Are Women Getting (More) Justice? Malaysia's Sharia Courts in Ethnographic and Historical Perspective, Michael G. Peletz

Buddhist courts are only one of many types of religious judicial institutions in Asia. Shari’a courts in the Islamic tradition are another major type of religious court and are important cultural symbols of Islam (see Chapter 1).

As in times past, the vast majority of plaintiffs in the nation’s Islamic courts are women of modest or meager means, just as most defendants are men, from generally comparable socioeconomic backgrounds, typically plaintiffs’ hus­bands or former husbands. Noteworthy as well are continuities in the types of cases that women (and to a lesser extent men) bring to the courts, the lion’s share of which concern civil rather than criminal matters. As in previous decades, female plaintiffs typically petition the courts to help them resolve problems associated with their husbands’ failure to provide spousal or child maintenance (nafkah); to clarify the status of their marriages; or to seek a termination of marriage via fasakh or taklik (due to violation of a stipulation in the marriage contract). The first two sets of issues are often inextricably linked insofar as women who have not received support from husbands who have left home to seek a living do not always know if their husbands have been delinquent in providing them with money or news of their whereabouts, or have divorced them via the talak/repudiation clause. Women seeking fasakh or taklik divorce are often in the courts for the same general kinds of reasons.

Male plaintiffs, in contrast, usually approach these courts to obtain formal approval of their divorces or to seek permission for polygynous unions but not for clarification of ambiguity or because of financial hardship. In this too we see considerable congruence with times past and important changes that require men to secure the court's consent to effect a divorce or a polygynous marriage that is legal in the eyes of the state's religious bureaucracy. A more general continuity involves the complex entanglement of Islamic law with state directives, whose formal authority and clout, like those of the Islamic judiciary in its entirety, derive ultimately from the secular constitution. There is no “firewall separation” between the religious and the secular. [...]

First, women's legal petitions are dealt with by the courts in a more timely and substantive fashion than in the past. Second, compared to the previous decades under consideration here, the courts are more likely to impose punitive sanctions on men who contravene sharia family-law enactments. A third, more general point, also related to sentencing, is that most harsh punishments are meted out to men, not women. Fourth, women currently have at their disposal much more information concerning their formal legal entitlements and obligations with regard to conjugal ties and their dissolution and can rather easily tap into densely configured networks of support to aid them in negotiating marriage, the shoals of divorce/annulment, and the precarities that may ensue. The fifth component of the answer is that, despite these generally encouraging developments, women and men do not experi­ence marriage, divorce, or the sharia court-system on a level playing field. This too is changing in ways beneficial to women, however, albeit primarily for those who heed increasingly pronounced and restrictive expectations regarding obedience and heteronormativity.