is not a modernist view. It is a Hanbali ruling that has been adopted and followed in various other Muslim countries such as Syria, Jordan, Morocco, Egypt and Iran. Therefore, individual couples who choose to do so should be allowed to include this term in their taklik agreement, and if it is not honoured by the husband, the wife would be entitled to a taklik divorce.

Recommendations
(i) An additional term be included in the standard taklik agreement, at the option of individual couples, to provide for the right of the wife to obtain a taklik divorce if the husband takes another wife. This is an option to divorce given to the aggrieved wife who is unable to live in a polygamous situation.

(ii) The taklik agreement should also state that the husband's breach of any term in the agreement would entitle the wife to a divorce and to mutaah. Mutaah should not be defined as a "consolatory gift", but as an obligatory compensation payment due to every woman who is divorced without just and sufficient grounds or who has been forced to apply for a divorce because of a breach of the taklik agreement.

5. Other Recommendations
(i) All states must adopt uniform laws on polygamy, using the Islamic Family Law in its original form before it was amended by Selangor and Federal Territories. Perak, Perlis, Terengganu and Kelantan, in particular, must be advised to amend their enactments immediately to grant women better protection. Alternatively, such uniformity can be enforced by invoking Article 76(1)(b) of the Federal Constitution which confers power upon the Federal Parliament to "...make laws with respect to any matter enumerated in the State List, but only as follows, that is to say: ... (b) for the purpose of promoting uniformity of the laws of two or more states;"

(ii) A common computerised register of Muslim marriages be established at the national level linked to a similar system at the state level to enable the Court or the State Religious Department to establish immediately if an applicant for marriage is already married. Very often the proposed wife is not aware that her intended husband is already married. In a case where the applicant has lied about his marital status, the Court should dismiss outright any subsequent application on his part to contract a polygamous marriage and charge him for false declaration under Section 38.

(iii) All Muslim males applying for permission to marry must sign a statutory declaration that they are unmarried and this is to be submitted together with his application form. A false declaration renders him liable to be charged under Section 38.

(iv) The parties involved in the application for polygamy - the husband, the existing wife and the intended wife - must attend counselling sessions to consider more deeply and fully the consequences of a polygamous marriage and to consider its impact on the children. All must be counselled on their rights and responsibilities in a polygamous marriage, the options opened to any aggrieved party, and the penalties for failure to carry out duties according to the law. The counsellor's report should be taken into consideration by the Court in deciding whether permission should be granted or not.

(v) All Court judgments on applications for polygamy must be written, giving grounds as to why permission was granted or not, to assist in the process of appeal.

6. General Recommendations
(i) The best of laws designed to protect women will remain ineffective if prejudicial social attitudes towards women prevent them from getting access to the rights granted to them under the law. All syariah judges, religious officials, and counsellors must undergo gender sensitisation training to enable them to better serve their clients, the majority of whom are women. Only then can the syariah courts engender confidence among women that they can be assured of justice within the system.

(ii) Each state is to establish an independent watchdog body similar to the Public Complaints Bureau to receive complaints from aggrieved parties and channel them to the appropriate authority for action. This body will also monitor the implementation of the Islamic Family Law by the Syariah Courts and the programmes and activities of the Religious Departments.

(iii) The Government should fund a comprehensive research project to be undertaken by an independent organisation to study all aspects of polygamy: how the court grants permission for polygamy, polygamy without permission of the court, and the impact of polygamy on the family institution, socially, economically, morally and emotionally.