KUALA LUMPUR, July 19 ― More Muslim women are initiating divorce from their husbands due to domestic violence, according to cases handled by Sisters in Islam’s (SIS) legal service.
Telenisa, a free legal service by the Muslim women’s rights group for both women and men, said almost half of the divorce cases it handled last year were “fasakh”, a method of divorce which is initiated by the wife.
According to Telenisa, 62 of its clients (47 per cent) sought “fasakh” last year, up from 27 clients in 2015. A total of 66 clients sought “fasakh” in 2014.
“Fasakh” has become the most opted type of divorce application by women as they generally become more aware of their rights within marriage.
“Consistently high numbers of domestic violence cases reported in our Telenisa statistics also show ‘fasakh’ as the most obvious type of divorce to institute,” the Telenisa team told Malay Mail Online in an interview.
In 2016, Telenisa recorded domestic violence as the most common reason for a marital breakdown in a quarter of marriages, followed by maintenance issues (17 per cent), extramarital affairs (16 per cent), communication problems (15 per cent), and other reasons like substance abuse, financial problems, polygamy, husband absconding and health reasons.
Last year saw 107 cases of domestic violence (25 per cent), up from 27 cases in 2015 (9.3 per cent). Telenisa recorded 127 domestic violence cases in 2014 (11 per cent).
“Domestic violence affects all walks of life, not limited to a certain sector of society. Increasingly, Telenisa has recorded greater levels of emotional and psychological abuse experienced by our clients,” said Telenisa.
Telenisa also highlighted the Shariah Court’s refusal to recognise protection orders issued by the civil magistrate court in a particular child custody case.
“The PO covered not only the client but included the children as well, from further violence, from the perpetrator. We see this as a failure on the Shariah Court’s part to abide by the order which is criminal in nature and could pose dangers to the [physical and psychological] well-being of the children,” said Telenisa, using the initials of “protection order”.
A Muslim woman may apply for divorce through “fasakh” if her husband fails to provide maintenance, if he is insane, or if he treats her cruelly, according to the Islamic Family Law (Federal Territory) Act 1984. “Fasakh” also allows her to void a marriage she did not consent to.
“The Shariah Court requires the wife to provide strong grounds to pronounce divorce through ‘fasakh.’ The time frame till conclusion of the divorce may be longer than divorce initiated by the husband or if mutually agreed upon,” said Telenisa.
According to Telenisa, divorce through “fasakh” can take up to two years or more, depending on the complexity of the case or if documents are incomplete (generally about nine months from the date of filing if documents are in order), compared to mutual divorces that can be done even during mention date itself, which is 21 days from the date of filing.
Rise of illegitimate children’s cases
Telenisa recorded increasing cases of illegitimate children from 5.8 per cent in 2014, to 7 per cent in 2015, and to 11.4 per cent last year.
Telenisa said one of the reasons behind the rise of queries on illegitimate children was increasing awareness of its assistance on the issue.
“At Telenisa, we ensure our officers assist the clients with a gender sensitive approach without having any bias, prejudice or any other form of harmful behaviour,” said Telenisa.
Telenisa described a case where a child was registered with his father’s name on his birth certificate in 2004. The child’s parents had married three months before his birth.
However, the National Registration Department refused to register the child under his father’s name when his father tried to apply for the child’s identity card last year, saying that the child would have to be registered with a “bin Abdullah” name as he was considered an illegitimate child.
“Such policies and practice are unfair, discriminatory and stigmatise the child for the rest of his or her life. Furthermore, this also deprives the rights of fathers who want to take responsibility for their child or children,” said Telenisa.
Polygamy happening without wife’s consent, knowledge
The number of polygamy cases recorded by Telenisa increased slightly from 68 cases in 2015 to 76 cases last year. Telenisa had 110 cases in 2014.
According to Telenisa, 2016 saw 28 and 23 complaints respectively of men entering polygamous marriages without their wives’ consent or knowledge.
The lack of the wife’s consent was also the most common issue in polygamy cases in 2015 and 2014, followed by complaints of the wife being kept in the dark.
“Under the Islamic Family Law (Federal Territory) Act 1984, a man has to apply to court before taking another wife. He also has to, among other things, prove to the court that he is able to support all his existing and subsequent wives and dependants.
“However, men end up marrying subsequent wives at neighbouring countries and not registering that marriage and therefore, the rights of subsequent wives and children are not looked after,” said SIS.
SIS also pointed out that based on its national survey of the impact of polygamy, 44 per cent of first wives had to take an additional job or work overtime to ensure financial stability after their husbands took on extra spouses.
Most of Telenisa’s clients involving polygamy were first wives who sought information on divorce procedures, matrimonial property, and child maintenance and custody.
“Second wives, on the other hand, usually seek information on marriage registration procedures as they mostly got married at the border. Most of them did not know that they have to register the marriage in Malaysia prior to filing for divorce or to claim for any rights as a wife,” said SIS.
Telenisa also handled nine polygamous husbands between 2014 and 2016, who wanted to know their rights and responsibilities in polygamous marriages.
The legal service noted that polygamous marriages in most states, especially in Selangor and Federal Territories, required the Shariah Court’s permission.
“Some clients, be they second wives and polygamous husbands, have asked about loopholes in the law and how can they escape going through court procedures. We would insist on clients following the law and remind them the consequences upon violation, especially the impact on rights of the second wives and children.
“We would at the same time emphasise to the husbands the importance to be just to the existing family (first wives and children) and the second wives,” said Telenisa.
Telenisa’s clientele increased from 397 people in 2015 to 419 last year, comprising 83 per cent women and 9 per cent men for 2016. Telenisa had 474 clients in 2014.