For non-muslims, polygamous marriages became prohibited effective 1 March 1982 onwards pursuant to the Law Reform (Marriage and Divorce) Act 1976. In fact, bigamy (the act of marrying another person during the lifetime of a spouse) is an offence under Section 494 of the Penal Code and is punishable by imprisonment for up to 7 years and liable to a fine.
Under the Malaysian Islamic Family Law, Muslim men are allowed to practice polygamy (one man can marry up to four wives). As per the verse as stated in the Qurán (4:3) as follows:-
وَاِنۡ خِفۡتُمۡ اَلَّا تُقۡسِطُوۡا فِى الۡيَتٰمٰى فَانْكِحُوۡا مَا طَابَ لَـكُمۡ مِّنَ النِّسَآءِ مَثۡنٰى وَثُلٰثَ
وَرُبٰعَ ۚ فَاِنۡ خِفۡتُمۡ اَلَّا تَعۡدِلُوۡا فَوَاحِدَةً اَوۡ مَا مَلَـكَتۡ اَيۡمَانُكُمۡ ؕ ذٰ لِكَ اَدۡنٰٓى اَلَّا تَعُوۡلُوۡا ؕ
(4:3) If you fear that you might not treat the orphans justly, then marry the women that seem good to you: two, or three, or four. But if you fear that you will not be able to treat them justly, then marry (only) one or marry from among those whom your right hands possess. This will make it more likely that you will avoid injustice.
In Malaysia, polygamous marriages must be authorised by the court. Section 23(3) of the Islamic Family Law (Federal Territories) Act 1984 states that:-
“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.”
Further, section 23(4) of the Islamic Family Law Act also provides that the permission may be granted if the following are satisfied:-
- that the proposed marriage is just or necessary, having regard to such circumstances as, among others, the following, that is to say, sterility, physical infirmity, physical unfitness for conjugal relations, willful avoidance of an order for restitution of conjugal rights, or insanity on the part of the existing wife or wives;
- that the applicant has such means as to enable him to support as required by Hukum Syarak all his wives and dependents, including persons who would be his dependents as a result of the proposed marriage;
- that the applicant would be able to accord equal treatment to all his wives as required by Hukum Syarak; and
- that the proposed marriage would not cause darar syarie to the existing wife or wives.
In the case of Aishah bt Abdul Rauf v Wan Mohd Yusof bin Wan Othman [1990] 3 MLJ 1x, the Board of Appeal held that all the four conditions were equally important and should be considered separately. The failure to satisfy one condition alone would be sufficient ground to reject the application. The conditions imposed are aimed at securing justice to wives and justice is mandatory in the Qur’an.
The following are the relevant procedure to register a marriage in Malaysia:-
- Pre-marriage application – HIV Screening Testing and Pre-Marital Course.
- Fill up relevant forms – If residing in: Negeri Sembilan, Melaka, Perlis, Kedah, Perak, Wilayah Persekutuan (Kuala Lumpur, Putrajaya and Labuan), Johor, Selangor and Terengganu. (SPPIM enabled locations) – form is available online. If residing in Pahang, Kelantan, Penang, Sabah, Sarawak: Collect physical form from respective religious department of the state (Jabatan Agama Islam).
- Gather the relevant documents as follows:-
- one (1) photocopy of MyKad or MyPR of both applicants.
- one (1) photocopy of birth certificate of both applicants.
- Pre-Marital Course Certificate MBKPPI.
- Results of HIV health screening of both applicants.
- If either applicant is divorced, the relevant divorce certificate.
- If either applicant is widowed, the relevant death certificate.
- Letter issued by employers verifying the marital status of male applicant, or a letter of declaration by the male applicant if he is self- or unemployed.
- Letter verifying applicant’s conversion to Islam (for new Islam convert).
- Letter of support by the Police Department (for those under employment by The Royal Police Malaysia ).
- Letter of support by the Army (for those under employment by the Malaysian Armed Forces).
According to the Islamic Family Law enforced in the states in Malaysia, a marriage application must be submitted through the office of Marriage, Divorce and Ruju’ Registrar where the bride resides. However, polygamy marriages require permission from the Syariah Court.
The application must be submitted to the Lower Syariah Court where the applicant resides. The documents required for these applications are as follows:
- Notice of application;
- Supporting affidavits;
- Exhibits such as a copy of identity card, Certificate of Conversion to Islam, marriage application form for the bride, marriage application form for the groom and other related documents;
- A supporting letter from the Marriage Registrar;
- Sufficient fee;
- Wakalah of a syarie lawyer for those who are using the service of a Syarie Lawyer.