AMENDMENTS TO
MUSLIM MARRIAGE AND DIVORCE ACT

PROPOSED AMENDMENTS AND ISSUES FOR CONTEMPLATION
PART 01

AMENDEMNTS PROPOSED WITH REGARD TO POLYGAMY

As per the suggested amendments, polygamy has to be restricted with conditions and empowering a woman at the time of registration to enter into a prenuptial contract stating that she is entitled to Faskh if her husband contracts another marriage without her consent while being married to her.

Almost all women will definitely go for the arrangement of the prenuptial contract of polygamy restriction if the law is enacted.

There are needs for polygamy in the social context. Those who go for polygamous marriages justify their needs. The lawmakers need to sit with and listen to such persons who have done polygamous marriages. Above all, polygamy is permitted by the Holy Qur’an and Hadees.

Polygamy is regulated in Fiqh in the light of the Holy Qur’an and Hadees. A woman has the right to put a condition at the time of contracting her marriage that her husband must refrain from contracting another marriage as long as she is his wife.

If every woman stipulates this condition, how to do justice to the needs of men in need of polygamy? Polygamy is a permission in the form of right not a must for every male. It is not encouraged by Islam either. Similarly, the polygamy restriction condition is also a permission in the form of right not a must for every female. It is not encouraged by Islam either. If necessity arises, a married man can go for a subsequent marriage. Likewise, if necessity arises, a woman can stipulates the polygamy restriction condition. In other words, both are rights to be used in special situations.

There are cases of ill-treatment, inadequate care and unbalanced care reported under the polygamous marriages. This of course requires our due and immediate attention and address. In order to put an end to this unpleasant state of matrimonial life, it is provided for so many conditions in the proposed amendments. Those conditions are as follows:

01. Adequately looking after wives,
02. Adequately looking after children,
03. Adequately looking after future wife,
04. Financial capacity to look after all, and
05. Informing present wife / wives.

The aforementioned conditions are fair enough to restrict the polygamous marriages. There is no need for providing for the prenuptial contract of polygamy restriction condition.

It is emphasized that the polygamy restriction condition is for special circumstances only. Had it been a common one for all marriages, our beloved Prophet (Sallallahu alaihi wasallam) would have definitely done it or instructed to have it in every marriage contract. By enacting laws to the effect of free exercising the right of prenuptial contract of polygamy restriction condition, the institution of marriage as viewed and presented by Islam will lose its true essence and spirit and pristine form.


Haniffa Abdul Nazar

24.08.2019