Islamic Family Law In Malaysia Case Study

5.0 INTRODUCTION

Islamic law signifies an all encompassing codes of behavior intended to regulate all aspect of an individual’s life. The Islamic law includes not only personal law but also religious duties, ritual obligations and suitable behavior. As far as Islamic law in Malaysia is concerned, the codification of law and its development proved to be enlightening. Thus this chapter will confine its discussion to the growth of Islamic family law in Malaysia, the legal framework concerning ḍarar and its relation as a ground for fasakh divorce in Malaysia, as well as interpretive effort of Syarie judges on the scope of ḍarar based on the decided cases.

5.1 HISTORY AND DEVELOPMENT OF ISLAMIC LAW IN MALAYSIA

History has shown that Islamic elements

The committee recommended that the Kelantan state government enact separate legislation, focusing on certain aspects of Islamic law enforceable in the state. As a result, new laws were drafted which covered Islamic family law, the structure and organization of Islamic judiciary and judicial procedure including laws of evidence. In 1983 the Kelantan state legislature passed the Islamic Family Law Act, followed later by the Syariah Court Enactment, the Syariah Criminal Procedure Code and the Syariah Civil Procedure Code. The other states follow suit in doing away with the Administration of Muslim Law Enactments and reformulating the substantive rules of Islamic law into separate and more detailed

In the case of Maznah bte Kassim v Othman bin Nordin the plaintiff applied to the court for a judicial separation of fasakh on the ground that her husband failed to fulfill his marital obligations for a period exceeding one year, constant disagreement (syiqāq) and in a way, it was torturing for both parties. She stressed on the fact that the defendant had failed to provide conjugal relations (nafkah batin) for a few years. Although the parties were staying under one roof, they were indifferent towards one another which worsened the situation. The defendant in his statement admitted that he had not performed conjugal relations for approximately more than five years and that he had a reason for doing so but it was not stated in his evidence. The court judgment elaborated that it is the responsibility of a husband to place his wife in an honourable position without hurting or humiliating her. The court contended that one of the reasons for marriage is to have lawful sexual relation that is pleased by Allah the Almighty, therefore there can be no reason for the parties to deny their rights towards each other as far as they can afford to do so and as long as there are no health problems or grounds permitted by Shari’ah to deny this right. The court also found in favour