The code of Muslim Family Law and Law of Inheritance, 1941 : a critical study on divorce and related provisions as applied in the four Southern Provinces of Thailand

Abstract

This thesis is a critical study of the contents of the Muslim Family Law and Law of Inheritance Code, 1941 (MFLALIC). It begins with a discussion of the historical perspective, the position and the problems of the application of Islamic law in Thailand. It covers the position of Islamic Law during the Sukhothai Dynasty (1238- 1378), the Krung Sri Ayutthaya Dynasty (1350-17657) and during the Rattana Kosin Dynasty 1782 until the present day. Particular treatment is given to the contents of the MFLALIC on divorce and its related subjects, namely: divorce by Talaq, ta'liq, faskh, and khul'. The research is conducted in such a way due to the fact that there has been much criticism from the public and Dato' Yuthithams in the Provincial Courts of Patani, Narathiwat, Yala and Satul regarding the contents of the MFALALIC on divorce. The thesis also examines the extent to which the provisions in the MFLALIC are based on the classical Islamic law of the four Sunni schools and the extent to which they depart from it. The research reveals that many provisions in the MFLALIC are generally in line with classical Islamic law. However, views of other schools such as the Zahiris and, the Shi’is are also taken into consideration despite the fact that the Muslims in Thailand are following the Shafi'is school of law. It is observed that even though the law of Talaq which has been embodied in the MFLALIC is in line with classical Islamic law, there are some provisions that can still be amended and reviewed to improve the existing provisions in the MFLALIC. Finally, it is expected that this research may contribute to knowledge by conducting a comparison between the various legal systems of the Muslim and non-Muslim countries, for instance, the Philippines, Pakistan, Egypt, Morocco, Tunisia and Sudan. The concentration, however, is focused on the Malaysian Law especially Islamic Family Law (Federal Territories) 1984.