We have received a reprieve. The Islamic Family Law Act has now been put on hold and will not be gazetted until the Government has reviewed it thoroughly.

We're breathing easy. For a while.

The 1984 Islamic Family Law (Federal Territories) Act which has been heralded for being 'cukup cantik' by women's groups has seen a number of significant changes over the years. The evolution, for want of a better word, of the 1984 Act is now deemed as regressive and discriminatory towards Muslim women. Let's take a look at some examples of the Act that had been revised, done away with and not re-instated.

Try divorce for size

In 1984, Section 14 (2) where the woman is a janda (divorcee) she shall not be married unless she has produced the following: a certificate of divorce lawfully issued under the law fore the time being in force; or a certified copy of the entry relating to her divorce in the appropriate register of divorce or a certificate, which may upon her application, be granted after the due inquiry by the Syariah Judge having jurisdiction in the place where the application is made to the effect that she is a divorcee (janda) AND (in the new 2005 amendment, the word 'and' substitutes the word 'or') if the divorce was by ba-in-kubra, that is to say, three talaq, she shall not be remarried to her previous husband, unless she has been lawfully married to another man and consummated the marriage, and later the marriage is dissolved and the period of iddah has expired.

Question: surely in the 2005 amendment, since the Government is intent on providing equality for both sexes, a duda - divorced man - is to furnish the bride to be the same too? It's one thing to enter a polygamous marriage with your eyes wide open; it's another to be duped.

In the fifth sub-section of Section 23 (1984), 'On receipt of application, the Court shall summon the applicant and his existing wife or wives, the woman to be wedded, the wali of the woman to be wedded and any other person who, in opinion of the Court, may provide information relating to the proposed marriage (the italicised clause was added in 2005), to be present at the hearing of the application, which shall be in camera, and the Court may grant permission applied for if satisfied - and here's the killer: that the proposed marriage would not directly or indirectly lower the standard of living that the existing wife or wives and dependants had been enjoying and would reasonably expect to continue to enjoy the marriage not to take place. This clause, which was in the 1984 Act, was taken out in 1994 and has not been reinstated since.

In 1984, Section 71 (2) stated that 'The right to accommodation (in which a divorce woman is entitled to stay in the home she once shared with her former husband, for as long as the husband is unable to provide suitable accommodation elsewhere for her) provided in subsection (1) (this clause is relevant to divorced women) shall cease - (a) if the period of iddah has expired; or (b) if the period of guardianship of the children has expired; or) if the woman has remarried. In 1994, a new clause was added to this sub-section: if the woman has been guilty of open lewdness (fahisyah), the husband has the right to take the home back.

So, if the husband is guilty of open lewdness that is so rampant these days, he still has the right to take back the former marital home if he finds sufficient proof that she's a slut? There have been arguments that say that women in such situations have ample time to look for a new home and employment. Three months are more than enough. In these times of economic uncertainty, sometimes three months are not enough.

During these trying times, a woman not only has to keep her wits about her and family together, she has to deal with her own demons too.

Three questions for now

(1) Is this a question of semantics? "Patut" and "perlu" ('necessary' and 'needed') have become the two most bandied words when the bill is debated by academics, activists and lawyers. Sisters In Islam say that while the difference is subtle, the interpretation of the clause may further impede the case. Nik Noriani, a Muslim scholar who advises SIS on legal matters, has worked with the AG Chambers and is familiar with bill drafting. Her fear is that with such poorly worded legislation, it could be open to misinterpretation and abuse. Here's another example of poor semantics. Simplistic perhaps, but open to a wide variety of interpretations. What is 'women or men of evil repute' (Section 52 H (ii))? This is purely subjective. Should a married man court an ustazah and wishes her to be his second wife, will she be considered an evil woman, for having an indiscretion with a married man? She being an ustazah can't be evil, surely, and since the man wants to sanctify the relationship by marrying her, does this mean polygamy is a vice?

(2) The issue of fasakh. Already men have the right to talaq/divorce their wives. There are parties that say that men are allowed to apply for fasakh, but Muslim women feel that this could be abused. As it is, the courts do not favour women, no matter what the lawyers say. Section 52, in the amended 2005 bill, has added 'or man' 'or wife' in most sub-sections and clauses.

It is undeniable that there have been cases of certain women that leave their marital homes to unknown addresses, that they have not performed marital obligations for a year. It is said that with talaq, men tend to drag their feet, thus making the divorce process longer, while with fasakh, divorce could be expedited.

Surely this is not a case of 'tit for tat'?

Please, someone, explain this logic.

Also, it is allowed that when an errant husband goes missing for a period of time, the wife is allowed to dispose certain assets of his within reason of course for the maintenance of the family. If the roles are reversed, is the husband of the missing wife permitted to act in the same vein, knowing full well that her property is hers and not to be touched?

(3) The chattering masses find the issue of harta sepencarian amusing, for they feel that it's the first and wealthy wives that are up in arms about the issue of assets division. Polygamy is a contentious matter of course, but as everyone knows, wealthy husbands tend to use their wives and children's names to secure assets and create companies. Herein lies a massive dilemma: how much is hers or his? What is the ceiling percentage and under what kind of harta is this? Wasiat? Harta syarikah (company assets)?

Is this an upper-class dilemma then?

What a headache

With SIS helming the fight, the conservative public views this as a Western feminist campaign, and that the rights of liberal (female) Muslims are being attacked. Some feel that the debate would only worsen the gender divide among Muslims, and that really, this was not a matter about gender discrimination but about how Islam is administered in the country. At the SIS forum held on Sunday, 15 January, 2005, the public was informed that non-Muslim women in Malaysia had more rights than Muslim women. For example, when the Domestic Violence Act was formed in 1994, religious authorities did not see the need for Muslim women to be covered by the Act as Muslim men were allowed to 'beat' their wives.

Many feel that the Syariah Court needs a total revision of administration and execution. In the hands of inexperienced or cruel lawyers, judges and staff, a family will not only be torn apart but be made destitute. Let's put it this way: the layman in his or her time of distress will appreciate a lawyer that delivers the correct legal advice. How many syariah lawyers are competent and empathic? There have been cases when the client has been advised incorrectly by his or her lawyer.

Certainly I am not arguing against Islam and Islamic jurisprudence. What I fear most is that the people behind the execution of divorce, assets division et al may not be the best individuals to do so. You can have an honours degree in Islamic Studies; likewise another with a degree in nuclear physics, but do you have the common sense and empathy that are greatly needed when dealing with such delicate matters? This is not only an issue of money; it also deals with the heart. Call it romantic. Emotional. This is about the division of a family. The moral and social fabrics are fraying in many Muslim marriages. This is also a matter of social economics.

In the past one week, I have attended talks to find out more about Muslim men and women's rights in a marriage, during and post divorce, and the audience has been educated in a short period of time about Islamic law. I am indeed proud to note and learn that we are protected and that there are books and case studies that can guide us. I have met a few learned people too at these talks. However, reality can be harsh. What God has decreed is not put into practice, and has been abused.

Divorce is about three truths: yours, his and God's. Unfortunately, divorce in Malaysia is also in the hands of many parties: the warring couple, their lawyers, the Court and God knows what else.

I leave you with a few questions to ponder over the weekend:

(a) Since the drafting of the bill is said to be written appallingly, why was it not proof-read so as to not confuse the reader? What is the real crux of the problem? Language? Chauvinism? Ego?

(b) We all know that in our constitution that each state administers Islam as they see fit. Terengganu and Kelantan have their own brand of Islam, Perlis too why is there no uniformity? You might as well split each state up and turn them into mini countries. It's not like we share the same dialect and food anyway.

(C) Is this a fight between modern, progressive Muslims versus conservative Muslims? Is this about class?

(d) This storm is just the beginning of everything. When the IFL saga exploded over Christmas, the Moorthy case further compounded the problem. What a cracker of a beginning of a new year. I just hope 06 does not end with a whimper.

Soon: The Experts' View

DINA ZAMAN has finally signed up for swimming classes. Her first class starts after Chinese New Year.