Concerns<\/em><\/strong><\/p>\nClearly, the amendments taken together are a retrogressive step as they have in effect negated the efforts of the Law Reform Committee which had carefully drafted the Islamic Family Law with the objective, inter alia, of preventing unilateral declarations of divorce by irresponsible husbands. With these amendments we are back where we started as they will have the effect of encouraging more men to divorce their wives outside the court and thus enable them to avoid their responsibilities towards their wives and children.<\/p>\n
This is already reflected in the 1996 research conducted by the Women’s Crisis Centre in Penang (WCC) which found that the number of men who, in contravention of the law, pronounced the talaq outside the court, is more than three times those who applied for divorce through the courts.<\/p>\n
Recommendations<\/em><\/strong><\/p>\n\n- The amended section 55 should be repealed. The original section 55 should be reinstated with an amendment in the form of a proviso which states that if no final order or orders have been made for the custody and maintenance of the dependent children, for the maintenance and accommodation of the divorced wife and for the payment of muta\u2019ah<\/em> to her after the lapse of three months from the date of divorce, the Chief Registrar shall register the divorce if he is satisfied that an interim order or orders have been made for the above ancillary relief. This is in compliance with Hukum Syarak<\/em> and is also fairer to the divorced wife and children of the marriage.<\/li>\n
- The new section 55A should also provide for the court, in approving the unpermitted divorce, to make orders to ensure that the divorced wife’s financial rights are secured. The court order in this case should cover the divorced wife’s right to iddah<\/em> maintenance, mutaah<\/em> and harta sepencarian<\/em>. We strongly feel that there should be a presumption in the law that a husband who pronounces talaq<\/em> without the permission of the court has divorced his wife without just cause and she should therefore be automatically entitled to<\/li>\n<\/ol>\n
\n- The penalty provision in section 124 of the Act should be amended to provide for an increased penalty in the form of a minimum fine of RM1,000 and a mandatory custodial sentence of not less than four weeks. The maximum fine should be increased to RM5,000 and the maximum sentence should be extended from the present six months to one year.<\/li>\n<\/ul>\n
Few other provisions in law are violated with such impunity and regularity as the divorce provisions under the Islamic Family Law Statutes. We believe that the proposed fine and custodial sentence, if enforced strictly, will help to deter errant husbands from taking advantage of the loopholes in the law. Moreover, it will also help to inculcate respect for Islamic Family Law among Muslims.<\/p>\n
\n- IDDAH MAINTENANCE<\/strong><\/li>\n<\/ol>\n
Amendment<\/em><\/strong><\/p>\nSection 65(1) of the Act has been amended to allow for the termination of the right of iddah<\/em> maintenance on the wife being nusyuz. <\/em><\/p>\nConcerns<\/strong><\/p>\nThis amendment has led to various unjust allegations of nusyuz<\/em> being made against a woman during her iddah<\/em> period. We have received reports of many cases of wives who have been accused of nusyuz<\/em> even when they have left the marital home with their husbands’ permission or because of fear of physical violence or mental abuse.<\/p>\nA provision intended as a right and privilege of a wife to occupy the marital home during the iddah<\/em> period has been misused to compel the wife to remain there as an obligatory duty. We find that many husbands misuse this provision to evade their responsibility to maintain their wives during the iddah<\/em> period.<\/p>\nHowever, when such cases go to court, the women’s evidence is often disregarded even when the husbands fail to appear to prove their allegation of nusyuz.<\/em> In one case cited in the WCC research, the judge declared that the wife was nusyuz<\/em> because she had left the marital home during her iddah<\/em> period. The plaintiff claimed that she had left with her husband’s permission. Even though the husband was not in court to confirm or deny this, the judge declared that the woman was nusyuz<\/em> and therefore was not entitled to nafkah iddah<\/em>. No reasons for the decision were given.<\/p>\nRecommendations<\/em><\/strong><\/p>\n\n- The reference to the wife being nusyuz<\/em> under Section 65 (1) should be repealed. Such a provision is contrary to the letter and spirit of the Qur\u2019an. Surah<\/em> At-Talaq<\/em> 65:1 states “Do not expel them (wives) from their homes (during the iddah<\/em> period).” In his commentary on this ayat<\/em>, Muhammad Assad emphasised<\/em> that this injunction does not imply a prohibition of a divorced woman leaving her home of her own free will. Ayat<\/em> 6 of the same Surah<\/em> further states<\/li>\n<\/ul>\n
“Let the women (who are undergoing a waiting period) live in the same manner as you live yourselves in accordance with your means; and do not harass them with a view to making their lives a misery.”<\/p>\n
\n- In the meantime where an allegation of nusyuz<\/em> has been made against the wife by the husband, it must be proven in court with strict corroborative evidence.<\/li>\n<\/ul>\n
\n- TERMINATION OF RIGHT TO ACCOMMODATION<\/strong><\/li>\n<\/ol>\n
Amendment<\/em><\/strong><\/p>\nSection 71(2) of the Act has been amended to introduce a new paragraph (d) which mentions a woman’s “open lewdness” (fahishah) as a new ground for terminating her right to accommodation.<\/p>\n
Concerns<\/em><\/strong><\/p>\nAs with the amendment to section 65(1), this likewise might encourage false<\/p>\n
allegations of lewdness to be made against a woman.<\/p>\n
Recommendations<\/em><\/strong><\/p>\nTo avoid the possibility of false allegations of lewdness being made against a woman, the burden of proof should rest on the husband and the court should make a finding only upon being satisfied that the allegation has been proven beyond reasonable doubt.<\/p>\n
PART II<\/h2>\n
ADDITIONAL RECOMMENDATIONS CONCERNING THE ACTIENACTMENTS<\/strong><\/p>\n\n- CONCILIATION\/ARBITRATION<\/strong><\/li>\n<\/ol>\n
\n- We believe that the present requirement of appointing a conciliatory committee under section 47(5) and Hakam<\/em> under section 48(1) of the Act pending a divorce in addition to the compulsory counseling conducted by the Religious Department unnecessarily prolongs and complicates the process of applying for a divorce. This results in hardship and a great deal of inconvenience to the parties.<\/li>\n<\/ul>\n
To avoid a situation where the parties have to undergo several overlapping processes of conciliation, we propose:<\/p>\n
\n- the court should be given the power solely of appointing the two Hakam <\/em>under section 48(1) to arbitrate between the husband and wife. The two Hakam <\/em>should also be given the authority at the outset to order a divorce if they are unable to effect reconciliation.<\/li>\n
- With respect to counseling or arbitration proceedings pending an application for divorce either by a husband or a wife, we suggest that a definite time frame be set in order to avoid causing unnecessary hardship and delays to the parties.<\/li>\n<\/ul>\n
We propose:<\/p>\n
\n- a time frame of three months for counseling at the Religious Department level. The failure of the husband to attend the counseling sessions should not delay the wife’s right to file her application for divorce.<\/li>\n
- a time frame of six months within which the two Hakam<\/em> referred to in section 48, should attempt to reconcile the parties. If arbitration fails within the period of six months, the court should proceed to record the pronouncement of one talaq <\/em>by using its powers under section 48 of the Act.<\/li>\n
- As a consequential amendment, we propose:<\/li>\n
- the relevant sub-sections of section 47 pertaining to the conciliation committee be repealed.<\/li>\n<\/ul>\n
\n- DIVORCE ORDER IN DEFAULT OF APPEARANCE<\/strong><\/li>\n<\/ol>\n
Many women have had to endure inordinate and unjust delays often over several years, in their application for divorce that result in a situation of “gantung tak bertali<\/em>” This is largely due to the husband’s failure to appear in court in spite of repeated summons.<\/p>\nIn the case of Faridah vs Habibullah<\/strong>, it took six long years before the plaintiff was finally granted a divorce after she applied for cerai taklik<\/em> in 1989 on the grounds that her husband had abused her. The Selangor Syariah Court rejected her application for divorce because it accepted her husband’s allegation that she was nusyuz <\/em>as justification for the abuse. It took a declaration of apostasy, a failed attempt to have her case heard in the civil court, followed by intervention by the Syariah <\/em>court of another jurisdiction before divorce was finally granted in 1995. The case was transferred to the Johor Bahru Syariah<\/em> Court which granted the plaintiff cerai fasakh<\/em> when the husband failed to appear after three hearing dates were set.<\/p>\nWe propose:<\/p>\n
(i) a new provision to make it mandatory for the court to make an order in default of appearance for the dissolution of the marriage. This can be done by using the procedure prescribed in the above mentioned section 48 in the event that the husband is absent for a maximum of three occasions within a maximum time<\/p>\n
frame of six months.<\/p>\n
\n- CERAI TAKLIK<\/strong><\/li>\n<\/ol>\n
Even though the law provides that a married woman is entitled to a divorce if her husband has breached any of the terms of the taklik certificate, in practice many women face numerous obstacles in obtaining such a divorce. For example in cases of wife abuse, the court has often rejected medical and police reports of violence, demanding instead the evidence of eye witnesses. In cases of abandonment, the court often goes to extraordinary lengths to trace the whereabouts of the husband instead of relying on the evidence of witnesses regarding the alleged abandonment. In cases of non-maintenance, whilst the taklik<\/em> agreement provides that the wife is entitled to a divorce upon the non-payment of maintenance after a minimum period of four months, the court is often reluctant to grant a divorce as provided for under section 50 of the Act. Even when the husband has failed to maintain the wife for years.<\/p>\nIn case mal<\/em> No. 254\/96 cited in the WCC research, the plaintiff who had applied for cerai taklik<\/em> on the grounds that her husband had abused her and had not provided her with maintenance. In addition to being a drug addict who had been imprisoned, the judge denied her the divorce and ordered her to return to her husband and to be obedient to him! This, at a hearing where the husband did not even bother to make an appearance. What was the basis of the judge’s decision is anyone’s guess.<\/p>\nWe propose:<\/p>\n
\n- a provision be added to the Act whereby the court should accept corroborative documentary evidence such as police and medical reports.<\/li>\n
- in cases of abandonment, the court should advertise the taklik application and if within three months the husband does not appear the divorce should be granted.<\/li>\n
- in cases of non-maintenance, if the wife can furnish two witnesses, either male or female to testify that she has not been maintained for the period stipulated in the taklik<\/em> agreement, the court should grant her the divorce.<\/li>\n<\/ul>\n
\n- TAKLIK AGREEMENT<\/strong><\/li>\n<\/ol>\n
A standard taklik<\/em> agreement should be adopted by all states. The current taklik<\/em> agreement varies from state to state. Perlis<\/em> does not even have a taklik<\/em> agreement.<\/p>\nWe propose:<\/p>\n
\n- a standard taklik<\/em> agreement be adopted by all states which should include the following grounds for cerai taklik<\/em>.<\/li>\n
- non-maintenance for four months or<\/li>\n
- abandonment for six months or<\/li>\n
- any action that causes darar syarie<\/em> to the wife or<\/li>\n
- any other grounds that the parties agree to, including an option for cerai taklik<\/em> if the husband takes another wife.<\/li>\n
- the lafaz taklik<\/em> should be made by the husband in the presence of the wife.<\/li>\n<\/ul>\n
\n- MUTA’AH<\/strong><\/li>\n<\/ol>\n
Besides the right to maintenance during marriage and to iddah<\/em> maintenance, the right to muta\u2019ah<\/em> should also be emphasised. We are of the view that the description of muta’ah<\/em> as a “consolatory gift” (section 56) is misleading as it gives the impression that it is merely a voluntary payment made to a divorced woman by her former husband. According to the Shafi’i school, muta\u2019ah<\/em> is an obligatory compensatory payment due to every woman who is divorced without just and sufficient grounds.<\/p>\nWe propose:<\/p>\n
\n- the Act be amended to provide detailed guidelines on ascertaining the reasonable amount of muta\u2019ah<\/em> to be paid in each case depending on the circumstances of the parties. The factors to be taken into account should include the income and financial circumstances of the parties, the duration of the marriage and the circumstances of the divorce. For instance, the Egyptian Act No. 100\/1985 provides that a wife who is divorced without cause shall be entitled over and above her iddah<\/em> maintenance to a muta\u2019ah<\/em> of not less than the maintenance of two years with due consideration given to the condition of the husband’s affluence or destitution, the circumstances of the divorce and the duration of the marriage. The husband may be allowed to pay the muta\u2019ah<\/em> by instaliments.<\/li>\n<\/ul>\n
\n- NUSYUZ<\/strong><\/li>\n<\/ol>\n
In Islamic jurisprudence, nusyuz<\/em> pertains to the conduct of both spouses, and not just the wife. The Qur\u2019an itself talks about nusyuz<\/em> by the husband (4:128) and nusyuz<\/em> by the wife (4:34). Syed Qutb in his book In the Shade of the Qur’an defined nusyuz<\/em> as “disruption of marital harmony by either spouse.”<\/p>\nSection 59(2), however, defines nusyuz<\/em> as a situation when a wife “unreasonably refuses to obey the lawful wishes or commands of her husband.”<\/p>\nWe propose:<\/p>\n
(i) the term nusyuz<\/em> itself be re-examined and re-defined as disruption of marital<\/p>\nharmony by either spouse.<\/p>\n
(ii) a new provision be added to the Act to make it an offence for the husband to commit nusyuz which is defined under Hukum Syarak as “failure to provide the wife with adequate maintenance, clothing, place of abode and her entitlements according to Hukum Syarak”. A penalty consisting of a fine not exceeding one<\/p>\n
thousand ringgit or imprisonment not exceeding six months or both such fine and imprisonment should also be provided.<\/p>\n
PART III<\/h2>\n
RECOMMENDATIONS CONCERNING PROCEDURAL AND ADMINISTRATIVE REFORM<\/strong><\/p>\n\n- SYARIAH CIVIL PROCEDURE CODE <\/strong><\/li>\n<\/ol>\n
One of the weaknesses in the administration of the Islamic judicial system is the<\/p>\n
absence of a comprehensive legislation regulating the practice and procedure in all matrimonial proceedings in the Syariah courts. We therefore propose the enactment of a comprehensive civil procedure code on Syariah which should also include powers of execution and enforcement of Syariah court judgments. The Selangor Civil Procedure Code Enactment should be used as a model. Specific training of Syariah judges in this area should also be made compulsory.<\/p>\n
\n- SYSTEM OF BINDING PRECEDENT <\/strong><\/li>\n<\/ol>\n
We propose that the Syariah court adopt the system of binding precedent similar to that practised by the civil courts. This would ensure that the Syariah courts of first instance would be bound by the decisions of the Syariah Court of Appeal. The decisions of the Syariah Appeal Court could be equated to a f@twa normally issued by the Islamic Affairs Council, except that the Appeal Court would rule only on matters concerning Islamic Family Law. This will avoid the tendency for judges to give widely disparate decisions in cases involving similar facts, or to give decisions influenced by personal prejudices.<\/p>\n
\n- FEDERAL SYARIAH COURT OF APPEAL <\/strong><\/li>\n<\/ol>\n
We welcome the recent announcement by the government regarding the establishment of a Federal Syariah Judicial Department. We would also urge the government to establish, at the same time, a Federal Syariah Court of Appeal. In the interim we urge all states that have not done so to appoint the Syariah Appeals Committee in their respective states. There is currently a considerable backlog of appeal cases in some states because of the State government’s failure to appoint the Syariah Appeals Committee. As it stands now only the Federal Territory Appeals Committee is functioning.<\/p>\n
\n- FEDERAL SYARIAH JUDICIAL SYSTEM <\/strong><\/li>\n<\/ol>\n
The present system of separate Syariah courts in different states should be replaced by a Federal Syariah Judicial system. The Syariah Judiciary must be upgraded to be at par with the Federal Civil Judicial system. The establishment of a single Federal Syariah Judiciary administering one set of Islamic Family Laws will help to eliminate the problems which are discussed in this Memorandum such as difficulty of enforcement of court orders and men running to other states to take second wives to avoid the stricter polygamy provisions in their own states.<\/p>\n
PART IV<\/h2>\n
GENERAL RECOMMENDATIONS<\/strong><\/p>\n <\/p>\n
\n- LACK OF UNIFORM LAW <\/strong><\/li>\n<\/ol>\n
We are concerned at the lack of uniformity even of the reformed Islamic Family Law currently in force among the various States of the Federation. The divergence between States is most glaring particularly in respect of the polygamy and divorce provisions. For example, Perak, Kelantan and Kedah provide a maximum of four to five grounds for fasakh<\/em> divorce whilst the other States provide 12 grounds. In the case of Kedah, wife abuse and desertion are not recognised as grounds for fasakh<\/em> divorce.<\/p>\nThe differences in the law have enabled errant husbands to circumvent the law for their own advantage as in the polygamy case of Aishah Abdul Rauf vs Wan Mohd Yusof Wan Othman<\/strong>. Irresponsible husbands have also been able to evade paying maintenance to their wives and children by moving to another jurisdiction. This is because an order issued by the Syariah court of one state cannot be enforced in another state.<\/p>\nWe propose:<\/p>\n