even when their physical custody is vested in some-
one else, a mother who has custody may find it dif-
ficult to deal with issues that require the consent of
a legal guardian. Consequently, she has to go to
court to seek redress. In these ways, women be-
come primary plaintiffs in Islamic matrimonial
proceedings and face many issues with regard to
the substance and procedure of the law.Substance and structure of
Islamic legal systems affecting
women’s access to justice
Substantial aspects of Islamic law refer to the
body of legal principles to be applied in resolving
disputes. With respect to the Southeast Asian
region, the substantial part of the law is legislated
based on a particular community’s interpretation
of the Sharì≠a’s primary sources, namely the Qur±àn
and ™adìth, or Prophetic traditions. Furthermore, a
community’s adherence to particular Islamic schools
of thought (madhàhib) is also influential in deter-
mining the kind of legal principles developed. The
resulting effect of such practice is that while
Qur±ànic principles and provisions of the ™adìth
that are clearly stated are commonly accepted,
those with more general statements are interpreted
in varied ways within the region. The basic concept
of a man’s right to unilateral divorce, for example,
is commonly adopted, but the ways in which a
woman may seek a dissolution of marriage by an
order of court differs quite significantly among the
countries. In Malaysia and Singapore, the laws
allow for three methods in which women may
apply for such orders. These are the divorce for
breach of a marriage stipulation (ta≠lìq), divorce by
way of khul≠(returning of the mahr), and faskh
(dissolution on specified grounds). Detailed provi-
sions of these methods, however, vary substantially
between the two countries. The Philippines regu-
lates khul≠and faskhdivorces but not ta≠lìq. In
addition, it allows for divorce by †afwìd(delega-
tion). In Brunei, a Muslim woman may seek a dis-
solution of marriage by way of faskhon a very
general ground of “accordance with hukum syarak
[principles of Islamic law].” A Muslim woman in
Indonesia may bring a divorce suit in court on the
grounds that include adultery, desertion, violence,
physical incapacity, violation of ta≠lìq, and apostasy.
Muslim women in the region are further affected
by the procedural aspects of Islamic law. These
refer to the rules governing access to courts and
proceedings in them. The problem of the Islamic
law structure in the Southeast Asian region ema-
nates from its distinct position as a sub-system
within the general legal framework. Since it consti-380 law: access to the legal system
tutes a separate system, it operates with different
modes of access and processes from the general
court system. This can prove to be problematic to
many Muslim women in the region. In Malaysia
where each of the 13 states and federal territories
have separate and independent legislative and judi-
cial jurisdictions over Islamic law, a woman faces
difficulties in proving she falls under a particular
court’s jurisdiction for a divorce case where her
marriage has been contracted within a different
boundary. Even where a court accepts jurisdiction,
the enforcement of its judgment against the defen-
dant husband may be problematic if he relocates to
another jurisdiction.
Effective procedures are lacking in many of the
countries with regard to controlling a husband’s
arbitrary pronouncement of divorce. Even where
rules exist that render pronouncement outside of
the court a matrimonial offence, such as in Malay-
sia and Singapore, the limited sentencing jurisdic-
tions of the Sharì≠a courts means that they are
unable to mete out effective sanctions against the
action. In Malaysia, husbands willingly pay fines
for making such pronouncements without their
wives’ knowledge. Upon payment, the courts
declare the pronouncements valid.
Procedural issues in the region also occur where
one party to a marriage converts or denounces
Islam. They include questions such as whether the
Muslim courts have jurisdiction to declare that a
marriage subsists or is dissolved after a conversion
or denouncement and whether the courts can make
matrimonial orders against the non-Muslim spouses.
Since Islamic law has limited jurisdiction over the
population, when a woman converts to Islam, she
may not be able to apply for a divorce in the ordi-
nary courts if, as the case for Malaysia, the legal
system specifies that Muslim marriages may only be
ruled by Islamic law. On the other hand, she may
not use the Sharì≠a court since the court will not
have jurisdiction over her non-converting spouse.
A fundamental factor within the Sharì≠a legal
sub-systems in the Southeast Asian nations that
may affect Muslim women’s access to justice is the
elements of patriarchy that persist in the adminis-
tration of Islamic justice. Judges of Muslim courts
are mainly men and consequently decisions made
are gendered, especially in issues such as domestic
violence and guardianship of children. In many of
the countries, women who flee their homes to seek
shelter from wife abuse face problems when claim-
ing maintenance in court in divorce cases. They are
often considered nusyuz(disobedient) for leaving
the matrimonial homes without their husbands’
permission and are thus not entitled to mainte-