Gender Equality, Islam, and Law

Raihanah Abdullah1,
Asadullah Ali , Siti Aminah Hamid3
2

Abstract‘Gender equality’ is not a new concept; in fact the approach had
been advocated in Islam based on principles of equity and universal
justice. Equality, or its Arabic equivalent musawah, was mentioned in
the Qur’an and implemented by the Prophet Muhammad. Thisprinciple emphasises the equal status between men and women,sourced from the Qur’an and the Prophetic Traditions as well as
fulfilling the requirements of the Maqasid Syariah (Islamic Law’s
raison d’être). However, the concept of gender equality has now
becoming more chic and trending on the international scene; adevelopment parallel to the rise of the human rights discourse
globally. In this context, the concept of gender equality wasembedded as the foundation of policy and legal provisions including
the Islamic Family Laws that have been promulgated in several
Islamic Jurisdictions. In Malaysia, this principle also took center
stage and became the focus in the provisions and implementations ofIslamic Family Laws. Women groups and lobbyists are also actively
promoting this principle, especially in demanding for comprehensive
reforms in Islamic Family Laws. Nonetheless, this concept has often
been misunderstood by the majority of society as a direct result of
ignorance on how Islam perceives this concept. This present researchaims at discussing the concept of gender equality from the Islamic
perspective and its subsequent applicability within the framework ofIslamic Family laws in Malaysia in light of the issue of polygamy.

Islam and Gender Equality

G

ender equality is not a new concept, although secular societies havegiven the impression that the phrase has just been invented little
less than a century ago. Despite the contemporary negative portrayals,
Islam has advocated the concept since the revelation of the Qur’an, even20gender equality, islam, and law

21emphasizing it in its most important scripture—the Holy Qur’an. Someof the major evidences taken directly from the text are those verses(ayahs), which reference both men and women in an equitable light. For
instance, the most famous of which is n Surah al-Ahzab:
Surely those who submit [to God], men and women, those who believe,
men and women, those who obey, men and women, those who aretruthful, men and women, those who are petient, men and women, those
who are modest, men and women, those who are charitable, men andwomen, those who fast, men and women, those who guard theirmodesty, men and women, and those who remember their Creator, men
and women—God has prepared for them forgiveness and great reward.4

This verse clearly states that people who are devout to Islam—regardless of gender—are given the same amount of forgiveness andreward; the fact that men and women are clearly distinguished in every
part of this verse is a definite indication of this. It was as though The
Creator wanted to make a point in mentioning both, so as to make surethat it was properly understood that women have a share in the samerewards as men. This is not surprising since prior to the advent of Islam,the pagan Arabs had treated their women as little less than property
devoid of any rights, inheritance, or even the allowance to engage incivic duties—what now that they were being told that their women now
had equal access to Divine guidance and rewards?
The Qur’an also mentions: “So He created him [man] and made himof two kinds, the male and the female” (Al-Qiyamah, 75:39) and “Wehave bestowed dignity on the progeny of Adam” (Al-Isra, 17:70). As forthis “dignity”, Dr. Hashim Kamali points out that it is not exclusive tomen:
The ‘progeny of Adam’ includes both men and women, who are equal in
the way they are created and in their inherent dignity. The divine grace
from which they emenated does not discriminate between the male andthe female.5

This startling change in society is emphasised further in the following
verses and Prophetic sayings:
A) In terms of moral practices:“Whoever does good, whether male or female, and is a believer, We
shall certainly make them live a good life, and We shall certainly give22

gender equality, islam, andgenderlaw equality, islam, and law

7

16:97)
them their reward for the best they have done”. (Surah al-Nahl, 1:97)

B) In terms of employment:“Then their Lord accepted their prayer and answered them: Never will I
suffer the work of any worker among you to be lost, whether male or
3:195)
female, the one of you being from the other”. (Surah al-Imran, :19)This is further emphasised in another ayah of the Qur’an, Surah
32: “For men is a share of what they have earned, and for
Al-Nisa’, 2:
women is a share of what they have earned”.
C) In terms of civic duty:“And the believers, men and women, are protectors of one another. They
enjoin good and forbid evil, and keep up the prayer and pay the zakah(charity tax)”. (Surah al-Tawbah, 9:71)

Both the genders are included here in regards to “enjoining good andserves toto exemplify
exempliy both
forbidding evil”, which serves
both their participation inmanners of governance and nation building—neither can be excluded at
the expense of the other, and both have equal right to decision making
and the vision and goals of the nations in which they live.
D) In terms of education:“Seeking knowledge is compulsory for each and every Muslim (i.e. bothmale and female)”. (Ibn Majah #224 al-Baihaqi).
Likewise to the above mentioned privileges for both genders, each musthave equal acess to education in Islam. Many historical examples ofwomen scholars—including the archetype, the wife of the Prophet
and “Mother of the Believers, Aisha binti Abu Bakr (ra)—prove that
Islam not only encourages education for women, but mandates it as
well.

However, despite these very explicit verses of the Qur’an detailing theequitablility between genders, many are shocked and marvel at thetreatment of women in the Muslim world, whom appear to be little lessthan second class citizens.
The most recent international legislation in regards to gender equality
is the United Nations Convention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW) adopted in 1979 and is now
considered equivalent to a bill of human rights exculsively for women.
This convention has been ratified by 189 states, with few giving

8gender equality, islam, andgenderlaw equality, islam, and law

23

reservations to some of the article therein. The first of these articles
opens with a clarification on what constitutes as “discrimination”:
For the purposes of the present Convention, the term “discrimination
against women” shall mean any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, ofhuman rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.6

For further clarification, any nation state that has reservation with oneof the more specific articles in the CEDAW, such as Article 5(a)(a) which
declares that states shall “modify the social and cultural patterns ofconduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on theidea...on stereotyped roles for men and women”, are not allowed to
articulate any alternatives to these articles despite their female population’s choices based on their own systems of religious or cultural values,
as per Article 28. The standard set of values are thus determined exclusively by the parties that created the Convention to begin with, andthose nation states, cultures, or religions—and the women who support
them—have little to no say to the contrary.
Academics such as Javaid Rehman have argued that the Shariah has
been insensitive towards women’s rights; referencing the act ofpolygamy as being one of his primary evidences.7 Michele Brandt andJeffrey Kaplan concur with the above, claiming that it Is unfair that only
men are allowed the option of marrying more than one partner.8 Theirconcerns draw heavily from how they define ‘equality’, which appears
to be little more than a synonym for ‘sameness’. However, whether suchan interpretation can be taken as a standard is questionable. As Anne F.
Bayeksky
Bayefsky has
has noted—writing
noted—writing in the Human Rights Journal—regarding
the concept of equal treatment and non-discrimination in internationallaw, ‘equality’ and ‘sameness’ can be two different things:
1) Not all differences in treatment are discriminatory or equality does notmean identical treatment;2) a distinction is discriminatory if it (a) has no objective and reasonable
justification, or pursues no legitimate aim, (b) if there is not reasonable
relationship of proportionality between the aim and the means
employed to attain it;

24gender equality, islam, andgenderlaw equality, islam, and law

9)3) the legitimacy of the aim and the reasonableness of the relationshipbetween the aim and the means employed to attain it, will be harder toestablish (at least) for distinction based on race (including colour,
national or ethnic origin), sex and religion.9

For Bayeksky
Bayefsky then,then, equality
equality is
is defined more by equitabilty rather thansameness. For instance, such discriminatory acts that may fulfill theobjective of having “reasonable justification” and “proportionality” aregender segregated toilets, gyms, sports, and even physical performance
tests for the military, all of which are considered justified under the
personal preferences and physical differences between the genders.
However, as noted in Bayeksky’s
Bayefsky’s third qualifier, acceptable discrimination may be more difficult to establish based on non-pragmatic grounds,
such as religious ideology. As such, Islamic ethical standards would
appear to fall within the same category. However, it is clear that suchstandards cannot simply be judged based on the “equality = sameness”
argument, and must be examined in light of the values intrinsice to thecultures being assessed for unjustified discriminatory behaviors. If
polygamy is truly wrong, it must be so on the basis that it prevents
equitable treatment between genders, rather than merely disallowing one
gender to participate in the practice.
Those critics who do not adopt the ‘sameness’ argument may point toother evidences that seem to support the unequitable treatment of
women as being foundational to Islam. One of the more famous verses
cited in the Qur’an is in Surah al-Baqara, verse 228: “...women haverights similar to those that men have over them, in a just manner, andmen are a degree above them”.
At face value, this verse is sufficient evidence to show that men are to
be generally treated higher than women, however, the interpretation ofthis verse has been disputed since the beginning of Islamic civilization.
Indeed the passage in question does say that men are above women; butin what sense? While it is certainly the case that the Qur’an is granting ahigher position to men, it is only suggesting this in a limited context inthat they have more responsibility in the affairs of women’s maintence.
The verse is specific here about marriage and as such is not a universal
declaration in all matters.
While in another verse of the Qur’an that supports the above notion is34: “Men are the protectors and maintainers of women,
Surah An-Nisa, 4:
because Allah has made one of them to excel the other, and because they
spend (to support them) from their means”. Given this, the former verse
needs to be read carefully and in accordance with a holisitic approach ofgender equality, islam, and law

25

Qur’anic injunctions. When read out of this context, it can literally mean
anything to anyone.
Other verses are also very specific when it comes to men and women.
One verse that is often quoted to make women insignificant in legal
matters is Surah al-Baqara, 282:
When you enter into transactions involving a debt for a fixed period [inthe future], reduce it to writing, And let a scribe write it down between
you in fairness...And bring two witnesses from among your men.
Should there not be two men, then a man and two women of the women
you choose to be witnesses; if the one of the two errs, the one may
remind the other.

This verse has been used repeatedly to suggest that the testimony of
one woman is not equal to one man, however, it is very specific inregards to why two women are being chosen; it is obvious that this has
to do with business transactions, for which women at that time were less
known for being experts on since they did not involve themselves inbusiness as much as men. The verse in question is only in regards to one
event and is contexual to the way society is run or how it normativelyfunctions in business affairs. As such, it cannot be used as an evidence
that a woman’s testimony is less than a man’s or that women are
somehow generally deficient in giving testimony. For instance, the), Umar bin
second righteous caliph (successor to the Prophet
Khattab (ra), appointed a woman to manage the affairs of the market in
Medina—the holiest city in Islam next to Mecca—where the Prophet
lived and was buried. If this was a universal injunction, than Umar(ra) would not have been allowed to do this, much less would thewoman in question be taken seriously as a manager over businesspractices.
Given the above, when verses of Qur’an are taken within the context
that they were revealed, alongside the historical practices of the earlyMuslim community—who are taken as the standard of religious
behavior and interpretation for contemporary Muslims—it is evident
that Islam does not classify one gender as generally ‘better’ thananother, but takes into consideration very specific socio-economic
conditions whch affect both men and women. Under ideal conditions,men and women are assigned to roles which help foster a balanced
community model and societal progress. When exceptions to the rule arepresent, such as in the case of Umar’s (ra) female assistant in the market
place, then those exceptions are granted without concern of the indi-26

gender equality, islam, andlaw equality, islam, and law
gender11

viduals gender.
Likewise, in the case of polygamy, the conditions to be met are that aman must be in a financially capable position and be equitable to eachone of his partners in every aspect of life, be it financially, spiritually,
emotionally, and even intimacy. Given that women are not ideally
supposed to fit this role, they are excluded from the allowance ofpolygamy all-together as they must also be accustomed to taking care ofchildren and cannot possibly be caretakers in other ways (such as having
more than one husband to support); this would shake the entire fabric ofsociety otherwise while being a much added burden to the mother.
However, the allowance for men is limited to the prior noted
qualifications, and if he cannot meet even one of those equity-standards
then he is not allowed to marry more than one wife at a time; securing
not only the stability and balance of the family unit, but protecting
women from being exploited or neglected. As such, polygamy is more a
responsibility than a privelege
privilege which few men can consider much lessmeet the conditions for.
Despite this, polygamy has been misused to suit the corrupted desiresof men—particularly in Islam—which may have triggered much of themisunderstanding and opposition to this practice in Muslim majority
countries. However, these mispractices have not been ignored by thevery countries in which they are performed. Malaysia serves as an
excellent example of the attempt to implement the equitable treatment of
women in the wider social context of Muslim identiy and values within
its borders—especially in regards to the controversial issue of polygamy.

Malaysian Islamic Family Law
According to major historical records, early Malay society accepted
polygamy as a normal societal practice just as many other countries hadfor thousands of years. This is further evidenced when polygamy is seen
as one of the forms of traditional marriage recognized by the Hindu
scripture, namely the Manu Samhita. This is due to the fact that
Hinduism had its roots in the Malay Peninsula before the advent ofIslam in the fourteenth century.10 Therefore, it is not unusual thatpolygamy was practiced by Malay society long before the arrival ofIslam, as Hindu beliefs, administration, and culture were widelypracticed.			
practiced.
After the coming of Islam to Malaysia, Hinduism was graduallyreplaced, drastically affecting Malay society.11 The Malay way of life
was transformed from beliefs in Hinduism and Animism to a life based

gender equality, islam, and law

27

on the teachings of Islam, which affected all aspects of life including
culture, literature, faith, politics, customs, ceremonies, arts, and law.12
However, this transformation did not have much effect on the practice ofpolygamy given that Islam also permits polygamy.
The facts obtained from classical Malay texts have helped to ascertainthat the practice of polygamy has existed for a long time since early
Malay societies, especially among the upper class.13 The Malay Annals(MA)—also known as Sejarah Melayu—provides evidence in the formof anecdotes that several of the Malacca Sultanate men and dignitaries
possessed more than one wife and even kept mistresses.14
Hukum Kanun Melaka (HKM), the first written legal document inexistence of the Malaccan administration15 supports other historical
documents on the existence of polygamy among the early Malays.16
HKM was based on the research of British administrators and it isbelieved to have begun during the Sultanate of Sultan Muhammad Shah
(1424–1444), later completed during the Sultanate of Sultan Muzaffar
Shah (1445–1458M).17
Provisions relating to family matters in the HKM consists of only fiveclauses. There were no provisions on matters related to women’s rights
in marriage and divorce such as, maintenance, mut’ah (gift), custody,
and other related rights in polygamous contracts. There was also no
provision on khulu’ (the divorce right of women) in the HKM.18 Family
matters that have been included as provisions in the HKM cover issues
regarding the wali (guardian) who weds the bride, the ijab (offer) andqabul (acceptance), qualification of witnesses to the marriage, divorce,as well as the provisions on khiar (option of puberty) in marriage. The
provisions also include the grounds for judicial dissolution and women
who are eligible to marry.
In the eighteenth century, the British had signed several politicaltreaties with the Malay rulers.19 The Malay rulers accepted the British as
residents and their advisors, whereby Malay rulers would adhere to theformer’s instructions in all matters relating to the administration of thecountry except those relating to local customs and Islamic Law. Mattersof Islamic law and custom pertained specifically to family, inheritance,
and waqf (endowment). Other aspects of Islamic Law such as crime,
procedures, contract, land, and evidence, followed the law practiced inIndia. Ahmad Ibrahim pointed out that in effect legislation was toreplace the former Muslim laws by enactments based on the principles
of English Law.20 The British did not participate in the matters of thefamily institution as these involved the personal lives of the locals.21
There was no single provision specifically on polygamy in this period

28gender equality, islam, and lawthat was implemented in the Straits Settlement and Federated Malay
states.22 However, there were two regulations on polygamy that had been
passed in Kelantan.23 A notice No.14/1914, Notis Fasal Melarangkan
Orang-orang Islam Daripada Berbini Dua Tiga dan Seumpamanya(Notice Clause Prohibiting Muslims to Marry Two, Three Wives orEquivalent)24 had been passed in 1914.
In the wake of independence, separate legislation in every state
dealing with the administration of Islamic Law was passed in the 1950s.
Selangor (one of the states in Malaysia) was the first state to promulgate
the Administration of Muslim Law Enactment of 1952 (No. 3 of 1952)
and was followed by other states.25 These laws combined several aspectsof the administration of Islamic law into a single law. The law followed
is primarily the classical ‘Shafi’e’ Law.26
The Enactments consisted of provisions relating to the establishmentof the Islamic Council, Shariah Court, the administration of mosques,
provisions on marriage and divorce, and criminal offences. Wherefamily law was concerned, there were thirty sections relating tomarriage, divorce, maintenance of dependents, and matrimonial offences
under the Selangor Administration of Muslim Law Enactment 1952 (No.
3 of 1952). This legislation is mainly provided for the application andadministration of Muslim Law particularly for the registration ofMuslim marriages and divorces.27
However, a specific provision regarding polygamy was not provided
in the Administration of the Islamic Law Enactment. The non-existentspecific provision regarding procedures for the application for polygamycaused the application process to be enforced according toadministrative procedures of each state. For the states of Perak,
Selangor, Negeri Sembilan and Perlis, the application for polygamy was
carried out using the same form as a normal marriage. The only
exception was that the applicant was required to declare his marital
status in accordance to Section 3(1) of the Selangor Marriage, Divorce
and Reconciliation (Ruju’) Rules 1963 (No. 2 of 1963). The prospective
husband must declare his current marital status before solemnizing amarriage by completing Form 1 set of the First Schedule.
It was not until the early 1980s that Malaysia began to amend andenforce specific laws relating to Islamic Family Law for the purpose ofincluding more specific details and rearranging its content in a moreorderly manner. By introducing a comprehensive Islamic Family Law inthe early 1980s, the Islamic Family Law repealed all provisions on
polygamy as well as other provisions relating to marriage and divorce asprovided under previous legislations.28

gender equality, islam, and law

29

The enactment of the Islamic Family Law of the 1980s led tosignificant development in Muslim women’s rights in terms of several
aspects of marriage and divorce. For instance, it provided women withthe right to claim maintenance and arrears, to dissolve marriage throughtalaq (divorce), to annulment of marriage through court decision(fasakh), the right to divorce with financial compensation (khulu), and toclaim financial benefits after divorce. A close examination of the law
also reveals that provisions related to polygamy under this particularlegislation have been able to improve the situation of womensignificantly.
Legalizing justice and equal treatment in polygamous practices wasevident in modern Islamic Family Law in Malaysia. The reforms madepolygamy conditional on obtaining a court order. The law has
empowered the judicial authorities to refuse permission to the husband
who fails to fulfil certain requirements. It is stipulated that an
application for polygamy should fulfil at least five conditions:
1. the proposed marriage is just and necessary,
2. the applicant has the financial means to support his existing and future
wives,
3. the consent of the existing wife or wives,
4. the applicant’s ability to accord equal treatment to his wives as requiredby the Islamic law, and5. that the proposed marriage does not cause darar syarie (harm under
Shariah Law) to the existing wife or wives.

The law also stipulated that the proposed marriage does not directly
or indirectly lower the standard of living of the existing wife anddependents.29 The application for polygamy that fails to meet the above
conditions will be refused. Before deciding that the proposed polygamous marriage can be considered just and necessary it must regard
circumstances such as sterility or physical infirmity of the existing wife,
physical unfitness for conjugal relations, wilful avoidance of an orderfor restitution of conjugal rights, or insanity.30
The requirement for consulting the existing wife was also stipulated
so that the husband’s ability could be determined as to whether it fulfils
the conditions.31 The requirement “just and necessary” meant that thehusband who intends to contract polygamous marriage needs to showthat such marriage is “necessary”, and it is also “just” for him to do so.
These two elements should be proved simultaneously to enable thehusband to be considered as qualified to contract a polygamous

30

gendergender equality, islam, andlaw equality, islam, and law

1marriage. The objective of rendering the power to the Court to decide
one’s polygamous marriage is in effect to ensure that the husband is in aposition to carry out his responsibilities and has sufficient means to
support the existing and future wives and children. A polygamous
marriage that is contracted without court permission is liable to a fineand/or imprisonment.
The question as to whether or not all the conditions mentioned above
must be fulfilled in every application has been decided in the case of
Aishah vs Wan Mohd Yusof, [1990] 3 MLJ 1x and [1991] JH VII, whichcame up to the Appeal Committee of Shariah Court, Selangor. The
23(4) of thejudge ruled that all five conditions mentioned under Sect. 2(4)Islamic Family Laws Enactment, Selangor carry the same importanceand must be proven separately by the husband.232 The same judgement
was ruled by the Second Hearing Committee Selangor in the case ofRajamah vs Abd Wahab, [1990] JH 171. Due to the husband’s failure tofulfill all conditions and requirements in Sect. 2(4),
23(4), the Court rejected
the husband’s application for polygamy. The fact of the matter is, theconditions set forth by the laws are not meant to forbid (haram)
polygamy because to forbid it is against Shariah law. However, they areused as a mechanism to prevent men from abusing the necessity forpolygamy as and when they like. A good example of this is found in thecase of Ruzaini vs Nurhafizah, [2002] JH 79 which portrayed thefairness of the judge in handling polygamy application cases. Although
the husband acquired consent from the wife to marry another, the Court
did not approve the case because it had doubts as to the husband’s
capability to be fair to both wives and dependents.
Other privileges and powers were granted to wives after the reforms,
manifesting themselves in the form of stipulations. Section 22 of Islamic
2003 provides that “(1)Family Law (State of Selangor) Enactment 200
Immediately after the solemnization of a marriage, the Registrar shallenter the prescribed particulars and the prescribed or other ta`liq(stipulations) of the marriage in the Marriage Register”.
Women should know their rights before they enter into marriage.
They can impose certain conditions to secure themselves for the future
torelyand do not need torely upon
upon thethe statutory
statutory conditions as provided by thelaw.
The form of ta`liq prescribed by the law, for example in many statesin Malaysia, is as followed:
I do solemnly declare when I leave my wife for four months Hijrah
continuously or more voluntary or with force and I or my representativegender equality, islam, and law

31

do not give her maintenance such period whereas she is obedient to me
or I cause hurt to her person, then she may make a complaint to the
Shariah court, and if I am found by the Shariah court to be guilty, andshe gives to the Shariah which she received on my behalf a sum of ten
ringgit, then she is divorced by way of khulu`.

This standard ta’liq deals only on three aspects namely: if thehusband leaves the wife for more than four months continuously; or if
the husband neglects to provide maintenance to his wife; or if thehusband hurts and abuses his wife. Other than these actions, a wife is
not entitled for divorce through ta`liq. Although the pronouncement ofta`liq is voluntary under the Hukum Syara’, it has been a practice inevery state in Malaysia where the husband is requested to pronounce theprescribed ta`liq upon marriage. In a situation where the husband
violates the stated conditions, the wife has the right to claim talaq ta`liq(divorce by stipulations).
As it is difficult for the wife to obtain divorce on the ground ofpolygamy per se, by stipulating in the marriage contract where the wife
has the right to obtain ta`liq divorce if the husband contracts anothermarriage, this is indeed a protective mechanism. The right for the wife
to obtain ta`liq divorce is not an automatic divorce, but it represents anoption of divorce given to the aggrieved wife who is unable to live in apolygamous marriage. Such a stipulation in the marriage contract does
not prevent a husband from practicing polygamy; it merely provided
rights to the wife to file for divorce if the husband chooses the practice.
Undoubtedly, this stipulation does not go against Islamic teachings
because it does not prevent something that is allowed in the Shari`ah,that is, polygamy. Therefore, a wife who decides to include thisstipulation in the marriage contract must make sure that the wording forthe stipulation with regards to polygamy does not actually preclude thehusband from contracting another marriage.		
In one case, Mohd Razali Mat Saman vs Norshidah Nik Man,33 therespondent, who was the first wife of the appellant (husband), had said
to the appellant words to the effect that “If you set foot on the other landa divorce of three talaq would befall me—ta`liq”. The “other land”, as
understood by the appellant, was the house of the appellant’s second
wife. The respondent acceded to the ta`liq and responded with the word
“yes” twice, followed by “yes I accepted it”. During the trial, theappellant (husband) admitted that he had gone to his second’s wifehouse and stayed there overnight. The learned trial judge ruled that a
divorce of three talaq had befallen the respondent. The husband

32

gender equality, islam, and law

appealed and argued that he only acceded to the pronouncement ofta`liq in order to muffle the respondent who was then reprimanding him.
The Shariah High Court of Kelantan then held that the word “yes”
uttered by the husband was an answer to the wife’s words of ta`liq.
Since the husband had thereafter gone to his second wife’s house, thehusband had violated the ta`liq and therefore no supporting witness
evidence was required. The Shariah High Court of Kelantan thendismissed the appeal and the decision of the trial court that ruled the
divorce of three talaq was affirmed.
From this example of ta`liq, it shows that the court will confirm thedivorce of one talaq by way of ta`liq if the husband breaches the
pronouncement of ta`liq made during the marriage.

Discussion
The above analysis helps to inform about the Islamic Family Law inregards to Muslim women, within the context of polygamous marriages—a hotly contested issue on the international stage. Rather than being astrict codified legal system, the Shariah also operates on someunderlying assumptions and motivations, which help to guide lawyers
and judges in its application based on various conditions, scenarios, andcontexts. Given the limitations of this study, only one aspect of the
Shariah was discussed: the need to be equitable.
To understand the nature of equitability, a brief survey of Islamic
ethics and understanding regarding women was presented and thencompared with the understanding of “equality” by certain academics
and international law theorists. One of the most obvious differences
between these concepts is that the former is more concerned with
fairness and justice, and the latter assumes rather rigidly that fairness
and justice are a product of the concept of ‘equality’, which they see as
synonymous with ‘sameness’.
The latter interpretation was contexualized further by showing thatsuch equality is not possible, even in light of recent United Nations
initiatives, such as the Convention on the Elimination of all Forms ofDiscrimination Against Women (CEDAW), and that even those nationsattempting to implement ‘sameness’ among genders within their
populations, do in fact discriminate on the basis of personal preferencesfor gender segregated spaces (gyms, restrooms, etc.) and for practicalreasons related to the physiological differences that each genderpossesses (maternity leave, sports competitions, military service etc.).
Therefore these nations do in fact consider there to be differences in the18gendergender equality, islam, andlaw equality, islam, and law

33genders that motivates them to enact discriminatory legislation, but only
considers their forms of discrimination as valid. This is evidenced
further by Bayeksky’s
Bayefsky’s insistence that discriminatory behaviour based on
any other value system outside of the practical grounds suggested in her
criteria are “more difficult” to validate. This is further bolstered by the
CEDAW’s bold proclamation that “[a] reservation incompatible with theobject and purpose of the present Convention shall not be permitted”.344
What neither these academics nor conventions appear to be concernedwith is what value system that women adopt for themselves. If women
within certain countries believe for instance that polygamy should only
be restricted to men, then what unjust forms of discrimination are being
implemented in the value systems that these women wish to live by? As
such, primary concern should revolve around how such practices can be
implemented in an equitable manner, rather than an equal one.
Although, in fairness, certain forms of equitability, rather than equality,
have been implemented as of late by the U.N. Security Council in theirmore recent Resolution 1325
12 which encourages more women to sit at
the negotiation table for conflict resolution so as to cease and prevent
war in their respective regions. This is a most important step in theunderstanding that women play within nation building and societal
progress.
Given this, Malaysian Islamic Family Law was analysed to see if it
attempted to equitably manage the practice of polygamy and whether
this falls within view of the Shariah. It was found that despite the many
historical problems facing this legislation, many reforms were enacted
to attempt to ensure that equitable practice was taking place under theworldview of Islam. As was found in the previous analysis, Malaysia
has attempted since the 1980’s to provide suitable limitations topolygamous practice so that it cannot be abused and women situated inthese sorts
sort ofof relationships
relationships areare treatedtreated fairly
fairly andand withwith justice. From thepenalizing of the husband who contracts a marriage without meeting thenecessary requirements, to the fail-safes instituted for women who
suffer from its malpractice, Malaysia has been one of the Muslimmajority countries to attempt to remedy injustices among its female
Muslim population.

Conclusion
This research analyses the concept of gender equality from theperspective of Islamic ethics and legislation, making a comparative
analysis between international standards and the notion of ‘equality’34

gender equality, islam, andlaw equality, islam, and law
gender19

versus ‘equitability’. These findings present the differences between
Islamic ethics and international standards by pointing out the latter’s
rigidity in matters of international practice, without giving due
consideration to the choices of women themselves throughout the global
community. As such, international standards of gender equality cannot
be adopted for all nations or all women who view gender equality fromthe perspective of a differing value system not codified in contemporaryinternational legislation.
A brief understanding of Malaysian Family Law in regards to thepractice of polygamy gives a more detailed understanding of the conceptof Islamic gender equality (equitability) in the context of the overriding
objectives of Islamic Law (maqasid). Future research should attempt tounderstand the Islamic perspective and the constructs associated with it
to develop a far more just and comprehensive international legislation
on gender equality and discrimination.
NotesProfessor at the Department of Shariah and Law, Academy of Islamic Studies,
University of Malaya and the Dean of Humanities Research Cluster, University of
Malaya.
2
Candidates
at theDepartmentof Shariah
and Academy
Law, Academyof Studies,
Islamic
PhD Candidate
at theDepartmentof Shariah
and Law,
of Islamic
Studies, Universityof Malaya.
Universityof Malaya.
3
Candidates
at theDepartmentof Shariah
and Academy
Law, Academyof Studies,
Islamic
PhD Candidate
at theDepartmentof Shariah
and Law,
of Islamic
Studies, Universityof Malaya.
Universityof Malaya.
4(33:35).
Al-Qur’an (:).
562.
Kamali, Hashim. Freedom, Equality, and Justice in Islam. Pg. 2.
6
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article1
7
Javaid Rehman, 2007, “The Sharia, Islamic Family Laws and International Human
Rights Law: Examining the Theory and Practice of Polygamy and Talaq”, International
Journal of Law, Policy and the Family, vol: 21 (1), p. 114.
8Michele Brandt and Jeffrey A. Kaplan, 1995,
199, “The Tension Between Women’s
Rights and Religious Rights: Reservations To CEDAW by Egypt, Bangladesh and123.
Tunisia”, Journal of Law and Religion, v. 12 (1), p. 12.
9
1990, “The“The Principle
Principle ofof Equality or Non-Discrimination in
Anne F. Bayeksky,
Bayefsky, 1990,
34].
International Law”, Human Rights Law Journal, vol: 11, No. 1–2, p. 4].
10
Winstedt, R. O., Malaya and Its History, 24.
11
For details on this see Al-Attas, Syed Muhammad Naquib, “Preliminary Statement
on a General Theory the Islamization of the Malay Indonesian Archipelago” Paper
presented at Persidangan Antarabangsa mengenai Tamadun Melayu, Kuala Lumpur on
11–13 November 198
1986 at 24; Hall, D.G.E., A History of South-East Asia, rd
11–1
3rd edition,
MacMillian, 198,
1968, 20.
206.
12Ismail Hamid, Masyarakat dan Budaya Melayu, Dewan Bahasa dan Pustaka, 1988,
60.
0.
13
1
For details on the discussion see Westermarck, E. A., The History of Human1gender equality, islam, and law

35

Marriage, vol: III, MacMillian and Co. Ltd., 1925 at 42–43; Cairncross, John, After
Polygamy was made a Sin, Routledge & Keagan Paul, 197, 59.
14
Zahir Ahmad and Norhayati Ab. Rahman, “Hak dan Kebebasan Wanita dalam Teks
Sastera Melayu” Paper presented at Seminar Kesusateraan dan Undang-undang,
University of Malaya, Kuala Lumpur on 26th–27th July 2001 at 4–9; Full description of
the lives of the Malay Rulers, see, Shellabear, W.G., Sejarah Melayu, Penerbit Fajar
Bakti, 1977, 3.
15
It cannot be denied that there are other historical proofs of the existence of Islamic
law such as engravings on criminal law on gravestones found in Terengganu in the 14th
century. However, the engravings cannot be regarded as written document. For further
details see Muhammad Yusuff Hashim, Kesultanan Melayu Melaka: Kajian Beberapa
Aspek Tentang Melaka pada abad ke-15 dan abad ke-16 dalam Sejarah Malaysia, at 219
and also See Ryan, N.J., The Cultural Heritage of Malaya, Longman Malaysia, 1971,
15.
16
For further details see Muhammad Yusuff Hashim, Kesultanan Melayu Melaka:
Kajian Beberapa Aspek Tentang Melaka pada abad ke-15 dan abad ke-16 dalamSejarah Malaysia, at 219 and also See Ryan, N.J., The Cultural Heritage of Malaya,Longman Malaysia, 1971, 15.
17
For details on the discussions and analyses of the HKM see Abu Hassan Sham,“Undang-undang Melayu Lama: Tumpuan Khas kepada Hukum Kanun Melaka dan
Undang-undang yang di bawah Pengaruhnya” (M.A. dissertation, University of Malaya,1972) at 45 and 141; Abu Hassan Sham & Mariyam Salim, Sastera Undang-undang,
Dewan Bahasa dan Pustaka, 1995 at 8–20; Mohd Taib Osman, “Agama dan
Kepercayaan Orang Melayu: Organisasi dan Struktur”, in Mohd Taib Osman (ed.),Masyarakat Melayu: Struktur, Organisasi dan Manifestasi, Dewan Bahasa dan Pustaka,
1989 at 146–203; Liaw Yock Fang, Undang-undang Melaka (The Laws of Melaka), at
38; Mohamad Jajuli Abdul Rahman, The Malay Law Text, Dewan Bahasa dan Pustaka,
1995, 21.
18
Hassan Sham, “Kedudukan Lelaki dan Wanita dalam Hukum Kanun”, Mohamad
Mokhtar Hassan et al. (eds.), Kesusasteraan dan Undang-undang, 117.
19
See Ahmad Ibrahim, Towards a History of Law in Malaysia and Singapore, Dewan
Bahasa dan Pustaka, 1992, 19.
20
Ahmad Ibrahim and Ahilemah Joned, The Malaysian Legal System, Dewan Bahasa
dan Pustaka, 1995 at 22–23; See also Abdul Monir Yaacob, “Shari`ah Courts in
Malaysia: Past, Present and Future”, in Ahmad Ibrahim & Abdul Monir Yaacob (eds.),
The Administration of Islamic Law, Institute of Islamic Understanding, Malaysia, 1997
at 131–142; Abdul Monir Yaacob, An Introduction to Malaysian Law, National Univrsity
Malaysia Press, 1989 at 84–108.
21
For details on the reception of English Law in Malaysia see Hooker, M.B., Islamic
Law in South-East Asia, at 95; Ahmad Ibrahim and Ahilemah Joned, The Malaysian
Legal System, 20.
22States that were under Straits Settlemets were Penang, Malacca and Singapore
while Federated Malay States are Selangor, Negeri Sembilan, Pahang and Perak. See
Ahmad Ibrahim and Ahilemah Joned, The Malaysian Legal System, 10.
23
Kelantan was one of the Unfederated Malay states. Other Unfederated Malay stetes
are Perlis, Kedah, Johor and Terengganu. See Ahmad Ibrahim and Ahilemah Joned, The
Malaysian Legal System, at 10 and Abdullah Alwi Hj Hassan, The Administration ofIslamic Law in Kelantan, 31.

36gender equality, islam, and law

24
From the office of the Kelantan Government 1914, Bil 259/1914, Kel 1049/1914.
This notice was written in Jawi. This notice has been translated as Notice No.14/1914
Regulating Mohammedan Double (Triple etc.) Marriage, Kel 1049/14.
25
Hooker, M.B., Islamic Law in South-East Asia, 144.
26
Ahmad Ibrahim, Family Law in Malaysia, 10.
27
Section 119–section 144 provides provisions on marriage, divorce and maintenanceof dependants Section 155–section 149 was provisions on matrimonial offences.
28
For example section 135 of Islamic Family Law (Federal territories) Act 1984 (Act303) provides that “Parts VI,VII, sections 155, 156, 158, 159 and 160 and paragraph (n)of section 178 of the Administration Enactment are hereby repealed and shall,accordingly, cease to apply to the Federal Territory of Kuala Lumpur. Johore
No.15/1986, Islamic Family Law Ordinance 13/1992 and Pahang Islamic Family Law
Enactment 3/1987.
29
Section 23, the Islamic Family Law Act (Federal Territories), 1984.
30
Section 23 (4) (a), the Islamic Family Law Act (Federal Territories), 1984.
31
The provisions in Islamic Family Law Act (Federal Territories), 1984 were followedby other states in Malaysia, except in Kelantan, Terengganu and Perak.
32
Section 123, the Islamic Family Law Act (Federal Territories), 1984.
33(2004) Criminal Law Journal (Sya) 479.
34
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article28.

Corresponding Author Biography
Raihanah Abdullah is the Dean of Humanities Research Cluster at University of
Malaya (UM) and professor at the Academy of Islamic Studies, UM. Her fields ofresearch are Islamic Family Law, Islamic Law and Gender, Islamic Law and Society.
She was the director of Centre for Civilisational Dialogue, UM (2011–2013) and is acommissioner of Independent Human Rights Commission, Organization of Islamic
Cooperation (2011–). Her current publications include, Raihanah Abdullah, Silmi
Abdullah and Nahid Ferdousi, 2015, The Fragile Status of a Muslim Wife: The Legal
History of Polygamy in Malaysia, Journal of Family History, 40(2): 135–152; Hilal
Wani, Raihanah Abdullah, Chang Lee Wei, 2015, An Islamic Perspective in Managing
Religious Diversity, Religions, 6(2): 642–656; Mohd Istajib Mokhtar, Raihanah
Abdullah and Azizan Baharuddin. 2015. An Islamic perspective on water quality: a caseof Malaysia, Water Policy, 17(3): 454–471.