THE RIGHTS OF MARRIED COUPLE

Comparative Analysis on The Rights of Married Couple under Islamic Family Law
Written by Md Zawawi - Dr. Wan Ab Rahman Khudzri |

COMPARATIVE ANALYSIS ON THE RIGHTS OF MARRIED COUPLE UNDER ISLAMIC FAMILY LAW

By:

Md Zawawi Bin Abu Bakar1

Dr. Wan Ab Rahman Khudzri Bin Wan Abdullah2

Abstract

Marriage is a form of contract between a man and a woman in which derives certain rights and responsibilities. Negligence of these rights and responsibilities would certainly create crisis and eventually lead to divorce. Hence, a research was conducted to identify and compare the rights of spouses in an Islamic marriage. The researcher had analyzed the rights of spouses under the Islamic

Family Law. Results showed that the spouses’ rights can be divided into three parts; before a marriage, during a marriage and after a divorce. Analysis conducted on the Islamic Family Law (Federal Territory) 1984, showed that wives were granted with more rights than husbands. Other than that, research findings also had identified several rights that were not part of Syariah Law but enacted under the Islamic Family Law. Comparatives analyses conducted found that there were similarities and differences of spouses’ right under the Islamic Family Law. The research concluded that Islam has placed equality of rights on both husband and wife in order to uphold the sanctity of matrimony. Therefore, spouses must understand their responsibilities and perform the respective rights according to Syariah.

Introduction

Family Law is legislated to safeguard individuals’ rights regardless of gender, family background, status, skin color and etc (Abdul Jalil Borhan, 1998). Justice is the core of any law especially in the Islamic Family Law (IFL). It is enacted based on the Islamic Syariah. Allah SWT says:

Then We put thee on the (right) Way of Religion: so follow thou that (Way), and follow not the desires of those who know not. (al-Quran, al-Jathiyah, 45:18)

The verse above explains that the Islamic Law or Syariah is a complete divine revelation. In the context of the legislated Islamic Family Law (IFL), it is just if its execution fulfills the requirement of the Holy Quran and the Sunnah which is against discrimination of gender, heredity, skin color or status.

Every individual, men and women, are granted rights and it is a trust or amanah to be carried out to the rightful owners. Allah says:



“Allah doth command you to render back your Trusts to those to whom they are due; And when ye judge between man and man, that ye judge with justice: Verily how excellent is the teaching which He giveth you! For Allah is He Who heareth and seeth all things.” (al-Quran, al-Nisa’, 4: 58)

There is much evidence regarding denial of rights between spouses that cause quarrel which eventually lead to divorce. According Mohammed Yussof Hussein, a research conducted by the Department of Islamic Development Malaysia showed that the main factors that lead to divorce were irresponsible attitude (21%), irreconcilable differences (19.23%) and drug abused (13.77%). Other causes of divorce

were interference by third parties (13%), interference by family (12%), financial problem (19.23%), abuse (7%), and sexual problem (5%) (Harian Metro, 27 March 2007). These statistics demonstrated that husbands or wives who had failed to commit the appropriate rights are considered irresponsible.

Responsibility is closely related to rights, as the rights of a husband are the responsibilities of a wife and vice versa. According to Mat Saad Abdul Rahman (1993), a marriage not only gives legitimacy to sexual relations but also requires commitment of responsibilities from both husband and wife. For example, the right of a wife is to receive maintenance or nafkah from the husband, therefore it is the responsible of the husband to fulfill the right. Meanwhile, the husband’s right is for the wife to be obedient on all of his commands as long as they it do not contradict with the Syariah law. Refusal of both husband and wife to execute the respective rights can be considered as irresponsible conduct. Fulfillment of the rights is a form of trust or amanah. Hence, if the rights are neglected then divorce is somewhat inevitable.

Problem Statement

Previously, there were complaints of dissatisfaction from several women non-profit organizations regarding the rights of Muslim women which they claimed to be discriminatory by the IFL. The peak of the protest was against the Islamic Family Law (Federal Territories) Amendments Bill 2005, which had led the Cabinet to withhold its enactment, after the Parliament endorsed the Bill on 22 December 2005, until a further study is conducted. (Utusan Malaysia, 18 January 2006).

Allegation of discrimination against Muslim women regarding the enforcement of the IFL was brought up along with biased Syariah court cases. Among the cases was Faridah Dato’ Talib vs Mohd Habibullah Mahmood (1992)3, which took the Syariah court seven years to reach a verdict. The Syariah court finally decided that her marriage cannot be voided and had caused the plaintiff to suffer not only emotional distress but financial problem as well. In this case, the plaintiff, who is a law practitioner herself, should have an in-depth knowledge of her rights and would have definitely avoided the long court battle. In another case that is yet to be solved since it was filed in year 2000, the Ida Hayati Binti Taufik vs Ahmad Shukri Bin Kasim4 case, in which the plaintiff filed a demands to her rights of maintenance, children’s maintenance and debt. All these cases portrayed that IFL as unjust and heavily skewed to favor men over women. Are these discriminatory allegation brought forward by the women groups true? It seems like the outspokenness of these women groups had pointed out that the Bill had drifted away from its’ principals of just.

Meanwhile, Sulaiman Endut (1997) said that most women question the effectiveness of the Religious Departments, Islamic family laws and the Syariah courts in conducting the Islamic Bill as it is regard to be in favor of men. If women really understand the functions of the IFL enforcement and attempt to comprehend the Syariah law especially concerning their rights as wives, there would not be any form of discrimination against them. In reality, the Islamic Family Law actually favors women over men. Zaleha Kamaruddin (1998) added that the real nemesis for women is ignorance of their own rights and responsibilities. For instance, according to the Islamic jurists or fuqaha, the rights of a husband and a wife are almost equal. Meanwhile, under the Islamic family laws 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 the Islamic jurisprudence or fiqh, men’s rights are focused on the wives’ obedience. For instance, the

Maimunah Inalhage vs Abdullah Bin Hussin 5 case, the wife failed in her mut’ah (consolatory gift) claim because the husband succeeded in denying a divorce and the plaintiff could not produce evidence of her husband’s negligence of his responsibilities. Instead, the court found that she failed to discharge her responsibilities.

Basically, the rights of men in the Islamic family law are not being emphasized. Does this mean that men do not consider themselves to be discriminated? According to Md Akhir Haji Yaacob and Siti Zalikha Md Noor (1989), even though the Islamic Family Law has been enacted, it does not fully guarantee a harmonious marriage since it is only a form of social control. There are other factors like in-depth knowledge of individual obligation or fard ain, effective preaching method or da’wah and awareness among the Malaysian Muslims community. In Islam, justice is the core principals of all its legislations. Only then, every individual and the whole community at large will receive their respective rights and protected against injustice. (Holy Quran, al- Nisa’, 4: 58; al- Nahl, 16: 90). Islam recognizes the rights of all individuals, and this can be achieved through two forms of justice; substantive justice and procedural justice (Majid Khadduri, 1994). Both forms play vital role in upholding the righteousness of a law. Majid Khadduri (1994) added that substantive justice relates to inner aspects of a law and an element of justice that determines what is right or permissible (halal); or wrong or forbidden (haram). Meanwhile, procedural justice deals with outer aspect of a law and executes the substantive justice aspect. Therefore, the research is conducted to analyze the substantive justice aspect of the Islamic family law in Malaysia in regards to the rights of both husbands and wives.



Research Questions

There are several questions related to the rights of spouses as stated in the Islamic Family Law. The questions to be discussed in this paper are to analyze the rights of spouses based on substantive justice. Moreover, this research had been conducted to identify the dissimilarity of spouses’ rights and the allegation of discrimination as discussed in the problem statement. In this study, the research questions are:

1. What are the rights of a husband and a wife, as stated in the Islamic Family Law?

2. What are the differences of rights between a husband and a wife, as stated in the Islamic Family Law?

Research Objectives

This study aims to identify the rights of spouses in a marriage. Also, it aims to compare the rights of a husband to a wife as stated in the Islamic Family Law. The objectives are:

1. To study the rights of a wife as stated in the Islamic Family Law.

2. To study the rights of a husband as stated in the Islamic Family Law.

3. To compare the rights between a husband and a wife as stated in the Islamic Family Law.

Research Method

This study has been conducted on the Islamic Family Law in Malaysia. A qualitative research method was used in attempt to achieve the research objectives. Archival study was adopted because of its suitability to the study and objectives to be achieved. According to Sabitha (2005), this form of study enables researcher to retrieve data from any available information. Resources of such information are from data census, legal records, government documents and etc. The type of information is firm and unchangeable. This study focused on the Islamic Family Law (Federal Territories) Act 1984 to represent

all the other 12 states’ Islamic family law enactments in Malaysia. It is a primary source for an academic research. According to Anwarul Yaqin (2007), in any legal studies, among primary sources are authoritative and formal laws, Federal Constitutions, Islamic Law (as enacted and enforced), statutes as enacted by legislative bodies, minor law, tribunal or court of law.

A part from that, the justification for choosing the Islamic Family Law (Federal Territories) Act 1984 is because it has been enforced since 1984. And it has been used as a reference model for the other 12 states’ Islamic family law (Noor Aziah Haji Mohd Awal, 2003). Besides that, it is the only Islamic

Family Law that has been legislated at the parliament. However, the other states’ Islamic family laws were only being revised at the state level and known as enactment. In addition to that, The Islamic Family

Law (Federal Territories) Act 1984 adheres to the principles of the Shafi’i school of thought. Data has been analyzed manually by using inductive, deductive and comparative analyses to achieve the research objectives. Researchers had consulted legal professionals on unclear terms and interpretations for affirmation and validity.

Results and Discussion

Objective 1 and 2

Spouses Rights under the Islamic Family Law (Federal Territories) Act 1984

The Islamic Family Law (Federal Territories) 1984 is also known as Act 303 of the Malaysian Law. It has been legislated to canonize all Islamic family enactments regarding marriage, divorce, procedure, alimony, custody, penalty and all types of family matters. This Act consists of 135 sections in ten parts. These parts are Part I (Preliminary), Part II (Marriages), Part III (Registration of Marriages), Part IV (Penalties And Miscellaneous Provisions Relating To The Solemnization and Registration Of Marriages), Part V (Dissolution Of Marriage), Part VI (Maintenance Of Wife, Children And Others), Part VII (Guardianship), Part VIII (Miscellaneous), Part IX (Penalties) and Part X (General). Even though there are many sections under the 10 parts of Act 303, researcher will analyze parts that has been classified into three segments which were covered in this research; the rights of a husband, the rights of a wife and jointly rights of husband and wife.

The analysis showed that the wives were given more rights (68.4%) than the husbands (26.3%) while jointly husband and wife rights is at 5.2 %. The greater provision of rights to wives proves Islam is fair to women. Hence, the provision of rights in terms of matrimonial property to wives is as a social guarantee, should the marriage ended in a divorce. Further explanation regarding both rights of husband and wife will be discussed later and be divided into three portions; the rights before a marriage, during a marriage and after divorce

The right of a man/husband

1. The rights of a man/husband before a marriage:

a. Solemnization of Marriage

Under Section 8, a man may legally enter into a marriage if he is eighteen or above of age. Otherwise only the court may grant the permission.

b. Consent

A marriage is not recognized and will not be registered without the consent of the man, and besides the bride, wali or wali raja (Section 13).

c. Betrothal

A man may enter into a betrothal with his fiancée in accordance with Syariah law. He then has the right to claim reparations should the fiancée, without valid reason, refuses to continue with the wedding (Section 15).

d. Polygamy

A married man has the right to take another wife only with a written permission of a Syariah Judge. However, application for polygamy must be submitted along with 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 (Section 23).



2. The rights of a man/husband during a marriage:

a. Divorce by talaq or by order.

This Act provides a husband the right to divorce his wife by talaq 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 (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 (Section 47). Even though pronouncement of talaq is the husband right but under this Bill it could only be accomplished with the court permission (Section 45). This is to prevent talaq from being misused against women/wives.



b. Resumption of conjugal relationship or ruju’.

In one or two talaq (talaq raji’i), husband and wife may resume conjugal relations within iddah (post marital waiting period) and they can re-cohabit. 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 registrar of marriage for further actions (Section 51). During the 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.



c. Obedience

Obedience is the husband’s right for the wife to fulfill. Once a wife or ex-wife (in an iddah period) 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.



d. Disobedient (Penalty)

This 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 ringgit on the second offence and so on (Section 129).



3. The rights of a man/ husband after a marriage (talaq):

a. Guardianship of the children and their property

The father is the primary legal guardian to the children and their property. 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, the father’s father’s executor; and the father’s father’s executor’s executor on certain conditions. Provided that he is a Muslim, an adult, sane and trustworthy (Section 88).



b. Hadhanah

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

Rights of a wife/woman

1. The rights of a woman/wife before a marriage:

a. Solemnization of Marriage

Under Section 8, a woman may legally enter into a marriage if she is sixteen or above of age. If a woman below the permissible age wishes to get married, she must obtain permission from the court.



b. Consent

A marriage is not recognized and will not be registered without the consent of the woman, man, a wali or a judge (wali raja) (Section 13). Even though the Syariah law grants the right to wali mujbir like father or grandfather to give away his daughter/granddaughter to a marriage; but, according to the Act, consent from the bride must be obtained in order to prevent undesirable marital conditions.



c. Betrothal

A woman may enter into a betrothal with her fiancée in accordance with the Syariah law. She then has the right to claim reparations should the fiancée, without valid reason, refuses to continue with the wedding (Section 15).



d. Consent to Polygamy.

The Syariah law and the Act have given the right to a married man to take another wife only with a written permission of a Syariah Judge. Statutory declaration sent to the court among other details under the Act is the consent of wife (Section 23). It is the right of a wife to give her consent pertaining to the husband wishes to practice polygamy. The court will summon the applicant’s current wife to the hearing of the polygamy application and will be asked of her views with regards to the matter (Section 23 (4)). If the wife is dissatisfied after the court allows the husband polygamy request, she can make an appeal against the court decision according to Administration Enactment (Section 23 (6)).



2. The rights of a woman/wife during a marriage:



a. Mahar (Obligatory Marriage Payment) and gift.

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 two other witnesses (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)).



b. Ta’liq

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 (Section 22 (1)). The Registrar then will issue a ta’liq certificate after a fee has been settled (Section 26 (2)).



c. Maintenance (Nafkah)

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 (Section 59(1), (2) and (3)). The amount of maintenance will be assessed by the court based on the man’s capabilities and income (Section 61).



d. Divorce by talaq or by order

The 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 (Section 47). Even though the husband has the rights to divorce the wife by talaq but permission must be granted by the court (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 (Section 47 (2) dan (3)).



e. 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 (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.



f. Resumption of conjugal relationship or ruju’

In this talaq raji’i, a husband and a wife may resume conjugal relations within the period of ‘iddah (Section 51). Both parties i.e. husband and wife have equal rights either to re-cohabit or not to by mutual consent.



g. Divorce under ta’liq or stipulation (S.50)

When a marriage takes place, a married woman has the rights to pursue a ta’liq certificate made upon a marriage agreed by the husband (Section 50). If through the marriage the husband had violated the ta’liq conditions and a report has been made to the court, then a talaq comes into effect.



h. Dissolution of marriage or fasakh (S. 52)

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 months; that the husband has been sentenced to imprisonment 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 the 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 (Section 52 91).



i. Presumption of death

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 (Section 53 (1)).



j. Resume cohabitation

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 (Section 120).



k. 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 (Section 126).



l. Ill-treatment of wife.

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 (Section 127).



m. Failure to provide proper justice to wife

Any husband who fails to give proper justice to his wife can be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both (Section 128).



3. The rights of a woman/wife after a marriage

a. Mut'ah or consolatory gift

A wife who has been divorced without just cause can may apply to the court for Mut'ah. Court will order the husband to pay certain amount of money to his wife after hearing appeals from both sides (Section 56).



b. Mahar or Obligatory marriage payment etc. (not affected)

The Act has given the rights to mahar, gifts etc. to any married woman. These are not to be affected even after the dissolution of her marriage (Section 58).



c. Iddah or Post marital waiting period.

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 if the wife is adulterous or remarries (Section 65 (1) (2)).



d. Arrears of maintenance

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 (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 (Section 69 (2)).



e. Interim maintenance.

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 (Section 70).



f. Accommodation

A divorced woman is entitled to stay in the home where she used to live if the husband is not able to 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; or if the woman remarries. After any of the said periods expire, the husband may apply to the court for the return of the accommodation (Section 71 (1) (2)).



g. Hadhanah or custody of children.

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 the 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 uterine sister's daughter; the sanguine sister's daughter; the maternal aunt; the paternal aunt; the male relatives who could be their heirs as `asabah or residuaries (Section 81 (1) (2)).



h. Order for maintenance

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 (Section 132).



Jointly right of husband and wife

1. The rights of both parties after a marriage

a. Joint assets

The court will order division of any assets acquired by the spouses after the marriage dissolution. The assets will be directly divided or after the sale of any such assets. 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 (58 (1) (2)).



b. Ascription of paternity or nasab

According to fiqh, ascription of paternity of the children 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 child is given to the man whom she married. However, the man may disclaim or li’an the child before the court (Section 110).

Objective 3

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

The research had analyzed both husband’s and wife’s rights under the IFL. The findings showed that the wife benefited more from a greater range of rights than the husband. This proved that the IFL was enacted to protect spouses rights especially the women. The IFL not only conserves the women’s rights during a marriage but after its dissolution as well. For instance, a woman cannot be forced into a marriage even though wali mujbir has the authority to do so. Nonetheless, the IFL does not allow a forced marriage except under certain circumstances such both bride and groom having the same standard or sekufu. A woman may engage a judge as wali through an application to the Court if wali mujbir refuses to marry her. Siti Zalikha Md Noor (1998) explained that 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 the Syariah law, for instance; wali and groom have a good relationship with her, the future husband is of the same standard or sekufu, the future husband is able to pay mithili maintenance and the marriage itself does not bring about undesirable marital conditions (i.e. groom is too old).

It is clear that the IFL enforcement is not to discriminate any parties but rather guarantees the rights of each spouse in a marriage. This is conjunction as to what Raihanah Abdullah and Sharifah Zahrah Syed Kecik (1998) said, the amendment of IFL not merely improves women status as wives but also defends them in any domestic crisis. Based on what had been analyzed, women were granted more rights.

Alas, there were still complaints from the women groups whom felt that gender bias existed (Kamar Ainiah Kamaruzzaman, 1998). As Sulaiman Endut (1997) previously said, that most women question the effectiveness of the Religious Department, Islamic family law and the Syariah court in conducting the Islamic Bill as they regarded it to be in favor of men. If women really understand the functions of the enforcement and attempt to comprehend the Syariah law especially concerning their rights as wives, there would not be any form of discrimination against them. In reality, the Islamic Family law actually favors women over men. Zaleha Kamaruddin (1998) added that the real nemesis for women is ignorance of their own rights and responsibilities.

Therefore, discrimination of women should not be an issue since clearly they were granted more rights than men. There are, in fact, rights that were not used by women who have been maltreated by their husbands. Among the rights are listed under Section 127 and 128. It is unknown whether such cases have never been occurred or the wives were too terrified to report. Instead, cases were filed under different section such as fasakh divorce or the community itself still unaware of the existing sections (Raihanah Abdullah & Sharifah Zahrah Syed Kecik, 1998). Hence, the IFL should not be blamed or liable because of dissatisfaction or self ignorance. All the statements discussed have been supported by the researchers’ analysis through classifications of rights of spouses under the IFL. The public now is able to get a clearer and detailed explanation regarding their rights under the IFL. Previously, the terms and clauses in law are not comprehensible and difficult to refer to by laymen.

The results also showed that the amended IFL provides rights that are within the Syariah law. The amendments were criticized heavily at its early stage. Among the amendments include age allowed into marriage, registration of marriage, divorce, polygamy, divorce with permission of court and many more (Raihanah Abdullah & Sharifah Zahrah Syed Kecik, 1998). The purpose of its amendment was aimed to provide justice and equality between spouses especially women. The amendments on the IFL made because of public interest or maslahah and some do not even existed in the Syariah law but are permissible. Practically, these amendments are not against the Syariah law but because its initial purpose is to control problems and maintain the method of preventing mercilessness is a priority for the sake of goodness to the community (Siti Zalikha Md Nor, 1998).

Among the rights that have been analyzed were:

i. The minimum age to enter into marriage is regulated at 18 for men and 16 for women. But if they are younger they must obtain permission from the Court.

ii. Consent of both man and woman other than wali must be obtained.

iii. The right to practice polygamy; a man must seek permission from the court on conditions that he has to be fair, to have the ability to provide maintenance, to have valid reasons to practice polygamy, pledge not to cause any harm to future and existing wife. Meanwhile, the existing wife should give her consent or appear before the Court to give her view regarding the husband application for polygamy.

iv. The right to divorce by talaq6 means that all dissolution of marriages must obtain permission from the Court. Husband or wife who wishes to end a marriage must submit an application to the Court and go through several procedures such as from hakam up till a decision of irreconcilable marriage. Then only, will the Court grant the permission to pronounce the talaq divorce

v. Obedience (penalty)7; the husband have the right on the wife’s obedience to all his commands that are not against the Syariah law. If a husband brings such case to the Syariah court and convicted, a fine of RM100.00 for the first offence and RM 500.00 for the second or more offences will be imposed on the wife.

vi. The right to recohabit8 is the right of the wife when her husband is no longer living in the house. Therefore, if the wife brings the case to the Syariah Court, the judge may order the husband to recohabit. Negligence of such order is considered contempt of Court or the wife may make other form of claim like desertion which punishment may be imposed on the husband.

vii. Desertion of wife (penalty)9 is a form of penalty which may cause the husband to be penalized by the Court. A wife must first take the case to the Court for a trial. And if husband is found guilty, then he will be punished with a fine not exceeding RM 500.00 or sentence to prison not exceeding six months or both.

viii. The right of ill-treated wife (penalty)10 or a wife, who has been cheated of her property by the husband, can make an appeal before the court of Syariah. Therefore, if husband is convicted, then he will be punished with a fine not exceeding RM 1000.00 or sentence to prison not exceeding six months or both.

ix. The right of a wife who has not received proper justice11; the husband can be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both.

x. The right of maintenance as ordered by the Syariah court (penalty) 12 can cause any party who neglects it to be penalized. A punishment of imprisonment not exceeding one month for every month that he fails to pay for the said maintenance.

xi. The right of joint asset13 is entitled to every spouse during their marriage. It is a law based on cultural practice which is adapted by the Syariah court since it does not contradict to Syariah law.

Even though the main purpose of all legislated rights mentioned above is to protect the public interests; there are many rights that never been claimed by wives who have been treated badly by their husbands. Among others are the rights from section 127 and section 128. It is unknown whether such cases were never happened or the numbers were too small (Raihanah Abdullah & Sharifah Zahrah Syed Kecik, 1998). In the case of polygamy, right until now there is no action taken against it in Malaysia. Yet, there are several measures taken to ensure the practice of polygamy is followed with full responsibility. Some of them are requirement to obtain consent from Court14, enforcement of penalty to those who do not practice polygamy with just and rights of wives to petition for fasakh if the practice causes harm or darar syarie. All these measures are not against any Syariah law as it is necessary for the benefit of all (Siti Zalikha Md Nor, 1998).

Having identified the rights of husband and the rights of wife under IFL and the amended rights that had not been outlined in the Syariah law; the study also identified several similarities and differences in the rights of spouses. It included the right before a marriage, during a marriage and after a divorce. Among the similarities of the spouses’ rights is age (S.8). The minimum age to enter into marriage is fixed at 18 for men and 16 for women. But if they are younger; they must obtain permission from the Court. However, consent must be obtained from both man and woman other than wali (S.13). A woman may engage a judge as wali through an application to the court if wali mujbir refuses to marry her.

A couple in a betrothal has equal right (S.15). Any party has the right to claim reparations should the other party refuses to continue with the wedding (Section 15). Meanwhile, IFL has placed a very strict condition to practice polygamy. Even though the husband has the right to practice polygamy in accordance to Syariah law, IFL requires that certain conditions and procedures to be fulfilled such as the wife’s consent and the court’s view regarding the matter. The husband and wife have the mutual right to hadhanah or custody of their children and jointly own asset after marriage dissolution (S.58). Both parties have equal rights to custody of their children from a legitimate marriage. The court may decide the extent of the direct or indirect contributions made by each party during their marriage.



Meanwhile, researchers have classified the differences between the rights of a husband and the rights of a wife into several forms that are:



i. Property such as mahar and gift (S.21), maintenance (S.59), accommodation (S.71), mutaah (S.56), maintenance within iddah (S.65), arrears of maintenance (S.69), interim maintenance (S.70). These rights acted as guarantee for a man/woman during marriage or after divorce. Based on IFL, possession of property is a right granted for woman in accordance to Islamic Syariah. The rights of mahar, gift, maintenance, accommodation, maintenance during iddah, arrears of maintenance, and interim maintenance proved that IFL is unbiased or aligned with Syariah law.



ii. Both husband and wife share the same non property rights such as obedience (S. 59 (2)), hadhanah (S. 84(2), ta’liq (S. 22), guardianship of children and their property (S. 84 (2), and ruju’ (S. 51). Only the IFL of Federal Territories provides ta’liq right to women while the IFL of Perlis does not. The wife can use the 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.



iii. Divorce by talaq (S.47), khuluq (S.27), ta’liq (S.50), fasakh (S.52), presumption of death (S.53) and li’an (S.50) 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 (only practiced in Perlis).



For example, talaq is not permissible to be pronounced outside Syariah court. It is unlawful and can be fined15. It must be authorized by court in order to be legitimate.



iv. Other than the above rights, penalties such as desertion of wife (S. 126), mistreatment of wife (S. 127), denying justice to wife (S. 128), maintenance ordered by court (S.132), and recohabit (S.120). Those who violate the laws under IFL will be punished. A husband who commits offense such as desertion, maltreatment, injustice, and denial of maintenance to his wife is considered sinful. These are the rights granted by Islam to women. For that reason, the IFL imposes punishment by monetary fine and imprisonment on offenders as a lesson to married couples. Meanwhile, the wives should be obedience to their husbands on matters that are not against the Syariah law.

The study also identified that, essentially, IFL has given more rights to women. It includes rights in the form of asset, non-asset, divorce and others as discussed earlier. Furthermore, amendments have been updated in IFL so that it can be improvised for the interest of both husband and wife. Among the suggested amendment that has been proposed to a wife is the right of talaq tawfid (Raihanah Abdullah (1998); Mohd Razif Mohd Zahir (1998)). There are suggestions to split the jointly acquired assets to the existing wife, if it does not against the Syariah law, should the court grants the husband’s request for practicing polygamy. It’s more practical since it hinders properties dispute later on (Suwaid Tapah, 1998). Amendments were also made to safeguard the husband’s rights interest such as fasakh divorce for which the husband is not entitle to bear parts of claims after a divorce. Other than that, the condition to polygamy has been tightened where the husband, existing wife, future wife and her father to be present at the polygamy application hearing (Utusan Malaysia, 18 January 2006).

Conclusions

From the study, it can be concluded that the rights of spouses are being protected under the IFL. Hence, there should not be any party making discrimination allegation against the IFL since its enactment is to serve justice to the public. Such criticisms will only tarnish the Islamic Judiciary system. The amendments of Islamic Family Law (Federal Territories) (Amendment) 2005 should be supported by all. The reason for its alteration is only to improvise the existing Bill and conducted periodically to ensure rights and justices are served for the public interest. Analysis conducted showed that some of the rights provided by the Bill are not even in the Syariah law but made for the betterment of the public well being. Therefore, the rights of every married couple deserve to be served by their respective spouse as commanded by Islam.

References

Abd Jalil Borham (1998) Penubuhan mahkamah-mahkamah syariah dan bidang kuasanya di Malaysia. Dalam Ahmad Hidayat Buang (ed) Undang-undang Islam di Mahkamah mahkamah Syariah di Malaysia. Kuala Lumpur: Jabatan Syariah dan Undang-undang.

Anwarul Yaqin (2007) Legal research and writing. Kelana Jaya: Malayan Law Journal Sdn Bhd.

Harian Metro, 27 Mac 2007, Mengurus giliran berhari raya.

Kamar Ainiah Kamaruzaman (1998) Undang-undang perkahwinan dan perceraian dari aspek amalan. Dalam Ahmad Hidayat Buang (ed) Undang-undang Islam di Mahkamah mahkamah Syariah di Malaysia. Kuala Lumpur: Jabatan Syariah dan Undang-undang.

Majid Khadduri (1994) Konsep keadilan dalam Islam. (Terj) Norliza Tarmeze, Mostafa Kamal Mokhtar. Kuala Lumpur: Dewan Bahasa dan Pustaka.

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Noor Aziah Haji Mohd Awal (2003) Women and law. Dalam Roziah Omar & Azizah Hamzah (ed.) Women in Malaysia: Breaking Boundaries. Kuala Lumpur: Utusan Publications & Distributors Sdn. Bhd.

Raihanah Abdullah & Sharifah Zahrah Syed Mohammad (1998) Undang- undang kekeluargaan Islam di Mahkamah Syariah: Satu Kajian dari perspektif masyarakat. Dalam Ahmad Hidayat Buang (ed) Undang-undang Islam di Mahkamah mahkamah Syariah di Malaysia. Kuala Lumpur: Jabatan Syariah dan Undang-undang.

Sabitha Marican (2005) Kaedah penyelidikan sains sosial. Petaling Jaya: Pearson Prentice Hall.

Sabitha Marican (2006) Penyelidikan sains sosial: Pendekatan pragmatik. Batu Caves: Edusystem Sdn. Bhd.

Siti Zalikha Md Nor (1998) Undang-undang perkahwinan dan perceraian dari aspek hukum. Dalam Ahmad Hidayat Buang (ed) Undang-undang Islam di Mahkamah mahkamah Syariah di Malaysia. Kuala Lumpur: Jabatan Syariah dan Undang-undang.

Sulaiman Endut (1997) Hak wanita dari perspektif Jabatan Agama Islam. Dalam Sa’adiah Hassan & Endang

Erwani Md Dom (ed.). Martabat Wanita dan tuntutan abad ke 21. KL: Penerbit INMIN

Utusan Malaysia, 18 Januari 2006, Tiada sebab keliru.

Zaleha Kamaruddin (1998) Hak wanita di dalam Undang-Undang Keluarga Islam: Antara reformasi dan realiti. Dalam Ahmad Ibrahim (ed.). Al Ahkam Jil 6. Undang-undang keluarga dan pentadbiran harta wakaf. Kuala Lumpur: Dewan Bahasa dan Pustaka.

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1 Researcher is currently a lecturer at the College of Arts and Sciences, Northern University of Malaysia and working on his doctoral thesis (majoring in Islamic family) at the Northern University of Malaysia.

2 Researcher is currently a senior lecturer at the College of Arts and Sciences, Northern University of Malaysia

3 Faridah Dato’ Talib vs Mohd Habibullah Mahmood (1992) 2 MLJ 793.

4 Case File 1341/24/4/2000, case file 1341/26/4/2000 and case file 1341/24/5/2000. Phone interview with Syarie lawyer of the case: Mr. Nor Azmi Bin Mohd Ariff at 3.15 p.m. on 29 July 2008.

5 Maimunah Inalhage vs Abdullah Bin Hussin, Jurnal Hukum 1410/1990, Vol. VII, Part 1, p 88.

6 Section 47 Islamic Family Law (Federal Territories) 1984

7 Section 129 Islamic Family Law (Federal Territories) 1984

8 Section 120 Islamic Family Law (Federal Territories) 1984

9 Section 126 Islamic Family Law (Federal Territories) 1984

10 Section 127 Islamic Family Law (Federal Territories) 1984

11 Section 128 Islamic Family Law (Federal Territories) 1984

12 Section 132 Islamic Family Law (Federal Territories) 1984

13 Section 58 Islamic Family Law (Federal Territories) 1984

14 Section 123 Islamic Family Law (Federal Territories) 1984

15 Section 124 Islamic Family Law (Federal Territories) 1984


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