Husbands May Misuse Amendments to Islamic Family Law Bill, Federal Territories 2005

Sisters in Islam welcomes the proposed amendments to the Islamic Family Law Bill tabled in Parliament that will enable the first wife to claim her share of harta sepencarian (matrimonial property) upon her husband’s polygamy.

Another amendment requiring the man, his existing wife, his proposed wife-to-be and her guardian to appear before the court further protects women because it allows the judge to determine the ability of the man to be just.

These amendments were proposed by Sisters in Islam in a memorandum to the Government in 1996.

However, these two positive amendments and other amendments contain loopholes and weaknesses that are open to abuse and will further discriminate against women. Our concerns are as follows:

Section 23(9)(b): The gender neutral language used in this amendment masks existing inequalities between men and women. While it enables a wife to claim her share of harta sepencarian, it also enables a husband to claim from his wife or existing wives.
This is open to abuse by irresponsible husbands. In practice, the amendment could enable a husband to force the sale of the matrimonial home or to claim that property given as gifts to the wife to be harta sepencarian in order to support his subsequent dependents. This will cause injustice to the first wife and children.

Section 23(3) and 23(4)(a): The existing condition of “just and necessary” under section 23 of the IFL Act, 1984, is amended to “just or necessary”. This means the husband needs only to prove in court that the intended polygamous marriage is necessary, but not prove that it is also just. This relaxes the strict conditions that husbands have to fulfil to justify polygamy.

Section 23(9): This new section forces the wife of polygamous husband to choose, as alternatives, either to apply for order of maintenance or to apply for order of division on harta sepencarian. This is unjust and has no basis in Islamic law as it is a mandatory obligation upon the husband to maintain his wife. The additional right for the wife to claim a division on harta sepencarian is to protect the interest of the existing wife and children in a polygamous marriage. Therefore the wife should not be asked to choose one or the other form of financial security. She is entitled to both under Islamic law.

Section 52 (1): Fasakh – judicial order for dissolution of marriage – which grants women 12 grounds for divorce under the IFL Act, 1984, is now extended to the husband as well. This is discriminatory when the husband still retains his unilateral right to divorce anywhere, anytime without reason, and even through sms. Moreover, the husband’s ability to obtain fasakh divorce enables him to escape paying any form of compensation to his divorced wife.

Section 107A: This new section now enables a husband to obtain a court injunction 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 is grossly unjust when traditional Islamic law provides that the husband has no right on his wife’s property while the wife has a right to his property for her and the children’s maintenance. This amendment already adopted in Johor 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.

This patchwork attempt at amending the Islamic Family Law to deal with changing circumstances has benefited men more than women:
through the use of selective gender neutral language;
by extending traditional rights given to women under Islamic Law to men, but not extending traditional rights given to men, to women as well to reflect changing roles and circumstances of men and women today;
by choosing minority juristic opinion that discriminates against women as a source of law (for e.g. men’s right to fasakh divorce), but not choosing minority juristic opinion that benefits women to amend the law (for e.g. by granting the wife isma’ or talaq tafwid (delegated divorce), where the husband delegates to his wife a general right to dissolve the marriage in the same manner as he may dissolve it through talaq – juristic opinion based on Surah al-Ahzab, 33:28-29).

This Bill, on the whole, constitutes an erosion of the rights already granted to Muslim women under the Islamic Family Law Act, 1984. If the intent of the Government is to amend the Islamic Family Law to reflect changing times and circumstances, then a thorough review of this law is needed based on the framework of justice and equality to benefit men, women, children and the stability of the family institution in Muslim communities.

This must be done in consultation with women’s groups and in public hearings with Malaysian citizens. In the meantime, should this Bill still be adopted, Sisters in Islam proposes that these sections be reviewed and amended:
Section 23(9)(b): This amendment on claims for harta sepencarian upon a husband’s polygamous marriage be limited to entitle only the WIFE to apply for hartasepencarian from the husband;
Section 23(3) and 23(4)(a): These amendments should revert to the original “just and necessary”.
Section 23(9): This new section should be amended to recognise the wife’s right to maintenance and harta sepencarian, without requiring her to make a choice for one or the other;
Section 52(1): This amended section extending the right to fasakh divorce to the husband should be removed;
Section 107A: This new section that enables a husband to prevent his wife from disposing her own property should be removed.

Every Court that grants the permission or orders the marriage to be registered under this section shall have the power on the application by any party to the marriage – to order the division between the parties of the marriage of any assets required by them during the marriage by their joint efforts or the sale of any such assets and the division of the proceeds of the sale.

Sisters in Islam
8 Dec 2005