A Normative Study on Polygamy and Gender Justice in Islamic Family Law: Insights from ASEAN Jurisprudence

Abstract

Polygamy (taʿaddud al-zawjāt) in Islamic family law, though classically permitted under specific conditions of justice, presents significant challenges to gender justice in contemporary Muslim societies, particularly in ASEAN. This normative study examines the evolution of polygamy regulation in Indonesia, Malaysia, and Brunei, analyzing the interplay between classical Islamic jurisprudence and modern state legal frameworks. It highlights a critical tension between the permissibility (ibāḥah) of polygamy and the ethical responsibility (ʿadālah) of maintaining absolute justice, often leading to a preference for monogamy in classical interpretations. ASEAN jurisdictions have implemented statutory controls requiring court permission, consent, and financial capacity, aiming for procedural justice. However, the persistence of unauthorized polygamy and critiques from women's rights groups like Sisters in Islam reveal a persistent gap in achieving substantive gender equity. The report argues that a reinterpretation of Islamic family law through the lens of maqāṣid al-sharīʿah (higher objectives of Islamic law) and ijtihād (independent reasoning) offers a robust pathway for crafting gender-responsive interpretations that prioritize dignity, welfare, and fairness for all family members. This comparative analysis of ASEAN jurisprudence underscores the ongoing efforts to balance religious tradition, legal modernity, and constitutional rights in pursuit of a more just and equitable family law system.