The Discriminatory Laws Surrounding Marriage

Written by C. Ng and Alicia Chin

 

INTRODUCTION

Society believes that marriage is the union of two individuals, so in love, that they are willing to involve the government, and even society, in their declaration of love to one another. What many people fail to consider, however, is that marriage has consequences beyond the signing of a marriage certificate, or marking ‘married’ when filling out forms. This article examines the legal  consequences of marriage, while arguing that the norms of marriage, and the circumstances surrounding it, are largely detrimental in nature, to women.

 

Women have been prompted to ask this question of themselves many times, “should I marry”? The issue isn’t really a question of lifelong companionship, or romance. It is more so: “What are the motivations and consequences of marriage, as a civil and legal union, as an institution, to my prospects, perceptions of myself, people around me, and its implications on wider society?” What of the consequences of putting down “married” on forms and making it common knowledge to others. Like any contract, bound by the law, women ought to know what they sign themselves into and why.

 

Depending on one’s upbringing and surroundings, people may have differing beliefs that marriage, not just in its inherent form, but with its tangential consequences. Marriage serves its function as a verifying institution not merely “symbolic of love”, therefore, if one would expect marriage to purely carry out this function, then its consequences ought to be purely within those boundaries. Yet, marriage does have consequences and motivations beyond the certificate. This is what this work attempts to examine.

 

This collection of work is divided into three segments, firstly the Legal impact of marriage, secondly, its Social effect, and finally, our Recommendations on how we can create a better environment for women everywhere. They are published separately, and while they can be read on their own, they do tie in together.

 

This article covers the Legal impact of marriage, and marriage laws in this country. Since one shouldn’t negate any benefits, of the marriage institution, this body of work attempts to apply an even-handed approach, from an objective point of view.

 

LAWS SURROUNDING MARRIAGE

Once married, are a woman’s legal rights subsumed under her husband? This portion delves into the nitty gritty of a few laws in Malaysia surrounding marriage.

 

Rape

Making way into headlines once again, is the issue of marital rape in Malaysia. Unlike many countries of the world today, marital rape in not criminalised in Malaysia, i.e. it is not a crime for a man to rape his wife. As they are married, sex is as of right. This upholds the view that women, once married, lose certain rights, such as the right to her own body.

 

Referring to the Malaysian Penal Code, section 375A[1], merely states that a husband cannot cause hurt to his wife, with the purpose of soliciting sex. To be very clear, this does not criminalise marital rape, merely that a husband cannot cause hurt, or threaten his wife in order to get sex.

 

We turn to UK for an example, on this matter. In the groundbreaking case of R v R[2] where the House of Lords ruled, for the first time, that husband can be guilty of raping his wife. Malaysia, on the other hand, has no such law, and judging by the looks of it, won’t have one for a long time still.

 

Sexual violence, insofar as between a man and his wife, is governed by Section 375 of the Penal Code.[3] The de facto law minister, Nancy Shukri (as she was at that time), announced that the Government had no plans to amend Section 375 to categorise non-consensual sex between husband and wife as rape. She said the law provided enough protection to wives.

 

Even more recently, the Deputy Prime minister, in the Prime Minister’s Department, Mohamed Hanipa Maidin said, in the Dewan Rakyat on the 30th of October, that Malaysia will not criminalise marital rape, as it is too “Difficult to prove in court”.[4] Responding to a question posed by Petaling Jaya MP Maria Chin Abdullah, on reviewing the law in this area,  he replied, “the government cannot make it a crime (marital rape). It is very difficult to prove in court”. Citing Sir Matthew Hale, he further makes the statement, that a husband cannot be guilty of raping his wife, as by their consent, and contract, she has given herself up unto her husband, and she cannot retract. He further expresses that Islam provides protection to wives, as husband’s are not allowed to be violent to their wives.

 

This view is problematic, and enforces the view that women are subservient to their husbands. What of women of different races? If we are to accept that Islam provides the necessary protection to Muslim women, what of the rest of us. Irrefutably, we are a country of many races, and how then, are non – Muslim women afforded the same protection? Besides being problematic, it is outdated, and severely so. Sir Matthew Hale, was an English Barrister, in the 17th century. Are we then to rely on laws that preceded us centuries ago? Is it not time to catch up, seeing as we are living in the 21st century?

 

While not pertaining marriage, it is also important to mention, as a way of illustrating the incompetence of Malaysian laws, that MEN cannot be raped as well. Referring to s377 of the Penal Code, that criminalises sodomy, it lays down men can only be sodomised, and NOT raped. The same law that provides only a man can rape a women, does not provide an equal section, that affords protection to men, in that they can in fact be raped. Unfortunately, the Malaysian Penal Code is yet again, outdated and severely incompetent in affording protection to both men and women in this country.

 

Last Name

While a large percentage of women tend to keep their last name when married, it is not the same for their children. Legitimate children[5] , under Malaysian laws, are required to take their father’s last name.[6] Many view this as discriminatory in nature. These laws can be found way back centuries ago, as a way for lineage, and blood to be traced. Children were given their fathers name, as men were seen as the head of the household, and thus, family lines would bear his name.

 

Patrilineal inheritance of family names is another societal institution that emerged from customary law, used centuries ago, but still hold so much significance today; so much so, that people all around the globe find it extreme to advocate for a child to bear their mother’s last name.

 

We turn to an article written by a male individual, posted on The Telegraph, where he perfectly sums up the inherent problems with this institution of choosing a surname.[7] In this article he writes:

 

“We’ve spent so many hundreds of years taking priority in the family name, that even in this day and age, it feels like an outrageous slur against our natural position as (supposedly) the head of the family, a position that’s arguably of increasingly diminished value”.

 

In this sentence, he argues that a husband’s role, as head of the family, is a natural position, and is one that is diminishing in value. He then moves on to illustrate why children should bear their father’s last name, and not their mothers. He concludes with the following paragraph:

 

“”It may not be very modern, it may not be very sensitive, but I’ll put my hand up and admit it: I want my kids to take my name, regardless of why and how I came to feeling that way. Call it ego, call it pettiness, call it marking your territory, but sometimes, that’s what being a bloke is all about.”

 

“In a world where so many patriarchal structures are being scrutinised, I’m clinging on to one of my last rights as a man.”

 

Reading this article, it is surprising how many people, both husbands, and wives, who agree with it. It is a custom, so entrenched in society, that we have never once stopped to consider its origins, nor question its applicability in our lives, and neither does it register as discriminatory and patriarchal in nature. If one were to stop and consider for a moment, the issues with this norm, what is uncovered may be surprising.

 

Policies for single women

On one hand, we have seen how marriage affects a women’s bodily autonomy, and we have seen how certain customs in our society are inherently patriarchal in nature.

 

We now move on to a seemingly combined issue of both legal and societal effects of a patriarchal institution in Malaysia.

 

Women are pressured to get married. This needs no proof. The reason behind this will be explored further below in this article, but to sum up, women need a husband to protect, care and provide for them, i.e. patriarchal in nature. Without a husband, women are so called ‘less’. It is because of this perception, that our policies are flawed, to give married women better rights and protection. Adversely affected, are single women, who, by their own choice, or not, are not married.

 

The fact that our Government do not give single women due consideration when drafting and implementing policies, is another example of how marriage is seen as a tool to further enforce a patriarchal institution.

 

For example, we take the policy that single women, unlike married women, can’t apply for a domestic helper. But what of the fact that there are single mothers who need help? What of single women who have parents or grandparents to care for?[8]

 

It is high time to accept that marriage is not mandatory, ever more so for women, who are pressured daily, to find husbands. In the words of Women’s Aid Organisation (WAO) communications officer Tan Heang-Lee: “We need to view women – whether single or married – as whole individuals, individuals who do not need to be completed by a significant other. Women are so much more than their marital status.” [9]

 

 

A MOVE FORWARD

While criticising the discriminatory nature of laws in Malaysia towards women, it is worthy to note, that efforts have been made to circumvent the problems. We are moving, albeit extremely slowly, towards a more fair culture. The following illustrate the measures that have been taken to improve the situation.

 

Domestic Violence

The new amendments tabled to the Domestic Violence bill 2017 have brought upon women everywhere, an increase in protection, especially in the household. The main provision in this bill was the enhancement of procedures in the granting of an Emergency Protection Order (EPO). Women, Family and Community Development Minister, Datuk Seri Rohani Abdul Karim in tabling the bill said it will allow social welfare officers to grant victims of domestic violence immediate protection, without the need to make a police report or receive a court order.[10]

 

The amendment allowed social workers to grant immediate protection to victims of domestic violence, in as early as 2 hours after the application is heard. Victims no longer need to go to a police station, obtain a court hearing or court order to be granted an EPO. Now, they can apply online, by sending an email, or even making a call to the welfare office.

 

While this bill was amended in 2012 to include all forms of abuse, such as psychological, emotional and mental, it was undefined, and as such, victims of these abuse found it harder to get the help they needed. Unlike physical abuse, anything other is hard to prove or show.

 

The new 2017 amendment addressed this issue, by defining the actions that may case psychological abuse, for example: threats, insulting the modesty of the victims, leaving distressing messages on electronic or social media and messaging platforms. This in turn helped in legitimising the victims’ complaints to police officers, helping them get the support they needed.[11]

 

Besides that, the amendments also seek to increase rights of victims. Previously, an Interim Protection Order (IPO)[12] merely prohibited the perpetrator from harming the victim. With the new amendment, an IPO also protects the victim from being harassed, threatened; basically acting as a restraining order as well. Besides that, the victims are kept updated on the investigation as it develops. This is a leap forward for the protection of domestic violence victims everywhere.

 

CONCLUSION

In short, we have explored how the laws in Malaysia are largely discriminatory towards women, and do not afford sufficient protection to both sexes. On the other hand, we have seen how there have been certain developments in the law that increase protection of women’s rights, especially in the household. We can construe this as an extremely minute victory, in the long standing fight for equality. We are hopeful that efforts such as the ones featured above gain momentum, and bring about a new era of equality.

 

The following article in this collection explores the societal impact of marriage, illustrating its discriminatory nature towards women, in general. It’s but a notion, a mere puff of innocence, that we believe the implications of marriage are merely a certificate, or the ticking of ‘married’ in forms. The deep seated effects of marriage in society today reaches into the depths of our everyday norms.

 


Image from: https://www.expressandstar.com

[1] Act 574 Penal Code, as at January 2015.

[2] [1991] UKHL 12

[3]https://www.star2.com/family/relationships/2015/06/17/rape-is-rape/#ZmVYxp8eWsrC3GAQ.99

[4] https://says.com/my/news/malaysia-will-not-criminalise-marital-rape-because-it-s-difficult-to-prove-in-court

[5] Legitimacy is governed by the Legitimacy Act 1961, where certain criteria, e.g: born within a marriage, or conceived within marriage, but born out of wedlock, if met, would give effect to legitimacy of that child.

[6] Births and Deaths Registration Act 1957, section 13A.

[7]https://www.telegraph.co.uk/men/relationships/fatherhood/11768048/Its-wrong-for-kids-not-to-have-their-fathers-surname.html

[8] https://www.thestar.com.my/news/nation/2017/02/05/all-the-single-ladies-with-a-bigger-percentage-of-single-women-in-malaysia-today-sunday-star-celebra/

[9] https://www.thestar.com.my/news/nation/2017/02/05/all-the-single-ladies-with-a-bigger-percentage-of-single-women-in-malaysia-today-sunday-star-celebra/

[10] https://www.nst.com.my/news/government-public-policy/2017/08/267800/dewan-negara-passes-domestic-violence-amendment-bill

[11]https://www.star2.com/people/2017/07/21/domestic-violence-amendments-act-2017-malaysia/

[12] Section 4(1) Domestic Violence Act: There must be a report made, and a police investigation must ensue before an IPO is issued.

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