TOPIC 5:

MUSLIM
DIVORCE
• Jurisdiction of Courts
• Divorce by way of Talaq
• Divorce by way of Ta’liq
 Jurisdiction of Syariah Courts
Administration of Islamic Law (Federal Territories) Act 1993:
• Section 46. Jurisdiction of Syariah High Court
• S.46 (1) – territorial jusrisdiction – federal territories
• S.46 (2)(b) – civil jurisdiction
• (i) betrothal, marriage, ruju', divorce, nullity of marriage (fasakh)
, nusyuz, or judicial separation (faraq) or other matters relating to the
relationship between husband and wife;
(ii) any disposition of, or claim to, property arising out of any of the
matters set out in subparagraph (i);
(iii) the maintenance of dependants, legitimacy, or guardianship or
custody (hadhanah) of infants;
(iv) the division of, or claims to, harta sepencarian;
• Section 47. Jurisdiction of Syariah Subordinate Court.
• S.47(1) – territorial jusrisdiction – federal territories
• S.47(2)(b) - in its civil jurisdiction, hear and determine all such actions
and proceedings as the Syariah High Court is authorized to hear and
determine in which the amount or value of the subject-matter in
dispute does not exceed fifty thousand ringgit
Islamic Family Law (Federal Territories) Act 1984

s. 45 – Extent of power to make any order

(a)
(b)
(c)
SYARIAH COURT CIVIL PROCEDURE (FEDERAL
TERRITORIES) ACT 1998

• Regulate civil proceedings commenced in Syariah Court

• S.244 –
• Nothing in this Act shall be deemed to limit or affect the inherent
power of the Court to make any order as may be necessary to prevent
injustice or to prevent an abuse of the process of the Court.
 Types of Divorce
• Divorce by way of talaq
• s.47 IFLA
• By pronouncement of the word ‘talaq’ (divorce) by the husband
• Divorce by way of ta’liq
• S.50 IFLA
• Also known as divorce by stipulation
• Divorce by way of Khul’
• S.49 IFLA
• Cerai tebus talaq / by redemption
• Divorce by way of Fasakh
• s.52 LRA
• Dissolution of marriage by judicial decree
• Divorce by way of Lian
• S.50A
• Husband accuses wife of committing adultery – oath against each other
• Presumption of death
• S.53 IFLA
• Divorce due to conversion / Change of Religion
• S.46 IFLA
DIVORCE BY WAY OF TALAQ

Hadith of the Prophet:

“Of all lawful acts, the most detestable to Allah
is divorce”
What is talaq?

• The marriage is terminated when the husband pronounces the word ‘talaq’ or
repudiation against her.
• Unilateral divorce

Pillars of divorce

• 1. Husband
• 2. Wife
• 3. Intention
• 4. Pronouncement (sighah)
• Express Talaq- will be effective immediately and accordingly (no intention needed)– by
the use of words , ‘talaq’ (divorce) or ‘Firaq’ (separate) or ‘Saraah’ (let go).
• Implied Talaq- the use of words other than ‘talaq/firaq’ - it must be ascertained by the
court. Intention of the Husband to divorce his W needs to be proved before the Syariah
court. – i.e. it requires the Husband’s intention to effect the divorce
• Current Practice of the syariah court: The Husband ordered to take a ‘Syarie’ oath to
explain his intention during the pronouncement of Talaq
 Mohamed b Mohd Ali v The court held that the word ‘cerai’ is an implied word and
Roslina (1414 H) JH 275 the H must prove his intention-, the utterance is held not
effective.

Types of Salwati Sulaiman

Amran Nyat (2006)-
v “kalau macam ni cerai lagi senang”- implied utterance.
Divorce not effective as no intention from the H
Talaq
Noraini Abd Rahman v “Do not phone Khalijah anymore, do not ridicule her, and if
Md Taib [2008] 4ShLR 79 you do, our relationship will be severed.”
1. Express talaq
Norriyya v Abdul Manaf H uttered ‘aku ceraikan’ after the W did not give him money.
2. Implied talaq
(1997) 11 JH 29 – the divorce had been declared effective.
3. Talak ta’lik
Mohd Faizal Husin st nd
1 : “aku ceraikan kau’ 2 : “aku ceraikan kau’ (H expressed
Daroyah v Leny Maslinda his intention to give effect to 2 talaq) – Court declared three
Kamarul Izham [2008] 4 talaq had taken place.
ShLR 161-
Abdullah Sulong v Wok ‘I divorce you with one talaq’ – one talaq take place.
Awang 2008 2 ShLR 117
 Quranic verses on talaq (translation):

• “A divorce is only permissible twice; …”

• “…if the husband divorces his wife irrevocably, he cannot, after that
remarry her until she has married another husband and he (the new
husband) has divorced her”
• Based on the verses, talaq is of two kinds –
• Revocable divorce / talaq raj’i – talaq satu, talaq dua
• Irrevocable divorce / talaq bain – talaq tiga
 • The marriage is dissolved after the iddah
• After iddah, the parties may be reunited by a fresh
marriage contract
• Before the completion of iddah, the parties can
rujuk, or get back together by resuming cohabitation
Revocable / resumption of conjugal relationship
divorce and • Iddah = waiting period, calculated by three
consecutive periods of purity, that is, between three
its effect successive menstruations / tiga kali suci
• “Divorced women shall wait concerning
themselves for three monthly periods. Nor is it
lawful for them to hide what Allah has created in
their wombs if they have faith in Allah and the
Last Day…”
 • The triple talaq is known as talaq bida’ah (irregular) when
pronounced in one sitting and it is valid in Syariah law.
• Nevertheless, the effect of such talaq is debatable among
Muslim jurists on whether it takes effect as three divorces or
a single divorce.
Irrevocable • Hanafi (Imam Abu Hanifa, Abu Yusuf, Said b Jubair) - Only
one talaq takes effect - Authority: Al-Baqarah: 229 ‘a divorce
divorce and its is only permissible twice…’
effects • Shafie (Imam Syafie, Umar Al-Khattab) - Three divorce take
effect irrevocably - Authority: Narrated by Ubaidah bin Samit
(talaq bain kubra that someone of his forefather pronounced 1000 talaq to his
Wife. The Prophet was told of this and he said: In spite of the
/ talak tiga) act being a sin, the woman on account of 3 of the divorces
pronounced become irrevocable divorce. The rest 997 of
divorces are sins on his neck.’
• A new marriage cannot be contracted between the parties,
until the woman has lawfully married another man and has
been divorced after consummation of that marriage, or the
marriage has been terminated by death
• Malaysian position - There is no statutory provision regarding this issue. Under Shafie law
generally prevalent in Malaysia, the pronouncement of 3 talaqs at one and same time
and in one sitting is regarded as the pronouncement of three divorces. - Mohd Zuhdi
Mohd Nawawi v Norsharifah Sharif JH XVII 11

• However, from the decided cases, both view had been accepted by Syariah courts in
deciding the issues.

• Re Mohd Hussin Abdul Ghani & Satu Lagi [2004] 1 CLJ (SYA) 251 - The husband in this
case, a follower of the Hanafi School, had uttered the words "I divorce you with three
talak" to his pregnant wife. An order was granted confirming that the utterance had
entailed a divorce of three talak. Regretting the incident, and moved by a desire to live as
husband and wife again, the parties appealed and applied to the Appeal Board for a
declaration that the utterance of talak aforesaid had only resulted in a divorce of one,
and not of three talak. The court in bearing in mind the mazhab of the husband, and the
majority opinion of the Hanafi jurists, held that the single pronouncement of three talak
by the husband had only entailed one talak, more so when the wife was pregnant at the
material time.
• Syariah Court in Kelantan in the case of Ibrahim v Fatimah stated that when the H
would pronounce the divorce by 3 talaqs and came to court for help, the court have
generally leaned in favour of declaring that divorce effected was by one talaq.

• In Rosmina Masran v Mohd Abdullah [2008] 25(ii) JH 299, Syariah appeal case. In this
case the husband had uttered 3 times ‘aku cerai kau talak satu” The court refer to Re
Mohd Hussin and affirm 1 talaq only. The court looked into the circumstantial evidence.
The husband came home after work in bad mood… had said to his wife… You Are Stupid.
Wife started throwing kitchen utensil to the husband…

• From the decision of the SC, the decision is different from state to state. SC in Malaysia
are allowed to make reference to any Islamic Sect (which are more practical and suitable
to the current needs) from time to time in deciding the family issue before them. A
conclusive provision regarding the triple pronouncement of talaq in one sitting should be
inserted in State Family Enactment to ensure all SC can give a similar decision if this case
been brought before them.
 • S.47(1) – (5)
Provisions • Talaq divorce by permission of court
under • S.47(5) – (14)
• Requirement to refer the case to
Islamic Family conciliatory committee
Law (Federal • S.47(15)
Territories) Act • Exception of reference to
conciliatory committee
1984 (IFLA)
• S.47(16)-
• S.47(17)-
 Pronouncement of Talaq outside Syariah Courts / Divorce
without permission of the Court
• S.55A – need to report to the court within 7 days
• It is an offence under s.124 IFLA and punishable with a fine not exceeding one
thousand ringgit or with imprisonment not exceeding six months or with both
such fine and imprisonment
• The Court, after receiving the report shall hold an inquiry to ascertain whether
the talaq that was pronounced is valid according to Hukum Syara' – s.124(2) IFLA
• The Syariah Appeal Board insist of statement from two witnesses in the case
where the Talaq was disputed by the Wife. - Zainab v Abdul Latif (1991) 8 JH
297 & Rojmah v Mohsin (1991) 8 JH 268.
• Abdul Rahman bin Ishak v Syarliza Zainal Abidin [2005] 4 ShLR 165 - Talaq
which was pronounced by way of ta’liq “Jika abang berjudi lagi, maka kita
bercerai’ by the W and affirmed by the H outside the court and without the
courts permission was valid in acc with Hukum Syara’ and had taken effect after
failing to observe the ta’liq conditions (H began gambling after the event)
 Pronouncement of Talaq through electronic medium

• Electronic medium includes email, sms, phone, fax.

• Legal position- it is an implied utterance (kinayah) – because of the
existence of ambiguity in 2 pillars of divorce .i.e. pronouncement (sighah)
and intention of the H. Any implied pronouncement - required the
Husband’s intention to effect the divorce.
• In Zaiton Hamim v Nor Husin Othman (1999 JH I Jld.13, 115) – dissolving a
marriage through SMS can be categorized under pronouncement of talaq
outside the court.
• Whether it is valid or not? Court had given different approach
• In Azida Fazlina Abdul Latif v Shamsudin Latif (Ogos 2003) – based on H’s
oath only
• In Zainab Mahmood v Abd Latif Jusoh (1993) JH II, 297. based on H’s oath
and statement from to witnesses.
Divorce via a letter

• Zakaria Talib v Norziah Ahmad (2005) ShLR 132 -RW received a letter
from AH telling her that ‘I hereby pronounce a divorce of 3 talak upon
you… and with this all relationships between us shall come to an
end.” Gombak SSC affirmed a divorce of 3 talak had taken place. H
appeal. Held – affirm the decision. The pronouncement or words
used by the AH in his said letter were clear and unequivocal namely
the word talak. The jurists were unanimous that a marriage would
stand dissolved by the sued of the word talak or such like word, be it
verbally pronounced, in written from or in sign language. In any case,
since the pronouncement was written in clear (sarih) words, it would
no longer be necessary to prove intention. The divorce was valid as
the prerequisites there.
Other Cases
• Re Mohd Hussin bin Abdul Ghani & Anor [1990] 2 MLJ lxxv
• Zainab v Abdul Latif (1991) 8 JH 297
• Rojmah v Mohsin (1414H) JH 268
• Mustafah v A Habeeba
• Razimah Haneem v Yusof bin Hasbullah
DIVORCE BY WAY OF TA’LIQ
 DIVORCE BY WAY OF TA’LIQ

• Ta’liq is statutorily required to be pronounced during the akad nikah in the form of
a stipulation on grounds that are commonly based on the non-payment of
maintenance, desertion, physical violence, destruction of property and emotional
abuse.
• The existence of ta’liq may provide a cause of action to the wife to lodge a
complaint to the Syariah court and to seek for a divorce.
• Example of ta’liq – refer p.177-180, Islamic Family Law in Malaysia, Najibah et.al.
• In practice, taklik can happen in 2 situations -
• i) Utterance of taklik outside court - it becomes talak taklik - pronouncement of talaq outside
court
• ii) utterance of taklik during akad nikah - s.50
• Zainuddin Kamaruzzaman v Khairuzita Kharuddin [2006] 1 CLJ (Sya)
366- The appelant husband had twice uttered the words of divorce
upon the RW in May 2003 nd February 2004. the first
pronouncement – he alleged that ‘ I divorce you, you chose to sleep
at your friend’s house’- the 2nd pronouncement- if you meet him
(Jamaluddin), you stand divorced for thousands of times. Wife met
Jamaluddin- not disputed. H defence- the 1st – warning to his wife to
prevent her from going out at night. 2nd his intention not to divorce
her but to prevent her from seeing Jamaluddin. Held- SHC affirm the
decision mad by SSC- the 1st pronouncement was an express
pronouncement- intention is irrelevant- divorce of one talaq. 2nd –
taklik had clearly been fulfilled- resulted a divorce of 2 talaq.
Provision under IFLA -
 Cases – Grounds of Ta’liq
1. Desertion
• Aminah v Ahmad
• Df had deserted the Pf and never provided her maintenance for more than 1 yr
• The judge dissolved the marriage with one talaq
• Normah v Ahmad Kamaruddin
• Application of taklik by wife was rejected because her obedience to her husband was
questionable
2. Failure to pay maintenance
• Normah v Abdul Razak
• husband imprisoned for 6 months – taklik was granted
• Khatijah v Ismail
• Husband accused the wife of nusyuz but failed – taklik was granted
• Rokiah v Mohamed Yunus
• Fakhariah bt Lokman v Johari bin Zakaria
• Aisny Mohd Daris v Haji Fahro Rozi b Mahdi
3. Causing physical harm
• Hasnah v Saad
• Husband had physically hit his wife – caused injury – husband failed to prove that
he never caused such injury – medical report – court confirmed ta’liq
• Dah v Abdullah
• The wife was hospitalised after abused by the husband – medical report admissible
to confirm ta’liq.
• Adiba Yasmi v Abdul Rani
• Complications in proving each other’s case – court asked both parties to take an
oath – ta’liq was rejected

4. Ta’liq Khul’i – ta’liq and bayaran tebus talaq

• Wan Azizah v Kasim
• Talak ta’liq khul’i with payment RM1 by the wife to the Husband confirmed by
court
• Ku Nazhatul Shima v Ahmad Satiman
• Husband claimed RM50,000 as payment of khul’ but provision in marriage
certificate allowed marriage to be dissolved by way of ta’liq khul’I with payment of
RM1.
• Effect of ta’liq–
• similar to talaq (revocable divorce / talaq raj’i)
• But, for ta’liq khul’i, it becomes minor irrevocable divorce (talaq
bain sughra), which means, if the parties want to get back
together, they must undergo a fresh akad nikah.
• Must comply with procedural requirements
 Procedural requirement
• Made by way of application
• Statement of claim
• Summons of appearance
• Service of summon to the df – see Rukiah v Abu Bakar where court ordered the
summon to be advertised in the newspaper because his whereabout was unknown
• Tuminah v Arifin
• Summon served but husband failed to turn up – court continue with the hearing
• Hariah v Abdul Malik
• Hearing must be conducted in open court, not in chambers

• Witness – 2 male witnesses