Life in pairs

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. 1 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. 2According to the Syafie Sect, there two school of thoughts on the rate of nafkah provision to the wife: i. From the husband’s perspective alone without considering the wife’s, ii. From both the husband’s and wife’s perspectives which means that it is measured by the husband’s willingness to provide and the provision should be provided according to the wife’s 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 3 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 Ta’addud al-Zawjat min al-Nawahi al-Diniyyah wa al-Ijtima’iyyah 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. 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) 4 Besides that, the fairness in taking night turns is still relative in nature and must be judged according to each wife’s 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 husband’s 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 husband’s 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 wife’s (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 wife’s 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 syar’ie) 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. 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 husband’s failure to fulfil all conditions and requirements in Sect. 23(4), the Court has rejected the husband’s 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 husband’s 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 Court’s 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 Court’s consensus keeps on increasing and is more in number compared to polygamous marriages conducted according to the Syariah Court’s 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 7 he ‘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 husband’s 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 husband’s 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. 8 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 Syariah’s 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 husband’s 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 husband’s 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 country’s problems and its people’s interests in (his) country’s administration and ruling policies”. 9

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