Malaysia: Family law bill unjust to Malaysian Muslim women

The five clauses of the Bill that were objected to were:

1. Making polygamy easier by amending the existing condition of “just and necessary” to “just or necessary”.
2. Increasing the husband’s power to divorce by extending fasakh - judicial order for dissolution of marriage - to the husband as well. The provision for fasakh previously granted women 12 grounds for divorce. The amendment to this is discriminatory because the husband still retains his unilateral right to divorce (talak) anywhere, anytime without reason, and even through sms.
3. Enabling husbands to prevent the disposition of property by a wife or former wife, in order to protect the husband or former husband’s financial claims on the woman’s property. This amendment, already adopted in Johor state, has led to our first case of a husband obtaining a court order to freeze the bank accounts of his wife in order to claim matrimonial property.
4. Removing the husband’s responsibility of maintenance in cases of polygamy or divorce. A new section forces the wife of her polygamous husband to choose, as alternatives, either to apply for order of maintenance or to apply for order of division on joint matrimonial property (harta sepencarian).
5. Enabling the husband to claim harta sepencarian from his wife or existing wives, in cases of polygamy or divorce.

Despite this, Minister in the Prime Minister’s Department, Abdullah Md Zin, has declared the Bill “perfect” and “without comparison among all countries in the world”. (Berita Harian, Wednesday, 28 December 2005.)

The amended Bill: Fantasy vs. Reality

A cursory glance will demonstrate that the Minister’s claim is a fallacy. If we were to benchmark against best practices in terms of gender equality, we will see some glaring contradictions between laws in Malaysia and laws in the rest of the Muslim world, for example:

In the case of polygamy, Tunisia bans it on the understanding of Surah An-Nisa, Verse 129, that no husband can treat their wives equally.

Regarding rights to divorce, in Bangladesh and Pakistan, wives can instate an optional clause in their taqliq (marriage contracts) to claim talak tafweed (where the right to divorce is given to the wife without losing her rights to guardianship nor property).

Regarding an overall reframing of Muslim personal status laws, Morocco has produced an amended Moudawana that has been hailed as one of the most progressive Muslim family law codes in the world, in terms of securing gender equality and justice.

In reality, the Islamic Family Law Bill was amended in 1984, and these amendments were a good step towards securing Muslim women’s rights within marriage at that time. However, a series of amendments in 1994 rolled back several of these rights. Muslim women have since suffered greatly, whether due to biases in the Shari’ah judicial process or gender bias in the substance of the law itself. Furthermore, Islamic laws fall under the jurisdiction of the individual states in the federation, and hence these laws were not streamlined for a long time. This latest series of amendments is ostensibly meant to streamline the different versions of Malaysia’s Islamic family laws to ensure more effective application, but has instead exacerbated the vulnerability of Muslim women in marriage.