Polygamy - Comparative

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Historical Background
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In 1893, matters relating to the family institution in Islam
in its traditional form were arranged according to a modern legal format. An Egyptian national figure, Muhammad Qadri Pasha, had codified the classical interpretation in relation to family matters by giving the name al-Ahkam al-Sharìyyah al-Ahwal al-Shaksiyyah. This manual for Family Law was based on the Hanafi as the predominant school of law in the Ottoman Empire
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In actual fact, the manual did not have any differences with
the traditional interpretation. The only exception was that this manual was the first effort in which the procedures for the family institution in Islam were codified in the form of modern laws
Early legal reform in Islamic Family law touched continue on the codification of the law according to the modern legal format rather than the substances.
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Rules relating to the family institution as discussed in the classical Islamic Law are deemed to be adequate for the Muslims to live according to Islamic principles. Such principles relating to the family institution was regarded as a necessity to be kept in its original state.
Therefore, classical principles on polygamy were also regarded by the states as adequate in curbing any abuses arising from the practice of polygamy.

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The actual effort of reforming the procedures relating to
the family institution began in 1915 when the Ottoman government became the first Muslim country to take the first bold step of reforming its family law. Codification of the law on the family institution does not differ much from what was carried out previously by Muhammad Qadri Pasha. The only exception relates to the adoption of the Maliki schools of law that has been adopted besides the Hanafi doctrine, which was predominantly followed by the Ottoman government.
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The Sultan of Turkey issued an imperial decree that
permitted the wife to seek for divorce at the Shariàh court for which this right was denied previously. Later the Ottoman Law Family Rights Code (Qanun al-Huquq al-Àila al-Uthmaniyya) was promulgated. The Ottoman Law of Family Rights Code 1917 has been applied for many years in Syria, Jordan, Lebanon and Egypt

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In the beginning of the 1920s, Egypt became the first
Muslim country to promulgate the law on marriage and divorce, which was more comprehensive than the Ottoman legislation. This was followed by the Jordanian Law of Family Rights 1951, the Syrian Law of Personal Status 1953, the Tunisian Code of Personal Status in 1957 and also the Moroccan Law of Personal Status 1958.

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The focal point of legal reform in family matters was to
strengthen the position of women. Women faced many problems concerning family life when their husbands failed to undertake their responsibilities as enjoined in the Quran. With the legal reform, women could now turn to the court to implement their rights for divorce, custody and also claims after the divorce.
Law of Polygamy
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The reinterpretation of polygamy in Islam by Sheikh
Muhammad Abduh at the end of the 19th century has not only given rise to responses from the Muslims scholars but also deeply influenced state policies in several Muslim countries.

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Codification of Classical Interpretation of
polygamy Stipulation against polygamy in the marriage contract Legal / administrative restriction on polygamy Total prohibition to practice polygamy Polygamy within Muslim Minorities Countries.
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Codification of Classical Interpretation of polygamy

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Family matters were not codified and the classical
works of certain schools of laws were made as references in solving family problems. In Saudi Arabia, for example, the classical works of the Hanbali school of laws such as Kitab al-Mughni li Ibn al-Qudamah, Hijawi Zad al Maàd and al-Bahutis Kashaf al-Qana` were among others the main references in regulating issues pertaining to Muslims marriage and divorce. besides Saudi Arabia that continued to use the procedures in its classical form were among others of the Gulf States.
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In these countries, the rules pertaining to polygamy
were based on the classical schools of law. There is no legislation or administrative regulations that restrict the practice of polygamy. Husbands in these countries were allowed to practice polygamy without any legal or administrative restriction or even with the courts intervention. If the husband abused the wifes rights while practicing polygamy, then the wife was entitled to seek divorce either through fasakh or khulu`.
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Egypt
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In Egypt, the first law promulgated to regulate family
matters was Egyptian Law of Maintenance and Personal Status No. 25 of 1920, which was later, amended by Egyptian Law of Personal Status No. 29 of 1929. Matters concerning polygamy remained untouched and polygamy law that was enforced was based on the classical interpretation. This situation is unusual, as these two legislations of Family law in Egypt have not made any reform in relation to polygamy
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By not incorporating reforms on polygamy into
Egyptian Law No. 25 of 1920 and Law no. 25 of 1929, it showed that Abduhs view was not well received by Egyptian legislators. The Parliament of Egypt passed a set of new laws, the Egyptian Personal Status (Amendment) Law 1985 (Law No. 100 of 1985). The husbands rights to marry up to four wives remained unchanged. The amendments clearly do not restrict husbands to practice polygamy but provides procedures, which the husband has to follow before he takes another wife.
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What has been provided for in this law is that Section 5A in
which a man who is getting married shall declare his marital status in his application for registration of marriage. If he is already married then he shall disclose the name and address of his existing wife. The Registrar will inform the existing wife about her husbands new marriage. This provision should be commended because it guarantees that, an existing wife will be informed by the marriage Registrar of her husbands intent to practice polygamy regardless of whether the husband chooses to disclose information of his marital status to her
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Stipulation against polygamy in the marriage contract
The practice of inserting stipulations against polygamy
in marriage contracts is not a practice that is new or unusual among many Muslims societies in the Middle East. Jordanian Law of Personal Status 1976 still maintains provisions that allow the insertion of the stipulation in the marriage contract whereby the husband should not take another wife. In this stipulation the wife has the right to divorce in a situation where the husband has violated the stipulation.
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Legal / administrative restriction on polygamy
Syria was the first country to have provisions whereby
the practice of polygamous marriages would require the approval of the court beforehand. The introduction of a provision such as this is based on the method referred to as sad al-dharai` in Islamic law
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Total prohibition to practice polygamy
Any polygamous marriages contracted in Turkey
would be declared as null and void. If anyone contracted such a marriage, the person had committed an offence under Article 237 of the Criminal Code and was punishable with imprisonment for six months to three years. A similar punishment would also be imposed to women who knowingly married a man who already had a wife
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In Tunisia, the prohibition of polygamy is actually
based on the understanding that a husband is not able to treat his wives equally. the reformers in Tunisia came to the conclusion that since polygamy is an act that is permitted and not obligatory or recommended then the practice can be regulated or even abolished by the state. Some writers argued that the prohibition of polygamy in Tunisia is a victory for women.
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In Tunisia it is an offence for anyone to practice
polygamy and if violated one can be punished to imprisonment not exceeding one year or a fine not exceeding 240,000 francs. Section 18 of the Tunisian Code of Personal Status, 1976 provides that: Any person who being already married and before the marriage is lawfully dissolved marries again, shall be liable to imprisonment for one year or for a fine of 240,000 francs, or to both, even if the second marriage is in violation of any requirements of this law
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through empirical evidence discussed by several
researchers, it was found that despite the law prohibiting polygamy Muslim men though very rare still continue to practice it. It seems that the law is not only ineffective in restraining polygamy but also gives rise to other marital problems to a certain extent, being a disadvantage to women. In that case, the total prohibition of polygamy is not the answer to solve the problems of polygamy because men could otherwise use their unilateral right to divorce his wife.
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POLYGAMY WITHIN MUSLIM MINORITY COUNTRIES. There are three types of approaches to polygamy
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adopted by the Muslim minority countries: First, countries such as those in Latin America, some European countries, China and Japan have taken strict legal prohibition approach to polygamy for nonMuslims as well as Muslims. The second type shows an interesting approach taken by countries such as Britain, the United States, Canada, Australia and New Zealand. the law only recognizes Muslim foreign polygamous unions.
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polygamy has been long prohibited by legislation but
recently the law has become more liberal in dealing with foreign Muslim polygamous unions. Finally polygamy has been outlawed only for the nonMuslim while Muslim husbands have continuously enjoyed their traditional position to practice polygamy. The law in countries such as in Thailand, Singapore, India, Philippines, and many of the African countries recognize the minority Muslim to practice polygamous marriages.
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Islamic Family Law in Malaysia

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In Malaysia there is no single family law system that applies for the whole country.
- There exists two different family law systems in which one is for the
Muslims and the other for non-Muslims.

- The Law Reform (Marriage and Divorce) Act 1976, which was
enforced throughout Malaysia from 1 March 1982, governs the Chinese, Hindus and other religions.
- The Muslims on the other hand are governed by the Islamic Family
Law system.
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-In the early 1980s, Malaysia began to introduce and enforce specific
laws relating to the Islamic Family Law.

-The Government did not only emphasize on a controversial issue such
as polygamy that had been raised by society but also made a study on all aspects in relation to family matters.
- It can be said that the effort to introduce a comprehensive Islamic
Family Law Enactment was derived due to the hardship and dissatisfaction faced by many Muslim women on several aspects of Islamic Family law. - The new Islamic Family Law covers nearly all aspects of family law, including solemnization of marriage, registration of marriage and divorce, guardianship, maintenance, custody, financial claims after divorce and also penalties to those who contravene the provisions.
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-The promulgation of the detailed Islamic Family Laws
received support from society as well as Muslim womens groups.
- They welcomed the amendments as they felt that the new
and detailed Islamic Family Law Enactment was necessary as it enabled several problems in society, especially those relating to women and family, to be solved. The legislators have taken into consideration all the comments and recommendations that have been suggested by the muslim womens group.
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-This law has made several changes in which it made it
easier for the authorities to administer Islamic Law.

- Where the public was concerned, particularly women, the
laws have brought great changes to womens rights, which were clearly provided under the law.
- Women have the right to claim maintenance and arrears,
dissolution of marriage through ta`liq, fasakh and khulu` and also claims on financial rights after divorce. 27

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Undoubtedly, the Islamic Family Law Enactments has substantially improved womens legal position especially in tackling problems faced by Muslim women not only in polygamous marriages but also in other aspect of family matters such as divorce, custody, maintenance, and claims after divorce such as jointly acquired property (harta sepencharian) and several matrimonial offences were provided.
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- The Islamic Family Law Enactment of Malaysia has been enforced for approximately twenty years ever since it enforced on 1 January 1983. - During this period, several problems were encountered, especially its weaknesses which were identified in the course of its enforcement.
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-This came about when the public voiced their complaints in the newspapers. They were disappointed with the postponement of familyrelated cases at the Shariah courts, and nonenforcement of judgment that was already passed, the opposing decisions laid down by the court which differed from one to another state, weak of court procedures, the judgment is not well written and the bias attitude towards women mostly in family related cases.
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The problem of enforcing the Islamic Family Laws
has brought about an overbearing negative effect towards the Shariah courts main clients who are women. The effect from this problem is injustice towards women, all the more, when they themselves make the effort to bring up their rights, which are protected and guaranteed by the law.
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LAW OF POLYGAMY AND ITS IMPLEMENTATION
Adopt restrictive polygamy where the Law empowered the
Sharia court to grant permission to practice polygamy.
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A) Application for Polygamous Marriages (PM)

Conditions that have to be fulfilled by the husband - Submit specific form to the Shariah courts with details
socio-economic background - declare the grounds on which the proposed marriage is to be just and necessary - The husband must have sufficient means to enable him to support more than one wife. - Able to accord equal treatment - would not cause harm to the existing wife due to PM (latter this provision was deleted)
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Notifying the existing wife on her husbands intention.
The husband must stated whether his existing wife consented or not. She is required by the law to be present at the hearing. Amendment to the law in 2000
- Notifying the proposed wife and her guardian to attend
at the hearing
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B) PM Contracted in violation of the the Law The marriage cannot be registered In 1990s, the law was amended and such marriage can now
be registered provided that such marriage is valid according to Islamic Law and also subject to penalties. (RM 1000 fine or 6 months imprisonment or both)
C) Unequal Treatment (UT) among the wives UT is a valid ground for judicial divorce (fasakh) UT is an offence punishable under the law with RM 1000
fine or 6 months imprisonment or both

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D) New Amendment (2000)

- The court must issue an order on maintenance and
property jointly acquired (harta sepencharian)during the marriage upon granting PM .
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CASES
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Aishah Abdul Raof vs Wan Mohd Yusuf The Appeal Board had decided that There are 4 conditions mentioned in Section 23(11) of the Islamic family law enactment before the Shariàh judge could give approval to polygamy. In this case, the learned Judge had only taken consideration on the financial status under the condition (b) but disregarded the conditions (a), (c) and (d) when accepting the declaration made by the applicant without any evidence and support of Hukum Shara`.
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The appeal board hence, was convinced with the
declaration made by the husband in the declaration form, which was admitted by the learned judge stating that he was financially able to practice polygamy. However, although the appeal board was convinced of the learned judges opinion on the husbands financial ability, the board expected that in the future, it is important for the applicant to produce written evidence to the court on his income. For example, certified documents from his employer or the company, the true picture of his income tax after taking into consideration all his debt, if any. 38

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The learned judge, in his judgment, did not clarify on
what grounds or evidences that he had consented that the applicant had produced sufficient evidences to support that he was able to practice polygamy. In the judgment, the learned trial judge was somehow seemed to be in the opinion that if the applicant had fulfilled the condition (b) under Section 23(4), this condition (a), (c) and (d) were automatically fulfilled. The court reminded that all the four conditions under Section 23(4) are of the same importance and should be looked into separately.
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In this case, the applicant failed to justify on why he
should be allowed to practice polygamy and hence, he had failed to fulfil condition (a) under Section 23(4) and, as a result of the failure to fulfil this just one condition is already sufficient for the Judge to disapprove his application.
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In this case, the husband also made a confession in the
declaration form and under the witness of the learned judge that his main reason to practice polygamy was on the basis of wanting to legalize his love and affection. However, the Appeal Board found this reasoning sufficient, which was only to fulfil his personal needs but it was considered inadequate to support the basis of his ability and that the proposed marriage would be just and necessary. (1990) JH 152 and (1990) 3 MLJ lx.
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Mohd Azmi Kamaruddin AJ in his judgment said that
as a Muslim, the husband should be able to control his sexual desires and somehow try to avoid adultery. In addition, when cross-examined by the Court however, he conceded that Aishah, his wife, has no physical defects and always give him the satisfaction in his sexual needs besides being obedient. Thus, there is no justification why he should be allowed to practice polygamy since the husband had failed to fulfil the condition (a) of Section 23(4).
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2. In the matter of Polygamy Application Ruzaini bin
Hassan
The court held that the applicant was financially
incapable in supporting more than one wife although his existing wife consented.
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TRENDS IN POLYGAMOUS MARRIAGE IN MALAYSIA

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4 % of the whole total of Muslim Marriages. The husbands income during his application to the
Shariah court is 70 % between RM 1000 RM 5000 (30% more than RM 5000) 80 % have 2 wives. Reasons 70% had fallen in love with their prospective wife and also to avoid adultery (pre-marital intercourse) Sharia courts approved 70% application of PM. 20 % canceled and only 10 % the Shariah court disapproved the application.
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Imprisonment has became the choice of some sharia courts
to those men who have committed PM without courts permission
Unfortunately, in many cases, the sharia High court set
aside the imprisonment and retain the fine.
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Bung Moktar dihukum penjara

KUALA LUMPUR 19 Mei - Secara tiba-tiba, suasana di dalam dewan www.um.edu.my
Mahkamah Rendah Syariah Gombak Timur, dekat sini hari ini bertukar menjadi senyap dan sunyi. Semuanya berpunca daripada keputusan Hakim Syarie, Wan Mahyuddin Wan Muhammad yang menjatuhkan hukuman penjara sebulan terhadap Ahli Parlimen Kinabatangan, Datuk Bung Moktar Radin. Dengan keputusan itu, Bung Moktar menjadi ahli Parlimen pertama di negara ini yang dihukum penjara atas kesalahan berpoligami tanpa kebenaran mahkamah. Isteri keduanya, pelakon Zizie Izette yang duduk di sebelah Bung Moktar, kelihatan terkejut dan terus memandang ke arah suaminya sebaik mendengar keputusan itu. Zizie atau nama penuhnya, Zizie Izette A. Samad pula didenda RM1,000 atau penjara sebulan bagi kesalahan yang sama.
'Tertuduh merupakan seorang ahli Parlimen yang terlibat dalam meluluskan sesuatu undangundang. Beliau seharusnya menghormati dan
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mendukung undang-undang tersebut tidak kira undang-undang sivil atau syariah. ''Tertuduh wanita pula seorang pelakon wanita Muslim yang menjadi idola dan ikutan. ''Sekiranya kedua-dua mereka tidak boleh mengikut undang-undang, ia menunjukkan seolah-olah undang-undang syariah boleh dipermainkan oleh mereka yang berpengaruh dan berkepentingan,'' katanya.

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Pada prosiding hari ini, hakim syarie tersebut turut mendenda RM1,000 atau penjara enam bulan ke atas enam individu termasuk pelakon wanita itu kerana bersubahat dengan Bung Moktar yang berpoligami tanpa kebenaran.
Bung Moktar terlepas hukuman penjara

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SHAH ALAM 11 Ogos 2010 - Ahli Parlimen
Kinabatangan, Datuk Bung Moktar Radin terlepas dari penjara da hukuman selama sebulan bagi kesalahan berpoligami tanpa kebenaran selepas rayuannya untuk mengetepikan hukuman itu diterima oleh Mahkamah Tinggi Syariah di sini hari ini. Ketua Hakim Syarie Selangor, Mukhyuddin Ibrahim bagaimanapun menggantikan hukuman tersebut dengan denda RM1,000 atau penjara enam bulan jika denda berkenaan gagal dijelaskan.

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Zizie pula didenda RM2,000 atau penjara tujuh bulan
atas dua tuduhan bernikah tanpa kebenaran pendaftar dan bersubahat dengan suaminya itu berpoligami tanpa kebenaran mahkamah. Pasangan itu bernikah di sebuah rumah beralamat No. 12, Jalan TC 2B/3, Cemerlang Heights, Taman Melati, Gombak pada pukul 8.50 malam, 16 Disember lalu. Namun begitu, Mahkamah Tinggi Syariah Kuala Lumpur pada 12 Jun lalu memutuskan pernikahan pasangan itu yang berlangsung pada 9 Jun lepas di rumah Zizie di No. 6, Jalan Setiawangsa 6, Taman Setiawangsa di ibu negara adalah sah dan memerintahkan ia didaftarkan.
Conclusion
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In the middle of the 20th century, several Muslim
countries had passed specific legislations on Personal Laws. Despite various views among the Muslim thinkers on the question of polygamy, several Muslim countries have passed the laws that control the practice by empowering the court to assess the husbands ability to contract an additional marriage. Legislation alone cannot control the practice unless such legislation is accepted by the society and also strictly implemented by the Courts.
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Most of the Muslims countries however did not take
further steps to prohibiting polygamy except Tunisia and Turkey, since the policy makers believed that polygamy to a certain extent could fulfil the needs of the society. This shows that traditional Muslims would not easily accept changes made whereby restrictions were imposed on the practice of polygamy.
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An interesting legal reform on polygamy can be seen when several Muslim minority countries have recognized foreign polygamous marriage. By this recognition, the legislation has provided matrimonial relief for women in polygamous unions.
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THANK YOU
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Polygamy - Comparative

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Leaders in research and innovation

Leaders in research and innovation

In 1893, matters relating to the family institution in Islam

Leaders in research and innovation

Leaders in research and innovation

The actual effort of reforming the procedures relating to

Leaders in research and innovation

The Sultan of Turkey issued an imperial decree that

Leaders in research and innovation

In the beginning of the 1920s, Egypt became the first

Leaders in research and innovation

The focal point of legal reform in family matters was to

The reinterpretation of polygamy in Islam by Sheikh

Leaders in research and innovation

Codification of Classical Interpretation of

Codification of Classical Interpretation of polygamy

Family matters were not codified and the classical

Leaders in research and innovation

In these countries, the rules pertaining to polygamy

Leaders in research and innovation

In Egypt, the first law promulgated to regulate family

Leaders in research and innovation

By not incorporating reforms on polygamy into

Leaders in research and innovation

What has been provided for in this law is that Section 5A in

Leaders in research and innovation

Stipulation against polygamy in the marriage contract

The practice of inserting stipulations against polygamy

Leaders in research and innovation

Legal / administrative restriction on polygamy

Syria was the first country to have provisions whereby

Leaders in research and innovation

Total prohibition to practice polygamy

Any polygamous marriages contracted in Turkey

Leaders in research and innovation

In Tunisia, the prohibition of polygamy is actually

Leaders in research and innovation

In Tunisia it is an offence for anyone to practice

Leaders in research and innovation

through empirical evidence discussed by several

Leaders in research and innovation

polygamy has been long prohibited by legislation but

Islamic Family Law in Malaysia

Muslims and the other for non-Muslims.

Continue Leaders in research and innovation

laws relating to the Islamic Family Law.

Leaders in research and innovation

-The promulgation of the detailed Islamic Family Laws

received support from society as well as Muslim womens groups.

- They welcomed the amendments as they felt that the new

Leaders in research and innovation

-This law has made several changes in which it made it

easier for the authorities to administer Islamic Law.

- Women have the right to claim maintenance and arrears,

Leaders in research and innovation

Leaders in research and innovation

Leaders in research and innovation

Leaders in research and innovation

The problem of enforcing the Islamic Family Laws

Leaders in research and innovation

LAW OF POLYGAMY AND ITS IMPLEMENTATION

Adopt restrictive polygamy where the Law empowered the

Sharia court to grant permission to practice polygamy.