KUALA LUMPUR: A simple compliment from a host about a beautiful outfit worn by a child at a Hari Raya Aidilfitri open house unexpectedly sparked a heated argument between the parents after the mother casually “revealed” that all the expenses for the festive celebration were borne by her.
A video of the incident, shared by the host on social media, went viral. For viewers, it may have been just a story but behind it lies a bitter reality in some marriages where the husband shirks his responsibilities in providing for his wife and children, especially when the wife is also working.
Such situations often leave wives feeling emotionally overwhelmed as they are forced to handle household, family and financial responsibilities on their own.
CLAIMING MAINTENANCE WITHOUT DIVORCE
For Muslim women facing such issues, there is still a way out, says Syariah lawyer Marlina Amir Hamzah, who explained that a wife’s rights under Islam are protected by the Islamic Family Law (Federal Territories) Act 1984 and similar laws at the state level.
“For example, Section 73(1) of the Selangor Islamic Family Law Enactment 2023 states that the father is responsible for providing maintenance for his child, regardless of whether the child is in his custody or someone else’s.
“Maintenance includes essentials such as food, drink, shelter, clothing and medical care. If the issue of maintenance cannot be resolved through discussion, the wife has the right to file a claim in the Syariah Court, even while still legally married,” she told Bernama recently.
Unfortunately, she said, many wives do not take this step due to several factors, including a lack of awareness of legal procedures, fear of not being able to afford the cost of filing a claim and concerns that doing so could worsen the situation.
“For those who still wish to preserve their marriage, they usually avoid this route. Imagine a wife filing a maintenance claim in court while still married – it could lead to arguments and possibly end in divorce.
“However, in certain cases, such as when a woman has been left without support for a long time and is determined to assert her rights, the claim can be filed without waiting for a divorce,” she added.
PROCESS
Elaborating on the process of claiming maintenance while still married, Marlina said the first step a wife should take is to apply for a maintenance order at the lower Syariah court.
“Prepare all the necessary documents, such as copies of both spouses’ identification cards, their marriage certificate and their children’s birth certificates, then go to the lower Syariah court to file an application. Officers at the case registration counter can usually assist and guide you if you’re not represented by a lawyer.
“If you have legal representation, the lawyer will handle all the documentation and provide advice in accordance with existing provisions and appropriate to the client’s case,” she said.
Once the case is filed, both parties will undergo a sulh process. Sulh refers to the amicable settlement of a dispute through mediation. However, if no agreement is reached, the case will be tried before a judge.
Once the trial concludes, the court may order the husband, ex-husband or father to pay maintenance according to the amount, payment schedule and method determined by the judge, Marlina explained.
If the husband fails to comply with the court order, the wife can file an application for enforcement under Section 148 of the Syariah Court Civil Procedure Act (Federal Territories) 1998, or the relevant state enactment.
Marlina said this application can be filed through a judgment debtor summons, seizure and sale order or a committal order.
“Some husbands may try to claim they can’t afford it (pay maintenance) due to low income, high commitments, unemployment and so on. If that’s the case, the husband must provide proof to the court that he truly lacks the means. However, that doesn’t mean he can get away with it. According to Islamic law, maintenance is a mandatory right that must be fulfilled, no matter what,” she said.
In fact, in child maintenance cases, if the husband proves he is genuinely unable to fulfill his financial responsibilities, the wife can apply to the court to request that an heir from the husband’s side pay the maintenance as ordered by the court.
To proceed with this, the wife must first obtain a maintenance order from the lower Syariah court under Section 72(1) of the Islamic Family Law (Federal Territories) Act, or the relevant state-level law, the lawyer explained.
In addition, if the wife is aware that the husband has savings in any financial institution, she can also apply for hiwalah at the Syariah court. Hiwalah is the transfer of debt from the person who owes it to someone else who is able to pay it.
ENFORCEMENT
Meanwhile, Irsamudin Ikhsan, who is also a Syariah lawyer, said Islamic family law in Malaysia allows a wife to file not only for current maintenance but also for arrears accrued throughout the marriage.
“These arrears can be claimed if the wife can prove the husband failed to provide maintenance over a certain reasonable period. The court will then evaluate the reasonableness of the claim amount.
“Claims must be supported by evidence, such as expenditure records, financial documents and witness testimony if necessary,” he told Bernama.
He said if the husband fails to comply with the maintenance order issued by the court, the latter can enforce the order through measures like salary garnishment or even imprisonment.
Such actions, he added, are not merely punitive but are intended to protect the rights of wives and children who have been neglected.
“This matter is guaranteed under Islamic law and Malaysia’s Islamic legal framework to ensure the welfare of the wife and children is safeguarded if the husband fails to fulfill his obligations,” he said.
Sharing her experience with Bernama, Fatiahusna (not her real name), 45, said she was neglected by her husband for more than 10 years before she decided to take legal action to secure her and her children’s rights.
“I waited over 10 years, hoping my husband would change. In the end, I became ill (suffered from depression) from shouldering all the family and children’s expenses. My husband worked in the government sector but I had no idea where his money went,” said the private-sector employee.
The mother of three school-going children said during that time, she spent her entire salary on household expenses and had no savings for her future.
“This didn’t even include the emotional, mental and physical fatigue I suffered. Discussions didn’t help either,” she said, adding she eventually gathered the courage to go to the Syariah court to address the issue.
“I sought help from the Legal Aid Bureau to begin the process of claiming maintenance for the sake of my children’s future.
“The process did take a long time – almost three years – but I had already been patient for 10 years, so waiting a little longer for the sake of my children was not a problem. Some of the services provided by the Legal Aid Bureau were free and some required payment. The total cost depends on the type of case and how much work is involved. What’s certain is that the bureau is much more affordable compared to engaging a private law firm.”
Now a single mother, Fatiahusna said her ex-husband has been consistently paying child maintenance through salary deductions, as ordered by the Syariah court.
“Even though I ended up being a single mother, I’m still grateful because my efforts to improve our lives and fight for my children’s rights have paid off,” she said.
She advised women in similar situations not to stay in toxic marriages just out of pity for the children but instead to rise and fight for the rights granted by their religion and the law.
