POLYGAMY IS A CONDITIONAL NECESSITY

Law Enforcement Coordination Division

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Introduction
The tendency to live in pairs is natural to human beings. In order to meet this
biological drive, Muslims are bound by the syariah-based marriage rules and
regulations. A happy marriage based on love and warmth becomes the motivation
and drive towards the perfection of life in the world and the hereafter. In contrast, an
unhappy marriage will produce the symptoms of personality weaknesses that will
negatively affect not only themselves but also the society.
Marriage can be classified into two main types which are monogamy and polygamy.
Monogamy is a marriage between a man and a woman; while polygamy is a
marriage between a man and a few women at any one time.
This article focuses on issues of polygamy as the topic frequently raises pros and
cons in the society including among the Muslims. The men are proud in claiming
polygamy as their right, while the women are reluctant to have co-wives for various
reasons. Hence, this topic tries to uncover the concept of polygamy from the syarak
point of view and its implementation according to the Islamic law in Malaysia.

Polygamy According to Islam

Islam is a religion which acknowledges various human needs and desires to live in
pairs. Based on this condition, Islam allows polygamy to be practised, which has also
been the practice of hereditary societies since before the arrival of Islam. In order to
ensure that the practice of polygamy is carried out fairly and to provide harmony to
the ummah, Islam has laid down certain conditions which restrict the free practice
previously and take a more reasonable fair solution. Islamic law stipulates that a man
may marry more than one woman but not more than four.
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The basis of this ruling which becomes the main evidence in polygamy being allowed
is the firman by Allah s.w.t. in Surah an-Nisa, verse 3:

Which means:
And if you fear that you shall not be able to deal justly with the orphan girls (when
you marry them), then marry (other) women of your choice, two or three, or four; but,
if you fear that you shall not be able to deal justly (among your wives), then (marry
with) only one, or just the slaves that your right hands possess. That is nearer to
preventing you from doing injustice.
According to Dr. Muhammad al-Bahi in his book which has been translated into
Malay language by Fathurrahman (1988), polygamy is not a principle in the Islamic
law which must (wajib) be done that one will be considered sinful if it is not practised.
Polygamy is only neutral and it is a rukhsah (relief) in an emergency situation.
According to him, although the language used in the surah above has the elements
of an order, it does not translate to obligatory. Furthermore, if looked at carefully, it
can also mean as a prohibition and it is in fact haram (prohibited) for the polygamous
husband if he is incapable of being fair and causes a potential abuse to the wife he
married.

Conditions for Polygamy

1. Capable to Provide Nafkah for the Wives
A husband is responsible to provide nafkah, physical and sexual, be it for one wife or
more. Physical nafkah being referred to here is from the aspects of providing food,
clothing, accommodation and medical. Sexual nafkah simply means that the
husband has the capability to sexually provide for the wives.

According to the Syafie Sect, there two school of thoughts on the rate of nafkah
provision to the wife:
i. From the husbands perspective alone without considering the wifes,
ii. From both the husbands and wifes perspectives which means that it is
measured by the husbands willingness to provide and the provision
should be provided according to the wifes condition.
In this matter, the second opinion is considered to be more appropriate and fulfils the
concept of fairness in Islam considering that in many situations a husband is married
to a wife who comes from various social statures.
Abu al-Aynayn in the book al-Ziwaj wa al-Talaq fi al-Islam believes that any
increment may be given to any of the wives in the matter of nafkah provision.
Nonetheless, it cannot be practised if it can lead to misunderstanding and
dissatisfaction among the wives.
2. Be Fair to All Wives
According to Abu al-Aynayn, fairness refers to being equal towards all wives without
having any preference towards any one wife. This includes good interaction between
husband and wives in the aspects of action, speech and morality. This fairness must
(wajib) be practised in all ikhtiari and lahiriah matters which involve aspects namely
nafkah, clothing, accommodation, turns for night stay and travel (musafir).
Feelings of love and affection are not included in the fairness requisition because
they are considered outside of human control and relative in nature. Nevertheless, a
husband is forbidden to extrinsinctly express this difference in emotions as Allah
s.w.t. has said in surah al-Nisa, verse: 129:

Which means:
And you will never be able to be equal [in feeling] between wives, even if you should
strive [to do so]. So do not incline completely [toward one] and leave another
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hanging. And if you amend [your affairs] and fear Allah - then indeed, Allah is ever
Forgiving and Merciful.
2.1. Be Fair in Providing Accommodation
Similar to the provision of nafkah, a husband must provide a home for the wife to
stay be it in a monogamous or polygamous environment. If polygamous, the homes
of the wives are best to be separated as initiative to avoid family feud and jealousy
from spreading among the wives. According to Abd al-Nasir Tawfiq al-Attar in his
book Taaddud al-Zawjat min al-Nawahi al-Diniyyah wa al-Ijtimaiyyah wa alQanuniyyah, the separation depends on the capability of the husband whereby it is
not necessary to house each wife in a separate house, in fact it is allowed that a
single house to be divided into separate rooms for the wives to live in. However, from
psychological point of view, grouping all wives together under a single roof might
lead them to have misunderstandings which may hurt each others feelings.
2.2. Be Fair In Taking Turns for Night Stay
A husband must (wajib) decide on a fair night stay turns among his wives without
being biased towards any of the wives. A husband commits a sin should he allocate
more night stay turns for a specific wife compared to the other wives. However, Abd
al-Nasir Tawfiq al-Attar believes that leniency may be given during the first few
nights of marriage with a new wife without having to replace (qadha) the nights back
to the older wife. This is based on a hadith from Rasulullah (peace and blessings be
upon him) told by Anas r.a. which is:

Which means:
Among the sunnah is that when a man marries a virgin, he spends seven nights
with her. If it is a widow, three nights.
(Sahih Muslim)

Besides that, the fairness in taking night turns is still relative in nature and must be
judged according to each wifes situation. There can be flexibility when there is
willingness from any of the wives. This is based on a hadith by the Prophet (peace
and blessings be upon him) as told by Al-Bukhari:

Which means:
Sawdah has given her turn to Aisyah and Rasulullah has spent the night with Aisyah
in his turn with Sawdah.

2.3. Be Fair In Travelling

According to Imam Syafie, a husband must (wajib) cast a vote amongst his wives if
he wishes one of his wives to accompany him while travelling. Thus, the husband
does not have to replace the turn for the supposed wife during his travelling. If a vote
is not casted and there is no willingness from any of the wives, the husband must
(wajib) compensate the night turn of the wife who has been denied of her rights
during his travelling. Aisah r.a. has mentioned the issue on voting as told by alBukhari:

Which means:
The Prophet (peace and blessings be upon him) when he went travelling, he would
vote amongst his wives.
However, the Hanafi Sect has a different opinion on this matter by saying that it is
not compulsory (wajib) for a husband to vote to choose which wife would accompany
him when he travels.

Polygamy in the Islamic Family Laws in Malaysia

In the Islamic Family Laws in Malaysia, polygamy is allowed with the condition that
the husband has already received a written permission from the Syariah Court. This
is provisioned in the Section 23(1) Islamic Family Laws Act (Federal Territories)
1984. According to Section 23 (3) AUKI 1984, the husbands application to be
polygamous must be submitted to the Court within the stipulated procedure and
accompanied with a confession. The confession must contain the reasons why the
polygamous marriage is a must and necessary, the husbands financial condition
containing the details of his commitments and financial responsibilities and duties
which have to be determined, as well as the number of dependents including the
person whom he will be supporting by means of the new marriage as proposed.
Other than that, the applicant must also state whether or not his wifes (or wives)
opinions have been acquired with regards to the marriage.
The Court will provide fair judgement based on the four conditions for polygamy as
provisioned under Section 23(4) AUKI 1984 which include:
1. The proposed marriage is a necessity judging from the wifes condition
including infertility, physical illness, physically not eligible for sexual
intercourse, disobedient to the rights for sexual intercourse, or insanity.
2. The applicant possesses the capabilities according to syarak to provide for all
wives and the dependents including the person that he will be supporting from
the new marriage.
3. The applicant is capable of providing fair and equal treatment to all wives as
required by syarak.
4. The proposed marriage will not cause danger or harm (darar syarie) to the
wife.
The question as to whether or not all four conditions mentioned above must be
fulfilled in every application has been decided in the case of Aisah vs Wan Mohd
Yusof, [1990] 3 MLJ 1x and [1991] JH VII, which was trialled in the Appeal
Committee of Syariah Court, Selangor. The judge ruled that all four conditions
mentioned under Sect. 23(4) Islamic Family Laws Enactment, Selangor carry the
same importance and must be proven separately by the husband.
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The same judgement was ruled by the Second Hearing Committee Selangor in the
case of Rajamah vs Abd Wahab, [1990] JH 171. Due to the husbands failure to fulfil
all conditions and requirements in Sect. 23(4), the Court has rejected the husbands
application for polygamy.
The fact of the matter is, the conditions set forth by the laws are not meant to forbid
(haram) polygamy because to forbid it is against the syarak law. However, they are
used as a mechanism to prevent men from abusing the necessity for polygamy as
they like. A good lesson learned can be seen from the case of Ruzaini vs
Nurhafizah, [2002] JH 79 which portrayed the fairness of the judge in handling
polygamy application cases. Although the husband has acquired a consensus from
the wife to marry another, the Court did not approve the case because it has doubts
on the husbands capability to be fair to both wives and dependents.
In order to avoid abuse towards women, AUKI 1984 has also provisioned a penalty
for men who failed to obtain the Courts consensus but proceeded to have a
polygamous marriage. Section 123 states that a man who entered into a polygamous
marriage without obtaining written consensus from the Court is considered to have
committed an offence and will be subjected to penalty of not exceeding one
thousand ringgit or jail sentence not exceeding six months, or both.
However, the number of men who enter into polygamous marriages without the
Courts consensus keeps on increasing and is more in number compared to
polygamous marriages conducted according to the Syariah Courts procedures. The
latest example can be seen from the marriage between Datuk Noridan Spee Yee
and Siti Insiah Abdul Wahab which was conducted in Thailand as reported in Harian
Metro dated 20 March 2006. The couple was originally scheduled to get married in
Padang Serai, Kedah but failed to obtain consensus from the Religious Officer,
Kulim District due to failure of submitting the necessary documents required for
polygamous marriage application.
The problem is, more issues will arise later after the marriage takes place but not
registered and endorsed by the Court. Amongst the issues that will arise later include
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the indecisive status of the young wife and children. The situation will be made
worse when the husband passes away which will make them unable to claim any
inheritance due to insufficient documentation as proof of the marriage.
Other problems that may arise include the husbands inability to perform his duties
as required. As an example, the young wife may only meet her polygamous husband
in secret once a week or once a month. This, in the end, will influence the emotional
development of the wife and children because they will feel that their lives are
different from other normal people and might lead to social problems.
In order to protect the wife from becoming a victim of the husbands injustice, the
laws via Section 128 AUKI 1984 has provisioned that a husband who is not being fair
to his wife has committed an offence and is liable for a fine of not exceeding one
thousand ringgit or jail sentence not exceeding six months, or both. This provision is
in accordance with the teachings of Islam which emphasises on the importance of
protection for women from the malpractice of the otherwise halal polygamy. This
emphasis should be done so that the husband will become as fair as possible to the
wife.

Conclusion
Based on the discussion above, a few conclusions can be made namely:
1. Polygamy bears witness of the perfection of the Islamic Law because it is able to
prevent human beings from adultery (zina) and the practise of keeping
mistresses which are obviously cruel to one self and to women. However,
polygamy is allowed to be enjoyed and taken advantage of with full
responsibilities. The measurement of responsibilities has been outlined so clearly
through the practise of fairness. Being fair here refers to taking turns, provision of
nafkah physically and sexually, food, clothing, security assurance and
accommodation. Thus, it is forbidden for men who cannot fulfil the conditions to
become polygamous.

2. Polygamy is not pioneered by Islam as certain Muslim and non-Muslim societies

have claimed. It has been practised for generations by the Chinese, Greek,
Christian and Jews communities.
3. The deformation of polygamy is not at the concept level, but at the practice level
by men who have deviated from the Syariahs guidelines. This is proven from
statistics whereby 80% of those who complained of having marital problems are
the women. This indirectly gives the understanding that marriage crisis are
caused by the husbands negligence (Utusan Malaysia, 16 September 2005).
4. The stringent rules provisioned in Islamic Family Laws are not aimed to deter
polygamy. They are created to uphold peace in a marriage and to protect the
wives from the husbands oppression and violation. They are also created to
avoid defamation and polemic within the society which will demean Islam as a
religion of faith. Fiqh methods mentioned:

Which means:
The Ruler is responsible to put the countrys problems and its peoples interests
in (his) countrys administration and ruling policies.