Wife's Permission as a Polygamy Requirement in The Perspective of Islamic Law and Positive Law

Abstract

The four schools of Islamic jurisprudence do not consider the wife's permission as a requirement for polygamy. Muslim countries around the world also do not explicitly mention the wife's permission as a condition for polygamy. However, the Compilation of Islamic Law and Marriage Law in Indonesia mandates the prior permission of the wife as a requirement for polygamy. Therefore, wife’s permission as a polygamy requirement in Indonesia is a requirement that stems from the process of ijtihad by Indonesian scholars, utilizing relevant theories adjusted to the social and cultural structure of Indonesia. This research is a literature study using a normative juridical approach. It is a qualitative study analysing, explaining, elaborating, and revealing research findings. The data collection technique used is a literature review. The analysis employed is the theory of saddu al-zariah wa fathuha, which prohibits all means leading to something prohibited and necessitates all means leading to something required. This research concludes that based on the analysis of saddu al-zariah wa fathuha, the wife's permission in polygamy can change its status from an administrative requirement (syurut al-kamal) to a valid requirement (syurut al-sihhah). This is because polygamy without the wife's permission in Indonesia can lead to successive harms (mudarat) to the rights of the wife and children. Conversely, making the wife's permission a condition for polygamy fulfils the means to achieve justice in polygamy. Making the wife's permission a condition for polygamy is implementing the command to safeguard and protect the rights of the wife and children referred to as al-ahl in the Qur'an. This research is expected to convince the global community that the requirement of the wife's permission in polygamy applied in Indonesia is in line with the social and cultural structure of Indonesia, thus the resulting ijtihad is also in accordance with the proper principles of ijtihad.