Global Repository of Muslim Family Laws

Main Laws that Govern Muslim Marriages

1. Islamic Family Law (Federal Territories) Act 1984 (IFLA)
2. Administration of Islamic Law (Federal Territories) Act 1993
3. Syariah Courts Civil Procedure (Federal Territories) Act 1998
4. Syariah Court Evidence (Federal Territories) Act 1997
5. Syariah Criminal Offences (Federal Territories) Act 1997
6. Syariah Courts (Criminal Jurisdiction) Act 1965

Despite the equality guarantee in Article 8 of the Constitution, the Islamic Family Law (IFLA) provides for a marital framework based on ‘reciprocal’ or ‘complementary’ rights (rather than ‘equal’ rights) between the two spouses, whereby a wife is expected to obey her husband in exchange for maintenance and safety. The IFLA potentially restricts the personal rights of a Muslim wife as a result of its maintenance-for-obedience legal framework. For instance, a wife risks losing her financial maintenance under certain circumstances.

Status of Husband and Wife in Marriage

The Islamic Family Law Act (IFLA) has been amended to make it gender-neutral. On one hand, men have been accorded more rights. Such enhanced rights include: 

• Reducing the husband’s burden of proof to justify polygamous marriage. The husband need only provide proof that such a marriage was either “just or necessary” as opposed to “just and necessary” as was the case in the past; and 
• Providing husbands with the ability to freeze the assets of their wives or stop them from disposing of their property for the purposes of division of matrimonial assets (harta sepencarian),

On the other, there was no corresponding enhancement in the rights of women, thus placing women in a more vulnerable position than in the past. For instance, despite the increase in the financial rights of men as a result of amendments that were made to IFLA, a woman’s right to maintenance remains restrictive in that she must obey her husband or risk losing her financial maintenance.

Husbands are afforded with expansive rights to initiate nusyuz proceedings against the wife either under civil proceedings (through the Court) or criminal proceedings (through the State’s Prosecution Department).^{“Pensabitan Nusyuz Isteri di Mahkamah Rendah Syariah Ipoh Perak (Translated as: Conviction of Nusyuz of Wife in the Syariah Subordinate Court of Ipoh Perak)”, Amir Fariz bin Che Man, Zaini bin Nasohah, dan Fasahah binti Haji Abu Mansor, Journal of Human Development and Communication Volume 3 (Special Issue), 2014 [27-46]}  

On one hand, he can file a nusyuz application in the Shari’ah civil court in addition to a main application ^{Practice Direction No. 11/ 2001, “Nusyuz case”, http://bsktransit.jksm.gov.my/aa/uploads/112001.pdf (original text in Bahasa Malaysia)} e.g. divorce. The consequence upon a nusyuz conviction is the wife will be denied maintenance. On the other hand, husbands can initiate criminal prosecution against the wife by lodging a complaint to the Prosecution Division of the Islamic Religious Department. 

An investigation under criminal proceedings will trigger Section 129 IFLA as the matrimonial penalty provision. The consequence upon a nusyuz conviction is the wife can be monetarily penalised.

In court, there is a lack of procedural clarity regarding the nusyuz process. While it is a significant factor to consider when determining a wife’s access to maintenance, there is no corresponding impact/penalty for a husband who neglects his wife’s maintenance.

Polygamous marriage – the burden of proof to enter a polygamous marriage is lowered ( just or necessary as opposed to just and necessary ( pre- 2006 amendment)), emphasis is put on whether the husband has financial means to enter into a polygamous marriage, wife’s / wives’ consent is not legally required ( no equality in marriage ) but they can be called by the court to give testimonies. 

Wife/wives’ redress is limited to only seeking a declaration of maintenance for themselves and their children, matrimonial property division and fair turn, or divorce.

The use of gender-neutral language impacts women negatively in matrimonial property division. A husband is legally allowed to claim his wife’s matrimonial assets in the event of divorce.  

A father has priority right over the guardianship of his children followed by the paternal grandfather. A mother may only be appointed as guardian of her children by the court in the absence of any other guardian as specifically stipulated by law. In such cases, the court may also appoint a joint guardian.

Minimum Age of Marriage

The minimum age of marriage is 16 for Muslim girls and 18 for boys, with permission from the Shariah court, it can go lower.

Positive Feature(s) Under Muslim Family Law

Family Support Division (BSK) Support Services

BSK^{Family Support Division Help Services, https://www.malaysia.gov.my/portal/content/28866} is a Division established under the Department of Syariah Judiciary Malaysia (JKSM) to enforce maintenance orders issued by the Syariah Court –  to ensure that maintenance orders issued by the Syariah Court are complied with and fulfilled by the former husband/father to the former wife/children.

BSK also offers BSK transit programme which is a free temporary accommodation service for parties/witnesses who are attending case proceedings in the Shari’ah Court of Federal Territories of Kuala Lumpur and Putrajaya, parties involved in mediation in the Legal Aid Department (JBG) of Kuala Lumpur and Putrajaya, and parties involved in Tribunal for Consumer Claims cases. It is a service provided for those from outside of the Klang Valley area,especially for single mothers.

Apart from free accommodation, BSK Transit guests may claim transportation and meal costs throughout the duration of their stay.

Key Performance Indicator (KPI) for Syarie Judges

Judges are required to complete every trial or case within 6 months^{Sinar Harian, 17 Januari 2019, “Kes Syariah Perlu selesai dalam tempoh 6 bulan” (Translated to: Shari’ah cases must be resolved within 6 months) https://www.sinarharian.com.my/article/8062/EDISI/Terengganu/Kes-syariah-perlu-selesai-dalam-tempoh-enam-bulan}. Written court orders for parties who are not represented by Syarie lawyers must be ready and completed within 5 working days after the decision is read out^{Practice Direction No. 2/2018, “Period to complete orders”, (Original text in Bahasa Malaysia), https://jksnpp.penang.gov.my/dmdocuments/PekelilingKHS_Bil_3_2018.pdf}.

Administration Of And Access To Justice On Marriage And Family Matters

In Malaysia, the personal laws for Muslims (which includes matters like marriage, divorce, child custody etc) are governed by the Shari’ah laws, under the purview of each States, pursuant to the first paragraph of the State List (List II) of the 9th Schedule of the Malaysian Federal Constitution^{Paragraph 1 of List II (State List) of Ninth Schedule of Malaysia’s Constitution (1957), p.198, https://lom.agc.gov.my/ilims/upload/portal/akta/LOM/EN/Federal%20Constitution%20(Reprint%202020).pdf}. 

The adjudication of any Shari’ah matters are determined by the Shari’ah Courts, pursuant to Article 121(1A)^{Article 121(1A) of the Federal Constitution (1957), p.112, https://lom.agc.gov.my/ilims/upload/portal/akta/LOM/EN/Federal%20Constitution%20(Reprint%202020).pdf}. 

Meanwhile the Shari’ah Courts sentencing jurisdiction is provided for under the Shari’ah Courts (Criminal Jurisdiction) Act 1965, that includes fines, imprisonment and/or caning.

Meanwhile for non-Muslims, their personal laws adjudication is carried out in the secular civil courts, governed by the secular civil laws. 

Constitutional Provisions

The Federal Constitution of Malaysia guarantees a person’s equality and equal protection before the law in Article 8. It further recognises ‘gender’ as grounds of discrimination “except as expressly authorized by the Constitution”. Article 8 (5) specifies that this Article shall not be construed as invalidating personal law regulation. Personal law encompasses Islamic and family laws.  The States of Malaysia (13 in total) are empowered to enact legislation on any of the subjects included in the State List, the Ninth Schedule, or the Concurrent List (Article 74(2)). The first paragraph of the State List enlists Islamic law and personal and family law of persons professing the religion of Islam, as among others, the Constitutionally limited areas on which the Shariah legislation is allowed to be made.

Other National Laws

• Is there civil legislation on domestic violence and/or gender-based violence? Does it apply to the Muslim population? 

There are 2 (two) civil legislation addressing domestic violence or gender-based violence which are; Domestic Violence Act 1994 (DVA) and Penal Code (Act 574). The Domestic Violence Act was gazetted on 07 July 1994 and applies to all persons in Malaysia, regardless of religion and beliefs. The Penal Code was first enacted in 1936 and applies to any person within Malaysia and extends for offences against the State to citizens and permanent residents of Malaysia on the high seas and beyond the limits of Malaysia. Both laws apply to the Muslim and non-muslims population in Malaysia. 

• Does the penal code have provisions against domestic violence, marital rape and/or harmful traditional practices? 

The Penal Code defines rape in Section 375, but explicitly exempts husbands (who rape their wives) from the offence. Section 375A of the Penal Code offers some protection but is inadequate because:

1. The punishment in Section 375A (up to 5 years imprisonment) is more lenient compared to rape (up to 20 years). 
2. Section 375A does not recognise rape, but rather, a husband causing “hurt or fear of hurt or death”. But rape can happen without hurt or fear of hurt – for example through intoxication or other forms of coercion. 
3. The exception to Section 375 sends the wrong message – that sexual assault within marriage is not serious^{https://wao.org.my/wp-content/uploads/2018/11/WAO-Policy-Brief-2018-1-Marital-Rape.pdf}.

Penal Code does not cover domestic violence and harmful traditional practices specifically, but generally the Penal Code does cover the act of causing hurt. The DVA covers the bulk of offences in marital relationships but is not extended to offences in non-marital partnerships. The two statues must be read in-tandem. 

•  Any other relevant national law that applies to marriage and family matters? 

Issue of unequal rights to confer automatic citizenship on Malaysian women overseas-born children – Federal Constitution

Issue of child adoption – Adoption Act 1952

Issue of matrimonial property or inheritance might relate to – National Land Code 

Issue of spouse’s death, or determine the existing lineage for inheritance, child adoption, child born out-of-wedlock – Birth and Death Registration Act 

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Malaysia ratified CEDAW in 1995. Malaysia’s reservations still remain on five CEDAW Articles: 9(2), 16(1)(a), 16(1)(c), 16(1)(f) and 16(1)(g). In its Third through Fifth Periodic Report, the government continues to justify the reservations as contextual and falling within the scope of Islamic Law.

The last CEDAW review was in February, 2018

• Links to CEDAW reports that refer to Muslim family laws and practices

1. Sixth Periodic Report (2022)
2. Combined Third to Fifth Periodic State Reports (2016)

• Links to Concluding Observations That Refer to Reform of Muslim Family Laws and Practices 

1. Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia
2. Information received from Malaysia on follow-up to the concluding observations on its combined third to fifth periodic reportshttps://www.kpwkm.gov.my/kpwkm/uploads/files/Penerbitan/instrument_antarabangsa/Discrimation%20against%20women%20CEDAW/7_%20Malaysia%20report%20on%20Follow-up%20to%20CEDAW%20Concluding%20Observations%20(2020).pdf

• Link to Musawah’s CEDAW reports on Malaysia

1. Musawah and Sisters in Islam Joint Thematic Report on Malaysia (2018)
2. List of Issues Submission on Family Law and Muslim Women’s Rights in Malaysia (2023)

Any other relevant regional or international treaty or convention signed by Malaysia

Other treaties

Convention on the Rights of the Child, 1995

Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography and Optional Protocol on the Involvement of Children in Armed Conflict, 2012

Sustainable Development Goals

Malaysia adopted SDG 2030 in 2015. 

Malaysia Sustainable Development Goals Voluntary National Review 2017, https://sustainabledevelopment.un.org/content/documents/15881Malaysia.pdf

Malaysia Voluntary National Review (VNR) 2021,

https://www.epu.gov.my/sites/default/files/2021-07/Malaysia_Voluntary_National_Review_%28VNR%29_2021.pdf

Malaysia SG Indicators

http://mysdg.dosm.gov.my/

A report on Malaysia’s progress and commitment to the Sustainable Development Goals (Goal 5, Indicator 5.1.1)^{https://www.musawah.org/resources/a-report-on-malaysias-progress-and-commitment-to-the-sustainable-development-goals-sdg-5-1-1/}

• By local researchers, activists and civil society groups

Sisters in Islam (SIS);

https://sistersinislam.org/

SIS works on Law and Policy Reform, Outreach and Empowerment, Advocacy and Research to improve laws and policies and raise public awareness on a range of issues such as matters that fall under the Islamic Family Law i.e. polygamy, equal right to guardianship of children and others, SIS also provides free legal advisory services to women and men on their legal rights under the Islamic Family Law and the Syari’ah Criminal Offences Law.

• By government agencies/committees

E-Syariah Official Portal;

http://www.esyariah.gov.my/portal/page/portal/Portal%20E-Syariah%20BI/E-Syariah%20Main%20Portal

This is a website by  Syariah Judiciary Department Malaysia, to make a central agency that is competent to realise the standardistion of the Islamic legal system to uphold justice and to streamline the provisions of Islamic law throughout the country and manage appeal cases effectively and systematically.

• By international bodies

1. Human Development Report (2016) http://hdr.undp.org/sites/default/files/2016_human_development_report.pdf
2. Millennium Development Goals Report: Malaysia (2015) https://www.my.undp.org/content/malaysia/en/home/library/mdg/malaysia-millennium-development-goals-2015-report-.html 
3. World Marriage Data 2015 https://esa.un.org/ffps/Index.html#/maritalStatusData
4. Malaysia State party report, U.N. Doc. CEDAW/C/MYS/1-2 (2004) http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx 
5. The World Bank, “Labour force participation rate, female (% of female population ages 15+) (modelled ILO estimate)”, http://data.worldbank.org/indicator/SL.TLF.CACT.FE.ZS

1. #PelajarBukanPengantin campaign to end child marriage in Malaysia: https://www.instagram.com/pelajarbukanpengantin/?hl=en
2. #FikirBalik #SunatPerempuan #PerluKeTidak – to end FGM practices in Malaysia: https://www.instagram.com/p/CKyheUNp9pw/
3. #KisahPoligamiKami – to tighten the polygamy law and implementation of the law under the Islamic Family Law: https://www.instagram.com/p/CKglHvTpk8k/
4. #MarriageIsNotLicenseToRape #WifeShouldBeRespectedNotViolated – Pushing for marital rape to be recognised as a crime under the Malaysian law, both in civil and Syariah law: https://www.instagram.com/p/CaYlkIvJ5rk/
5. #AbortTheStigma Sexual Abuse In Marriage: https://www.instagram.com/p/CYYTMffJ5e5/
6. #UlamaBersamaWanita is a campaign affirming women’s rights to challenge the extreme interpretation of religion that justifies the subjugation of women. The aim is to empower religious, community and youth leaders, policymakers, and academics who are defenders of women’s rights in a counter-extremism framework: https://kmumalaysia.org/ulamabersamawanita/

1. Sisters in Islam (SIS): https://sistersinislam.org/
2. Komuniti Muslim Universal (KMU): https://kmumalaysia.org/
3. Gabungan Hak Wanita Islam Malaysia (GAHWI):  https://www.facebook.com/GAHWI.MALAYSIA/