#TanyaTelenisa

What Is Nusyuz?

In this episode Telenisa invited Raja Hafiq, a Sharia Lawyer and Fadhul Adnin, Advocacy, Legal Service and Research Unit Manager, Sisters In Islam. The topic on the table? Nusyuz. But what exactly is Nusyuz? And does it hold true that if a husband accuses his wife of Nusyuz, she loses all her rights as a spouse? Another question that arises: Why does the law concerning Nusyuz only address women and not men? Dive into the article below to uncover these thought-provoking answers and gain a deeper understanding of this complex issue

Question to Raja Hafiq: What is Nusyuz?

In general, "Nusyuz" can apply to either a husband or a wife. If both partners meet the criteria, Nusyuz can be applied. "Durhaka" or “insubordinate” is included within Nusyuz. Whenever one partner defies or disobeys their spouse, it's considered Nusyuz. For instance, if a wife distances herself from her husband and lives elsewhere, this is considered Nusyuz. Similarly, if a husband engages in actions that are prohibited and inappropriate, such as cruelty, physical or mental abuse, or neglecting his responsibilities towards his wife (providing care and affection), this is considered Nusyuz. In the Quran, Nusyuz is mentioned in Surah An-Nisa, verse 128:

"And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them - and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah - then indeed Allah is ever, with what you do, Acquainted"

Because of this, if Nusyuz happens in a family, the Quran suggests that the partners should seek a resolution and try to solve the problems caused by Nusyuz.

Looking at it from the perspective of Islamic Family Law, for example in the state of Selangor, Article 60. Islamic Family Law "The power of the Court to order alimony for the wife, and the effect of Nusyuz”, states:

1. Subjects to Islamic Law, the Court may order maintenance for a wife and effects of Nusyuz. The Court may order a man to provide a maintenance for his wife or former wife.
2. Subject to Islamic Law and Court confirmation, a wife shall not be entitled to maintenance when she is Nusyuz or unreasonably refuses to live according to her husband’s wishes or lawful commands, which include –

1. When she distances herself from her husband;
2. When she leaves her husband’s home contrary to his wishes; or
3. When she refuses to move together with her husband to a home or place without valid reason according to Islamic Law.

There are reasonable grounds for the court to declare a wife as Nusyuz. If Nusyuz occurs, the husband's obligation to provide maintenance is revoked, and the wife is not entitled to receive maintenance. Furthermore, Article 66. Rights to Maintenance or Allowance After Divorce is mentioned, which pertains to rights to maintenance or post-divorce support:

(1) The right of a divorced wife to receive maintenance from her former husband under a Court order shall cease upon the expiry of the 'iddah period or upon the wife becoming Nusyuz.

Once again, the term Nusyuz is mentioned in the written law of this region, specifically for those who are declared Nusyuz by the court.

Question to Fadhul Adnin: What are the client inquiries that come to Telenisa regarding "Nusyuz"?

So, one of the reasons our clients ask about "Nusyuz" is because it's closely related to physical, mental, and emotional violence they experience. Based on what they share, it starts from minor disagreements, such as verbal conflicts between spouses and when this situation arises, they often contemplate leaving their home due to extreme stress and as a way to seek protection. Because the wife can't endure it anymore and can't stay patient, by leaving the home, they feel safe and peaceful.

Regarding our clients, some of them have expressed that their partners are frequently involved in immoral activities like partying at nightclubs. Some have also disclosed that their partners engage in the use of prohibited substances like drugs, alcohol, and so on. Additionally, there are wives who complain about their husbands being addicted to watching pornographic videos, which disrupts their marital harmony.

Question to Raja Hafiq: Previously, you've explained how a wife can be declared as "Nusyuz." Now, what about a husband? What causes a husband to be classified as "Nusyuz"?

"Nusyuz" doesn't only apply to wives; husbands can also be categorized as Nusyuz. Among the causes and factors that lead to a husband being considered Nusyuz are those discussed in classical Fiqh (Islamic jurisprudence) texts. For instance, in the book "Fiqh Manhaji," it's mentioned that "A husband who mistreats his wife and dislikes her, such as not providing his turn for a night with her, neglecting his financial responsibilities, or verbally abusing her with words or actions. If the wife advises and reminds her husband of his responsibilities, then this is a guideline or even a characteristic outlined in Sharia Law and delineated in these classical Fiqh texts”. If a husband mistreats his wife, dislikes her, or, in the case of those in polygamous marriages, doesn't allocate fair turns to his wives or doesn't provide adequate maintenance, or behaves harshly with words or actions (physical, mental, and habitual assault), it can be categorized as Nusyuz.

Let me start by explaining the perspective of Sharia Law, as it has some differences in practical law in Malaysia. It's also mentioned in the book "Hasyiyah" by Sheikh Ibrahim Al-Bajuri that a Nusyuz husband is one who neglects his obligations towards his wife, is not harmonious with her, doesn't treat her fairly, and for those in polygamous marriages, doesn't provide maintenance and other life necessities.

As mentioned in the book "Fiqh Manhaji," it's reiterated that if a husband doesn't fulfill the obligations mandated by Sharia towards his wife, he can be considered as being in a state of Nusyuz. Additionally, it's stated that a husband who is in a state of Nusyuz can be subject to disciplinary punishment (tazir). This needs to be our legal perspective that we can refine, especially as the punishment isn't explicitly mentioned in the Quran. We need to establish how we want to penalize husbands or wives engaged in Nusyuz. The leadership of a country should be adaptable to ensure there's an appropriate punishment for spouses in a state of Nusyuz. So far, the punishment for those convicted of Nusyuz hasn't been very clear and precise. Nevertheless, there are alternative ways for us to resolve or even escape from Nusyuz-related problems.

Question to Fadhul Adnin: What do clients typically understand when they approach SIS or Telenisa with inquiries about "Nusyuz"?

Usually, they express the issues they face in their marital situations, and indirectly, the problems they're complaining about involve matters or questions related to Nusyuz. As an example we often encounter that a husband getting angry and telling his wife that she is in a state of Nusyuz and is no longer fit to be a mother to their children. Following this, the client becomes panicked, anxious, and worried, they feel as if they've lost all their rights as a wife. The client assumes that when a husband openly declares his wife as Nusyuz meaning that she has lost her rights as a wife (maintenance, housing, etc.). I want to emphasize that this understanding is incorrect and needs to be corrected.

In reality, a declaration of Nusyuz can only be made by a judge in a court of law and only after one party (husband or wife) files a petition. Therefore, as long as there's no court ruling, and as long as no court order has been issued, the wife still retains all her rights as a wife.

Question to Raja Hafiq: What are the consequences for a wife or husband who is declared "Nusyuz" by the Sharia court?

As I explained earlier, within the framework of the Family Law Act, Article 60 "The power of the Court to order alimony for the wife, and the effect of Nusyuz”, actually, this section relates to spousal maintenance, and the issue of Nusyuz is only briefly mentioned. It's important to note that only the court can assess whether someone is in a state of Nusyuz or not. First and foremost, it requires court approval, and in obtaining this approval, the court will examine the case. This includes actions such as a spouse distancing themselves from the partner, leaving the home, and other relevant factors. The court will also evaluate the efforts made by the husband, such as advising the wife or attending counseling. If the husband has made these efforts and the court still concludes that the wife is in a state of Nusyuz, the consequence is that the wife is no longer entitled to receive spousal maintenance. Other rights such as joint property and rights related to children, such as custody and child support, can still be obtained. Therefore, the consequence of Nusyuz is the loss of spousal maintenance from a legal perspective.

Up to now, the laws in Malaysia have not established a punishment for husbands in a state of Nusyuz. If we consider the law more broadly, the punishment for Nusyuz is somewhat impractical when it comes to husbands. This is because if a husband engages in actions like abandoning his wife, not providing maintenance, harming his wife, and similar behaviors, the appropriate remedies are not related to Nusyuz but rather to divorce or other legal grounds for dissolution.

Question to Fadhul Adnin: The law doesn't consider husbands' viewpoints and doesn't affect them directly. Do you think this might be why husbands sometimes find it simpler to avoid accusations of "Nusyuz" and find it easier to accuse their wives of being in a state of "Nusyuz"?

In my view, considering the situation in Malaysia, this often occurs due to several factors. First, the husbands perceive themselves as the authority and believe they have a veto power, an absolute control. These husbands frequently invoke the verse at Surah An-Nisa:34 which means that men are caretakers of women. However, the husbands often forget that the verse doesn't end there; The verse continue with responsibility issue, including aspects like financial support, clothing, housing, etc. This is one of the reasons why the term "Nusyuz" is misused by many husbands out there.

Second, because husbands believe they have a veto power, they tend to view their wives as being at fault and deserve to be punish. Furthermore, there's no intention on the part of the men or husbands to use the term "Nusyuz." When the word "Nusyuz" is uttered, it's often due to their failure to control their emotions. In conclusion, there's a lack of understanding about the meaning and implications of the term "Nusyuz" itself and the impact it brings about.

Question to Raja Hafiq: Previously, you mentioned that the provisions regarding "Nusyuz" are less relevant nowadays. Could you please explain further?

Regarding the issue of a wife's "Nusyuz," if a wife is labeled as such by the court, the rights she loses are limited to spousal maintenance, while her other rights remain intact. If a husband is labeled as "Nusyuz," what's more relevant for the wife to pursue or invoke are matters related to divorce, "Fasakh," or "Talak."

In the current situation, "Nusyuz" is often used arbitrarily by husbands without being held accountable to their wives. The impact of this law is not readily visible. For example, Section 121 states that "If a person is no longer living together with his wife according to the ways of Islamic law, the wife may apply to the Court for an order to restore conjugal rights."

Thus, no direct punishment is imposed. There are other instances, like in the Islamic Family Law of Selangor, Section 127, which states, "If a person who has been ordered by the Court to restore conjugal rights intentionally defaults or disobeys the order, then he commits an offense and shall be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both the fine and imprisonment."

In situations like these, the matter no longer falls under the jurisdiction of MAL (MAL is a claim filed by a client in the Sharia Court related to family and property issues against another party. MAL is a specific term, especially in the Sharia Courts in Malaysia. The term 'MAL' itself is a word in the Malay language. MAL describes a claim process). It needs to be referred to a more appropriate department, namely the "Syariah prosecution department." In Selangor, there is a "Syariah prosecution department." As explained earlier, this issue seems less relevant because the matter of "Nusyuz" is a practical one that should ideally be resolved outside of the court. Aspects covered under the term "Nusyuz" often involve moral considerations or if a wife doesn't heed her husband, the husband's role is to advise her, which doesn't require a court order, and vice versa.

This "Nusyuz" issue calls for changes in more up-to-date laws or corrective measures related to "Nusyuz." We should look into other provisions in the law that are more relevant, practical, and beneficial for wives. Especially when damage occurs in the husband-wife relationship, we need to find ways to address that damage, eliminating immoral behaviors. Such an approach is better and more practical than merely viewing the issue of "Nusyuz" solely from a legal standpoint.

Question to Fadhul Adnin: Earlier, Mr. Hazik mentioned reasons why Nusyuz applications should ideally be resolved outside the court. According to your opinion, how can conflicts within a husband-wife relationship be resolved without resorting to Nusyuz to punish their partners?

I wholeheartedly agree with what Mr. Hazik said earlier. It's wiser to implement the concept of "suluh," which is more focused on peace. Coming back to the question of how to strengthen the husband-wife relationship, in my view, to sustain happiness in marriage, both spouses need to shed their egos. The key term here is ego. We cannot ignore that ego is a natural trait for men. However, we must overcome our egos for the sake of shared happiness. What I suggest is that husbands and wives should reflect on themselves first before declaring or invoking the concept of Nusyuz. ask yourself what makes your partner feel Nusyuz or if it's actually you feeling that way. This is a moment for introspection. If a husband does something inappropriate, he should work on himself first, and the same goes for the wife.

In my opinion, a good and righteous husband won't simply accuse his wife as Nusyuz. Furthermore, as husband and wife, each has roles and responsibilities. Yet, as the head of the family, I believe the husband should start by setting a good example. Only then can we refer to verse 34 from Surah An-Nisa, "Men are protectors and maintainers of women". Here, leadership isn't about using veto power or absolute authority as a husband; it's about the responsibility of leadership. It's not only about leading but also protecting the wife. The essence is, after ensuring we're not in the wrong or after correcting our mistakes if any, when we notice something amiss in our partner, whether husband or wife, we should offer advice gently and kindly. For instance, in Surah An-Nisa, Allah states “ Treat them with kindness”. While this verse refers to husband, the principle applies vice versa. So, when there's disagreement, we should interact kindly and avoid blaming each other.

Blaming one another won't solve issues; in fact, it could worsen them and threaten the marriage. Allah SWT dislikes divorce, even though it's allowed; it's one of the things disliked by Allah. One way to strengthen the husband-wife relationship is by allowing each other to talk. There might be specific reasons why a wife or husband behaves in a certain way—perhaps work stress, lack of assistance at home, like household chores, cooking, and childcare. From there, we might perceive pressures, but if these aren't expressed to the partner, we won't know. Communication is crucial here, a two-way dialogue to maintain a stress-free atmosphere. Avoid using harsh words, blowing small issues out of proportion, bringing up old issues that have been forgiven, insulting each other, and refrain from expressing dissatisfaction on social media—these should remain private matters between spouses. In my view, that's inappropriate. We need patience and to try forgiving and compromising with one another.

*Suluh: Peace and reconciliation are among the fundamental tenets of Islam, which preaches the virtue of the conflict resolution method known as Suluh (‘Pacification’). This is mentioned in several verses of the Qur’an along with the importance of promoting reconciliation.

Question to Raja Hafiq: Why are Nusyuz cases often declared, and why does the Court emphasize the importance of presenting evidence in these Nusyuz cases?

When delving into the more specific topic, the application of the law in the court is similar to that in Sharia courts, where the process of gathering evidence for each claim becomes highly significant. If there's a lack of evidence presented by the plaintiff or if the evidence doesn't meet the requirements of the elements they aim to prove, it becomes challenging to substantiate each claim. This principle has been in Sharia jurisprudence for a long time, based on the Prophet's hadith: "AL-BAYYINAH = Evidence”. Evidence must come from the accusing party, i.e., the one making the claim. For example, if A accuses B of taking A's property, A must prove that the item is indeed theirs, while B, the accused, must prove that they didn't take it.

In Nusyuz cases, proving the claim of Nusyuz must be clear. For instance, when a husband wants to accuse Nusyuz—meaning the wife's behavior of staying away from him, leaving home without his permission, or refusing to move in with him—he needs strong evidence. This involves elements like timing, dates, and the specific actions themselves. If these elements can be proven, the wife still has suitable arguments or defenses. If she can prove these arguments, they can undermine the evidence presented by the husband.

For example, there's a case in Sharia court reported through the legal process. In the case of "Katijah vs. Ismail in 1981," the plaintiff filed for divorce because the husband had left the wife for 6 years. After their marriage, they lived together for 40 days at the wife's home. Later, the husband asked the wife to move to another house, but it didn't meet the requirements and was located near a factory. At the lower court level, the divorce application was denied, as the wife was deemed reluctant to follow the husband. At a higher court level, the application was denied again, this time because the wife was considered "Nusyuz" for not obeying the husband's request. However, this case was appealed to the competent institution, in 1981 there wasn't a higher court as we have today, it was then called "Jabatan Kuasa Rayuan" (Appeals Authority). The plaintiff appealed, and this institution ruled that the decision of the lower court was erroneous.

When the wife doesn't want to move with the husband, and her reason is that the intended place of residence is unsuitable, even if the husband accuses her of being unwilling to follow, if the wife can prove that there are valid reasons why she doesn't want to move with the husband, such behavior cannot be considered "Nusyuz."

Transcript by Nesya Tirtayana (Communication Officer at FNF Malaysia) based on #TanyaTelenisa Episode 1