Hi v MA [2019] 3 SHLR 23

HI v MA [2019] 3 SHLR 23

Syariah Court of Appeal (Selangor)

Polygamy

Facts

1.  On 13 October 2017, the Appellant filed an application for polygamy at Shah Alam Syariah High Court.

2.     The Appellant and the Respondent were solemnised on 24 April 1999 in Kedah and were blessed with two children.

3.  The Appellant in his application for polygamy stated his justifications to marry Nur Liyana bt Adam, which are among others-

(a)  the marriage is necessary in the sense that-

(i)    the Appellant and his future wife have known each other for a long time (approximately 5 years);

(ii)   the Appellant and his future wife are working in the same organization;

(iii)  the Appellant intends to protect and safeguard the dignity of his future wife; and

(iv) to avoid greater harm and/or risk to the Appellant and his future wife

(b)  the Appellant has the financial ability to support his current wife and dependents as he has a sufficient monthly income

(c)  the Appellant is capable of being fair to his current wife and he is confident that he can provide fair treatment to his current and future wife

(d)  the marriage proposed by the Appellant will not cause harm and darar syarie to the current and future wife

4.     The Appellant’s application for polygamy was dismissed by the Selangor Syariah High Court.

Issue

1. Whether there were sufficient grounds for the Appellant’s application?

Ratios

1.    Section 23 of the Islamic Family Law (State of Selangor) Enactment 2003 provides that-

“Polygamy

(1) No man during the subsistence of a marriage shall, except with the prior permission in writing of the Court, contract another marriage with another woman.

(2) No marriage contracted without the permission under subsection (1) shall be registered under this Enactment unless the Court is satisfied that the marriage is valid according to Hukum Syarak and the Court has ordered the marriage to be registered subject to section 124.

(3) Subsection (1) applies to the marriage in the State of Selangor of a man who is resident within or outside the State of Selangor and to the marriage outside the State of Selangor of a man resident in the State of Selangor.

(4) An application for permission shall be submitted to the Court in the prescribed manner and shall be accompanied by an iqrar stating the grounds on which the proposed marriage is alleged to be just or necessary, the present income of the applicant, particulars of his commitments and his ascertainable financial obligations and liabilities, the number of his dependants, including persons who would be his dependants as a result of the proposed marriage, and whether the consent or views of the existing wife or wives on the proposed marriage have been obtained.

(5) On receipt of the application, the Court shall summon the applicant, his existing wife or wives, the woman to be wedded, the wali of the woman to be wedded, if any, and other persons who in the opinion of the Court may provide information relating to the proposed marriage to be present at the hearing of the application, which shall be in camera, and the Court may grant the permission applied for if satisfied—

 

(a) that the proposed marriage is just or necessary, having regard to, among others, the following circumstances, that is to say, sterility, physical infirmity, physical unfitness for conjugal relations, wilful avoidance of an order for restitution of conjugal rights, or insanity on the part of the existing wife or wives;

(b) that the applicant has such means as to enable him to support, as required by Hukum Syarak, all his wives and dependants including persons who would be his dependants as a result of the proposed marriage;

(c) that the applicant would be able to accord fair treatment to all his wives as required by Hukum Syarak; and

(d) that the proposed marriage would not cause darar syarie to the existing wife or wives”.

2.   Section 23 provides that the application for polygamy requires the applicant’s to prove his ability for polygamous marriage in front of the judge.  Apart from that,  the statements from the Defendant, i.e the current wife, future wife or wali to the future wife should be submitted to the court for the court to consider the Applicant’s polygamy application.

3.   The obligation to prove the conditions for the application of polygamy rests with the husband and he has to prove it to the judge, supported by documents and witness statement.

4.   In this case, the Appellant failed to prove that his current wife had any physical disability that could prevent her from having sexual relations.  Apart from that, the Respondent never rejects and always fulfil the sexual desires of the Appellant.

5.   To rely on reason for to legalize the romantic relationship between the Appellant or his future wife is only fulfilling the Applicant’s requirement for polygamy but that does not constitute as a reasonable justification for such application.  This is because the Respondent herself is sexually fit and not a disabled person.

6.   As a matter of fact, the requirements imposed under Section 23(4) of the Islamic Family Law (State of Selangor) Enactment 2003 is to ensure fairness among wives as provided in the Quran.  It is not to be against polygamy but to provide conditions in order to safeguard and preserve justice for muslim families.

7.   Therefore, the Appellant does not have a reasonable justification to practice polygamy.

Decision

1.    The appeal was dismissed and the decision of the Selangor Syariah High Court was upheld.

Key Take Away

1.      The purpose of conditions provided in Section 23(4) is to ensure that the wives are treated fairly as required in the Quran.

2.      The obligation for the husband to act fairly is also mentioned in Surah An-Nisa’ verse 3 –

“And if you fear that you will not deal justly with the orphan girls, then marry those that please you or [other] woman, two or three or four.  But if you fear that you will not be just, then [marry only] one or those your right hand possesses.  That is more suitable that you may not incline to injustice]”.

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