The recent regulations introduced by the Jabatan Agama Islam Selangor (JAIS – Selangor Islamic Affairs Department) to assist Muslim men to expedite their application for polygamy without the need to obtain consent from their existing wife or wives are a cause for concern. In the wake of recent calls for the better protection of rights of our Muslim women, the JAIS decision appears ill advised, if not an indication of misplaced priorities.
What is especially alarming is the rationale for it. It was reported that the regulations stem from the notion that polygamy is the right of the Muslim male; and what the regulations sought to do were merely to ensure that this alleged right is made more accessible.
It is clear that there is confusion over the intent of polygamy in Islam and on how the laws on polygamy should operate and be administered in this country.
First, a reading of Surah an-Nisa’, 4:3 and 4:129 in the Qur’an clearly shows that polygamy is not a right in Islam but a responsibility to ensure that socio-economic justice be done to orphans. Verse 4:3 in fact restricted polygamy to a maximum of four wives, this at a time when men could marry as many wives as they wanted.
Second, because polygamy is not a right, Allah placed conditions on its practice, with an overriding concern that justice be done: “… if you fear that you shall not be able to deal justly (with them), then (marry) only one”. This is further reinforced by verse 4:129 which states: “You are never able to be fair and just between women even if that were your ardent desire”.
It is clear that the intention of the Qur’an is to restrict polygamy; many theologians over the centuries have stated that, in fact, the Qur’an advocates monogamy as the original and ideal state of marriage in Islam.
Malaysia in the late 1970s and early 1980s embarked upon a remarkable programme of reformation of Islamic family laws under the doctrine of siasah shari’ah (in codification of the law, the state may choose opinions of differing schools to serve the best interest of the community), which introduced among others restrictions on polygamy to help ensure that justice is done as envisaged by the Qur’an.
The reformed law laid down a set of conditions upon which it sought to assess that justice will be done. Consent of the existing wife or wives is one of the factors to be taken into consideration by the court.
Four conditions also need to be fulfilled: The proposed marriage is “just and necessary”; the applicant has the financial means to support his existing and future dependants; he would be able to accord equal treatment to all his wives, and the proposed marriage would not cause any harm to the existing wife or wives.
The law requires that the court summons the applicant and his existing wife or wives to be present at the hearing of the application. If under the new JAIS regulations consent of the existing wife is no longer needed, will this mean that she will not be consulted by the court as required by law?
Clearly the reformed law saw the necessity of consultation with the existing wife. Her experiences living in the same household would assist the court in ascertaining the measure of the man and on whether he would be able to fulfil the conditions required under the law before permission for polygamy is granted.
The spirit of the law reform on polygamy had taken a fresh step in affirming that justice in Islam would not be gender biased. However, in the implementation of the law, much of the spirit and intent of these reforms remain largely ignored because of prejudicial attitudes of a patriarchal society.
One outstanding exception was the 1990 case of Aishah Abdul Rauf vs Wan Mohd Yusuf Wan Othman. The Shari’ah Appeal Court of Selangor which unanimously overturned the lower court’s decision to permit Wan Yusuf to take a second wife – stated that all conditions for polygamy are of “equal importance and should be proven independently.”
A failure to fulfil one condition alone would have been sufficient for the lower court judge to reject the husband’s application, it stated. Women’s groups support the grounds of this judgement as they reflect the true message and spirit of the Qur’an and the provisions of the Islamic Family Law Act 1984.
We are aware that the doctrine of binding precedent is not part of the Shari’ah system, nor is the practice of written judgements a common occurrence in the Shari’ah Court. However, if the religious authority had the will to improve the administration of Islamic law to ensure that justice is done and be seen to be done, some effort would have been made to put into practice the substance of this judgement. Instead, what we see are new regulations and amendments being introduced that strike at the very root of justice in Islam.
Several years ago, Selangor abolished the fifth condition required for polygamy, that is: that the proposed marriage should not directly or indirectly lower the standard of living enjoyed by the existing wife and dependants. Two years ago, the Federal Territory followed suit. Now this. Is it the intention of JAIS and the religious authority in all the states to remove all conditions for polygamy as provided for in the Islamic Family Law Act? Is it their intention to continue to erode the original intent and spirit of the reform?
It is, indeed, regrettable that JAIS has chosen this retrogressive path. What is even more reprehensible is the fact that JAIS has prioritised polygamy for Muslim men at a time when Muslim women continue to face endless problems in getting access to justice in the Shari’ah Court system and in the religious departments at the district and state levels.
Aside from expressions of support and concern from the Prime Minister and Deputy Prime Minister, it does appear that those in authority have chosen to keep a deaf ear to women’s appeal that justice be done.
Should not JAIS’ priority be focused on what it should do to improve the services it is supposed to provide to its clients, more that 90 per cent of whom are women? What are its responses to women who are unable to access basic maintenance from their erring husbands; women and children who have been deserted; the increasing number of female-headed households as a result of irresponsible Muslim men? It is a matter of fact that the Shari’ah Courts have in many cases even allowed men to decrease their maintenance payments because they have more than one household to support.
The brazen disregard for the welfare and interest of women and children continually demonstrated by those in religious authority boggles the mind. If this trend continues, how can the Government expect to engender confidence among its citizens that Islamisation would indeed bring about a more fair and just society?
How can those in authority even talk about strengthening the family institution, promoting family values, fortifying moral standards when, in practice, its actions and inaction help to break up families and cause so much pain and misery to women and children.
If we truly believe that Islam is a fair and just religion, then it is time that we revise our priorities in the interest of justice – for all.
Sisters in Islam
20 October 1996
This letter was published in The Star and Utusan Malaysia.