The Islamic Divorce Contract and a Flawed Axiom of Masculine Protectionism

Abstract

AbstractThe Islamic marital contract is based on an ideal of masculine protectionism, with males assuming power over those presumed to be vulnerable, namely, women and children. Greater rights are accorded to males in accordance with their bigger obligation towards the security and prosperity of the family. In illustrating these dynamics, I trace the historical development of the Family Syariah in Malaysia, and analyse the provisions on marital dissolution contained within it. The notion of either protectionist or dominative masculinity is then explored by examining the litigious experiences of men and women, as revealed from case law files on divorce of the various Syariah courts in Malaysia. In these cases, many men do not live up to their religious obligation as family head and provider, but often given the court mandate to imagine that they can. Hence, when they fail to see to their families’ maintenance, despite being religiously entrusted to be the source of women’s and children’s well-being, a social cost to society is exacted. In this situation, the manufacture of the submissive female is seldom successful as material conditions (such as wealth and social safety nets) do not always exist for obedience to be exchanged with protection. The article explores the extent to which an Islamic divorce contract can be sustained given that the axiom of male-protectionism can often be proven false in present day socio-economic context.