Muslim Family Law Research Articles

Recent debates on wife’s right to judicial separation: an analysis of the traditional and modern interpretations of Muslim family laws in Pakistan

Recent debates on wife’s right to judicial separation: an analysis of the traditional and modern interpretations of Muslim family laws in Pakistan

A Critical Appraisal of Obligatory Bequest as Prevalent in Muslim Countries

The obligatory bequest has been adopted by legal force in several Muslim states. The basic purpose of this adoption is to overcome the economic grievances of orphaned grandchildren. This reform seems to be justified from an Islamic perspective because it does not radically interfere with the Islamic law of inheritance. Orphaned grandchildren who are excluded under the traditional law of inheritance are its beneficiaries. These grandchildren inherit the share of their predeceased parent within the bequeathable limit of one-third of their grandparent’s estate. However, if the grandparent does not make any bequest in their favour, the court will assume that the grandparent has made the bequest and enforce it. Pakistani courts have preferred obligatory bequest over Section 4 of the Muslim Family Laws Ordinance, 1961. However, obligatory bequest is not an ideal solution; it has restricted its benefit to grandchildren only and no provision is made for spouses and surviving parents. Additionally, both these reforms of obligatory bequest and Section 4 suffer from similar anomalies of representational succession. However, the state is the ultimate guardian of all deprived and needy classes. Therefore, the most appropriate way to tackle the economic necessities of orphaned grandchildren is through the welfare and development programmes of Muslim states. This article thoroughly analyses the obligatory bequest and discusses the different models applicable to Muslim countries. Moreover, the article probes the arguments for and against obligatory bequest and examines their implications.

Perceraian dan Penguatan Hak-hak Perempuan: Reformasi Hukum Keluarga di Mesir, Indonesia dan Pakistan

One of the motives for family law reform in the Islamic world is to strengthen the rights of women who tend to be discriminated against and subordinated. Egypt introduced its first family law reform by passing Laws No.25 of 1920 and 1929. Pakistan, through the Muslim Family Law Ordinance of 1961, regulates the issue of divorce and guarantees women's rights in it. Meanwhile, in Indonesia the rules regarding divorce are contained in the 1974 Marriage Law and the Compilation of Islamic Law. This article reviews the development of family law in Egypt, Indonesia and Pakistan, highlights the approaches and methods used in reform, and explores the extent to which family law reforms strengthen women's rights, especially in the field of divorce. The method used in this article is a literature study, by collecting secondary data from relevant literature and then describing it. The findings of the study show that family law reforms in Egypt, Indonesia and Pakistan use intra-doctrinal reform and extra-doctrinal reform approaches. Substantively, the reforms have strengthened women's rights in at least two aspects: first, the limitation of the husband's right to divorce, and second, the expansion of women's access to apply for divorce. Although subtantively the law has strengthened women's rights, in practice divorce and its settlement in the three countries still leave problems and sometimes harm women.

History of Development and Reform of Family Law in Indonesia and Malaysia

This study aims to determine the history of the development and reform of Islamic family law in Indonesia and Malaysia. The writing method of this article uses a comparison. It compares the history of the development and reform of Islamic family law in Indonesia and Malaysia. As a result, Indonesia and Malaysia have experienced dynamic developments and reforms in the Islamic family law pre and post-independence. Both countries are Muslim-majority countries, so Islamic law, especially the Islamic family, will develop over time. As for the difference, in Indonesia, even though the Muslim majority is more than 85%, discussion of the draft law on Muslim marriage or family always becomes an issue. It is related to establishing the State Foundation of Pancasila, which accommodates all religions. After the 1998 reform, democracy was broadly applicable. It causes the desire to formalize Islamic teachings into a positive legal system to become increasingly stronger. In Indonesia, there is some difficulty in reforming family law regarding the issue between Islamists, nationalists, Muslims, and followers of other religions. It differs from Malaysia, which established Islam as the official state religion. Malaysia is a Muslim-majority country in Southeast Asia and became the most dynamic in reviewing its Muslim family law provisions.
 Keywords: Islam, family law, history, Indonesia, Malaysia

Divorce Proceedings in Muslim Family Law of the Early Middle Ages: Theoretical, Historical and Legal Aspects

This article will consider the procedure for giving a divorce in Muslim family law, the types of divorces, the author’s classification of divorces by type and category. A comparative legal analysis of divorce in Muslim family law and family law of other legal systems is given, such as pre-Islamic family law of the Arab tribes of the Arabian Peninsula, Jewish family law, canon law. The problem of husbands’ freedom of divorce in Muslim family law of the early Middle Ages will also be considered. The article will also pay attention to approaches to the procedure for determining the place of residence of children after a divorce and material and financial guarantees for women in the divorce process. In addition, the article shows the divorce prevention mechanism, which is expressed in the presence of an arbitration court.

Negotiating Gender and Religion: Comparative Perspectives from Judaism and Islam

Abstract: Women in Orthodox Judaism and mainstream Islam are discriminated against in Muslim and Jewish family law; subjected to rulings elaborated by men regarding female purity and reproductive rights; segregated in the spaces of synagogues and mosques; and excluded from advanced study, interpretation of religious law ( fiqh and halakha ), and spiritual leadership. Gender-nonconforming believers have no place, either. Nonetheless, since the mid-twentieth century, Jewish and Muslim women as well as sexual minorities have been making claims for gender justice, attempting to change from within these conservative religions. The article shows convergences and divergences in women's strategies to undermine male hegemony on religious authority in both faiths. If numerous works have dealt with female agency and resistance to patriarchy in each tradition, comparative studies are still lacking, and this article suggests areas in family law, ritual purity, and procreation to further feminist and queer interreligious research.

Negotiating Gender and Religion: Comparative Perspectives from Judaism and Islam

Abstract: Women in Orthodox Judaism and mainstream Islam are discriminated against in Muslim and Jewish family law; subjected to rulings elaborated by men regarding female purity and reproductive rights; segregated in the spaces of synagogues and mosques; and excluded from advanced study, interpretation of religious law ( fiqh and halakha ), and spiritual leadership. Gender-nonconforming believers have no place, either. Nonetheless, since the mid-twentieth century, Jewish and Muslim women as well as sexual minorities have been making claims for gender justice, attempting to change from within these conservative religions. The article shows convergences and divergences in women's strategies to undermine male hegemony on religious authority in both faiths. If numerous works have dealt with female agency and resistance to patriarchy in each tradition, comparative studies are still lacking, and this article suggests areas in family law, ritual purity, and procreation to further feminist and queer interreligious research.

The Dynamics of Polygamy and Divorce in Muslim Countries

This article talks about the practice of Islamic family law in the Muslim world; Türkiye, Pakistan, and Indonesia which focus on polygamy and divorce. Talking about polygamy and divorce must be familiar to many people because polygamy is a very sensitive scourge when someone does that. Likewise, with divorce, this kind of thing becomes the subject of gossip in society when a family gets divorced. This paper will explain how family law is in the Muslim world, especially Turkey, Pakistan, and Indonesia with the main study of polygamy and divorce which aims to understand the understanding of society from all walks of life regarding the discussions between the two. This research is a literature study that focuses on discussing polygamy and divorce in three Muslim countries; Türkiye, Pakistan, and Indonesia. The data collection method in this study used documentation, namely collecting books, notes, and others that had relevance to the research, which were then analyzed. The results of this study are; (1) Turkey prohibits polygamy, which is contained in the book of the Ottoman Law of Family Rights, Pakistan also prohibits polygamy until written permission from the wife and the arbitral council, Indonesia legalizes polygamy referring to the Marriage Law. (2) Turkey in the event that a divorce ends with the finalization of a court decision and a waiting period of 300 days stipulated by the Turkish Civil Code, likewise Pakistan regulates divorce in two different rules, one using the Dissolution of Muslim Marriage and the other using Muslim Family Law Ordinance, divorce in Indonesia is regulated in Marriage Law Number 1 of 1974.

Muslim Family Law Reform: Understanding the Difference between Muslim-Majority and Muslim-Minority Jurisdictions

Abstract 35 Muslim-majority and 18 Muslim-minority countries formally integrate Muslim Family Laws (mfl s) into their legal systems. Both groups of governments have undertaken legislative reforms to improve the status of women/children under mfl s and strengthen the rule of law within their mfl systems. The existing scholarship does not address whether mfl s are more reformed or human/women’s rights friendlier in Muslim-majority or Muslim-minority countries. Employing an innovative methodological tool, the Muslim Family Law Index, this exploratory article surveys cross-national and historical trends in mfl reform (1946–2016). It shows that although Muslim-minority countries appear to have more “reformed” mfl systems than their Muslim counterparts, a closer analysis reveals that they have prioritized different types of legislative reform. The former favored exit rights, while the latter prioritized substantive reforms. The type and extent of interventions were strongly associated with colonial heritage, state-religion relations, international norm diffusion, women’s activism, and ethnoreligious diversity/tolerance. These findings have implications for studying multicultural theory, human/women’s rights, and democratization in the mfl-applying world.

Legal System of Polygamy and Divorce in Muslim Countries: Comparative Studies among Turkey, Pakistan, and Indonesia

This article talks about the practice of Islamic family law in the Muslim world; Türkiye, Pakistan, and Indonesia which focus on polygamy and divorce. Talking about polygamy and divorce must be familiar to many people because polygamy is a very sensitive scourge when someone does that. Likewise, with divorce, this kind of thing becomes the subject of gossip in society when a family gets divorced. This paper will explain how family law is in the Muslim world, especially Turkey, Pakistan, and Indonesia with the main study of polygamy and divorce which aims to understand the understanding of society from all walks of life regarding the discussions between the two. This research is a literature study that focuses on discussing polygamy and divorce in three Muslim countries; Türkiye, Pakistan, and Indonesia. The data collection method in this study used documentation, namely collecting books, notes, and others that had relevance to the research, which were then analyzed. The results of this study are; (1) Turkey prohibits polygamy, which is contained in the book of the Ottoman Law of Family Rights, Pakistan also prohibits polygamy until written permission from the wife and the arbitral council, Indonesia legalizes polygamy referring to the Marriage Law. (2) Turkey in the event that a divorce ends with the finalization of a court decision and a waiting period of 300 days stipulated by the Turkish Civil Code, likewise Pakistan regulates divorce in two different rules, one using the Dissolution of Muslim Marriage and the other using Muslim Family Law Ordinance, divorce in Indonesia is regulated in Marriage Law Number 1 of 1974.

One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessment

Abstract This article provides a preliminary commentary on the new civil family law regime introduced in the emirate of Abu Dhabi in November 2021 which, since February 2023, applies nationwide through the adoption of a federal statute on civil personal status. Abu Dhabi’s Law No. 14 of 2021, its accompanying Procedural Regulations, and the more recent Federal Law No. 41 of 2022 have introduced legal concepts, such as civil marriage, no-fault divorce, and joint custody, as well as potentially adoption, which have previously been non-existent for both the local and the large foreign population in the United Arab Emirates. The new statutes thereby stand in sharp contrast to the family law system to which the local Muslim population is still subject. This article assesses the new provisions against the background of the federal Muslim family law regime, established patterns of family law jurisprudence in the country, and early case law in the newly established Civil Family Court in Abu Dhabi.

A global and historical exploration: Legislative reform in Muslim family laws in Muslim‐majority versus Muslim‐minority countries

AbstractThirty‐five Muslim‐majority and 18 Muslim‐minority countries formally integrate Muslim Family Laws (MFLs) into their legal systems and enforce them through state courts. Both Muslim‐majority and Muslim‐minority governments have undertaken legislative reforms to alleviate the effects of religious laws on fundamental human rights, increase accountability and accessibility, and strengthen the rule of law within their MFL systems. Extant literature is silent on whether MFLs are more reformed or more human rights and the rule of law compliant in Muslim‐majority or Muslim‐minority countries. Utilizing a novel methodological tool, the MFL Index, this exploratory article surveys cross‐national and historical trends in MFL reform (1946–2016). It shows that Muslim‐majority and ‐minority governments have opted for different forms of legislative reform. Muslim‐majority countries favored substantive reform, while Muslim‐minority states prioritized exit reforms. The type and extent of reform were strongly associated with colonial heritage, secularism, women's activism, ethnoreligious diversity, and prevailing multicultural arrangements. These findings have implications for studying multicultural theory, human/women's rights, and democratization in the Muslim world and beyond.

Section 4 of Muslim Family Laws Ordinance 1961, Pakistan: An Exploration of Interpretive Tensions

Section 4 of Muslim Family Laws Ordinance 1961, Pakistan: An Exploration of Interpretive Tensions

INHERITANCE RIGHT OF ORPHANED GRAND CHILDREN: BANGLADESH PERSPECTIVES

The dilemma of inheritance of grandchildren from the pre-deceased child is one of the most critical areas of Islamic law. According to the classical interpretations of Islamic law, any son of the deceased in general excludes such grandchildren. However, many states brought certain changes into the existing format of Islamic law of succession so as to shield such grandchildren from total exclusion. Egypt, Tunisia, Syria, Morocco, Pakistan and Bangladesh are remarkable for binging changes in this particular area. Pakistan brought a significant change in 1961 by section 4 of the Muslim Family Laws Ordinance (MFLO), which is a milestone event in the history of reformation of Islamic law. In Bangladesh the same law become accepted through the promulgation of the Laws Continuance Enforcement order, 1971’.Section of the MFLO affected the whole structure of Islamic Law of Succession. The main contribution of this work is an attempt to draw the attention of the proper authority for taking steps to ensure the right of orphaned grandchildren and other heirs not violating the Islamic law of succession. For this purpose the author tries to show the injustices to some heirs and the provisions of Islamic law of succession which have been violated caused by the section 4 of MFLO and lastly the author has set up a method that ensures the right of the orphaned grandchildren neither violating the Islamic rule nor excluding any heir. It is a qualitative research.

Negotiating Muslim Interfaith Marriage in Indonesia: Integration and Conflict in Islamic Law

Conflict can emerge from marriage involving parties of a different faith. However, interfaith marriage may also expose negotiation to secure the union. Although interfaith marriage is normatively restricted in Islamic law, it does occur. This study departs from the normative discourse of Islamic law and the empirical research of Muslim family law. It uses the theory of law, conflict, and integration to analyse the textual debates and practice of interfaith marriage in Lombok, Indonesia. This study reveals the patterns of Muslim interreligious marriage and the conversion that applies. The first pattern shows that non-Muslim partners convert to Islam before the marriage can be concluded. The second pattern involves Muslims who leave Islam to marry their non-Muslim partner. The third pattern suggests that each couple adheres to a different belief during the marriage even though the marriage contract was performed according to Islamic law. From the perspective of Islamic law, in the sense of sharia and Muslim family code, the first pattern is the most ideal because it follows these Islamic legal normativities. Although all practices have the potential for family and social integration, the second pattern is the most susceptible to conflict.
 Keywords: interfaith marriage, conflict, integration, Islamic law

MUT'AH IN MODERN MUSLIM FAMILY LAW ( Study of Legislation in Syria, Egypt and Indonesia )

The reality showed that there are still many injustices against women that can occur anywhere, including in the domestic sector, as well as in Muslim countries. Therefore reform of Muslim family law is seen as necessary because it plays an important role in the protection of women and children and the fulfillment of their rights. Mut’ah is a gift from a husband to his ex- wife after a divorce, including one of the areas reformed in a number of Muslim countries, including in Syria, Egypt and Indonesia. Mut’ah is a gift from a husband to his ex- wife after a divorce is one of the areas reformed in a number of Muslim countries including in Syria, Egypt and Indonesia. The results of the study found that there had been reform of Muslim family law regarding mut’ah in the three countries studied, namely Syria, Egypt and Indonesia. if in traditional literature( fiqh) the right of mut’ah is only obligatory to be given to a divorced wife before had sex and with a dowry that has not been given, but in the three countries studied regardless of whether the wife was divorced before had sex or after had sex and whether the dowry has been determined or not. In addition, in modern Muslim family law there are provisions for the maximum limit of mutah that a husband must give to his wife, such as the standard of living for three years in Syria and two years in Egypt while in fiqh it is determined that the maximum size of mut’ah is not to exceed half the mistsil dowry or the price of a slave.

Undignified Jurispathy: Muslim Family Law at Ghanaian Courts

Ghana has inherited colonial legislation that recognizes and regulates the consequences of Muslim family law (MFL). However, in practice, courts almost never recognize the normative existence of MFL and systematically dismiss the cases on procedural grounds without discussing their merits. What explains the judiciary’s attitudes toward Islamic law? Why do Ghanaian courts refuse to engage with MFL in substantive terms? How does this judicial policy affect Ghana’s pluri-legal system and its multireligious democracy? Drawing on Robert Cover’s insights and concepts from “Nomos and Narrative,” the present article suggests that Ghanaian courts engage in “undignified” jurispathy against Islamic law. Having inherited the colonial narrative that Islamic law is not a native law of the land, the judiciary destroys the legal meanings built around Islamic law without discussing what is at stake. This perpetuates normative tensions between the state and Muslim groups, undermines the rule of law, and erodes public trust in democratic institutions. Utilizing the theoretical and empirical insights drawn from the Ghanaian case, the article urges scholars to expand the scope of their inquiries to include instances of undignified jurispathy to better understand state-religion relations and constitutional debates in pluri-legal societies.

A Discourse of Mudawanah al-Usrah; Guaranteeing Women's Rights in Family Law Morocco's

Moroccan family code reform (mudawanah al-usrah) passed in 2004 after a long and dramatic process promoted by Moroccan women against retreating Islamists and male domination. This paper reviews Muslim family law (mudawanah al-usrah) in Marocco. Based on a literature research method that uses a normative juridical approach with a statutory approach, this paper aims to discuss the challenges and opportunities in guaranteeing women's rights in Moroccan family law. The study indicates that mudawanah al-usrah is a meeting point between Islamic rules and international conventions, providing a new identity for Moroccan society, especially women and their rights. This reform was also influenced by the Islamic feminist movement, which produced reforms to improve gender equality in Moroccan society. That was also expected to provide an overview of the protection of women's rights in family law, especially in Morocco, and become material for evaluation in its implementation in society. This study is also expected to be a reference for activists of family law studies to continue to develop the protection of women's rights in Islamic family law.

Trends of Judicial Activism for the Advancement of Muslim Family Laws in Bangladesh: A Critical Appraisal

Dhaka University Law Journal, Vol. 33, 2022 P.1-14

Practices and reforms in the legislation of polygamy in Pakistan

In Pakistan, polygamy is a serious problem that requires legislation to address. Pakistani law imposes confinement through the Muslim Family Law Ordinance (MFLO) of 1961, which states that no man can marry for the second time without the first wife's consent, but polygamy is not prohibited in the meanwhile. In Pakistan, these rights are routinely violated. The purpose of this research is to look into Pakistan's polygamy difficulties. According to Islamic law, marriage is a civil contract between two people, a man and a woman. It generates all rights and obligations straight now. Nikah is more than simply a contract; it's a way to formalise a man and woman's relationship and recognise it as authentic. In order to prevent breaches of women's and children's rights, the study has identified deficiencies in relevant legislation and recommended amendments to the MFLO of 1961. The findings show that the practice of polygamy has negatively affected the rights, equity, and legal security of women in Pakistan.