comment The fact that an elected member of Parliament has been charged with the offence of committing polygamy without applying for the Syariah Court's permission as stipulated under the provisions of the Islamic Family Law Act (IFL) and enactments (which had been passed by Parliament and the state legislatures) raises significant questions about the attitudes regarding the practice of polygamy in Malaysia.
In the peculiar Malaysian context, there are two extremely opposite situations under its dual legal system. Ever since the Law Reform (Marriage and Divorce) Act 1976 was implemented in 1982, non-Muslim men are legally forbidden to practice polygamy, even if polygamy forms part of their religious or cultural heritage and even if their existing wives are willing to give their consent.
On the other hand, Muslim men are not satisfied with the conditional provision to practise polygamy under the IFL, because they expect to have the absolute right to practise polygamy, and also to force their existing wives to remain in the polygamous relationships even if the existing wives have refused their consent and would prefer to obtain a divorce.
They mistakenly think that polygamy is a "God-given right conferred upon Muslim men", instead of a pre-Islamic institution which was drastically reformed and restricted by the Quran which points the way towards monogamy.
Surah al-Nisa 4: 3 provides that: "If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two or three or four, but if you fear that you shall not be able to deal justly (with them) then only one ... that will be more suitable to prevent you from doing injustice."
The immediate occasion of the promulgation of Surah al-Nisa' (4: 3) was after the battle of Uhud, when the Muslim community was left with many orphans and widows. In commenting on Surah al-Nisa' (4: 3), Mohamed S. El-Awa in 'On the Political System of the Islamic State' observed that: "Thus, Allah has here intended the mere fear of injustice to act as a deterrent to the permissible attainment of an originally legitimate matter, namely the practice of polygyny.
"The jurists have deduced a rule from this and from similar verses, the gist of which is that all permissible things are permissible provided that no damage or harm results to others from their practice, and that in the event such damage or harm is suspected or confirmed, the permissible shall be prohibited to avert such damage or harm."
To minimise damage or harm, choices of stipulations in marriage contracts within permissible limits should be made available to everyone.
Instead of the dichotomy of all non-Muslim marriages as de jure monogamous even when de facto polygamous, and all Muslim marriages as de jure polygamous even when de facto monogamous, a more integrative approach would be to allow individual couples to make choices on the conditions governing their marriage contracts, within a range of available options.
Thus individual couples may stipulate whether their marriage contract should be monogamous or may be conditionally polygamous. For Muslim couples who choose to stipulate monogamy, this would not be a modern innovation. Women of powerful families in the past had often negotiated the condition for monogamy in their marriage contracts.
The Prophet (SAW) himself was monogamous throughout the lifetime of his first wife Khadijah (RA), and, with the exception of Aishah (RA), his polygamous marriages after the death of his first wife were to widowed or divorced women for political or tribal reasons.
It is also reported in Sahih Bukhari that he did not allow his son-in-law Ali ibn Abi Talib (RA) to contract a polygamous marriage.
It has been observed in a study on Ottoman Istanbul in the late 17th century, that: "For Muslim women, polygamy was not a common phenomena, but rather remained a limited practice among the economically able members of society.
"Women of powerful households, however, made sure that they would not end up in a polygamous marriage and sought the aid, support and sympathy of their immediate kin to negotiate their marital status before their marriage contract was drawn up."
The consequences of the husband's breach may also be stipulated in the contract e.g. that it would entitle the wife to divorce and substantial financial compensation. The requirement for the wife's consent to polygamy - consensual polygamy - may be regarded as a prerequisite to the mandatory condition of justice.
The Muslimat Nahdlatul Ulama, a women's organisation under the auspices of the Nahdlatul Ulama, one of the biggest Islamic organisations in Indonesia, has observed that: "The core issue of polygamy in current Muslim societies is that it has been taken as a general attitude of Islam, ignoring the social justice reason of the revelation of the verse [Surah al-Nisa' 4 : 3]".
Polygamy, which was common in pre-Islamic society, apparently has a new meaning in Islam. Islam intended to change it from a male right into a female privilege in limited circumstances beneficial to women and children, not in circumstances detrimental to women.
If it is acceptable to women, polygamy may be a way to protect them and give them sexual access to men at a time when women outnumber men.
However, the Quran itself does not refer to the sexual nature or needs of women or men in dealing with polygamy; it refers only to the need to ensure social justice for orphaned girls, at a time when unprotected women were open to all kinds of abuse.
Tunisia is a Muslim country that has banned polygamy in its Personal Status Code of 1956. Criticisms against polygamy had been strengthened after the successful abolition of slavery.
Muhammad ‘Abduh and the Tunisian reformer Tahar Haddad had set out to re-interpret the Qur'anic verses dealing with polygamy, emphasising the conditions and restrictions imposed upon it. The Tunisian legislation has re-interpreted Surah al-Nisa (4: 3) to declare that the requirement of justice in that verse is nowadays impossible to fulfill.
It has also argued that "to avoid a head-on clash with age-old habits" the Quran did not immediately forbid polygamy, but imposes a condition that makes it virtually impossible.
Sooner or later, Muslims are expected "to understand the secret of divine thought and to grasp the incompatibility between conditional tolerance and an impossible condition that amounts to cancellation of the tolerance".
Feelings and sensitivities
Moreover, to allow polygamy specifically for Muslims implies that Muslim women have fewer feelings and sensitivities than non-Muslim women, with a weaker desire for monogamy. Muslim women, however, except for a few exceptions who are often highlighted, do not claim this right to difference.
The view reflected in the Tunisian Code that all polygamous marriages today would inevitably lead to injustice may appear as too extreme. However, there is nothing extreme in the view that polygamous marriage in which there is no consent from the existing wife - forced polygamy -would inevitably lead to harm and injustice.
No woman should be forced to endure in a polygamous marriage against her will, but should be given the legal option of obtaining divorce and compensation. Monogamy should not be regarded as being exclusive for non-Muslims, nor polygamy as being exclusive for Muslims, but should depend on the choices made by individual couples.
However, in keeping with the Islamic emphasis on justice, couples who choose to allow the option for the husband's possible polygamy would still be governed by the basic principle of justice.
There should be adequate legal safeguards regulated by the courts to guarantee economic justice for the existing wife and children, if any, even if emotional justice may be beyond the scope of legislative provision or judicial mechanism.
DR NIK NORAINI NIK BADLI SHAH is legal advisor to Sisters in Islam (SIS) and received her Doctor of Philosophy (Ph.D) in Islamic Civilization at the International Institute of Islamic Thought and Civilization (Istac), International Islamic University Malaysia (IIUM). From 1986 to 1996, she held the posts of Assistant Parliamentary Draftsman and Deputy Commissioner for Law Revision in the Attorney-General's Chambers. She has written several books and various articles, mostly in the area of Islamic and comparative family law.