In early April, a Universiti of Malaya professor commented that a Muslim father can force his daughter to marry a person of the family’s choice against her will, and that this marriage would be legal and binding in Islam. Similarly, the Kelantan Islamic Family Law Enactment (IFL) 1983 states that under certain conditions a virgin whose wali is mujbir (her father or paternal grandfather) may be married without her consent.

That same week, however, Saudi Arabia’s top religious authorities banned the practice of forcing women to marry against their will (ijbar), stating that the practice contravenes the objectives of shariah. The clerics said that whoever forces a woman to marry against her will is disobeying God and His Prophet, and that coercing women into marriage is “a major injustice” and “unIslamic.” Laws in Algeria, Iraq, Syria, Jordan, Morocco, the Philippines and most Malaysian states also prohibit ijbar.

If the laws of so many countries ban forced marriages, why have the UM professor and the Kelantan IFL Enactment allowed the practice to continue?

Such is the debate around the Muslim world, where, after centuries in which the fiqh (Islamic jurisprudence) articulated in the major Sunni schools of law was considered the only definitive legal doctrine, recent law reform efforts are attempting to re-embrace the spirit and teachings of the Qur’an and the Sunnah.

History and development of Islamic Law

The development of Islamic law can be divided into several periods. Initially, shariah law revealed to the Prophet reformed the cultural practices of pre-Islamic Arabia relating to women and the family (see Table 1). In the Caliphate period, the ummah conformed to the Qur’an and the Sunnah, the practices of the Prophet, and added two new sources of law – ijma' (consensus) and qiyas (analogical reasoning).

Over the next 400 years, the Hadith were compiled and a science of Traditions was developed. Schools of law arose that codified fiqh, the jurists’ independent interpretations (ijtihad) of the Qur’an and Sunnah. After this period, the door of ijtihad was considered closed, such that future jurists could not independently interpret shariah, but rather followed the doctrine of taqlid, or adherence to the fiqh codified by one of the schools of law. For this reason, the interpretations of four major schools of law – Hanafi, Maliki, Syafi’i, and Hanbali – form the basis of most of the laws in the Sunni world today.

After independence from European colonialism, countries revived ijtihad as they codified and reformed their laws, though mostly through the talfiq (patchwork) or takhyir (selection) methods of replacing individual provisions with less discriminatory ones from other schools of law. In recent decades, scholars have advocated creating entirely new sets of laws based on an egalitarian approach, even if it requires shifting from interpretations of the major schools of law. This is based on the premise that scholars is based on the premise that scholars were responsible for strengthening and promoting Qur’anic teachings (the shariah), not to merely uphold the teachings of early jurists (fiqh).

The history of Islamic law teaches that there is a difference between shariah (the infallible and unchangeable law revealed to the Prophet) and fiqh (interpretations of the shariah derived by man through the process of religious and legal science). Fiqh, the Islamic law applied in Muslim nations, has constantly evolved over the centuries and has never been fixed.

While shariah law is sacred and immutable, fiqh is human science. The fact that each Muslim nation has a different law demonstrates that these laws cannot be the revealed shariah, but rather are fiqh as interpreted and codified by humans. As such, the laws can be reformed to better reflect the Qur’an and better serve Muslim communities today.

Islamic Family Law reform around the world

Because Qur’anic provisions on marriage and divorce are often broad proclamations, they provide a wide scope for interpretation. Classical jurists were restrictive in their interpretations of women’s rights within the family due to the socio-cultural milieux of their times. Because the subordination of women was a universal feature in various societies, among both Muslims and people of other faiths, jurists of those times embedded such patriarchal and cultural assumptions into the standard marriage contract (see Table 2).

Scholars of recent times, however, argue that this man-made fiqh contains flaws, especially since it reflects the social context and norms of the past, and that people today should take current experiences and circumstances into account when endeavouring to implement the objectives of shariah (maqasid al-shariah). Thus, women and men should have equal rights and responsibilities.

Since the mid-20th century, the trend in law reform has been to uphold the spirit of equality and justice in the Qur’an rather than to conform blindly to interpretations of the past.

Examples include:
• Reform of entire law based on framework of equality
In October 2004, a Task Force set up by Indonesia’s Ministry of Religious Affairs produced an alternative draft to the country’s Kompilasi Hukum Islam (Compilation of Islamic Law) that embraces gender equality.

In February 2004, Morocco announced a major reform of its family law (Mudawwana) which, “consistent with the spirit of our tolerant religion... is meant to reconcile lifting the iniquity imposed on women, protecting children’s rights and safeguarding men’s dignity." The new law upholds the principle of equality between men and women; allows polygamy only under stringent legal conditions and judicial supervision, making the practice nearly impossible; provides for divorce by mutual consent and divorce because of irreconcilable differences; demonstrates concern for fairness and justice in the law; and provides additional rights and safeguards for children.

In 2001, Turkey promulgated a new Civil Code that defines the family as a union based on equal partnership, with spouses jointly running the matrimonial union with equal decision-making powers. A 2001 constitutional amendment redefines the family as an entity “based on equality between spouses.” The new government, under the leadership of the Islamist Justice and Development Party, has accepted these reforms, and in 2004 it reformed the Penal Code to strengthen gender equality and protection of women’s rights, particularly sexual and bodily rights.

• Divorce
In January 2000, Egypt enacted a law that allows women to obtain a divorce (khul’) on the grounds of incompatibility. Instead of the wife having to wait for judges to decide her application based on conclusive proof and independent corroboration of her husband’s ill-treatment or physical abuse, the divorce is granted upon the wife’s return of her mahr (dower).

The Tunisian Personal Status Code 1956 abolished all forms of divorce outside the court based on Qur’anic passages
(al-Baqarah, 2:229 and an-Nisa’, 4:35).

The Supreme Court of Pakistan in 1967 used the same passages to expand women’s rights of divorce, ruling that a court could enforce khul’ against a husband’s will whenever a judge determined that a harmonious marriage was not possible.

• Polygamy
A number of countries limited polygamy based on the interpretation of an-Nisa’, 4:3 and 4:129, that the fear of injustice between co-wives is inevitably present in almost all cases of polygamy, thus polygamy should be banned or heavily restricted to a limited number of exceptional circumstances.

The Tunisian Personal Status Code 1956 states, "polygamy is prohibited".

The Jordanian Law allows a wife to state in the marriage contract that the husband cannot take another wife and that the wife is entitled to divorce if he does.

Many countries, including Malaysia, require the court's approval of polygamous marriages based on restrictions that may be strictly enforced.

• Conditions in Marriage Contracts (ta’liq)
Countries in the Middle East (including Iraq, Jordan, Syria and Saudi Arabia), the Indo-Pakistan subcontinent and Southeast Asia allow the parties to agree upon conditions in marriage contracts such that breach of a condition can be grounds for a ta’liq divorce. Examples include: a husband shall not take another wife during the marriage; a husband shall provide maintenance; a husband shall not ill-treat or assault his wife. Ta’liq has been used throughout the centuries, the most famous being that of Sukayna bint Hussein, the great- granddaughter of Prophet Muhammad (pbuh), but the inclusion of additional conditions that protect women’s rights have not been promoted in Southeast Asia.

• Financial provisions
1992 amendments to the Iranian Divorce Law allow “domestic wages” (calculated by placing monetary value on housework) for the work a wife has done during the marriage if the divorce is not initiated by her or caused by any fault of hers.

Malaysia provides for the division of matrimonial assets (harta sepencarian). The wife, whose housework might be said to have indirectly contributed to the husband’s acquisition of property, is entitled to claim one-third of the property acquired during the marriage. She is entitled to claim half if it is shown that she contributed directly towards its acquisition. The claim can be made upon divorce or before the husband contracts a polygamous marriage.

Why reform Islamic Family Laws in Malaysia?

Islamic family laws in Malaysia should be reformed because they discriminate against women (see Table 3). While the message of the Qur’an is that men and women are equal, the message of the laws is that men have more rights than women. Amendments to various states’ Islamic Family Laws since the 1990s have actually been regressive in terms of women’s rights, harming women more than helping them, which also points to the need for reform.

Discrimination and inequality can be found in provisions on:
• Age of marriage: Women may be married at younger ages than men; there is no minimum age for marriage in Perak.
• Ijbar (forced marriage): In Kelantan and Kedah, if a woman is an unmarried virgin, her wali mujbir (father or paternal grandfather) can marry her to a man of equal status against her will.
• Registration of marriages: A marriage may be registered even if it contravenes the law.
• Witnesses: Only males may act as witnesses to a marriage.
• Polygamy: A man may marry up to four women, with few restrictions in some states.
• Nusyuz: A wife but not a husband can be punished for nusyuz even though the Qur’an also uses nusyuz to describe conduct by the husband; laws in some states do not define what constitutes nusyuz.
• Divorce: Husbands can divorce through a unilateral talaq outside of court; wives may only get a divorce with the husband’s consent or through lengthy arbitration and/or court proceedings.
• Mut‘ah (monetary gift from husband to wife, paid on divorce through talaq or where the fault lies with him): Awards are usually insubstantial, even when husbands have financial resources; amounts are decided at the discretion of individual courts.
• Guardianship: Guardianship is always male, never female or shared by both parents.

National and international laws also necessitate reform. The Federal Constitution forbids discrimination on the basis of gender. International law, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which Malaysia has ratified, demands that nations act to eliminate discrimination against women and establish equality between men and women.

Continuity of reform

Whenever reforms of Islamic laws are proposed, the proposals are met with opposition and fear that Islam itself is to be reformed. While it is understandable that many think of “Islamic law” as sacred and immutable, deeper reflection into the history and development of the law reveals that reforming present-day Islamic laws will not threaten Islam because these laws are man-made fiqh, not divinely revealed shariah. The basic principles of shariah are absolute, but the non-basic principles of fiqh, which are non-divine interpretations of the shariah, are not absolute. Because of this, fiqh can be and has, over the years, been changed to conform better to the teachings in the Qur’an and the Sunnah and better reflect current Muslim societies.

This is not extraordinary among the ummah: the trend in Muslim countries around the world is law reform. Religious and legal authorities in other Muslim nations are recognising the problematic aspects of their current family laws and reforming them tobe more egalitarian and just. It is only right that Malaysia begins to do the same.