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«613 The Cultural and Legal Perspectives on Wife Battering in Malaysia Roslina bt Che Soh Yusoff * Abstract Wife battering has become one of the ...»

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The Cultural and Legal Perspectives on Wife Battering

in Malaysia

Roslina bt Che Soh @ Yusoff *


Wife battering has become one of the major problems across the world. It cuts

across lines of races, religion, income and classes of people. It is also deeply

embedded in all cultures, so much so that millions of women consider it as a

way of life. This article seeks to examine the cultural and legal perspectives

on wife battering in Malaysia. In relation to cultural perspective, it attempts to address the issue of cultural beliefs of the major races in Malaysia, i.e. the Chinese, Indians and Malays, on this matter particularly pertaining to the extent of the husband’s authority over the wife which is claimed to be one of the contributing factors of wife battering. In relation to this, special emphasis is made on the misconception of wife battering in Islam. Finally, the article discusses the applicable laws and the available remedies and presents to what degree these laws are adequate in controlling the problem of wife battering in Malaysia.

Introduction Article 1 of the United Nations Declaration on the Elimination of Violence against Women (“the Declaration”), proclaimed by the United Nations General Assembly in its resolution 48/104 of December 20, 1993,1 defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”.2 Protection against such violence is guaranteed in Article 3(h) of the Declaration, where it affirms women’s equal right to the enjoyment of a variety of rights, including the right to be free from torture and other cruel, inhuman or degrading treatment. Despite the international recognition, women in most societies in the world are still subject to various kinds of violence, particularly violence inflicted by husbands within the domestic sphere. The traditional tendency to consider women as subordinate to men has led to a perception of justification of traditional * Assistant Professor, Department of Islamic Law, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia.

1 The purpose of this declaration is to further strengthen and complements the process of eliminating violence against women as being enshrined in the United Nation Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

2 Available at http://www.un.org/documents/ga/res/48/a48r104.htm.

The Law Review 2010 violent practices and gender-based violence such as wife battering, as a form of control or “protection” ofwomen.3 In many jurisdictions, particularly Asia, wife battering is seen as a private matter and considerations of family and culture or religion tend to prevail over women’s interests.4 Cultural perspective on wife battering in Malaysia Wife battering is still a prevalent issue in Malaysia as it is deeply embedded in the cultures of the community, so much so that it is considered as a way of life. In Malaysia, like any other Asian countries, culture and traditions play a big role in the lives of the people. The belief that men are superior and females are subordinates still exists in the culture and traditions of the Indians, Chinese and Malays, the major populations in Malaysia. The family system in the culture of these races is still based on the patriarchal concept. Men are perceived to be the leaders and the breadwinners of the family whereas women are assigned to a lower position in the family and society,5 such as being the “reproducer and nurturer of children”.6 Based on this belief, a husband is acknowledged to have absolute authority over his wife including the right to use violence as a method of disciplining her.

Women continue to be recognised only in terms of their relationship with others, as mothers, wives or daughters.7 For instance, in the Chinese culture which is profoundly rooted in Confucian teaching, a girl has to obey her father before she is married, to obey her husband once married and to obey her son when she is widowed.8 Traditionally, when a girl is married, she belongs to the husband’s family. During the marriage she is not supposed be opinionated nor act against her husband’s will and should conform to all his demands.9 A similar pattern of belief existed in the Indian culture. A woman was to depend on her father in childhood, on her husband in her young age and on her sons in her old age. In a marriage, the husband is perceived as “God” whom a virtuous wife must always worship irrespective 3 Alvazzi del Frate, Anna & Patrignani, Angela, “Women’s Victimization in Developing Countries”, (1995) United Nations Interregional Crime and Justice Research Institute (UNICRI), Issues and Reports No 5, retrieved from http//www.uncri.it/wwk/publication/ books/reports/r5.php.

4 Amirthalingam, Kumaralingam, “A Feminist Critique of Domestic Violence Laws in Singapore and Malaysia”, (2003) Asia Research Institute, Working Paper Series No 6, July, retrieved from www.ari.nus.edu.sg/docs/wps/wps03_006.pdf.

5 Domestic Violence: Malaysian Context, retrieved from http://www.woa.org.my/research/ domesticviolence.htm#dv.

6 Hoff, Lee Ann, Battered Women as Survivors (London: Routledge, 1990), p 3.

7 Ibid.

8 This principle is known as “Sanchong side”, which is derived from Confucianist teachings.

See Chia Oai Peng, “Traces of Confucianst Influence on Malaysian Chinese Women and its Implications”, in Hing Ai Yun, Nik Safiah Karim and Rokiah Talib (eds), Women in Malaysia (Kuala Lumpur: Pelanduk Publications Sdn Bhd, 1984), p 176.

9 Ibid, p 177.

The Cultural and Legal Perspectives on Wife Battering in Malaysia 615 of his unruly behaviour.10 As such, in domestic violence cases, this belief has kept battered wives in the violent relationship for a longer period of time than might be expected.

As for the Malays, their culture is deeply rooted in the religion of Islam.

According to Islam, the husband, as the head of the family, is responsible for the protection and maintenance of the family, and in return the wife must be obedient to the husband.11 Nonetheless, such responsibility has been commonly misused by irresponsible Muslim men to justify their acts of using violence towards the wives.

The unequal power relationship between men and women, compounded in male dominated societies as portrayed in the cultures of the three major races in Malaysia, has undeniably contributed towards the crime of wife battering.

Although it has been argued that due to the process of urbanisation, the influence of the culture is less pronounced, nevertheless, it is submitted that in Asian societies, culture is deeply rooted and interlinked with religion.

Rejecting such unfair practices is looked upon as rejecting the culture and religion itself.12

The concept of husband’s authority in Islam

Marriage in Islam is seen as a sacred covenant that accentuates love, mutual respect and understanding between two individuals. Both husband and wife have a distinctive role to play and certain obligations to fulfil to ensure that a balance of harmony is achieved in the family.13 Islam has laid down that the responsibilities of the husband are the rights of the wife and vice versa. The husband as a leader of the household is responsible to protect and maintain his wife, which is one of her basic rights. In return, the wife is responsible for caring for the husband and the family including the obligation of being obedient to the husband during the existence of the marriage.14 As stated in

the holy Quran:

Men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend (to support them) 10 This belief was formulated by a famous Indian philosopher, Manu. See Oorjitham, K S Susan, “Indian Women in Urban Malaysia”, in Hing Ai Yun, Nik Safiah Karim and Rokiah Talib (eds), Women in Malaysia (Kuala Lumpur: Pelanduk Publications Sdn Bhd, 1984), p 116.

11 A detailed discussion on the authority of the husband in Islam is presented in the next subheading of this article.

12 Chelliah, Anuradha and John, Carol (eds), A Handbook on Understanding Domestic Violence (Kuala Lumpur: ERA Consumer, 2003).

13 Nasimah Hussin and Ramizah Wan Muhammad, “Wife Battering from an Islamic Perspective and Malaysian Legal Provisions”, (2008) IIUMLJ 203 at 205.

14 Muhammad Iqbal Siddiqi, The Family Laws of Islam (Lahore: Kazi Publications, 1984), pp 47–49.

The Law Review 2010 from their means. Therefore the righteous women are devoutly obedient and guard in the husband’s absence what Allah would have them to guard.15 The husband’s leadership in relation to his family does not imply dictatorship over his wife.16 Men in Islam are made the protectors and maintainers because of superior physical strength and because of their economic responsibilities towards the family.17 In the event of disputes between the parties, Islam totally prohibits the husband to act cruelly towards his wife. He is encouraged to resolve the problems with kindness and to consider the positive aspects of

the wife. As stated in the Quran:

O! you who believe! You are forbidden to inherit women against their will.

Nor should you treat them with harshness; … on the contrary live with them on a footing of kindness and equity. If you take a dislike to them it may be that you dislike a thing and Allah brings about through it a great deal of good.18 Kind treatment towards the wife is also supported by a number of traditions of the Prophet Muhammad (p.b.u.h).

On the authority of Mu’awiyah al-Qushairi who said, “I went to the Messenger of Allah and asked him: ‘What do you say (command) about your wives?’ He replied: ‘Give them the same food you have for your selves, and clothe them with the same clothe yourselves and do not beat them, nor revile them”.19

In another tradition, the Prophet said:

Among the Muslims, the most perfect as regards to his faith is the one whose character is most excellent, and the best among you are those who treat their wives well.20 From the above discussion, it is clear that men are chosen as the leader of the family not for their superiority over women but due to their physical ability which make them better equipped to earn a livelihood and bears the physical strains for the family.21 The husbands’ responsibilities towards the 15 The Quran, 4:34.

16 Fatima Umar Naseef, Women in Islam: A Discourse in Rights and Obligations (India: Sterling Publishers Pvt Ltd, 1999), p 198.

17 Zeenath Kausar, “The Status and Role of Woman in Feminist Philosophy and Islam”, in Zaleha and Zeenath Kausar (eds), Women’s Issues: Women’s Perspectives (Petaling Jaya: Ilmiah Publishers Sdn Bhd, 2002), p 11.

18 The Quran, 4:19.

19 Abi Dawud Sulaiman, Sunan Abi Daud (Beirut: al-Maktabah al‘Asriyyah, 1995), Vol 2, Kitab al-Nikah, Hadith no 2142, at pp 244–245. See also Jamilah Abdul Kadir al-Rafa’I & Muhammad Ramiz Abdul Fatah al-Azizi, Huquq al Mar’ah fi al-Islam, (Amman: Dar alMamoun, 2006), p 198.

20 Abi Isa Muhammad bin Isa bin Saurah al-Thirmizi, al-Jami’ al-Sahih wahuwa Sunan alThirmizi (Beirut: Dar al-Kutub al-‘Ilmiyyah, 2000), Vol 3, Kitab al-Rida’, Hadith no 1195, at p 407.

21 Zeenath Kausar, “The Status and Role of Woman in Feminist Philosophy and Islam”, supra, n 17, p 11.

The Cultural and Legal Perspectives on Wife Battering in Malaysia 617 wives cannot be seen as an absolute authority that justifies violence to be inflicted on the latter.

Misconception of wife battering in Islam Islam allows some degree of punishment towards a recalcitrant wife (nusyuz),22 i.e. when there is a serious misconduct committed by a wife and other efforts which have been taken by the husband to discipline her have failed. 23 As

stated in the Quran:

As to those women on whose part you see ill conduct, admonish them (first), (next) refuse to share their beds, (and last) beat them (lightly); but if they return to obedience, seek not against them means (of annoyance); for Allah is most High and Great.24 Regrettably, this verse has been erroneously interpreted and misused by irresponsible Muslim men to justify the right to beat their wives. Most Muslim scholars agree that the revelation of this verse is to give guidance on how to handle delicate family situations with care and wisdom. The word “beating” which is used in the verse does not mean physical abuse. The Prophet explained that it must be “a light tap that leaves no mark and faces should be avoided”.25 Some scholars agree that any beating should be symbolic only, as where a “siwak” or tooth-stick or similar light object is used. In addition, beating can only be resorted to if the husband believes that it would improve the situation, otherwise it is preferable to abandon this measure.26 Again, it must be borne in mind that act of beating is considered as the last resort after the other two options, i.e. admonishing and boycotting,27 failed to be effective in disciplining the wife.

It has also been argued that recourse to beating, as far as possible, should be avoided because Islam clearly encourages all marital disputes to be solved

peacefully, i.e. through mediation.28 In the Quran it is stated that:

22 The word “nusyuz” means disobedience or disloyalty of the wife towards her husband to such an extent that it transgresses the injunction of the Quran and the traditions of the Prophet Muhammad. See Nasimah Hussin and Ramizah Wan Muhammad, supra, n 13, at 206 for further discussion on the meaning of the term.

23 The Muslim jurists agree that disciplining a wife cannot be resorted to simply for fear of disobedience on her part but only when she actually commits the prohibited act or oversteps the limit laid down by Allah. See Bahnasii, Mas’uliyyah al-Jinaaiyyah fii al-Fiqh al-Islaamii, 175, as cited in Nasimah Hussin and Ramizah Wan Muhammad, supra, n 13, at 208.

24 The Quran, 4:34.

25 See Sayyid Abul A’la Maududi, Towards Understanding the Quran, Translated and Edited by Zafar Ishaq Ansari (Leicester: The Islamic Foundation, 1989), Vol 2, Surahs 4–6, English version of Tafhim al-Quran, at p 36.

26 Nasimah Hussin and Ramizah Wan Muhammad, supra, n 13, at 209.

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