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Islamic Family Law and Justice for Muslim Women

Muslim women in Kabul. (twocentsworth/Flickr)

Muslim women in Kabul. (twocentsworth/Flickr)

This report was contributed by Sisters In Islam, Malaysia, from their Regional Workshop on Conference on Islamic Family Law and Justice for Muslim Women held in Kuala Lumpur, Malaysia in June 2001. Discussants from a variety of countries consider marriage, polygamy, divorce, financial provisions and custody under the laws of each of their nations.

Workshop Overview

Sisters in Islam organised a Regional Workshop on Islamic Family Law and Justice for Muslim Women in June 2001 in Malaysia. The workshop focused on areas of discrimination against women in the substantive provisions as well as the implementation of Islamic Family Law legislations, highlighted best practices and put forward strategies for reform. Experiences were drawn mainly from four ASEAN countries: Malaysia, Indonesia, Singapore and the Philippines. There was also input from other experiences in Egypt, Jordan, Iran, Morocco and Pakistan. About 50 activists, Syariah lawyers and policy makers from the above ASEAN countries and from Egypt, Iran, Pakistan and the USA participated in the workshop.

Some of the international participants are well known in their countries and also in the international arena for their outstanding scholarship or activism on Islam and women’s rights, and the struggle for the development of a more progressive Islam in the Muslim World, such as Dr. Amina Wadud (USA), Dr Nasaruddin Umar (Indonesia) and others. Dr Amina Wadud is an Associate Professor of Philosophy and Religious Studies, Virginia Commonwealth University and also a founding member of Sisters in Islam. She is a theologian whose book “Qur’an and Woman”, is now a standard text in the study of Islam and women’s rights in various different parts of the world. This book has been translated into Arabic, Persian, Turkish and Bahasa Indonesia. Dr Nasaruddin is a Vice Rector and Professor at the Faculty of Usuluddin (Theology), State Institute for Islamic Studies (IAIN), Jakarta. He is a well-known Islamic scholar who is actively involved in promoting the growth of a more progressive Islam in Indonesia. He is also a great supporter of women’s rights in Islam and has written a book on Religion and Gender Equity as well as numerous articles and seminars papers on issues such as Gender Bias in Religious Interpretation, Approaching God with Feminist Perspective, Gender Equity on Inheritance and Testimony, and Criticising the Established Classical Islamic Law on Women.

The workshop was opened with a welcoming speech by Zainah Anwar, Executive Director of Sisters in Islam. In her opening remarks, several important points were highlighted:

  • The injustice that so frequently occurs in the name of Islam is due to human weaknesses in understanding the true message of God.
  • The point that to question the interpretation of the Syariah Law and its implementation does not mean that we are anti-Islam or we are questioning the word of God.
  • Interpretation of the message of the Qur’an must evolve with changing times and circumstances and must include the voices and experiences of the ummah, men and women.

She also hoped that the workshop would be of acquiring and developing human knowledge to enable the participants to understand and give real meaning to the eternal principles of justice and equality that are enjoined in the Qur’an, in the light of today’s changing times and circumstances and in particular, the changing realities of women’s lives in the new millennium.

After the opening speech, the workshop proceeded with the country presentations by the presenters from Malaysia, Indonesia, Singapore and the Philippines on the topic of Marriage, followed by the topics of Polygamy, Divorce, Financial Provisions and finally on the topic of Custody/Guardianship/Child Maintenance. This was followed by a special presentation on Procedure and Case Management highlighting the best practices in the Singapore experience. The final sessions focused on strategies for reform through theology and fiqh by Amina Wadud from USA, Ziba Mir-Hosseini from Iran and Amira Sonbol from Egypt.

Marriage

Norma A. Maruhom, the Philippines
Several issues were raised under the broad heading of ‘Essential Requisites of Marriage’ and the subsequent ‘Rights and Obligations between Spouses.’ On the legal capacity to contract marriage, problems arise when the woman’s wali refuses to give his consent. It is proposed that the consent of the woman, whether virgin, widowed or divorced should be sought first, and in case of conflict with the wali, the woman’s consent should prevail. To circumvent the inability of a child bride to annul her marriageif the wali is her father or paternal grandfather, it is also proposed to abolish child marriages. As for the rights and obligations during marriage, the discriminatory provisions barring wives from accepting gifts without the husbands’ consent should also apply to husbands, and both husband and wife should consult each other on either’s involvement in lawful engagement or business.

Ratna Batara Munti, Indonesia
The marriage register or ‘itsbat’, was discussed, whereby the current tradition of marriage being performed according to religious rites without being officially recorded subjects the system to abuse, especially by the men. As illustrated by the case of Mandra vs. Rina 1996, the husband promised to register his marriage but did not do so. After having had a child born as a result of the marriage, the husband conveniently claimed that the marriage was null and void. This situation naturally presents a dilemma to women, and the problem is multiplied when there are children involved. In this particular case, the court ruled in favour of the man. One proposal for reform is that the Religious Issues Office should be pro-active and go to the ground to approach couples who were married without the recording process. She also touched upon the issue of the return of half the dowry (to the man) in the case of the break-up of an un-consummated marriage. The dowry in itself is already being perceived as a symbol of the man’s ‘ownership’ of his wife, and the woman who has to return half the dowry is dealt a double blow, as the ensuing divorce often arises from circumstances involving victimization of the woman.

Nik Noriani Nik Badlishah, Malaysia
According to the Federal Constitution of Malaysia, Islamic family law is not under federal jurisdiction but under the jurisdiction of each State. Therefore, there are 14 separate jurisdictions (including the federal territories) on Islamic family law in Malaysia. She expressed particular concern over the state of Kelantan’s enactment, which contains provisions different from that of the other states. While most states require the consent of the woman and do not allow marriages by compulsion, the Kelantan enactment allows a virgin’s marriage to be solemnized without her consent, when the wali is her father or paternal grandfather. This particular juristic view is most difficult to justify in present day conditions, especially given the actual circumstances of Kelantanese women who in general are economically independent and actively engaged in business. It can be seen from the actual realities that the women are relatively self-reliant and certainly quite aware of their own interests. Another issue that was touched upon is the issue of marriage contracts, where women’s groups in Malaysia have proposed the inclusion and registration of optional terms in individual marriage contracts, e.g. stipulation against the husband taking another wife during the subsistence of the marriage.

Halijah Mohammad, Singapore
The Singapore state is secular, marriages and divorces are covered both by Civil and Syariah courts. Of particular interest are ‘mixed marriage’ and ‘double marriage’ cases. A ‘mixed marriage’ occurs when a couple from different religious backgrounds marry each other. The problem arises when the Muslim party e.g. the husband dies, leaving the non-Muslim widow and children in a quandary as regards inheritance. A variant of this is the ‘double marriage’ i.e. when a mixed couple were first married under the civil law and later, upon one partner’s conversion to Islam, went through another marriage ceremony, this time according to Syariah law. Subsequently, if the marriage breaks down, the couple would have to go through the divorce process twice, both at the Syariah and the Civil courts.