Enforce polygamy laws effectively

comments     Sisters in Islam     Published     Updated

Sisters in Islam questions what particular problem the Kelantan government is trying to solve with the ‘Ideal Polygamist' programme.

If the intent is to ensure husbands are responsible, do not hide their polygamous marriages from their wives, and are fair to their wives, then the most practical solution would be to enforce the existing laws on polygamy in Kelantan.

Problems with irresponsible husbands can most effectively be addressed by enforcing existing laws on polygamy and tightening the procedural mechanisms in Syariah Court to reduce the likelihood of injustice.

Section 23 of the Kelantan Islamic Family Law Enactment (2002) lists four requirements a husband has to satisfy in order to get permission from the Syariah Court to commit polygamy: (a) that the proposed marriage is just or necessary; (b) that the husband has the means to enable him to support his wives and dependents; (c) that he is able to treat his all his wives fairly, and (d) that the proposed marriage does not cause darar syarie (harm) to the existing wife or wives.

If the Kelantan government wants polygamous husbands to be fair, the Kelantan Syariah Court must show how serious it is through effective application of the law.

An applicant's iqrar (oath) must be supplemented by supporting evidence that show his capacity to be fair: Are the four legal conditions being implemented?

How do the courts procedurally measure that a husband is able to be fair? Does the Syariah Court ensure that the existing wife or wives are consulted for consent?

Do the courts require a husband's income tax statements in order to measure his financial ability to support his dependents?

How do they ensure that a husband continues to pay maintenance and that there is no drop in the standard of living for existing family members?

It's men who are the surplus

If, as quoted, the Kelantan state government is concerned about the "25,000 single women under 60 still eligible for marriage", then what about unmarried men under 60? According to the 2010 Population and Housing Census, the proportion of males who were never married (37.8 percent) was higher than females (32.2 percent).

Moreover in Kelantan, men slightly outnumber women by 101 to100. Thus, polygamy makes less single women available for every single man in search of a life partner.

It would make more sense for the Kelantan state government to turn single men into marriageable material, instead of married men.

Finally, we would like to know exactly how the Kelantan state government intends to judge fairness.

Is fairness judged from the husband's point of view, the wives' point of view, or the children's?

According to our nationwide polygamy study "The Impact of Polygamy on the Muslim Family", (done in collaboration with academics from several local universities) husbands perceived their ability to be fair differently from their wives and children.

Financial difficulties, neglect and unfair turn-taking contributed to resentment and a sense of injustice on part of the majority of first wives, where 42.6 percent said the husband was always or often unfair. In contrast, 60 percent of husbands said they were always or often fair.

Children too held different views on their father's ability to be fair. 61 percent of children said that their fathers are not able to be fair in polygamous families versus 28.9 percent who said their fathers are able to be fair.

When asked whether they would recommend polygamy as a form of marriage or family institution, 91.7 percent said they would not recommend it.

There is no existing problem in Malaysia that warrants polygamy as a solution. Instead of emphasising on polygamy, the focus should be on the ideal husband - one who views his wife as an equal partner and treats her with respect, provides nafkah (maintainence) for his family, spends time with his wife and children.

The Prophet himself said, "The best of you are those who are best to their families, and I am the best of you to my family." (Tirmidhi, Sahih).

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