Dalam sebuah artikal jurnal terdapat
makalah ilmiah mengenai sejarah perkembangan pengkanunan perundangan hak
selepas perceraian pasangan keluarga Islam di Malaysia yang bermula dari
Kerajaan Melayu Melaka hingga ke abad 20 Masihi. Oleh kerana ia melibatkan
perbincangan hak selepas berlakunya perceraian maka perkara tuntutan mut’ah
adalah juga berkaitan. Jurnal terbitan negara Kanada itu adalah dari laman
sesawang: www.ccsenet.org
Untuk pembaca blog ini saya kemukakan
di bawah ini artikal tersebut yang bertajuk: Historical Developments of Financial
Rights after Divorce in the Malaysian Islamic Family Law.
Selamat membaca.
Historical Developments of Financial
Rights after Divorce
in the Malaysian Islamic Family Law
-
Vol. 1, No. 2
Asian Culture and History
Authors: Muslihah Hasbullah @ Abdullah
& Najibah Mohd Zin
Abstract
Islamic
family law plays a significant role in minimizing the unpleasant effects of the
family break up faced by the divorced women and their children by protecting
their rights to financial support after divorce. This study undertakes to
discuss the historical development of the financial rights after divorce
applicable among the Muslims in the pre and post colonial periods, particularly
with reference to the iddah maintenance, mut’ah, arrears of
maintenance, and child maintenance. The study indicates that despite the
provisions were inconformity with the Islamic principles, the applications were
restricted and influenced by the Shafi’i madhhab. However, the amount of iddah
maintenance and mut’ah were substantial taking into account the
standard of living of the Malay society in the 15th and 16th century. This
means that the welfare of the divorced women was taken care of since the
codification of the Islamic law and its implementation in the Malay society.
1. Introduction
The periods beginning with the widespread of Islam
into the Malacca Sultanate in the fifteenth century and the importation of the
English legal system during the British colonial rule have marked the
significant impacts in shaping the unique legal system workable within the
heterogeneous cultures, religions, and ethnic groups in Malaysia. This article
examines the three distinct periods commencing with the introduction of Islam
in the Malay Peninsular, the British colonial period, and the period after the
formation of the Federation of Malaya (Note 1), with a view to observe the
Islamic law elements exhibited in the Malay Legal Digests and Islamic family
law legislations particularly with reference to the rights to financial
supports after divorce in terms of iddah maintenance (Note 2), mut’ah
(Note 3), arrears of maintenance, and child maintenance. The study is based on
the premise that the Islamic family law plays a significant role in minimizing
the unpleasant effects of divorce faced by the Muslim women and their children.
2. Islam in the Malay Peninsular (15th
To 19th Century)
So far as the history of Islam in the Malay
Peninsular is concerned, Hooker (1984:130) said that “the key geographical and
cultural reference has always been to Malacca,” renowned for the sovereignty of
its Sultanate, an international entrepôt, and a centre of Islamic religion. The
process of Islamization had influenced the introduction of the Shariah and
modification of the Malay adat to accord with Islam. According to Azra (1997:146)
although many orientalists of early Islam, such as Landon, Van Leur, and
Winstedt viewed that the influence of Islam on the indigenous were far from
being substantial or merely a veneer over the Malay indigenous culture, this
was opposed by other scholars such as Naquib al-Attas, Van Nieuwenhuijze, and
Majul. They maintained almost in similar tone that Islam has transformed the
entire structure of the Malay society, particularly in the political, cultural,
religious, and social realms. This latter view is considered in the literature
as more plausible than the former opinions (Azra, 1997:147). Therefore, in so
far as legal heritage in the Malay Peninsular is concerned, the following
discussion endeavours to examine the Malay legal digests, which were influenced
by adat temenggung and the customary laws of adat perpatih specifically on the
existence of Islamic law principles on the financial supports after divorce.
2.1 Undang-undang Melaka
During the early days of the Melaka Sultanate, it
had been influenced by the old Hindu tradition from Palembang and according to
I-Tsing; it was changed to Islam after its sovereign converted to Islam
(Hooker, 1968:157-170). Notwithstanding the influence of Islamic law in Melaka,
it had not supplanted the local adat in its entirety. Hence, it is generally
accepted that the law administered during those days was a composite law in
which part of the Islamic law was mingled with ancient Malay custom (Wilkinson,
1908:1-45; Taylor, 1937:1-78). Wilkinson more particularly said that it was in
fact a combination of Islamic law and the adat temenggung, which had been
administered in Melaka (Hooker, 1970:4, 7). Adat temenggung had been considered
a “decayed” form of adat perpatih, since both originated from the Minangkabau highlands
in Sumatra. However, adat perpatih in Palembang had been affected by profound
changes with its exposure to Hindu and later Islamic influences thus, changing
it from matrilineal and democratic system to a patriarchal and despotic one
(Hooker, 1970:2, 8; Glos, 1965:104).
Although adat temenggung was ordained as the law
of the Sultan and formed the basis for the law as found in the Malay legal
digest, such as the Undang-undang Melaka, the digest also contained some
aspects of Islamic law. Taylor (1937:4) stated that “Apart, however, from
ceremonies of animistic origin, the adat did little to regulate marriage and
divorce. Consequently, it was not difficult for the Malays to adopt most of the
Muhammadan law on these topics….” In order to observe the Islamic elements
contained in the Undang-undang Melaka, Hooker (1984:9-16) referred to the work
of Fang (1976:30). It was ascertained that the four Fasal (Chapters) in the
Undang-undang Melaka (Fasal 25 – 28), regarding marriage and divorce were
generally the translations of Islamic law, which were based on the Shafi’i
school of thought. This was evidenced by the reference made in several
authoritative works of the Shafi’i disciples, such as Fath al-Qarib by Ibn
al-Qasim al-Ghazi, at-Taqrib by Imam Abu Shuja’ and Hashiyah ‘ala Fath al-Qarib
by Ibrahim al-Bajuri (Ibrahim, 1965:130-140).
However, according to Wilkinson, the so-called
“codes” or undang-undang such as Undang-undang Melaka was only a digest of
Malay law, which may give a very faithful picture of its subjects, but it was
not the actual law and no man can be charged in court for violating some
sections or subsections of the digest (Hooker, 1970:8). This is because the
digest was never enacted by any legislative authority. Wilkinson’s view, which
was published during the early part of the twentieth century, should be treated
cautiously before making any conclusion, since literature from the latter part
of the twentieth century suggested that there were some evidences of the
existence of functionaries of Islamic legal institution, especially that of the
kadi (Hashim, 1988:192). Several religious advisers during the Melaka Sultanate
were appointed as kadi. They were socially at par with the notables in those
days. They had acquired a relatively strong position as kadi and had exerted
considerable influence upon the population and the rulers in imposing the
Islamic law.
Furthermore, Fang (1976:64) states that the
injunction in the Undang-Undang Melaka ruled that Melaka should be governed in
accordance with the Qur´anic law:
Concerning
all the ministers and the sida-sida (court officers) and the fighting men, they
should act in accordance with the words of Allah Most High in the Qur´an; they
should obey the command to do good and the injunction forbidding to do evil…
The command shows that not only the idea of the
sovereignty was determined by Islamic thought, but also the administration and
settlement of legal disputes among citizens contained the Islamic elements. By
reinforcing the idea of the divinity of the Sultans (Muslim sovereign)
who were often described as the “Shadow of God on Earth,” they attained strong
influence over their subjects, thus made it possible to apply Islamic law over
them.
Regarding the family law in the Undang-undang
Melaka, although it was based primarily on Islamic law, Fasal 28 only
illustrates the general principles on talaq and nothing was mentioned about the
rights and liabilities of the parties following a divorce. Although Hooker
(1984:16) said that there were many features of family law that had been left
unanswered or undescribed, “thus admitting by implication, the existence of
local custom,” yet, it can still be concluded that the “translation” of the
classical text of Islamic law on marriage and divorce would also include the
detailed application of Hukum Sharak, which is important in administering
justice to the Muslim subjects. Moreover, the structure of the text of
Undang-undang Melaka itself was hybrid. It was not all written at the same
period. The Muslim law sections were apparently completed at a later period
compared to the Undang-undang Melaka “proper” (Hooker, 1984:15). Therefore, the
detailed application of the law must have been developed in due course of time.
2.2 The Ninety-nine Laws of Perak
According to Mutalib (1997:40), many scholars had
widely felt that many of the subsequent written laws in the Malay Peninsular
borrowed or were fashioned from the broad guidelines given by the Melaka
Digest, such as the Kedah Laws, Customary Laws of Sungai Ujong and Kuala Pilah,
and the Ninety-nine Laws of Perak. Hooker (1970:51), on the other hand, had
previously cautioned that although the texts of these digests showed some
measure of uniformity in their provisions, it was uncertain whether that argued
for a common origin or for a process of local diffusion or a conscious
imitation. Nevertheless, Hooker said that scholars did agree that the
provisions of the digests were often described as containing the rules of adat
temenggung and the rules relating to marriage and divorce were generally rules
of Islamic law that followed the Shafi’i sect.
The Ninety-nine Laws of Perak which was considered
as the most detailed of all the digests also contained meticulous laws on
marriage and divorce compared to the Undang-undang Melaka. There were ten
chapters on divorce (Rigby, 1908:20-56), which included the laws on rights of
women after divorce. Regarding maintenance of divorced women, Fasal 7 states
that:
If a
husband wants a divorce he must pay within three months two paha of gold (for
her maintenance) and pay the whole of the dowry in cash (if not already paid).
Fasal 31 reiterates on the maintenance of divorced
woman besides the law on division of property after divorce to the effect that:
If the
divorce is at the instance of the husband and there is no blame attached to the
woman, he must provide her with maintenance for three months, and the personal
property will be divided.
Since the period of three months is usually the
iddah period for a divorced woman, she is entitled to iddah maintenance of two
paha of gold. Howard (2005) states that paha is a unit of weight used
especially for gold. In addition, Fasal 39 also spells out on maintenance of
divorced women, but it is stated differently:
For her
maintenance about a paha will suffice, but if there are young children, or if
the parties live in a large village, the amount will be two paha and a half; if
the place where the woman lives is in the jungle, or if she can earn her own
livelihood, like the people of the country, she is not entitled to maintenance,
she must support herself.
The latter part of the above quoted provision
seems to contradict the Islamic law because according to Hukum Sharak, a
husband is obliged to maintain his wife during iddah as their marital tie still
exists and maintenance is incumbent upon the husband irrespective of the wife’s
place of residence, social status, and capability of earning an income.
Furthermore, the law also explains on the division
of property of a woman divorced owing to misbehaviour on her part. Fasal 31
also states that:
If a
divorce is sought owing to the misbehaviour of the woman – that is, on account
of either adultery or neglect of service at bed and board, or refusal to do
works of charity and to the Almighty – she forfeits her settlements only, and
the law is that the husband must pay a paha.
According to the above provision, nushuz
(recalcitrance) on the part of the wife disentitles her to the division of
property after divorce although the husband still has to pay a paha of gold to
her. However, according to Hukum Sharak, it is a wife’s right to maintenance,
which is forfeited if she is found nushuz and she is also not entitled to
maintenance during iddah (Haskafi, 1970:316-324; Al-Shirazi, 1976:205-206).
Therefore, it may be appropriate to conclude that a paha of gold payable to a
wife who has been divorced under Fasal 31 of the Ninety-nine Laws of Perak, due
to her misbehaviour, may indicate a parting gift or mut’ah, not
iddah maintenance. This is because mut’ah according to the
Shafi’i madhhab is provided to all divorced women except a woman who has been
divorced before consummation and her dower has been fixed (Al-Sharbini,
2003:307).
Having discussed all the three provisions on
maintenance of divorced women as provided under the Ninety-nine Laws of Perak,
though it seems confusing as the amount of gold was not fixed, nevertheless, it
may be concluded that the minimum rate of maintenance for a divorced wife was a
paha and the maximum limit was two paha and a half.
The value of the amount of maintenance provided
for the divorced women under the Ninety-nine Laws of Perak may be converted to
the Malaysian currency based on the international gold spot price. According to
Howard (2005), a paha of gold is equivalent to .. ounce or 9.45 grams of gold
(based on the Metric Converison Table of 1 ounce equivalent to 28.35 grams).
Therefore, it is equivalent to USD $221 (based on the gold spot price of USD
$662.60 per ounce). By converting it to the Malaysian currency of RM3.47 per
USD $1, this means that a paha of gold is equivalent to RM766.87. So, the
minimum amount of maintenance that should have been provided by a husband to
his divorced wife was about RM767 and the maximum amount was about RM1,917 (two
paha and a half of gold). The amount was quite substantial taking into account
the standard of living during the 15th and 16th centuries. The substantial
amount of maintenance during iddah means that the economy of the divorced
Muslim women was better taken care of since the codification of the Islamic law
and its implementation in the Malay society.
2.3 Adat Perpatih
According to Wilkinson, adat perpatih, which is
believed to have originally come from the Menangkabau highlands of Sumatra, was
found primarily in Negri Sembilan and certain districts of Malacca (Hooker, 1970:7).
In due course of time, its practice was recognised as a Malay customary law and
enforced by the Adat court in Negri Sembilan. It envisages a matrilineal tribal
structure and lays importance on the female line of descent. However, contrary
to the popular belief, Caldecott said that a man’s high position is guaranteed
under the adat either in his capacity as a husband, an uncle, or a brother who
may become an elder or chief in his clan (Kamaruddin, 2005:14).
Under adat perpatih, men are responsible for the
welfare and heirlooms in the family, but women acquire full rights to the
family properties. By this, lands were owned by the wives but the husbands were
responsible for its cultivation and strictly subjected by his duty towards his
wife and her kin. Therefore, if they did not behave to the satisfaction of “the
wife’s relations,” they ran the risk of being divorced and expelled (Mohammad,
1964:40; Hooker, 1970:13). Therefore, scholars viewed that the men of Negri
Sembilan are the most industrious, intelligent, and artistic Malays in the
Peninsular because of the pressure put on them by “the wife’s relations” that
made their positions in the family rather weak upon marriages (Glos, 1965:104).
According to Swift (2001:63), a man’s economic
interests are very much tied up with his place of residence and he must leave
it immediately on divorce. This may well represent a considerable loss to him.
Moreover, returning to his matrilineal kin will be unsatisfactory for a man who
has been a ‘master in his own house’ as he is going to live in his sister’s
house, i.e., in a household headed by his brother in-law. He may find that his
prolonged presence will be regarded as imposition rather than enjoyment of a
legitimate privilege because the use and ownership of the property has been
vested in his sister’s. Therefore, it can be concluded that the matrilineal
system provides more protections to women in terms of property rights upon
divorce and this is significant in a strongly rooted peasant society.
Furthermore, the adat confers on woman in every
case an absolute right and duty to take the custody of all the children upon
divorce (Taylor, 1929:14-55). Hence, the husband is not liable for the support
of the children by his divorced wife (Ibrahim, 1965:78). This is because on
divorce of the parents, the children will definitely stay with the mother.
Although for legal and religious purpose his status as a father is irrevocable,
he can only have the children stay with him occasionally and this can be
considered as good as lost (Swift, 2001:63).
On the other hand, Taylor (1929:14-55) observed
that with the influence of Islamic principles on the questions of marriage and
divorce, the claims for maintenance during iddah were made to the Court of
Kadi. Although the conventional rate fixed was small ($6 a month), this was not
unreasonable when considered in conjunction with a system, which vests so much
of the property particularly the sawah (paddy field) and kampong (village)
lands, in the women. From Taylor’s manuscript, other claims for post-divorce
financial supports, such as mut’ah and arrears of maintenance
could not be traced in the society of adat perpatih, since the Islamic law was
administered mainly by the kadi whose jurisdiction had been strictly limited to
the questions of marriage, divorce, and alimony (Taylor, 1937:4).
Nevertheless, it can be concluded that with the
influence of Islam, Hukum Sharak should had been made applicable to family
affairs except in matters where the adat strongly prevailed. Since the divorced
women under adat perpatih are more protected in terms of property rights,
therefore, issues of mut’ah may not be relevant.
3. The British Colonial Period (1824
till 1948)
The preceding discussion proves that Islamic law,
though in a modified form was largely observed by the Malays in the Malay
States prior to the European conquests. The fact was further verified through
various law cases decided during the British administration (Wilkinson,
1922:49). In the case of Shaik Abdul Latif & Ors. v Shaik Elias Bux
(1915), Edmond JC held that “the only law applicable to the Malays in the Malay
States before the arrival of the British administrators is Islamic law modified by local custom.”
The position of Islamic law had been repeated in Ramah v Laton (1927),
whereby Thorne J in delivering the majority judgment of the Appeal Court of the
Federated Malay States held that:
Muslim
law is not foreign law; it is the law of the land, and as such the court must
take judicial notice of it. It must propound the law itself and it is not
competent for the court to allow evidence to be led as to what is the local
law.
Based on the above facts, one would expect that
strong argument exists for the notion that Islamic law should be the lex loci.
Unfortunately, despite the above-mentioned enlightened decisions by the English
judges, it was during the English colonial rule particularly in the Straits
Settlements (comprising Melaka, Singapore and Penang), that the status of Islam
as the prevailing law had declined to a stage where it was only applied as
personal law and was limited to family law and some other aspects of the
religion (Ibrahim and Joned, 2002:51). In contrast, English law became the law
of general application, although with regard to other Malay States, no formal
reception of English law took place until 1937.
3.1 The Law in the Straits Settlements
Under the British colonisation, the status of
Islamic law as the prevailing law in the Straits Settlements was reduced to
personal law under which the practice of this law should had been continued
uninterrupted. It was stated under the Anglo-Dutch Treaty 1824 (Article 6 of
the Treaty) that the British were not to interfere in matters affecting Malay
culture and religion, but to only offer advice on such matters (Mutalib,
1997:36). However, scholars found that operationally, it was clear that such an
“advice” had to be acted upon (Hooker, 1972:13-50).
The existence of inconsistencies in the
administration of Islamic law had made the British officials to attempt to
regulate some key aspects of it. This prompted the passing of the Mohammedan
Marriage Ordinance 1880 (Aun, 1999:146; Hooker, 1984:95-101). The Enactment,
however, dealt mainly with the administrative or procedural matters, rather
than the substance of the Shariah. It merely provided for the voluntary
registration of Muslim marriage and divorce, the recognition of the kadi, and
the regulation of the property of married women.
3.2 The Law in the Malay States
According to Aun (1999:147), the status of Islam
in the Malay States was very different from that of the Straits Settlements as
the Sultans retained their sovereignty. Since Islam was the basis of the Malay
rule, it might be said that it was indeed the State religion. Therefore, Shariah
law should have been made applicable. However, in practice, Islamic law was
also restricted to a mere personal law pertaining to marriage, divorce, and
other related matters applicable to the Muslims, which included divorce matters
and the consequences thereto. This was due to the fact that through treaties
engagements concluded between the Malay rulers and the British (beginning with
Pangkor Engagement 1874) the former must accept the British Resident or Adviser
“whose advice must be asked and acted upon on all questions other than those
touching the Malay religion and custom.”
However, scholars also found it difficult to
uphold that during colonisation, matters relating to Muslim family laws were
actually left to the jurisdiction of Islamic laws and adat laws (Mutalib,
1997:41). This was due to the colonialists’ efforts at the “bureaucratization” of Islam in the
form of greater regulation, standardization and control of Islamic administration,
which had marginalized the role of the traditional Islamic religious elites in
preference for the colonial-appointed religious functionaries. For example, the
establishment of the Religious (Islamic) Council (Majlis Agama), which was
formed to assist the Sultan in administering the State, was controlled by the
British officials.
Moreover, important rulings affecting the Islamic
law as well as the jurisdiction of the kadi were confined and subjected to the
sanctions of the British officials, which made the Islamic law subservient to
the British-influenced State enactments. Therefore, it seems that the
overpowering of the British legal preferences and values had curbed the role
and position of Islam although it had not led to its total overhauling.
3.2.1 Ahkam Syar’iyyah Johor
A significant development of the Islamization of
Malay adat law can be seen for instance in Johor. A Hanafi text on family law
code was translated but adjusted to suit the ruling of the most influential
madhhab in the Malay Peninsular i.e., the Shafi’i madhhab (Ibrahim and Joned,
2002:49-50; Borham, 2002: IV). This was known as Ahkam Syar’iyyah Johor. With
the arrangement of this Code of 1935 (Volume I), Johor had preceded other Malay
States in providing for the first time, the substantive contents of the rules
on Muslim family matters to be used as reference for the kadi.
Reference to the principle on mut’ah
was made in Fasal 37 of the 1935 Code (Articles 375 – 382), all of which
related to the detailed hukum of an obligatory payment of mut’ah
to the divorced wife. In fact, the law also provided for the minimum limit of mut’ah,
which was not less than thirty dirham (Article 381). This ruling, which showed
the influence of the Shafi’i madhhab, was the direct translation of the Shafi’i
texts such as Mughni Muhtaj (Al-Sharbini, 2003:407-408) and Minhaj et-Talibin
(An-Nawawi, trans., 1977:313).
It is also possible to convert the value of thirty
dirham of mut’ah into the Malaysian currency. Based on the
well-known coin standard established during the period of the Caliph Umar
al-Khattab, the weight of 10 dirham was equivalent to 7 dinar (Ibn Khaldun,
trans., 1978:217). The conversion can be made based on the current
international gold spot price, which is published in troy ounce of 24k gold (1
kg is about 32.15 troy ounce), while gold dinar is 22k gold weighing of 4.25g.
Using the gold dinar conversion rate i.e., (weight of coin (g) × purity of coin
× troy ounces/kg = fraction of spot price per ounce), the international gold
spot price is about 7.98 times of the conversion rate:
4.25g × (22k/24k) × (32.15 oz/1000g) = 1/7.98
So, if the current gold spot price is USD $662.60
per ounce/7.98, it is equivalent to USD$83. By converting to the Malaysian
currency of RM3.47 per USD$1, this will amount to RM288 per one gold dinar.
Since thirty dirham is equivalent to twenty-one dinars, therefore, thirty
dirham of mut’ah payable to the divorced women in the State of
Johor about seventy years ago is equivalent RM6,050 (21 gold dinar multiplied
with RM288). This by all means constituted a substantial amount of mut’ah,
which indicates the significance of applying the Islamic principle to safeguard
the welfare of women upon divorce.
Taking into account that previously many women had
been dependent on their husbands for maintenance during the subsistence of
marriage, it was important that they should have been compensated for the
economic loss that they had suffered. In addition, Article 382 of Fasal 37 of
Ahkam Shar’iyyah Johor 1935 states that the kadi had the discretionary power to
determine the reasonable amount of mut’ah in case the parties
disputed on its quantum, to be based on the financial position of the husband
and the condition of the wife.
Nevertheless, it was unfortunate that the relevant
laws on maintenance of divorced wife and children was not incorporated in the
two volumes of Ahkam Syar’iyyah Johor, although the translator of the Code did
mention of his intention to pursue with the subject of maintenance. According
to Borham (2002: V), the arrangement for the subsequent volume might not
succeed due to the outbreak of the Second World War. However, it was briefly
provided in Article 573 of the Code of 1940 (Volume II), that a man had a duty
to pay maintenance to his wife and the kadi had the power to make a decree on
this matter. In case the husband was legally incompetent to maintain the wife,
her wali (legal guardian) could be ordered to provide the same. The provision
adopted the view of the Hanafi madhhab, which is in favour of the
non-separation doctrine when the husband is unable to provide maintenance to
his wife. In such a case, she may raise a loan on the husband’s credit with the
order from the qadi (Al-Marghinani, trans., 1975:397). Contrarily, the majority
of Muslim jurists contended that a wife has a right to separation on account of
her husband’s poverty (Al-Sharbini, 2003:563; Ibn Qudamah, 2000:577), which is
due to great hardships that may be caused to her because it may be difficult
for her to get a loan on the husband’s credit (Wani, 1995:82). In this sense,
the Hanafi jurists maintain that the husband’s obligation remains, but the wife
shall be supported by her blood relatives in case of necessity as the latter
would be responsible for her if she were not married (Al-Marghinani, trans.,
1975:412-413). Thus, the Hanafi ruling points towards the significance of the
Islamic principle of inheritance whereby those who are related by blood are
bound to maintain their daughters or sisters as they would have been entitled to
inherit from her, had she been deceased.
Since Islam had discarded the pre-Islamic customs
of excluding the daughters and sisters from their natural family upon their
marriage, women therefore continue to be the members of their natural family
(Khan, 1989:8). In case of hardships, their collateral relations are
responsible to help them. Whether the wife raises a loan on the husband’s
credit or she gets help from her family, her expenditure becomes a claim or
debt against her husband for which he is liable to pay when his financial
situation improves (Al-Ati, 1977:159).
4. The Law in the Borneo States (1841
till 1963)
Islamic law in North Borneo (now Sabah) and
Sarawak was the peculiar creation of the unique systems of private
administration under British protection (Hooker, 1984:189). Although there were
no special provisions for application by Muslim divorced women for maintenance
in both States, the kadi had the jurisdiction to deal with such applications
(Ibrahim, 1965:55). In North Borneo, Muslims could apply for child maintenance
under the North Borneo Maintenance Ordinance 1959, while in Sarawak the
application could be made under the Sarawak Criminal Procedure Code. For
instance, in Sarawak, it was provided that a man who neglected or refused to
maintain his child may be ordered by the court to make monthly allowance that
had been fixed at a rate not exceeding fifty dollars (Sarawak Criminal
Procedure Code 1948, s 335).
In addition, there were in existence law texts in
Sabah known as Undang-undang Mahkamah Adat Orang Islam and in Sarawak
Undang-undang Mahkamah Melayu Sarawak. According to Hooker (1984:215), the former
law adhered more closely to the Shariah compared to the latter. Nevertheless,
by implication, the substantive rules on “divorce and its related matters,” as
referred to by Hooker, included matters relating to financial rights of women
after divorce. Besides, the laws in both States did specifically provide for
maintenance of children (Ibrahim, 1965:55).
The amount for maintenance of a divorced wife and
children was fixed under the Undang-undang Mahkamah Melayu Sarawak at the rate
of 20 to 50 dollars and 10 to 25 dollars a month respectively. Under the same
law, s 40 as well as Addenda of 9th September 1910, it is stated that an
ex-husband who failed to provide proper maintenance would not be allowed to
marry again (Ibrahim, 1965:78). The law in Sarawak also protected the rights of
a Muslim woman who was married to a person not domiciled in that State (or stranger
known as orang dagang). It had been provided that the husband should not leave
Sarawak until the authorities were satisfied that he had made proper provision
for the maintenance of his wife and children (Sarawak Muslim Marriage Ordinance
1948).
By not allowing a man to remarry or leave the
State of Sarawak and fixing the rate of maintenance, it seems that the laws
previously enforced in Sarawak adopted far-reaching efforts of reasonably aimed
to serve justice to divorced women and children by protecting their economic
welfare. This guaranteed that the Islamic principles on maintenance were
enforced and complied with by the ex-husband.
5. The Federation of Malaya (1948)
Since 1952 the Islamic law in each of the Malaya
State has been consolidated on a fairly uniform basis, which deals mainly with
its administration (for examples, Administration of Muslim Law Enactment 1952
(Selangor); Administration of Islamic Law Enactment 1955 (Terengganu); and
Administration of Muslim Law Enactment 1965 (Perak). The provisions contained
in the various State Enactments were the statutory restatement of the basic
tenets of Islam, which related among others to family law; the rules were taken
from the orthodox Shafi’i practice as this was understood and applied in the
administration and courts of the pre-war Malay States (Hooker, 1984:151-152).
5.1 The Administration of Muslim Law
Enactment
With regard to the financial rights of women after
divorce, the law on maintenance in most of the Malay States (such as the
Administration of Muslim Law Enactment 1959 (Penang), s 134, s 137, and s 138;
the Administration of Muslim Law Enactment 1959 (Malacca), s 132, s 135, and s
136; and the Administration of Muslim Law Enactment 1960 (Negeri Sembilan), s
133, s 136, and s 137) provides:
A
woman who has been divorced may, by application in the court of a Kathi, obtain
an order against her former husband for the payment in respect of her period of
eddah, if the divorce was by one or two talaks, or, in any case, in respect of
the period of pregnancy by the former husband, of any such sum in respect of
her maintenance as she may be entitled to in accordance with Muslim law. In
case of wilful failure to comply with such orders, the person in default may be
sentenced by the Court to a term of imprisonment which may extend, if the order
provides for monthly payments, to one week for each month’s allowance remaining
unpaid, or in any other case, to one month.
The provision specifically states that only those
women who were revocably divorced or those who were pregnant could claim
maintenance in respect of the iddah period. Therefore, those women who were
divorced irrevocably are clearly excluded as there was no possibility for the
parties to resume conjugal relation. This provision applies strictly the
doctrine of the Shafi’i sect (Al-Shirazi, 1976:210; Al-Jaziri, 1950:575-576),
for which the qadi in those days had to take effect of the provision.
Contrarily, the Hanafi jurists allowed all divorced women to claim iddah
maintenance in any form of divorce (Al-Marghinani, trans., 1975:373-406), which
may be considered as a form of financial protection.
In addition, a woman who was divorced by her
husband was also entitled to claim for mut’ah or a consolatory
gift. The law (such as the Administration of Muslim Law Enactment 1952
(Selangor), s 130 and the Council of Religion and Malay Custom and Kathis Courts Enactment 1953
(Kelantan), s 149) provides that:
A
woman who has been divorced may apply to a Kathi for a consolatory gift or muta'ah
and the Kathi may after hearing the parties order payment of such sum as may be
just and in accordance with Muslim Law.
Although the provision regarding mut’ah
is more general, the application of the law also reflects the influence of the
madhhab, which is the Shafi’i view. In this regard, all women who had been
divorced regardless of whether their marriages had been consummated or not,
were entitled to claim for mut’ah (Al-Sharbini, 2003:307;
Al-Shirazi, 1976:81). Although, there were no statutory provisions for the
payment of mut’ah in other States of Malaya, it would appear that
an order for its payment might be made by the kadi in accordance with Islamic
law (Ibrahim, 1965:52).
It is also important to highlight the provision of
the Administration of Muslim Law Enactment 1963 (Perlis), s 104(3), which
provides that:
A
divorced woman may apply for an order of maintenance against her former
husband, which is payable monthly for so long as she remains unmarried or does
not commit any misconduct.
The above provision can be considered as a
statutory effort to extend the right to maintenance beyond the period of iddah.
This provision has gone beyond the explicit Islamic law principles, which
oblige an ex-husband to maintain his divorced wife during a specified waiting
period only (al-Qur’an, at-Talaq: 1 – 2, 4, 6; al-Baqarah: 233, 241). However,
the provision was successfully invoked in the case of Che Ah v Ramli
(1981). The Kadi Court of Perlis had allowed the claim for iddah maintenance as
well as an order for monthly maintenance payable to the ex-wife. The kadi,
while granting the order, expressed that the said Section 104(3), was not based
on Hukum Sharak. Nevertheless, the reason for inserting such provision may be
viewed as a form of providing financial support to the divorced women
particularly those who had been divorced without good cause or reason and it
was not due to misbehaviour on their part.
However, after the passing of the Perlis Islamic
Family Law Enactment 1991, by virtue of Section 133 of the Enactment, Section
104(3) of the Administration Enactment 1963 was repealed and ceased to apply to
the State of Perlis. The current provisions on financial rights after divorce
in Perlis are similar to that of the other Malaysian States, which provide that
a divorced woman’s right to maintenance shall expire after the end of the
period of iddah or when she is found nushuz (Islamic Family Law Enactment 1991
(Perlis), s 65).
Furthermore, the laws in most of the States of
Malaya also provide, in accordance with the Islamic law, for the obligation of
a lawful father or any other person to support his minor child (the Selangor,
Pahang, Penang, Malacca, Negeri Sembilan and Kedah Enactments, a minor is a
person under the age of fifteen years, whereas under the Kelantan and
Terengganu and Perlis Enactments, a minor is under the age of eighteen years).
Child maintenance should also be provided to an incapacitated child by
infirmity or disease or an unmarried person, unless the child has sufficient
means to support himself (the Administration of Muslim Law Enactment 1962
(Kedah), ss 135-136; Council of Religion and Malay Custom and Kathis Courts
Enactment 1953 (Kelantan), ss 160-161; and Administration of Islamic Law
Enactment 1955 (Terengganu), ss 118 -119).
6. Conclusion
To sum up, as observed by Hooker (1984:155), “the
legislation on family law is permissive of Islamic principles but rather
restrictive as to the practice or implementation of the relevant rules. The
statutory emphasis is on order and certainty of process rather than on either
an innovation or detailed confirmation of Islamic laws.” It may be understood
that despite its conformity to the Islamic principles, the provisions are
restricted as it had been much influenced by the dominance of the Shafi’i
madhhab. Although history proved that the amount of iddah maintenance and mut’ah
paid to the divorced women in the 15th and 16th century was substantial,
legislations that were passed in the later centuries only ensured consistency
of the administration of personal law and procedural matters rather than
dealing profoundly with the substance of the Shariah. This is true because the
purpose of the codification of the law is to serve as a guideline only. The
detailed dictates of the Shariah are to be found in the classical texts of the
Muslim jurists from the four established madhahib. Therefore, it is left to the
judges to refer to the classical texts while interpreting the codified
provision to be in conformity with the spirit and objectives of the Shariah.
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Cases Cited
Che Ah v Ramli. (1981) 2 Jurnal Hukum (1). 118
Ramah v Laton. (1927) 6 FMSLR 128
Shaik Abdul Latif & Ors. v Shaik Elias Bux
(1915) 1 FMSLR 204
Statutes Cited
Administration of Islamic Law Enactment No. 4 of
1955 (Terengganu)
Administration of Muslim Law Enactment No. 1 of
1959 (Malacca)
Administration of Muslim Law Enactment No. 3 of
1959 (Penang)
Administration of Muslim Law Enactment No. 15 of
1960 (Negeri Sembilan)
Administration of Muslim Law Enactment No. 9 of
1962 (Kedah)
Administration of Muslim Law Enactment No. 11 of
1965 (Perak)
Administration of Muslim Law Enactment No. 3 of
1952 (Selangor)
Administration of Muslim Law Enactment No. 3 of
1963 (Perlis)
Council of Religion and Malay Custom and Kathis
Courts Enactment 1953
(Kelantan)
Islamic Family Law Enactment 1991 (Perlis)
Mohammedan Marriage Ordinance 1880
North Borneo Maintenance Ordinance No. 7 of 1959
Sarawak Criminal Procedure Code Cap. 62 of 1948
Sarawak Muslim Marriage Ordinance Cap. 75 of 1948
Undang-undang Mahkamah Adat Orang Islam Sabah
Undang-undang Mahkamah Melayu Sarawak
Notes
Note 1. The discussion is confined to the period
before the coming into force of the Islamic Family Law (Federal Territories)
1984 Act 303, which was enacted as a model of uniform Islamic family law
legislation for other States in Malaysia.
Note 2. Iddah is the length of time a Muslim wife
must wait (can not remarry) following her divorce in order to ascertain her
state of womb, which is important to establish parentage if she is pregnant,
thus protects the rights of both the first as well as the potential second
husband. During this period her maintenance is incumbent upon her husband.
Note 3. Mut’ah is a payment made by
a husband to his divorced wife as a symbol of humility and kindness to remove
any cause of accusation or shame, which may arise from the divorce and to
lessen her financial burden caused by the separation.
