Al-Nisa’ ; 3 Al-Nisa’ ; 129 Hadiths of Prophet Muhammad

It refers to;1. Right of a woman to nafkah2. Night turn

-The verse was revealed after the war of Uhud-Many Muslims were killed in the war leaving widows without husbands and children without fathers.-Therefore the Quranic verse was revealed and polygamy is the solution.- Effect of the verse:-Limits up to four wives only at one time-Justice ie equality of treatment in terms of maintenance and turn

Hadith:

• Naufal b Muawiyah said, when I embraced Islam with five wives, rasulullah said to me, “Divorce one of your wives”.

• For those who have two wives and be unjustly among them, his body will fall apart on the day of judgment

Question: “Do justice between them..or else marry only one” (An-Nisa:3)

Some muslim jurists views:• Justice here refers to:• (1) maintenance • (2) cohabitation in turn• (3) equality in maintenance and treatmentQuestion: What about love and feelings?

Surah an-Nisa : 129“Ye are never able to be fair and just as between women, even if it your ardent desire. But turn not away from a woman altogether so as to leave her (as it were) hanging in the air.”

- Opinion of Sheikh Muhammad Ibn Sirin:•The inability in the above verse refers to inability in terms of love and sexual intercourse- Opinion of Ibn Arabi:• views that no one can control one’s heart since it is entirely in the hands of Allah swt.

Hadith:• Aisyah reported that the Prophet (saw) used to distribute things and justice to all and used to say: My Allah, this is my distribution which is in my control but do not hold me responsible for what is in your control and I have no control over it.

Majority’s viewThe first verse shows that polygamy is

permissible in Islam Imam Abu Bakar al-RaziIf there is fear of injustice, Muslim is

commanded to marry only one

Whether State can interfere to restrict polygamous marriage• Many jurists view that it is up to individual to decide, he must satisfy that he can fulfill the condition of polygamy ie in maintenance and turn• Most jurists view that the ruler may restrict and even prohibit in the public interest something which is ordinarily lawful or permissible by Shariah, in the case of polygamy, especially if there is fears of injustice

The wife is suffering from a serious disease

The wife is proved barren The wife is of unsound mind The wife has reached the old age The wife has a bad character and she

cannot be reformed During the war

Capable of giving nafkah either zahir or batin

Must be just and fair Responsible in carrying out his roles and

duties as a good husband and father

All polygamous marriage requires permission from the Court.

Sec 23(1) No man, during the subsistence of a marriage, shall, except with the prior permission in writing of the Court, contract another marriage with another woman.

If a person is married without obtaining court’s permission, the marriage shall not be registered unless if satisfied by the court that the marriage is valid under hukum syara’.

Sec 23(1A) A marriage contracted without the permission of the Court under subsection (1) shall not be registered under this Act unless the Court is satisfied that the marriage is valid according to Hukum Syarak and the Court has ordered the marriage to be registered subject to section 123.

Sec23(3) – All application must be submitted to the Court in the form prescribed must provides:

(i) the grounds on which the proposed marriage is alleged to be just or necessary,

(ii) the present income of the applicant, (iii) particulars of his commitments, financial obligations and liabilities,

(iv) the number of his dependants, including persons who would be his dependants as a result of the proposed marriage

(v) whether the consent or views of the existing wife or wives on the proposed marriage have been obtained.

Sec 23(4) - summon the applicant and his existing wife or wives, the woman to be wedded, the wali of the woman to be wedded and any other person who, in the opinion of the Court, may provide information relating to the proposed marriage to be present at the hearing of the application, which shall be in camera.

Proposed marriage is just or necessary if the applicant may give sufficient reason such as

- sterility, - physical infirmity, - physical unfitness for conjugal relations, - wilful avoidance of an order for restitution

of conjugal rights, - or insanity on the part of the existing wife

or wives

(b) that the applicant has the capability to support the existing and future wives, dependants and future dependant as required by Hukum Syarak.

(c) that the applicant able to give equal treatment to all his wives as required by Hukum Syarak; and

(d) that the proposed marriage would not cause darar syarie to the existing wife or wives.

A copy of the permission granted by Court under sec 23(3) and a copy of the application form shall be given to the existing wife.

The existing wife or any aggrieved parties may appealed against the decision of the court as provided under sec23 (6)

Sec 23(7) - Any person who contracts a polygamous marriage without the permission of the Court shall pay immediately the entire amount of the mas kahwin and the pemberian due to the existing wife or wives, which amount, if not so paid, shall be recoverable as a debt.

Any man who contracts another marriage in any place without the prior permission in writing of the Court commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both.

Aishah binti Abdul Rauf v Wan Mohd Yusof bin Wan Othman[1990] 3 MLJ lx;(1990) 7 JH 152

Rajamah bt Mohamed v Abdul Wahab b Long[1412] JH 171

Ayisha Begum v Hajiah Maideen[1988] 3 MLJ xiv

In Re Ruzaini bin Hassan, Jun (2002) JLD XV BHG I JH 79

Abdul Wahab (H) is lab assistant wished to marry his colleague on the ground to avoid zina.

Judge has granted his permission to allow the Husband to contract polygamous marriage.

Wife decided to appeal. The Selangor Syariah Appeal Committee allowed the wife’s appeal

The burden of proving is on the husband to show that he is capable of supporting more than one wife

Looking at the evidence of the husband’s financial means he has failed to do so

- The wife appealed against the decision of the trail court judge in giving permission to the husband to marry again.

- The judge based his decision on the reason that the husband is capable in giving the financial means to both wife and fear that husband would commit zina if no permission is granted.

- On appeal:

The trial judge only look at one condition in para (b) (financial means) and did not consider other conditions (a, c, d)

Trial judge merely accept state statement of the husband without verifying with other proofs.

Husband failed to proof that the marriage is just and necessary under para (a)

Insufficient evidence to show that husband can give equal treatment. Which may caused darar syarie’.

In Re Ruzaini bin Hassan

- The applicant applied for polygamous marriage under s. 23- He claimed to have financial abilityand no objection from 1st wife-After further inquiry from the court, it was found that the balance of monthly expenses of the applicant is only 391.90-Ct rejected the application as the amount is not sufficient to maintain the second wife

Sec 23 (9)

Sec 23(9) - Court that grants the permission for polygamy shall have the power on the application by any party to the marriage—(a) to require a person to pay maintenance to his existing wife or wives; or

(b) to order the division between the parties of the marriage of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division of the proceeds of the sale.

Applicant (H) applied for permission for polygamous marriage. Respondent (W) did refused to give consent and asked for a divorce.

Applicant refused to divorce the wife as he still very much love the wife.

Respondent gives a condition that if applicant wishes to marry anorther wife, she is claiming:

Maintenance RM500 for her and RM1000 for her children.

Half of the applicant’s savings belong to her as harta sepencarian.

To return RM50,000 that was taken by the applicant to pay for house deposit

Application for polygamy was granted bty the court.

Applicant need to pay RM1500 to the wife as maintenance.

As to other claims, wife may have to make a new application at a different proceedings.

Sec 53 (1)(h) (iv) – allows the wife to obtain fasakh if the husband fails to treat them equally in accordance with hukum syara’

Joan Mary Sulaiman v Sulaiman Hj Musa (1993) 10 JH 86

Husband failed to provide maiantenance for the period of 1 year and and neglects the first wife in terms of cohabitation.

Held: Court granted the application for fasakh.