A Woman Seeking a Fasakh Divorce (Annulment), in a Hearing Set Aside for the Judge to Deliver His Verdict; Kuala Lumpur, July 19, 2012.Footnote ⁸

This brief hearing followed a number of earlier sessions devoted to resolving the marital problems that the female plaintiff, who was probably in her 30s, brought to the court's attention. She sought to address the problems not by petitioning authorities to force her husband to pay the back maintenance (nafkah) he owed her or to properly fulfill his other obligations as a husband, the path usually chosen by female plaintiffs. Rather the resolution she sought involved requesting that the court annul the marriage so that she would be rid of her delinquent spouse and able to move on with her life.

The case is of interest partly for reasons noted earlier. In Malaysia, as in most of the rest of the Muslim world, fasakh is the primary if not sole option available to a woman seeking to terminate her marriage without her husband's consent or cooperation. This situation is unlike Egypt and a few other Muslim-majority settings (e.g., Pakistan) where a woman may avail herself of unilateral “divorce by redemption” (Ar., khul) so long as she repays the dower (Ar., mahr) the husband provided or pledged to deliver at the time of wedding (or subsequently), renounces certain financial claims, and agrees to other stipulations (Reference SonneveldSonneveld 2012). It also differs from Indonesia where in recent years Islamic courts have effectively legalized unilateral no-fault divorce initiated by women or men (Reference HuisHuis 2015).

Fasakh requires that a woman seeking divorce/annulment present evidence of serious wrongdoing or physical or mental defect on her husband's part, and that she convince the judge that the husband's shortcomings would cause her serious harm (mudarat) should the marriage continue. Neither of these requirements exists in Egypt or Indonesia. This is to say that Egypt's innovative but controversial “khul laws,” which date from 2000, along with their previously noted Indonesian counterparts, are among the most “women friendly” divorce laws in the Muslim world (though recent developments in Iranian and Moroccan family courts are also noteworthy [Reference OsanlooOsanloo 2009, Reference Carlisle and Al-SharmaniCarlisle 2013]). Malaysia has yet to and may never adopt any such laws, but the expansion of grounds for fasakh and their more generous interpretation since the early 1980s suggest a liberalization of grounds for female-initiated divorce/annulment. We see evidence of these developments in this case.

The hearing involved the plaintiff (P) and three men: her lawyer (PL), the judge (J), and the registrar (R). The plaintiff's husband (the defendant) was not present, had not attended previous sessions devoted to this case, despite court orders that he do so, and had not hired counsel to represent him. The registrar initiated the hearing, which had been set aside for the judge's decision, by reading out the case number and the names of the plaintiff and the defendant. The plaintiff's lawyer then rose from his chair and addressed the judge, requesting his verdict concerning his client's petition.

PL: I request the decision of the court, Your Honor.

J: Various notices and summonses have been issued to the defendant, but he has failed to attend all hearings related to the case. The plaintiff has requested fasakh based on six grounds: (1) the defendant hurt/injured (menyakiti) the plaintiff; (2) the defendant neglected his duty to provide nafkah for more than 3 months; (3) the defendant did not provide the plaintiff with nafkah batin (sexual companionship) for more than a year; (4) the defendant disposed of the plaintiff's properties; (5) shiqaq (a state of conjugal disharmony/dissension) has occurred more than once; and (6) … [Inaudible]. There are also oral statements [supporting the plaintiff's contentions] from three witnesses.

After close examination, there is evidence of grounds for fasakh along with consistent statements made by the aforementioned witnesses…. The court orders the plaintiff to swear before the court makes its decision. Are you willing to recite an oath involving potential retribution from Allah (sumpah laknat Allah) in the court?

P: [By this time, perhaps prior to the J's opening remarks, the P had taken her place in the witness box.] Yes, Your Honor.

J: You realize that if you make any false statements, you will incur the wrath of Allah?

P: Yes, Your Honor.

[She proceeds to read the sumpah from the laminated sheet the R handed her.] By Allah, by Allah, by Allah … In the name of Allah, I …[name and IC#] swear that … [defendant's name and IC#] … left me for 3 months without providing nafkah and I have never been convicted of nusyuz [disobedience]. If I lie in this court, I will incur the wrath of Allah.

J: The court decision, Bismillah [il-rahman il-rahim]. The court is satisfied with the statements and evidence collected. The court decides that (1) the defendant is convicted of failing to perform his duties (tanggungjawab) as a husband; (2) the court annuls (fasakhkan) the marriage between the defendant and plaintiff; (3) the marriage certificate is rendered invalid from this day onward; and (4) this annulment is to be registered with the Department of Islamic Religion.

Initial Comment on the Judge's Narrative

Three features of this exchange merit note. First, in rendering his verdict, the judge cites a single generic transgression on the part of the defendant—failing to perform his duties as a husband—rather than the broader range of his legally salient shortcomings outlined in the plaintiff's petition. When delivering his verdict, moreover, the judge did not specify which particular negligence he had in mind—the failure to provide financial support or the dereliction with respect to sexual companionship. Presumably he had in mind the former, as that is the one the wife swore to under oath and it is most likely what the witnesses corroborated.

Second, the judge mentions, without elaboration or clarification, that a state of conjugal disharmony/dissension is one of the grounds for the plaintiff's petition, using the technical Arabic term shiqaq rather than one or another Malay expression that was commonly invoked in judicial narratives and ordinary Malay discourse in times past. The designation shiqaq was almost certainly included in the wife's petition at the behest of her lawyer. The term is not widely known among the lay public and is relatively rarely invoked in courtroom settings, though recent years have seen its increased salience there.

According to some interpretations of classical texts, shiqaq presupposes nusyuz on the part of both husband and wife.Footnote ⁹ In this view, for a state of shiqaq to exist, both husband and wife must behave egotistically, must refuse to accommodate one another, must be unwilling to admit their faults, or must treat one another with cruelty. The idea that husbands, not simply wives, may be guilty of nusyuz is congruent with certain passages in the Quran, which contains five separate references to nusyuz, at least one of which (Surah An-Nisa 4:128) makes clear that husbands may commit nusyuz. It is nonetheless largely out of keeping with the dominant view espoused by the Islamic courts and the Department of Syariah Judiciary, particularly but not only on its websites, that only women may be guilty of nusyuz.

Note in any event that the plaintiff swore under oath that she had never been convicted of nusyuz, and that the judge accepted her statement at face value, rather than proceeding as if she bore the burden of proving her innocence with respect to nusyuz. This is revealing, partly because husbands’ lawyers increasingly endeavor to undercut current and former wives’ claims against their clients by counter-charging the women with nusyuz or threatening to do so. My interviews with court officials indicate that such endeavors usually fall on judges’ deaf ears due to lack of evidence. But they can have a chilling effect on women's commitments to pursuing their cases in court through to their completion or bringing the cases to court in the first place.

Third, the judge cited the plaintiff's claim that the defendant had unlawfully disposed of her property, which, along with “making her life miserable”, falls under the category of “cruelty” in the relevant enactment (discussed below). This raises questions concerning the grounds for fasakh, the ways they have expanded in recent decades, how this expansion has resulted in greater congruence between the sharia courts and their civil counterparts, and some of the contexts in which women are getting more justice.

Deeper into the Labyrinth

The basis for a woman obtaining fasakh is fairly consistent from state to state, as is the technical language of the relevant enactments. In Kuala Lumpur, as in all state jurisdictions, there are 12 specific grounds for fasakh. The enactment in effect in Kuala Lumpur during my most recent (2013) fieldwork, which I have edited for readability, establishes the bases for fasakh as follows:

1. 1. That the whereabouts of the husband have not been known for more than 1 year;

2. 2. that he has neglected or failed to provide for her maintenance for 3 months;

3. 3. that he has been sentenced to imprisonment for 3 years or more;

4. 4. that he has failed to perform, without reasonable cause, his marital obligations [with respect to sexual companionship] for 1 year;

5. 5. that he was impotent at the time of the marriage and remains so and the wife was unaware [of this] at the time of the marriage;

6. 6. that he has been insane for 2 years or is suffering from leprosy or vitiligo or a communicable venereal disease;

7. 7. that the wife, having been given in marriage by her … [guardian] before she attained … [maturity], repudiated the marriage before attaining the age of 18, the marriage not having been consummated;

8. 8. that the husband treats her with cruelty, that is to say, inter alia (1) habitually assaults her or makes her life miserable by cruelty of conduct; (2) associates with women or men of evil repute; (3) attempts to force her to lead an immoral life; (4) disposes of her property or prevents her from exercising her legal rights over it; (5) obstructs her observance of her religious obligations or practice; or (6) if he has more than one wife, does not treat her equitably in accordance with the requirements of Hukum Syarak;

9. 9. that even after 4 months the marriage has not been consummated owing to the willful refusal of the husband to consummate it;

10. 10. that she did not consent to the marriage or her consent was not valid, whether in consequence of distress, mistake, unsoundness of mind, or any other circumstance recognized by Hukum Syarak;

11. 11. that at the time of the marriage she, though capable of giving consent, was a mentally disturbed person within the meaning of the … Mental Health Act 2001 (Act 615)]; or

12. 12. any other ground recognized as valid for dissolution of marriage or fasakh under Hukum Syarak.Footnote ¹⁰

This enactment delineates 12 different grounds for a woman to obtain fasakh, but some of them, like item “8”, bearing on cruelty, contain multiple provisions, such that the list of grounds for fasakh is closer to 20. The term “inter alia” toward the beginning of item “8” is significant, making clear that the items listed there are not meant to be exhaustive. Similarly, item “12”, “any other ground recognized as valid for dissolution of marriage or fasakh under Hukum Syarak”, leaves open the possibility for plaintiffs, lawyers, judges, women's rights groups, and others to argue that fasakh may and should be granted for reasons not specifically delineated in the enactment. One example would be shiqaq, or, in the common-law language that is relevant in the country's civil courts, “irretrievable breakdown” of marriage. Neither of these terms, to be clear, appears anywhere in the language of the enactment.

Most of the major changes in fasakh provisions in the last 60–70 years occurred with the 1983–1991 reforms, which replaced the laws previously in force. The earlier enactments, dating mainly from the 1950s and 1960s, typically contained about half as many grounds for fasakh, focusing chiefly on the husband being impotent, insane, afflicted with a communicable disease, or on his absence for a period of three or more months, his imprisonment, failure to provide nafkah, etc. (Reference IbrahimAhmad Ibrahim 1965 [1975]). The principal expansion of provisions that took place with the 1983–1991 enactments involved the inclusion of (1) item “8,” bearing on cruelty; (2) the term “inter alia” at the end of the first line of “8”; and (3) item “12,” concerning “any other ground recognized as valid for … fasakh under Hukum Syarak”.

This expansion and liberalization of the grounds for fasakh have been interpreted by scholars such as Reference HorowitzDonald Horowitz (1994) as evidence of the convergence, at the level of substantive as distinct from procedural law, of sharia and British common law.Footnote ¹¹ Horowitz's argument is not that the Islamic concept of shiqaq was borrowed or derived from British law or invented in response to British or other Western-origin pressures or incentives. He is well aware that the notion of shiqaq is enshrined in foundational Islamic texts such as the Quran and hadith. Rather, his point is that in Malaysia, shiqaq has been accorded increased salience in recent decades due largely to British-origin common-law sensibilities that bestow legitimacy on “irretrievable breakdown of marriage” as a basis for non-Muslim divorce. The larger dynamic has to do with the politics of the juridical field. Many innovations and reforms in the sharia judiciary are motivated by concerns to be “as modern as” yet ethically superior to—hence both the same and different from—the civil judiciary, which is simultaneously the sharia judiciary's primary patron and main competitor.

The judge's ruling in the case at hand cited the husband's failure to perform his duties as a husband, rather than the wife's right to claim shiqaq. But the inclusion of shiqaq as a basis for fasakh in the wife's petition is telling. Perhaps more germane is that the judge reiterated it as he was about to render his verdict; he did so, moreover, without any balking or dressing down of the wife's lawyer, as commonly occurs when a judge feels that a litigant's counsel is off base, out of order, or ill-prepared. This suggests some degree of normalization of shiqaq as grounds for fasakh.

Interview material, court documents, and other data (addressed shortly) suggest that shiqaq or the emotional or mental suffering associated with it is listed by women and accepted by judges as grounds for fasakh more frequently now than at the time of Horowitz's research, the early 1990s. They also indicate that fasakh suits account for notably larger percentages of the sharia courts’ caseloads than in decades past and are almost always decided in women's favor (see also Reference HirschHirsch 1998:127–129, Reference RosenRosen 2018: Chap. 2). This is important insofar as the period since the early 1990s could have seen a reversal of the trend identified by Horowitz.

To get a quick sense of why I contend that fasakh claims comprise appreciably larger percentages of sharia courts’ casework than in previous decades, we might briefly consider comparative-historical perspectives from the town of Rembau in the state of Negeri Sembilan. During the period of 1987–1988, only 9% (3/33) of the civil cases I observed involved fasakh claims (Reference PeletzPeletz 2002:156).Footnote ¹² The relevant figure for newly registered civil cases in Rembau some 25 years later (2012) is 16.2% (37/228), hence nearly double what it was earlier.

State-wide data for Negeri Sembilan for the period of 1998–2002 yield a different set of perspectives on the prevalence of fasakh. But they also make clear that fasakh suits have become exceedingly common, accounting for 25.8% of claims bearing on divorce/annulment, and fully 41.2% of all petitions for divorce/annulment brought by women (IIUM 2005:74–76). Especially when viewed alongside earlier data from Rembau and elsewhere, this material provides further corroboration of the point that the period since the late 1980s has seen sharp increases in both the frequency and the overall numbers of fasakh cases.

Some of the factors contributing to the increase were clarified in an interview I conducted in 2012 with one of my most knowledgeable interlocutors, Haji Musa (a pseudonym), a former high-court judge on the sharia bench who is now a senior official in the Department of Syariah Judiciary (Jabatan Kehakiman Syariah Malaysia; JKSM).Footnote ¹³ As Haji Musa phrased it, sharia judges have become “a bit more flexible” in adjudicating cases involving fasakh when a woman's petition is not based on any of the specific grounds delineated in the relevant enactment(s). In this regard, sharia judges are more friendly to women (my expression, not Haji Musa's). This is also to say that with respect to the termination of marriage via fasakh, women have an easier time getting justice—put differently, are getting more justice—than in decades past.

According to Haji Musa, this development has come about partly because judges exercise ijtihad (innovative legal interpretation of—or on the basis of—sacred texts; judicial creativity) in ascertaining whether a woman has experienced harm (mudarat) in her marriage. Haji Musa went on to say that in recent years judges have broadened the notion of harm to include a wife's emotional and mental suffering, although, significantly, there has been no corresponding shift in statutory law.

Before elaborating on his views, I should point out that the concept of harm (to women) has been elevated to a status it did not enjoy during my research in the 1970s and 1980s. This is partly a response to pressures from NGOs and civil society (considered below) and partly a function of the sharia judiciary's adoption of sensibilities and norms enshrined in local common-law, though the more encompassing dynamic is the intensified transnational circulation during this period of various kinds of “rights talk” (see also Reference OsanlooOsanloo 2009). During my earlier research, the central issues for judges in fasakh cases involved ascertaining whether or not the specific statutory conditions for fasakh had been met. In present day Rembau, in contrast, the forms that women are required to complete as part of their fasakh petitions foreground the concept of harm by subsuming all specific offenses committed by husbands under the umbrella rubric of “incidents or things that have caused harm” (perkara-perkara yang telah memberi kemudharatan). The relevant form asks for three examples of such harm, although some women provide many more. Commonly cited examples are “no mutual understanding” (tiada persefahaman) or variations on the general theme, such as “mental and emotional suffering/torture” (penderitaan/penderaan mental dan emosi), “emotional stress” (tekanan emosi), and “we always quarrel” (selalu gaduh). Also conspicuously present are more conventional arguments for fasakh such as my husband “has not come home for a year and a half”, “has not provided financial support or sexual companionship”, “does drugs”, “is in and out of jail”, and “hits me”.Footnote ¹⁴

To clarify what he meant when he told me that emotional and mental suffering currently constitutes acceptable grounds for fasakh and that today's judges are more accommodating than their predecessors, Haji Musa offered the following example.

The scenario Haji Musa provided off the top of his head is revealing, suggesting that the “fit” between husbands and wives has grown much more complex and fraught. The increased complexity and potential for stress and anxiety is a feature of the synergy created by a number of socioeconomic and cultural-political dynamics. They include the emergence of a new Malay middle class; the development of massive socioeconomic disparities among Malays; and the fact that Malay women situated at the top of the social-class hierarchy often experience difficulty finding suitable husbands, especially if the women have earned advanced degrees. Germane as well is the increased salience of companionate marriage, defined both “as a marital ideal in which emotional closeness is understood to be … one of the primary measures of success in marriage” and “a form of kinship in which the conjugal partnership is privileged over other family ties” (Reference Wardlow, Hirsch, Hirsch and WardlowWardlow and Hirsch 2006:4). All such changes have gone hand in hand with the decline of arranged marriage, the erosion of extended kin bonds, and the reconfiguration of myriad other features of kinship and affinity. Many of these transformations reflect state-sponsored social engineering aimed at creating a new Malay middle class from the ranks of the once largely agrarian and relatively impoverished Malay populace (Reference PeletzPeletz 1988, Reference Peletz1996, Reference Peletz2002).

The idea that it is easier to annul a marriage these days as compared with decades past is any event a thoroughly relative point. One would be hard pressed to argue that a woman seeking an annulment currently has an easy go of it. I should remind the reader, though, that the fasakh petition discussed earlier was adjudicated in the plaintiff's favor, as were fully 95% (296/310) of fasakh cases heard in Kuala Lumpur during the period of 2014–2015.Footnote ¹⁶ More broadly, the fact that judges are nowadays more obliging in terminating marriage via fasakh is of great importance in the Malaysian context, where, as we have seen, Muslim women's options to extricate themselves from loveless or otherwise untenable unions, especially without the consent or cooperation of their husbands, are highly restricted.

Malaysian political and religious elites often pride themselves on having encouraged a moderate and progressive Islam that is in the vanguard of modernizing developments both in the Muslim world and the West. Therefore, it may seem somewhat surprising that they have not followed Egypt's or Indonesia's leads by making statutory or de facto provision for other forms of marital dissolution initiated by women that do not require a husband's consent or cooperation. The implementation of such provisions in Malaysia could go a long way toward improving the lives of Muslim women, as suggested by data from Indonesia, Egypt, and Malaysia alike (Reference NurlaewatiNurlaewati 2010; Reference SonneveldSonneveld 2012; Reference HuisHuis 2015). But as material from these and other settings also makes clear, such reforms can result in backlash from men and conservative sectors of Muslim civil society, and can thus be costly and dangerous for the ruling elites involved in pursuing them (see, e.g., Reference Sonneveld and LindbekkSonneveld and Lindbekk 2015; see also Reference HirschHirsch 1998).Footnote ¹⁷ A more general point here is that until such time as Egyptian- or Indonesian- style initiatives bearing on female-initiated divorce are implemented in Malaysia, and it is possible they never will be, debates concerning the expansion, contraction, and interpretation of the grounds for fasakh will continue to be central to the struggle for gender justice and equality within the family and beyond.

There Has Been a Proliferation of Institutional Resources and Networks Created for the Benefit of Women (and Children)

This is the most dramatic and unequivocally positive change bearing on women and sharia justice that has occurred since the late 1970s. Women are presently able to access a wide variety of women- and family-friendly institutional networks and resources (spiritual, textual, social, and material) that they increasingly draw upon to enhance their understanding of their rights and responsibilities in the context of marriage and its dissolution, their husbands’ duties and prerogatives, and how officers of the court manage such matters.

Before delving into specifics bearing on historical change and the emergence of NGOs that helped bring about that change, I should make clear that in the l970s–1980s the vast majority of these resources and networks did not exist. At that time, elderly village women provided the main forms of assistance and support, commonly serving as sounding boards for younger female relatives experiencing difficulties with husbands or ex-husbands and offering both strategic advice and emotional support (Reference PeletzPeletz 1996, Reference Peletz2002). Sisters in Islam (SIS), a progressive Muslim feminist NGO founded in 1988, is the chief exception to my generalization concerning the (relative) absence in the 1980s of resources and networks for women experiencing difficulties in marriage or divorce. SIS also deserves the lion's share of credit both for drawing public attention to the need to develop resources and networks of the sort at issue here and for providing pressure and templates for the initiation of relevant government programs conducive to enhancing pluralistic sensibilities and dispositions with respect to women.

SIS's internationally well-publicized commitment to advocacy, activism, and reform is noteworthy on other grounds as well. It typically entails a PR and scholarly focus on women as distinct from the more expansive domain of gender; it often involves relatively synchronic analyses, highlighting short-term backlashes and setbacks rather than progress over the longue durée; and it relies heavily on strategic essentialism of the sort mentioned at the outset of this essay (e.g., Reference Anwar and HefnerZainah Anwar 2001, Reference Anwar, Quraishi and Vogel2008, Reference OthmanNorani Othman 2005, Reference MaznahMaznah Mohamad 2010; see also Reference LiowLiow 2009:124–131.) This is one reason why members of the public and international communities of scholars and human-rights advocates tend to have rather dim views of Islamic family law and Muslim women's rights in Malaysia.

Another reason has to do with the existence of NGOs at the other end of the (Muslim) civil society spectrum. Consider, for example, associations of sharia lawyers (Persatuan Guam Syarie Malaysia [PGSM]) and groups such as Muslim Brothers, which is apparently composed mainly of current and former sharia judges and lawyers (Reference HoffstaedterHoffstaedter 2011:139–145). NGOs such as these, aided at times by government religious bureaucracies (e.g., JAKIM), commonly criticize SIS and file police reports and lawsuits against them on the grounds of their alleged hostility to the sharia judiciary and their demeaning of Islam. This too makes for good copy, both nationally and internationally. The more general point here is threefold. Malaysia boasts a vibrant civil society (Reference MoustafaMoustafa 2013; Reference WeissWeiss 2006); some of its key players advocate tirelessly for the expansion of Muslim women's rights (and pluralism regarding ethno-racial and other diversity), while others are strongly opposed to their efforts; and media coverage of either side conduces toward views of the proverbial glass of women's rights under Islamic family law as half empty rather than half full.

The resources currently available to women take many forms. In terms of print media, they include colorful, easy-to-read (Malay-language) handouts and informational brochures created and distributed by the JKSM. As I observed on many occasions, these are widely available in the waiting rooms and lobbies of sharia courthouses, sometimes right below or next to a sign reading Sila Ambil Satu (Please Take One). The vast majority of women seeking the sharia court's services can read, write, and speak Malay. This material is thus directly and fully accessible to them.

One such brochure I examined concerns husbands’ and wives’ rights to lodge formal legal claims while they are married. But it focuses almost entirely on the rights of wives (e.g., to receive material support from their husbands for the purpose of maintaining themselves and their children). Another brochure addresses husbands’ and wives’ rights to lodge formal legal claims after they have divorced, though it too deals mostly with the rights of wives to receive maintenance, a share of conjugal earnings (harta sepencarian), custody of children, etc. Yet another brochure delineates the various types of marital dissolution that are available, involving the talak repudiation clause, for example; alternatively, via procedures laid out for fasakh, tebus talak (khuluk), and taklik.

Some courthouses (e.g., Rembau's) also distribute handouts and informational sheets bearing on polygamy (polygyny) that contain discussions of a woman's rights with respect to her husband taking a second wife while he is still married to her. The fact that this material exists and is available to women even in small courthouses such as Rembau's is significant. I never encountered brochures or printed information of this sort in the late 1980s or earlier, despite the fact that men taking second wives without the permission or knowledge of their first wives has long been a serious concern for women.

The focus in these brochures on the rights (hak) of wives and women generally is enormously consequential. In the late 1980s and previously much of the discourse in and outside the courts centered on the duties (tanggungjawab) of men as husbands and fathers, and, more specifically, on how they failed to perform them properly, not on wives’ or women's rights per se. The cultural elaboration and “thick” institutional backing of the idea that women are rights-bearing, entitled citizens, not simply jural minors yoked to men through ties of marriage and co-parenthood, is a huge step forward for Malay and other Muslim women. This generalization is also relevant to the heightened centrality of rights-talk in other Muslim-majority settings, including Iran's family courts, as Reference OsanlooArzoo Osanloo (2009) has incisively documented. The dynamic at issue is, at the same time, a momentous development for those who favor the spread and entrenchment of more inclusive political discourses in the highly contested terrain of citizenship in present-day Malaysia, as discussed in my concluding remarks.

In addition to the brochures and handouts mentioned here, eye-catching posters and banners that publicize the existence of legal and other support services for women and families adorn many public spaces of sharia courthouses. Some of them advertise secularly oriented national legal aid bureaus (e.g., Biro Bantuan Guam). Others celebrate the rollout of new (as of 2010) Transit Services offered by the Family Support Division (Bahagian Sokongan Keluarga) of the Federal Territory Syariah Court that include free round-trip transportation to the court from one's home in the Klang Valley (which encompasses Kuala Lumpur) as well as food and lodging, presumably for a day or two.

These initiatives are also widely covered in print media, typically with impressive quantitative information bearing on the numbers of women they have helped since their inception. So too are different types of counseling services and mediation programs geared toward assisting women (and men) experiencing marital difficulties. Much of this information is also available through the Internet, particularly on websites sponsored by the sharia judiciary and federal-, state-, and district-level departments of Islamic religion.Footnote ¹⁸ Suffice it to add that most Malaysians, men and women alike, have ready access to the Internet through their smartphones, iPads, and laptops, or the devices of their relatives, and that Malaysia has “one of the highest Internet-penetration rates globally, and the highest of any Muslim-majority country” (Reference MoustafaMoustafa 2013:787).

The Court's Engagements with Women's Claims Are More Timely, Consistent, and Substantive

Comprehensive studies of district- and state-level data bearing on the period 1998–2002 conducted by the International Islamic University of Malaysia with the collaboration of Malaysia's Department of Syariah Judiciary indicate that cases initiated by women, like those initiated by men, are generally resolved more quickly than in times past (IIUM 2005). There is much regional variation, and considerable divergence by type of case; and long delays sometimes still occur. This is due partly to obstructive strategies by husbands and husbands’ lawyers. Other contributing factors include one or both litigants failing to appear for their scheduled hearings and incomplete paperwork.

In the state of Selangor during the period 2005–2010, the courts resolved “nearly 80% of [divorce] cases in less than six months” (Reference Ismail, Azmi and YasoaSiti Zubaidah Binti Ismail et al. n.d., 9), a clear improvement over the situation reported for the early 1980s, during which time “a divorce petition … [was] normally settled … [in] about seven to eight months” (Reference HassanShariah Zaleha Syed Hassan 1986:195). As for taklik divorces, which typically take longer than other types of marital dissolution, in Selangor during the period 2005–2010 nearly half of them were resolved in less than 6 months and two-thirds of them were resolved in less than 12 months [Siti Zubaidah Binti Ismail et al. n.d. 9]); the corresponding figure for the mid-1980s was “seven to fifteen months on the average”, at least in the state of Kedah (Reference HassanSharifah Zaleha Syed Hassan 1993:81).

These and other relevant figures index an upgrading of the services provided by the courts that is of great import, especially since as British Prime Minister William Gladstone (1809–1898) once famously remarked, “justice delayed is justice denied”. Tellingly, Gladstone's observation is commonly invoked verbatim by critics -- and supporters -- of both the sharia judiciary and its civil counterpart, typically in efforts to incite a more substantive “will to improve” (Reference LiLi 2007) than already exists.

To say that in comparison with previous decades the courts are more timely in responding to women's claims does not necessarily mean that the courts’ engagements are more consistent or substantive. These engagements are more consistent and substantive, however, as will be readily apparent to readers who compare the material presented here with my findings from the late 1980s (Reference PeletzPeletz 2002). This despite the fact that the dynamics at issue sometimes result in women being encouraged by officials to accept mediated compromises that are not necessarily in their best interests.

The Courts are Less Tolerant of – and More Punitive Toward – Errant Husbands

We have seen that due to changes in Islamic family law implemented during the period 1983–1991, the state has criminalized certain practices of husbands that were merely frowned upon or discouraged in the early 1980s and previously. Such practices include taking a second wife without the court's approval, and pronouncing the talak without the court's permission. The courts often impose relatively heavy sanctions on men found guilty of these offenses, including fines, non-payment of which can result in jail time. They could be more severe, however, given their commitment to the proposition that harsh punishment serves as deterrence, which is one facet of the punitive turn evident in many realms of law, politics, and culture (Reference PeletzPeletz 2015).

Being more punitive toward men who mistreat women in the context of marriage or subsequent to its dissolution is not the same thing as treating women more equitably. But there is a positive correlation between these two dimensions of judicial practice insofar as the present-day disposition of cases bearing on nafkah, for example, is much more likely to involve strict enforcement than in the past (IIUM 2007). This is a relative point, and lapses still occur, but the trend toward stricter enforcement is largely beyond dispute.

Most Harsh Punishments Continue to be Meted Out to Men, not Women

Discussions of gender justice would be incomplete without brief mention of Western stereotypes bearing on the harsh punishments assumed to be routinely administered to women in the name of Islam in nations such as Pakistan, Afghanistan, and Nigeria (Reference Abu-LughodAbu-Lughod 2013). I want to make clear that, with two exceptions, I have never observed a sharia judge impose a fine, jail time, or corporal punishment on a female litigant.Footnote ¹⁹

There have, however, been a few well-publicized instances, some of which drew exceedingly negative national and international attention from women's groups and human rights advocates (among others), involving sharia judges ordering stiff penalties for female defendants prosecuted for consuming alcohol or engaging in other moral breaches. One (in)famous case involved Kartika Seri Dewi Binti Shukarno, known simply as Kartika in the media, a Singaporean national of Malay-Javanese ancestry.Footnote ²⁰ In 2008, the 32-year old nurse, model, and mother of two was caught up in a police raid on a nightclub in the state of Pahang and arrested for drinking beer. After being found guilty of consuming alcohol, she was sentenced to pay a fine of RM 5,000 (around US $1,400 at the time) or to serve three years in jail, and to be flogged with six strokes of a rattan cane. The sentence provoked immediate outcry from national and international NGOs fighting for women and human rights, and was eventually commuted by the Sultan of Pahang to three weeks of community service.

Cases such as these are exceptions that prove the rule, a rule that flies in the face of Western stereotypes implying that in the course of their day-to-day duties, judges in Muslim-majority countries are routinely involved in disciplining women in draconian ways. I have already suggested that it is quite rare in a statistical sense for Malaysia's sharia courts to impose corporal punishment or jail sentences on women; fines are also relatively unusual, except in cases of khalwat (illicit proximity) and fornication/adultery. By contrast, it is not at all uncommon for sharia judges to render decisions against male litigants that include fines and, if they are unable to pay the fines, jail sentences of 30–45 days or more (but not corporal punishment).

Also crucial to underscore is that almost all of the flogging that occurs in Malaysia is ordered by the civil courts, not the sharia courts. Such sentences are meted out to men (judged or assumed to be “illegal immigrants” or convicted of serious offenses involving drugs, sexual assault, or other forms of violence), but never to women, since the civil judiciary does not subject women to corporal punishment.Footnote ²¹ This is part of the larger gendered and juridical context we need to bear in mind when assessing cases such as Kartika's. So too is the fact that, nationwide, men comprise more than 80% of defendants in sharia civil cases, which are typically initiated by their wives, and roughly 64% of defendants in sharia criminal suits, which are usually initiated and prosecuted by one or another state religious bureaucracy (such as the Department of Islamic Religion).Footnote ²² Failure to consider this larger context, because of a focus on women as distinct from the more encompassing domain of gender, for example, can easily give rise to the erroneous impression that the nation's sharia courts are increasingly targeting women and subjecting them to harsh, medieval punishment. Statistically speaking, it is far more accurate to say that the sharia establishment and other government bureaucracies, “religious” and “secular” alike, are honing in on what they take to be male delinquency and criminality. Clearly, however, the larger concern lies with reinscribing and otherwise managing dynamics of kinship, gender, class, race, religion, and citizenship, and both cleansing the nation and fortifying the state.

Of Obedience, Heteronormativity, and Pluralism

My generally affirmative but importantly qualified answer(s) to the question highlighted in the title of this essay requires additional caveats if we interrogate the idea, increasingly prevalent in official quarters and popular culture, that wives are entitled to material and other support from their husbands only if they are obedient (taat). Still further qualification is warranted if we look beyond majoritarian circles and consider the communities of women who transgress heteronormative expectations and ideals. I address these issues one at a time, ranging beyond the courts to convey a sense of how law is lived and what types of cultural-political forces are involved in shaping both present-day socio-legal dynamics and their possible futures.

This term taat is commonly understood by Malays to mean obedient and loyal, particularly in relation to one's husband. The inverse of taat is nusyuz, which, as I have mentioned, is usually taken to refer to a wife's disobedience, disloyalty, and overall recalcitrance vis-à-vis her husband. Both concepts are heavily freighted in moral, ethical, and specifically Islamic terms. And both tend to be invoked in relation to patterns of behavior involving women but not men. This is the case even though the Quran makes clear that nusyuz can occur on the part of men and women alike, and despite the fact that many of the Islamic family law offenses that men commit entail behavior that fits the definition of nusyuz (e.g., failing to support one's wife or children, taking a second wife without the first wife's knowledge).

A central issue here is the maintenance-obedience paradigm enshrined in certain classical Islamic texts. This paradigm has been discussed by Reference Mir-Hosseini and HefnerZiba Mir-Hosseini (2016) and other Muslim feminist reformers (Reference AliAli 2006; Reference WadudWadud 2008), some of whom were instrumental in the 2009 founding of Musawah (Arabic for “equality”), an international NGO dedicated to obtaining justice for women under Islamic family law. One of their interventions has involved revisiting and evaluating the larger context of Quranic verses cited by conservative Muslim jurists over the centuries to bolster their view of marriage as a strongly patriarchal arrangement akin to a master–slave relationship or one defined by the transfer through sale of rights over a woman from her father to her husband. They point out that such passages exist alongside others in the Quran that depict marriage as a more symmetrical and equitable partnership in which husband and wife, like men and women generally, have (or should enjoy) more or less equal or complementary rights; and that some of them also promote gender relations characterized by harmony, love, and mercy (see, e.g., Surah An-Nisa 4:128, Ar-Rum 30:21). A focus on these latter verses yields very different Quranic perspectives on matrimony and gender relations than those enshrined both in classical Islamic legal theory and in colonial-era and post-colonial regimes of Islamic family law. Mir-Hosseini and other reform-oriented scholars thus argue that it is high time for Muslims to rethink the textual foundations and contemporary legal dynamics of marriage, divorce, and gender.

There is good evidence, as we have seen, that these kinds of arguments have become more mainstream in Malaysia and elsewhere in the Muslim world (Reference OthmanNorani Othman 2005, Reference AnwarZainah Anwar 2009, Reference SonneveldSonneveld 2012, Reference HuisHuis 2015). Such changes reflect pressures from civil society, including NGOs like SIS and Musawah, efforts on the part of sharia judiciaries to adopt key norms of their civil counterparts, and globally widespread discourses emphasizing individual rights. But there are strong counter-currents, backlashes, and orthogonal pressures as well, and the future is by no means settled. This is especially so as there are clear limits to the new kinds of relations and new kinds of selves, to borrow from Borneman's epigraph once again, that political and religious elites shaping sharia-court practice and other features of state policy are willing to countenance let alone nurture.

Some of the countercurrents are exemplified by the formation in Kuala Lumpur in 2011 of the Obedient Wives Club (OWC), an organization closely associated with the business conglomerate Global Ikhwan. This consortium produces halal consumer goods in keeping with the vision of Al-Arqam, a Sufi-oriented group whose members seek to emulate the Prophet's lifestyle and to propagate and enrich the faith.Footnote ²³ In October 2011, the OWC published a highly controversial book with the curious title Islamic Sex, Fighting Jews to Return Islamic Sex to the World. The volume was advertised as a manual that would help Muslim women better serve their husbands’ sexual needs and simultaneously recuperate Islamic discourses on sex suppressed by a global conspiracy of hostile Jews. Its authors enjoined married women to behave like “first-class whores” in bed so that their husbands would not be tempted to stray and sin. The book drew sharp criticism from women's rights groups, government ministries, journalists, and others, many of whom claimed that it objectified and demeaned women, effectively blamed them for their husbands’ errant ways, reduced marriage to sex, and was otherwise deeply problematic and offensive (Reference MackinnonMackinnon 2011).Footnote ²⁴

Antipathy to greater marriage equality of the sort at issue here and other forms of backlash are also prevalent among Malay men who occupy widely varied subject positions and social locations. In many instances, moreover, these stances are shared by their wives (e.g., Reference Sloane-WhiteSloane-White 2017:123–127). Such enmity is also pronounced among conservative ulama and mufti, and is broadly congruent with the messages conveyed in the nation's Islamic schools and by the main Islamist opposition party (PAS) (Reference Kraince and HefnerKraince 2009).

It remains to add that “pluralism” is a (very) dirty word in Malaysia, and that this situation did not obtain even a decade or so ago. At present, advocates of pluralism (in Reference ConnollyConnolly's 2005 sense) are commonly seen by Malay spokesmen as hostile to Islam and Malays alike. The charge that one supports pluralism (or is a pluralist) is frequently hurled at critics of the status quo who, like SIS, draw upon feminist arguments, international human-rights language, and/or discourses of democracy, transparency, accountability, and inclusiveness. Many of these same generalizations pertain to the terms “liberalism” and “secularism.” The latter signifiers are often used interchangeably. And they are sometimes used as shorthand to refer to doctrines or philosophies that allegedly celebrate untrammeled individualism and promote homosexuality, same-sex marriage, and Lesbian, Gay, Bisexual, and Transgender (LGBT), an expression that has become part of the national political lexicon in recent years. These designations are sometimes uttered in the same breath, as in then Prime Minister Najib Razak's (in)famous June 25, 2012 declaration, reiterating earlier pronouncements along the same general lines, that there is no place in Malaysia for “liberalism, pluralism, and LGBT”. Proclamations such as these were enshrined on the prime minister's website and have become mainstream mantras (Reference ShahShanon Shah 2018).

In short, the past few decades have seen a pronounced constriction of pluralistic sensibilities and dispositions bearing on gender and sexuality both among elites and in popular (Malay/Muslim) culture, a constriction often justified with reference to Islamic normativity. NGOs and networks promoting LGTB rights such as the PT Foundation, formerly known as the Pink Triangle Foundation, and Seksualiti Merdeka (Sexuality Independence) do exist. But like the vibrant communities they represent, they are subject to harassment and are under periodic siege, unless, as with the PT Foundation, they position themselves primarily as organizations providing services to those at risk for HIV/AIDS, such as gay men, sex workers, and intravenous drug users.

Where does all this leave the communities of Malay/Muslim women who transgress heteronormative expectations and ideals, and what kinds of relationships do they have with the sharia judiciary? Women in the latter communities find the sharia judiciary and the religious bureaucracies closely associated with it increasingly unfriendly and threatening. This is due in part to a spate of sharia laws passed since the early to mid-1990s that criminalize same-sex relations among women, and in part to state- and national-level fatwa and sharia enactments that condemn “tomboys” and all transgender practices involving female-bodied individuals (Reference tan bengtan beng hui 2012, Reference ShahShanon Shah 2018).Footnote ²⁵ Clearly, then, there are limits to the “female-friendliness” we see in the sharia juridical field and to the specific kinds of relations and specific kinds of selves that political and religious elites shaping Islamic family law and other state policies are willing to accommodate let alone promote and nurture.