Sisters in Islam welcomes the decision of the Selangor State government to tighten the procedure for polygamous marriages to ensure that justice is done.
The decision to require the man, his existing wife, his future wife and her guardian to appear before court allows the judge to determine the ability of the man to be just.
It is the first step in a series of procedures that should be in place to assess justice and to recognise that this can only be done in consultation with all concerned parties. It is not for the husband alone to decide.
Sisters in Islam urges that other procedural steps be adopted to evaluate whether the Islamic requirement that justice be served in a polygamous marriage can indeed be fulfilled by:
- Requiring all Syariah court judges to conform to the judgement of the Selangor Appeals Committee in Aishah Abdul Rauf vs Wan Mohd Yusof Wan Othman case which concluded that all four conditions, not just one, for polygamy under the Islamic Family Law are equally important and must be fulfilled. The four conditions are – just and necessary, financial means, equal treatment and no harm caused to the existing wife – must be proven independently.
- Establishing that the existing wife’s consent was given freely. The judge must establish during consultation with the existing wife whether her consent has been given freely or under duress. It has been common practice for the first wife to be threatened with divorce unless she gives her consent.
- Drafting a new application form to reflect the new requirements and ensuring that court officials are able to advise the husband accordingly. Husband must also provide proof of his statements – supporting documents on his income, liabilities, property. Currently, the Application Form is misleading as it presumes that permission for polygamy will be granted as a matter of course and husband need not submit any supporting documents.
- Providing a wife who cannot live in a polygamous marriage the choice to leave. A wife should not be forced to remain in a marriage different from the one she is contracted to.
- According the right of the first wife to her share of the matrimonial property (harta sepencarian) prior to the approval of the polygamous marriage. This is to ensure that her interest are protected and secured. We strongly feel that it is unjust that a wife who has struggled together with her husband is subsequently deprived of her rights when her husband marries another woman. *
- Ensuring that the husband will provide monthly maintenance to wife and children. The husband’s employer can be ordered to deduct a portion of the husband’s salary for them. We propose that the State Government insert a paragraph which provides that the polygamous marriage should not directly or indirectly lower the standard of living enjoyed by the existing wife and dependents (similar to paragraph (e) of section 23(4) of the Islamic Family Law (Federal Territory) that was deleted). This is to ensure that at the very least, the financial security of the first wife and children is ensured. *
* The last two procedures must be a standard. The court need not wait for an application by the wife before giving the order but instead dispense with it as a matter of justice.
Sisters In Islam
5 May 2003