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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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27 Severing from conjugal relationship.

28 Abdul Karim Zaidan, al-Mufasil fi Ahkam al-Mar’ah wa Baiti al-Muslim fi al-Shariah al-Islamiyyah (Beirut: Muassasah al-Risalah, 2000), Vol 7, at p 318.

The Law Review 2010 If you breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from hers: if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever AllKnower, Well-Acquainted with all things.29 The verse indicates that an arbiter from each spouse’s side ought to be brought to mediate the disputes and to effect reconciliation with Allah’s help.30 From the above discussion, it is clearly understood that Islam does not contemplate domestic violence or wife battering. If the wife is defiant or disobeys the husband without any lawful reason, three measures have been mentioned, but it does not mean that all the three are to be taken at one and the same time, but they are to be administered with the sense of proportion according to the nature and extent of the offence.31

Legal protection under the Malaysian laws

There are a number of statutes that give protection to wives against any form of violence. The most important is the Domestic Violence Act 1994 (hereinafter referred to as “DVA 1994”). This Act was enacted as a result of the concerted efforts of various non-governmental women’s organisations to highlight the inadequacies of the previous laws relating to domestic violence in light of the increasing number of domestic violence cases.32 It was designed to grant both civil and criminal remedies for the victims of domestic violence, irrespective of race, religion, cultural and family background differences.33 Generally, the DVA 1994 provides protection to all family members including the wife against violence committed within the domestic sphere.34 It gives a wide interpretation of domestic violence which includes attempting to place fear of physical injury, causing physical injury, compelling by force or threat to engage in sexual conduct, confining or detaining the victim against her or his will and causing mischief or damage to the property of the victim with intent to cause distress or annoyance to her or him.35 In the case of a battered wife, she can seek protection by making a complaint to the police or welfare officer and criminally charge the husband, or apply for a protection orders36 29 The Quran, 4:35.

30 See commentary on the Quran by Abdullah Yusuf Ali, The Meaning of the Holy Quran, 11th edn (Maryland, USA : Amana Publication, 1994), p 196.

31 S Abul A’la Maududi, supra, n 25.

32 Noor Aziah Haji Mohd Awal, “Women and Law”, in Roziah Omar and Azizah Hamzah (eds), Women in Malaysia: Breaking Boundaries (Kuala Lumpur: Utusan Publications & Distributors Sdn Bhd, 2003), p 91.

33 The DVA 1994, s 1(2) declares the Act to apply to all persons in Malaysia.

34 “Family members” under the DVA 1994, s 2 include spouse, former spouse, a child, an incapacitated adult and other member of the family.

35 See the DVA 1994, s 2.

36 Section 4 provides for the application for interim protection order while long term protection order may be sought under the DVA 1994, s 5.

The Cultural and Legal Perspectives on Wife Battering in Malaysia 619 from the court. Besides these measures, the DVA 1994 also provides rights for compensation37 to the victim due to the injury sustained from the violence and for counselling sessions38 to enable reconciliation and rehabilitation in order to facilitate preservation of the family.

Apart from the remedies available under the DVA 1994, battered wives may also find refuge in several other laws enacted prior to the said Act. The abuser husband may be charged under the Penal Code per se for causing personal injury to the wife under the provisions pertaining to offences against a person that apply to any person generally.39 The Law Reform (Marriage and Divorce) Act 1976 (hereinafter referred to as “LRA 1976”)40 on the other hand provides for an injunction against molestation41 as well as the right to apply for divorce based on the breakdown of marriage due to the unreasonable behaviour of the husband that means the wife cannot be reasonably be expected to live with him42 or it will cause exceptional hardship to the battered wife if the marriage remains intact.43 It is to be noted that the application for an injunction against molestation must be made during matrimonial proceedings. This means that a battered wife would not be able to get an immediate injunction to restrain her husband from molesting her unless she filed for a divorce or for any other matrimonial proceedings against her husband.

The Islamic Family Law (Federal Territories) Act 1984 (hereinafter referred to as “IFLA 1984”), an Act which is applicable to Muslims, provides similar remedies to those available in the LRA 1976. A battered Muslim wife may apply for divorce by fasakh,44 ta’liq,45 khulu’46 or annulment of the marriage and an injunction against molestation.47 In addition, she also has the right to charge the husband under the IFLA 1984 for ill-treatment, under which the husband may be subjected to a penalty of being fined or imprisonment 37 See the DVA 1994, s 10.

38 See the DVA 1994, s 11.

39 For example, under Chapter XVI – Offences Affecting Human Body, see ss 299–309(B) for Offences Affecting Life and ss 319–338 for the offence of hurt and grievous hurt.

40 This Act is only applicable to the non-Muslims. See the LRA 1976, s 3(3).

41 See the LRA 1976, s 103.

42 See the LRA 1976, ss 53 and 54(1)(b).

43 See the LRA 1976, s 50(2).

44 Fasakh divorce is a divorce by judicial decree and the relevant ground is cruelty of the husband as laid down in the IFLA 1984, s 52(1)(h).

45 Divorce which is based upon non-fulfilment of stipulated conditions as laid down in the IFLA 1984, s 50. See Mimi Kamariah Majid, Family Law in Malaysia (Kuala Lumpur: Malayan Law Journal Sdn Bhd, 1999), p 135.

46 This is a divorce by redemption where a wife may request for a divorce from the husband by offering him money of gifts as stated in s 49 of IFLA 1984. See Mimi Kamariah Majid, ibid, p 133.

47 According to the IFLA 1984, s 107, the injunction against molestation must be sought during any matrimonial proceedings.

The Law Review 2010 or both.48 Apart from the specific injunction in the IFLA 1984, a general injunction to restrain the perpetrator from doing any act which may jeopardise the victim is also available in the Shariah Court Civil Procedure (Federal Territories) Act 1998.49 This can be an alternative avenue for a battered wife under the civil law.

Other available protection in civil law can be found in the Married Women Act

1957. The Act allows a husband or wife to sue each other in tort for damages in respect of injuries to his or her person, in the like manner as any other two separate individuals.50 Weaknesses of the laws Despite the available remedies offered by the above laws, they are still subject to many weaknesses which hinder the battered wife from seeking protection under them. Under the DVA 1994, in order to charge the perpetrator for domestic violence, the Act must be read together with the provisions of the Malaysian Penal Code.51 The Penal Code is an Act relating to criminal offences and all actions under the DVA 1994 are only to be taken if there is any information relating to the commission of any offence under the Penal Code. This means that domestic violence per se is not a specific crime punishable with new penalties under the DVA 1994. This therefore makes the power of the police less effective as action could not be taken immediately.

Additionally, if an act of domestic violence has been alleged, the police have to adhere to the procedure laid down in the Criminal Procedure Code52 (hereinafter referred to as “CPC”), that is to first determine the nature of the offence as to whether it is a seizable53 and non seizable54 offence. Under the CPC, the police are only required to conduct immediate investigations in cases of seizable offences.55 Seizable offences are described as serious offences where the offender uses “dangerous weapons or means” to cause hurt or grievous hurt, which is defined as permanent loss of sight or hearing, fracture or dislocation of bones.56 It has been argued that in most cases of domestic 48 See the IFLA 1984, s 127.

49 See the Shariah Court Civil Procedure (Federal Territories) Act 1998, s 200.

50 See the Married Women Act 1957, s 4A.

51 See the DVA 1994, s 3. The relevant offences under the Penal Code (Act 574, first enacted as FMS Cap 45) are stated under Chapter XVI – Offences Affecting the Human Body.

52 Act 593 (first enacted as FMS Cap 6).

53 See the CPC, s 110.

54 See the CPC, s 108. According to the CPC, s 2, a “non-siezable offence” means an offence for which a police officer may not ordinarily arrest without a warrant according to the third column of the First Schedule.

Mimi Kamariah Majid, Criminal Procedure in Malaysia (Kuala Lumpur: University of Malaya Press, 1987), p 59.

56 Nor Aini Abdullah, “Domestic Violence Act 1994: An End to a Nightmare?” [1995] 1 MLJ xli at xlii.

The Cultural and Legal Perspectives on Wife Battering in Malaysia 621 violence, such as wife battering, the violence inflicted by the husband would usually be classified as non-seizable offences.57 Thus, a battered wife could not seek immediate protection as the police are not compelled to investigate or arrest the husband immediately until and unless a warrant is issued by the public prosecutor or a magistrate.

Another drawback of the DVA 1994 is that the protection orders which may be sought by the battered wife to prevent further violence being inflicted cannot be immediately obtained. An interim protection order may only be sought if there is a police investigation being carried out, and for a long-term protection order, it can be obtained only if the accused is charged with a crime of domestic violence. Hence, in the majority of domestic violence cases, the victims are left without any immediate protection and “they have to be literally knifed or their bones broken before they can even consider applying for protection order”.58 Apart from the above, an application for divorce due to domestic violence is seen as a last resort remedy particularly if the wife is a homemaker and totally dependent on the husband. The injunction against molestation is not an immediate injunction of relief as it can be applied for only when there is a pending matrimonial proceeding. In addition, this injunction cannot be invoked by a wife who wishes to continue with the marriage but only wants to protect herself from further violence inflicted by her abuser husband. In case of suing the husband in tort for personal injury, it is improbable that the wife will have the courage to take action as the procedure may be time consuming, costly and emotionally demanding as the she will have to face the husband in open court.

Despite the weaknesses in the Malaysian laws in providing adequate protection to battered wives, it is submitted that recognition given to such acts as a crime committed within domestic setting particularly under the DVA 1994 has effectively created greater awareness among women. For instance, statistics from the Royal Malaysian Police Force reveal that from year 2006 to year 2007, there was about a 10 percent increase in the domestic violence cases committed by the husband.59 Although, the statistics may indicate that the 57 Usually the violence inflicted involves the act of punching, kicking, assault, battery etc, which fall under the Penal Code, s 319. This section provides that, “Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt”. See Nor Aini Abdullah, supra, n 56.

58 See Abu Bakar Munir and Nor Aini Abdullah, “Domestic Violence and the Need for a Family Court” [1995] 4 CLJ lxxv.

59 Superintendent Ong Chin Lai, “Sexual, Women & Child Abuse Division, Malaysian Royal Police Force”, presentation at “Forum cum Workshop on the Role of Police Involving Domestic Violence & Custody Disputes: The Shariah & Civil Perspective”, organised by Pertubuhan Mencegah Alienasi Keibubapaan Kuala Lumpur & Selangor (PEMALIK), held at The Bar Council Auditorium, Kuala Lumpur on December 20, 2008.

The Law Review 2010 incidences of wife battering are on the rise, it may also be assumed that the increase in the number of reports relating to wife battering signifies greater awareness among the victims of their rights to take action under the DVA 1994.

Conclusion Protection against wife battering cannot solely rely on legal sanctions. In reference to Asian cultures, which are based on the patriarchal system and consider domestic violence as a private matter, it takes a lot of courage for the victim to report and deal with the problem. Besides dealing with the weaknesses of the laws, rigorous efforts should be taken by the government to overcome this issue. Programmes such as victim support groups, legal awareness programmes, educational and mass media awareness campaigns may spur improvement to the present situation to reduce the number of wife

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