Sex and sensibility
Salbiah Ahmad
SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of 'Malaya' in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes o n the process of reclaiming the many facets of independence.

When a friend in Universiti Malaya e-mailed me news of the ‘misyar’ marriage in the local press, I replied that I have not heard of such a thing. There is, of course, the very well-known Shia mut'a marriage (a contract whose duration is determined by parties) which is viewed rather dimly by the Sunni school as being jurisprudentially suspect by their standards.

Malaysians are largely Shafii-Sunni. At the official level, our family laws include a variety of opinions from the Hanafi and Maliki jurists of the Sunni school. Anything Shia is taboo, thus mut'a is out of the question but the Sunni-driven misyar is a-ok.

A quick check on the Internet reveals that the misyar - or travellers' marriage - originates from the practice or 'urf (custom) of Saudi Arabian males. One site claims an antiquity dating back to 1825 in Egypt. It is quite interesting how easily the practice of particular males in one place is recommended as a practice to all and sundry and over females.

Several males of some repute, notably the Grand Imam Tantawi of Al Azhar (Egypt), PAS spiritual leader Nik Aziz Nik Mat and Prof Dr Mahmud Zuhdi Abdul Majid of Universiti Malaya give supporting arguments.

They assert that the misyar marriage fulfils the requirements of a valid marriage. That means ijab and kabul (offer and acceptance), a mahr (dowry) and consent of the parties. By the way, the Shia mut'a marriage requires the same elements.

What has always intrigued me as a lawyer is that the contract of marriage in Islam falls under the category of muamalat or transactions. Rights of humankind (haqq Adami) are subject to contract, thus always negotiable. I have mentioned this point earlier.

Prohibition in Islam

Sexual relations outside of marriage are prohibited in Islam. A marriage contract essentially allows sex to be contracted and negotiated between partners in what we assume to be parties with an equal bargaining position. Herein lies a problem.
While Muslim women have the legal personality to freely contract, her capacity to contract has been affected by how society (not the Quran) perceives her biologically (as of the female sex) and social constructions of her roles in society.

The basic elements to a standard marriage, the misyar marriage and the mut'a marriage are threefold - offer and acceptance, a dowry and informed consent.

The opposition to misyar and mut'a marriages claim that these contracts do not protect women. I think they do not protect women because there are more women who are not the social and economic equals to men. This is the point to be emphasised.

I do not think that a standard marriage as envisioned by our family laws is going to guarantee protection to women either. Thus any kind of marriage contract where there is no real equality and no equal bargaining power (decision-making) between the parties is, arguably, suspect. The state is allowed intervention in family matters as a matter of public policy.

Consent is a difficult notion in marriage law. When is consent informed and free? If a first wife fears that she would be divorced if she refuses to consent to her husband marrying another, would that be an informed and free consent?

If a female had consented to contract out her maintenance entitlements in a misyar marriage because she rather be married than face social stigma or ostracism for being unmarried, is her consent informed and free?

Standing in society

The law plays a limited role. I have always thought that it is always prudent to ensure that women are socially and economically empowered as men. This would be the better protection.

Some women may be protected by marriage, some women may not. Some women are better protected by a mut'a marriage, some women may not. Some women have no problems with polygamous unions, some women do. Some women derive their standing or title in society through their marriage, some women do not, nor even care to be married.

I really would like to see more views of women in these engagements and that of young adults. We already have a deluge of scholarly male views and views of particular women.

I entertain a suspicion that for financially independent women, the prospect of a Muslim marriage can be daunting in that the family law does not accord equality between males and females like for example in divorce, custody and guardianship matters.

I have friends married under civil laws in other countries who went through a Muslim marriage ceremony, but are secure in the knowledge that their marriage would be governed by civil law which has evolved more substantive equality principles in spousal obligations.

Negotiating sex

If negotiating sex becomes the crux of a misyar marriage, I would also like to see that sanction is given to the mut'a marriage. This seems to be the commonality between the two.

The misyar marriage is determined upon divorce and it becomes a little problematic when Muslim males here have easier access to divorce (like the talaq) than females. The mut'a marriage parties, in negotiating the terms of the contract, mutually agree to the end of the mut'a contract.

I cannot say if this would cause a major wave of licensed prostitution. Some sexual relations, however sanctioned, can be said to be nothing more than prostitution. We always have room for disagreement.

Again there is no real guarantee that parties are not short-changed, but there are more options for the faithful where sex is deemed illegal outside marriage. I believe that our young adults at home and abroad do contract mut'a marriages. The state can only do so much officially and much of our intimate private lives should remain private.

p/s: I do not support or condemn 'misyar' because I do not know the fiqh behind it. Whatever it is, I still prefer the old traditional wisdom of wedding and marriage.