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With Special Reference to the Family Law Act 2001

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With Special Reference to the Family Law Act 2001 THE STATUS OF WOMEN IN MALDIVES: WITH SPECIAL REFERENCE TO THE FAMILY LAW ACT 2001 BY MINNAA NAFIZ A dissertation submitted in partial fulfilment of the requirements for the degree of Master of Comparative Law Ahmad Ibrahim Kulliyyah of Laws International Islamic University Malaysia DECEMBER 2007 ABSTRACT The development of any country can be judged by the position and status enjoyed by women. This is because women are part and parcel of each and every society. However, from time immemorial women has been constantly subordinated by men. Their rights suppressed and sometimes even their very existence seems to be insignificant. This is the hard fact reality which exists through out the world and Maldives is no exception. It is with regret to note that their presence remains under the shadow of the ever looming presence of the males. Submerged under the dominancy of males, their due rights bestowed by Islam seem to occupy a secondary position. This fact is most obvious in the arena of their matrimonial life. Maldivian women used to be in the constant fear of arbitral divorce by their husbands, the never ending struggles of maintenance amidst the burden of managing the housework and the rearing of children without any support of their husbands. It was against this back ground of bitter reality, the Family Act came into existence in July, 2001. The emergence of this Act lifted the hopes and spirits of many women. Their hopes of freedom to contract marriages without compulsions, hopes of protection against rash and impulsive divorce and hopes of improving their maintenance rights. Therefore, five years after the Act, it is important to determine how far the Act has been successful in fulfilling these dreams of the women. Therefore, this research explores these issues and in doing so has adopted a comparative descriptive method, based mainly on the available literature related to the study and the various legislations from different countries. Due to the absence of research conducted on women’s rights in Maldives, it is hoped that this study will contribute to promote their rights with a view towards suggesting legal reforms of the Act and policy recommendations relating to the matrimonial laws of the country. ii ﻣﻠﺨﺺ اﻟﺒﺤﺚ ﳝﻜﻦ ﺗﻘﺪﻳﺮ ﺗﻄﻮر أي ﺑﻠﺪ ﻣﻦ اﻟﺒﻠﺪان ﻋﱪ اﻟﻨﻈﺮ ﳌﻜﺎﻧﺔ وﻣﻮﻗﻊ اﳌﺮأة ﻓﻴﻪ ﻧﻈﺮا ﻟﻜﻮ�ﺎ ﺟﺰءا ﻻ ﻳﺘﺠﺰأ ﻣﻦ ﻧﺴﻴﺞ أي ﳎﺘﻤﻊ. وﻗﺪ وﺿﻌﺖ اﳌﺮأة ﰲ ﻣﻜﺎن 溎ﻧﻮي داﻋﻢ ﻟﻠﺮﺟﻞ ﻣﻨﺬ أزﻣﻨﺔ ﻃﻮال، ، وﻫﻀﻤﺖ ﺣﻘﻮﻗﻬﺎ وﺑﺪا ﰲ ﺑﻌﺾ اﻷﺣﻴﺎن أن وﺟﻮدﻫﺎ ﻻ ﻗﻴﻤﺔ ﻟﻪ وﻫﺬﻩ ﺣﻘﻴﻘﺔ ﻣّﺮة ﻣﻨ ﺘﺸ ﺮة ﻋﱪ اﻟﻌﺎﱂ، وﻻ ﺗﺸﻜﻞ ﺟﺰر اﳌﺎﻟﺪﻳﻒ اﺳﺘﺜﻨﺎءا ﳍﺬﻩ اﻟﻘﺎﻋﺪة. وإﻧﻪ ﳌﻦ اﳌﺆﺳﻒ أن وﺟﻮد اﳌﺮأة ﻫﻨﺎك ﻳﻘﻊ ﺗﺒﻌﺎ وﻇﻼ ﻟﻮﺟﻮد اﻟﺮﺟﻞ وﲢﺖ ﺳﻴﻄﺮﺗﻪ ﺑﻴﻨﻤﺎ ﲢﺘﻞ ﺣﻘﻮق اﳌﺮأة اﻟﱵ ﻣﻨﺤﻬﺎ إ�ﻫﺎ اﻹﺳﻼم ﻣﻜﺎ� 溎ﻧﻮ�. وﺗﺒﺪو ﻫﺬﻩ اﳊﻘﻴﻘﺔ ﺟﻠﻴﺔ ﻟﻠﻌﻴﺎن ﰲ ﳎﺎل اﳊﻴﺎة اﻟﺰوﺟﻴﺔ ﺣﻴﺚ ﻋﺎﺷﺖ اﳌﺮأة ﰲ ﺧﻮف داﺋﻢ ﻣﻦ اﻟﻄﻼق اﻻﻋﺘﺒﺎﻃﻲ، وﰲ ﻇﻞ ﻛﻔﺎح داﺋﻢ ﲢﺖ أﻋﺒﺎء اﳌﻨﺰل وﺗﺮﺑﻴﺔ اﻷﻃﻔﺎل دون ﻋﻮن ﻣﻦ اﻟﺰوج. وﰲ ﻇﻞ ﻫﺬا اﻟﻮاﻗﻊ ّاﳌﺮ، ﰎ إﺻﺪار ﻗﺎﻧﻮن اﻷﺳ ﺮة ﰲ ﻳﻮﻟﻴﻮ ٢٠٠١ ﳑﺎ أﻋﻄﻰ اﳌﺮأة اﻷﻣﻞ ﺑﺘﺤﻘﻴﻖ اﻟﺰواج ﻏﲑ اﻟﻘﺴﺮي، وﲪﺎﻳﺘﻬﺎ ﻣﻦ اﻟﻄﻼق اﻟﺘﻌﺴﻔﻲ اﳌﺘﻬﻮر ودﻋﻢ ﺣﻘﻮﻗﻬﺎ ﰲ اﻟﺮﻋﺎﻳﺔ واﻟﻨﻔﻘﺔ. و䚎ﻟﻨﻈﺮ ﳍﺬا ﻓﺈﻧﻪ ﻣﻦ اﳌﻬﻢ ﺑﻌﺪ ﲬﺲ ﺳﻨﻮات ﻋﻠﻰ ﺻﺪور اﻟﻘﺎﻧﻮن ﲢﺪﻳﺪ اﳌﺪى اﻟﺬي وﺻﻞ إﻟﻴﻪ ﻫﺬا اﻟﻘﺎﻧﻮن ﰲ ﲢﻘﻴﻖ آﻣﺎل اﳌﺮأة. وﻟﺬﻟﻚ ﻳﺴﺘﻜﺸﻒ ﻫﺬا اﻟﺒﺤﺚ ﻫﺬﻩ اﳌﻮاﺿﻴﻊ ﻣﺴﺘﺨﺪﻣﺎ اﳌﻨﻬﺞ اﻟﻮﺻﻔﻲ اﳌﻘﺎرن وﻣﻌﺘﻤﺪا ﻋﻠﻰ اﻟﺪراﺳﺎت واﻟﺘﺸﺮﻳﻌﺎت ذات اﻟﺼﻠﺔ ﻣﻦ ﺑﻠﺪان ﳐﺘﻠﻔﺔ. وﻧﻈﺮا ﻻﻧﻌﺪام اﻷﲝﺎث ﻋﻦ ﺣﻘﻮق اﳌﺮأة ﰲ اﳌﺎﻟﺪﻳﻒ، ﻓﻴﺆﻣﻞ ﳍﺬا اﻟﺒﺤﺚ أن ﻳﺴﻬﻢ ﰲ دﻋﻢ ﺣﻘﻮق اﳌﺮأة واﻗﱰاح إﺻﻼﺣﺎت ﻋﻠﻰ ﻗﺎﻧﻮن اﻷﺳﺮة وﺗﻮﺻﻴﺎت ﺣﻮل ﻗﻮاﻧﲔ اﻟﺰواج ﰲ اﳌﺎﻟﺪﻳﻒ. iii APPROVAL PAGE I certify that I have supervised and read this study and that in my opinion, it conforms to acceptable standards of scholary presentation and is fully adequate, in scope and quality as a dissertation for the degree of Master of Comparative Law. ………………………..….. Nora Abdul Hak Supervisor I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholary presentation and is fully adequate, in scope and quality as a dissertation for the degree of Master of Comparative Law. ……………………………. Norliah Ibrahim Examiner This dissertation was submitted to the Department of Islamic Law and is accepted as a partial fulfilment of the requirements for the degree of Master of Comparative Law. ……………………………. Ahmad Azam Othman Head, Department of Islamic Law This dissertation was submitted to the Kulliyyah of Laws and is accepted as a partial fulfilment of the requirements for the degree of Master of Comparative Law. ………………….…………. Zaleha Kamaruddin Dean, Kulliyyah of Laws iv DECLARATION I hereby declare that this dissertation is the result of my own investigations, except where otherwise stated. I also declare that it has not been previously or concurrently submitted as a whole for any other degrees at IIUM or other institutions. Minnaa Nafiz Signature ………………………………… Date …………………… v INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA DECLARATION OF COPYRIGHT AND AFFIRMATION OF FAIR USE OF UNPUBLISHED RESEARCH Copyright © 2007 by Minna Nafiz. All rights reserved. THE STATUS OF WOMEN IN MALDIVES: WITH SPECIAL REFERENCE TO THE FAMILY LAW ACT, 2001. No part of this unpublished research may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission of the copyright holder except as provided below. 1. Any material contained in or derived from this unpublished research may only be used by others in their writing with due acknowledgement. 2. IIUM or its library will have the right to make and transmit copies (print or electronic) for institutional and academic purposes. 3. The IIUM library will have the right to make, store in a retrieval system and supply copies of this unpublished research if requested by other universities and research libraries. Affirmed by Minna Nafiz. ……………………………. ……………….. Signature Date vi This dissertation is dedicated to my parents: ‛Abdullah NÉfiÐ and RashÊdha MuÍammad Didi, Especially to my mother. vii ACKNOWLEDGEMENTS All praise be to AllÉh SubÍÉnahu Wata’Éla but for whose mercy and guidance I could not have undertaken or completed this humble work to fulfill this requirement for my masters degree. AllÉh SubÍÉnahu Wata’Éla has stated in the Qur’Én: “work ye sons of David with thanks, but few of my servants are grateful.” (SËrah Saba’ 34:13). Similarly, in a ×adÊth of Prophet (S.A.W) it is stated that, “whoever does not thank people, does not thank AllÉh.” Therefore, may I take this opportunity granted by AllÉh to acknowledge those who contributed significantly to the completion of this dissertation. First of all, my deepest appreciation and gratitude goes to my parents who have been a constant source of support throughout my life. Especially, my mother who specifically prayed for me to study at IIUM and which I believe is the reason behind my opportunity to study here. I am also greatly indebted to Dr. Mohaimin Ayous, Assoc. Prof at IIUM, for if not without his help and encouragement, I would not be studying here at IIUM. He has portrayed an excellent example of a lecturer, who is always ready to help the students in need. He will always be remembered as a great lecturer, a motivating mentor and a compassionate human being. May I also take this opportunity to thank him for his hard work in improving the standards of Faculty of SharÊ’ah and Law in Maldives. May AllÉh bless him in this world and in the Hereafter. My utmost gratitude further goes to Dr. Najibah, Assoc. Prof at IIUM, for giving me the idea to choose this topic and who has been a source of support and inspiration to me. A very special thanks goes to my friend Mr. Yusuff Jelili Amuda for his encouragement and motivation. I am also deeply grateful to my friends Mithu, Firash and Shaugy for their assistance in solving for me the computer related technical problems. I also convey my gratitude to my sister Saeeda and brother Abdul Rasheed. Last but not least, my thanks to my supervisor, Dr Nora Abdul Hak and examiner Dr. Norliah Ibrahim. May AllÉh bless them all. Amen. viii LIST OF TABLES Table No Page No 1.1 Number of marriages contracted, below eighteen years in 47 Maldives (2003-2006). 1.2 Number of Marriage and Divorce in Maldives from 1998-2006. 77 1.3 Number of Divorce with the Permission of the Court and without 77 the permission of the Court. ix LIST OF CASES Abdul Kadir v Salima, (1990) ILR 8 All. 149 A’ishah Abdul Rauf v Wan Mohd Yusof Wan Othman (1990) 3 MLJ 1x, A Yusuf v. Sowramma (1971) A.I.R. Ker. 42 Aisny bt Mohd Daris v Haji Fahro Rozi bin Mohdi (1990) 2 MLJ XXVi Ahmed Ali v Sabha Khatun Bibi (1952) PLD 342 Abdool Futteh v Zabunessa (1881) ILR 6 Cal.631 Babee Bachun v Hamid Hussain (1871) 14 MIA 377. Bufaton Bibi v Sheikh Abdul Salim (1950) AIR Calcutta 304 Bia Fatma v Ali Mahomed Aiyeb (1913) I.L.R 37 Bombay 280 Balqis Fatima v Najm-ul-Ikram Qureshi (1959 PLD Lah 566. Badarannissa Bibi v Mafiattala ( 7 Bengal Law Reports) Hassan Kutty Beary v Jainabha (1928) A.I.R. Mad. 1285 Hamira Bibi v Zubaida Bibi (1916) 43 IA 294 Hakim Zadi v Nawaz Ali 1972 PLD Karachi 540 Itwari v Smt. Asghari (1960) A.I.R. Allahabad 684) Imam Ali Patwari v Arfatunnesa (1914) A.I.R, Calcutta 369. K. Abubukkur v. V. Marakkar (1970) AIR Ker 277 Karimatu v Alhaji Yakubi VI Islamic (1986) CLQ 275 Khurshid Bibi v Basoo Muhammed Amin (1967) PLD SC 100 116 Khurshid Begum v Abdul Rashid 1927A.I.R, 143 Muhammad Irfan v Mst Mahando (1952) PLD Peshawar 55 Mst Hamidan v Muhammad Umar (1932) AIR, Lahore 65 2 Muhammad Ali Akbar v Fatima Begum (1929) A.I.R.
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