The female sharia law judge who decides if men can take a second wife


February 13, 2020 14:26:48

Nenney Shushaidah is the female face of Islamic law in Malaysia.

The country’s first female sharia state high court judge, she decides whether a man can take a second wife.

Muslim men in the country can have up to four wives, and each year more than 1,000 men go to the courts to apply for a polygamous marriage.

Judge Nenney sometimes works to convince distressed or reluctant women to agree to it, a move she says ultimately protects their rights.

But she says her heart would be broken if her own husband ever wanted to marry another.

A simple question for first wives

The sharia high court of the state of Selangor is in the city of Shah Alam, 30 kilometres west of Malaysia’s bustling capital Kuala Lumpur.

It’s a modern, leafy administrative centre that feels a bit like a tropical Canberra.

The city is dominated by the Sultan Salahuddin Abdul Aziz Shah Mosque.

Completed in 1988, it’s the largest mosque in the country and is crowned with a spectacular 100-metre-high blue dome.

About 300 metres from the mosque, across landscaped gardens and a six-lane avenue, are the state sharia courts and Judge Nenney’s chambers.

Sitting in the court library surrounded by shelves of beautifully bound legal texts, Judge Nenney explains the circumstances in which a sharia law judge will consider allowing a husband to take another wife.

Polygamy in Malaysia

  • Muslim men can have up to four wives.
  • Most Muslim marriages are not polygamous.
  • But each year more than 1,000 men apply for a polygamous union.
  • They do this via the Islamic law courts.
  • Under Malaysia’s two-tier court system, Islamic courts deal with family law, including polygamy, and morality cases such as consuming alcohol and gambling.
  • Secular courts hear criminal and many civil cases.
  • There is debate among some Muslim Malaysians about the rights and wrongs of multiple marriages.

Polygamous marriages are allowed if the first wife is not healthy, or cannot produce children.

They are also allowed if the husband’s sex drive is higher than his wife’s.

The judge must be satisfied that the husband can afford to support two families.

Unlike some judges, Judge Nenney always wants to hear from a first wife.

“I ask her, ‘Do you really agree with your full heart or have you been forced to agree?'” she says.

She knows the answer simply from looking at the woman’s face.

“If she is smiling, I say yes, she has truly given permission,” Judge Nenney says.

“But if her face wants to cry in front of me I will ask her carefully, in detail, try to get the point — why actually [does] she not agree?”

Protecting women’s rights

Some wives don’t want to share their husband with another woman.

A recent survey by the feminist group Sisters in Islam found that while 70 per cent of women agree that a Muslim man has a right to a polygamous marriage, provided he can treat all wives fairly, only 30 per cent would allow their own husband to marry another woman.

Judge Nenney says while Sisters in Islam is entitled to its views, it is the Islamic Religious Council of Selangor that decides how the courts apply and interpret Islamic law.

She says she tries to convince reluctant women to accept the registration of the second marriage, in order to protect their rights.

“I just say, ‘Your heart will be broken the same, just in this court you will get your rights — your maintenance, your children’s rights, your inheritance,'” Judge Nenney says.

If the husband doesn’t get permission from her court, she says, he can easily circumvent the decision by marrying in a neighbouring country.

On his return, he can register the marriage, and is simply made to pay a paltry fine.

“Better her husband go through this court case than he go to Thailand, Singapore or Indonesia to marry without the permission of the court,” Judge Nenney says.

Judge Nenney, who was appointed in 2016, says 90 per cent of the first wives who appear before do agree to a second marriage.

The remaining 10 per cent of cases proceed to a full trial.

At these trials, Judge Nenney rules against the husband in about 60 per cent of cases, usually because the husband doesn’t have enough money to support two families.

Moral offences and the cane as punishment

In addition to family law matters, the Sharia courts also have jurisdiction to hear what are known as moral offences.

Judges can impose penalties for personal behaviours that are forbidden under Islam: sex outside marriage, gambling or drinking.

Judge Nenney says every week she hears cases where a couple is charged for having sex outside marriage.

She always imposes a fine of 5,000 Malaysian ringgit (around $1,700) and six strikes of a cane.

The caning, she says, is not painful and is designed to be symbolic or educational.

She says the person who canes the offender always has their upper arm positioned firmly against their torso — it is only the movement of the limp wrist that powers the impact of the cane.

Asked if she hopes that one day no-one will be fined or caned for private behaviour, Judge Nenney says she would actually like harsher penalties.

She would like to increase the fines up to 20,000 ringgit ($7,000) and increase the canes from six up to 10 or 20.

“We are limited in our power now. We need more,” she says.

“But education is important to me.”

She says if people know the punishment is harsh, “they will not do it again”.

She also wants bigger penalties for men who fail to pay maintenance, or who ignore other court orders relating to their family responsibilities.

As a woman, not a judge

I ask Judge Nenney how she would react if her husband told her he planned to take a second wife.

When she hears the question, she nods her head; clearly she has given this considerable thought.

She says she would have exactly the same feelings as some of the women who appear in her courtroom.

“As a woman it would break your heart,” she says.

More from the Shifting Cultures series:

Judge Nenney says she would wonder why she wasn’t enough, and be fearful for the future.

“He will change after marry. He will not love us like before,” she explains.

But, like the women who come before her in the Sharia court, Judge Nenney says she would work to ensure her rights, and those of her children, were protected by law.

“The court cares about your rights after the second marriage,” she says.














First posted

February 13, 2020 06:03:04

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