Polygamy - Comparative

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Historical BackgroundIn 1893, matters relating to the family institution in Islam

in its traditional form were arranged according to a modernlegal format.

An Egyptian national figure, Muhammad Qadri Pasha,had codified the classical interpretation in relation tofamily matters by giving the name al-Ahkam al-Shar`iyyahal-Ahwal al-Shaksiyyah.

This manual for Family Law was based on the Hanafi asthe predominant school of law in the Ottoman Empire

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In actual fact, the manual did not have any differences withthe traditional interpretation. The only exception was thatthis manual was the first effort in which the procedures for

the family institution in Islam were codified in the form ofmodern laws

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continue Early legal reform in Islamic Family law touched

on the codification of the law according to the

modern legal format rather than the substances. Rules relating to the family institution as discussed

in the classical Islamic Law are deemed to be

adequate for the Muslims to live according toIslamic principles.

Such principles relating to the family institutionwas regarded as a necessity to be kept in its

original state. Therefore, classical principles on polygamy were

also regarded by the states as adequate in curbingany abuses arising from the practice of polygamy.


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The actual effort of reforming the procedures relating tothe family institution began in 1915 when the Ottomangovernment became the first Muslim country to take the

first bold step of reforming its family law. Codification of the law on the family institution does not

differ much from what was carried out previously byMuhammad Qadri Pasha.

The only exception relates to the adoption of theMalikischools of law that has been adopted besides the Hanafidoctrine, which was predominantly followed by theOttoman government.

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The Sultan of Turkey issued an imperial decree thatpermitted the wife to seek for divorce at the Shari`ahcourt for which this right was denied previously.

Later the Ottoman Law Family Rights Code (Qanunal-Huquq al-`Aila al-Uthmaniyya) was promulgated.

The Ottoman Law of Family Rights Code 1917 has been

applied for many years in Syria, Jordan, Lebanon andEgypt

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In the beginning of the 1920s, Egypt became the firstMuslim country to promulgate the law on marriageand divorce, which was more comprehensive than theOttoman legislation.

This was followed by the Jordanian Law of FamilyRights 1951, the Syrian Law of Personal Status 1953, the

Tunisian Code of Personal Status in 1957 and also theMoroccan Law of Personal Status 1958.

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The focal point of legal reform in family matters was tostrengthen the position of women.

Women faced many problems concerning family lifewhen their husbands failed to undertake theirresponsibilities as enjoined in the Quran.

With the legal reform, women could now turn to the

court to implement their rights for divorce, custodyand also claims after the divorce.

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www.um.edu.myLaw of Polygamy

The reinterpretation of polygamy in Islam by SheikhMuhammad Abduh at the end of the 19thcentury hasnot only given rise to responses from the Muslimsscholars but also deeply influenced state policies inseveral Muslim countries.

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Codification of Classical Interpretation ofpolygamy -

Stipulation against polygamy in the marriagecontract

Legal / administrative restriction on polygamy

Total prohibition to practice polygamy

Polygamy within Muslim Minorities Countries.

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www.um.edu.myCodification of Classical Interpretation of polygamy

Family matters were not codified and the classicalworks of certain schools of laws were made asreferences in solving family problems.

In Saudi Arabia, for example, the classical works of theHanbalischool of laws such as Kitab al-Mughni li Ibnal-Qudamah, Hijawi Zad al Ma`ad andal-BahutisKashaf al-Qana`were among others the mainreferences in regulating issues pertaining to Muslimsmarriage and divorce.

besides Saudi Arabia that continued to use theprocedures in its classical form were among others of

the Gulf States. 11


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www.um.edu.myEgypt

In Egypt, the first law promulgated to regulate familymatters was Egyptian Law of Maintenance andPersonal Status No. 25 of 1920, which was later,amended by Egyptian Law of Personal Status No. 29 of1929.

Matters concerning polygamy remained untouchedand polygamy law that was enforced was based on theclassical interpretation.

This situation is unusual, as these two legislations ofFamily law in Egypt have not made any reform in

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By not incorporating reforms on polygamy intoEgyptian Law No. 25 of 1920 and Law no. 25 of 1929, itshowed that Abduhs view was not well received byEgyptian legislators.

The Parliament of Egypt passed a set of new laws, theEgyptian Personal Status (Amendment) Law 1985(Law No. 100 of 1985).

The husbands rights to marry up to four wivesremained unchanged. The amendments clearly do notrestrict husbands to practice polygamy but providesprocedures, which the husband has to follow before hetakes another wife.

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What has been provided for in this law is that Section 5A inwhich a man who is getting married shall declare hismarital status in his application for registration of

marriage. If he is already married then he shall disclose the name and

address of his existing wife. The Registrar will inform theexisting wife about her husbands new marriage.

This provision should be commended because itguarantees that, an existing wife will be informed by themarriage Registrar of her husbands intent to practicepolygamy regardless of whether the husband chooses to

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www.um.edu.myStipulation against polygamy in the marriage contract

The practice of inserting stipulations against polygamyin marriage contracts is not a practice that is new orunusual among many Muslims societies in the MiddleEast.

Jordanian Law of Personal Status 1976 still maintainsprovisions that allow the insertion of the stipulation inthe marriage contract whereby the husband shouldnot take another wife. In this stipulation the wife hasthe right to divorce in a situation where the husbandhas violated the stipulation.

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www.um.edu.myLegal / administrative restriction on polygamy

Syria was the first country to have provisions wherebythe practice of polygamous marriages would requirethe approval of the court beforehand.

The introduction of a provision such as this is based onthe method referred to as sad al-dharai`in Islamic law

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www.um.edu.myTotal prohibition to practice polygamy

Any polygamous marriages contracted in Turkeywould be declared as null and void. If anyonecontracted such a marriage, the person had committedan offence under Article 237 of the Criminal Code andwas punishable with imprisonment for six months tothree years. A similar punishment would also beimposed to women who knowingly married a man who

already had a wife

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In Tunisia, the prohibition of polygamy is actuallybased on the understanding that a husband is not ableto treat his wives equally.

the reformers in Tunisia came to the conclusion thatsince polygamy is an act that is permitted and notobligatory or recommended then the practice can beregulated or even abolished by the state.

Some writers argued that the prohibition of polygamyin Tunisia is a victory for women.

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In Tunisia it is an offence for anyone to practicepolygamy and if violated one can be punished toimprisonment not exceeding one year or a fine notexceeding 240,000 francs. Section 18 of the TunisianCode of Personal Status, 1976 provides that: Anyperson who being already married and before themarriage is lawfully dissolved marries again, shall be

liable to imprisonment for one year or for a fine of240,000 francs, or to both, even if the second marriageis in violation of any requirements of this law

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through empirical evidence discussed by severalresearchers, it was found that despite the lawprohibiting polygamy Muslim men though very rarestill continue to practice it.

It seems that the law is not only ineffective inrestraining polygamy but also gives rise to othermarital problems to a certain extent, being adisadvantage to women.

In that case, the total prohibition of polygamy is notthe answer to solve the problems of polygamy becausemen could otherwise use their unilateral right todivorce his wife.

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www.um.edu.myPOLYGAMY WITHIN MUSLIM MINORITY COUNTRIES.

There are three types of approaches to polygamyadopted by the Muslim minority countries:-

First, countries such as those in Latin America, someEuropean countries, China and Japan have taken strict

legal prohibition approach to polygamy for non-Muslims as well as Muslims.

The second type shows an interesting approach takenby countries such as Britain, the United States,

Canada, Australia and New Zealand. the law onlyrecognizes Muslim foreign polygamous unions.

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polygamy has been long prohibited by legislation butrecently the law has become more liberal in dealingwith foreign Muslim polygamous unions.

Finally polygamy has been outlawed only for the non-Muslim while Muslim husbands have continuouslyenjoyed their traditional position to practice polygamy.

The law in countries such as in Thailand, Singapore,India, Philippines, and many of the African countriesrecognize the minority Muslim to practice polygamousmarriages.

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www.um.edu.myIslamic Family Law in Malaysia

In Malaysia there is no single family law system that applies for the

whole country.

-There exists two different family law systems in which one is for theMuslims and the other for non-Muslims.

-The Law Reform (Marriage and Divorce) Act 1976, which was

enforced throughout Malaysia from 1 March 1982, governs the

Chinese, Hindus and other religions.

-The Muslims on the other hand are governed by the Islamic Family

Law system.

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Continue

-In the early 1980s, Malaysia began to introduce and enforce specificlaws relating to the Islamic Family Law.

-The Government did not only emphasize on a controversial issue such

as polygamy that had been raised by society but also made a study on

all aspects in relation to family matters.

-It can be said that the effort to introduce a comprehensive IslamicFamily Law Enactment was derived due to the hardship and

dissatisfaction faced by many Muslim women on several aspects of

Islamic Family law.-The new Islamic Family Law covers nearly all aspects of family law,

including solemnization of marriage, registration of marriage and

divorce, guardianship, maintenance, custody, financial claims after

divorce and also penalties to those who contravene the provisions.

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-The promulgation of the detailed Islamic Family Lawsreceived support from society as well as Muslim womensgroups.

-They welcomed the amendments as they felt that the newand detailed Islamic Family Law Enactment was necessaryas it enabled several problems in society, especially thoserelating to women and family, to be solved. The legislatorshave taken into consideration all the comments and

recommendations that have been suggested by the muslimwomens group.

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-This law has made several changes in which it made iteasier for the authorities to administer Islamic Law.

-Where the public was concerned, particularly women, thelaws have brought great changes to womensrights, whichwere clearly provided under the law.

-Women have the right to claim maintenance and arrears,

dissolution of marriage through ta`liq, fasakh and khulu`and also claims on financial rights after divorce.

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Undoubtedly, the Islamic Family Law Enactments

has substantially improved womens legal

position especially in tackling problems faced by

Muslim women not only in polygamous

marriages but also in other aspect of family

matters such as divorce, custody, maintenance,

and claims after divorce such as jointly acquiredproperty (harta sepencharian) and severalmatrimonial offences were provided.

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- The Islamic Family Law Enactment of Malaysia hasbeen enforced for approximately twenty years ever

since it enforced on 1 January 1983.

- During this period, several problems wereencountered, especially its weaknesses which were

identified in the course of its enforcement.

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-This came about when the public voiced their

complaints in the newspapers. They were

disappointed with the postponement of family-

related cases at the Shariah courts, and non-

enforcement of judgment that was already

passed, the opposing decisions laid down by

the court which differed from one to anotherstate, weak of court procedures, the judgment

is not well written and the bias attitude towards

women mostly in family related cases.

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The problem of enforcing the Islamic Family Laws

has brought about an overbearing negative effect

towards the Shariah courts main clients who are

women. The effect from this problem is injusticetowards women, all the more, when they themselves

make the effort to bring up their rights, which are

protected and guaranteed by the law.

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www.um.edu.myLAW OF POLYGAMY AND ITS IMPLEMENTATION

Adopt restrictive polygamy where the Law empowered theSharia court to grant permission to practice polygamy.

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A) Application for Polygamous Marriages (PM)

Conditions that have to be fulfilled by the husband

- Submit specific form to the Shariah courts with detailssocio-economic background

- declare the grounds on which the proposed marriage is tobe just and necessary

- The husband must have sufficient means to enable him tosupport more than one wife.

- Able to accord equal treatment

- would not cause harm to the existing wife due to PM(latter this provision was deleted)

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Notifying the existing wife on her husbands intention.The husband must stated whether his existing wifeconsented or not. She is required by the law to be

present at the hearing.

Amendment to the law in 2000

- Notifying the proposed wife and her guardian to attendat the hearing

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B) PM Contracted in violation of the the Law

The marriage cannot be registered

In 1990s, the law was amended and such marriage can now

be registered provided that such marriage is validaccording to Islamic Law and also subject to penalties. (RM1000 fine or 6 months imprisonment or both)

C) Unequal Treatment (UT) among the wives UT is a valid ground for judicial divorce (fasakh)

UT is an offence punishable under the law with RM 1000fine or 6 months imprisonment or both

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D) New Amendment (2000)

- The court must issue an order on maintenance andproperty jointly acquired (harta sepencharian)duringthe marriage upon granting PM .

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CASES

Aishah Abdul Raof vs Wan Mohd Yusuf

The Appeal Board had decided that There are 4 conditions mentioned in Section 23(11) of the

Islamic family law enactment before the Shari`ahjudgecould give approval to polygamy. In this case, the learned

Judge had only taken consideration on the financial statusunder the condition (b) but disregarded the conditions (a),(c) and (d) when accepting the declaration made by theapplicant without any evidence and support of HukumShara`.

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The appeal board hence, was convinced with thedeclaration made by the husband in the declarationform, which was admitted by the learned judge stating

that he was financially able to practice polygamy.However, although the appeal board was convinced ofthe learned judges opinion on the husbands financialability, the board expected that in the future, it is

important for the applicant to produce writtenevidence to the court on his income. For example,certified documents from his employer or thecompany, the true picture of his income tax after

taking into consideration all his debt, if any. 38


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In this case, the applicant failed to justify on why heshould be allowed to practice polygamy and hence, hehad failed to fulfil condition (a) under Section 23(4)

and, as a result of the failure to fulfil this just onecondition is already sufficient for the Judge todisapprove his application.

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In this case, the husband also made a confession in thedeclaration form and under the witness of the learnedjudge that his main reason to practice polygamy was

on the basis of wanting to legalize his love andaffection.

However, the Appeal Board found this reasoningsufficient, which was only to fulfil his personal needsbut it was considered inadequate to support the basisof his ability and that the proposed marriage would bejust and necessary.

(1990) JH 152 and (1990) 3 MLJ lx.

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Mohd Azmi Kamaruddin AJ in his judgment said thatas a Muslim, the husband should be able to control hissexual desires and somehow try to avoid adultery.

In addition, when cross-examined by the Courthowever, he conceded that Aishah, his wife, has nophysical defects and always give him the satisfaction inhis sexual needs besides being obedient.

Thus, there is no justification why he should beallowed to practice polygamy since the husband hadfailed to fulfil the condition (a) of Section 23(4).

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2. In the matter of Polygamy Application Ruzaini binHassan

The court held that the applicant was financiallyincapable in supporting more than one wife althoughhis existing wife consented.

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Imprisonment has became the choice of some sharia courtsto those men who have committed PM without courtspermission

Unfortunately, in many cases, the sharia High court setaside the imprisonment and retain the fine.

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Bung Moktar dihukum penjara

KUALA LUMPUR 19 Mei - Secara tiba-tiba, suasana di dalam dewan

Mahkamah Rendah Syariah Gombak Timur, dekat sini hari inibertukar menjadi senyap dan sunyi.

Semuanya berpunca daripada keputusan Hakim Syarie, WanMahyuddin Wan Muhammad yang menjatuhkan hukuman penjarasebulan terhadap Ahli Parlimen Kinabatangan, Datuk Bung

Moktar Radin. Dengan keputusan itu, Bung Moktar menjadi ahli Parlimen pertama di

negara ini yang dihukum penjara atas kesalahan berpoligami tanpakebenaran mahkamah.

Isteri keduanya, pelakon Zizie Izetteyang duduk di sebelah Bung

Moktar, kelihatan terkejut dan terus memandang ke arah suaminyasebaik mendengar keputusan itu.

Zizie atau nama penuhnya, Zizie Izette A. Samad pula didendaRM1,000 atau penjara sebulan bagi kesalahan yang sama.


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www.um.edu.my 'Tertuduh merupakan seorang ahli Parlimen yang

terlibat dalam meluluskan sesuatu undang-undang. Beliau seharusnya menghormati danmendukung undang-undang tersebut tidak kiraundang-undang sivil atau syariah.

''Tertuduh wanita pula seorang pelakon wanitaMuslim yang menjadi idola dan ikutan.

''Sekiranya kedua-dua mereka tidak boleh

mengikut undang-undang, ia menunjukkanseolah-olah undang-undang syariah bolehdipermainkan oleh mereka yang berpengaruh danberkepentingan,'' katanya.


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Pada prosiding hari ini, hakim syarie tersebutturut mendenda RM1,000 atau penjara enambulan ke atas enam individutermasuk pelakon

wanita itu kerana bersubahatdengan BungMoktar yang berpoligami tanpa kebenaran.


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Bung Moktar terlepas hukuman penjara

SHAH ALAM 11 Ogos 2010 - Ahli ParlimenKinabatangan, Datuk Bung Moktar Radinterlepas dari penjara da hukuman selamasebulanbagi kesalahan berpoligami tanpa

kebenaran selepas rayuannya untuk mengetepikanhukuman itu diterima oleh Mahkamah TinggiSyariah di sini hari ini.

Ketua Hakim Syarie Selangor, MukhyuddinIbrahim bagaimanapun menggantikanhukumantersebut dengan denda RM1,000 ataupenjara enam bulan jika denda berkenaan

gagal dijelaskan.


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Zizie pula didenda RM2,000 atau penjara tujuh bulanatas dua tuduhan bernikah tanpa kebenaranpendaftar dan bersubahat dengan suaminya itu

berpoligami tanpa kebenaran mahkamah. Pasangan itu bernikahdi sebuah rumah beralamat No. 12,

Jalan TC 2B/3, Cemerlang Heights, Taman Melati,Gombak pada pukul 8.50 malam, 16 Disember lalu.

Namun begitu, Mahkamah Tinggi Syariah Kuala Lumpurpada 12 Jun lalu memutuskan pernikahan pasangan itu

yang berlangsung pada 9 Jun lepas di rumah Zizie di No. 6,Jalan Setiawangsa 6, Taman Setiawangsa di ibu negaraadalah sah dan memerintahkan ia didaftarkan.


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www.um.edu.myConclusion

In the middle of the 20thcentury, several Muslimcountries had passed specific legislations on PersonalLaws.

Despite various views among the Muslim thinkers onthe question of polygamy, several Muslim countrieshave passed the laws that control the practice byempowering the court to assess the husbands ability to

contract an additional marriage. Legislation alone cannot control the practice unless

such legislation is accepted by the society and alsostrictly implemented by the Courts.

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Most of the Muslims countries however did not takefurther steps to prohibiting polygamy except Tunisiaand Turkey, since the policy makers believed that

polygamy to a certain extent could fulfil the needs ofthe society.

This shows that traditional Muslims would not easilyaccept changes made whereby restrictions were

imposed on the practice of polygamy.

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An interesting legal reform on polygamy can beseen when several Muslim minority countries

have recognized foreign polygamous marriage.By this recognition, the legislation hasprovided matrimonial relief for women inpolygamous unions.

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Polygamy - Comparative