Lessons from Manohara

By Deborah Loh
thenutgraph.com

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.

ManoharaWithout 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 KamaruddinAdds 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 AwangWhile 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.