|III. Islamic Family Law and Women
It is very significant that the Dakwah movement in the country has made many women’s groups conscious of the implications of Islamisation upon the status of women. Women who belong to the Dakwah movement perceive their involvement as being based on a conscious and informed decision to partake of all of the provisions contained in Islam. To them there is no question or issue in the precept that the position of women in Islam is secondary to that of men. The Vice-President of the Islamic party PAS pronounced the position of women in Islam to be thus:
In Islam the position and role of women is rather comprehensive because they are the ones who nurture and mould the future generations with patience — which is enough for them n o t to be further burdened with workloads not compatible with their physiological and psychological make-up. (Haji Nakhaie Haji Ahmad, 1986)
Undoubtedly Islamic adherents feel that this relegation of woman to the domestic role is not demeaning for her. They are quick to point out that it is in fact is an honoured role. A model of an Islamic constitution drawn up by the Islamic Council of Pakistan is one which Muslim groups in the country have turned to. In the model constitution, article 13 (c) stipulates that, “Motherhood is entitled to special respect, care and assistance on the part of the family and the organs of the State and society.” There is no provision for equality on the basis of gender. It has been said that all the concern over gender equality and women’s status, and the attack on Islam’s position on this, are merely the sentiments expressed by Western-influenced women;
“Only those who have been influenced by the so-called ‘women’s liberation movements’ cultivated by the West may not agree with our stand. Those who hold on fast to the traditions of the East — be they Chinese or Indian — and those who are committed to Islam are not the least bothered about these ‘women libbers’, whose antics are propagated by a small section of women intellectuals in Malaysia.” (Haji Nakhaie Haji Ahmad, 1986).
The sum effect of all this is that women, whether they adhere to the Islamic viewpoint or not, are forced to look deeper into the ramifications of Islam. One area in which much material action can be undertaken is in the area of legalities. Since the administration of Muslim law in the country deals almost wholly with Islamic family laws, and Islamic family laws significantly affect women, it has been in this area that the tension between Islam and the rights of women has become so prominently projected.
The Islamic laws in Malaysia, the most comprehensive of which lie in the area of the family laws, are based on the Shafii school of law. In the fields of criminal law, the law of contract and tort and commercial law, English law is followed. Only Muslims have to abide by the Muslim family laws, while non-Muslims are governed by the country’s civil laws on the family. (6) Muslim family laws are administered separately by each Malay state under their various state enactments. With the exception of the Islamic Family Law (Federal Territory) Act, 1984, which was passed by Parliament, all other enactments were not legislated by Parliament but by the various state legislative bodies.
(6) Law Reform (Marriage and Divorce) Act 11976.
A salient question to be asked is whether the Islamic family laws as they exist, and as they are interpreted and administered in this country, have the overall effect of protecting women, especially in the espousal of their role as mothers and nurturers of the future ummah.
We can look at four areas dealt with in the Islamic family laws in order to answer the question above. These are the areas of marriage, divorce, custody and inheritance. In Malaysia, Malays also observe the Adat or customary laws. At times these customary laws, especially on inheritance are in complete opposition to the Islamic laws. It is thus useful to compare the different provisions laid down by these two sets of laws in order to draw out their implications for the rights and position of women in society.
Some comparisons will also be made between the provisions contained in the civil law on the family, called the Marriage and Divorce (Reform) Act 197, and the Islamic Family law. Patriarchal notions might not just exist in Islam but may very well be prevalent in the civil legislation. The discussion below will be based on the provisions contained in the various versions of the family laws enacted in Malaysia.
Under the Shafii school of law, the consent of the virgin girl is not required for her to be given in marriage by her father or paternal grandfather. It is expected that the father will naturally consult her, although no assurance is required that the consent has been genuinely obtained. The only check that consent is eventually obtained is when the marriage is to be registered. Couples have to sign the marriage register in order to legalise the marriage; even so some states in the country do not require the signature of the bride, as the wali or representative can act on behalf of the girl.
The dissolution of marriages
Divorce is, by and large, the unilateral decision of the man. The pronouncement of thetalak need not be communicated to the wife, nor are witnesses required under the Hanafi school of law. Under the Islamic law enacted in the country, all divorces have to be registered in order for it to be valid. However a talak will only be registered after the wife agrees to it and it is approved by the kathi. Reforms in the administration of Muslim laws have thus provided the women with some protection, that is protection against the uncertainty of the status of her marriage.
A man is given the right to pronounce the number of talaks he wishes as this gives him a chance to revoke the divorce if he wants to. In cases where women can seek a divorce, for example under kholo’, (in which the marriage is repudiated by redemption), the divorce when granted is irrevocable. This is likened to punishment for the woman, especially because she dares to initiate the divorce process.
Under Muslim laws women may apply to a kathi or a court for divorce. There are three kinds of divorce that can be initiated by the woman. The first is by fasakh, that is to declare the marriage null on the basis of certain grounds. The woman can also apply for divorce called the cerai taklik, or divorce by stipulation, that is based on conditions for divorce agreed to by both parties. This is perhaps the closest to a mutual agreement for divorce. In this case the Registrar of Marriages is required, in registering a marriage, to prepare a surat taklik or letter of taklik, in a prescribed form and to obtain the signatures of the parties entering into the marriage contract. Some examples from various states of what is stipulated in the form are as follows:
On every occasion that I am estranged from my wife for a continuous period of four months, whether I leave her or she leaves me by her free-will or by force, and upon application by her to the kathi or naib kathi and upon his being satisfied of such estrangement, my marriage shall be dissolved by one talak. (quoted from Ahmad Ibrahim, 1965, 35) (7)
Another example of the conditions under which a woman can be granted a divorce is as follows:
If I fail to maintain my wife for more than three months or if I assault her, and she complains to the Shariah Court and the Court is satisfied of the truth of the complaint, my marriage shall be dissolved by one talak. (Ahmad Ibrahim, 1965, 35).
A woman may also obtain a divorce by means of the kholo. In this case, the wife agrees to pay compensation to the husband in order to release his material rights. However, the husband still has to pronounce the talak and when he does the divorce is irrevocable.
Finally, a woman governed by the Islamic law can apply for a divorce on her own by judicial decree. The grounds on which such a decree can be granted are similar to those laid out in the Law Reform (Marriage & Divorce) Act 1976, which is the legislation applicable to non-Muslims. One important difference is that in the Islamic case only the woman can apply for the dissolution of marriage under fasakh, while in the civil law, both parties are entitled to the decree.
Some conditions specified by the Islamic law seem to be more inclined towards the protection of the woman than the conditions laid down under the civil act. Under the Muslim law a woman can repudiate her marriage by reason of her husband neglecting her or failing to provide maintenance for three months, and of treating her with cruelty and assault. These conditions are not included under the grounds for the nullifying of marriage under the Civil law.
However, neither the Islamic nor the Civil Acts afford as much leeway to the woman in the question of divorce as customary procedure and laws do, especially among the Negri Sembilan Malays. In the Malay state of Negri Sembilan the rules of inheritance are based on a matrilineal principle. Women act as trustees of all property of the tribe which is considered communal property. Although patriarchy is not absent, especially insofar as leaders must be male, there are many provisions in the customary laws which exist in the woman’s interests.
(7). Terengganu Enactment
In Negri Sembilan a husband who wishes to divorce his wife will first have to go through arbitration ceremony called bersuarang or settlement. A feast has to be held for his wife’s and his own relatives, in which the husband will state the reasons for his intended divorce. Part of the purpose of the gathering is to provide the opportunity for relatives to act as arbitrators or to try to patch up the marriage. However, if no hope of a patch-up occurs, then the divorce will go through, but only after the settlement of the conjugal property.
Dissolution of marriages under the kholo orcerai taklik provision but practiced under customary laws are more accommodating towards women. A woman can redeem the man in several ways if she wishes to repudiate the marriage. According to the Ninety Nine Laws of Perak, there are several ways in which a woman can obtain a divorce. First, by establishing a complaint at the court on three occasions. She will then be granted the divorce if the husband is found to be guilty of her complaints. However if divorce is granted, she must redeem herself by returning an amount equivalent to her dowry. The second instance is when she does not wish to consummate the marriage, in which case she has to forfeit her dowry plus a fine (in those days a specified amount of gold). (Rigby, 1908, 22-34). Malay custom allows for the woman to leave her husband even if he is not guilty of any offence towards the wife according to religious or customary laws. She will have to leave him in the clothes she wears, return the dowry and pay for the divorce. A woman can also divorce the husband if she cannot tolerate his behaviour. She will have to return half her dowry including all joint property or property acquired during marriage. However, she does not lose her own personal property. (Kempe & Winstedt, 1952,6). The amount of redemption under cerai taklik that a woman has to pay to the man, as specified under the newly legislated Islamic act on the family, is subjected to the agreement reached together by both parties and in consultation with the kathi. This actually has the effect of stalling the process of dissolution.
Under civil law a woman cannot force a man to repudiate his marital rights by redemption. Instead, a divorce petition has to be filed by either party first. This too would involve a long drawn out process.
On the question of compensation, a man is at most encouraged to pay the mutaah or consolatory gift to the woman if she is wrongly divorced. However, the onus is upon the woman to apply to the court for the mutaah. On the other hand a woman has to pay much more in order to secure a divorce. In the case of the kholo, the woman would first have to apply to the court to carry out the action. The amount of compensation to be paid to the husband has to be agreed to by him first before the talak is pronounced. Thus the man is able to hold the talak against the woman for his compensation while a woman can only apply to get her consolatory payment after the divorce has come through.
Custody of Children
The custody of children normally rests with the mother below a certain age, although it is the father that is the guardian of the children and they are his property. In Singapore the Guardianship of Infants Ordinance 1952 provides that it is the father of the infant who will ordinarily be the guardian of his person and his property. Under the Guardianship of Infants Ordinance of Sarawak, the father and mother have equal rights to the custody and upbringing of the child. The right of hadanah or custody remains that of the mother. However, the right of the hadinah terminates upon the child attaining the age of seven years in the case of a male, and the age of nine years in the case of a female. After this termination, the custody is transferred to the father. (8). The right of hadanah of a woman is also lost once she remarries.
On this issue too customary laws seem to give more credence than Islamic laws to the recognition of the woman as custodian of the child. In Perak during the eighteenth century, if a child was under nine he could decide with which parent he wished to live. However, a girl had to live with her mother. In Negri Sembilan, where the tradition is matrilineal, all children belong to the mother’s tribe, thus on divorce the mother has custody of all the children. (Ahmad Ibrahim, 1965, 74).
Property and inheritance rights
The distribution of property among Malays is still largely based on customary laws, although Malay society is becoming more inclined towards the Islamic system at the present time. Under customary law, a wife can claim a substantial share of land acquired during the marriage. For example, if a woman has helped to cultivate the land, she is entitled to one-half of the property. If she is not involved in the cultivation she is entitled to one third of the jointly acquired property. Under customary law if the husband wants a divorce without any fault accrued to the wife, then the joint property is divided into three; two parts to the woman and one part to the man. (Kempe & Winstedt, 1952, 6). In certain cases, the wife is still entitled to one third of the value of lands acquired during marriage even if is proved that she was divorced for adultery. (Hooker, 1976, 240, Ahmad Ibrahim, 1956, 56). In the case of the cerait aklik, or divorce by stipulation, the wife retains the whole of the property, whether the husband’s own property or joint property. (Ahmad Ibrahim, 1965, 59).
As can be seen, customary laws on inheritance are in direct opposition to Islamic laws. However legislation in the country has provided for the continuance of the Adat or customary rules because to not do so would be
(8) Islamic Family Law (Federal Territory) Act, 1984, (Act 303). Section 84.
To dismiss a matter of great concern to the peasantry, which is land ownership and inheritance. Nonetheless, no clear rules have been written as to how the two axioms, Islam and customs, are being compromised or dealt with. The negation of the Adat rules as being opposed to Islam has been promoted by one side while the assertion of the Adat laws has been done only by females (Hooker, 1976, 211). There have been many instances in which Islamic laws have been used to overturn the decisions made on the basis of Adat Laws. (9) In the case of Bongah vat in, the court overturned the decision of the kathi to award a half share of the joint earnings acquired during marriage. The civil court ruled that joint earnings were the property of the husband (Hooker, 1976, 229).
In relation to inheritance rights under Muslim law, especially when they relate to a Muslim dying intestate, the widow who is left with no child is entitled to one-quarter share of the deceased husband’s estate. If the man dies leaving a widow with children, the wife will only get one eighth share, while the rest is divided among the children; two parts going to the sons and one part going to the daughters.
In the civil law, if a man dies intestate leaving his wife but no children, then she is entitled to half of his estate. This appears to be a better deal than the one-quarter share that a Muslim widow is entitled to. However, under civil law, if a woman dies leaving the man with no children then he is entitled to all of her estate.
In customary law, the widow is entitled to a special share in the harta sepencarian; or joint property acquired during marriage. In smaller estates she may even be entitled to the whole estate (Ahmad Ibrahim, 1965, 83). Under customary laws, only property obtained before marriage goes back to either parties’ relatives. In the matrilineal society, all property acquired during marriage goes back to the woman’s family after the man has died.
In Malaysia’s history, Islamic laws of inheritance are sometimes ironically used to justify economic progress. In 1968 there was a proposal from the Chief Minister of Negri Sembilan to terminate the continuance of the customary laws of inheritance. The reason given was that as a result property was resting in the hands of females. 80% of farm occupiers are women which “therefore” makes the farms unproductive. Secondly, he argued that customary inheritance results in excessive fragmentation so that farm sizes are uneconomical. As land was being acquired for cash crop farming they did not come under ancestral property. It was freehold land and thus not conducive for Adat law. In this instance, Islamic law is considered progressive and customary law anti-progress, as it merely encourages peasant subsistence farming which could lead to stagnation. (Hooker, 1972, 216).
(9) In the case of Bongah v. Mat Din, quoted in Hooker, 1976,229.
While Islam exalts the role of women, even as mothers, it does not go as far in placing the importance of women as the bridging line of communities and generations. Customary laws on the other hand, place an emphasis on the female line, even if patriarchal system of leadership prevails.
In the past and in traditional societies it cannot be said that women’s freedom and rights were excessively curtailed. This is because certain rights of women, particularly property and inheritance rights, are recognised under customary Malay laws, which existed in the Malay culture independent of the spread of Islam and survived despite it. Secondly, women have enjoyed some degree of freedom in work, resulting from secular schooling.
The forces that have kept the participation of women low in the public sphere were factors such as lack of access to formal schooling. More women were confined to statistically invisible jobs such as in the fields of agriculture, cottage industries, informal sectors and domestic work. Today, more women are receiving higher education than before. More women have entered into the urban work force and many more are also entering the professional fields.
More than it challenges capitalism, this surge of women into the public domain since the country’s independence is challenging the institution of patriarchy. Islam does play its part in curbing the entry of women into the public sphere, through several means. Muslims are conscientized as to the proper role of women in Islam. The Islamic doctrines are used to justify why women should not be allowed to take up high level jobs. The lowering in the rate of fertility of women has also caused alarm and has been perceived as a threat to the survival of the family and eventually the Islamic ummah. Here Islam has played its part in opposing family planning policies. Finally, Islam has the means to forbid totally the conferment of leadership positions on women. It is at the leadership level that the perpetuation of male dominance is assured. Right now Muslim adherents seem to perceive that it is only through maintaining patriarchy that the other goals of Islam can be properly achieved, i.e. goals such as social justice, equality and peace. Is Patriarchy then the ultimate end of Islam?
The revival of Islam in the country is perhaps a manifestation of a need to reassert patriarchy in society. It has brought to the fore even more starkly than other movements, the issues of women and their rights. Islam is far from silent on this, and in fact the role of women is very much highlighted in Islamic law governing the institution of the family. While Islam professes to revere motherhood and the role of women in bringing up the family, this is barely evident in the provisions of the Islamic family laws as enacted in the country. In comparison with customary laws and the civil laws on the family applicable to non-Muslims in the country, Islamic family laws as enacted here have still a long way to go before they can ensure women that they are actually being protected. It would appear that limitations of the Islamic family laws would have to be mitigated by other reforms, perhaps of a secular nature, to ensure that the end goal of Islam is not merely patriarchism but the greater goal of bringing good to all human beings.
Maznah Mahamad is a researcher at the University Sains Malaysia, Penang, Malaysia.
3, N°1, 1988
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