By Prof Datuk Dr Zaleha Kamaruddin, the Rector of the International Islamic University Malaysia
Although permitted in the Quran, there are two different views on the practice, men are generally in agreement but most women are not in favour of it.
POLYGAMY remains a controversial issue not only in Malaysia but 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, Prof Azizah Kassim, whenever the issue of polygamy is debated in Malaysia, the conclusion that can be made is that men are positive 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 among Muslim jurists (classical and modern) that this practice is permitted in the Quran.
However, during the late 19th 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 among women.
His views are shared by many other jurists and thinkers, such as Rashid Redha, Muham-mad al Ghazali and Azizah al-Hibry.
On the other hand, there have also been writers and jurists who vehemently oppose any form of limitation on a practice which has clearly been permitted in the Quran.
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 Quran 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 to the laws to curb such exploitation.
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 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 organisations.
The National Council for Women’s Organi-sations says it is not seeking to abolish polygamy, but opposes the way in which polygamy is being practised.
Issues of enforcement including finding better solutions to ensure justice and welfare for the wives and children need to be addressed.
Researchers have shown that one solution to the problems brought about by polygamy would be strict compliance with 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 to 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 made 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 contribute to the inability to put a stop to the contravention of these laws.
The imposition of a minimum fine of RM1,000 and mandatory imprisonment ranging from as short as one month to a year should be imposed on offenders.
However, this view has also been objected to. It is argued that mandatory imprisonment would not solve the problem but instead aggravate it, as these men would not be able to maintain their families while serving prison time.
Aside from that, a more detailed review in deciding polygamy applications should also be made.
Judges should also play a more proactive role in ensuring that an applicant is truly capable of being fair before allowing his application. The 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 fail to provide for her.
This should be done without the wife having to file an application for maintenance but be ordered by the judge during her husband’s application for polygamy.
A review of the law on the amount of maintenance – which had been abolished earlier – should be reintroduced.
There should also be provisions to prohibit husbands from changing 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.
These proposals are being looked into by the relevant authorities and some have been included among the amendments to the Islamic Family Law Bill said to be soon tabled in Parliament.
However, one should remember that the law has limitations, especially in matters relating to the heart.