Financial support for women under Islamic family law in Bangladesh and Malaysia

Abstract

This article looks at the application of Islamic Family Law through decisions of the courts on matters of financial support for Muslim women after divorce in Bangladesh and Malaysia. The selection of the two countries was deliberate in that both are former British colonies with Muslim majority populations. In addition, both have ratified the United Nation's Convention on the Elimination of All Forms of Discrimination on Women (CEDAW), with reservations. Comparative generalization is made, wherein selected cases of alimony in both countries are analysed. Although Bangladesh and Malaysia are both Muslim countries, there are differences and similarities in how the courts in both countries construe legal provisions in making rulings. The differences, as reflected in their decisions, are influenced by various factors, most notably relating to socio-cultural aspects.

Abstract in Bahasa Malaysia

Artikel ini meninjau aplikasi Undang-undang Keluarga Islam melalui analisis keputusan mahkamah di dalam perkara berkenaan nafkah untuk wanita Islam selepas perceraian di Bangladesh dan Malaysia. Pemilihan dua negara ini adalah khusus memandangkan keduanya adalah negara bekas jajahan British dengan populasi yang majoritinya adalah orang Islam. Tambahan pula, kedua negara ini juga telah menandatangani perjanjian United Nation's Convention on the Elimination of All Forms of Discrimination on Women (CEDAW), dengan beberapa pengecualian (reservasi). Perbandingan umum digunakan, di mana kes-kes terpilih dalam perkara nafkah di kedua-dua negara telah dianalisa, Walaupun Bangladesh dan Malaysia keduanya adalah negara majoriti Muslim, terdapat persamaan dan perbezaan di dalam prosedur di mahkamah terutama bagaimana mahkamah di kedua-dua negara mentafsirkan peruntukan undang-undang dalam membuat keputusan. Perbezaan ini, dapat dilihat di dalam keputusan-keputusan mahkamah yang banyak dipengaruhi pelbagai faktor. Antara faktor utama adalah berkaitan aspek sosio-budaya.

Keywords:

• post-divorce financial support
• Shariah
• legal provisions
• Muslim women
• divorce
• Bangladesh
• Malaysia

Keywords:

• bantuan kewangan selepas perceraian
• Shariah
• peruntukan Undang-undang
• wanita Islam
• perceraian
• Bangladesh
• Malaysia

Acknowledgment

Part of the research carried out for this article was made possible through the University of Malaya Research Grant (RG242-11HNE). The authors would also like to thank Ms. Aminah Abdul Hamid for her assistance in collecting the data and providing technical services.

Notes on contributors

Raihanah ABDULLAH is Professor at the Department of Shariah and Law, Academy of Islamic Studies, University of Malaya. Her areas of interest include Islamic Family Law, Islamic Law and Gender and Islamic Law and Society. Her co-authored publications include Raihanah Abdullah, Silmi Abdullah and Nahid Ferdousi, 2015, The Fragile Status of a Muslim Wife: The Legal History of Polygamy in Malaysia, Journal of Family History, 40(2): 135–152; Hilal Wani, Raihanah Abdullah, Chang Lee Wei, 2015, “An Islamic Perspective in Managing Religious Diversity”, Religions, 6(2): 642–656 and Raihanah Abdullah, Wirdati Mohd Radzi, Fuadah Johari & Golam Dastagir, 2014. The Islamic Legal Provisions for Women's Share in the Inheritance System: A Reflection on Malaysia Society. Asian Women, 30(1): 29–52. She was elected as one of the first in a group of 18 commissioners in the Independent Permanent Human Rights Commission, Organization of Islamic Cooperation (OIC) representing Malaysia until 2017. She is currently the Dean of the Humanities Research Cluster, University of Malaya.

Taslima MONSOOR is Professor at the Department of Law and Dean of the Faculty of Law of Dhaka University since 2010. She has contributed numerous books and written articles in national and international journals. Her first book was titled “From Patriarchy to Gender Equity, Family Law and its Impact on Women on Bangladesh.” She was elected Governor of the International Association of Law Schools (IALS) from 2014–2016. Her areas of interest include family law, human rights, judiciary, gender, environment, education and developmental issues. Email: [email protected]

Fuadah JOHARI is a Senior Lecturer at the Faculty of Economics and Muamalat, Universiti Sains Islam Malaysia (USIM), Malaysia. She completed her PhD in 2011, Master's Degree in 2004 and Bachelor Shariah (Hons) in (Shariah and Economics) in 1999 from University of Malaya, Kuala Lumpur. She is also the Coordinator for the Center of Awqaf (Islamic Endowment) Financing Development, USIM. Her areas of research interests include Islamic economics and Islamic economic development, specifically on Ijtimai economy and gender studies. She has also presented and published several articles in various national and international conferences and journals and chapters in books. Email: [email protected]

Wirdati MOHD RADZI is a Senior Lecturer and Researcher at the Sports Centre University of Malaya, Kuala Lumpur. Her research interests include sports law and sports management, sports and leisure policy, women and sport and Muslim women and sports. As a researcher, she was involved in the 2004 Women and Leadership in the Olympic Movements Project, a joint international project of the International Olympic Committee (IOC) and Loughborough University, involving over 22 countries. She is currently the President of the Malaysian Association for Sport Management (MASMA) and Treasurer of the Asian Association for Sport Management (AASM). Email: [email protected]

Notes

1. Iddat is the four-month long (or completion of three menstrual cycles) period of waiting observed by a divorced woman before commencing a new contract of marriage with a view to ensure that she is not pregnant following her previous marriage.

2. Taaliq is a stipulation of a vow expressed by the husband after the solemnization of the marriage. The breach of that vow renders the marriage void.

3. Fasakh is a dissolution of marriage applied for by either husband or wife and granted by the Shariah Court judges, because of reasons justified by Islamic law.

4. Talaq is divorce by mutual consent, with the permission of the Shariah court, after a spouse makes an application to the Court by filing a specific form and both parties agree to divorce.