SMS DIVORCE: HARAM BUT EXCUSABLE

PROBABLY THE ONLY CERTAINTY in the high profile Syariah Court judgment against Senator Datuk Kamaruddin Ambok is that an SMS divorce is very affordable. Which in turn means that his ex-wife’s hurt and sense of utter betrayal is not worth for much.

Is this very surprising? Not if one is familiar with the workings of the Islamic legal system in Malaysia. In fact, a judgment even mildly more equitable would be a cause celebre as it would surely signal the dawn of some kind of enlightenment amongst the kadhis, the syariah court judges. Say for instance, the Senator had been jailed for a week – no need for the maximum 6 months – for utter disregard of the law and a woman’s sensibilities, especially one who has shared his marital bed, can you imagine the huge sigh of relief that would break out spontaneously from every Muslim woman upon reading the report. So tangible would be the relief one can surely almost touch it. “Justice at last!” would be a common refrain.

But instead, the utter drudgery, misery and humiliation for women living under Islamic Family law here in this country is legendary. This incident merely reinforces the belief. Few women who have had to go through the slumberous and seemingly lackadaisical cogs of the system have praise for it. Women seeking enforcement of maintenance judgment passed by the very same courts are more often than not frustrated. It is said, too, that women wanting divorce from errant husbands are often told to go home and be patient and wait for him to recover his senses. Meanwhile, do go on loving the man, please. Is this cynical or what!

And so, when the good Senator got away with a fine of RM550.00 because it is a first offence – the operative phrase here is “first offence” – there is cause for concern. Furthermore, the urgings of the prosecuting officer for a harsh penalty to signal the Court’s displeasure had obviously fallen on deaf ears.

One wonders, firstly, were there many husbands rude, callous and irresponsible enough to commit the same infringement? After all, this contemptible act occurred some five years ago. Secondly, are the courts prepared to go on tolerating this kind of brutish behaviour by Muslim men? To all intents and purposes the divorce is, by implication at least, deemed to have been validated notwithstanding that it was the wife, and not him, who pursued the matter in court.

Yes, there was much verbal censure from the sitting kadhi for which we women are grateful because the system forces us Muslim women to be thankful for every morsel of mercy that comes our way. Kindness from the male dominated syariah courts is not something the fairer sex is prone to take for granted. If and when such a miracle does occur what woman is not acutely aware of Divine intervention! Good luck maybe, but it does not take a genius to know that any particular episode where the milk of human kindness flows in a syariah court is indeed God’s will. For, even when the judge adjudicates in constant wisdom he does so knowingly as the exception and NOT the rule.

One wonders, too, if this good judge would be as benign towards a less mighty person. Could it be that if he is not a senator but a mere clerk, say, Datuk Kamaruddin may have been treated less leniently? It is not uncommon for judges, or for that matter anyone in a position of power, to take a paternalistic approach to lesser mortals whom they feel ought to be taught a lesson.

History appears to indicate otherwise, more so in matters affecting the family. In the syariah court system the huge divide is not about economic means. (One’s socio-economic class and standing is a given predetermined by the Almighty and a good Muslim surrenders to his or her fate with recourse only to individual effort.) In this public domain of private affairs there is a gender dichotomy built upon the assumption of men’s superiority over women as guardians of wives, sisters and children.

Now, naturally one does not take to task the “guardians” of society, does one, if it can be helped. That this is so is borne out by the fact that it is difficult to imagine a situation, in practice, where a Muslim man automatically loses his position as guardian. The long and the short of it is that for as long as a man is alive and in good health his guardianship over his female charges (and boys of minority age) remains good. Does imprisonment dispossess him of this right? This I am not sure, but I sure hope so because if it does not then the cynicism of the Syariah Courts system is beyond help, redemption and hope.

This article was first published by Malaysia's Sunday Mail in early 2006.