JAN 2018 PART A

The first issue is what are the procedures of marrying Zalifah and requirements (entering into a
polygamous marriage)

In Surah An-Nisa verse 3, it was translated to “and if you fear that you will not deal justly with
the orphan girls, then marry those of your choice, two or three or four. But if you fear that you will not
be just, then marry only one of those your right hand possesses. That is more suitable to prevent you
from committing injustice”.

Hence, it can be seen that polygamy is allowed in Islam. However, this verse does not render
polygamy as a compulsory act but it is merely permissible due to public interest.

The procedures to enter into a polygamous marriage are stipulated in the Islamic Family Law
(Federal Territory) Act 1984.

To start off, he must first obtain a written permission from the court. Section 23(1) of IFLA
states that a married man can only enter into a polygamous marriage with a prior written permission
from the court. If there is no permission, the marriage will not be registered unless the Court is
satisfied that the marriage is valid according to hokum syarak.

Nonetheless, as stipulated in Section 23(3), the application for permission must be submitted
to the Court accompanied by four things namely i) an iqrar stating the grounds on which the proposed
marriage is just and necessary, ii) the present income of the applicant, iii) particulars of his
commitments and his ascertainable financial obligations and liabilities and iv) and whether the
consent or views of the existing wife or wives on the proposed marriage have been obtained.

Moving on, Section 23(4) then states that the court will summon the relevant parties for
information and will only grant the permission applied for if it is satistied that a) The proposed
marriage is just or necessary. As illustrated in the case of Ainisram bin Ramli v Norliah Bt Misnan,
the plaintiff’s application for polygamy was dismissed by the court since the plaintiff failed to provide
reasonable reasons and proof in relation to justify the intended polygamy and fulfil the term “should
and necessary.

Per Section 23(4)(b) it must also be proven that applicant has the means to support all his
wives, dependants and future dependants. In Re Ruzaini Bin Hassan, although the husband
acquired a consensus from the wife to marry another, the court rejected his application as it was
proven that the husband had insufficient means to support more than one wife.

Next, per Section 23(4)(c), it must be proven that the applicant would be able to accord equal
treatment to all his wives as required by Hukum Syarak.

Surah An-Nisa verse 129 strengthens this as it translates to “and you will never be able to
be fair and just between wives, even if it is your ardent desires. So do not incline completely toward
one and leave another hanging”.

Also, per Section 23(4)(d), the proposed marriage would not cause darar syarie to the existing
wife or wives. Under Section 2 of IFLA, darar syarie means harm, according to what is normally
recognized by Islamic Law, affecting a wife in respect of religion, life, body, mind, moral, or property.
In Zamri bin Idrus v Zaiti Akhtar bt Omar (2017), the husband’s application was rejected as it was
feared that his decision to marry another would cause his present wife emotional distress.

In applying to the question, Fakri would have to comply with the provisions on procedure to
enter into a polygamous marriage provided in IFLA. Pursuant to Section 23(1), he would have to apply
for the court’s permission to take Zalifah as his second wife. He needs to submit his application
accompanied with the four requirements as outlined in Section 23(3) which includes his present
income and the consent or views of his present wife, Wardah.

Per Section 23(4), the court will then summon the relevant parties such as Wardah who is
Fakri’s current wife in this present situation for information and will only grant the permission applied
for if it is satistied that a) the proposed marriage is just or necessary, b) Fakri has the means to
support all his wives, dependants and future dependants, c) Fakri would be able to accord equal
treatment to all his wives as required by Hukum Syarak and d) the proposed marriage would not
cause darar syarie to Wardah, Fakri’s current wife. If Fakri fails to prove any of these four
requirements such as the husbands in Ainisram bin Ramli v Norliah Bt Misnan, Re Ruzaini Bin
Hassan and Zamri bin Idrus v Zaiti Akhtar bt Omar, the court will reject his application.

To conclude, Fakhri would have to comply the provisions stipulated under Section 23 as this
section provides for the procedures for application to enter into a polygamous marriage.

The second issue is what are the requirements needed to be fulfilled by Fakri for a
polygamous marriage.

There are a few conditions for polygamous marriage. Firstly, a man is permitted to only have
four wives at a time.

In a hadith by Imam Malik, it was reported that the Prophet SAW told Ghaylan B Salamah to
choose only 4 wives out of 10 of his wives that he married before embracing Islam as only 4 wives are
permitted.
 Secondly, he must do equal justice to all of them. “Just” in Surah An-Nisa, verse 129, is a
main requirement however it does not indicate feelings. It encompasses maintenance, shelter,
clothing, food and social relationships.

Moreover, even the Prophet s.a.w himself dua’; “My lord, this is my distribution which is in my
control, but do not hold me responsible for what is in your control where I have no control over it.”
Once he praised Khadijah in front of Aisyah where she felt unhappy.

Thirdly and lastly, he must exercise in good faith. This is reflected in Section 23(4)(d) whereby
the proposed marriage would not cause darar syarie to the existing wife or wives.

In application, for the first requirement, Fakhri may take Zalifah as his wife as she would then
be only considered as his second wife.

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