How Malaysia’s legal system allows child marriage, five cases daily

Under state Islamic laws, the marriageable age is 18 for boys and 16 for girls, but Shariah courts have the authority to give consent to those below the permitted age to get married. — AFP pic
Under state Islamic laws, the marriageable age is 18 for boys and 16 for girls, but Shariah courts have the authority to give consent to those below the permitted age to get married. — AFP pic

KUALA LUMPUR, July 3 — In Malaysia, there are ways for children below 18 to get married, thanks to various “loopholes” in the dual legal system of Shariah and civil law.

The dual legal system, a result of the Reid Commission’s decision to make religion a state matter in 1956, separates legislation into civil law, which applies to non-Muslims, and Shariah law which applies to Muslims.

The statute governing non-Muslim marriages and divorces is the federal Law Reform (Marriage & Divorce) Act 1976, while Muslim marriages and divorces are governed by the respective state Islamic Family Laws.

Over 9,000 cases of child marriage occurred between 2010 and 2015, which averaged to about five cases a day.

A total of 6,268 of the child marriage cases involved Muslim couples, while the remaining 2,775 involved non-Muslims, according to data published in Penang Institute’s Child Marriages in Malaysia report.

Malaysia’s civil law dictates the legal minimum age of marriage as 18 for both genders, which is a similar standard set by other countries including Egypt, Finland, Argentina and Singapore.

But both civil and Shariah laws provide ample room for exceptions.

A non-Muslim girl aged 16 can get married with approval from the state’s head of government — the mentri besar or chief minister. However, non-Muslims cannot marry below 16.

Under state Islamic laws, the marriageable age is 18 for boys and 16 for girls, but Shariah courts have the authority to give consent to those below the permitted age to get married. There is no minimum age of marriage for Muslims.

This can be seen, for instance, in Section 8 of the Islamic Family Law (State of Selangor) Enactment 2003.

It states: “No marriage may be solemnised under this Enactment where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syarie Judge has granted his permission in writing in certain circumstances.”

This application for approval can easily be made by the couple or their parents at any marriage, divorce and reconciliation counter at the respective state religious department.

It is, however, not known how a Sharie judge will make his decision when it comes to approving underage marriages, as the conditions are not listed in local Islamic family laws.

According to the application form dubbed Form MS 26 available on the Selangor Shariah Judiciary Department’s website, an underage applicant would need to provide three reasons to substantiate their request.

They would also have to declare that the marriage was consensual and not made under duress.

Over the years, many critics of child marriages have come forward to push the government to standardise the minimum legal age at 18, across the board.

Women, Family and Community Development Minister Datuk Seri Dr Wan Azizah Wan Ismail said yesterday that Parliament may increase the minimum legal age of marriage for girls from 16 to 18 when it convenes on July 16.

Her statement came following viral reports that a 41-year-old from Kelantan wed an 11-year-old Thai girl in southern Thailand last month as his third wife.

Dr Wan Azizah added that it was high time such a review was made to protect the interests and rights of children.

Other high-profile child marriages

Some of the local high-profile cases which grabbed headlines included the marriage between 14-year-old student Siti Maryam Mahmood and her 23-year-old teacher, Abdul Manan, in 2010.

The union was later criticised by then-minister of women, family and community development Tan Sri Shahrizat Jalil, who said the central government “disapproved” of it.

The same year, 11-year-old Siti Nur Zubaidah Hussin was forced to marry a 41-year-old man by her father who was a follower of a religious sect.

The marriage sent her into depression as she was too young to take the role of a wife.

She disappeared some 20 days before she was found in a delirious state hundreds of kilometres away from home at Masjid Al-Ikhwan in Batu Caves, Selangor.

In 2012, the Kulim Shariah Lower Court granted permission for 12-year-old Nor Fazira Saad to marry a man named Mohd Fahmi Alias. The matrimony, however, lasted less than a year.

After the divorce, Fazira’s father, Saad Mustafa, revealed he had agreed to the marriage because his daughter was raped by Fahmi and his friends four months prior to the wedding.

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