Once we had progressive Islamic family laws, says ex-mufti

Ismail Yahya, former mufti and chief shariah judge of Terengganu, says Islamic family laws in Malaysia have regressed over the years.

PETALING JAYA: Islamic family laws as practised in Malaysia have become regressive despite a progressive shariah federal Act some four decades earlier, said a former Terengganu mufti.

Ismail Yahya, who also served as the chief shariah judge in Terengganu, cited how amendments to the Islamic Family Law (Federal Territories) Act some 15 years ago have made it easier for Muslim couples to divorce, as well as for men to take more than one wife.

Ismail said the Act, introduced in 1984, was supposed to act as the model for Islamic family laws in other states, with provisions such as the need for both husband and wife to be present in court when seeking a divorce.

He said it ensured that divorces were only formalised in a court of law and not by mere utterance by the husband during a heated argument.

“When a divorce needs the permission of the shariah judge in court, the judge can assess both parties to ensure that the party seeking a divorce is in the right frame of mind,” he told FMT.

Ismail said amendments in 2005 changed this, and the requirement that both parties should attend court for a divorce was “loosened”.

Since then, divorces can be recognised even if pronounced outside the court, with the shariah court only confirming it later.

He said this was in contrast to more strict divorce proceedings in Indonesia and Singapore.

Ismail said the 2005 amendments also eased conditions on polygamy, when previously a shariah judge would evaluate applications for polygamy to ensure they are “patut dan perlu” (appropriate and necessary).

Explaining how a minor change to the phrase “appropriate and necessary” changed all that, he said: “In 2005, the words ‘necessary and appropriate’ were changed to ‘necessary or appropriate’ making the burden of fulfilling the requirement for polygamy lighter.”

It means the husband only needs to show that his proposed marriage is “necessary”, and not whether or not it is “appropriate” for him to practise polygamy.

He said “necessary” could mean that the wife is unable to bear children, while “appropriate” could mean that the man wanted to help a single mother by taking her as his wife.

The 2005 amendments had come under criticism from Muslim women empowerment group Sisters In Islam, who said it also undermined the wife’s right to her husband’s property.

Despite objections from women’s groups, the amendments were passed and gazetted.

Last month, Muslim women’s rights activist Zainah Anwar said amendments in the 1990s and 2000s removed many progressive reforms made previously.

Zainah, who heads international rights group Musawah, also said Malaysia’s Islamic family laws went from one of the best in the Muslim world to one of the worst.

“What is galling is the fact that for non-Muslim women, law reforms have moved forward to recognise equality. But for Muslim women, in the name of Islam, you can be discriminated against,” she said.