Muslim personal law is under the jurisdiction of each State Government. 

The different States have different enactments governing Muslim personal laws and different administrative procedures. 

For in depth references to this section refer to Ahmad Ibrahim, 1997 and Mehrun Siraj, 1993.

1.        Rights to Marriage

1.1     The States of Malacca, Kelantan and Kedah, unlike all the other States of Malaysia, allows a father to marry off his daughter without her consent, although three (3) conditions have to be satisfied.

1	The wali mujbir or the prospective husband is not hostile to the woman;
2	The prospective husband is of the same social status as her;
3	The prospective husband is in a position to pay maharmithil or dowry.

1.2     A woman is required to have a wali (guardian) to consent to her marriage regardless of her age.  If her father objects to her marriage, she has to apply to the Court to allow the marriage by wali hakim.  Women whose fathers object to their marriages, face many difficulties when applying for the wali hakim and there is no guarantee that the Court will allow the application even in a deserving case.  Some women prefer to run away and marry in Thailand or other States rather than confront their fathers.  This however creates problems about the validity of the marriage.

2.        Registration of Marriage

2.1     Although the State legislations all require marriages to be registered, marriages which comply with the Hukum Syarak (Islamic Law based in the Quran and Sunnah) but are not registered are considered valid.

3.        Polygamy

3.1     Due to the lack of a central registry to record all marriages in Malaysia, it is currently difficult for any party to find out if one’s spouse has remarried in another State.  Further, even if the records showed that husbands had married other wife/wives in other States without obtaining the Court’s consent, the Courts may be reluctant to prosecute the offenders.

3.2     Because different States have different enactments governing Muslim law and administration, people are able to evade the stricter provisions of one State by moving to another State.  For example, a man who had been disallowed by the Syariah Court Judge to marry a second wife, was subsequently allowed by another State to marry that second wife (Mehrun Siraj, 1993).

         There is also ambivalence towards enforcing the Syariah Court laws.  This reduces the effectiveness of legislative controls on polygamy and protection of women’s rights.

4.        Divorce

4.1     There are cases of women who are separated from their husbands either by choice or as a result of being deserted by their husbands and yet are unable to get a divorce.

         Women who go to the Syariah Courts to apply for divorce or maintenance or other reliefs (eg injunction, custody) often face unsympathetic male Syariah Court Judges and officers and long delays in the processing of their applications.  Husbands often refuse to attend Court without facing any penalties thereby causing delays in any applications by the wives and even refuse to comply with the Court Orders.

4.2     Although all the States require an application for divorce to be submitted to the Court which will inquire into each application, a husband who pronounces a talaq outside the Court or without its approval only commits an offence for which he is fined but the divorce is still valid and will be registered after payment of the fine.  This makes the procedures for controlling divorce less effective.

5.        Maintenance

5.1     A problem arises as to which State law applies to an individual.  A woman who is married in one State, is unable to apply for relief in the Syariah Court of another State where she is staying and is sometimes required to go back to her home State to make the application unless she changes her addresses on her Identity Card.

5.2     The present Syariah Courts have problems in enforcing orders for maintenance against the husbands who evade such payments.

5.3     A wife will lose her right to maintenance if she is nusyuz, which is defined as “unreasonably refuses to obey the lawful wishes or commands of her husband”, that is to say:

	when she withholds her association with her husband; or
	when she leaves her husband’s home against his will; or
	when she refuses to move with him to another place without any valid reason.

         In implementing this, the Syariah Court Judge sometimes loses sight of the qualifying words “unreasonably” and “lawfully” and places too much emphasis on the wife’s leaving without the husband’s permission.  This rule has been used to prevent a woman from escaping domestic violence.

6.        Guardianship

6.1     While a Muslim woman has a better right to hadanah or custody of her children, her right terminates when the child reaches the age of 7 years (for males) or 9 years of age (for females).  The Court may allow her to retain custody until the child attains the age of 9 years (for males) or 11 years (for females).  Once her rights to hadanah terminate, the father gets custody of the children.  If the child has reached the age of discernment, the child has the choice of living with either parent unless the Court decides otherwise.

          In addition, although custody may be given to the mother, the father is the first and primary guardian of the child and the child’s property.  If the father dies, the legal guardianship goes to the following persons in order of preference:

1	his father (i.e., the child’s paternal grandfather)
2	the executor appointed by the father’s will (who may be the mother)
3	the father’s executor’s executor
4	the father’s father’s (paternal grandfather’s) executor
5	the father’s father’s executor’s executor provided he is a Muslim, an adult, sane and worthy of trust.  In the absence of a legal guardian, the Court will appoint one (Islamic Family Law Enactment 1985, S.88 to S.105, State of Penang).

Reprinted with permission from the chapter, "Difficulties faced by Women in the Syariah Court System," from the book, "Malaysian Women and the Law: Rights, Discriminations and Reform"