ACAC bin BTBT v NPNP bt JTJT [2023] 4 ShLR

Syariah High Court (Kuala Terengganu)

Application for polygamous marriage.

1.    This case was an application by the Applicant to obtain permission to practice Polygamy, specifically to obtain consent to marry with a second wife. When this application was submitted, the applicant, ACAC bin BTBT, had a wife, NPNP binti JTJT (Respondent).

2.    The Applicant and the Respondent, the applicant’s first wife, entered into a marriage on 21 January 1999 and have been graced with the birth of five children. The Respondent work as a pastry vendor and earns a monthly income of RM2,000.00. While, the Applicant works as a contractor with a monthly income of RM6,000.00.

3.    The Applicant plans to wed a woman named QQQQ binti PPPP, who is 36 years of age. The Applicant’s potential spouse is unemployed.

4.    The Applicant has provided several reasons in the affidavit, including the following:

(a) The Applicant has obtained consent from the guardian of the prospective wife.

(b) The Applicant possesses the financial means and is healthy.

(c) The Applicant wishes to avoid actions that contradict Islamic law.

(d) The Applicant has other valid reasons about their request for a polygamous marriage.

1.    Whether the Applicant has fulfilled the conditions of polygamy according to Hukum Syarak?

2.    Whether the Applicant has the required reason or basis to practice polygamous marriage in accordance with the Hukum Syarak?

1.    Whether the Applicant had fulfilled the conditions of polygamy according to Hukum Syarak?

(a) Concerning the first issue, the Court asserts that, apart from the customary prerequisites under Hukum Syarak for a man to enter into marriage, such as mental competence and voluntary consent, there are two primary, conditions that a man must fulfil to partake in a polygamous marriage.  The basic requirement is that the individual must possess the ability to treat his wives equitably when entering into a polygamous marriage. The subsequent requirement is that he possess the capability or eligibility to complete this responsibility.

(b) Regarding the initial stipulation, treating the wives equitably entails establishing justice among the spouses. This requires ensuring they are treated equally in material respects, including shelter, food, clothing, and so forth. The consideration of fairness providing assumes paramount importance within the context of polygamous marriages.  Consequently, this issue has been underscored by Allah SWT in the Quran, as stated in Surah Al-Nisa’, verse 3-

“If you fear you might fail to give orphan women their ˹due˺ rights ˹if you were to marry them˺, then marry other women of your choice—two, three, or four.   But if you are afraid you will fail to maintain justice, then ˹content yourselves with˺ one or those ˹bondwomen˺ in your possession.  This way you are less likely to commit injustice.”

(b)    Moreover, the requirement to treat women equitably in the context of polygamy has been elucidated in a hadith narrated by Abu Hurairah-

“Whoever has two wives and inclines more towards one of them, he will come on the Day of Judgment with one side of his body leaning.”

(c)   The Court concluded, from a justice perspective, that the Applicant is capable of treating his spouses equally. The Court considered that the Respondent’s consent to this application is contingent upon the non-presentation of any objections for the application. The Respondent’s non-attendance at court further suggests that it does not object to the Applicant’s request, despite being instructed to submit an affidavit in response during the initial appearance before the Registrar, in which the Respondent expressed disagreement with the Applicant’s application. Therefore, the Court found the Applicant’s participation in polygamy is justifiable, in which the first condition has been met.

(d)   Moreover, concerning the second stipulation, polygamy requires the physical and material capabilities of the spouse. Physically, this signifies that the spouse should be in excellent health, devoid of persistent ailments. Conversely, concerning material considerations, a man should possess financial competence, which entails supporting his wives’ financial requirements or maintenance.

(e)   In this case, the Court referred to a hadith that addresses this matter, which is a hadith of Prophet Muhammad (S.A.W) narrated by Muslim, Abu Dawud, Malik, and others from Jabir R.A-

“Fear Allah concerning women. Indeed, they are committed to you with the trust of Allah, and you have made lawful to yourself the private parts of these committed ones by the words of Allah. And upon you is the obligation to provide them with sustenance and clothing in a fitting manner.”

(f)   In this particular instance, the Court provided clarification that the maintenance being discussed is tangible maintenance (nafkah zahir). Muslim scholars are unanimous regarding how much the authority tasked with maintenance owes the spouse’s food, drink, clothing, and shelter provisions. A spouse is not permitted to reduce the maintenance of one of his wives in this regard, even if that wife has an additional source of income. Additionally, it is strictly forbidden for the spouse to diminish the maintenance owed to the first wife on the pretext that it must be divided with the new wife.

(g) The Court in this case, also referred to Section 22 of the Islamic Family Law (Terengganu) Enactment 2017 (“Enactment 1/2017”), which provides that-

“Polygamy

22. No man shall marry another woman in any place while he is still married to his present wife unless he has previously obtained the permission in writing of a Syarie Judge.”

(h)  According to Section 22, obtaining consent from the Syariah Court or Syarie Judge is mandatory for anyone who intends to practice polygamy. This initiative aims to regulate the practice in order to guarantee that it is carried out with utmost accountability while minimising any adverse effects on the wives and children from prior marriages. Indeed, this legal regulation prevents the manipulation of polygamy by those with bad intention while allowing those who possess the necessary qualities of fairness and the physical and material means to engage in it.

2.    Whether the Applicant has the required reason or basis to practice polygamous marriage under the Hukum Syarak??

(i)     The Court, in this instance, declared that although polygamy is not encouraged, but it is allowed under certain circumstances, particularly in unique situations.   Hence, polygamy functions as a legally sanctioned solution supported by religion to achieve a harmonious family life. As a result, particular conditions warrant polygamy, and it should not be hastily pursued. The strict conditions outlined above need to align with specific reasons. These specified conditions serve as safeguards to ensure that polygamy is unfolded appropriately.

(j)     In this instance, based on the Applicant’s testimony and the affidavit, the rationale behind the Applicant’s decision to practice polygamy is rooted in their financial capability and good health. As affirmed, the Court is content that the Applicant possesses a sufficient income to ensure the economic stability of the household and can provide for two wives. Health-wise, the Applicant, aged 45, is free from any chronic illnesses. Consequently, the Court is satisfied that the Applicant is in good physical condition, with no impediments to employment, for the purpose of providing support and fairness to the family.

(k)    In this issue, the Court also referred to Surah al-Nahl, verse 72-

“And Allah has made for you spouses of your own kind, and given you through your spouses’ children and grandchildren”

Key Take Away

1.    Fairness in this context does not mean equalising emotions and affection. Such an expectation is not desirable because it is unattainable for anyone; the requirement is to offer what an individual is capable of. Justice in this situation encompasses essential aspects such as providing both tangible and emotional support, organising overnight stays, and so forth.

2.    This justice is not only obligatory for a husband towards his wives but also towards his children from different mothers. It needs to be emphasised that the justice sought is not solely about the husband’s financial ability to support more than one wife. Instead, he must be fair in various aspects, including time allocation, provision of support, and playing the role of a responsible father for his children.