Journal of Islamic Law Review, Vol. 10, No. 1, June 2014, pp. 203-236

* Civil Law Department, Ahmad Ibrahim Kulliyyah of Laws, International IslamicUniversity Malaysia, E-mail: ainulj@iium.edu.my

Protecting women’s rights to property is an important aspect in promotingsustainable development, an agenda being championed by governments bothat national and international level including the Non-governmentalorganisations (NGOs) throughout the world. This chapter seeks to set outthe development in Malaysia where the Adat Perpatih practices have beenincorporated into the Syariah Enactments to promote protection of propertyrights of women on divorce. The customary practice that is the focus of thischapter is the practice of dividing jointly acquired matrimonial property(harta sepencarian) during the subsistence of a marriage where the womenis assured her rightful share upon divorce or on the death of the spouse. Thiscase study is presented to provide a useful model for the Muslims and othersto develop their customary practices which may promote access to propertyrights for women to overcome the shortcomings in the legal system.

Adat Perpatih, matrilineal custom, jointly acquired matrimonialproperty, women’s property rights

Women’s economic empowerment is essential in promoting equalityand serves as a precondition for sustainable development and pro-poor growth. Women’s economic empowerment may be achieved bycreating equal access and control over economic resources andopportunities that may to a certain extent eliminate structural genderinequalities. Women’s access to land and property is central towomen’s economic empowerment, as land serves as a base for food

production and income generation, as collateral for credit and as ameans of holding savings for the future. Land is also a social assetthat is crucial for cultural identity, political power and participationin decision making. Women’s equal access to land is a human rightsissue. It also has other positive impact such as reducing domesticviolence.1 Agricultural production and food security also increasewhen women are granted tenure security.2

Jacobson and Sen noted, development policymakers have,historically, paid greater attention to women’s reproductive roles thanto their productive roles.3 This emphasis has tended to direct resourcesfor women in developing countries disproportionately into familyplanning instead of support for women’s economic or productiveroles or for environmental protection.4

There are various developments at the international level topromote access to women’s right to property.5 It is interesting to notethat many communities in the world do have various customarypractices that incorporate principles of rights to property for women.However, very often these customary principles are neglected ascustomary law is not subject to a legislative process. Thus, efforts toimprove women’s rights to land begin with interpretation of thecustomary law of the particular community that practices it. Women’saccess to land in customary law is important and can be developedto provide:6

– Support to women’s groups or organisations advocatinggender equality within customary systems,

– Support change agents such as religious leaders, both menand women, who question discriminatory norms. This canbe done through dialogue or by providing forum for thesechange agents to reach a larger audience.

– Promoting, through dialogue, women’s participation inbodies responsible for interpreting customary law.

It is clear that laws alone are not enough to secure women’s accessto land. The effectiveness of laws depends on awareness about them,the ability to invoke them, and the extent to which cultural normsand traditions are preferred, practiced and followed instead of formal

laws. Customary laws to a great extent are valuable resources thatneed to be tapped to help promote access to property rights forwomen.

This article sets out the evolution of the Adat Perpatih customarypractice to provide protection to women’s property rights in Malaysiawhere such customary practice is seamed into the Syariah law. AdatPerpatih that has been assimilated with Islamic law has great influenceon the socio-cultural, political and economic activities where disputesare resolved harmoniously in line with the Islamic principles.

The term adat refers to Malay customary rituals and regimes that arecharacterised by the influence of mutual and religious beliefs fromthe diverse ethnic groups in Malaysia. Adat is passed down from onegeneration to another as traditional practices. Adat also refers tounwritten traditional code regulating social, political and economicalas well as maritime laws. There are predominantly two types of adatpracticed by the Malay Muslim community which are Adat Perpatihand Adat Temenggong.

Adat Perpatih, is a matrilineal system, at present practiced by agroup of Malays from the state of Negeri Sembilan.7 The uniquenessof Adat Perpatih, is that women enjoy central position and privilegesin comparison to men. Inheritance, titles and family name are passeddown to the next generations through female lineage. Designationof such important areas which traditionally fall under the domain ofmen being the more superior of the two, to women has drawn critics.Understanding of the psyche of the Minangkabau community is thekey to the understanding of these customary practices and theirunderlying rationale. Many have failed to realize that the womenfolkin Minangkabau community shoulder the greater proportion of theresponsibilities of managing family land and tend to carry outintensive agricultural activities as men are expected to venture out oftheir homeland (merantau) in search of additional income and wealthfor the family.

Early observers interpreted these features of Negeri Sembilan’ssocial system as evidence of a “primitive matriarchy.”8 Various British

accounts containing valuable (but highly unsystematic) informationon the area appeared in the early 1800s.9 In subsequent decades manyessays were published on Negeri Sembilan’s early political historyand on numerous aspects of what came to be known as “customarylaw”.10 Since the 1950s there has been continued interest in NegeriSembilan’s political and legal institutions, in addition, and of greaterrelevance here, the 1950s witnessed the initial phase ofanthropological research in Negeri Sembilan and the earliestcontributions to a now voluminous corpus of ethnographic materialthat includes the writings of Josselin de Jong, Swift, Lewis, AbdulKahar bin Bador, A. Wahab Alwee, Nordin Selat, Khadijah HajiMuhamed, and Stivens. 11 The works of de Josselin de Jong, Swift,Lewis, and A.Wahab Alwee are among the best-known contributionsto the literature on Negeri Sembilan and are most pertinent to theresearch on adat Perpatih.

The following perbilangan or poetical stanza succinctly sets outthe exhalted position of women in Adat Perpatih.

A Decorated boxThe radiant pillar of ancestral homeThe center where the threads of the fish net meetSplendour in the villageDecoration in the StateThe position of women is exhalted in the adat perpatih

community and the men is required to protect womenfolk. Allmarried men were regarded by their immediate in-laws as outsiders,certainly at the beginning of their residence among them, but tosome extent throughout their settlement within the in-laws’compounds.12 These aspects of married men’s social and their legalstanding are claimed through their wives’. They are often referred asorang dagang, that is the males who have married into a particularcompound, lineage, or clan.

A summary overview of the relations of authority linking in-marrying males with their wives’ kin can be gleaned from numerouscustomary sayings or poetic stanzas (perbilangan) collected prior toand just after the turn of the century.13 One such perbilangan is looselytranslated as follows:

The married man must go, when he is bid,

And halt, when he is forbid.

When we receive a man as a bridegroom,

If he is strong he shall be our champion;

If a fool, he will be ordered about

To invite guests distant and collect guests near;

Clever, and we’ll invite his counsel;

Learned, and we’ll ask his prayers;

Rich, and we’ll use his gold.

If lame, he shall scare chicken;

If blind, he shall pound the mortar;

If deaf, he shall fire our salutes.

If you enter a byre, low;

If you enter a goat’s pen, bleat;

Follow the customs of your wife’s family.

When you tread the soil of a country and live beneath its sky,

Follow the customs of that country.

A bridegroom among his bride’s relations

Is like a cucumber among durian fruit:

If he rolls against them, he is hurt,

And he is hurt, if they roll against him.

Caldecott14

The matrilineal system provides distinct advantages for women. Theyenjoy high social status in the family and are heirs of the property,including land. Women are caretakers of land and family wealth.15

Women have played important roles in leadership as mothers,breadwinners, and keepers of their families and clans. The survivalof any tribe’s depends on her and her survival is dependant on theownership of land. Without land, she may not live in health andpeace, therefore, directly the outcome would be no tribes or race cansurvive and neither can they practice their customary rights.16

Although Islam may be known for its tendency to favor men,the Minangkabau are prized among anthropologists becauseownership of a family’s property be it the homes or paddy fields will

be passed down the female line. The idea that the senior woman ofthe household is depicted by the proverb, “the center where thethreads of the fish net meet” evokes the image of this woman as hostessto the many guests that flow into her house for the life cycleceremonies she and the women of her lineage organize. Because theceremonies are so public, sometimes with most of the villageattending, it is easy to see how through ceremonial activities womenknit the threads of the village social tapestry.  Women do this on aregular basis, not just in staging their own ceremonies but throughhelping one another. 17

When a man divorces his wife, the women from the Adat Perpatihcustom can continue living in the ancestral home and carry out thedomestic activities and responsibilities, sometimes taking on themasculine role of cutting trees, sewing and building houses in additionto caring for the elders and children and providing food. Women arethe key in the success in maintaining peace in the village or keepingthe family intact.18

The Adat Perpatih promotes and enhances the concept ofcustodian in the context of family law. Both in the Civil and Islamiclaw, it is the duty and obligation of the mother and her maternalfamily to assist in bringing up the children. The role of father andhis paternal family is to provide financial assistance. Therefore, bothAdat Perpatih and Islam emphasises the role of woman as daughter,wife and mother.

The personal tie to the mother is expressed in the proverb below  The emotional meaning of this tie is evident not just in this proverbbut in the many lamentations for the mother sung on the villagestage by female bards during the entertainment part of villageceremonies.  

“If my dear mother is at home

My worries are over.

When I am sad, she soothes my heart.

When I need her, she gives advice.

—Without her I am nothing.

With whom will I talk?

I feel so lost, I can only cry.

It is late, I must hurry home….Oh, Mother.

In accordance with Minangkabau adat, women for instance cannotbe installed as lineage head and bear the title of Datuk. Despite theimportant position of women in Minangkabau, there are limits”19

In Minangkabau custom, democracy is based on the proverb, “adatbersendi syarak, syarak bersendi kitabullah. This simply means thatthe customary practice is based on the Islamic religious principles.

For the choice of leaders there were clear standards in placeaccording to adat”. Thus, despite the women being accorded theright to inherit ancestral property, they are not installed as lineagehead and bear the title Datuk. Mother of the king becomes the advisorof the king as stipulated by custom and tradition.20 The kaba or tambo(legend) provides an understanding on the matrilineal systemoriginated in the conception that both women and men have equalrole. The kinship system describes that Minangkabau is greatlydemocratic and egalitarian in nature as each decision is made basedon deliberation and consensus where the final decision is on the handof woman (Bunda Kandung). She renders her sincere service to thecountry and establishes an integration of Minangkabau universe asone whole universe. Besides the king is a strong and wise womancalled Bundo Kanduang. She is an advisor, consultant aboutgovernment. There is no political decision without her approval.

Bundo Kanduang is described as a wise woman. In the tamboBundo Kanduan serves, it is narrated that woman are leaders withvery strong role in running the government machineries. As a woman,she demonstrates soothing atmosphere in some meetings not only aslimpapeh rumah nan gadang (the pillar of big and particular house).In Minangkabau clan the big family not only stay in a big houseunder leadership of the Bundo Kanduang, but she also has the sameposition as the man, so that her opinions are significantly consideredin policy making by the kingdom.21

Quotation from the following tambo tries to account for a rolethat Bundo Kanduang may carry out in making decision atPagarruyung kingdom level. Even though Bundo Kanduang serves as

the source of wisdom, but she doesn’t occupy any position in thepower hierarchy. In the term of modern management, she doesn’thave position in organizational structure, but she is determinant andcontroller of power. In modern management, she is an expert havingenormous influence in accomplishing the organizational goal, in thiscase, the state’s goal.22 Furthermore, Taufik Abdullah says that evenif Bundo Kanduang doesn’t possess formal power, but her approval isalways required and sought in confirming any decision.23

The tradition is based on the holy Koran as expressed in thefollowing proverb:

Custom is hinged on the Law

Law is hinged on the Kitab (Al Quran)

Religion prescribes

Custom practices

Religion requires evidence

Custom requires signage

Custom and religion is like bamboo with riverbank

Relying on and supporting each other

The Koran says men will be the leaders but this does not necessarymean that women are less important. The relationship betweenMinangkabau men and women is built upon shared power andauthority in ways that are immediately obvious, but the women mustbe given property to ensure they are able to sustain their livelihoodand their children.

It is often said that in a matrilineal society woman hold the upperhand. It is quite interesting to examine the roles of Minangkabauwomen in their society and family. The power of women, their rolesin the society and family and compatibility of their roles with valuesof Adat Perpatih are often questioned. Women are given severalprivileges compared to men. Minangkabau women in the past heldsupremacy in economic activities which centred around their

household.24 There are four areas where women had more influencecompared to men, inheritance of customary land, rule of residence,descent system and traditional political system. The subsequentparagraphs will show the relationship between these areas and theroles of Minangkabau women in their society and family.

Under the adat perpatih system, customary land is referred as ancestralland, tanah adat and Pusaka. In the past, ancestral lands were usedmainly for subsistence farming and each plot of land is rather small.Women play the role of custodians in the society. Customary landsare passed down the female line and on the contrary, men do notinherit any land. For example, mothers pass on the land to theirdaughters, with each receiving an equal share. The pattern ofinheritance can be seen clearly in Diagram 1. As illustrated in thediagram, in an event where “a family has no female heir, the landgoes to the wife’s nearest female kin”. Despite bearing responsibilityof the land, one does not have full ownership of land. A woman canonly sell her land when she is in dire need of money. However, onlysales within her clan are allowed. Other than land, women also inheritother harta pusaka such as family heirlooms, family houses, householdgoods and other valuables. Therefore, women assume the role ofcaretaker in the society as harta pusaka are entrusted in their care toensure the continuity of possession.

Women are given the authority to dictate the rule of residence sincethe adat perpatih practices matrilocal rule of residence. After marriage,the man moves from his birth place to his mother-in-law’s place. Asthey are removed from their birth place, they are unable to work intheir own family’s land. Therefore they are compelled to work ontheir wife’s land. Entrusting the customary land holdings under thewoman’s care means woman have control over means of production.25

Especially since the society was very dependent on the agriculturalsectors in the past. Hence, women also play the role of an ‘employer’in her family and society.

According to Swift,26 a man’s economic interests are very muchtied up with his place of residence and he must leave it immediatelyon divorce. This may well represent a considerable loss to him.Moreover, returning to his matrilineal kin will be unsatisfactory fora man who has been a ‘master in his own house’ as he is going to livein his sister’s house that is headed by his brother in-law. He may findthat his prolonged presence will be regarded as imposition ratherthan enjoyment of a legitimate privilege because the use andownership of the property has been vested in his sister. Therefore, itcan be concluded that the matrilineal system provides moreprotections to women in terms of property rights upon divorce andthis is significant in a strongly rooted peasant society.

Although the woman facilitates the man to work on her land, bothparties still contribute equally to generating income for the family.The woman is responsible for cooking and providing food while theman is responsible for providing nafkah. Nafkah is money acquiredby the man for his wife and children to use and this is obligatory.The cash provided must be sufficient to fulfil the basic familynecessities. Besides providing food, woman is also in-charge ofhousehold chores and fulfilling the needs of her family. A man neednot do anything at his mother-in-law’s home as he is treated as kingand not expected to help in the kitchen. He goes out in search ofwealth and reputation. Thus, the misconception that a womandominates the man in a marriage under the adat perpatih is incorrect.27

The women are given additional protection to help her maintain adecent lifestyle during the subsistence of the marriage and after divorce.

The adat principles confer on the womenfolk an absolute rightand duty to gain custody of children on divorce.28 Hence, the husbandis not liable to support the children with his divorced wife.29 Rationalebeing that on divorce of the parents, the children will definitely staywith the mother. Although for legal and religious purpose his statusas a father is irrevocable, he can only have the children stay with himoccasionally and this can be considered as good as lost custody.30 Onthe other hand, Taylor31 observed that with the influence of Islamic

principles on the questions of marriage and divorce, the claims formaintenance during iddah were made to the Court of Kadi. Althoughthe conventional rate fixed was small ($6 a month), this was notunreasonable when considered in conjunction with a system, whichvests so much of the property particularly the sawah (paddy field)and kampong (village) lands, in the women. Taylor’s manuscript setout that post-divorce financial claim for support, such as mut’ah andarrears of maintenance could not be traced in the society of adatperpatih, since the Islamic law was administered mainly by the kadiwhose jurisdiction had been strictly limited to the questions ofmarriage, divorce, and alimony.32 Nevertheless, it can safely beconcluded that with the influence of Islam, Hukum Sharak shouldhad been made applicable to family affairs except in matters wherethe adat strongly prevailed.

In Malaysia, practically in Syariah court, when granting a decree ofdivorce or judicial separation, the Court has the power to order thedivision of matrimonial property between the parties or to sell suchproperty and then divide the proceeds of the sale between the parties.In making such an order, the Court will consider the extent ofcontribution made by each party whether in the form of money,property or effort towards the acquisition of the assets, the debtsincurred by either party for the benefit of both parties and the needsof the minor children. Where such property is acquired by the soleeffort of one party only, the Court shall consider the extent ofcontribution made by the passive party to the welfare of the family,looking after and caring for the family and the needs of the minorchildren.33 Subject to these considerations, the Court may divide theassets of the proceeds of sale. The Court will generally award theparty who has acquired the property, a bigger share. The Court hasalso powers to deal with properties, which are disposed with theintention of reducing a person’s means to pay maintenance or ofdepriving the other party of the rights to the properties.34

Procedurally, if the disposition is still pending, the aggrieved partymay apply to the Court for an injunction to prevent the disposition.The application can be made when any matrimonial proceeding ispending, an order for the division of assets (jointly acquired duringthe marriage) has been made but not complied with and an order forthe maintenance of a wife or former wife or child has been granted.

The evolution of harta sepencarian from a Malay customarypractice to a Syariah rule incorporated into the state Islamic familylaw enactment strengthened the rights of the women. A claim forharta sepencarian can be brought by a Muslim on divorce duringlifetime or widowhood upon death of spouse. In short, we mayconclude that harta sepencarian provides fair legal distribution ofproperty which is acquired during the existence of marriage betweenhusband and wife.35

Harta sepencarian is a distinct Malay adat that evolved from theMinangkabau custom rather than property inheritance and divisionas prescribed by Islamic law. Malay custom and Islamic law wasalready evolving harmoniously with the institution of the colonialrule. Malay law was considered a living law, and, “being a living lawat certain time in a certain place, adat is elastic and adaptable tosocial needs”.36

On an everyday basis, the above sets of laws were applied wasselectively but was also rationally-dependent on many factors.Minangkabau social structure was based on a tribal identity relatedto land control, bilateral family units and the fusion of territorialwith maternal genealogical ties. At the centre of this arrangementwas the ownership of tribal land vested in the matrilineal rather thanthe patrilineal line.

Closely connected with the norms of female trusteeship overtribal lands, was also the notion of the harta sepencarian, looselytranslated as jointly acquired matrimonial property. This conceptworks on the basis that property acquired during the marriage andcan be ascertained that the property, particularly land was acquiredor opened-up through the joint efforts of the married couple then itcan be considered as harta sepencarian and can be claimed by oneparty upon divorce or widowhood.

Under the colonial governance, the decision to recognize hartasepencarian was first made by the Kathi of Larut at the Perak StateCouncil Meeting in 1907 and then later by the Committee of Kathisin Pahang, 1930.37 The idea that property jointly-owned by marriedcouples can be divided at the point of divorce first came up in formallitigation in 1884, when the case of Tijah v Mat Ali was heard in thecourt of Province Wellesley (part of the Prince of Wales of Island orPenang).38 In this case, the colonial court ruled that Tijah theapplicant, was not entitled to joint earnings, since Province Wellesleywas governed by English law, which did not have any provision forsuch a property division. In 1919, a divorced woman in Peraksucceeded in getting a third of the landed property acquired jointlyduring her marriage. The court consulted Raja Chulan of Perak, whoadvised that eligibility of claim would not be based on other factorsthan proof of work done on the land. Even though the divorce wasbrought on because of the wife’s alleged adultery, this did not affecther claims to the land or the harta sepencarian.39

In the case of Sohor of Suku Batu Hampar, Negri Semibilan 1907,adultery of a wife said to be not a reason for denying harta sepencarianat the point of divorce.40 In 1925 in Wan Malaton v Hj. Abdul Samad,the court awarded half share to the wife even though it was the wifewho had asked for the divorce by redemption or tebus talak, despitehaving to return her dowry or mas kahwin.41

It is interesting to note that harta sepencarian was not justconfined to cases involving divorce settlement, but extended to claimsupon death of a spouse.42 A widow or a divorcee was entitled toobtain from one-third up to half of all jointly-property acquiredduring marriage. The principle used was labour and its contributionto converting the land from a static to a livable, productive resource.Hence, more than anything else, being Malay at that time whetherin the ethnic or from the gender perspective was that the identity istied to land tenure, especially in the state of Negeri Sembilan.43

The customary law of sharing jointly acquired property asdecided in the above cases is not available under Islamic law. However,it is accepted as a source of law under Syariah in that it constitutes acustomary practice or ‘urf (in Arabic).44 Colonial officials relied on

authoritative Shafie texts such as the Minhaj et Talibin45 as well as onprecedents by Indian-Muslim judges such as Justice Amir Ali andJustice Tyabji to decide on local disputations, but occasionally findingthat what was practiced locally such as distribution of hartasepencarian could not be found in these sources.

The Islamic law of inheritance or the hukum faraid contains rulesthat are rather different from the adat when it concerns the femaleinheritance. Hukum faraid does not recognize division of propertybased on the principle of harta sepencarian or the equal division ofestate between male and female heirs. There was pressure from theterritorial chiefs that all property classified as property earned (hartacharian), as distinguished from ancestral property (harta pusaka) mustbe devolved according to Hukum Syarak.46 Over time, the rule ofcustomary land inheritance eventually supplanted the Hukum Syarak,which also coincided with the decline of the Malay matrilineal familytradition.

Adat law on marital property was distinguished from HukumSyarak, since there was no convergence between Malay and Islamlaw then, and it was not considered a deviation either. Divorcedwomen were able to depend on claims from harta sepencarian to makeout their living outside of marriage, thus making the institution of thefamily less dependent upon the presence of males within the household.In the Minangkabau situation, the care of children was the responsibilityof clan members as a whole rather than something which fell squarelyon the shoulders of the father-mother parental unit.

This can be evidenced by the nature of litigations involvingmarriage between the early 1900s and late 1930s, which were usuallycentered around property division rather than applications formaintenance or nafkah from men. Under these circumstances, theharta sepencarian was keenly contested in divorce settlements, as itwas women’s insurance against failed marriages and widowhood.47

Nevertheless, although family litigations during the colonial erarecognized the validity of harta sepencarian, this notion of rights wasnot codified until after the colonial period. Perhaps this was due tothe grey area which harta sepencarian occupied, as it was neitherIslamic nor something that could be codified under the common

law. Hence, the way around this issue was for the courts to seek theadvice of Malay rulers or religious authority whenever disputes aroundthis arose. It was only in the comprehensive enactment for the“administration of Muslim law” adopted in almost all states, startingfrom 1952 in the state of Selangor that a legal definition for hartasepencarian found its way into the statute books. It was considered‘Malay custom’ rather than Islamic. But through the years, hartasepencarian had become so embedded with Malay-Islamic norms thatit survived as a significant legal concept.

In fact, the adat perpatih custom was incorporated as hartasepencarian under the State Syariah Enactment. For example the PerakAdministration of Muslim Law Enactment 1965 defines ‘Malay custom’as being “part of the ‘Adat’ (usage) …and at present in force in theState known as “Harta Sa-pencarian” and “Belanja Hangus”.48 Thedefinition of harta sepencarian is spelt out as “the earning of theproperty acquired as the result of joint labour of husband and wifeand includes the income derived from capital which is itself the resultof joint labour.” The concept of Harta sepencarian remained animportant component of the Syariah law.

Given that all laws for Muslims were still governed by separatestate governments, there was little power for the federal authority tointervene in Islamic matters. Islamic law at this time was stilldecentralized in scope and feature. In this decentralized phase thecharacteristics of Islamic law was one of diversity and plurality andthe central government had little authority over Islam within thedifferent states. Matters of marriage, divorce, custody andmaintenance were inserted under only a number of sections withinthe general law meant for Muslims. Legislation such as theAdministration of Muslim Family Law (Penang) Enactment 1959 hadonly 25 sections for marriage and divorce matters out of a total of172 sections in it. In these early years each state in Malaysia had itsown set of Islamic Family laws (contents of which could often differfrom one state to the other) while their Syariah courts wereadministered independently of federal intervention as religiousmatters are placed under the exclusive jurisdiction of the StateAuthority pursuant to the Federal Constitution.49

In this period Syariah was constructed within the ambit ofEnglish statute law. What is meant by Islamic law was a combinationof laws which included customs as well as modern ideas of progress.50

In effect, when family law was being instituted a form of masculinistprotective ideology influenced and later defined the character of thisearly Syariah family law.51 Nevertheless, the evolution of Syariah inMalaysia took a different path from other nation-states of sizeableMuslim populations.52

It is interesting to note that the Malay Muslims in Malaysia werefortunate compared to the global Muslim community as, “theIslamization of law proceeded more methodically” and that “in thespan of a decade, dozens of new statutes and judicial decisions haveclarified, expanded, and reformulated the law applicable toMuslims.”53 The rise of Islamic consciousness and politicization sawthe harmonization of various adat laws with the Quranic injunctionsand benefitted the Malays.

Harta Sepencarian, for example was consistently proclaimed bykadi and ulamas to be in consonant with Hukum Syarak, even thoughthis tradition was not present in other Muslim societies outside ofthe Malay world. By the 1980s, after laws for Muslims (a bulk ofwhich dealt with family matters) were rationalized and unified toconstitute a single body of personal laws, the focus of attentionnaturally revolved around the Muslim family.54

Harta sepencarian or jointly acquired property is the asset ofboth parties acquired during marriage and also includes the propertyowned by one party before the marriage, but to which there has beensubstantial improvements made by the other party or by joint effortduring marriage. Harta sepencarian is also defined as the earnings orthe property acquired as a result of joint labour of the spouses aftermarriage and include the income derived from the capital investedby the spouses.55 Harta sepencarian was recognized under Islamiclaw based on the Syariah principle and it can be found in Al-Ummwhere Imam Syafii wrote that when a dispute occurs between manand a woman in regard to articles or household furniture in theirhousehold as a result of their divorce or even though not separatedor both husband and wife die or one of them dies and in the situation

where both husband and wife die or one of the two of them dies adispute arises among the heirs on one of the two sides the methodfor resolution in all cases are the same.56

In Roberts v. Umi Kalthom,57 Raja Azlan Shah J. (as he then was)after considering some earlier cases said that principled gleaned fromthe cases established that harta sepencarian is a matter of Malay adatand is applicable only to the case of a divorced spouse during his orher lifetime; this rule of law is local law which the court must takejudicial notice and it is the duty of the court to propound it.

As orders for harta sepencarian can be made in the Kathis’ courts,it seems that this custom has been absorbed as principle of IslamicLaw. The Kathis in Malaysia in giving their decisions have referredto the classical texts such as Ianat-Talibin, Kitab Al-Bajuri and Bulughul-Maram.58 The Ianat-Talibin stated that “If husband and wifedispute regarding the property in the house whether the dispute arisesafter divorce or before and they have no witnesses to support theirclaims so that the Court is unable to decide between them on theevidence, each of them should take oath and the property will thenbe divided equally between them.”59

Kitab al-Bajuri stated that “If the two parties dispute about aproperty in the possession of one of them the matter will be decidedby the oath of the person in possession but if the property is in thepossession of both of them, both of them should take oath and theproperty will be divided equally between them. This applies whetherthe property is a carpet which is sat upon or a camel that is ridden ora house that is occupied.”60

Abi Ishak Ibrahim al-Shirazi’s Al-Muhazzab stated that, if bothof them claim the property in the house or the house which theyoccupy but neither of them has witnesses to prove the claim, both ofthem should take oath and the property will be divided equallybetween them. The Syariah Court appears to have applied thedoctrine of musha’ and this was also the case in Zainuddin v. Anita,61

where the Shariah Board of Appeal laid down the principles thatwhere husband and wife have contributed to an asset or propertyand their contribution cannot be quantified and there is a disputebetween them, then:62

• if there is enough evidence to show what is the contributionof the plaintiff, then the product of that contribution willgo to him.

• if there is not enough evidence to show the contributions ofeach of the parties, they will be asked to take oath. If theytake oath then the property will be divided equally betweenthem. If both of them refuse to take the oath the propertywill still be divided equally between them. If one of themrefuses to take the oath, then the property will go to theperson who has taken oath. If one or both of the partieshave dies, the oath will be taken by the heirs of the deceasesif they make a claim.

• if there is a custom dealing with the case where one of theparties has contributed more than the other then the agreeddivision will follow the custom. If there is no agreement thedivision will be as stated in (1) and (2) above.”

In practice where the Kathis have to deal with claim for hartasepencarian the cases will be decided on the agreement of the parties,based on the Malay custom. The reason is that the law relating toharta sepencarian is a law for the time being in force relating tocustomary tenure. In this respect the courts appear to have recognizedthe Malay custom affecting the tenure of land as being exemptedfrom the provisions of the Land Codes.63

It is important to note that the jurisdiction of Syariah courtsto grant orders relating to harta sepencarian is provided under theIslamic law administration enactments of the State. For examplein section 63(1)(b)(iv) of Selangor Enactment states that a SyariahHigh Court shall in its civil jurisdiction determine all actions andproceedings in which all the parties are Muslim and which relateto the division of and clams to harta sepencarian. The Syariah courtalso has power to order the division of any assets acquired by themduring their marriage by their joint efforts, or the sale of any assetsand the division between the parties of the proceed sale whenpermitting the pronouncement of talaq or when making an orderof divorce.64 A claim for harta sepencarian can be made when the

parties divorce. Interestingly, the application can also be made whena husband makes an application to practice polygamy to assist thewomen to retain her share before it dissipates.65 The application isalso extended to the woman or man on the death of the spousebesides the faraid system.66

In Malaysia, practically in the Syariah court, when granting adecree of divorce or judicial separation, the Court has the powerto order one of the followings, to divide matrimonial propertybetween the parties; or to sell such property and then divide theproceeds of the sale between the parties. In making such an order,the Court will consider the extent of the contribution made byeach party whether in the form of money, property or work towardsthe acquisition of the assets, the debts incurred by either party forthe benefit of both parties, and the needs of the minor children. Inthe case of Nor Bee v Ahmad Shanusi,67 the Chief Kadhi of PulauPinang, decided that harta sepencarian is recognized under hukumSyarak based on the principles of life sharing and services providedby the wife.

Where such property is acquired by the sole effort of one partyonly, the Court shall consider the extent of the contribution madeby the other party who did not acquire the property, to the welfareof the family, looking after and caring for the family and the needsof the minor children.68 Subject to these considerations, the Courtmay divide the assets or the proceeds of sale of the assets. The Courtwill generally award the party who acquired the property a biggershare. The Court has powers to deal with properties which aredisposed off with the intention of reducing a person’s means to paymaintenance or of depriving the other party of the rights to theproperties.69 Procedurally, if the disposition of any asset is stillpending, the aggrieved party may apply to the Court for an injunctionto prevent such disposition. The application can be made when anymatrimonial proceeding is pending, an order for the division of assets(jointly acquired during the marriage) has been made but notcomplied with and an order for the maintenance of a wife or formerwife or child has been granted.70

The evolution of harta sepencarian, from a Malay Adat rule to a ruleof law of the Syariah is a good example how adat rules were accepted,adapted and conferred legal recognition to rights of Malay womento land. One of the important qawa’id fiqhiyyah or legal maxim inIslam is Article 35 where it was stated that ‘Custom is Arbitrary’ or‘Custom is authoritative’ or ‘Custom is the basis of judgement’.Custom has been an important source of reference in Islamic lawwhere practices of the people whether in their actions or sayings,regardless of whether they are the general practices of the people orpractices of certain group of people are adopted and accepted.71

Whenever there is a lacuna in the law, jurists has fall back to customto solve issues, especially on fiqh.

The origin of the maxim is from the Al-Quran, Surah al-A’raf:199,which reads, ‘Keep to forgiveness enjoin ‘urf and turn away from theignorant.’ Jurists have interpreted the meaning of ‘urf in the aboveverse as synonymous with ma’ruf which means that is good. Therefore,what is good in the custom shall be accepted and adopted by Islam.It is also from the statement of the Companion, Abdullah ibn Mas‘ud,that “what the Muslims deem to be good is good in the eyes of God”.

According to Hashim Kamali, the court when adjudicating adispute is authorised to base its judgement on custom in mattersthat are not regulated by the text, provided that the custom at issueis predominant among people and is not in conflict with the principlesof the Shari‘ah.72 It is almost universally accepted by the Muslimjurists that the original rule in transaction is permissibility (alasl fial-mu‘amalat al-ibahah)73 unless there is clear specific rule prohibitingsuch transaction.

The old adage “Adat is based on Islam, Islam is based on theholy Koran” is the rhetorical umbrella to bring the two together andlegitimise the continued application of adat principles by the MalayMuslims. Almost all Malaysian Malays are Muslims74 and Islam isthe official religion enshrined in the Federal Constitution and therespective States’ Constitution. Tracing back in history, during theBritish colonialism, British colonials were faced with difficulties in

defining the term ‘Malay’.75 They were also aware that the Malays inthe Federated Malay States were all Muslims and strongly resisted tobe converted to other religions.76

The evolution of harta sepencarian rule to assist women in seekingto secure their property rights is something that is laudable. TheMalay adat and Islamic law evolved and the Malay Muslims wereseeking to harmonise the adat pas a syncretic, plural tradition, assoon as colonial rule was instituted. Malay law was considered a livinglaw, and, “being a living law at certain time in a certain place, adat iselastic and adaptable to social needs”.77 It was an amalgamation ofseveral elements of ‘living laws’, namely the Adat Perpateh, AdatTemenggong, Indian (Hindu) laws as well as Hukum Syarak (Shara’).78

Recognition of harta sepencarian began from the time of thecolonialists as evidenced by the decision of the Kadi of Larut at thePerak State Council Meeting in 1907 and then later by the Committeeof Kathis in Pahang, 1930.79

The customary law demonstrated in the cases discussed is notthough not derived from Islamic principles, yet was accepted as asecondary source of Syariah in that it constitutes a customary practiceor ‘urf (in Arabic).80 Description of inheritance norms among Malaysof the past also showed a deviation from Islamic rules applied today– for example, in late nineteenth century Perak, it was noted that,“plantations, houses and padi fields go to daughters…cattle, buffaloes,goats, elephants are divided into four shares, three to go to sons andone fourth is devoted to the cost of the funeral feasts…if there is noland or house, the daughters share in the personal property equallywith the sons”.81 This was because the significant social unit was thetribe, rather than the nucleated family.82 Colonial officials relied onauthoritative Shafie texts such as the Minhaj et Talibin83 as well as onprecedents by Indian-Muslim judges such as Justice Amir Ali andJustice Tyabji to decide on local disputations, but occasionally findingthat what was practiced locally such as distribution of hartasepencarian could not be found in these sources.

Adat law on marital property was distinguished from HukumSyarak, since there was no harmonization between Malay and Islamiclaw then, and it was not considered a deviation either. There were

other differences too, such as marital rights. The Minangkabau familywas designed for tribal preservation and well-being, makingmonogamy a rule while in-marriage among members of the sametribe was punishable by death in places such as Rembau, NegriSembilan.84 Divorced women were able to depend on claims fromharta sepencarian to make out their living, thus making the institutionof the family less dependent upon the presence of males within thehousehold. In the Minangkabau custom, the care of children wasthe responsibility of clan members as a whole rather than somethingwhich fell squarely on the shoulders of the father-mother parentalunit.85

This can be evidenced by the nature of litigations involvingmarital disputes between the early 1900s and late 1930s, which wereusually centered around property division rather than applicationsfor maintenance or nafkah from men. Under these circumstances,the harta sepencarian was keenly contested in divorce settlements, asit was women’s insurance against failed marriages and widowhood.Nevertheless, although family litigations during the colonial erarecognized the validity of harta sepencarian, this notion of rights wasnot codified until after the colonial period. Perhaps this was due tothe grey area which harta sepencarian occupied, as it was neitherIslamic nor something that could be codified under the commonlaw. Hence, the way around this issue was for the courts to seek theadvice of Malay rulers or religious authority whenever disputes aroundthis arose.

It was only in the comprehensive enactment for the“administration of Muslim law” adopted in almost all states, startingfrom 1952 in the state of Selangor that a legal definition for hartasepencarian found its way into the statute books. It was considered‘Malay custom’ rather than Islamic. But through the years, hartasepencarian had become so embedded with Malay-Islamic norms thatit survived as a significant legacy of Malay legal tradition. In fact,what was left of Malay custom within Malaysian Islamic law wasreduced to that of the harta sepencarian. For example the PerakAdministration of Muslim Law Enactment 1965 defines ‘Malay custom’as being “part of the ‘Adat’ (usage) …and at present in force in the

State known as “Harta Sapencarian” and “Belanja Hangus”.86 Thedefinition of harta sepencarian is spelled out as “the earning of theproperty acquired as the result of joint labour of husband and wifeand includes the income derived from capital which is itself the resultof joint labour.” To this day, harta sepencarian has remained as animportant component of Syariah law, and even influencing civilcases.87

In conclusion both Adat Perpatih and Islamic sources placeconsiderable emphasis on compassion, loyalty, values of life andconsensual agreement in all matters affecting members of a societyin particular the women. It compliments each other. However, byvirtue of the British colonialists interpretation and modification hasled the practices to be branded as not Syariah compliance by theMuslim ulamaks. The aspects of Adat that is not compatible andgoes against the teachings of Islam can be modified. Furthermore,adat itself permits and encourages changes to accommodate thechanging needs of the community in tandem with the socio-economicdevelopment of the country where they are living provided thechanges are beneficial. This is clearly set out in the poetical stanza(pepatah-petitih/perbilangan):

“Ibu adat muafakat,

Adat menimbulkan yang baik,

Menghilang yang buruk;

Bulat air kerana pembetung,

Bulat manusia kerana muafakat

Hilang adat kerana muafakat”

Adat only keeps the best and throws away what is bad. Adat does notrestrict the people. Instead, it acts as a filter. As it is not a staticsystem, it will undergo changes in order to adapt to the changesaround the world. It would be a useful exercise for the Muslims allover the world to identify customary practices that could helppromote and preserve women’s access and right to property. Theevolution of the adat perpatih customary practice to help the divorced

or widowed women to acquire a share from the jointly acquiredproperty to help the women to continue to enjoy a decent living forthemselves and their children.

Independent title would permit women much greater autonomyand enhance their choices—to make their own decisions about landuse priorities, to control output, to escape marital conflict, and tohave secure access to a means of earning a living in case of maritalbreak up or of a spouse’s death.88 In effect, recognition of women’s“independent” right to land would enhance their security. Womencould also obtain such independent rights within community-basedsystems where “use” predominates over titles.

In the state of Negeri Sembilan in Malaysia, Stivens89 said severalof the largest landholders were women. Extensive landholding bywomen is, however, quite uncommon; it is generally limited to thefew communities that have matrilineal inheritance patterns or thatcombine matrilineage with matrilocality, which is even moreinfrequent. Moreover, even in matrilineal and matrilocalcommunities, women do not actually own land.90 Such lands areheld communally, rights devolve from mother to daughter, andindividuals have the right to alienate property and dispose of it onlyin special circumstances.91

It is important to note, however, that women have not alwayspassively accepted their lack of land rights. Nor have they let theirinferior economic, political, and social status deter them fromexpressing their discontent and demanding their rights. At varioustimes, they have taken collective action to demand land rights. InMalaysia in the 1950s, when fundamentalist Muslims challenged thematrilineal descent system of the community in Adat Perpatihcommunity in Rembau, a district in Negeri Sembilan, the womendemanded the clan chiefs and their husbands defend their landrights.92 Hence, the practice is preserved and reinforced as law underthe Syariah Enactments of all the States. The Malaysian model canprovide a useful example to other Muslim countries to assure women’saccess to land and property rights that must not be taken lightly aswomen assumes a predominant role in nurturing and educating thenext generation.

1. Swedish International Development Cooperation Agency (SIDA),Quick Guide to What and How: Increasing women’s access to land,Women’s Economic Empowerment Series; Refer also USAID, 2006,Study on Women and Property Rights – Best Practices.

2. Ibid

3. Ibid

4. Jacobson, Jodi L. 1992. Gender Bias: Roadblock to SustainableDevelopment. Worldwatch paper 110. Washington D.C.:WorldwatchInstitute; Sen, Gita. 1992. Women, poverty and population: Issues forthe concerned environmentalist. Cambridge, Mass.: Center forPopulation and Development Studies, Harvard University. Processed;Jazairy, Idriss, Mohiuddin Alamgir, and Theresa Panuccio. 1992. TheState of World Rural Poverty:An Inquiry Into Its Causes and Consequences.New York, N.Y.: New York University Press for the International Fundfor Agricultural Development (IFAD).

5. Universal Declaration of Human Rights (1948); Beijing Platform forAction, paragraphs 165 (e), 166 (c); UN Convention on theElimination of All Forms of Discrimination against Women, Article16 (1) (h). 14 (2) (g); Economic and Social Council Commission onthe Status of Women Resolution 42/1, Human Rights and land rightsdiscrimination; Commission on Human Rights Resolution 2003/22;Universal Declaration of Human Rights. Art. 25; Convention onEconomic, Social and Cultural Rights Art.11; Habitat II Conference,Istanbul 1996 Preamble; Istanbul Declaration on Human Settlements(esp. Par.7)III Commitments D. Gender equality (1): : “providing legalsecurity of tenure and equal access to land to all people, includingwomen (…) and undertaking (…) reforms to give women full andequal access to economic resources, including the right to inheritanceand to ownership of land”; Rome Declaration on World Food Security(1996). World Food Summit. Specifically lists commitments in regardto land rights and equitable gender relations; “African Charter onHuman and Peoples’ Rights” (1986); Commits to non-discriminationagainst women, while acknowledging the right of local communitiesto follow customary rules and norms; The United Nations Commissionon Human Rights Resolution 2002/49.

6. SIDA, op cit note 4.

7. The most recent and comprehensive account on the social history ofthe Adat Perpatih in Negeri Sembilan is the contribution by NorhalimHaji Ibrahim, Negeri Yang Sembilan. Shah Alam: Fajar Bakti, 1995.For anthropological accounts on the practice of Adat Perpatih see, M.G.Swift, Malay Peasant Society In Jelebu, London: Athlone Press, 1965,and the two volumes of M.G. Peletz’s. A Share of the Harvest: Kinship,Property, and Social History Among the Malays of Rembau, Berkeley:University of California Press, 1988 and Reason and Passion:Representations of Gender in a Malay Society, Berkeley: University ofCalifornia Press, 1996. See, J.M. Gullick, A History of Negeri Sembilan,Kuala Lumpur: Malaysian Branch of the Asiatic Society, 2003.

8. Peletz, Michael Gates. A Share of the Harvest: Kinship, Property andSocial History Among the Malays of Rembau. Berkeley:  University ofCalifornia Press, c1988 1988. http://ark.cdlib.org/ark:/13030/ft6m3nb481/ Peletz, Michael G. 1981. Social History and Evolution inthe Interrelationship of Adat and Islam in Rembau, Negeri Sembilan .Research Notes and Discussions Paper, no. 27. Singapore: Institute ofSoutheast Asian Studies.

9. Anderson, John. 1962. Political and Commercial Considerations Relativeto the Malayan Peninsula and the British Settlements in the Straits ofMalacca . Reprint. In Journal of the Royal Asiatic Society, Malayan Branch35(4). Nordin Selat. 1976. Sistem Sosial Adat Perpatih . Kuala Lumpur:Utusan Melayu Berhad.

10. Winstedt, Richard. 1920. “Family Relationships in Negri Sembilan.”Journal of the Federated Malay States Museum 9 : 111–114; Winstedt,Richard, and P. E. de Josselin de Jong. 1954. “A Digest of CustomaryLaw from Sungai Ujong.” Journal of the Royal Asiatic Society, MalayanBranch 27(3): 1–71.

11. de Josselin de Jong, P. E. 1951. Minangkabau and Negri Sembilan: Socio-Political Structure in Indonesia . Leiden: Ijdo; de Josselin. [1956] 1977.“The Participants’ View of Their Culture.” In Structural Anthropologyin the Netherlands , edited by P. E. de Josselin de Jong, 233–252. TheHague: Martinus Nijhoff, 1977. (Originally published as “De visieder participanten op hun cultuur.”) P.E. de Josselin de Jong.1960. “IslamVersus Adat in Negri Sembilan (Malaya).” Bijdragen tot de Taal-, Land-, en Volkenkunde 116 : 158–203; Abdul Kahar bin Bador. 1963.“Kinship and Marriage Among the Negri Sembilan Malays.” Master’sthesis, University of London; Abdullah bin Abdul Kadir. [1849] 1970.The Hikayat Abdullah . Translated by A. H. Hill. Reprint. Kuala

Lumpur: Oxford University Press; Abdul Rahman bin HajiMohammad. 1964. Dasar-Dasar Adat Perpateh . Kuala Lumpur: PustakaAntara; Abdul Samad Idris. 1968. Negeri Sembilan dan Sejarahnya .Kuala Lumpur: Utusan Melayu Berhad; A. Wahab Alwee. 1967.Rembau: A Study in Integration and Conflict in Negri Sembilan, Malaya. Centre for Asian Studies, Working Papers in Asian Studies, no. 1.Nedlands: University of Western Australia; Khadijah binte HajiMuhamed. 1978. “Migration and the Matrilineal System of NegeriSembilan, Malaysia.” Ph.D. diss., University of Pittsburgh.

12. Parr, C.W.C., and W. H. Mackray. 1910. “Rembau, One of the NineStates: Its History, Constitution, and Customs.” Journal of the RoyalAsiatic Society, Straits Branch 56 : 1–157.pp. 87, 116–117.

13. Azizah Kassim, “Women in Adat Perpateh Society”. In Nellie S.L. Tan– Wong dan Vippin Patel (ed.), Adat Perpateh: A Matrilineal System inNegeri Sembila. Kuala Lumpur: Winstrac Sdn. Bhd., 1992: 27-36.

14. Caldecott, A (1912). “Jelebu – Its History and Constitution” Papers onMalay Subjects, second series, Kuala Lumpur: Government Press. Pp.36-37.

15. Refer scholarly articles such as Peletz, Michael G. Reason and Passion:Representations of Gender in a Malay Society. Berkeley: University ofCalifornia Press, c1996. http://ark.cdlib.org/ark:/13030/ft4r29p0jz/ ;Zaki, P.H., Mohd Zaki Hamzah, Mohd Hasmadi Ismail, KhairilWahidin Awang & Hazandy Abdul Hamid. (2010). Malay CustomaryTenure and Conflict on Implementation of Colonial Land Law inPeninsular Malaysia. Journal of Law and Conflict Resolution, 2(2), 33-45; Nellie Tan & Patel, V. (1992). Adat Perpatih: The Matrilineal Systemin Negeri Sembilan, Malaysia and other Matrilineal Kinships SystemsThroughout the World. Kuala Lumpur: Wintrac Sdn. Bhd.Caldecott, A(1912). “Jelebu – Its History and Constitution” Papers on Malay Subjects,second series, Kuala Lumpur: Government Press. Pp. 36-37; Sueo,Kuwahara, (1998) A Study of a Matrilineal Village in Negeri Sembilan,Malaysia, SENRI ETHNOLOGICAL STUDIES 48; Stivens M, Thefate of women’s land rights: gender, matriliny, and capitalism inRembau, Negeri Sembilan, Malaysia, in Women, work and ideology inthe Third World, edited by Haleh Afshar. London, England, TavistockPublications, 1985. 3-36; Azizah Kassim 1970 Kedudukan Wanita didalam Masyarakat Adat Perpatih di Negeri Sembilan. M.A. Thesis,University of Malaya; Azizah Kassim, 1974 Kedudukan Wanita di

dalam Masyarakat Adat Perpatih dalam Abad Kedua Puluh. Manusiadan Masharakat (Universiti Malaya):69-7; Azizah Kassim, 1988Women, Land and Gender Relations in Negeri Sembilan: SomePreliminary Findings. SoutheastAsian Studies 26(2):132-149; Hooker,M.B.1970 Readings in Malay Adat Law. Singapore: SingaporeUniversity Press; Ibrahim.

16. ibid.

17. Nurhalim Hj. Social Structure And Organization Of Negeri SembilanMalays. In Tan-Wong, Nellie S.L., Adat Perpatih: A Matrilineal SystemOn Negeri Sembilan, Malaysia And Other Matrilineal Kinship SystemThroughout The World, 44-58. Kuala Lumpur: Wintrac Sdn Bhd., 1992.

18. Zaleha Kamarudin, 2003, “Hukum Harta Sepencarian dari SudutPandangan Wanita Peneroka Felda: Satu Laporan Kajian Awal”, dalamTajul Arus Ahmad Bustami dan lain-lain, Harta Sepencarian, ProsidingEx-Parte dan Perintah Injunksi, Pusat Undang-undang, KulliyyahUndang-undang Ahmad Ibrahim, Universiti islam AntarabangsaMalaysia: Selangor, m.s 76-99.

19. Abdullah, T.1985, Islam, History, and Social Change in Minangkabau.In Lynn L. Thomas (ed). Change and Continuity in Minangkabau.Ohio: Ohio University, p.9.

20. Navis,AA (1984) Alam Takambang Jadi Guru: Adat dan KebudayaanMinangkabau. Jakarta:Grafiti Pers. p. 57-58.

21. Ibid.

22. Nurwani Idris, The External and Internal Barriers to the PoliticalLeadership for Minangkabau Women in West Sumatera, Tahun 2011,Volume 24, Nomor 2 Hal: 130-141.

23. Abdullah, T (1972) Modernization in the Minangkabau World: WestSumatera in the early decades of the twentieth century. In Claire Holt(Ed). Culture and Politics in Indonesia. Ithaca: Cornell University Press,p. 135.

24. Azizah Kassim, Women, Land and Gender Relations in NegeriSembilan: Some Preliminary Findings(Special Issue on Socio-EconomicChange and Cultural Transformation in Rural Malaysia: A PreliminaryResearch Report) (1988), 26(2): 132-149 p. 29; Azizah Kassim. 1970.Kedudukan Wanita di dalam Masyarakat Adat Perpatih di NegeriSembilan. M. A. Thesis, Jabatan Pengajian Melayu, Universiti Malaya;

Azizah Kassim, 1974. Kedudukan Wanita Dalam Masyarakat AdatPerpatih dalam abad Kedua Puluh. Manusia dan Masyarakat. JabatanAntropologi dan Sosiologi, Universiti Malaya, pp.69-72; Azizah Kassim,1976. A Matrilineal Society in the Context of Development. FederationMuseum Journal (National Museum, Kuala Lumpur) 21 (New Series):41-57; Azizah Kassim, 1985. Wanita dan Masyarakat. Kuala Lumpur:Utusan Melayu Publications; Azizah Kassim. 1986. Wanita danPemilikan Tanah dalam Masyarakat Adat Perpatih di Negeri Sembilan.Ilmu Masyarakat [Journal of Malaysian Social Science Association, KualaLumpur] April-September: 1-8.

25. Ibid

26. Swift, M.G. Malay Peasant Society In Jelebu, London: Athlone Press,1965.

27. Interview with Penghulu Luak Ulu Muar, Datuk Seri Maharaja KhalidBongek 20th June 2011 in Kuala Pilah.

28. Taylor,1929. “The Customary Law of Rembau,” Journal of the RoyalAsiatic Society, Malaysian Branch 12(1):14-55.

29. Ibrahim, 1965:78

30. Swift, 2001:63

31. Taylor, ibid

32. Taylor, E.N. (1937). “Malay Family Law”, JMBRAS, vol. xv, part 1,May. p.4

33. Refer Ahmad Ibrahim, Family Law in Malaysia, 3rd ed. Malayan LawJournal Sdn. Bhd., Kuala Lumpur, 1997.

34. Section 122 (4) of the Islamic Family Law (Selangor) Enactment 2003.See Roberts @ Kamaruzzaman v Umi Kalthum (1966) 1 MLJ 163.

35. Refer generally Raihanah, Martinez, Patricia and Radzi, Wirdati Mohd.(2010). “Islam And Adat: Considering the Wife’s Moral Contributionin the Division of Harta Sepencharia in Malaysia”, Indonesia and theMalay World, 38: 111, 161 – 180; Nik Noriani, Nik Badli Shah (1998).Marriage and Divorce under Islamic Law, Kuala Lumpur: InternationalLaw Book Service.

36. Buss-Tjen, P.P.(1958). “Malay Law”, The American Journal ofComparative Law, vol. 7, no. 2, Spring p.58.

37. Ridzuan Awang (1994). Undang-Undang Tanah Islam: PendekatanPerbandingan (Islam Land Law: A Comparative Perspective), KualaLumpur: Dewan Bahasa dan Pustaka, p.113.

38. Cases heard and determined in Her Majesty’s Supreme court of theStraits Settlements, 1808-1884 http: //archive.org/stream/cu31924080340338/cu31924080340338_djvu.txt

39. Ridzuan Awang ibid.

40. Taylor, E.N. (1937). “Malay Family Law”, JMBRAS, vol. xv, part 1,May.

41. Taylor, ibid, p. 25-28.

42. Taylor, ibid, p. 56.

43. Hooker MB (1972). Adat Laws in Modern Malaya. Land Tenure,Traditional, Government and Religion, Oxford University Press,London. p. 55-56.

44. Abdullah, Martinez and Radzi, 2010.

45. Nawawi Minhaj-et-Talibin (translated by EC Howard) p. 205.

46. Taylor, E.N (1970). “Aspects of Customary Inheritance in NegriSembilan” in M.B. Hooker (ed) Readings in Malay Adat Laws,Singapore: Singapore University Press; pp.159-344 at p. 189-190

47. Hamat, Noor Awang. “Status Harta Suami atau Isteri di SepanjangPerkahwinan” (The Status of Jointly Acquired Property in a MarriageContract). Jurnal Fikrah 1 (1998): 81-90.

48. Perak Administration of Muslim Law Enactment 1965.

49. Federal Constitution of Malaysia 1957.

50. Taylor, E.N. “Malay Family Law”. JMBRAS vol:xv (1937): 1; Taylor,EN., Customary Law of Rembau. JMBRAS 7 (1929): no.1:289; Taylor,E.N. “Aspects of Inheritance”, JMBRAS vol:xxi (1948), Part 2;Wilkinson, R.J. “Law- Introductory Sketch” , Papers on Malay Subjects,1980, Part 1; Winstead, R.O. & Kempe, J.E. “A Malay LegalMiscellany, JMBRAS, 1952, Part: I: 4.

51. Refer generally Noor Aisha Abdul Rahman (2006). Colonial Image ofMalay Adat Laws: A Critical Appraisal of Studies on Adat Laws in theMalay Peninsula During the Colonial Era and Some Continuities, Leiden:Brill; Siddik, Abdullah. Pengantar Undang-undang Adat di Malaysia

Penerbit Universiti Malaya: Kuala Lumpur, 1975; Siddik Abdullah,Pengantar Undang-Undang Adat Di Malaysia (Introduction To Adat LawIn Malaysia). Kuala Lumpur: Penerbit Universiti Malaya, 1975; Selat,Norazit. “Economic Structure and Property Inheritance of AdatPerpatih’. Dalam Nellie S.L. Tan –Wong dan Vipin Patel (ed), AdatPerpateh: a Matrilineal system in Negeri Sembilan 21. Winstract, SdnBhd: Kuala Lumpur 1992; Selat, Nordin. Sistem Sosial Adat Perpatih(Social System of Adat Perpatih). Kuala Lumpur: Utusan Melayu Berhad,1976.

52. Refer Oba, A.A (2002). “Islamic Law as Customary Law”, TheInternational and Comparative Law Quarterly, vol. 51, no. 4; pp. 817-850.

53. Hooker, M.B. (1970). Readings in Malay Adat Laws, Singapore:Singapore University Press; Horowitz, Donald L. (1994a). ‘The Qur’anand the Common Law: Islamic Law Reform and the Theory of LegalChange’, The American Journal of Comparative Law, 42(2), 233-293;Horowitz, Donald L. (1994b). ‘The Qur’an and the Common Law:Islamic Law Reform and the Theory of Legal Change’, The AmericanJournal of Comparative Law, 42 (3), 543-580.

54. Horowitz, Donald L. (1994a). ‘The Qur’an and the Common Law:Islamic Law Reform and the Theory of Legal Change’, The AmericanJournal of Comparative Law, 42(2), 233-293.

55. Section 2 of the Islamic Family Law (Federal Territores) Act 1984, theIslamic Family Law (Selangor) Enactment 2003 and the Islamic FamilyLaw (Perak) Enactment 2004. Similar provision in Islamic Family LawEnactment of other states with minor differences on its wording.Reference will be made mainly to the the Islamic Family Law (Selangor)Enactment 2003.

56. Hamat, Noor Awang. “Status Harta Suami atau Isteri di SepanjangPerkahwinan” (The Status of Jointly Acquired Property in a MarriageContract). Jurnal Fikrah 1 (1998): 81-90.

57. [1986] 1 MLJ 163 at p. 165.

58. Singapore case, Zainoon v. Mohamed Zain, (1978) 2 Jurnal Hukum,p. 160.

59. Referred in the case of Zainoon v. Mohamed Zain, (1978) 2 JurnalHukum, p. 160.

60. Referred in the case of Zainoon v. Mohamed Zain, (1978) 2 JurnalHukum, p. 160.

61. (1982) 4 Jernal Hukum, p. 73.

62. ibid

63. Refer Salleh Buang, New Frontiers in Harta Sepencarian, Nordin andSalleh Sdn. Bhd, Selangor, 1988 for a detailed discussion of the conceptof Harta Sepencarian and the law in Malaysia.

64. Section 122 (1) of the Islamic Family Law (Selangor) Enactment 2003.Section 58 (1) of the Islamic Family Law (Federal Territories) Act 1984.

65. Section 122 (1) and 23 (10) the Islamic Family Law (Selangor)Enactment 2003.

66. Hajah Saudah bt Che Mamat v Hanafi Haji Daud (1997) 11 JH 21.

67. Nor Bee v Ahmad Shanusi (1978) Vol. 12 JH

68. Azizah “Women in Adat Perpateh Society”. In Nellie S.L. Tan – Wongdan Vippin Patel (ed.), Adat Perpateh: A Matrilineal System in NegeriSembila. Kuala Lumpur: Winstrac Sdn. Bhd., 1992: 27-36.

69. ibid

70. Refer writings on harta sepencarian by Suwaid Tapah, Konsep danAmalan Pembahagian Harta Sepencarian di Malaysia. Dalam Tajul ArusAhmad Bustami dan lain-lain, Harta Sepencarian, Prosiding Ex-Partedan Perintah Injunksi, 56-65. Pusat Undang undang Harun M Hashim,Kulliyyah Undang-undang Ahmad Ibrahim, Universiti IslamAntarabangsa Malaysia: Selangor, 2003.

71. Mohamad Akram Laldin, A Mini Guide To Shari’ah And Legal Maxims,Kuala Lumpur, Cert Publications, 2007, p. 136.

72. Mohammad Hashim Kamali,‘Qawa’id Al-Fiqh: The Legal Maxims ofIslamic Law’, http://www.sunnah.org/fiqh/usul/ Kamali_Qawaid_al-Fiqh.pdf, assessed on June 23rd 2009.

73. In Suyuti’s al-Asbah wa al-Naza’ir it says: al-Asl fi al-Asyya’ al-Ibahah,at p.133 (n.p., n.d.).

74. International Bank for Reconstruction and Development, The EconomicDevelopment of Malaya, London, the John Hopkins Press, 1955, pat11; S. Takdir Alisjahbana, ‘Confluence and Conflict of Culture inMalaysia in World Perspective’, in S.T. Alisjahbana, X.S. Thani

Nayagam, and W. Gongwu (eds.), The Cultural Problems of Malaysiain the Context of Southeast Asia, pp. 36-37.

75. Proceedings of the Federal Council of the Federated Malay States For Theyear 1913 at B 24.

76. Mohd Salleh Abbas, ‘Traditional Elements of the Malaysian Constitution’in F.A. Trindade and H.P. Lee (Eds.) Further Perspectives AndDevelopments: Essays In Honour Of Tun Mohamed Suffian, p.5. Accordinghim, Islam has been the religion of the Malays for the last 500 years.

77. Buss-Tjen, 1958, p. 258

78. Taylor, 1937: 260

79. Ridzuan Awang (1994). Undang-Undang Tanah Islam: PendekatanPerbandingan (Islam Land Law: A Comparative Perspective), KualaLumpur: Dewan Bahasa dan Pustaka. p.113.

80. Abdullah, Martinez and Radzi, 2010). Islam and Adat, Consideringthe wife’s moral contribution in the division of harta sepencharian inMalaysia Indonesia and the Malay World, Volume 38, Issue 111, 2010,pp.

81. Maxwell, W.E. (1884). “The Laws and Customs of the Malays withreference to the Tenure of Land”, J.R.A.S (S.B.), June. P. 128

82. Taylor, E.N. (1970). “The Customary Law of Rembau” in M.B. Hooker(ed) Readings in Malay Adat Laws, Singapore: Singapore UniversityPress. pp. 109-158.

83. Winstedt, Richard, and P. E. de Josselin de Jong. 1954. “A Digest ofCustomary Law from Sungai Ujong.” Journal of the Royal Asiatic Society,Malayan Branch 27(3): 1–71.

84. Parr and Mackray, 1910: p.78-79.

85. Taylor, E.N (1970a). “Aspects of Customary Inheritance in NegriSembilan”, in M.B. Hooker (ed.) Readings in Malay Adat Laws,Singapore: Singapore University Press; pp.159-344.

86. See Part 1, Section 2 of the Enactment. “Belanja Hangus” is alsodistinctly Malay as this is gift or payment in cash given to the bride’sfamily upon betrothal or before the marriage contract is solemnized.This is to be distinguished from mas kahwin which is the mandatorymahr paid at the time the contract is being sealed, in accordance withrules of Islamic marriage.

87. Raihanah, Martinez, Patricia and Radzi, Wirdati Mohd. (2010). “IslamAnd Adat: Considering the Wife’s Moral Contribution in the Divisionof Harta Sepencharia in Malaysia”, Indonesia and the Malay World, 38:111, 161-180.

88. Agarwal, Bina. 1994. “Gender and command over property: A CriticalGap in Economic Analysis and Policy in South Asia,” World Development22(1): 1455-1478.

89. Stivens, Maila. 1985. “The fate of women’s land rights: gender,matriliny, and capitalism in Rembau, Negeri Sembilan, Malaysia.” InHaleh Afshra, ed., Women, Work, and Ideology in the Third World. NewYork, N.Y.: Tavistock Publications.

90. Agarwal, Bina. 1988. “Who sows? Who reaps? Women and land rightsin India.” Journal of Peasant Studies 15(4): 531-581; refer also Jacobson,Jodi L. 1992. Gender Bias: Roadblock to Sustainable Development.Worldwatch paper 110.

Washington D.C.: Worldwatch Institute; Jazairy, Idriss, MohiuddinAlamgir, and Theresa Panuccio. 1992. The State of World RuralPoverty:An Inquiry Into Its Causes and Consequences. New York, N.Y.:New York University Press for the International Fund for AgriculturalDevelopment (IFAD).

91. Stivens, ibid. Refer also Maila Stivens, Cecilia Ng, Jomo K.S with JaharaBee (1994) Malay peasant women and the land, London and New Jersey;Zed Books Ltd: 10 – 36

92. Refer generally, Maznah Mohamad National University of Singapore ,“The evolution of Syariah and postcolonial modernity: embeddingMalay authority through statutory law,” isa.e-Forum, 2011.

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