PETALING JAYA: A legal loophole which does not require Muslim men to seek their first wife’s permission to take another wife can lead to abuse, say activists.
Lawyer-activist Azira Aziz, commenting on a polygamous marriage, posted this comment recently: “We, Muslim women, have rights. Enforce (them) in the shariah court.”
In 2022, former Shah Alam MP Khalid Samad obtained permission from the shariah court to take another wife. Permission was granted, subject to several conditions, such as his first wife being given ownership of a bungalow, penthouse and car.
But Muslim women also suffer due to inequalities in the legal system.
No permission required
Contrary to popular belief, Muslim husbands are not required by law to get permission from their first wives before taking on another spouse, according to the women’s rights NGO Sisters in Islam (SIS).
However, the husband must obtain the permission of the shariah court.
“The first wife is only informed about the husband’s intention through the application he makes (to court). She is then required to attend the hearing of the application,” SIS legal officer Ireeny Muzammel told FMT.
But even that requirement is prone to abuse.
In 2019, a husband served the court documents on his wife just 30 minutes before the hearing was to begin. “He also stole her identity card and forged a letter stating that she had agreed to the second marriage,” Ireeny said.
When the wife raised the matter in court, the shariah judge admonished her for taking up the court’s time, claiming she had already agreed to the subsequent marriage.
Dispensing with permission
Ireeny said the first wife’s permission for a husband to enter into a polygamous marriage used to be a prerequisite. However, over time, states have dispensed with this requirement.
For example, in 2012, the Penang religious department announced that Muslim men in the state no longer needed to seek their first wife’s permission in order to marry another.
The department’s then director, Sazali Hussein, said at the time that the move was to “curb the problem of unmarried women”.
Pre-conditions for polygamy
There are four conditions a man must meet in order to secure a court order giving him permission to take another wife.
First, he must show that the proposed marriage is necessary or a just one, taking into consideration circumstances such as the current wife’s incapacity for reasons such as sterility, physical infirmity or insanity.
He must also show he has the means to support all his wives and dependents.
Next, he must demonstrate that he will be able to accord fair treatment to all his wives as required under Islamic law.
Finally, the court must be satisfied that the proposed marriage will not cause harm (darar syarie) to his existing wives.
Loopholes in the system
Ireeny said that in some instances, husbands would travel to other states to conceal their marital status and dispense with the need to seek a court order to enter into polygamous marriages.
“The Muslim marriage registration system in Malaysia is not aligned across all states. So, this allows men to claim to be single when entering into a polygamous marriage in another state,” she said.
For example, when a man is registered as “married” in Selangor, his marital status in the registries of other states will still reflect that he is “single”.
A shariah lawyer, who spoke on condition of anonymity, also pointed out that there were many instances where the husbands would marry another wife in Thailand and register the marriage in Malaysia after the fact.
“That essentially allows them to skip the ‘negotiation’ process with the first wife,” the lawyer said.
The lawyer added that when the first wife is notified of the polygamous marriage, the onus falls on her to apply to court for spousal maintenance, distribution of matrimonial property and child support.
The lawyer also said the courts in some states tend to be more lenient than others when granting permission for a man to enter into a polygamous marriage, creating inconsistency in how the law is applied.