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Friday, December 30, 2011

Archive #51

Taming of the Shrew... is it possible? PDF Print E-mail
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Written by Salahaddin   
Thursday, 29 December 2011 09:28

By Salahadin

One of the funniest play I have read, to me is ‘Taming of the Shrew’ by William Shakespeare. We were 1st introduced to English plays during our English class in secondary school. It was love at first read! I must admit it was difficult at first to understand old English but once you have understood it, then it makes a lot sense. The language is beautiful and its stories have great moralistic values, at least, that my two cent thought.

Anyway, back to the play, ‘Taming of the Shrew’ was recommended to me by a friend. He told me it’s a must read and that he fell off the sofa laughing reading it. I was intrigued because, this friend of mine is a ‘no-nonsense’ type of guy. One look from him is enough to make you have cardiac arrest from fear, so anything that can crack a smile on his face, made my curiosity run into over-drive! So I hunted for the book and found it. He was right, the play was very funny but it also taught some meaningful lessons.

The play is basically about a man, Petruchio who was looking for a rich wife regardless of look or beauty. He agreed to marry Katherine, the shrew, a vicious and ill-tempered old maid woman. Despite her father agreeing to her hand in marriage, Katherine refused to marry Petruchio. She insulted him at every opportunity but Petruchio was adamant. The wedding was set. Every bad thing that she did, he countered it two-folds. If she embarrassed him in public, he would retaliate in embarrassing her even more. The last straw was when he arrived late their wedding, in an ill-fitted outfit. Katherine was fearful that she would be left standing at the altar and continued her life as an old maid. Petruchio was on his worst behavior which ended up with him smacking the priest on the head and spitting out verbal abuse during the ceremony. Out of embarrassment, the shrew backed down and was from that day, was on her best behavior for fear of being humiliated in public again.

Remembering that play, I wonder if our Syariah system is actually acting up like the shrew, in order to keep everyone away and quiet. It worked with Katherine as it kept any possible suitors away since she did not want to get married but what about our Syariah system? What is the intention behind the misbehavior of the minority that is causing a major impact on the whole Islamic society? Is there hope for our Shariah system? Can it be tamed? Will it ever become people friendly or does it have to be shamed before it would affect any change?

I cannot help but to compare between the civil court system and Syariah Court. To some extent, as much as I hate to admit it, civil system is fairer and dispenses justice faster than the Syariah system. For example, for uncontested probate matters, litigants will be able to get their Letter of Administration, needed to administer the deceased’s estate within 1 month. That gives the opportunity for the widow and/or children to settle all the debts of the deceased and for the wife to have access to the late husband’s account, to continue to support their children’s upbringing.

Let us see the scenario in the Syariah court instead. An application for a ‘Faraid’ certificate (division of estate properties according to Islamic law), in some states takes years! In some cases, the beneficiaries have even passed on while waiting and that makes the situation even more complicated. Reasons for the delay are postponements by the Court.

Another area which I can’t seem to agree with the Syariah system is, the need to seek for the Court’s approval before a husband can pronounce divorce. Failure for seeking such approval from Court can result in the husband being fine up to RM1,000.00 or imprisonment not more than 6 months or both.

On one side, I can see the rationale of imposing such law. It is to my understanding, that it is to protect the women from being unjustly divorce without her rights being considered. However, we MUST remember! The right to pronounce divorce or ‘talaq’ belongs solely to the husband, whether we like it or not. This is a God given right to the husband.

“O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah. and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation.  Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah. Such is the admonition given to him who believes in Allah and the Last Day. And for those who fear Allah, He (ever) prepares a way out” - (Surah At-Talaq 65:1-2)

Nothing in the above verse states that the power to divorce the wife is subject to approval by any other party or institution. Unless I am wrong, but by the courts saying that the husband can only exercise his right, given by God, after the courts have given him its approval, isn’t indirectly saying that God’s law is subject to human’s approval? Are we bigger than God?

Don’t get me wrong! I am not encouraging divorce but merely stating a fact. Ironically, when a wife files an application into court for a pronouncement of ‘talaq’ and the husband refuses to consent to the application, the court will turn around and inform the wife that her application cannot be heard because the power or authority to pronounce ‘talaq’ is solely in the hand of the husband and if he refuses, then the court is not able to do anything about it. Hence, she must withdraw her application and re-file a fresh application for divorce under other branches of law such as ‘fasakh’ or ‘takliq’.

However, if the husband is the one who files the application for pronouncement of ‘talaq’ and the wife refuses to consent to the application, then the husband is NOT allowed to pronounce the divorce but the case will be referred to a Committee who will act as arbitrators and try to settle the matter within 6 months to year and if he exercise his God given right, he can be fine or even worse, jailed! Now, tell me what is wrong with this scenario?

Despite the intention being good, let us study the repercussions of such action.

Scenario #1-

Parties have been living apart for years and the husband wants to remarry. Out of spite, the wife refuses hence the case gets referred to the Committee. Until the case is heard and disposed of, the husband must abstain from committing any sexual relationship. If the matter is dragged for years (trust me, it can!) then, the question is, can a man survive for that long of period before succumbing into temptation? Is it fair to subject him to such ‘punishment’ or ‘torture’?

Often, the husband will just pronounce the ‘talaq’ outside the court and file an application to register the divorce but he may still be fined or God forbid, jailed, for exercising his God’s given right.

Scenario #2-

Husband files an application, the wife refuses and matter gets referred to the Committee. The Husband crosses over to the border, remarried, returns and files an application to register the 2nd marriage and just leave the 1st wife hanging. The Husband withdraws his application and the 1st wife is now forced to file for divorce.

Scenario #3-

The husband is a foreigner and the wife is a local. Marriage broke down irretrievably for years and couples have been living apart for years. The husband finally files an application for pronouncement of ‘talaq’ but the wife refuses to consent because she wants some monetary settlement from her ‘foreigner’ husband hence the court refuses to grant approval and refers the matter to the Committee.

Husband returns to his home country, never to come back and the wife is left hanging. The wife now had to file another application for divorce and the hearing will take years to complete.

The above scenarios were not made up or fictions but real live accounts of cases. Whether we like it or not, the power of ‘talaq’ is in the hands of the husband. If the intention is to be fair to both parties perhaps, instead of automatically referring the case to the Committee when the wife refuses to consent, the judge should hear each cases individually first and assess to see if the case should be referred to the Committee or to just grant the approval to the husband to pronounce ‘talaq’.

In cases where couples have been living apart and the wife is already co-habiting (it happens) with another man, the court should grant the approval immediately to avoid any more sins being committed.

A husband is responsible for the wife’s sins.

“Prophet (peace and blessings of Allaah be upon him) said: “The man is the shepherd of the members of his household and is responsible for his flock. Each of you is a shepherd and is responsible for his flock. So the man is a shepherd and is responsible for his flock”.

By preventing a person doing a right thing, we will be responsible for the sins committed by the person as a result of our action…

To be continued…
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