Dissolution of Marriage Amended 2 (law Part2 )

ISLMIC FAMI LAW

1. 2. Khulu ’ or Cerai Tebus Talaq From the arabic word of ‘ Khul ’ which literally means ‘to take off clothes’ – to lay down one’s authority over a wife’. Divorce by the redemption of Talaq . Holy Quran: Al-Baqarah 2:229 “And it is not lawful for you to take back any of your gifts from your wives except when both parties fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah. So do not transgress them. If any do transgress the limits ordained by Allah such persons wrong themselves as well as others”

2. This verse points to the divorce of khul ', and says that it is only in one phase that taking the dower is possible. It is in the case that the woman does not want to continue the conjugal life and they both fear that they are not able to observe the limits of Allah in that kind of life. "...unless both fear that they cannot keep (themselves) within Allah's bounds..." Under this law the wife may seek to get freed of the wedlock by returning the dower to husband, if she has already received it, or to forgo it, if it be still due to her and take the divorce of khulu ’ .Then it says: "...and if you fear that they cannot keep (themselves) within Allah's bounds, it is no sin on either of them about what she gives up to get herself freed (from the wedlock)." In this phase, the origin of separation is, in fact, the wife. So, she must pay the indemnity to get the freedom from the marriage. At the end of the verse, it points to the whole of the ordinances that are stated in this verse, and says: "...Those are Allah's limits; so do not transgress them. And, whoever transgresses Allah's limits -then these are they that are the ( willful ) wrongdoers."

3. Hadith: The wife of Thabit came to the Holy Prophet (PBUH) and said: “O Allah’s Messenger! I do not blame Thabits for his defects in his character of his religion but I, being a Muslim, dislike to behave in an Islamic manner (If I Remain with him)”. On that Allah’s Messenger said to her: “Will you give back the garden which your husband has given you?” She said: “Yes”. Then the Prophet said to Thabit : “O Thabit ! Accept your garden and divorce her once”.

4. A wife can walk away from the marriage if she thinks marital life becomes a torture eg in cases of extreme discord and emptiness in marital relationship She is given a right to release herself with some payment to the husband, the amount of which as agreeable by both parties Initially the amount to be returned is the amount of dowry as mentioned in the Hadith. However, it is legal for the husband to receive more than the dowry based on consensus

5. IFLA 1984 Section 49: (1) Where the husband does not agree to voluntarily pronounce a talaq , but the parties agree to a divorce by redemption or cerai tebus talaq , the court shall, after the amount of the payment of tebus talaq is agreed upon by the parties, cause the husband to pronounce a divorce by redemption, and such divorce is ba’in sughra or irrevocable. (2) The court shall record the cerai tebus talaq accordingly and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

6. (3) Where the amount of the payment of tebus talaq is not agreed upon by the parties, the court may assess , in accordance with the Hukum Shara ’ the amount, having regard to the status and the means of the parties.

7. CASES Che Pah v Siti Rahmah (1974) 2 JH 244 The Plaintiff applied for an order that his wife, the defendant to return and cohabit with him. The defendant refused and claimed that the husband was a gambler and a drunkard and did not pray. She asked for a divorce by Khulu ’ (offer to pay the compensation). The court after hearing the parties ordered the wife to return to the husband and ordered the husband to pay her maintenance and provide a dwelling house for her.

8. However the husband failed to provide the maintenance as ordered. The Qadhi thereupon ordered that Hakam be appointed under Section 90A(1)of the Perlis Administration of Muslim Law Enactment 1963. The Hakam were able to get the agreement of the parties for a Khulu ’ divorce on the payment of RM100 to the husband. On this payment, the husband divorced the wife and was recorded by the court.

9. Nerah v Ahmad (1965) 3 JH 101 There was a dispute between the husband and the wife. The court decided to have Hakam appointed to settle the matter. The Hakam for the husband agreed that there should be a tebus talaq on the wife paying RM150 and when the wife paid this amount to the husband, he pronounced the talaq on her.

10. CERAI TA’LIQ A condition uttered during the solemnization of the marriage which is statutorily required in Malaysia, in which, breach of such condition may amount to dissolution of marriage. Holy Quran (5): 1 “ O you believe! Fulfill all obligations” Hadith : The Prophet (PBUH) said to the effect : “A believer is bound by his agreement, except an agreement to make lawful what is unlawful and to make unlawful what is lawful”.

11. This type of dissolution of marriage is relevant in Malaysia due to the existence of Surat taklik , which is attached together with the marriage certificate. Generally, a ta’liq divorce occurs when the husband breaches any stipulation pronounced by him at any time of marriage. The ta’liq provision varies from one state to another in terms of duration of the offence and ground for divorce under ta’liq . Thus, if a wife would like to apply for dissolution of marriage under ta’liq , it is important for her to examine the contents of ta’liq certificate.

12. IFLA 1984 Section 22(1) and Section 26 The Registrar, shall, upon payment of the prescribed fee, issue a Ta’liq certificate in the prescribed form to each of the parties to the marriage. The prescribes form is as follows (Federal Territories): I do solemnly declare when I leave my wife- for four (4) months Hijrah continuously or more voluntarily without force , and I or my representative do not give her maintenance for such period whereas she is obedient to me or I cause hurt to her person, that she makes a complaint to the Shariah Court and if found by the Shariah Court to be true, and she gives to the Shariah Court which received on my behalf a sum of one ringgit, then she is divorced by Talaq Khulu ’.

13. Section 50 of IFLA A married woman may, if entitled to a divorce in pursuance of the terms of a Ta’liq certificate made upon a marriage, apply to the court to declare that such divorce has taken place. The court shall examine the application and make an inquiry into the validity of the divorce and shall, if satisfied that the divorce is valid according to Hukum Shara ’, confirm and record the divorce and send one certified copy of the record to appropriate Registrar and to the Chief Registrar for registration.

14. Apart from what is contained in the ta’liq certificate, the law also recognises theany other pronouncement of ta’liq made by the husband, verbally or in a written form Norizam v Halim Azman Husband uttered ta’liq if the wife see or refer to certain individual relating to religious matters, she would divorced with one talaq. Subsequently, the wife went to see the person. The court held that she was divorced with one talaq.

15. CASES ON BREACH OF TA’LIQ CONDITIONS Case of desertion or failure to maintain where the husband was present. Aminah v Ahmad (1971)3 JH 81 The wife complained that the husband had deserted her and had not given her maintenance for over three months. The husband admitted that he did not lived with the wife and had not maintained her, but had tried to take her back and settled the matter with her but failed. The wife called two witnesses to support her case. The Qadhi gave judgment for the wife.

16. Amdan v Ghazali (1979) 3JH 122 The wife claimed cerai Ta’liq on the ground that the husband had not lived with her and had not give her maintenance for over four months. The husband said that the wife had returned to her mother’s house and when he tried to take her back, she had asked him to divorce her. After taking into consideration all the evidence, the judgment was given for the wife.

17. Salemawegam v Mohamed Anuar (1984) 5 JH 109 The wife claimed cerai Ta’liq as the husband had not given her maintenance. In his defence the husband claimed that the wife had refused to consummate the marriage and therefore he was not bound to give her maintenance. The court asked both parties to take the solemn oath. The wife took the oath and said there had been sexual intercourse between them. The husband however refused to take the oath. The judgment was given in favour of the wife and decreed a divorce by one talaq .

18. Cases where the husband was absent Fathillah v Mohamed Ghafar (1979) 2 JH 286 The wife claimed that the husband had deserted her for over three months. The summon was served on the husband but he did not attend. The wife called witnesses who supported her. Although she had moved, she had been forced to do so at the request of the landlord and the husband knew of this. The wife took the solemn oath, the judgment was given in her favour and the divorce by one talaq was confirmed.

19. Piah v Muhammad Zainal (1981) 4 JH 222 The wife applied for cerai ta’liq on the ground that the husband had deserted her for two years and had not given her any maintenance. She gave evidence and called one witness to support her and then was asked to take an oath. The judgment was given in favour of the wife and decreed a divorce by one talaq .

20. Cases of assault on the wife Hasnah v Saad (1975)3 JH 84 The wife claimed cerai ta’liq on the ground that the husband has assaulted her on her face and near her right ear. She produced the ta’liq declared by the husband , and a medical certificate as evidence. The husband denied he had assaulted her and claimed that the injuries were self- inflicted. Taken into account all the evidences, documentary and circumstantial, the court gave judgment in favour of the wife and declared that she was divorced by one talaq .

21. Adiba Yasmi v Abdul Rani (1986) 7 JH 44 The plaintiff applied to confirm the divorce by Ta’liq as she alleged the husband had assaulted her. The husband denied, and claimed that the injuries were self-inflicted. The plaintiff called the maid servant as a witness to support her statement, but the Qadhi found that the evidence was weak. On the other hand, the defendant also called three witnesses to support his allegation, but the Qadhi held the evidence was also weak. The Qadhi then called the husband to take an oath to deny the allegation by the wife, where in this case the Qadhi relied upon the Hadith to the effect that ‘ the evidence is on the plaintiff and the oath is on the defendant’. After the defendant had taken the oath denying the allegation, the judgment was given in favour of him. The application made by the plaintiff was dismissed.

22. FASAKH Holy Quran (2): 229 “The parties should either hold together on equitable terms (bi ma’aruf ) or separate with kindness ( bil - ihsan )” (4):128 “If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best even though men’s soul are swayed by greed. But if you do good and practise self-restraint, Allah is well-acquainted with all that you do”.

23. Hadith It is reported that the Prophet (PBUH) said: “There must be no harm nor return of harm” Reported by Abu Hurairah that the Prophet (PBUH) said regarding a person who does not possess anything to enable him to give maintenance to his wife, they can both dissolve their marriage.

24. Grounds of separation Separation due to disease or defect According to Maliki , Shafi ’ie and Hanbali ( except for Hanafi which gives only the right to the wife) each of the married couple is entitled to dissolve the marriage contract due to disease and physical defect. Shafi’ie : what forms the basis of the right of separation is the infectiousness of the diseases that are passed from the husband to the wives. According to the learned men and experienced physicians, leprosy (disease that affects the skin) and leucocythaemia (blood disease) are highly infectious and are impediments to the having of the sexual intercourse.

25. Separation due to non-providing maintenance There are few opinions in this regard. Maliki : More favourable to such wives, where the wives are entitled to the dissolution of marriage by Fasakh if the husband are unable to provide maintainence at the time of the claim, without regard to whether he had unable in the past, unless the wife knew at the time of the conclusion of the marriage that the husband was indigent. If the poverty of the husband has not been established, the Qadhi will order him to provide the maintenance or to divorce her. If the poverty had been proved, the judge (at his discretion) may allow the husband a period of grace to fulfill his obligation- upon failure after the expiration of the grace period, the Qadhi may dissolve the marriage.

26. Dominant of Shafi’ie : Situation 1- If the husband is present but unable to maintain the wife- the wife is entitled to the dissolution of the marriage. But the better view according to Nawawi prescribes that a period of three days shall first be granted. Situation 2- Where the husband is present and could support his wife but refuses or fails to do so, no dissolution of marriage can be granted according to the dominant Shafi’ie view since the husband is not destitute (extremely poor) and the wife is held to be able to obtain the maintenance due to her by the reference to the court. Situation 3- Where the husband is present but all his property is at a distance, the dominant Shafi’e view is that the wife is entitled to a dissolution if the property is at a distance so great as to admit of prayer being abridged.

27. Situation 4- Where the husband is absent but of known whereabouts and able to be contacted, the dominant Shafi’ie view is that, the dissolution of the marriage is allowed, after three days if he can be shown as destitute , but no dissolution is permitted if he is in a position to maintain her. Situation 5- Where the husband is missing and cannot be contacted, Ibn Hajar states that there is no dissolution of marriage can be obtained (until the expiration of the period for presumption of death).

28. Separation on account of cruelty Imam Malik - the wife is entitled to ask the court to decree a divorce, if she fears that the husband will injure her person to such an extent that she is unable to live with him as husband and wife. Agreed by Imam Ahmad. Imam Hanafi and Shafi’ie - If husband injures the wife, this is not a ground of divorce for the act of the husband can be punished as a ta’zir or it may release the wife from obeying him. However in our current practice of Islamic Family Law in Malaysia the ground of cruelty is included under Section 52 (1) (h) and the procedure in such a case, to appoint Hakam / Ahkam to resolve the difference between the parties.

29. Divorce because husband has deserted the wife or been imprisoned. Imam Malik and Imam Ahmad- allows a divorce if the husband has left the wife and deserted her. This includes where the husband is imprisoned for a period of 3 years or more (Section 52 (1) (c)). The reason is to avoid the wife from being injured and face the hardship. * Note that the dissolution of marriage is not automatic but upon application by the wife in the occurrence of any of the circumstances.

30. Other grounds of Fasakh Where either the husband or the wife become murtad and does not repent; Where the husband or wife has embraced Islam, while the other remains in the former faith; Where it becomes known that the husband and wife are related by fosterage;

31. CASES Abdul Aziz v Che Pah (1972) 2 JH 113 The wife applied for Fasakh as she said that the husband did not give her maintenance as he was too poor. The wife gave evidence and called witnesses and the Qadhi found that it was sufficient. The Qadhi also asked the wife to take an oath that during the period of three days she was in her house the husband did not give her maintenance. The court give judgment in her favour and ordered her a divorce by Fasakh .

32. Joan Mary v Sulaiman (1993) 10 JH 86 The parties had married in Australia in 1961. The husband was then studying in Australia and after he completed his studies they came to stay in Kelantan. Subsequently the husband married a second wife and after that he began to neglect the plaintiff. She brought an action for fasakh on the following grounds: (a) That the husband had neglected or failed to provide her maintenance for a period of over three months, that is, one year; (b) that the husband had failed to perform, without reasonable cause, his marital relations, for more than one year; (c) That the husband contract a polygamous marriage, but failed to treat her equitably in accordance to the requirements of Hukum Syara ’. - The judgment was given in favour of the wife where the divorce by Fasakh was ordered.

33. Cases Hairun v Omar Fasakh – husband had habitually assaulted the wife Zarina Shaari v Mohd Yusoff Omar Mental abuse was accepted as a ground for fasakh Khairul Faezah v Muhammad Salleh -court accepted a hot temper on the part of husband as a ground for fasakh where wife and children were the subject of torture under S 52(1)(l)

34. DIVORCE BY LI’AN Literally means curse Mainly refer to allegation of adultery made by the husband against the wife or husband’s denial of the paternity of the child It happens when the husband signifies a form of divorce by means of invoking curse where the husband accused his wife without legal proof for adultery directly or indirectly as he denies the paternity of a child born out of his wife during the wedlock and the wife denies it In such allegation, there are certain process need to be fulfilled by the husband who alleged so. False allegation/ allegation without evidence in Holy Quran: (24):4 “ And those who launch a charge against chaste woman and produce not four witnesses to support the allegation, flog him with 80 stripes and reject their evidence ever after for such men are wicked transgressors”.

35. Process of Li’an , Holy Quran (24): 4-9 The verses stated to the effect: And those who launch a charge against their spouses and have in support no evidence/ no witnesses but their own- their solitary evidence can be accepted if they bear witness four times with an oath by Allah that they are solemnly telling the truth. And the fifth oath should be that they solemnly invoke the curse of Allah on themselves if they tell lie.

36. But it would avert the punishment from the wife if she bears witness four times with an oath by Allah that the husband is telling a lie. And the fifth oath should be that she solemnly invokes the wrath of Allah on herself if her accuser is telling the truth. Section 50A of IFLA 1984 : Where the parties to the marriage have taken oath by way of Li’an , acc to Hukum Sharai in front of the Shariah Court Judge, upon judgment the judge shall order them to be Faraq (separated and live apart) forever, and the divorce shall be recorded.

37. Conditions of Li’an Firstly, it must be made in the presence of a judge. Secondly, it is made after instructed or requested by the judge. The oath should be completed 5 times and the pronouncement must be similar as stated in the Holy Quran. Next, they shall be pointing to the other party. The husband start the oath and followed by the wife and that it must be witnessed by at least 4 witnesses. Lastly, there shall be no sexual intercourse after the husband saw the adultery.

38. Procedures The husband shall take oath 4 separate times by repeating each time, “ I call God to witness to the truth of my testimony concerning my allegation”. Secondly, on the 5th oath, the husband must pronounce, “may the curse of Allah fall upon me if I spoke falsely concerning the adultery which I charged against my wife.” Therefore, if the wife admits her guilt that she committed adultery, she will hadd punishment for zina. But if the wife persists, firstly, she needs to repeat 4 separate times “I call to Allah to witness that my husband’s allegation of adultery with which he charges me is altogether false. Secondly, at the 5th time, “May the wrath of Allah fall upon me if my Husband’s allegation of adultery against me is true.” Then the marriage shall be dissolved forever.

39. When a husband initiates li‘an against his wife in the manner described above, five implications arise as follows: First, the husband will not be subject to hudud punishment of qazaf Second, the wife will be sentenced with hudud punishment for adultery unless she also swears in li‘an . Third, their marriage is permanently dissoved . Fourth, where the husband‟s paternity for any child conceived or thereafter born is denied, the child shall not take the husband‟s name and will be surrendered to the wife. Fifth, it is forbidden for the man and woman to remarry forever as mentioned in two hadith of the Prophet ( pbuh ). The first hadith was narrated by Ibn Umar RA that: “The Prophet ( pbuh ) carried out li‘an between a man and his wife, resulting in denial of paternity for the woman’s child (the child could not take the father‟s name). The Prophet ( pbuh ) separated the couple, and established the child’s lineage only to the mother”

40. PRESUMPTION OF DEATH Section 53 of IFLA 1984 : If the husband of any woman has died, or is believe to have died, or has not been heard for a period of four (4) years or more, and the circumstances are such that he ought, for the purpose of enabling the woman to remarry, to be presumed according to hukum Shara ’ to be dead, the court may after the application by the woman after proper inquiry, issue in a prescribed form, a certificate of presumption of death of the husband and the court, may, by application of the woman, order for the dissolution of the marriage or Fasakh by virtue of section 52 of the Act.

41. Section 80 of the Shariah Court Evidence (Federal Territories) Act 1997 when the question is whether a man is alive or dead, and it is proved that he has not been heard of for four years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

42. Syariah courts have the power to declare the presumption of death under section 53 (1) which applies specifically to the case “for the purpose of enabling the woman to remarry” only. Meanwhile, section 53 (3) later explains that the mafqūd’s wife was not entitled to remarry without a certificate issued under section 53 (1). In the circumstances mentioned in subsection (1), a woman shall not be entitled to remarry in the absence of a certificate issued under subsection (1), notwithstanding that the High Court may have given leave to presume the death of the husband.

43. APOSTASY/ CHANGE OF RELIGION Holy Quran: (2):221 “ Do not marry unbelieving women until they believe, nor marry your girls to unbelievers until they believe”. IFLA 1984: - No man shall marry a Non- Muslim except a kitabiyyah ; - No woman shall marry a non- Muslim. IFLA defines kitabiyyah as: (a) a woman whose ancestors are from the Bani Ya’acob ; or (b) a Christian woman whose ancestors were Christian before the prophethood of Prophet Muhammad; or (c) a Jewess whose ancestors were Jews before the prophethood of the Prophet Isa.

44. Section 46 of the IFLA 1984 The renunciation of Islam by either party to a marriage or his or her conversion to a faith other than Islam shall not by itself operate to dissolve the marriage until so confirmed by the court The conversion to Islam by either party to a non- muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the court.

45. In the Declaration of Dissolution of marriage due to Conversion to Islam Norhairy Cheong bin Abdullah @ Cheong Foo Siong = The husband converted to Islam and later applied for dissolution of marriage at Syariah High Court. The wife was notified of the proceeding, and she appeared before the court. She refused to convert to Islam and Syariah court dissolved the marriage

46. Arbitration By Hakam Arbitration by hakam  is “ a process where the disputing parties appoint a person each as a hakam (arbitrator) to solve the issue of contention arising between them, in accordance with hukum syara ’ ”.  Surah An-Nisaa’, verse 35. Allah says: “And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]”

47. S47 of IFLA A divorce by way of hakam commences the moment a wife files a claim of divorce under Section 47 of the IFLA 1984. Under Section 47(2) of the Act, upon receiving an application for divorce, the Court will issue a summons upon the other party (in this case would be the husband) including a copy of the application and the statutory declaration made by the wife. The summons requires the husband to appear before the Court, in order to inquire whether the husband consents to the divorce or otherwise

48. If the husband refuses to consent to the divorce, the Court will as soon as possible appoint a conciliatory committee ( jawatankuasa pendamai – JKP). The persons appointed under the conciliatory committee, consist of a Religious Officer as Chairman and two other persons, one for the husband and the other for the wife as stated under Section 47(5) of the Act. Section 47(14) of the Act states that “where the committee submits to the Court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the Court shall advise the husband to pronounce one talaq before the Court”. Nevertheless, if the husband does not wish to be present in Court to pronounce the talaq or if the husband refuses to pronounce the said talaq, the Court will then refer the case to the attention of hakam and thereby, Section 48 of the Act will apply.

49. The State of Selangor has taken the first leap in gazetting the Hakam (State of Selangor) Rules 2014 (hereinafter referred to as the Hakam Rules 2014), which provides detailed guidelines on the implementation of hakam in the Malaysian Syariah Court practice. Rule 3(3) of the Hakam Rules 2014 provides that the Court is required to ensure that syiqaq (constant quarrels between husband and wife which affect the marital harmony exists between the husband and wife before the parties are brought before the hakam. This shows that the provision on the appointment of hakam cannot be simply invoked as to avoid from unnecessary divorce.

50. S 48 of IFLA (1) If satisfied that there are constant quarrels ( shiqaq ) between the parties to a marriage, the Court may appoint in accordance with Hukum Syarak two arbitrators or Hakam to act for the husband and wife respectively. (2) In appointing the Hakam under subsection, the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case. (3) The Court may give directions to the Hakam as to the conduct of the arbitration and they shall conduct it in accordance with such directions and Hukum Syarak

51. (4) If the Hakam are unable to agree, or if the Court is not satisfied with their conduct of the arbitration, the Court may remove them and appoint other Hakam in their place. (5) The Hakam shall endeavour to obtain from their respective principals full authority, and may, if their authority extends so far, pronounce one talaq before the Court if so permitted by the Court, and in that event the Court shall record that pronouncement of one talaq, and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

52. The hakam who is conferred with full authority from the Principal (the husband/wife), has wider power which is to: ( i ) pronounce one talaq or khulu ’ before the Court (hakam for the husband) (ii) accept the pronouncement of khulu ’ before the Court (hakam for the wife) Thus, through hakam, a wife’s wish to dissolve a marriage (even when her husband refuses to consent) can be realised as a hakam with full power is conferred with the authority to pronounce the talaq or khulu ’ in order to release the wife from the marriage.