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Husband not being fair after polygamy
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Question:

My husband had taken a second wife without my consent. Since then, he has neglected to pay me the maintenance that he used to give before his second marriage. Not only that, since his second marriage, he also sometimes fails to pay the children's maintenance. When I lodged a complaint with the Religious Office, one of the ustazahs from the polygamy department told me that when a wife works, the husband's consent for her to work can be used to replace the monthly maintenance that is compulsory for him to pay. So, what are my rights as a wife? Is it true that a husband is not required to pay for maintenance for wives who work? Is my husband not being fair by not providing me with maintenance like he did prior to taking a second wife?

Widuri,
Taman Miharja


Answer:

Polygamy is allowed under Malaysian law but there must have been permission given by the Syariah Court. This is provided under Section 23 (1) if the Islamic Family Law (Federal Territories) Act 1984.

Pursuant to Sections 23 (3) and (4) of the Act, in giving said permission to enter into a polygamous marriage, the Court will consider several factors. Among those factors are: whether the polygamous marriage is just and necessary, the financial situation of the husband, whether or not the husband would be able to act fairly towards the wives, whether or not the consent and views of the existing wives have been obtained and that the marriage will not cause darar syarie upon the existing wife.

In your case, if your husband has taken another wife without the Court's permission, it is considered to be an offence under the law. Pursuant to Section 123 of the same Act, if he is charged and convicted of the offence, he can be fined for an amount not exceeding RM1000 or imprisoned for a period not exceeding 6 months, or both.

Even though the law states that you are required to attend in Court for the purpose of obtaining your views prior to giving your husband the permission to take another wife, it is merely a factor that the Court would consider. It is not the determining factor for the Court to give permission for your husband to engage in a polygamous marriage.

However, your husband has to prove that he has fulfilled all the requirements and conditions under Section 23 of the same Act. This was decided by the Selangor Appeal Committee in the case of Rajamah v. Abd Wahab (1990) JH 171. Because the husband failed to prove that he can fulfill all the said conditions and requirements, the Court decided to reject the husband's application for permission to take another wife.

Grounds:
In a polygamous marriage or not, it is the responsibility of the husband to provide for the wife's and children's maintenance. Surah Al-Nisaa verse 34 which means: The men will take care of the women, because Allah has given more to the men compared to the women, and because the men has spent (provide maintenance to support women) from part of their property.

Polygamy should not be made as an excuse to not provide for maintenance. For this reason, the Syariah Courts in Malaysia set the rule that a husband has to obtain the Court's permission before entering into a polygamous marriage. This is to avoid injustice committed against the existing wife and her family. Justice is the most important aspect of a polygamous marriage. Allah in Surah Al-Nisaa verse 3 said as follows: "If you fear that you would not be able to be fair and just towards your wives then marry only one."

The law has provided that the Court has the power to order a husband to pay maintenance to his wife and children. Section 59 (1) provides for this power. Therefore, you may make an application with the Syariah Court for an Order against your husband to pay maintenance. You may state that maintenance has not been received ever since your husband took a second wife as grounds for the application. You have to list down the items for which maintenance is being asked, for example, electrical bills, water bills, telephone bills, your children's bus fares, their school fees, their daily school expenses, clothes, household needs, your daily expenses and so on. The husband's duty to provide maintenance to his wife and children continues even though the wife has her own income. It does not mean that the husband can let go of his responsibilities by not providing maintenance.

Section 128 of the same Act provides that a husband who does not act fairly towards his wife has committed an offence and can be fined for an amount not exceeding RM1000 or imprisoned for a period not exceeding 6 months or both.

Even though you have lodged a complaint with the Religious Office, that office only plays a role in providing counselling or advice regarding the problems you face. You have to go to the Syariah Court in order to demand for maintenance because only the Syariah Court has the power to make an order to compel your husband to pay maintenance for you and your children.

You are advised to seek for justice in the Syariah Court as it is clear that your husband is not being fair to you and your children upon him taking another wife.

Panel lawyers, Sisters In Islam.

(You are welcome to post your queries to Sisters In Islam at No. 7, Jalan 6/10, 46000 Petaling Jaya Selangor or call our TeleNisa line 03-7784 3733 every Monday, Thursday and Friday or e-mail us at telenisa@sistersinislam.org.my)

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