Rights between Men and Women in Islamic Family Laws (IFL)

SISTERS IN ISLAM, one of the Muslim organizations have greatly protest to the recent passing of the Islamic Family Law (Federal Territories) (Amendment) Bill 2005 by the Malaysian Senate. To the ire of Malaysians of all faiths, both women and men, the government has passed a Bill on 23 December 2005 which is Islamic Family Law (Federal Territories) (Amendment) Bill 2005 [1] . The Bill was passed unanimously despite vehement objections from several women’s groups and severe objections from at least 12 women Senators. They think that the rights of Muslim women have deprived significantly and point out 5 major objections for the Bill [2] .

Based on the protest, many researchers have involved themselves to compare and analyze on the rights of married couple under Islamic Family Law. Results showed that the spouses’ rights can be divided into three parts which are before a marriage, during a marriage and after a divorce. Analysis conducted on the Islamic Family Law (Federal Territory) 1984, revealed that wives were granted with more rights than husbands [3] . Other than that, research finding also had identified several rights that were not part of Syariah Law but enacted under the Islamic Family Law.

Most women question the effectiveness of Religious Departments, Islamic Family Laws and the Syariah Courts in conducting the Islamic Bill as it is regard to be in favour of men. However, if women ponder a bit longer, the functions of the IFL enforcement in reality is favours women over men. The real nemesis for women is ignorance of their own rights and responsibilities. According to the Islamic jurists or fuqaha, the rights of a husband and a wife are almost equal. Under the Islamic Family Law in Malaysia, the wives are benefited with more rights in terms of matrimonial property like maintenance (nafkah), obligatory marriage payment (mahar), consolatory gift (mut’ah), iddah and more rights were gazetted. This is because under Islamic jurisprudence or fiqh, men’s rights are focused on the wives’ obedience. This can be shown in the case of Maimunah Inalhage v Abdullah Bin Hussin.

Before Marriage

Rights of a man before marriage are solemnization of marriage, consent, betrothal, and polygamy. Rights of a woman before marriage are solemnization of marriage, consent, betrothal and consent to polygamy.

The rights of a man and a woman before marriage basically are the same. The rights for a man and a woman may legally enter in to a marriage are 18 years old and 16 years old respectively. Otherwise, only the court may grant the permission. A marriage is needed consent of the man and besides the bride, wali or wali raja so that it is recognize and registered. Either a man or a woman may enter unto a betrothal with his or her fiancée in accordance with Syariah law. He or she then has the right to claim reparations should the fiancés, without valid reason, refuses to continue with the wedding under section 15. For polygamy, a married man has the right to take another wife only with a written permission of Syariah Judge. Permission is given subject to a statutory declaration to the court consisting justification for polygamy, current income, financial obligations, number of current and future dependents and whether the consent or views of the existing wife or wives on the proposed marriage have been obtained submitted. Wife has the right to give her consent pertaining to the husband wishes to practice polygamy under section 23. The court will summon the applicant’s wife to the hearing of the polygamy application and will ask of her views with regards to the matter. If the wife dissatisfied after the court allows the husband polygamy request, she can make an appeal against the court decision according to Administration Enactment.

 

During Marriage

Rights of a man during marriage are divorce by talaq or by order, resumption of conjugal relationship or ruju’, obedience and disobedience. Rights of a woman during marriage are mahar, ta’liq, maintenance (nafkah), divorce by talaq or by order, khul’ divorce or cerai tebus talaq, resumption of conjugal relationship or ruju’, divorce under ta’liq or stipulation (section 50), dissolution of marriage or fasakh (section 52), presumption of death, resume cohabitation, desertion of wife, ill-treatment of wife and failure to provide proper justice to wife.

Man can divorce by talaq. This Act provides a husband the rights to divorce his wife however he must submit an application along with a statutory declaration to the court. Particulars in the declaration are marriage details; details that empower the court under section 45; details of any previous matrimonial proceedings; a statement of reasons for desiring divorce; a statement of efforts on reconciliation; the terms of any agreements regarding maintenance and habitation, the care and custody of the children of the marriage, and details of the order sought under section 47. Even though pronouncement of talaq is the husband right but under this Bill it could only be accomplished with the court permission under section 45. This is to prevent talaq from being misused against women or wives.

In one or two talaq, husband and wife may resume conjugal relations within iddah and they can recohabit. Once the iddah period ended, then this right is void and they must perform a new aqad or contract. The couple must report to the registrat of marriage for further actions under section 51. During talaq raji’I iddah period, the couple is still regarded as husband and wife. Therefore, the husband must resume his responsibilities on his wife’s rights like giving maintenance or nafkah and the wife cannot leave the house until the iddah period ends or otherwise leave for fear of maltreatment. However, the wife may leave the house with the permission or by the order of the court.

Obedience is the husband’s right for the wife to fulfill. Once a wife or ex-wife is disobedient or nusyuz, then her rights like receiving maintenance or nafkah will be nulled. Under section 59(2), a wife cannot separate herself from the husband; leave the house against the husband’s will or unwilling to relocate together with the husband without any valid reason according to Syariah Law.

Disobedient is an Act grants a husband a right on the wife who intentionally disobey the husband’s commands which are not against the Syariah law. The court will penalize the disobedient wife a fine of one hundred ringgit for first offence and five hundred riggit on the second offence and so on under section 129.

A woman has the right to receive mahar and gifts during the wedding ceremony. It shall be given in the presence of the person solemnizing the marriage and the two other witnesses under section 21(1). The mahar can be in form of cash money or paid at a later time. The registrar must record particulars and value of the mahar, gifts or anything that has been promised but not paid at the time of the solemnization of the marriage, and any security given for the payment of any mahar or gift section 21(2).

In a marriage, the Act gives the right of the prescribed ta’liq or other ta’liq to a woman. It must be registered in the Marriage Register under section 22(1). The Registrar then will issue a ta’liq certificate after a fee has been settled under section 26(2).

A wife is entitled to maintenance upon marriage. The court may order a man to pay maintenance to his wife or former wife. A wife will not be entitled to maintenance once she is disobedient or nusyuz until she repented and obeyed commands from her husband under section 59(1), (2) and (3). The amount of maintenance will be assessed by the court based on the man’s capabilities and income under section 61.

The divorce by talaq Act permits a wife who desires divorce from her husband and has the rights to do so but must hand in application form accompanied by a declaration to the court. The declaration contains particulars of the marriage; particulars of the facts giving the court jurisdiction under section 45; particulars of any previous matrimonial proceedings; a statement as to the reasons for desiring divorce; a statement of steps that had been taken to effect reconciliation; any agreement regarding maintenance, habitation, custody of the children, assets, any agreement that has been reached and particulars of the order sought under section 47. Even though the husband has the rights to divorce the wife by talaq but permission must be grated by the court under section 45. Upon receiving an application for divorce, the court will summon the other party to appear before the court for further inquiry. When the other party consent for the divorce and the court is satisfied after due inquiry and investigation that the marriage is perpetually irreconcilable, the court will ask the husband to pronounce talaq to the wife under section 47 (2) and (3).

For khul’ divorce or cerai tebus talaq, if the husband does not agree voluntarily to pronounce a talaq, but both parties agree to a divorce, they can do it by redemption or cerai tebus talaq. Court will order the husband to pronounce a divorce by redemption after the amount of payment is agreed upon by both parties. This is called ba-in sughra or irrevocable under section 49(1). The divorce will take effect once the agreed payment has been made by the wife or her representatives after the husband pronounces the Khul talaq.

In talaq raji’i, a husband and a wife may resume conjugal relations within the period of iddah under section 51. Both parties have the rights either re-cohabit or not to by mustual consent.

When a marriage takes place, a married woman has the rights to pursue a ta’liq certificate made upon a marriage the husband had violated the ta’liq conditions and a report has been made to the court then a talaq comes into effect.

For dissolution of marriage or fasakh, this Act protects a wife from being abused by a husband and she is entitled to obtain an order for the dissolution of marriage or fasakh before the court. Therefore, it must be based on certain grounds as stated in the Act. Some of the grounds are that the whereabouts of the husband have not been known for a period of more than a year; that the husband has neglected or failed to provide for her maintenance for a period of three years or more; that the husband has failed to perform, without reasonable cause, his marital obligations (nafkah batin) for a period of one year; that the husband was impotent at the time of marriage and remains so and she was not aware at the time of marriage that he was impotent; that the husband has been insane or is suffering from a venereal disease; that she, having been given in marriage before attaining the age of eighteen years, the marriage not having been consummated; and that the husband treats her with cruelty.

If the husband of any married woman has died, believed to have died or has not been heard of for more than seven years; the court may presume in accordance with Syariah law that the husband to be dead. According to this Act, the woman can remarry under section 53 (1).

A wife has the rights to resume cohabitation by appealing to the court in manner required by Syariah law. The court then may order the husband of the wife to resume cohabitation under section 120.

In desertion of wife, any husband who neglects the court’s order to resume cohabitation with his wife can be penalized. And if he is found guilty, the husband will be punished with a fine not exceeding five hundred ringgit or with imprisonment not exceeding six months or both under section 126.

Any husband who ill-treats his wife or cheats his wife’s property is punishable with fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both under section127.

Any husband who fails to give proper justice to his wife can be punishable with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both under section 128.

After Marriage

Rights of a man after marriage are guardianship of the children and their property and hadhanah. Rights of a woman after marriage are mut’ah or consolatory gift, mahar or obligatory marriage payment, iddah or post marital waiting period, arrears of maintenance, interim maintenance, accommodation, hadhanah or custody of children and order of maintenance.

After marriage the guardianship of the children and their property will more favor to the father which is the primary legal guardian to the children. When he died, the legal guardianship will be passed to the father’s father, the executor appointed by the father’s will, the father’s executor’s executor on certain conditions. Provide that he is a Muslim, an adult, sane and trustworthy under section 88.

The right of hadhanah to the child custody will passed to the father once the child reach the age of seven for male and nine for female under section 84(2) but the mother may apply for a two years extension under section 84(1). If the child has reached the age of discernment, he or she may choose to live with either of the parents under section 84(2).

A wife who has been divorced without just cause has the right of Mut’ah. She can apply to the court for Mut’ah and the court will order the husband to pay certain amount of money to his wife after hearing appeals from both sides under section 56.

Besides, the Act also has given the rights of mahar to any married woman. These are not being affected even after the dissolution of her marriage under section 58.

Any married woman who has been divorced is entitled to receive maintenance from her former husband within period of iddah. The court’s order will cease on the expiry of the period of iddah. The right also expires of the wife is adulterous or remarries under section 65 (1) and (2).

Arrears of maintenance can be recovered as debt. A husband will be asked by the court to pay arrears to his former wife. If the husband died before paying the debt, then, it must be paid from his property under section 69 (1). If the arrears of maintenance have not been paid before the death of the former wife, then, a representative can claim it under section 69(2).

During the process of appealing for payment of maintenance, a wife can appeal for a temporary interim maintenance. It will be in effect until the court passes the order for maintenance under section 70.

A divorced woman is entitled to stay in the home where she used to live if the husband is not able get another suitable accommodation for her. The right to accommodation provided will cease if the period of iddah expires; if the period of guardianship of the children expires; of if the woman remarries. After any of the said periods expire, the husband may apply to the court for the return of the accommodation under section 71(1) and (2).

The mother is entitled to have the right to hadhanah during the marriage as well as after its dissolution. When the mother is disqualified from having the right of hadhanah or custody of her children, the court then will pass the right to ther following order of preference; that is the maternal grandmother, how-high-so ever; the father, the paternal grandmother, how-high- so ever; the full sister, the uterine sister, the sanguine sister, the full sister’s daughter; the maternal aunt; the paternal aunt; the male relatives who could be their heirs as asabah or residuary under section 81(1) and (2).

The court may penalize whoever fails to comply with the order for maintenance. The court may sentence a month imprisonment of each unpaid monthly payment under section 132.

Jointly right of husband and wife

The rights for both parties after a marriage are joint assets and ascription of paternity or nasab. For joint assets, after the parties divorce, the assets will divided. In exercising the power conferred, the court will have regard to the extent of the contributions made by each party, any debts and the needs of the children under section 58 (1) and (2). For nasab, the chidren belongs to both parents. This Act legislate that a married woman who gives birth to a child after more than six qamariah months from the date of the marriage or within four qamariah years after dissolution of marriage, the woman has not remarried; then the paternity of the children is given to the man whom she married. However, the man may disclaim or li’an the child before the court under section 110.

Comparison of spouses’ rights under Islamic Family Law (IFL)

As mentioned above the rights of woman is greater than man under Islamic Family Law. It includes rights in the form of asset, non-asset, divorce and others. For instance, under Islamic Family Law, women are protected from forced into marriage even though wali mujbir has the authority to do so. A woman can engage a judge if wali mujbir refuses to marry her. A woman has a right to turn down a marriage proposed to her by a wali mujbir if such marriage does not fulfill the requirement of Syariah law.

However, there were still complaints from the women groups whom felt that gender bias existed. This is because they do not clearly understand the rights given to them. Rights that were not used by women such as section 127 and 128 who have been maltreated by their husbands. Instead, the community itself still unaware of the existing sections. Hence, IFL should not be blamed or liable because of dissatisfaction or self ignorance.

Woman blame the provisions have been amended become unfair provisions. However, the purpose of its amendment was aimed to provide justice and equality between spouses especially women. There are many rights have been analyzed for the amendment of IFL [4] . Among those provisions, there are many rights that never be claimed by rights from section 127 and section 128.

There are similarities and differences in the rights of spouses. The rights of husband and wife under IFL and the amended rights had not been outlined in the Syariah Law. Among similarities of the spouses’ rights is age as mentioned above. Besides, both parties have the right to claim reparations. The party to claim reparations is the party refuses to continue the wedding. Furthermore, the husband and wife have the mutual right to hadhanah or custody of their children and jointly own assets after marriage dissolution. Both parties have equal rights to custody of their children from a legitimate marriage.

The differences between the rights of a husband and the rights of a wife could be classified into several forms. First and foremost will be the property. These rights acted as guarantee for a man or woman during marriage or after divorce. Based on the IFL, possession of property is a right granted for woman in accordance to Islamic Syariah.

Next, both husband and wife share the same non property such as obedience, hadhanah, ta’liq, guardianship of children and their property and ruju’. The wife can use he ta’liq conditions to ensure security against the husband maltreatment. If the husband violates the ta’liq conditions and the wife reports to the court, then a talaq will be placed in to effect.

Another point will be divorce by talaq, khuluq, ta’liq, fasakh, presumption of death and li’an are given to wives for the sake of their best interest. So divorce can also be initiated by wives other than their husbands. IFL legislates that wives may seek for a divorce by talaq, khuluq, ta’liq, fasakh, presumption of death and li’an which they can choose from in the Syariah Court. However, the husbands can only pronounce talaq and li’an if they wish to divorce their wives.

Lastly, penalties such as desertion of wife, mistreatment of wife, denying justice to wife, maintenance ordered by court, re-cohabit will punish to those who violate the laws. These rights will grant to the wife if the husband commits offences such as desertion, maltreatment, injustice, and denial of maintenance. For that reason, IFL imposes punishment by monetary fine and imprisonment on offenders as a lesson to married couples.