Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).639
Muhammad Ifzal Mehmood, N. Hashim
In Islamic law on nikah is referred to as a civil contract. Thus, to fulfil a valid contract all the requisites of a valid marriage (arkan an-nikah) must be fulfilled. The majority of Muslim jurists opined that the consent of the guardian (wali) is one of the pillars determining the validity of marriage. Nevertheless, the Hanafi sect views that it as a mere condition for a marriage. In Pakistan, a precedent has been set in the Supreme Court’s case of Saima Waheed, where it was decided that an adult Muslim woman can marry without the consent of her guardian. The decision ignited a debate on whether the consent of a guardian is a requisite pillar of a marriage contract or merely a condition to it. In order to comprehend the issue of wali’s consent, it is essential to discuss the purpose of a marriage itself. This article discusses the importance of the wali’s consent under Islamic law, followed by an elaboration on the legal status of a marriage without consent of the guardian under the Pakistani law. Besides arm-chair research, interviews were conducted with female respondents who had conducted their marriage without their wali’s consent. The findings from these interviews indicate that marriage without wali’s consent is shattering the family structure and causing isolation of the partners both from the family and the society. Irrefutably, approval of the guardians in marriage is essential in sustaining the family system.
{"title":"MARRIAGE WITHOUT WALI’S CONSENT: A PARADIGM SHIFT IN THE FAMILY STRUCTURE OF PAKISTAN","authors":"Muhammad Ifzal Mehmood, N. Hashim","doi":"10.31436/IIUMLJ.V29I(S1).639","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).639","url":null,"abstract":"In Islamic law on nikah is referred to as a civil contract. Thus, to fulfil a valid contract all the requisites of a valid marriage (arkan an-nikah) must be fulfilled. The majority of Muslim jurists opined that the consent of the guardian (wali) is one of the pillars determining the validity of marriage. Nevertheless, the Hanafi sect views that it as a mere condition for a marriage. In Pakistan, a precedent has been set in the Supreme Court’s case of Saima Waheed, where it was decided that an adult Muslim woman can marry without the consent of her guardian. The decision ignited a debate on whether the consent of a guardian is a requisite pillar of a marriage contract or merely a condition to it. In order to comprehend the issue of wali’s consent, it is essential to discuss the purpose of a marriage itself. This article discusses the importance of the wali’s consent under Islamic law, followed by an elaboration on the legal status of a marriage without consent of the guardian under the Pakistani law. Besides arm-chair research, interviews were conducted with female respondents who had conducted their marriage without their wali’s consent. The findings from these interviews indicate that marriage without wali’s consent is shattering the family structure and causing isolation of the partners both from the family and the society. Irrefutably, approval of the guardians in marriage is essential in sustaining the family system.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41389198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).637
R. C. Soh, N. A. Hak, N. Hashim, Muhammad Helmi Md. Said
In today’s modern society, marital infidelity has become a dangerous threat to married life. Married couples are seen to be ‘comfortable’ in engaging in relationships with third parties. Such a trend has greatly contributed to the breakdown of marriages and subsequently led to the increase in the number of divorces and thus threatening the family institution. There are diverse causes for the prevalence of marital infidelity and this includes marriage boredom, unrealistic expectations, conflicts and misunderstandings between the husband and the wife. Although the seriousness of the affairs is widely recognized but marital infidelity is not considered as an offence in many jurisdictions including Malaysia. The objective of this article is to discuss the legal repercussions of marital infidelity in Malaysia and to consider whether existing legal solutions through the enforcement of law is an adequate mechanism to curb this social problem. The methodology adopted in this study is based on the content analysis of reports, case laws, leading textbooks and journal articles. The article is significant as it addresses crucial concerns over the adequacy of existing laws relating to the protection of the marriage and family institutions in Malaysia. The article is concluded with a series of recommendations and suggestions for improvements in existing law through appropriate legal mechanisms so as to curb the issue of marital infidelity in order to preserve the well-being of the family institution as a whole.
{"title":"REPERCUSSIONS OF MARITAL INFIDELITY IN MALAYSIA: A LEGAL RESPONSE","authors":"R. C. Soh, N. A. Hak, N. Hashim, Muhammad Helmi Md. Said","doi":"10.31436/IIUMLJ.V29I(S1).637","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).637","url":null,"abstract":"In today’s modern society, marital infidelity has become a dangerous threat to married life. Married couples are seen to be ‘comfortable’ in engaging in relationships with third parties. Such a trend has greatly contributed to the breakdown of marriages and subsequently led to the increase in the number of divorces and thus threatening the family institution. There are diverse causes for the prevalence of marital infidelity and this includes marriage boredom, unrealistic expectations, conflicts and misunderstandings between the husband and the wife. Although the seriousness of the affairs is widely recognized but marital infidelity is not considered as an offence in many jurisdictions including Malaysia. The objective of this article is to discuss the legal repercussions of marital infidelity in Malaysia and to consider whether existing legal solutions through the enforcement of law is an adequate mechanism to curb this social problem. The methodology adopted in this study is based on the content analysis of reports, case laws, leading textbooks and journal articles. The article is significant as it addresses crucial concerns over the adequacy of existing laws relating to the protection of the marriage and family institutions in Malaysia. The article is concluded with a series of recommendations and suggestions for improvements in existing law through appropriate legal mechanisms so as to curb the issue of marital infidelity in order to preserve the well-being of the family institution as a whole.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41897503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).641
Ermania Widjajantin, Rusmilawati Windari
Sexual crimes have seen a considerably increase in Indonesia. It not only affects women but also children. Sexual crime against children is also known as “pedophilia” and has now become a terrifying phenomenon. The escalation of sexual crime against children in Indonesia shows that there is a dire need to look into possible prevention strategies to sexual crime prevention. Considering the rapid increase of case of pedophilia in Indonesia, the government has enacted more severe punisment to the offender, that is, by imposing chemical castration under the Law No. 17 Year 2016 on the second amendment of the Law No. 23 Year 2002 on child protection. This article examines the causal factors of pedophilia by employing the social bonds theory introduced by Travis Hirschi. The primary premise of this theory states that deliquency comes up when social bonds tend to be fragile or not unavailable, or in other words, the stronger there bonds, the less likelihood of delinquency. Hirschi also mentioned four social bonds that push up socialization and conformity in society, those are: attachment, commitment, involvement, dan belief. Finally, the problems raised in this article is how does pedophilia in perspective of social bonds theory?. This article is a legal research with normative approach. It is geared to look phaedophilia as a sexual deviance in perspective of social bonds theory.
{"title":"PEDOPHILIA AS A FORM OF SEXUAL DEVIANCE FROM A SOCIAL BONDS THEORETICAL PERSPECTIVE","authors":"Ermania Widjajantin, Rusmilawati Windari","doi":"10.31436/IIUMLJ.V29I(S1).641","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).641","url":null,"abstract":"Sexual crimes have seen a considerably increase in Indonesia. It not only affects women but also children. Sexual crime against children is also known as “pedophilia” and has now become a terrifying phenomenon. The escalation of sexual crime against children in Indonesia shows that there is a dire need to look into possible prevention strategies to sexual crime prevention. Considering the rapid increase of case of pedophilia in Indonesia, the government has enacted more severe punisment to the offender, that is, by imposing chemical castration under the Law No. 17 Year 2016 on the second amendment of the Law No. 23 Year 2002 on child protection. This article examines the causal factors of pedophilia by employing the social bonds theory introduced by Travis Hirschi. The primary premise of this theory states that deliquency comes up when social bonds tend to be fragile or not unavailable, or in other words, the stronger there bonds, the less likelihood of delinquency. Hirschi also mentioned four social bonds that push up socialization and conformity in society, those are: attachment, commitment, involvement, dan belief. Finally, the problems raised in this article is how does pedophilia in perspective of social bonds theory?. This article is a legal research with normative approach. It is geared to look phaedophilia as a sexual deviance in perspective of social bonds theory.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"29 1","pages":"177-194"},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47780983","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).633
H. Khan, N. A. Hak, N. M. Zin, R. C. Soh
The native court in Malaysia comprises of Mahkamah Anak Negeri Sabah and Mahkamah Bumiputera Sarawak. The existence of this court is recognised by the Malaysian Government and they are mentioned in the Federal Constitution of Malaysia. Although these courts are given power and authority in dealing with the personal law of natives in each state, there are challenges in enforcing post-divorce orders made by these courts. This article is significant since there is a dearth of study on this topic. The main objective of this article is to examine the enforcement of post-divorce orders of native courts within East Malaysia. It will also explore the problems and challenges of divorcees in enforcing divorce orders and provide recommendations to improve the existing system. This article adopts library-based and qualitative research method which consists of group discussions and interviews with the village headman (ketua kampung), headman (penghulu), community leader, native courts’ judges, native court of appeal’s judge, registrar of native court and several divorcees. The result of this research identified four challenges vis-a-vis: the capability to find the husband upon the issuance of the divorce order; second, husband’s default payment of maintenance; lack of manpower in enforcing the order and lastly, husband’s conversion to Islam. Thereafter, this article suggests that the government could provide assistance by empowering court bailiffs or enforcement bodies, increasing funding and to designate a special department for enforcement of divorce orders
{"title":"THE CHALLENGES IN ENFORCING POST DIVORCE ORDERS OF NATIVE COURTS IN EAST MALAYSIA","authors":"H. Khan, N. A. Hak, N. M. Zin, R. C. Soh","doi":"10.31436/IIUMLJ.V29I(S1).633","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).633","url":null,"abstract":"The native court in Malaysia comprises of Mahkamah Anak Negeri Sabah and Mahkamah Bumiputera Sarawak. The existence of this court is recognised by the Malaysian Government and they are mentioned in the Federal Constitution of Malaysia. Although these courts are given power and authority in dealing with the personal law of natives in each state, there are challenges in enforcing post-divorce orders made by these courts. This article is significant since there is a dearth of study on this topic. The main objective of this article is to examine the enforcement of post-divorce orders of native courts within East Malaysia. It will also explore the problems and challenges of divorcees in enforcing divorce orders and provide recommendations to improve the existing system. This article adopts library-based and qualitative research method which consists of group discussions and interviews with the village headman (ketua kampung), headman (penghulu), community leader, native courts’ judges, native court of appeal’s judge, registrar of native court and several divorcees. The result of this research identified four challenges vis-a-vis: the capability to find the husband upon the issuance of the divorce order; second, husband’s default payment of maintenance; lack of manpower in enforcing the order and lastly, husband’s conversion to Islam. Thereafter, this article suggests that the government could provide assistance by empowering court bailiffs or enforcement bodies, increasing funding and to designate a special department for enforcement of divorce orders","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44874076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).640
N. Hussin, Hanifah Haydar Ali Tajuddin
Sexual abuse against children in Malaysia has been consistently on the rise. The Ministry of Women, Family and Community Development, Malaysia has stated that a total of 1,721 cases of sexual crimes against children were recorded in the first half of 2020. Most offenders in such cases were family members, guardians and those close to the children. This is an alarming number. Islam treats sexual abuse against children as a serious offence that must be strictly curbed. In Islam, any sexual activity out of wedlock is condemned and considered as a punishable act. It is even worse when the act is committed against the will of victim or it is committed against those who are physically and mentally weak as well as those whose consent is not yet valid such as children. This article discusses measures to prevent sexual abuse against children which are derived from the Shari`ah principles. It adopts a doctrinal study of existing primary and secondary materials relating to theories of victimization and methods to prevent criminal victimization against children from the Islamic perspectives. Hence, Shari’ah texts and juristic views on the relevant issues are essential to be analysed. The finding of this article confirms that Islam has a unique approach to deal with this issue and to even prevent the crime before it is committed. Islam suggests proactive steps that could be observed by individuals, guardians, the community as well as authorities concerned to ensure that the children are protected and do not become gullible victims.
{"title":"AN ISLAMIC PERSPECTIVE ON PREVENTING SEXUAL ABUSE AGAINST CHILDREN","authors":"N. Hussin, Hanifah Haydar Ali Tajuddin","doi":"10.31436/IIUMLJ.V29I(S1).640","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).640","url":null,"abstract":"Sexual abuse against children in Malaysia has been consistently on the rise. The Ministry of Women, Family and Community Development, Malaysia has stated that a total of 1,721 cases of sexual crimes against children were recorded in the first half of 2020. Most offenders in such cases were family members, guardians and those close to the children. This is an alarming number. Islam treats sexual abuse against children as a serious offence that must be strictly curbed. In Islam, any sexual activity out of wedlock is condemned and considered as a punishable act. It is even worse when the act is committed against the will of victim or it is committed against those who are physically and mentally weak as well as those whose consent is not yet valid such as children. This article discusses measures to prevent sexual abuse against children which are derived from the Shari`ah principles. It adopts a doctrinal study of existing primary and secondary materials relating to theories of victimization and methods to prevent criminal victimization against children from the Islamic perspectives. Hence, Shari’ah texts and juristic views on the relevant issues are essential to be analysed. The finding of this article confirms that Islam has a unique approach to deal with this issue and to even prevent the crime before it is committed. Islam suggests proactive steps that could be observed by individuals, guardians, the community as well as authorities concerned to ensure that the children are protected and do not become gullible victims.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"29 1","pages":"153-176"},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42470468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).631
N. M. Zin, N. A. Hak, Hidayati Mohamed Jani
This article examines the ramifications of the recent amendment to the Law Reform (Marriage and Divorce) Act 1976 (Act 164) in protecting the wellbeing of the family relationship involving interfaith marriage and other legal issues governing non-Muslim families. The amendment witnessed substantial reforms to section 51 of Act 164 pertaining to the divorce on the ground of conversion, increasing the age limit for child maintenance and adopting more flexible principles in dividing matrimonial assets. However, the focus will be on the impact of the amendment to section 51 of Act 164 due to its significant in changing the landscape of legal arguments pertaining to jurisdiction of the court in dealing with the subject matter in dispute, ranging from the divorce and other intense arguments pertaining to maintenance of wife, child custody and religious status of children. The study adopts qualitative study in elucidating relevant documents that comprised of statutory laws, articles in legal journals and decided cases where arguments leading to the need for the reform of those affected issues were well addressed. Certain aspects of Islamic jurisprudence will be referred to and analysed in searching for authoritative and practical legal arguments within the existing legal framework. Harmonisation of law is adopted whenever applicable when dealing with the resolution of conflict of laws. It is hoped that this study will provide constructive argument and invaluable source of reference for the Malaysian civil court in disposing of interfaith family disputes when the law is fully enforced.
{"title":"THE AMENDMENT TO THE LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976: RECONCILING THE IRRECONCILABLE","authors":"N. M. Zin, N. A. Hak, Hidayati Mohamed Jani","doi":"10.31436/IIUMLJ.V29I(S1).631","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).631","url":null,"abstract":"This article examines the ramifications of the recent amendment to the Law Reform (Marriage and Divorce) Act 1976 (Act 164) in protecting the wellbeing of the family relationship involving interfaith marriage and other legal issues governing non-Muslim families. The amendment witnessed substantial reforms to section 51 of Act 164 pertaining to the divorce on the ground of conversion, increasing the age limit for child maintenance and adopting more flexible principles in dividing matrimonial assets. However, the focus will be on the impact of the amendment to section 51 of Act 164 due to its significant in changing the landscape of legal arguments pertaining to jurisdiction of the court in dealing with the subject matter in dispute, ranging from the divorce and other intense arguments pertaining to maintenance of wife, child custody and religious status of children. The study adopts qualitative study in elucidating relevant documents that comprised of statutory laws, articles in legal journals and decided cases where arguments leading to the need for the reform of those affected issues were well addressed. Certain aspects of Islamic jurisprudence will be referred to and analysed in searching for authoritative and practical legal arguments within the existing legal framework. Harmonisation of law is adopted whenever applicable when dealing with the resolution of conflict of laws. It is hoped that this study will provide constructive argument and invaluable source of reference for the Malaysian civil court in disposing of interfaith family disputes when the law is fully enforced.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"29 1","pages":"1-15"},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47963708","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).634
M. Said, N. M. Zin, N. A. Hak, N. Hashim
This study investigates problems on the enforcement of court orders issued by the civil courts in divorce cases in Malaysia. Although the civil courts are guided by comprehensive statutory laws, however, issues on matters related to the enforcement of court orders especially maintenance orders are still unresolved. Therefore, this study is undertaken to examine and identify problems that have caused the failure to enforce these orders, post-divorce. A survey was conducted on one hundred and sixty-seven respondents came from five regions in Malaysia. The survey using questionnaires was the main method of collecting data. To support the empirical evidence, semi-structured interviews were also conducted in this study. The study discloses an obvious co-relation between complex and lengthy processes, unnecessary time consuming and costs inefficiency with the enforcement of orders after the divorce has taken place. This article is a prelude to a projected study on the enforcement of court orders issued by Civil Courts whereby the result will be useful for further improvement of the existing legal provisions in Malaysia.
{"title":"AN EMPIRICAL STUDY ON POST DIVORCE ENFORCEMENT OF COURT ORDERS IN MALAYSIA","authors":"M. Said, N. M. Zin, N. A. Hak, N. Hashim","doi":"10.31436/IIUMLJ.V29I(S1).634","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).634","url":null,"abstract":"This study investigates problems on the enforcement of court orders issued by the civil courts in divorce cases in Malaysia. Although the civil courts are guided by comprehensive statutory laws, however, issues on matters related to the enforcement of court orders especially maintenance orders are still unresolved. Therefore, this study is undertaken to examine and identify problems that have caused the failure to enforce these orders, post-divorce. A survey was conducted on one hundred and sixty-seven respondents came from five regions in Malaysia. The survey using questionnaires was the main method of collecting data. To support the empirical evidence, semi-structured interviews were also conducted in this study. The study discloses an obvious co-relation between complex and lengthy processes, unnecessary time consuming and costs inefficiency with the enforcement of orders after the divorce has taken place. This article is a prelude to a projected study on the enforcement of court orders issued by Civil Courts whereby the result will be useful for further improvement of the existing legal provisions in Malaysia.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"29 1","pages":"37-59"},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49506755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/iiumlj.v29i(s1).638
Norazlina Abdul Aziz, R. Abdullah, Irini Ibrahim, Nurazlina Abdul Raof
Section 73 of Islamic Family Law (Selangor) Enactment 2003 provides that it is the duty of the paternal family to provide maintenance to the children in the event of the father’s death, missing in action or suffers from any disabilities. However, the efficiency of this provision depends on the understanding and application by the courts and the person who is said to be liable under ‘hukum syarak’. Currently there is not many studies conducted on the efficiency of this provision in solving cases where there is a failure to provide maintenance to children in the circumstances stated above. This study analyses the application of section 73 of Islamic Family Law (Selangor) Enactment 2003 with the aim of looking into the efficiency of this section in solving the issue children’s maintenance. The study adopts a qualitative method that involves doctrinal study, arm-researcher approach and semi-structured interviews. The provision, scope and jurisdiction of section 73 of Islamic Family Law (Selangor) Enactment 2003 is analysed in detail. The semi-structured interview delves into the current practice of the court in the Federal Territories where the views of selected respondents ranging from the judges in the Shariah courts in the Federal Territories, Shariah law practitioner, and academics. This study finds that the existing laws are somewhat insufficient in addressing issues of child maintenance and lack of awareness on the claimant (mother and children) on the responsibility of the extended family. The study proposed some recommendations for some reforms of the current law and practice.
{"title":"DUTY OF PATERNAL FAMILY MEMBERS IN THE MAINTENANCE OF CHILDREN ACCORDING TO SECTION 73(2) OF ISLAMIC FAMILY LAW (SELANGOR) ENACTMENT 2003","authors":"Norazlina Abdul Aziz, R. Abdullah, Irini Ibrahim, Nurazlina Abdul Raof","doi":"10.31436/iiumlj.v29i(s1).638","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i(s1).638","url":null,"abstract":"Section 73 of Islamic Family Law (Selangor) Enactment 2003 provides that it is the duty of the paternal family to provide maintenance to the children in the event of the father’s death, missing in action or suffers from any disabilities. However, the efficiency of this provision depends on the understanding and application by the courts and the person who is said to be liable under ‘hukum syarak’. Currently there is not many studies conducted on the efficiency of this provision in solving cases where there is a failure to provide maintenance to children in the circumstances stated above. This study analyses the application of section 73 of Islamic Family Law (Selangor) Enactment 2003 with the aim of looking into the efficiency of this section in solving the issue children’s maintenance. The study adopts a qualitative method that involves doctrinal study, arm-researcher approach and semi-structured interviews. The provision, scope and jurisdiction of section 73 of Islamic Family Law (Selangor) Enactment 2003 is analysed in detail. The semi-structured interview delves into the current practice of the court in the Federal Territories where the views of selected respondents ranging from the judges in the Shariah courts in the Federal Territories, Shariah law practitioner, and academics. This study finds that the existing laws are somewhat insufficient in addressing issues of child maintenance and lack of awareness on the claimant (mother and children) on the responsibility of the extended family. The study proposed some recommendations for some reforms of the current law and practice.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45935139","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-28DOI: 10.31436/iiumlj.v28i2.533
Jing Zhi Wong
{"title":"NO ONE IS TOO SMALL TO MAKE A DIFFERENCE BY GRETA THUNBERG","authors":"Jing Zhi Wong","doi":"10.31436/iiumlj.v28i2.533","DOIUrl":"https://doi.org/10.31436/iiumlj.v28i2.533","url":null,"abstract":"","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2020-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41538023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-28DOI: 10.31436/IIUMLJ.V28I2.451
Mohsin Dhali, Sonny Zulhuda, S. Ismail
The present unbridled advancement in the field of information and communication technology has resulted in individuals being thrust at a crossroad, where refusing to sacrifice one’s privacy would mean the denial of technological benefits. Concern for privacy begins once a child is born into this world where the right to privacy could now be argued needs to be considered as one of the basic human rights similar to other inalienable rights such as the right to life and liberties. Bangladesh is one of the countries that has not given explicit recognition to the right of privacy. This is evident from the absence of explicit indications of the right to privacy in the Constitution of Bangladesh and judicial interventions make the constitutional protection of privacy questionable. The purpose of the present study is to find out whether the right to privacy is in fact recognized and protected by the Constitution of Bangladesh by examining specific provisions in the Constitution of Bangladesh to locate provisions that could be relied on to show that a sliver of recognition could be given to the right of privacy in Bangladesh. This position is then compared to other jurisdictions, especially the common law jurisdictions. The study finds that although Article 43 of the Constitution guarantees limited protection that encompasses the right to privacy of home and correspondence but if read together with the right to life and liberty in Article 32, it could be argued that these are viable provisions in recognizing the right to privacy under the Constitution of Bangladesh.
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