Among His signs is (the fact) that He has created spouses for you among yourselves so that you may dwell in tranquillity with them, and He has planted love and mercy between you; In that are signs for people who reflect. (Chapter 30, The Romans, The Byzantines : Verse 21. Translation of the Quran by Yusuf Ali)

Santa Claus in the guise of the Parliament, came to town last week and gave us all a whopper of a Christmas gift: the amended Bill of the Islamic Family Law.

I can only suppose that the silence among women and men is because of the following reasons: everyone's away on holiday; we're resigned to the fact that we can't change anything, and apathetic, or that we're too stunned to say anything else.

The newspapers headlined the Bill, and media personalities such as Marina Mahathir, Rose Ismail, the former editor in chief of NST and Wahti Mahidin of Sunday Mail questioned the Bill: how could you pass the Bill and then amend it?

What I find most disconcerting is the relative silence in newsgroups. Issues still hotly debated are MAS, APs, nude ear squats and corruption. While these are pertinent matters, surely something that affects the social and economic fabric of Malaysia matters? MGG Pillai's SangKancil began a thread, and one of the members questioned why, "... The interesting thing in this issue is that the Muslim women journalists who should speak out are caught not doing their work. This is an issue central to their interests and they have to suffer the consequences themselves." In the ProWaris mailing list, a few members have begun clamouring for facts, justice and clarification, but there's hardly a cheep anywhere else, unless of course, I've been lurking in the wrong e-groups.

Marriage 101

Let's get down to basics first: many (including non-Muslims) have asked what the financial rights of a Muslim woman in a marriage are.

In Islam, a woman's property is regarded as exclusively her own, while her husband is obliged to maintain her his wife- and children. Now, any financial provisions made by the husband for daily expenses of the family, is not to be considered as an economic contribution towards assets by the sole efforts of the wife.

Harta sepencarian is based on Malay customary law that is found in accordance with Syariah principles, and the traditional view was that a wife may claim one-third of the properties acquired by the husband during the marriage, as acknowledgement of her support in raising a family.

In fact, what is being stipulated in the amended Islamic Family Law bill is a throwback to British rule, for in mid-19th century, under the English law at the time, joint earnings were the property of the husband but it was the Chief Kadhi of Kedah that directed other kadhis to uphold the teachings of Islam, and be fair in the handling of property division so that women and their children were taken care of, in the event of divorce or death of a spouse. (Mahani Musa, "Malay Women's Involvement in Land Ownership, the Accumulation of Wealth and Indebtedness in Kedah", JMBRAS, Vol. LXXVII, Part 1, 2004, page 3)

Ibn Qudaamah (may Allaah have mercy on him) said in his book Al-Mughni:

"'If he married her on the condition that he should not make her move from her house or her city, then this condition is valid, because it was reported that the Prophet(PBUH) said: 'The most deserving of conditions to be fulfilled are those by means of which sexual intercourse becomes permissible for you.' If he married her on the condition that he will not marry another wife, then she has the right to leave him if he does take another wife.' In conclusion, then, the conditions of the marriage contract are divided into three types, one of which must be adhered to, which is of benefit to the wife, such as her being able to stipulate that he cannot make her move from her house or city, or travel with him, or take another wife or a concubine. He has to adhere to these conditions, and if he does not, then she has the right to annul the marriage." (Al-Mughni by Ibn Qudaamah, part 7, Kitaab al-Nikaah)

What many women don't know is that they have a right to draft a marriage contract, i.e. a pre-nuptial agreement. The agreement must also comply with the laws of the country or state as it seems that Family Law differs slightly from state to state (as distinct from the Islamic Law of the Shar'iah) in which it is drawn up and signed. The soon-to-be wed may argue that such an agreement will dampen the ardour and trust between the couple, but when trouble hits the fan, you'll be thanking your lucky stars you drafted a contract. It may sound mercenary, but marriage is a business. It all boils down to money.

Divorce 101

If you fear a breach between a married couple appoint (two) arbiters, one from among his people, and the other from among her people; if they both wish for peace, Allah will cause their reconciliation: For Allah has full knowledge and is acquainted will all things. (Chapter 4, An Nisa, The Women, Verse 35)

There are four main types of divorce in Islam: talaq, khul, ta'liq and fasakh. Provisions for divorce under the Islamic Family Law Act 1984 are contained in sections 47 (talaq), 49 (khul), 50 (ta'liq) and 52 (fasakh). Elaboration of the types as follows:

a. A talaq is a divorce pronounced by the husband, and section 47 requires an application for talaq to be made to the court, and if the court is satisfied that the marriage has irretrievably broken down, the court shall advise the husband to pronounce one talaq before the court. Mut'ah compensation is made to the innocent wife during the iddah period. It has been argued that this compensation should be extended to the former wife until she remarries, but this is still subject to debate.

b. A khul (divorce by redemption) is a divorce at the desire of the wife when she has no legal ground of complaint against the husband, in which case the court may assess the reasonable payment of compensation to be made to the husband.

c. A ta'liq is a divorce obtained by the wife when the husband has breached a stipulation prescribed in their marriage agreement.

d. A fasakh is a divorce that may be obtained by the wife upon one of the grounds provided for under the law, including the grounds of the husband's desertion, non-maintenance, imprisonment, impotence, insanity, infectious physical disease, or cruelty (either physical or mental cruelty). The grounds for fasakh under section 52 includes cruelty since it has adopted the Maliki school's grounds for dissolution of marriage through fasakh rather than the restrictive grounds of the majority of the Shafi'i school (which limited fasakh to the husband's inability to provide maintenance, impotence, insanity and infectious physical disease).

Nik Noriani Nik Badli Shah also wrote in her paper 'Marriage and Divorce Under The Islamic Family Law Act 1984 In Relation To Muslim Women's Rights':

"As the period of maintenance for a divorced wife is for a very limited period i.e. her iddah period which is usually calculated at three months and ten days (unless she is pregnant by the husband in which case the iddah period is for the duration of her pregnancy), her other financial rights are important. Section 56 of the Islamic Family Law Act provides for the payment of mut'ah as compensation to a woman divorced without just cause."

"For divorced women, mutaah (should be provided) on a reasonable (scale), this is a duty on the righteous. (Chapter 2, Surah al Baqarah, The Cow, Verse 241)."

"Mutaah is usually in the form of a lump sum payment which may be payable in instalments. However, in the case of a khul divorce, the payment of compensation is made to the man. In other words, when a husband divorces his innocent wife, he must pay compensation to her, and when a woman seeks a divorce against an innocent husband, she should pay compensation to him."

"(The Law Reform Act provides for the payment of maintenance to a former wife under section 77(1)(b), and for the payment of maintenance to a former husband when he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health under section 77(2). Section 80 provides for the payment of a capital sum in settlement of all future claims to maintenance.)"

What would be the actual or practical effect on the above provisions when the Bill is gazetted?

On the ground - what people are saying

This bill will further encourage a new culture of materialism and mistrust. If you thought that some women married for money, realize that there are some men too that marry for status. You may disagree, but there are families that encourage their sons to marry up, to gain wealth and social cachet.

Will the reverts that want to marry us, do so out of love, or for the little that we have? For this bill applies to them too; once a man reverts to Islam, whatever race he is, all Islamic jurisdiction applies to him. Marry a Malay girl and take off with her assets, and while you're at it, marry The Other Woman, and reduce the first wife to ruin. Instead of molding the perfect Brother, we corrupt him.

As it is, we women have to live in fear of predatory women. With this bill, future second, third and fourth wives and our husbands will destroy whatever we built.

When a woman becomes a divorcee or (and) single mother, society views her in contempt. She is a whore. She is trouble. Stay away from her for she may steal your husband and family, even when you know she has no desire to do so. This bill will only compound her burden, which is already heavy.

You will also increase the number of single women that do not view marriage as an option. Some may turn to zina (premarital sex), for really, why should they marry when in the end they lose out? I forget, women don't need men for sex these days. We have personal appliances.

This bill gets approved, and you may have another storm in your teh tarik: more Unbelievers will be created of former Believers. How do you expect Muslim women to have faith when the powers that be make a mockery out of Islam, and do not protect their rights?

You have elevated your cabaret girls and mistresses to positions we once held with love and trust, and you make lust and greed your religion.

The Quran and Hadith have cleared stated what is halal and haram (right and wrong), and yet there is a need to streamline all states' administration of Syariah law. Why, when all is clear? One does not need to re-invent the wheel. Are we then separate nations in one country? Aren't we all the same: Muslims?

Legacy

True, we only know what we have read in the papers. There is more to this judiciary drama.

Fathers. Sons. Uncles. Brothers.

Mothers. Sisters. Daughters. Friends.

Leave a legacy that you can be proud of. We're not talking about your wealth and cultural inheritance. Your legacy is that you stood up for wives, your daughters, nieces, sisters and granddaughters on this matter. Surely this is a heritage to be proud of.


Notes:

1. Mahani Musa, "Malay Women's Involvement in Land Ownership, the Accumulation of Wealth and Indebtedness in Kedah", JMBRAS, Vol. LXXVII, Part 1, 2004, page 3

2. Al-Mughni by Ibn Qudaamah, part 7, Kitaab al-Nikaah

3. Nik Noriani Nik Badli Shah,"Marriage and Divorce Under The Islamic Family Law Act 1984 In Relation To Muslim Women's Rights"

Coming soon: Menara Gading IFL Episode Two: How to get married, a divorce and survive to tell the tale

DINA ZAMAN lives in KL with her family. She wishes everyone Happy New Year, don't drink and drive, don't get caught in disco raids, and don't go to the beach. May 2006 bring all you joy, health and wealth.