Polygamy remains a controversial issue not only in Malaysia but also in many Muslim countries around the world. It has been the subject of many debates but is actually far from settled (latest – newly-formed polygamy club propagated by Ikhwan). According to a Malaysian anthropologist, Professor Azizah Kassim, whenever the issue of polygamy is debated in Malaysia, the conclusion that can be made is that men are positive of it while most women abhor it.
Why have such polemics occurred and what are the causes behind these conflicts especially in a situation where, despite its legal validity, polygamy has been largely perceived by many as a practice which fails to protect the rights of women.
Writings relating to the legal position of polygamy show that there is an agreement amongst Muslim jurists (classical and modern) that this practice is permitted in the Qur’an. However, during the late nineteenth century, Sheikh Muhammad Abduh, a reformer who was the Grand Mufti of Egypt, in his “Tafsir al-Manar” questioned the practice of polygamy in a modern society. He mentioned that polygamy might have once been useful and practical in early Muslim society but it could no longer be viewed in the same light in today’s society where it has, more often than not, been misused and has caused much pain and suffering amongst women. His views are shared by many other jurists and thinkers such as Rashid Redha, Muhammad Al Ghazali and Azizah al-Hibry.
On the other hand, there have also been writers and jurists who vehemently opposed any form of limitation placed on a practice which has clearly been permitted in the Qur’an. Sheikh Muhammad Shaltut, Abu Zahrah, Aisha Abdul-Rahman, Zainab al-Ghazali, Mustafa al-Siba’i and Sheikh Abul-A’la al-Mawdudi are of the view that those who try to reinterpret the Qur’an in relation to polygamy are actually going against the very teachings of Islam.
Although there are two different views on polygamy, many Muslim countries today acknowledge the fact that polygamy can be abused and have made improvements in their personal laws to curb such exploitations. In Malaysia, steps have been taken to include the incorporation of specific provisions controlling the practice of polygamy through the Islamic Family Law Enactments of each state.
Latest research conducted by Dr. Raihanah Abdullah (2008) has shown that the main cause for abuse in relation to polygamy in Malaysia stems from the lack of understanding on the concept and execution of justice. This has led to a prolonged antagonism and has caused various reactions from the public especially women’s organizations. The National Council for Women’s Organisation (NCWO) admits that they are not seeking to abolish polygamy but they opposed the way in which polygamy is being practiced and issues of enforcement which include finding better solutions to ensure justice and welfare for the wives and children.
Researchers have shown that one of the solutions to the problems brought about by polygamy is through strict compliance to the conditions of polygamy based on the true teachings of Islam. It is the absence of such realisation that has led to various difficulties associated with polygamy.
From the legal perspective, in order to rectify the situation, there is a need to consolidate the laws and formulate a uniform approach to polygamy. Discrepancies in the law have allowed men, as Gavin Jones puts it: “…to ‘shop around’ and find another state where his application will succeed”. Although the Government has put efforts to achieve uniformity in the laws for all Malaysian states, unfortunately, the aim was not achieved as when it was finally enforced, the states had discretionally amended several matters in the provisions of the law.
Researchers have shown that lighter penalties and limited jurisdiction between states also contributes to the increase in the inability of putting a stop to the contravention of these laws. The imposition of a minimum fine of RM 1,000 and mandatory imprisonment ranging from as short as one month to a year should be imposed on offenders. This was based on the decrease in the rate of household crimes in countries which impose the mandatory imprisonment. It is believed that similar punishment could help to control the incidence of polygamy which were solemnised without the Shari’ah court’s permission.
However, this view has also been objected because mandatory imprisonment would not solve the problem, instead it would aggravate the situation further as these men would not be able to maintain his family while serving their time in prison.
Aside from that, a more detailed review in deciding applications should also be made. Judges should also play a more proactive role in ensuring that the applicant is truly capable of being fair before allowing any application for polygamy. Views of existing wives should also be taken into consideration.
Besides educating the existing wife on her rights in a polygamous union, she should also be facilitated in making claims for maintenance against her husband should he failed to do so. This should be provided without the wife having to file an application for maintenance but made by the judge during her husband’s application for polygamy. A review of the law on the amount of maintenance which has been abolished earlier should also be reintroduced. Among them are provisions which prohibit husbands from affecting the economic status of the existing wife and children.
There is also a need to expedite enforcement of other rights as well, such as claims for jointly acquired property. It would be extremely unfair for the wife, who has worked equally hard as her husband, to suddenly share not only her husband but also their property with another woman.
To date, these proposals are being looked into by the relevant authorities and there are some that have been taken to be included in the amendments to the Islamic Family Law Bill said to be tabled in the Parliament soon. However, one should remember that law has its own limitation especially in matters relating to the heart. These amendments however, will not stop the polemics instead will give birth to another.