The Use and Misuse of Maslaha by the Court in Granting Polygamy

Permissions

Mohamad Atho Mudzhar

Universitas Islam Negeri Syarif Hidayatullah Jakarta, Jl. Ir. H. Juanda 95 Ciputat, Jakarta, Indonesia

Faculty of Shariah and Law Syarif Hidayatullah State Islamic University of Jakarta, Jl. Ir. H. Juanda 95 Ciputat, Jakarta,

Indonesia

Keywords: Permissions for Polygamy, Women's Rights, Maslaha, and The Biases Of Judges.

Abstract: The study examined a decision by a Religious Court (RC) on a case of request by a husband for a permission

for polygamy. Using materials included in the text of the decision, the study examined the arguments of the

court to grant the permission in the midst of refusal by the wife, whiles the husband and the wife ran a normal

family and no physical defects of any kind was reported by either side. One of the arguments was evidently

based on the concept of Maslaha, but interpreted in such a way to the extent that the court finally had to put

aside the wife's explicit refusal and dismiss the ruling powers of certain laws to support the granting of a

polygamy permission, showing the failure of the court to properly grasp the spirit of the concept of Maslaha

in the perspective of women and human rights.

1 INTRODUCTION

The status of women in Muslim societies is generally

seen as subordinate to that of men. The United

Nations has taken a number of steps to improve the

situation, including the adoption of the International

Covenant on Civil and Political Rights (ICCPR), the

Covenant on the Elimination of Discrimination

Against Women (CEDAW), and the Covenant on the

Rights of Child (CRC). Indonesia has ratified those

three international instruments and some others iinto

its legal system in order to help ensure the situation

of Indonesia. The modernists and the optimists argue

that such a subordination of women is now changing

in developing Muslim nations such as Indonesia, but

the conservatives argue the opposite. The latter

referred to the fact that traditionalists continued to

demonstrate their infavorable or discriminatory

attitudes towards women. Worse, still, such

infavorable attitudes are often shown by those who

occupy modern institutions and are expected to play

high roles in upholding gender equality such as the

judges of the courts, in particular those of religious

courts

This study examined a decision by the Religious

Court (RC) of Garut, West Java, No.

265/Pdt.G/2011/PA-Grt of 2011 on a case of request

by a husband for a permission for polygamy, in which

the permission was granted. This study examined

arguments put forward by the court to grant the

permission, including how much of Islamic law

argument of Maslaha was interpreted and applied to

the case, inspite of insisting refusals by the wife.

Further, the study examined how those arguments

were perceived from the perspective of human rights,

especially women's rights. Such an examination

would help understand the attitudes of RC's judges

towards the principles of human rights in general and

women's rights in particular. Women's rights are here

defined as those inherently attached to their being

human, equal to those of men, and are not necessarily

parallel or reciprocal to the need for the distinction

between socially constructed and naturally

determined roles in society.

The study used materials included in the text of

the court's decision as the primary sources as well as

relevant laws and regulations. All materials were

analysed by way of doctrinal legal studies, including

the Usul al-Fiqh (the principles or the philosophy of

Islamic Law) methodology, with some

supplementary historical and sociological

interpretations.

1038

Mudzhar, M.

The Use and Misuse of Maslaha by the Court in Granting Polygamy Permissions.

DOI: 10.5220/0009922510381044

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1038-1044

ISBN: 978-989-758-458-9

2 THE DESCRIPTION OF THE

CASE

In the year of 2011 a husband, 43 years old, requested

the RC of Garut, West Java, for a permission for

polygamy. Since 1996 he had been happily married

with a woman, 37 years old, and the couple already

had three children. Both the husband and the wife

admitted that everything in their marriage went

normal and no physical defect was reported neither by

the husband nor the wife. In fact, the wife was then

being pregnant of their fourth child. But the husband

claimed that he had been given a permission by the

wife to get married with another woman, to which

claim the wife apparently denied.

The court first undertook necessary steps to

advice the husband to revoke his intention for a

second marriage and, together with his wife, to

consult an assigned mediator for reconciliations, but

failed because the husband insisted on his request for

a permission for polygamy. This brought the court to

proceed with the case. The husband was represented

by a lawyer, so was the wife. The wife said in the

court that her husband had asked her for a permission

of polygamy, but she never answered such a question

nor agreed to that idea. Instead, she explicitly stated

in the court that she objected to such an idea and

would never give any permission to her husband to

get married with another woman. The court later

asked both sides if any of them would change their

mind, to which they all responded and stood fast in

their own positions, the husband with his request for

a prrmission for polygamy and the wife with her

objection to giving away any permission for

polygamy.

Based on a number of arguments that will be

dicussed later, the RC finally decided to grant the

husband a permission for polygamy, indeed, to the

frustration of the wife. What were the arguments put

forward by the court to uphold its decision and how

much of Islamic legal argument was used, are worth

examining.

3 THE ARGUMENTS OF THE

COURT

There was a number of arguments put forward by the

court to uphold its decision of granting the

permission for polygamy to the husband. The

following are the summary of the arguments of the

court:

1. The court had taken necessary steps to advise

the husband to revoke his intention for

polygamy, and to bring the couple into a

reconciliation through a mediation, but failed

because of the insistence of the husband on his

request;

2. The husband had a legal standing to file the

request for a permission for polygamy, because

the husband had been legally married to the wife

since 1996; a certificate of marriage was

produced in the court;

3. The relationship between the husband and his

prospective second wife had been taking place

for sometime intensively. They often met in the

workplace and other venues which made the

man feared of falling into a sin violating the

prohibitions of God, whiles he was in good

health and financial conditions;

4. The husband had the economic capability of

supporting two wives and his children, since he

was a successful businessman in town, namely a

contractor of building constructions with more

than adequate earnings and wealth;

5. The wife in her reply to questions posed by the

judges stated that she had refused to give any

permission to her husband to undertake

polygamous marriages on the ground that so far

their marriage was in a normal condition with

three children and that there was no physical nor

psychological problems existing, and therefore,

there was no legal grounds whatsoever for

raising the need for polygamy; in fact, she was

then being pregnant of her fourth child in the

five years of their marriage.

6. Although the wife explicitly stated in the court

of her refusal to give away to the husband any

permission for polygamy, the court claimed that

she had not given any reply to her husband as

the latter raised the issue at home and kept

herself silent which could be interpreted as an

indication of agreement; whiles her explicit

refusal was only stated in the court after she was

accompanied by a lawyer;

7. The husband felt that his relationship with his

prospective second wife was so strong and

unstopable that he would divorce his existing

The Use and Misuse of Maslaha by the Court in Granting Polygamy Permissions

1039

wife if his request for the permission for

polygamy was denied by the court;

8. The wife, according to the observation of the

court, deep down in her heart, was actually very

much concerned with possible greater harms

which would emerge out of a possible divorce,

should that be the action taken by the husband,

only because of the husband’s desire to take a

second wife;

9. The prospective second wife, upon her presence

in the court, stated that she was ready to be the

second wife merely because of her already deep

relationship with her prospective polygamous

husband, although she would have to quit her

career from the local public service as a result;

she also claimed that she was very much

concerned with possible falling into sin with the

man.

10. During their marriage, the couple did well

economically that brought them to own three

houses of residence, all located in the town of

Garut, and all were furnished, in addition to a

house which was still in instalment of 15 years;

the couple agreed that these properties were

their joint wealth legally earned during the

marriage.

11. Based on the above mentioned arguments,

particularly those of points 2, 4 and 10 on the

list, the RC believed that the husband was

physically and financially capable of supporting

two wives.

12. The court saw that there was no legal

impediments against the husband to get married

with his prospective second wife according to

the law, as stipulated in the Compilations of

Islamic Law (CIL) Articles 39 to 44.

13. The court observed that the insistence and

determination of the husband to request for a

permission for polygamy was so strong and

unstoppable that he would divorce his existing

wife should such a request be denied by the

court. The court, then, saw this as something

that needed a special attention, because such a

strong desire came from a person of full

capability both physically and financially.

According to the court, many men out there in

society were just the opposite. They had only

strong desires for polygamies, but incapable of

supporting them economically and financially

resulted in the practice of unregistered

polygamous marriages in society.

14. The court saw that the rulings that a permission

for polygamy could only be granted on legal

grounds as stipulated in the Article 41 of the

Governmental Regulation (GR) No. 9 of 1975

and Articles 57 and 58 of the CIL were not

imperative in nature. Instead, they must be seen

comprehensively in the lights of their goal and

philosophy. Those rulings, according to the

court, were merely to protect all sides concerned

that is the husband, the wife, the children, and

their properties, from harms or damages

(mafsadat) likely resulted from divorces

triggered by denials against the desires of the

husband for polygamous marriages. Therefore,

if those rulings were taken strictly binding, they

would not have any meaning and would cause

damages and ruins to the existing marriage. In

this context, the court referred to an Islamic

legal maxim saying (in Arabic) "Al darar yuzal"

meaning that harms must be avoided or

eradicated, and another maxim saying (in

Arabic) "dar'u al mafasid muqaddam 'ala jalb

al masalih" meaning that harms or damages

avoidance must be given priority over obtaining

benefits. The court concluded that for the sake

of the preservation of the existing marriage from

a divorce, and the protection of the wealth of the

household, and their avoidance from complete

ruins resulted from a foreseeable divorce, the

refusal of the wife to give away any permission

to her husband for polygamy, as stated explicitly

in the court, must be put aside.

15. Based on the fact that the request by the husband

for a permission for polygamy was about to be

granted, the court also made a decision to the

effect that those existing properties earned

during the marriage so far (three fully furnished

houses and one house in instalment process)

were to be the joint wealth of both the husband

and the wife, and therefore, pursuing to the

Article 97 of the CIL, they were to be divided

equally among them, half of the portion each.

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4 THE EXAMINATION OF THE

ARGUMENTS OF THE COURT

The above arguments of the court seemed to cover

many different layers: statutory, philosophical,

Islamo-legal, logical, sociological, and even

psychological arguments. It is time now to examine

each of those arguments thoroughly according to the

order of those points presented.

As to the first argument on the steps taken by the

court to persuade the couple to settle their differences

through a mediation prior to the judges' dealing with

the case, were indeed correct steps to take. The only

note to make here is that apparently those assigned to

undertake the mediation was not capable enough of

bringing a reconciliation to prevent the case from

going forward. The failure of the mediation was

exactly the ground for the judges to proceed further

with the examination of the case.

As to the second argument on the legal standing

of both the husband and the wife in the case was again

a correct position to establish. But this was, indeed,

only preparatory in nature for the judges to proceed

with the examination of the case. It was not to be used

for or against any of the two sides. It was simply

saying that the filing of the request for polygamy was

properly lodged.

As to the third argument on the fear of the husband

of falling into sinful deeds because of his already

strong relationship with his prospective second wife,

the court seemed to have taken it for granted and

seriously. All knows that a man in a desire of

something would say anything to get what he wanted;

and judges should not be easily descripted by such a

"diplomacy". Further examination was needed and it

was indeed difficult to prove that such a threat was

true. Had such a sinful deed happened, one should not

blame the court for it. Every mature person is

responsible for his or her own deeds.

As to the fourth argument on the fact that the

husband had economic and financial capabilities of

supporting two wives and his children was probably

the strongest point of those arguments of the court.

Although there was no mention of the amount of

money the husband earned monthly or yearly, the fact

that the husband and the wife owned joint property of

four houses was probably a good indication of the

financial condition of the husband. But it must be

qualified, that economic and financial conditions are

not the whole story, they are indeed only parts of the

story. Other non-financial conditions for polygamy

were meticulously laid down in the Marriage Law of

1974 and all of these conditions must be met

simultaneously. In fact, modern judges should not put

too much emphases on the financial capability but

rather on the issues of justice, equality and women's

rights.

As to the fifth and the sixth arguments on the

statements by the wife that there was no legal ground

for her husband to request for a permission for

polygamy was probably the strongest argument by the

wife not to give her husband a permission for

polygamy, simply because their marriage was in a

normal condition, no physical defect was reported by

either side, and the couple had already three children.

In fact, the wife was then being pregnant of the

couple's fourth child. But all this would be put aside

later by the court, in favour of granting the husband

the permission for polygamy. First and

psychologically this showed that the court's position

was very much inconsiderate to a pregnant woman.

How can a man be morally justified to walk out from

the court room with a permit for polygamy in his

hands, leaving her pregnant wife in the court room

with all of the agony? Secondly, according to the

Article 3 Point (2) of the 1974 Marriage Law, true it

was the court which decided whether or not a

permission for polygamy should be issued, but the

Article 4 of the very Law qualified that such a

permission could only be based on either of the

following three possibilities: inability of the wife to

perform her functions as a wife, or the presence of

physical defects with the wife, or inability of the wife

to bear a child, none of which existed. Further, the

Article 5 of the 1974 Marriage Law clearly stated that

a request for a permission for polygamy could only be

filed by a husband to the court if there was already,

among other things, a permission from the existing

wife, which was not there either. Thirdly, the court

failed to grasp the principles of marriage, which

according to the Marriage Law of 1974 Article 3

Point (1), were monogamies, whiles polygamous

marriages were only exceptions. Therefore, one

should put priority on the former over the latter. It is

true that the court may issue a permit for polygamy to

a husband as stipulated in the Article 3 Point (2) of

the Marriage Law, but only when all parties

concerned are in favour of it. Here, the only party who

was in favour of the requested polygamy permission

was only the husband, alone. Fourthly, the court

dismissed the legal importance of an explicit

statement by the wife in the court, a form of human

rights denial. In fact, the court played down the issue

The Use and Misuse of Maslaha by the Court in Granting Polygamy Permissions

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by saying that the explicit refusal of the wife in the

court to give any permission for polygamy to her

husband was only stated in the court after being

accompanied by the lawyer, whiles at home she never

did so when the husband raised the issue. The court

clearly undermined the rulings of the Article 41 Point

b of the Government Regulation No. 9 of 1975 which

stipulated that all forms of the statement of the wife,

made orally or in writing, on the presence or the

absence of her agreement to a request of polygamy,

must be spelled out or read out in the court. Thus, the

court should have taken the statement of the wife

seriously and based its consideration and decisions on

those court's proceedings. This was unfortunate,

however, for the court did not do what it should have

done. The court also seemed to have belittled the

proceedings of the court, which also meant belittling

the role of the lawyers at the same time. All knows

that judges, prosecutors, and lawyers are of equal

positions as far as their roles of upholding justice are

concerned.

As to the seventh argument of the court on the

unstoppable nature of the relationship of the husband

with his prospective second wife to the effect that he

would divorce the existing wife should he be denied

by the court of the permission for polygamy, was

more like a threat to the court or to the wife.

Evidently, the court took the threat seriously and

proceeded accordingly resulting in a decision of

granting the permission for polygamy. Had the court

not taken the threat seriously, there would have been

a number of possibilities. First, the husband might

have gone to prove true his threat, but he would have

to go to the court again and file his divorce case as a

new case, since every divorce must be taking place in

courts and in the front of judges, and he has to prove

that he had legal grounds for it as laid down in the

Article 19 of the GR No. 9 of 1975. According to the

Article 19, there were six possible causes for a spouse

to file a divorce case to the court: (1) either the

husband or the wife is committed adultery, or

addicted to such social pathologies as gambling and

over drinking habits; (2) the absence of either spouse

from the other for two consecutive years without the

other's approval or knowledge of his or her

whereabouts; (3) either of the spouses is convicted of

five years or more of imprisonment; (4) either of the

spouses is committed a violent and dangerous act

against the life of the other; (5) either of the spouses

is experiencing with some physical defects or

inflicted with diseases that prevent him or her from

performing his or her functions as a wife or a

husband; and (6) continuous quarrels and conflicts

between the spouses that make it impossible for them

to reconcile. Thus, it would not be a simple doing for

the husband to establish a legal ground to file a

divorce case to the court to prove his threat. It would

have been a laborious work for him to do and he

would have to start again from the square one. This

might in turn discourage him from doing so.

Secondly, the husband might eventually think of

behavioural problems and depression that his children

would likely experience once he divorced his wife,

opening the possibility of abandoning the idea of

polygamy altogether. Thirdly, for some independent

wives, being divorced is probably preferable to being

married to a polygamous husband. Educated and

urban women are more likely to be of this category.

Fourthly, for some weaker wives, being married to

polygamous husbands might be preferable to being

divorced and widows. Thus, there would have been at

least four options available. However, the court had

made things easy for the husband, since it directly

took the fourth option for him. Why the court did not

proceed with the other three options, instead?

As to the eighth argument on the observation of

the court that deep down in the heart of the wife, there

was actually a concern of possible greater harms that

would emerge should the husband decide to divorce

her, the court seemed playing some games here. The

court was speculating about the wife's psychological

state upon which it would later make a decision. It

was indeed interesting to see that the court put

priorities on its own speculations over facts presented

by the wife's statement in the court. Normally, one

would see Islamic judges apply the principles of

making decisions based on evidences and facts, or

even on oaths, not on speculations. Classical Islamic

legal jurists said (in Arabic): "Nahnu nahkum bi al

zhawahir la bi al bawatin," meaning we (judges)

make decisions based on evidences and facts, not on

speculations.

As to the ninth argument of the court on the

willingness of the prospective second wife to get

married with somebody's else husband, although for

which she would have to quit herself from the career

of local public service, one may ask if it was worth

mentioning it in the document of the court's decision

or even treating it as an argument anyway. She did not

have any legal standing in the case. Once a

permission for polygamy was granted, the husband

practically could get married with any woman as long

as there are no legal impediments between them.

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As to tenth and eleventh arguments on the belief

of the court that the husband had physical and

financial capabilities of supporting a second wife, it

was already noted earlier that this was probably the

strongest argument of the court. Warnings have to be

made, however, that this should not be the main basis

for the granting of the permission for polygamy, since

many other conditions have to be met simultaneously.

Mention has been made of the Article 5 of the 1974

Marriage Law and the Article 41 of the GR No. 9 of

1975 that have laid out other conditions for a

polygamy permission to be granted by the court in

addition to physical and financial capabilities.

As to the twelfth argument on the fact that there

were no legal impediments for the husband to get

married with his prospective second wife, was

certainly not worth also making it an argument for the

case, as noted earlier. In fact, such an examination of

possible legal impediments was the task of Marriage

Registrars prior to or at the time of the solemnities of

a marriage, as stipulated in the Article 6 Point (1) of

the GR No. 9 of 1975. The Article said that the local

Marriage Registrar, upon receiving the note of the

intention of marriage, undertakes investigations to

ensure whether or not all the conditions have been

met and whether there are legal impediments to

marriage between those intending marrying parties.

As to the thirteenth argument of the court, it is

interesting to note that the determination of the

husband to get the permission for polygamy, whiles

he was in good physical and financial conditions, was

apparently to be applauded by the court. In fact, the

court, using a sociological argument, referred to the

practice of unregistered polygamies in society. A

question arises here if there was any need for the court

to include such a statement in its consideration. The

court was asked only to make a decision on whether

or not to give a permission to the husband for

polygamy, but it went as far as to applaud the

determination of the husband for polygamy. Why was

it necessary for the court to do so?

As to the fourteenth argument of the court, it was

probably the core of the argument as far as Islamic

law was concerned. Based on the speculation of the

court on the concern of the wife should a divorce was

to take place mentioned earlier, the court went on to

dismiss the ruling powers of the Article 41 of the GR

No. 9 of 1975. It said that the Article was neither

imperative nor binding. It bluntly argued that one

should not follow the rules strictly. This is indeed a

strange argument and an interesting position of the

court to be, namely dismissing rules and regulations

and arguing not to follow them. If judges are not

following the rules, who will be? Certainly, all those

rules were made to make polygamous marriages

difficult to take place. The logics is, then one should

avoid polygamous marriages from happening

altogether. However, the logics of the court seemed

the opposite, namely since legal grounds for

polygamy were difficult to establish, then do not

follow the rules and put them aside. The court was

quick to support its arguments by using an Islamic

legal maxim saying "al darar yuzal," meaning harms

must be avoided or eradicated, but to the court the

maxim seemed to mean difficulties must be put aside

in the sense that difficulties of establishing legal

grounds for polygamy must be put aside. Here the

maxim of Maslaha had been shifted by the court to

serve the husband, not the wife. To amplify its

argument, the court also quoted another Islamic legal

maxim saying "dar'u al mafasid muqaddam 'ala jalb

al Masalih," meaning avoiding harms must be given

priority over gaining benefits. It seemed that for the

court, the granting of the permission of polygamy was

an avoidance of harms. What was the harm in the case

then? According to the court, the harm was a possible

divorce, or more correctly the threat of divorce by the

husband. This was indeed an imaginative divorce.

The question is what about the harm that already

accured to the wife, namely the feeling of a pregnant

wife being betrayed by the husband? Was there any

consideration of the principle of the best interest of

the child in the womb? This did not seem to matter to

the court. What mattered to the court was if the

husband did not get any permission to fulfill his

desires for polygamy. Here the gender assertiveness

of the court was questionable. In other words, the

women's rights or the human rights assertiveness of

the court was questionable.

As to the fifteenth argument, the court was correct

to decide that properties owned by the couple during

the marriage was their joint wealth and had to be

divided equally between them, showing the court's

gender equality perspectives.

5 CONCLUSIONS

The above examination shows that the concept of

Maslaha was used by the court in its arguments to

grant a permission for a polygamous marriage as

indicated among other things by the quotations of two

Islamic legal maxims. The problem was that such a

Maslaha argument was apparently shifted by the court

The Use and Misuse of Maslaha by the Court in Granting Polygamy Permissions

1043

to serve the intrests of the intending polygamous

husband rather than to alleviate the agony of the

pregnant wife, proving the ill-assertiveness of the

court to women and human rights issues. In other

words, the concept of Maslaha was used and misused

by the court.

The examination also proved that the court was

willing to negate the value of the proceeding of the

court and dismiss the ruling powers of certain laws

and regulations claiming their being unimperative

and not strictly binding, just to be in line with its own

interpretations and speculations of the case.

Ironically, this was not within the corridors of

Rechvinding (legal innovation) discussed in some

textbooks of legal research methodology. But court's

decisions are always on the winning side, indeed,

irrespective of the injustices they impose. *****

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Haimi, Motti, and Aaron Lerner, "The Impact of Parental

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Children, and the Ways to Improve it," in JOURNAL

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volume 4, issue 1, February, 2016.

Hassan, Husein Hamid, Nazariyat al-Maslaha fi al fiqhi al

Islamy, Dar al Nahda al-' Arabiyya, 1971.

Religious Court of Garut, COURT DECICION NO.

265/Pdt. G/2011/PA-Grt of 2011.

Republic of Indonesia, GOVERMENTAL REGULATION

NO. 9 OF 1975.

Republic of Indonesia, MARRIAGE LAW OF 1974.

Zein, Satria Effendi M, Problematika Hukum Keluarga

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