Laporan Syariah

46 (Kes-Kes Terpilih) [2004] CLJ (Sya)

a AYISHA BEGUM ABDUL KADER

v.
HAJIAH MAIDEEN NAINAMUSA

b SYARIAH APPEAL BOARD, SINGAPORE

MOHIDEEN M P RUBIN AJ
ABU BAKAR BAWAH AJ
HUSSAIN SURADI AJ
[APPEAL CASE NO: 07 OF 1987]
21 JUNE 1988
c
MARRIAGE: Polygamy - Concept and principles - Taking a second wife
- First wife residing in India - Equal and equitable treatment - Whether
not feasible - Proper test thereof - Whether subjective - Whether an
objective one - Administration of Muslim Law Act 1985, s. 96(2), (3), -
d Muslim Marriage and Divorce Rules 1968 r. 11
The husband in this case (‘Hajiah’), who had a wife in India (‘the appellant’),
had applied to marry one Mariam Bee, a divorcee, in Singapore. The application
was challenged by the appellant via a written testimony to the learned Kadi.
Notwithstanding the objection, the proposed second marriage was allowed by
e
the learned Kadi inter alia on the grounds that the appellant would suffer no
distress since Hajiah’s monthly income of S$1500.00 was sufficient to support
two households, and since Hajiah had also promised to pay the appellant 1500
rupees per month as maintenance. It was not disputed that the learned Kadi,
in so concluding, had not conducted a further inquiry on the matter.
f
The appellant appealed and argued that the learned Kadi’s decision ought to
be disturbed as Hajiah could not do justice to his wives and had no resources
or means to support his two wives and children. The issue that called for
determination by the Appeal Board was whether Hajiah had the capacity to
g support his two wives and could treat them equally and equitably in
circumstances where: (i) his claim on his income was not supported by any
document; (ii) he had only paid maintenance to the appellant for the period
between December 1986 to May 1987; (iii) he had bought 3.7 acres of land
in India for the appellant from which the appellant earned some S$35 a month;
(iv) Section 96(3) of the Administration of Muslim Law Act 1985 (‘the Act’)
h
and r. 11 of the Muslim Marriage and Divorce Rules 1968 (‘the 1968 Rules)
had obliged the Kadi to conduct an inquiry to satisfy himself that there was
no legal impediment to the proposed marriage, before solemnising the marriage,
and further mandated him to reject the application if he feared that the applicant
would not be able to treat the wives with equity and equality.
i
 Ayisha Begum Abdul Kader v.
[2004] CLJ (Sya) Hajiah Maideen Nainamusa 47

Held (allowing the appeal): a

Per Mohideen MP Haja Rubin AJ delivering the judgment of the court
[1] Hajiah had not provided acceptable or satisfactory evidence to justify
an inference that he was in a position to support two wives or to
maintain two households in addition to his responsibilities to his parents
b
and children. The assertion that he was earning $1500 a month lacked
credibility for want of any supporting documents. This apart he had also
failed to send regular monthly maintenance to his wife in India prior to
December 1986 and after May 1987. (ms 55 d-f)
[2] The submission that the yardstick to determine whether a husband is c
capable of treating both wives equally and equitably as respects material
things is a subjective test that could vary from one wife to another,
whilst no doubt interesting, was wrong and ran counter to the phraseology
of r. 11 of the 1968 Rules. (ms 56 c)
d
[2a] In interpreting r. 11 of the 1968 Rules, so enacted to give effect to Verse
3 of Surah An-Nisa, the test to be applied, a fortiori, must be an objective
one. Any other test would result in whimsical interpretations of varying
shades and slants and would not be in accord with the concept of
“IJMA” so deeply rooted in our system of jurisprudence. The phraseology
of r. 11 left little room for doubt as the rule was intended to govern e
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. (ms 56 e-g)
[3] The kadi after receiving negative replies from the appellant to almost f
all his material questions ought to have withheld his decision pending a
proper inquiry, in consonance with s. 96(3) of the Act and r. 11 of the
1968 Rules. Had he been aware of the several weaknesses in the
evidence of Hajiah, the kadi might have well come to a different
conclusion. (ms 57 c)
g
[4] The court had given its most anxious consideration to the argument that
the proposed marriage to Mariam Bee would be of great benefit to the
widow. Unfortunately, any benefit that the second marriage might entail
upon Mariam Bee could be nullified by the great harm likely to be
caused to the parties caught in this unhappy triangle. Upon the obtaining h
facts, the court feared that equal treatment between the co-wives would
not be likely. (ms 57 f)
[Kadi’s order set aside]

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 Laporan Syariah
48 (Kes-Kes Terpilih) [2004] CLJ (Sya)

a [Bahasa Malaysia Translation of Headnotes]

PERKAHWINAN: Poligami - Konsep dan prinsip - Mengahwini isteri
kedua - Isteri pertama tinggal di India - Layanan yang adil dan sama
rata - Sama ada mustahil dilaksanakan - Ujian yang wajar - Sama ada
subjektif - Sama ada berbentuk objektif - Akta Pentadbiran Undang-
b
Undang Islam 1985 s. 96(2), (3) - Kaedah-Kaedah Perkahwinan dan
Perceraian Orang-Orang Islam 1968 k. 11
Suami dalam kes ini (‘Hajiah’), yang mempunyai seorang isteri di India
(‘perayu’), telah memohon untuk berkahwin lagi dengan Mariam Bee, seorang
c janda, di Singapura. Permohonan telah ditentang oleh perayu melalui satu
jawapan bertulisnya kepada yang arif Kadi. Walaupun ditentang oleh perayu,
perkahwinan yang dicadangkan itu telah dibenarkan yang arif Kadi, atas alasan,
antara lain, bahawa perayu tidak akan teraniaya memandangkan Hajiah, yang
berpendapatan S$1500 sebulan, mampu menyara dua orang isteri dan telah
d berjanji untuk membayar nafkah sebanyak 1500 rupees sebulan kepada perayu.
Tidak dinafikan bahawa dalam mencapai keputusannya itu, tiada apa-apa
siasatan lanjut telah dibuat oleh yang arif Kadi.
Perayu merayu dan berhujah bahawa keputusan yang arif Kadi patut diganggu
oleh kerana Hajiah tidak akan mampu untuk berlaku adil dan memikul beban
e yang terlalu berat untuk menafkahi dua orang isteri dan anak-anaknya. Isu yang
berbangkit untuk keputusan Lembaga Rayuan adalah sama ada Hajiah mampu
memberi saraan kepada lebih dari seorang isteri dan melayani mereka dengan
adil dan sama rata dalam keadaan di mana: (i) dakwaan Hajiah mengenai
pendapatannya tidak disokong oleh apa-apa dokumen; (ii) Hajiah hanya
f membayar nafkah kepada perayu bagi tempoh sebelum Disember 1986 dan
selepas Mei 1987 sahaja; (iii) Hajiah telah membeli 3.7 ekar tanah atas nama
perayu di India yang menghasilkan pendapatan sekitar S$35 sebulan; dan (iv)
seksyen 96(3) Akta Pentadbiran Undang-Undang 1985 (‘Akta’) dan per. 11
Peraturan-Peraturan Perkahwinan dan Perceraian Orang-Orang Islam 1968
g (‘Peraturan 1968’) mengkehendaki supaya Kadi menjalankan penyiasatan
sehingga ia berpuas hati bahawa tidak ada halangan undang-undang terhadap
perkahwinan sebelum menjalankan akad bagi perkahwinan dan harus menolak
permohonan sekiranya ditakuti pemohon akan gagal untuk berlaku adil.

i
 Ayisha Begum Abdul Kader v.
[2004] CLJ (Sya) Hajiah Maideen Nainamusa 49

Diputuskan (membenarkan rayuan): a

Oleh Mohideen MP Haja Rubin HR menyampaikan penghakiman
mahkamah
[1] Hajiah tidak mengemukakan keterangan-keterangan yang memuaskan dan
yang boleh diterima bagi menyokong hujah bahawa ia mampu untuk
b
memberi nafkah kepada dua orang isteri atau untuk memberi belanja
kepada dua keluarga selain daripada tanggungjawabnya terhadap ibu bapa
dan anak-anaknya. Dakwaan Hajiah bahawa ia beroleh pendapatan
S$1500 sebulan tidak begitu menyakinkan kerana tidak disokong oleh
dokumen-dokumen. Selain itu, ia juga tidak mengirimkan nafkah bulanan
secara tetap kepada isterinya di India sebelum Disember 1986 dan c
selepas Mei 1987.
[2] Hujah bahawa ujian bagi menilai sama ada seseorang suami mampu
melayani isteri-isterinya secara adil dan sama rata dalam perkara-perkara
kebendaan adalah suatu ujian subjektif yang boleh berbeza di antara d
seorang isteri dengan yang lain, walaupun menarik, adalah salah dan tidak
memenuhi tuntutan per. 11(1) Peraturan 1968.
[2a] Dalam mentafsir per. 11(1) Peraturan 1968, yang digubal untuk
memenuhi tuntutan Surah an-Nisa ayat 3, ujian yang harus dikenakan,
semestinyalah ujian objektif. Ujian-ujian yang lain akan hanya membawa e
kepada pentafsiran yang berbagai ragam mengikut kadar pemahaman
masing-masing yang tidak selaras dengan konsep “IJMA” yang telah lama
berakar umbi dalam sistem perundangan kita. Sususan kata per. 11 tidak
membuka ruang untuk diragui kerana tujuan peraturan ini adalah untuk
mengawal tingkah laku seseorang suami dalam hubungan sehari-hari f
dengan isteri-isterinya, dan bukan apa yang ia percaya atau anggap
sebagai adil.
[3] Selepas menerima jawapan bertulis daripada perayu yang menidakkan
hampir kesemua soalan yang dikemukakannya, Kadi sepatutnya
g
menangguhkan dahulu keputusannya sehingga suatu siasatan yang rapi
dijalankan selaras dengan s. 96(3) Akta dan per. 11 Peraturan 1968. Kadi
mungkin akan membuat keputusan yang berlainan sekiranya beliau
menyedari akan kelemahan-kelemahan pada keterangan Hajiah.
[4] Mahkamah telah memberi perhatian yang sungguh-sungguh kepada hujah h
bahawa perkahwinan Hajiah dengan Mariam Bee akan memberi manfaat
kepada kehidupan janda itu. Malangnya, apa-apa faedah yang akan
diterima oleh Mariam Bee akan terbatal dengan bencana besar yang akan

i
 Laporan Syariah
50 (Kes-Kes Terpilih) [2004] CLJ (Sya)

a menimpa pihak-pihak yang terperangkap dalam segitiga yang

menyedihkan ini. Berasaskan fakta yang ada, mahkamah bimbang bahawa
layanan sama rata di antara isteri-isteri di sini tidak akan terlaksana.
[Perintah Kadi diketepikan]
b Legislation referred to:
Administration of Muslim Law Act 1985 [Sing], s. 96(2), (3)
Muslim Marriage and Divorce Rules 1968 [Sing], r. 11

Surah-Surah al-Qur’an referred to:

An-Nisa, verse 3
c
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
d 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
e 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
f 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.
g
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
h 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.

i
 Ayisha Begum Abdul Kader v.
[2004] CLJ (Sya) Hajiah Maideen Nainamusa 51

Hajiah, as of course necessary, applied to the Registrar of Muslim Marriages, a

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
b
to 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. c

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 d
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 e
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.
f
(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 g
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. h

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.
i
 Laporan Syariah
52 (Kes-Kes Terpilih) [2004] CLJ (Sya)

a 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
b her; whether she suffered from any illness which hindered her relationship with
her husband and finally her views as to the second marriage.
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
c 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.
d
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
e
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$252) from the succeeding month
after the second marriage. He also said in his undertaking that he had already
f given a gift of 11 acres of land to his wife and would visit his wife in India
once in 2 years.
The Kadi in his reasons why he granted his consent said that the husband’s
monthly income of S$l,500 was sufficient to support 2 wives; he noted that
g 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
h
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.

i
 Ayisha Begum Abdul Kader v.
[2004] CLJ (Sya) Hajiah Maideen Nainamusa 53

The Kadi’s decision was made known to the wife in India. The distressed a
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
b
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.
c
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, 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 d
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
e
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 f
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
g
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. h

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 i
 Laporan Syariah
54 (Kes-Kes Terpilih) [2004] CLJ (Sya)

a 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
b 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.
c 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
d in India. He asked the Board to give little weight to Hajiah’s bare and
sometimes contradictory 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
e
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
f 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:
g
SURA IV: Verse 3

If ye fear that ye shall not

Be able to deal justly
With the orphans,
h 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.
i
 Ayisha Begum Abdul Kader v.
[2004] CLJ (Sya) Hajiah Maideen Nainamusa 55

That will be more suitable, a

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 b
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”) c
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.
d
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. e
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 f
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 g
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
h
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

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 Laporan Syariah
56 (Kes-Kes Terpilih) [2004] CLJ (Sya)

a 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,
b 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
c 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:
d (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)

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
e 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
f 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
g 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
h
professor Ahmad Ibrahim who in his article (Muslim Marriage and Divorce in
Singapore [1962] MLJ xi at p. xiv) says:

i
 Ayisha Begum Abdul Kader v.
[2004] CLJ (Sya) Hajiah Maideen Nainamusa 57

The general rule is that a man has only one wife and a man is allowed to marry a
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 b
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 c
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
d
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.
e
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 f
great harm 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 g
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.