POLYGAMY IS A CONDITIONAL NECESSITY
Law Enforcement Coordination Division ___________________________________________________________________
Introduction The tendency to live in pairs is natural to human beings. In order to meet this biological drive, Muslims are bound by the syariah-based marriage rules and regulations. A happy marriage based on love and warmth becomes the motivation and drive towards the perfection of life in the world and the hereafter. In contrast, an unhappy marriage will produce the symptoms of personality weaknesses that will negatively affect not only themselves but also the society. Marriage can be classified into two main types which are monogamy and polygamy. Monogamy is a marriage between a man and a woman; while polygamy is a marriage between a man and a few women at any one time. This article focuses on issues of polygamy as the topic frequently raises pros and cons in the society including among the Muslims. The men are proud in claiming polygamy as their right, while the women are reluctant to have co-wives for various reasons. Hence, this topic tries to uncover the concept of polygamy from the syarak point of view and its implementation according to the Islamic law in Malaysia.
Polygamy According to Islam Islam is a religion which acknowledges various human needs and desires to live in pairs. Based on this condition, Islam allows polygamy to be practised, which has also been the practice of hereditary societies since before the arrival of Islam. In order to ensure that the practice of polygamy is carried out fairly and to provide harmony to the ummah, Islam has laid down certain conditions which restrict the free practice previously and take a more reasonable fair solution. Islamic law stipulates that a man may marry more than one woman but not more than four. 1
The basis of this ruling which becomes the main evidence in polygamy being allowed is the firman by Allah s.w.t. in Surah an-Nisa’, verse 3:
Which means: “And if you fear that you shall not be able to deal justly with the orphan girls (when you marry them), then marry (other) women of your choice, two or three, or four; but, if you fear that you shall not be able to deal justly (among your wives), then (marry with) only one, or just the slaves that your right hands possess. That is nearer to preventing you from doing injustice”. According to Dr. Muhammad al-Bahi in his book which has been translated into Malay language by Fathurrahman (1988), polygamy is not a principle in the Islamic law which must (wajib) be done that one will be considered sinful if it is not practised. Polygamy is only neutral and it is a rukhsah (relief) in an emergency situation. According to him, although the language used in the surah above has the elements of an ‘order’, it does not translate to ‘obligatory’. Furthermore, if looked at carefully, it can also mean as a prohibition and it is in fact haram (prohibited) for the polygamous husband if he is incapable of being fair and causes a potential abuse to the wife he married.
Conditions for Polygamy 1. Capable to Provide Nafkah for the Wives A husband is responsible to provide nafkah, physical and sexual, be it for one wife or more. Physical nafkah being referred to here is from the aspects of providing food, clothing, accommodation and medical. Sexual nafkah simply means that the husband has the capability to sexually provide for the wives.
According to the Syafie Sect, there two school of thoughts on the rate of nafkah provision to the wife: i. From the husband’s perspective alone without considering the wife’s, ii. From both the husband’s and wife’s perspectives which means that it is measured by the husband’s willingness to provide and the provision should be provided according to the wife’s condition. In this matter, the second opinion is considered to be more appropriate and fulfils the concept of fairness in Islam considering that in many situations a husband is married to...
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