MARRIAGE, MALE GUARDIANSHIP, AND RIGHTS AND DUTIES

Religious officials, like those I met with at JAKIM, IKIM, and in the sharia courts, are involved in debates with people from several other segments of society—such as liberal rights activists, Muslim feminist reformers, and nongovernmental, conservative ulama and worshipers—about the manner of implementing sharia family laws.

Malaysia, like many other Muslim societies, has enacted a sharia family law provision prohibiting the marriage of Muslims to non-Muslims. This provision standardized across the states of Malaysia states that “no [Muslim] man shall marry a non-Muslim except a Kitabiyah, and no [Muslim] woman shall marry a non-Muslim.” In the Islamic family law acts, Kitabiyah is defined as a “woman whose ancestors were from the Bani Ya‘qub [People of Ya‘qub]; or a Christian woman whose ancestors were Christians before the prophethood of the Prophet Muhammad; or a Jewess whose ancestors were Jews before the prophethood of the Prophet Isa.” Because of the difficulty of demonstrating such unbroken descent from these early communities of “People of the Book,” it is commonly understood in Malaysia, by Muslims and non-Muslims alike, that Muslim men and women can only form valid marriages with fellow Muslims.

The Sisters in Islam, non-Muslim women’s organizations, and Democratic Action Party members of Parliament have been openly critical of underage marriage in Malaysia. The Islamic family law enactments set the minimum age for marriage at eighteen for men and sixteen for women, “except where the Syariah Judge has granted his permission in writing in certain circumstances.”⁵ Several publicized cases of sharia courts allowing underage Muslim girls to marry drew strong reactions and calls for reform from several sectors.

Shariah Lower Court judge Hakim Suhaily told me he was disturbed that the minister of Women, Family, and Community Development had made this public statement without first consulting with him as the judge on the case. He explained that he was also concerned about education and the rights of children, but that judges in sharia courts must also consider other criteria before reaching a decision. In this case, he said, both sets of parents were in favor of the marriage, and the prospective husband was capable of providing financial support for his family. The young man also exhibited strong Islamic knowledge and was willing to allow his wife to continue her education in the Islamic school where she was studying. The judge was also concerned about the possibility of these youth committing a sin if they were denied permission to marry. Speaking in his office in the Federal Territories Shariah Court in Kuala Lumpur, Hakim Suhaily explained:

The Hindus, Christians, and Buddhists say...

Criticism of the sharia courts and religious officials continued to mount from both Muslim and non-Muslim segments of society, raising questions about the impact of such marriages on the well-being of children. The Fatwa Committee of the National Council for Islamic Affairs, the national body of jurists that issues authoritative sharia legal rulings (fatwa), which become law and guide the practice of judges, deliberated on the issue of child marriage. In October 2014 it issued a fatwa titled “Child Marriage: Investigation from the Aspect of Religion, Health, and Psychology,” which was later published in a gazette and on its website.⁸ Based on the findings of a Universiti Teknologi Malaysia research team, the muzakarah (consultation) of the National Fatwa Committee decided that the “marriage of children is not a new issue in Malaysia and that it can’t continue to be viewed as a healthy practice in these times”; it continued to say that “although there are laws that solemnize the marriage of children in Malaysia, it does not mean that it can be done easily without considering the interests of children that desire to be married.”⁹ They proceeded to note that many of these underage marriages are caused by emotions that cannot be controlled by the couple and the desire of families to hide the shame of children being born out of wedlock. Furthermore, these marriages have been found to bring more harm than benefit, especially for young girls who develop many physical and mental health problems.

The ulama of the National Fatwa Committee integrated the scientific findings of the research team into their application of traditional legal methodology of the Shāfi’ī school. They stress that there is no hadith that promotes or advises the marriage of children, and that the marriage of Prophet Muhammad to the underage ‘Āisha does not make such marriages obligatory or recommended. To the contrary, they state that the ijma’ (consensus) of the Companions¹⁰ during the time of the Messenger of Allah was to watch out for the maṣlaḥah (benefit, welfare) of children, which includes rulings tied to certain “Maqasid Shariah [objectives of Sharia] and Qaedah Fiqhiyyah [principles of jurisprudence] such as ‘Avoiding Harm’ (Dar’ al-Mafasid) and ‘Grasping Benefit’ (Jalb al-Masalih).” Moreover, they mention that the ulama of the Shāfi’ī school placed several conditions that have to be met before the marriage of children can be permitted. Finally, the council of jurists agreed that the criteria for approving underage marriage must be tightened and that sharia courts must carefully attend to the maṣlaḥah in the following manner before any such approval is granted: the wali hakim or judge representing the children has to fulfill the condition of justice; the marriage must not damage the life and future of the children in regard to education, psychology, health, and finances; and the couple being married must be of the same age group. This fatwa did not state any specific age limits, but it does suggest that marriages of elder men to underage girls would no longer be allowed.

Along with underage marriage, the Sisters in Islam has been critical of several other areas of family law, including marriage guardians (wali), polygamy, marital rights and duties, and domestic violence. They strive to push sharia family laws away from patriarchal gender hierarchies and toward gender equality and universal human rights. The standard sharia legal provision, Section 13 of the Islamic Family Law (Federal Territories) Act of 1984 as amended in 1992 and 1994, on the consent required for marriage, states that “a marriage should not be recognized and shall not be registered under this Act unless both parties to the marriage have consented thereto, and either the wali of the woman has consented thereto in accordance with Hukum Syara’; or the Syariah Judge...

SIS efforts to address gender discrimination and patriarchy in sharia family laws continue to come up against stiff opposition from traditional jurists. Nik Noriani (2003, 126–27) and an affiliated working group of scholars recommended that “responsibility for the property of a minor child should be granted to a trustee appointed by the court, and not become an automatic legal right of the father.” One of the cofounders of SIS, Zainah Anwar, told me emphatically, “Women are heads of household; women are protectors and providers of families; families cannot survive on one salary. We do not live in an extended family system; we live in a nuclear family system.” The group argues that the laws must be reformed in the direction of reflecting these changing social realities. However, many Malaysian jurists and other conservative social forces are committed to a more traditional Islamic worldview that understands the family and household sphere as one properly under male leadership. When I mentioned some SIS ideas about gender equality to Dato’ Wira Sheikh Yahaya bin Hj. Jusoh, chief justice of the Kedah Shariah Court, he stated, “In Islam... [the] goal in marriage... is for extensive harmony in the family.... The reason for the requirement of having a wali in a marriage is that he acts as the head of the family. His children can come and ask him questions. It is better to have a wali to keep things under control. The family can follow him. If there are grandchildren and they don’t know who is in control, there is no harmony in the family.”¹¹ These contrasting ideas about guardianship and leadership in households are part of different cultural models of social relations in families.

The Federal Territory Shariah Court, 2010

After the marriage is solemnized, the sharia registrar enters the prescribed particulars, including the value of the mas kahwin and pemberian¹² and the ta’liq (promises expressed by the husband in accordance with Hukum Syara’), and both parties to the marriage, the wali, and two witnesses attest to these recorded details. The law requires that each marriage be officially registered, and each party to the marriage receives a marriage certificate and a ta’liq certificate. If the husband violates these promises during the course of the marriage, this can be considered grounds for divorce once verified by the sharia court. SIS argues that the standard ta’liq—promises not to fail in providing nafkah to his wife for more than four months and not to cause her bodily harm—should be expanded to include other stipulations, such as a promise that the husband will not practice polygamy during the marriage (Nik Noriani 2003, 21). However, there is opposition even to these limited standard contractual stipulations. Dato’ Dr. Zaleha binti Kamarudin, the deputy director of the Institute of Islamic Understanding Malaysia (IKIM) and professor at the International Islamic University Malaysia, told me, “Those guys trained in the Middle East say this is not pure sharia: ‘I just got married to her, and you have me recite all these ta’liq.’... When I was teaching, [my students, who] were trained in Medina and Jordan, said they recited them [these stipulations] to save the face of their family and the bride’s family.... They said these were never practiced in Saudi [Arabia].”¹³ Dr. Zaleha informed me that ta’liq, first introduced in the state of Negeri Sembilan and later across the states of colonial Malaya in the 1940s, were found to be “good because you don’t have to bring the husband to court.... If the men have breached this [stipulation] one, two, three, or four... you don’t have to get the man to pronounce the talaq [repudiation]. The wife is already divorced after the breach of one of these conditions.” Thus it is easier for a woman to divorce a man that has broken a stipulation he agreed to as part of the marriage contract.

As the sharia lawyers from JAKIM informed me, the provisions for polygamy have been adopted by the various states based on the Federal Territories Family Law Act of 1984, in which Section 23, from the amendment in 1994, states, “No man, during the subsistence of a marriage, shall, except with the prior permission in writing of the Court, contract another marriage with another woman nor shall such marriage contracted without such permission be registered under this Act: Provided that the Court may if it is shown that such marriage is valid according to Hukum Syara’ order it to be registered subject to section 123 [polygamy without the court’s permission].” This latter section states that the penalty for contracting a polygamous marriage without the court’s permission is a fine of up to RM 1,000 and/or up to six months in prison. Other subsections of Section 23 describe the process for a man to legally apply to contract an additional marriage and the hearing of his application in court, in which he and his existing wife or wives are summoned to appear. The provision calls for the sharia court judges to evaluate the applicant’s grounds for the proposed marriage, his ability to support all his wives and dependents, and his ability to accord equal treatment to all his wives. SIS and their supporters contend that Muslims need to rethink the Qur’an, Sūra An-Nisā 4:3: “Marry women of your choice, two, or three, or four; but if ye fear that ye shall not be able to deal justly (with them), then only one... that will be more suitable, to prevent you from doing injustice” (Abdullah Yusuf 1992). In my discussion with Zainah Anwar, she queried why the final part of this verse could not be the basis of the law: “For me, I’m not happy with polygamy, I read 4:3 and I read the whole verse and it says, ‘If you feel you cannot do justice, marry only one.’ Now, why can’t that be the source of the law? Why should marry two, three, or four be a source of law? Who decides that marry two, three, or four shall be the Islamic position and marry only one is not Islamic?”¹⁴ Contemporary religious officials have taken a contrasting stance in responding to SIS concerns about women’s rights. Following traditional Sunni jurisprudence that looks to the Qur’an and hadith as the major sources of law, they uphold husbands’ rights to marry up to four wives, but under conditions controlled by the sharia courts intended to also protect the rights of women.¹⁵ Another cofounder of SIS, Norani Othman, a sociologist and professor at UKM, told me that the Sisters in Islam responded to the pressure from conservative forces of the Islamic resurgence of the 1970s and 1980s: “The pressure to change came first from the Islamists. They did not like the law that was in existence prior to 1984, because the law we had until that time was one of the best, a good model law for all the Muslim countries. For example, for polygamy it [placed] five conditions, [including] the explicit permission of the first wife; [and the right of] the judge to inquire from the first wife whether she thinks this will affect her happiness and her standard of living.”¹⁶ In response to resurgent Islamic movements and scholars, religious and government officials removed conditions, such as permission of the first wife, that were considered contrary to traditional understandings of Islamic principles. Current family laws defend the husband’s prerogative to practice polygyny without direct restraints from his wife or wives, but under judicial control designed to curb abuse of the practice by men who are financially and morally unqualified.

However, as SIS and some sharia lawyers point out, there is a significant gap between the provisions in theory and the actual practice of implementation concerning many areas of sharia law, including polygamy. Norani Othman informed me that SIS organized a nationwide study of polygamy to “collect the data of the lived experiences of women, men, and children in polygamous situations” to show conservative Islamic groups the harm this practice brings. They found that the courts allow men to marry additional wives although they are financially incapable of supporting their families, and that women are forced to provide nafkah for themselves and their children. In addition, courts tended to penalize men who contract additional marriages without permission of the court with fines far below the maximum allowed under the law. Norani asked emphatically, “If he cannot afford to pay the fine of five hundred ringgit, how in the hell can he afford to support another wife?”

Disputes over conceptions of marital rights and duties between SIS and religious officials illustrate contrasting cultural models organizing the domain of social relations. In standard sharia family law enactments and in Malaysian Muslim society, a man is required to pay mas kahwin and present pemberian (or bride wealth) to the bride, and to provide nafkah to his wife or wives and children. In addition, fathers, paternal males, or male judges have the right to be marriage guardians, and in Section 88 fathers are considered the “first and primary natural guardian of the person and property of his minor child,” and if he dies, the right devolves to his father. On the other hand, women, mothers, and grandmothers are expected to be primary caregivers for children, and wives are obligated to be obedient to their husbands. Section 129 states, “Any woman who willfully disobeys any order lawfully given by her husband according to Hukum Syara’ commits an offence and shall be punished with a fine not exceeding one hundred ringgit [approximately US$33] or, in the case of a second or subsequent offence, with a fine not exceeding five hundred ringgit [US$166].” In addition, if the court finds that the wife has been nusyuz “without valid reason according to Hukum Syara’,” then she is not entitled to maintenance from her husband or former husband (Sections 59 and 65). Taken together, these and other provisions suggest a cultural model of male providers, protectors, and guardians of the family and female caregivers and obedient wives.

The Sisters in Islam advocated a modernist model that they argue better fits with contemporary times. Zainah Anwar argued:

Women now are playing the roles that men played traditionally, so should women then stop being educated, and stop working? They say that your money is your money, but of course if your kids are starving, your house is leaking, and your car has broken down, and your husband does not pay for all that and does not have the means to pay, then of course you will pay. And anyway, we think that today’s marriage should be a marriage of partnership and not a marriage of domination. We don’t want the man to be the sole provider, because women are working. Just as women’s roles have changed, men’s roles should change, and in some situations they have changed. Many men are helping in the house and sharing toward more of a partnership of marriage. Therefore, legal rights and the law have to reflect reality, because if the law doesn’t reflect reality, then that is why we have all these social problems.

She maintains that the laws (hukum) should be made to fit the times (zaman), rather than the other way around. The SIS methodology is to move from the lived realities and experiences of women to reinterpretations of the sacred texts that resonate with these contemporary realities. Her discourse suggests a cultural model in which men and women are marriage partners, both providers and caretakers in the household.¹⁷

Dato’ Dr. Zaleha binti Kamarudin told me that IKIM, similar to JAKIM, invites SIS members to their conferences and engages them in discussions on several issues pertaining to gender and sharia laws, although IKIM officials acknowledge that they have a different perspective and approach. In contrast to SIS, she asserted that in the muzakara of traditional Muslim scholars in Malaysia “you don’t change the law, you change the society to follow the law.” She expressed the view that Muslim men should be the khalifah (or caliph) of the family, but as good leaders they should engage in consultation (mushawarah), participate in discussion with other family members, and be reliable and trustworthy (amanah). From her research and experience with divorce in Muslim families, she learned that most problems stem from issues related to the rights and duties of husbands and wives. In her opinion, the solution is to promote Qur’anic governance of the family through implementing sharia laws:

When you just talk about the concept of khalifah without all these necessary things, there goes everything that is going to be wrong. But we realize that because the society today is not a God-fearing society, what we should do—this is from my humble opinion—is the Qur’anic governance of the family should be supported by the legal requirements in terms of Islamic family law.... For example, we make it a regulation that for a man and woman to marry, it must be with their consent. They must have a certain age, the age of majority, although in Islam there is no such thing as age of majority before you marry.... But we say, okay, we realize that the concept of taklif, of pro-responsibility, is important because to become a khalifah you must understand the responsibilities. Based on... what we call the maqāṣid sharī’ah, then you must have a certain age for marriage because it is related to pro-responsibility, which is part of khalifah-ship. But you cannot realize that in a society which is not God-fearing—therefore you make it a law, because you know that people will follow the law.

SIS has also been critical of domestic violence in Malaysian society. Norani Othman stated that there was a rise in the rates of domestic violence from the 1960s to the 1980s in all social classes, and she felt it was explained, at least partially, by the influence of the “more Arabized, the more fundamentalist view of what Islam means, that you have to practice Islam in your personal life, in your family life.”¹⁸ She noted that many conservative Muslims of the Islamic resurgence were opposed to a domestic violence act that applied to non-Muslims and Muslims alike. In response, SIS and other women’s rights groups lobbied, charging that there was “really no gender equality” unless such an act were passed. Religious and government officials have integrated women’s concerns about domestic violence into sharia family laws. Standard marriage contracts include a stipulation that if the husband beats his wife, it is grounds for a ta’liq-mediated divorce or a fasakh (at-fault) application for divorce. SIS complained about the onerous burden of proof placed on battered wives, which required them to provide two male witnesses. They called for use of medical reports as documentary evidence. Subsequently, Malaysian jurists have adopted the Mālikī school’s position on evidence in these cases rather than the strict Shāfi’ī requirement of two male witnesses. Their use of Mālikī rulings on evidence allows abused wives to present medical evidence and thereby facilitates judgments in their favor in sharia courts. Many in the sharia judiciary have informed me that although Shāfi’ī school is their foundation, they also follow the opinions of the other three Sunni schools of jurisprudence in order to attain goodness and to seek out the maṣlaḥah. Ahmed Fekry Ibrahim (2015) argues that this practice of takhayyur, selecting the less stringent juristic position within and across schools, is one of the principles of pragmatic eclecticism that introduced more flexibility into Islamic law.