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Lessons from Manohara


Beware the big bad wolf (Ralf Kraft / Dreamstime)
BACK in May and June this year, the story of Indonesian teen model Manohara Odelia Pinot and her escape from her Kelantanese prince husband dominated headlines for its sensationalism and high drama. Who could resist a real-life soap opera with allegations of mental and physical abuse by a prince on his 17-year-old bride?

Beyond the drama, it was also possibly the first time that many, especially non-Muslims, learnt that under syariah law, a husband could order his wife to return to him. This was what Tengku Muhammad Fakhry Sultan Ismail Petra, 31, did on 5 July 2009, asking Manohara to be loyal to him and to repay a debt of RM972,750, which he later revised to over RM1 million.

More importantly, what was not revealed in the media scripts about a teenage beauty escaping from the clutches of a purportedly evil prince was that beyond Manohara, a particular trend has been developing in syariah law. The number of applications for “perintah kembali taat” by husbands against wives has been on the increase in recent years, observes syariah lawyer Saadiah Din. And wives who don’t return to their husbands within a stipulated time can be declared nusyuz by the syariah court. In Bahasa Malaysia, nushuz is translated as derhaka: disloyal, rebellious or treacherous.

Safeguard for husbands

Once a little-known application in Islamic law, more men are requesting the syariah courts for such an order to forestall the consequences of a subsequent divorce.

While Saadiah points out that it is illogical to demand loyalty from a wife who has valid reasons to leave her marriage, Malaysian Syariah Lawyers Association (PGSM) deputy president Musa Awang says it is necessary as a safeguard for husbands.

He concurs with Saadiah’s observation that the number of perintah kembali applications has increased. Although no statistics are available, he says they have grown since 2005, owing to greater awareness among men about the law. Some in the syariah legal community have in fact made concerted efforts to promote the application, he adds. This, Musa says, was in response to complaints by men who were separated from their wives for a lengthy period until their divorces were finalised.


Manohara
Without a nusyuz declaration, should the divorce take place many years after the estrangement, the husband would still have to pay nafkah or maintenance for the interim period of separation. Conversely, a nusyuz wife would not be entitled to receive maintenance. And if the couple divorces eventually, the wife forfeits her right to receive the backlog of nafkah from the time she was declared nusyuz until the divorce is finalised. An unrepentant wife can also be punished with a fine for disobeying her husband under the Islamic Family Law (Federal Territories) Act 1984.

Islamic law stipulates that a wife is nusyuz under the following circumstances: when she withholds her association with her husband; when she leaves her husband’s home against his will; or when she refuses to move with him to another home. A wife ceases to be nusyuz once she repents and obeys her husband.

These circumstances are identical under Section 59 of the Islamic Family Law (Federal Territories) Act 1984, and Section 60 of Selangor’s Islamic Family Law enactment. In both laws, the clear benefit for a man to have a nusyuz wife is that he is exempted from paying his wife’s maintenance for so long as she holds that status.

Musa says this is a “safeguard” for husbands until divorce is finalised, especially if wives have dishonest reasons for leaving a marriage. Jemaah Islah Malaysia (JIM) president Zaid Kamaruddin agrees with Musa that the law on nusyuz should be maintained because obedience is “part and parcel” of Islamic marriage.

Un-Islamic?

Saadiah, however, argues that forcing someone to be loyal to another is un-Islamic. “I usually decline clients who want to file for perintah kembali,” Saadiah tells The Nut Graph in a phone interview. “I believe nusyuz should be repealed from enactments because the idea of forcing someone is un-Islamic.”

In most cases, if a wife has reached the point of leaving her husband, there would be little to compel her to remain married. Saadiah cites domestic violence or a man’s unfaithfulness as legitimate reasons for a wife to leave a marriage.

Perintah kembali and nusyuz can also be abused by husbands to shortchange wives who are survivors of domestic violence, Saadiah notes. Women who cannot immediately afford to hire a lawyer may move out of the marital home first, and it is while they are looking for legal aid that the husbands file to demand their loyalty, she adds.

But Musa argues that under the law, the syariah courts will not declare a wife nusyuz if she has valid reasons and presents these in court. These include being abused, being denied her dues as a wife as required under Islamic law, or if the husband becomes polygamous without her permission.


Zaid Kamaruddin
Adds JIM’s Zaid: “The husband’s responsibility is to provide nafkah; and on the wife’s part, she is to be obedient. But it is conditional obedience according to other laws in Islam. If she says she is abused, she must prove it.”

Responding to Saadiah’s contention that nusyuz declarations ought to be abolished, Musa says, “The wife will get her chance to defend herself and make counter-claims. The court will not declare nusyuz right away upon the husband’s application.” In most defences by wives, a divorce application is included, he notes.

Musa also claims that more often than not, the court rejects the husband’s perintah kembali application and does not issue a nusyuz declaration on the wife. “In about 60% of cases, the wife has reasonable grounds to leave the marriage,” Musa admits. He says a declaration is usually issued when the court hears the husband’s application and the wife is absent in court despite being summoned.

Shared responsibility missing

But apart from the fact that the syariah courts in Malaysia have been ever so slow in dispensing justice to Muslim women, a larger problem prevails. Sisters in Islam legal officer Nazreen Nizam notes that the shared responsibility for a marriage is not reflected in the law when it comes to nusyuz, even though the Quran addresses circumstances where husbands are nusyuz, too.

Justice should also be in the text of the law, and not just at the court’s discretion, argues Nazreen, who also supports the abolishment of the clauses on nusyuz for wives.

“It is not enough to say that the court will allow the wife to give her defence,” she says. “Why does the law only address nusyuz for the wife and not for the husband? The Quran talks about the husband being nusyuz and lays responsibility for a marriage on both parties; so in the law, he should be equally liable to nusyuz.”


Musa Awang
While Musa contends that a nusyuz declaration only affects nafkah and not the woman’s right to custody and matrimonial property after the divorce, Nazreen paints a different picture. A nusyuz wife can affect the court’s perception when deciding the division of assets, she says. “It stigmatises the woman and has bearing on the court’s decision.”

As such, a nusyuz wife, if she fails in her defence against her husband’s perintah kembali order, is victimised a second time if the court’s judgement on the divorce is coloured by her status.

Tengku Fakhry’s application for Manohara to return to him is expected to be heard later this year in 2009, according to news reports. Separately, in the civil court, the prince has also sued his wife and her mother for RM105 million for defamation.

The truth about Manohara’s claims aside, her riveting tale has highlighted an application under Islamic law that is gaining in popularity among Muslim men. And perhaps more critical than the story of a young beauty escaping her prince is the problematic application for nusyuz in Malaysia — no less, it would seem, because of its selective interpretation of the Quran.

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14 Responses to “Lessons from Manohara”

  1. Azizi Khan says:

    Deborah,

    Thank you for your reseach and effort [in] writing this article. This is what many Malaysian Muslims and I have been saying all this while. That Syariah law enactments in Malaysia are improper and do more harm than good.

    Look at it this way – under current civil law divorce cases, there is equal safeguard for both parties. The law is only biased towards the women in cases where children are involved, in my opinion.

    But in syariah laws in Malaysia:

    - it’s implemented differently in each state and thus interpreted differently in each state.

    - even a simple process of marriage becomes extremely complex because some states recognise “illegal marriages” (i.e. married man running off with a woman and getting married in Golok, Thailand) while others don’t.

    - divorces are extremely biased towards men; even if divorce is granted, it’s a widely known fact that its easier to squeeze blood out of stone than get many of these men to pay alimony.

    - cases are parked for years, meaning that all the Muslim man has to do is “talak tiga”, then off he goes having fun with his new plaything. While the former wife and children struggle to pay for food, school books etc.

    - even “syariah experts” can’t agree with the laws due to the implementation making things harder for the average Muslim.

    What I’m saying is not something new. It happens everyday and all around us. We all know someone who is stuck in syariah limbo. One has to understand syariah is still interpreted and implemented by [humans] and we have to understand what they say about best intentions.

  2. Farish A Noor says:

    It is interesting to note that in the interviews cited above in your article, the term “obedient” comes up time and again, as if the basis of marriage is obedience and loyalty, rather than love. One would have thought that the latter was the primary reason for any couple to tie the knot, and that obedience and loyalty are secondary and only obtained when love is present. Apparently, this idea is foreign to some of the moral guardians in our society today, which is a sad reflection of what kind of society we live in at present.

  3. rowena says:

    “While Saadiah points out that it is illogical to demand loyalty from a wife who has valid reasons to leave her marriage, Malaysian Syariah Lawyers Association (PGSM) deputy president Musa Awang says it is necessary as a safeguard for husbands.”

    A safeguard for husbands?! Who safeguards the wives?!

  4. Nicholas Aw says:

    My hats off to you Deborah for your sheer guts [in writing about] an issue [that touches] on Islamic laws in Malaysia. Somehow, discussion concerning Islam is a rather touchy subject and generally Muslims get overly-sensitive.

    Some of my Muslim friends admitted that generally, Islamic laws favour the men. In fact, universally, men have always been in control of almost everything in the world. Of course this has changed a lot especially in the West where gender equality is a big issue and words like “chairman” and “he” and “she” are now avoided. These are now replaced with “chairperson” and “they” respectively.

    In Malaysia, gender equality is slowly taking shape and I notice that even The Nut Graph avoids using words which are gender-biased. However, we are still a long way to go. As far as Islamic laws are concerned, it would be almost impossible to segregate gender bias from the religion.

  5. MarinaM says:

    This is not that different from the current Daphne Iking case where husbands can charge another man with enticement of his wife. It basically hinges on the idea that a woman belongs to her husband and therefore must be obedient. The idea that she may have her own mind is not entertained at all. Both these laws are archaic.

  6. Azura says:

    The women need to prove themselves – abuse, sexually sodomised by husbands. How long will the process of proving take? Why focus on the “reasons” to leave? Why just focus on “it’s over”, make it easy on the divorce process instead of being critical on the reasons?

    Reasons are not supposed to be the focus point, when a person dislikes even the look of her/his spouse , (maybe too ugly or for that matter the husband has grown fat) she/he has got good grounds to leave.

    Syariah systems should assist divorce cases instead of judging personalities. They are not clear of their role. As to why divorce happens, it’s up to the couple. When one person wants to leave, the marriage is over, why need to prove anything? Just make it easier on the process. Why does the Syariah court get themselves entwined with personal problems?

    I despised reading it, but that is the naked truth about our system. To file for a divorce it can be as long as seven years.

    Harta sepencarian should be given 30% to wife at the minimum whether she is a prostitute or infidel.

    She was part of that marriage. There are children involved.

    Talking about this …everyone can talk and give their “intelligence” but the one who will endure the process of proving and going up and down to court is the one who has more right to talk rather than some clowns who are heads of some NGOs

  7. SHAH ALAM: The Syariah High Court has sentenced deviationist sect leader Abdul Kahar Ahmad, who proclaimed himself a “Rasul Melayu” (Malay Prophet), to 10 years’ jail, six strokes of the rotan and a fine of RM16,500.

    The 59-year-old father of six had on Sept 24 pleaded guilty to five charges under the Selangor Syariah Criminal Enactment Act for proclaiming himself a prophet of the Malays, conducting deviationist teachings, violating the Selangor Mufti’s order, blasphemy and spreading false beliefs.

    He was accused of committing the offences at No 44 Jalan Bunga Ros, Kampung Kemensah in Hulu Klang between May 10 and June 23, 2005.

    Abdul Kahar had claimed trial in August 2005 when he was charged with the five offences but over the past three years, he has allegedly preached the deviationist teachings of Kahar Ahmad and played hide-and-seek with the law.

    THIS WRITER SHOULD BE CHARGED AT [THE] SYARIAH COURT, TOO.

  8. Alan Tan says:

    This is a beautifully written piece. It certainly taught me a lot.

    I still wonder what kind of man would publicly demand that a runaway wife return to the fold.

    Embarassing that a PRINCE can’t keep a 17-year-old happy, ain’t it?

  9. Sue Dara says:

    pondokdungunterengganu, it will be better use of this space for you to post comments relevant to this article rather than post some excerpt with intention to intimidate. Or have you not got any thoughts of your own?

    ——————

    I reposted the link to this article on my Facebook and E’d just like to share some comments from friends.

    [friend 1] ain’t it a stinker. hahaha

    [me] seriously, I am rather curious about what you think about this being a muslim guy yourself

    [friend 1] this referring to the manohara case, syariah law, or the part about the ordering?

    [me] the ordering..

    [friend 1] the wife would be under the protection of the husband. thus, ordering the wife back would be the act of protecting the wife. and the wife would be have to obey the husband. it may seem biased, but you have to look at the bigger picture. the husband would have responsibilities of their own towards the wife.

    [me] more often, the husband is the perpetrator of domestic abuse, thus ordering the wife back would be ordering her back to violence. and if the wife is to leave the husband, she of course has reasons (takkan nak main hide and seek?). if she leaves at her own free will (or else it will be kidnapping then), how can one order her to do something against her own free will what more the use of enforcement? women must be empowered to protect themselves or else they will always be vulnerable to abuse

    [friend 1] that’s why I asked what “this” referred to. the flaw lies the practice of the syariah law, rather then the syariah law itself. the wife has the right to leave the husband anyway, if the husband is guilty of abuse.

    [a comment was supposed to be here but i believe it was deleted then reposted]

    [friend 1] 1. because should anything happen to the wife, even if the wife “sengaja cari pasal” it’s the husband [who bears responsibility].

    2. the bigger picture is, you have to look at the marriage from both sides of the coin. some men think it’s biased that only men are told to provide for the family, that the husband is the one that gets punished for the anything done by the wife, but that’s the way it is.

    3. inadequacies? like? don’t get me wrong, I’m not disagreeing, but I don’t quite get you.

    4. the question was asked for the opinion of a muslim man. thus that’s what I gave her. I do consider my religion to be rational, logical, and considerate. disagreeing with this statement is another topic of debate

    [friend 2] questions & comments:

    1, why is it presumed that a wife has to be protected by her husband? in general, why is it presumed that a woman must rely on a man for self-preservation?

    2, “it may seem biased, but you have to look at the bigger picture.” WHAT bigger picture? bias is bias is bias.

    3. and speaking of men’s responsibilities to women: for some (muslim) men out there: can you guys please stop using the Quran/ x religious text & please stop shifting responsibility to Allah/God/etc to justify your inadequacies… coz it’s really getting old.

    4, the question of one being muslim/otherwise; male/female/etc, is irrelevant to being able to answer a reasonable question (of whatever subject, be it gender, religion, etc) in a manner that is logical, rational and considerate.

    5. Re: Syariah Law: the flaw is more than just the practice of it, it is also its formulation. What we have as the construction and practice of Syariah in Malaysia is different from the Syariah in Saudi Arabia, Pakistan, etc.

    Historically it has been men who have been formulating these laws and they are not without their cultural (and may i add, chromosomal) baggage.

    Highly recommended:

    1. The Message of the Qur’an, translation of the Qur’an by Muhammad Asad
    2. Freedom, Equality & Justice in Islam by Muhammad Hashim Kamali.
    3. Principles of Islamic Jurisprudence by Muhammad Hashim Kamali.
    4. Speaking in God’s Name: Islamic Law, Authority and Women by Khaled Abou El Fadl
    5. The Qur’an, Women and Modern Society by Asghar Ali Engineer
    6. The Veil and the Male Elite by Fatima Mernissi
    7. Fiqh Perempuan: Refleksi Kiai atas Wacana Agama dan Gender by Kyai Hussein Muhammad
    [me] i of course have no knowledge of the syariah but it doesn’t mean i can’t give opinions on what concerns women and matters of public affair.

    1. what is “sengaja cari pasal” anyway and does “sengaja cari pasal” happen more often than domestic abuse? Why [is the husband] on the line anyway as one should be responsible for one’s own action?

    2. i think who provides what for the family is up to the family itself and it should not be enforced. under what circumstances is the husband punished for the wife’s err and why are we leaving it “the way it is”.

    3. i don’t get the inadequacies part as well.

    4. it may seem attacking to you but i’m really glad to hear your opinions/ views.

    [friend 1] domestic abuse would seem to occur more, yes. but domestic abuse shouldn’t happen in the first place. a husband can’t lay a finger on the wife. if i’m not mistaken, he can only slap the back on the hand with. even that, you can’t hit hard and with the best intention. (makes me think about the rules of spanking in bed la pulak ;) )

    the question about why the husband is the one that provides for the family is a question i ponder from time to time. should be questioned, but i’m not complaining.

    when i say sengaja cari pasal, what went through my mind was getting drunk [...]. heh.

    back to ordering part, in a way, if the husband would be the one that left, the wife could order the husband back cos he’s not doing his job as a husband.

    anyway, marriages shouldn’t come to that point in the first place.

  10. hasina says:

    “The husband’s responsibility is to provide nafkah; and on the wife’s part, she is to be obedient”, says Zaid of JIM; in a household where the woman is the main provider, is she still expected to be OBEDIENT! Lived realities are changing, one cannot operate solely on norms of a thousand years ago. Speaking as a non-affected party is always easy, look at the reality of women and children who are in limbo particularly when alimony ordered by the court is being defaulted everyday. Let’s examine issues and offer practical solutions, no threats please!

  11. Hang Jebat says:

    Thanks for pointing out another example of how Islam and syariah laws can be twisted to favour men. Another reason why Malaysia’s secular constitution has to be defended vigorously against male chauvanists who are disguised as righteous religious bigots.

  12. Mas Hamzah Fansuri says:

    Thanks, Deborah and The Nut Graph, for this well-written piece. The notion of “obedience” made me think about what happened in my family home in early 1980s. My eldest sister — after years of putting up with domestic violence — wanted to run away and called my parents to tell them. I have a vague recollection of my father telling her to get a taxi (she was in Johor Baru) and tell the taxi driver to take her straight to our kampung house in Muar and we will have taxi money at that end; part of my sister’s abuse is that every penny is accounted for and she will never have enough money in her pocket for that kind of journey.

    My father also said something like this: “Jangan pegi tempat lain. Terus balik rumah. Nanti takut nusyuz.” That was my first encounter with the word “nusyuz”. My parents’ understanding then was that my sister *had* to leave but her destination must be to our family home so we can vouch for her, lest she be charged with being “disobedient” to her husband, his physical blows, kicks and punches notwithstanding. The tyranny of this “nusyuz” threat made my parents — caring and sensible as they try to be — bring it up at that moment of crisis when what really mattered would be my sister’s safety. Of course, the words “domestic violence”, “shelters” and “women’s groups” were not part of our vocabulary then.

    When my parents accompanied her to the pejabat kadhi later to report the abuse, she was asked to bersabar, ambil air sembahyang, sembahyang tahajjud dan berdoa that her husband will change. But that’s another story…

  13. chez says:

    With all respect for Islam and other religions, the ‘obedient’ to your partner and such belongs to a different time. Nowhere have men and women gained an (almost) equal footing than in Malaysia.

    I don’t see why religion must interfere in a marriage. Men and women today are hopefully more mature and informed that in yesteryears.

    A marriage is between two people. Law and religion shouldn’t butt in unless mental and physical health are threatened.

  14. muslim woman says:

    [...] I don’t think you understand your own religion (as you are not practising the book’s teaching). What makes you think you understand someone else’s religion better?


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