[1988] 1 MLRS Ayisha Begum Abdul Kader v.

Hajiah Maideen Nainamusa 295

AYISHA BEGUM ABDUL KADER

v.
HAJIAH MAIDEEN NAINAMUSA

Syariah Appeal Board, Singapore

Mohideen MP, Rubin AJ, Abu Bakar Bawah AJ, Hussain Suradi AJ
[Appeal Case No: 07 Of 1987]
21 June 1988

JUDGMENT
Mohideen MP Haja Rubin AJ:
This is yet another appeal by a young Muslim woman against the decision of the
Kadi (Registrar of Muslim Marriages) granting permission to her husband to take a
second wife and the appeal encompasses a small spectrum of the lives of an
otherwise tranquil Muslim family.
Eight years ago on 12 March 1980, Hajiah Maideen Nainamusa, then 21, married
Ayisha Begum. The wife was then only 17 years of age and the marriage took
place in a village in the southern part of India according to Islamic law and
custom.
Hajiah returned to Singapore soon after the marriage but made periodical trips to
India and spent each time a few months with his wife. His cohabitation with his
young wife continued in this manner and they had two children of that marriage
both born in India - the first one a girl on 26 September 1981 and the other a boy
on 16 January 1984. For some reason, Hajiah did not bring his wife or children to
Singapore. Their married life had been uneventful and without any upheaval as is
not unexpected of any family of their like.
In the course of 1986 things took an unexpected turn. Hajiah who had been
spending a substantial part of his working life in Singapore fell in love with
Mariam Bee, a 32 year old widow who has a 6 year old daughter through her
previous marriage. She is, as Hajiah would say in his statement, a good cook and a
very caring person. She also happened to be his business partner and between
themselves, they claimed that they made each month about $1,500 (according to
Hajiah) and $1,645 (according to Mariam Bee) each after all expenses. Hajiah
wanted to have her as his second wife and Mariam Bee was quick to agree.
Hajiah, as of course necessary, applied to the Registrar of Muslim Marriages,
Singapore (who is a Kadi) under the Administration of Muslim Law Act , Chapter 3,
1985 edition ("the Act") for the Kadi's (formerly spelt as 'Kathi') consent for the
solemnisation of the proposed second marriage.
Section 96(2) of the Act provides that where a man to be wedded is married to
296 Ayisha Begum Abdul Kader v. Hajiah Maideen Nainamusa [1988] 1 MLRS

another person, such a marriage can only be solemnised by the Kadi or by the
'Wali' of the woman to be married with the consent of the Kadi. Section 96(3) of
the Act enacts that before solemnizing that marriage or giving his consent to that
marriage, the Kadi should hold an inquiry and satisfy himself that there is no
lawful obstacle to such a marriage under Muslim law or under the Act.
Besides s. 96(2) and (3) of the Act, the relevant rule that concerns Muslim
polygamous marriages is Rule 11 of the Muslim Marriage and Divorce Rules, 1968
which reads as follows:-
11. (1) In considering whether to solemnize or to give his written consent to the
solemnization of a marriage under sub-section (2) of s. 90 of the Act, (at present s.
96) the Kathi shall, without prejudice to his general powers to consider what is just
and proper, have regard to the following matters:-
(a) whether the husband is competent to support more than one wife and will
be able, if he marries more than one wife, to treat them with equity in
accordance with the Muslim law; and
(b) whether there is some lawful benefit involved in the marriage and in
particular whether the existing wife suffers from sterility, physical unfitness for
the conjugal rights or insanity.
(2) The Kathi may refuse to solemnize the marriage or give his written consent
for the solemnization of the marriage, if any failure of equal treatment
between the co-wives is feared.

When he applied for the Kadi's consent, Hajiah filed a statement with the Kadi in
which he claimed that he was a man of means, competent and able to maintain
two wives and run two households and had been remitting regularly Rs. 1,000
(Indian Rupees) (which is approximately equivalent to Singapore S$168 at the
material time) to his wife in India each month. He also informed the Kadi that he
owned 11 acres of arable land in India and a portion of its income, he said, went to
his wife.
Mariam Bee filed a supporting statement. She confirmed she was Hajiah's business
partner and that she was agreeable to marrying Hajiah stating amongst other things
that her child was very attached to Hajiah; her parents were getting old and that
she was fond of him.
The Kadi who is required under s. 96 of the Act to hold an inquiry under the
circumstances wrote to the wife in India on 9 January 1987 asking her to confirm
whether she had been receiving monthly maintenance as claimed by her husband
and whether it was sufficient for her and the children's upkeep; whether Hajiah
owned any properties in India; how often he visited her; whether she suffered from
any illness which hindered her relationship with her husband and finally her views
as to the second marriage.
[1988] 1 MLRS Ayisha Begum Abdul Kader v. Hajiah Maideen Nainamusa 297

The wife replied by letter on 10 March 1987 where she stated that her husband had
not paid her any maintenance till October 1986 (sic) and that she received only a
sum of Indian Rs. 4,000 (approximately S$672) during November 1986 to
February 1987. She said that her husband visited her about 4 times during the past
6 years. She claimed that she was in good health, suffered no illness and enclosed a
medical certificate to confirm that she was perfectly sound. Above all, she made it
clear that she opposed the proposed second marriage. She also disputed that the
husband owned 11 acres of land.
Notwithstanding the wife's objection and her joining issue with her husband's
claim on his possessions as well as the maintenance payments, the Kadi decided to
grant and did grant his consent to Hajiah to marry Mariam Bee. The said consent
is contained in his letter addressed to parties dated 11 April 1987 but it occurs to us
that it might have been given on or before 3 April 1987 since reference to the grant
of a consent could be found in Hajiah's undertaking filed with the Kadi on 3 April
1987. In that document, Hajiah after noting that the Kadi had given him
permission to take another wife, undertook to pay his wife each month Indian
Rs.1,500 (approximately S$252) from the succeeding month after the second
marriage. He also said in his undertaking that he had already given a gift of 11
acres of land to his wife and would visit his wife in India once in 2 years.
The Kadi in his reasons why he granted his consent said that the husband's
monthly income of S$l,500 was sufficient to support 2 wives; he noted that the
husband had been sending monthly maintenance of Indian Rs.1,000
(approximately S$168) (to his wife and children in India) which under the said
undertaking would be increased to Rs. 1,500 (approximately S$252) per month.
The Kadi held that by marrying the widow in Singapore, Hajiah would be able to
lead a proper life and be of assistance to a widow who needed help. The Kadi was
also of the view that the approval of the marriage would not result in the first wife
being neglected since she had long accepted a state of affairs whereby she was to
remain in India whereas her husband would spend the major part of his life in
Singapore.
The Kadi's decision was made known to the wife in India. The distressed wife
promptly filed a Notice of Appeal on 11 May 1987 through her solicitors against
the decision of the Kadi.
In her Petition of Appeal filed on 5 January 1988, she raised several grounds but
the mainstay of her appeal was on the footing that Hajiah would not be able to do
justice to both wives and could ill afford to maintain both of them and the children.
She disputed his averments on maintenance payments and also denied that a gift of
11 acres of padi field was ever made to her. In the main, her contention was that
Hajiah did not have the resources or means and could not act equitably towards
both wives or treat them equally.
Mr Peria Karuppan for the wife submitted that the husband's claim that he was
earning about $1,500 per month was not substantiated. He said that no bank book,
298 Ayisha Begum Abdul Kader v. Hajiah Maideen Nainamusa [1988] 1 MLRS

deposit receipt, income tax return or any other document of any nature was
presented to the Kadi or to the Appeal Board. He submitted that the husband did
not pay any maintenance prior to November 1986 or after May 1987. He
submitted that the husband's claim that he had given a gift of 11 acres of arable
land to his wife was untrue but Hajiah bought in his wife's name only 3.7 acres of
land and the total income from it could be no more than Indian Rs.2,500
(approximately S$420 per year). In this regard, Mr Peria Karuppan produced a
certificate from a village administrative officer from India to support his
contention.
Mr Hameed for the husband conceded that the land given to the wife was only
about 3.7 acres and not 11 acres as claimed by the husband earlier on. He
submitted that the husband had been regularly remitting maintenance payments
directly or through "other sources" to his wife but was unable to produce any
documents to confirm or to support payments for the period before December 1986
or after May 1987.
Both Counsel dwelt at length on the letter and spirit of ss. 96(2) and (3) of the Act
and Rule 11 of the Muslim Marriage and Divorce Rules, 1968. Mr Peria Karuppan
submission was to the effect that the said provisions made it abundantly clear that
the husband must show proof that he was competent to support more than one
wife and should be able, if married to more than one wife, to treat them on an
equal footing and with equity and the Kadi should refuse permission if equal
treatment between the co-wives was feared. This he submitted was clearly
envisaged under Rule 11.
Mr Hameed on the other hand submitted that the wife had already accepted the
position that her husband would be spending most of his time in Singapore than in
India and Hajiah would easily be able to support both wives with his income of
$1,500 a month. He contended that there was no legal obstacle under Muslim law
or under the Act to Hajiah's proposed second marriage and he made a strong plea
to the Board to consider the benefit the second marriage would confer upon a
helpless widow, a practice which he said Islam encouraged. He also submitted that
the concept or the notion of equitable treatment between co-wives is a subjective
one and the standard of such treatment could vary between co-wives depending
upon their respective stations in life, the place where they were living and the
standard of living they were used to. He argued that equal treatment between
co-wives might not be feasible. He also submitted that the plurality of marriage is
an accepted practice amongst Muslims.
Mr Peria Karuppan in his reply submitted that the husband to this date had not
provided any documents to confirm his earning capacity. He had not shown to the
Kadi or to the Board that he had any savings however meagre. Counsel submitted
that Hajiah clearly was not in a position to support two wives and carry out his
additional responsibility to his third family namely his parents in India. He asked
the Board to give little weight to Hajiah's bare and sometimes contradictory
[1988] 1 MLRS Ayisha Begum Abdul Kader v. Hajiah Maideen Nainamusa 299

statements.
During the hearing of the appeal on 18 March 1988, the Board directed the parties
to file further affidavits, if they wished, to support some of the contentions
concerning remittance, the land in India as well as the financial position of the
respondent. Both parties filed further affidavits but no affidavit or confirmation
was forthcoming from the respondent as to his assets or savings.
This issue now before the Board is whether the Kadi's decision was a correct one
and whether there is any legal obstacle under the Muslim law or under the Act to
the husband taking a second wife.
The commandment on polygamy or plurality of marriages appears in Sura IV
(Nisa, or The Women) (Sura IV: 3) and its English translation by A. Yusuf Ali in
The-Glorious Qur'an, (Translation and Commentary) (at p. 179) reads as follows:-
SURA IV: Verse 3
If ye fear that ye shall not
Be able to deal justly
With the orphans,
Marry women of your choice,
Two, or three, or four;
But if ye fear that ye shall not
Be able to deal justly (with them),
Then only one, or (a captive)
That your right hand possess.
That will be more suitable,
To prevent you
From doing injustice.

In his footnote to the above verse, A Yusuf Ali comments:-

The unrestricted number of wives of the "Times of Ignorance" was now
strictly limited to a maximum of four, provided you could treat them with
perfect equality, in material things as well as in affection and immaterial
things. As this condition is most difficult to fulfil, I understand the
recommendation to be towards monogamy. (See footnote 509 at p. 179 - "The
Glorious Qur'an Translation and Commentary")
300 Ayisha Begum Abdul Kader v. Hajiah Maideen Nainamusa [1988] 1 MLRS

Rule 11 of the Muslim Marriage and Divorce Rules, 1968 in effect encapsules the
above principles and the matter for consideration before us is whether Hajiah is
competent to support more than one wife and will be able to treat them with equity
and equality.
Having taken great care to consider all the submissions (both oral and written),
affidavits filed and the Kadi's notes and reasons, we find that the husband has not
provided acceptable or satisfactory evidence to justify an inference that he is in a
position to support two wives or to maintain two households in addition to his
responsibilities to his parents and his children.
His assertion that he is earning about S$1,500 per month lacks credibility for want
of any supporting document or evidence of any savings. He also failed to convince
the Board as to his claim that he had been sending regular monthly maintenance to
his wife in India, before December 1986 or after May 1987. He applied to the Kadi
for permission to take a second wife on 11 December 1986. He produced to the
Kadi evidence of remittance to his wife in India by official drafts from 2 December
1986 to 7 May 1987. When queried as to maintenance payments before December
1986 and after May 1987, his counsel submitted that he had been sending monies
through "other sources". We find it strange that a person who took great pains to
retain and consequently produce photocopies of remittances to his wife just around
the period he applied to the Kadi in this matter could not produce one single
document to substantiate payments prior to December 1986 or after May 1987.
In his statement to the Kadi dated 11 December 1986, Hajiah says that after his
marriage, his wife refused to accompany him to Singapore but later in the
penultimate paragraph of the same statement, he says that he did not bring his wife
to Singapore because she was not used to the surroundings here, she spoke only
Tamil and that it was difficult for her to mix well in Singapore. He has also
through his counsel retracted his earlier statement that he had given 11 acres of
land to his wife and conceded that Hajiah had given his wife only 3.7 acres which
according to the wife's counsel produced an annual income of Indian Rs 2,500
(approximately S$420). Even from that income, according to Hajiah's statement
dated 11 December 1986, only a portion went to his wife.
Mr Hameed submits that in assessing whether a husband would be able to treat
both wives equally or equitably as respects material things the yardstick could vary
from one wife to another and the test, if any, to be applied should be a subjective
and not an objective one. This submission, though attractive, misunderstands the
phraseology of Rule 11(1) which lays down that:-
... the Kathi shall, without prejudice to his general powers to consider what is
just and proper, have regard to the following matters:-
(a) whether the husband is competent to support more than one wife
and will be able , if he marries more than one wife, to treat them with
equity in accordance with the Muslim law (emphasis added)
[1988] 1 MLRS Ayisha Begum Abdul Kader v. Hajiah Maideen Nainamusa 301

It is our view that in interpreting Rule 11 enacted to give effect to the Quranic verse
(Sura IV (Nisa, or The Women): Verse 3) the test to be applied, a fortiori, must be
an objective one for any other test is bound to give rise to whimsical interpretations
of varying shades and slants and as such would not be in accord with the concept
of "IJMA" (consensus) so deeply rooted in our system of jurisprudence. To accept
Mr Hameed's argument that the applicable test is a subjective one (that is to say
that the standard of equitable treatment is not what reasonable Muslims deem it to
be equitable but what Hajiah would consider it to be so) would, in our view be
tantamount to re-writing Rule 11 and render it meaningless. The phraseology of
Rule 11 leaves little room for doubt as the said rule is intended to govern the
probable course of conduct of a husband in his day to day dealings with his
co-wives rather than his belief or state of mind as to what he regards as equitable.
Mr Hameed's other submission that plurality of marriage is an accepted practice
amongst Muslims masks the fundamental body of reasons serving to account for
polygamy in Islam. In this regard, suffice it if we referred to a passage, which we
adopt as being correct, from a respected Islamic scholar and jurist professor
Ahmad Ibrahim who in his article (Muslim Marriage and Divorce in Singapore [1962]
MLJ xi at p. xiv) says:-
The general rule is that a man has only one wife and a man is allowed to marry
more than one wife only in exceptional cases and where he can show that he can
treat all his wives equitably, that is so far as possible, equally.
Hajiah's contradictions, retractions and his somewhat astonishing explanation that
his Tamil speaking wife would be ill at ease with the society here and above all his
failure to provide tangible proof as to his income (despite an opportunity provided
to him) tend to cast a large shadow on his evidence and makes it suspect.
The Kadi unfortunately did not have the benefit of the arguments and facts now
before us. It is our view that the Kadi after receiving negative replies from the wife
to almost all his material questions should have withheld his decision pending a
proper inquiry. Section 96(3) of the Act enjoins the Kadi to hold an inquiry and
Rule 11 lays the guidelines. The inquiry envisaged under s. 96(3) is not just a mere
peripheral or technical hyperbole but one which ought to be conducted having
regard to the principles of a fair hearing inherent in our system of law ie, an
opportunity to be heard and a right to present one's case. Sadly this was not done
perhaps due to a misunderstanding or due to a desire to be expeditious. We are of
the view that the Kadi might well have come to a different conclusion had he been
aware of the several weaknesses in the evidence of Hajiah which we have earlier
dealt with.
Lest it is suggested that we are unmindful of the aspect that Kajiah's proposed
marriage to Mariam Bee would be of great benefit to the widow, we did indeed
give our most anxious consideration to an extremely forceful, and in our view the
single most important submission by Mr Hameed, but alas, any benefit the second
marriage might promise to offer Mariam Bee would be nullified by the great harm
 302 Ayisha Begum Abdul Kader v. Hajiah Maideen Nainamusa [1988] 1 MLRS

likely to be caused to the parties caught in this unhappy triangle. We fear that
equal treatment between the co-wives is unlikely in the given circumstances and
facts presented to the Kadi and to us.
In the event, the appeal succeeds and the Kadi's order dated 10 April 1987 is set
aside. We would like to add however that the doors are not shut permanently
behind Hajiah as he is free to apply again to the Kadi in good time with credible
evidence should he so desire. In the meantime, we advise parties caution good
sense and restraint.

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