MUSLIM DIVORCE Pillars of divorce

Introduction Husband
Wife
 Although divorce is permitted, it is not encouraged The Prophet has often been Pronouncement - Express Talaq- will be effective immediately and
quoted to say that (sighah) accordingly (no intention needed) – by the use of
- ‘of all things which have been permitted, divorce is the most hated by Allah.’ words , ‘talaq’ (divorce) or ‘Firaq’ (separate) or
- ‘Let not the faithful man hate the faithful women, if he dislike some of her habits, ‘Saraah’ (let go).
he may like others. - Implied Talaq- the use of words other than
‘talaq/firaq’- it must be ascertained by the court.
JURISDICTION OF THE COURT Intention of the Husband to divorce his W needs to
be prove before SC. – ie it required the Husband’s
 Muslim divorce based on various enactment. The law is state based- Second List intention to effect the divorce
9th Schedule, Federal Constitution & Article 74(2) Federal Constitution - Current Practice of the syariah court : The
Husband ordered to take a ‘Syarie’ oath to explain his
 Syariah Court has jurisdiction to entertain any petition for divorce. intention during the pronouncement of Talaq
s.45 IFLA The court has the authorization to make an order of divorce;
Intention
a) where the marriage has been registered or deemed to be
registered under this Act; or Pronouncement (sighah)
b) where the marriage was contracted in accordance with Hukum
Syarak; and Mohamed b Mohd Ali v Roslina (1414 The court held that the word ‘cerai’ is an
c) where the residence of either of the parties to the marriage at H) JH 275 implied word and the H must prove his
the time when the application is presented is in the Federal Intention -, the utterance is held not
Territory effective.
Salwati Sulaiman v Amran Nyat “kalau macam ni cerai lagi senang”-
 Muslim divorce before IFLA or other state enactments is based on the ruling from (2006)- implied utterance. Divorce not effective as
no intention from the H
School of Shafie.
Noraini Abd Rahman v Md Taib “Do not phone Khalijah anymore, do not
DIVORCE BY WAY OF TALAQ [2008] 4ShLR 79 ridicule her, and if you do, our relationship
will be severed.”
 Divorce by pronouncement of talaq = the marriage is terminated when the husband
Norriyya v Abdul Manaf (1997) 11 JH H uttered ‘aku ceraikan’ after the W did not
pronounces the word talaq or cerai or firaq.
29 give him money. – the divorce had been
declared effective.
 The right to pronounce talaq is given to the husband,
Mohd Faizal Husin Daroyah v Leny 1 st : “aku ceraikan kau’ 2nd : “aku ceraikan
 The Quran gives a caution that talaq is only permissible twice. Maslinda Kamarul Izham [2008] 4 kau’ (H expressed his intention to give
- ‘A divorce is only permissible twice; after that, the parties should either hold ShLR 161- effect to 2 talaq) – Court declare three talaq
together on equitable terms of separate with kindness. (Quran,alBaqarah:229) take place.
- ‘When you divorce women and they fulfill their term of idah, either take them Abdullah Sulong v Wok Awang 2008 I divorce you with one talaq’ – one talaq
back on equitable terms or set them free on equitable terms. But do not take 2 ShLR 117 take place.
them back to injure them or to take on them undue advantage; if anyone does
that he wrongs his own soul’ (Quran,al Baqarah:229-231)
Triple Talaq
Types of Talaq
 The triple talaq is known as talaq bida’ah (irregular) when pronounced in one sitting
and it is valid in Syariah law.
1) Express Talaq - ‘I divorce you
2) Implied Talaq - ‘I hate you, get out of my house’
 Nevertheless, the effect of such talaq is debatable among Muslim jurists on whether
3) Talaq Takliq -‘If you go to c-mart without my permission, I divorce you with
it takes effect for three divorces or a single divorce.
one talaq
 The solution on humanitarian ground in Quran,al Baqarah:230: Mohd Zuhdi Mohd Nawawi v NorSharifah Sharif (2005 ) ShLR 312
‘So if the husband divorces his wife irrevocably, he cannot after that re marry until SSC ruled that the expression ‘I divorce you with 3 talak that the PH had intimated
she has married another husband and he (the new husbands) has divorced her.’ to his DW through his handphone had in law resulted in divorce of 3 talak. They
claimed that no talak could have befallen the wife since H had uttered the words of
Wan Mohd Fariz Mohd Ali v Noryanie Hanifah [2008] ShLR 172 talak in circumstances of extreme and uncontrollable anger and even if there was
The court satisfied that divorce had taken place as the condition for valid divorce divorce , it was one of one talak since the H hadonly uttered the words ‘three talak’
had been fulfilled by the parties- namely H uttered divorce in unequivocal terms, the once.
divorce was uttered to the W, at the time H uttered the divorce, W was his lawful
wife and that she was not in irrevocable iddah and H was sane and the divorce was Ibrahim v Fatimah
uttered voluntarily without any force. Syariah Court in Kelantan in the case of stated that when the H would pronounce
the divorce by 3 talaqs and came to court for help, the court have generally leaned
Hanafi (Imam Abu Only one talaq takes effect – this is based on the authority - in favour of declaring that divorce effected was by one talaq.
Hanifa, Abu Yusuf, (Al-Baqarah: 229):
Said b Jubair) A divorce is only permissible twice; after that, the parties
should either hold together on equitable terms or separate Rosmina Masran v Mohd Abdullah [2008] 25(ii) JH 299
with kindness. In this case the husband had uttered 3 times ‘aku cerai kau talak satu” The court
Shafie (Imam Three divorce take effect irrevocably – This is based on the refer to Re Mohd Hussin and affirm 1 talaq only. The court looked into the
Syafie, Umar Al- authority: circumstantial evidence. The husband came home after work in bad mood… had
Khattab)- Narrated by Ubaidah bin Samit that someone of his said to his wife… You Are Stupid. Wife started throwing kitchen utensil to the
forefather pronounced 1000 talaq to his W. Prophet was told husband…
of this and he said: In spite of the act being a sin, the woman
on account of 3 of the divorces pronounced become Current situation - From the decision of the SC, the decision is different from state to
irrevocable divorce. The rest 997 of divorces are sins on his state. SC in Malaysia are allowed to make reference to any Islamic
neck.’ Sect (which are more practical and suitable to the current needs)
Malaysian position There is no statutory provision regarding this issue. Under from time to time in deciding the family issue before them. A
Shafie law generally prevalent in Malaysia, the conclusive provision regarding the triple pronouncement of talaq in
pronouncement of 3 talaqs at one and same time and in one one sitting should be inserted in State Family Enactment to ensure
sitting is regarded as the pronouncement of three divorces.- all SC can give a similar decision if this case been brought before
Mohd Zuhdi Mohd Nawawi v Norsharifah Sharif JH XVII 11 them.

However from the decided cases, both view had been accepted by SC in deciding Procedures of divorce by talaq
the issues.
s.47 (1) IFLA In ensuring that the husband does not abuse the power to divorce
Re Mohd Hussin Abdul Ghani & Satu Lagi [2004] 1 CLJ (SYA) 251 the wife without just cause, the law provides that either party to the
marriage may apply for divorce by way of talaq and such
The husband in this case, a follower of the Hanafi School, had uttered the words "I
pronouncement shall be utter before the syariah judge by the
divorce you with three talak" to his pregnant wife. An order was granted confirming
husband.
that the utterance had entailed a divorce of three talak. Regretting the incident, and
s47(3) IFLA The method is known as divorce by mutual consent which requires
moved by a desire to live as husband and wife again, the parties appealed and
the consent of both parties with the advice of the court to make it
applied to the Appeal Board for a declaration that the utterance of talak aforesaid
effective.
had only resulted in a divorce of one, and not of three talak. The court in bearing in
s.47(4) IFLA After the pronouncement of talaq, The Court shall record the fact of
mind the mazhab of the husband, and the majority opinion of the Hanafi jurists, held
the pronouncement of one talaq and shall send a certified copy of
that the single pronouncement of three talak by the husband had only entailed one
the record to the appropriate Registrar and to the Chief Registrar for
talak, more so when the wife was pregnant at the material time.
registration
s.54 IFLA The divorce will only be registered after the court has made a final
order.
Pronouncement outside court Tunku Ainah Tunku Mamor v Mohd Adil Yahya[2007] ShLR 125
Syariah High Court Shah Alam had set aside the trial judge decision and order retrial
S55A - Even though the law allowed the registration of divorce outside court, need to before another judge. The issue – H’s pronouncement one talaq at their house in PJ
report to the Court within seven days. had been affirmed and registered at the Office of Registrar for Muslim Marriage,
Divorce and Rujuk PJ- without W attendance as she was sick at that time. Neither
S55A(2) - The Court after receiving the report shall hold an inquiry to ascertain whether the W or her representatives had been called before SC making its decision (based
the talaq that was pronounced is valid according to Hukum Syara'. only to H admission).The Syariah High Court held that an order cannot be made
unless both parties were given equal opportunity to adduce evidence and
S124 – it is an offence if the H divorces his wife by the pronouncement of talak in any submission to defend themselves of their rights. The SSC judge had erred in Hukum
form outside the court and without the permission of the court – shall be Syarak and in law as he had failed to call the W or her representatives to adduce
punished with a fine not exceeding RM1000 or with imprisonment not evidence before making its decision in favour of H.
exceeding 6 months or both.

Zainab v Abdul Latif (1991) 8 JH 297 Pronouncement of talaq through electronic medium
There was an application by the H to confirm the divorce that was pronounced
Electronic medium includes email, sms, phone, fax.
outside the court in the presence of his wife (app) and witnessed by one lady officer
form the counseling unit. The wife denied the divorce and stated that she had never
Legal position - it is an implied utterance (kinayah) – because of the existence of
consented to it (disputed the divorce). The Syariah Appeal Board insist of statement
ambiguity in 2 pillars of divorce .i.e. pronouncement (sighah) and
from two witnesses in the case where the Talaq was disputed by the Wife.
intention of the H.

Rojmah v Mohsin (1991) 8 JH 268. Any implied pronouncement - required the Husband’s intention to effect the divorce.
The Syariah Appeal Board insist of statement from two witnesses in the case where
the Talaq was disputed by the Wife. Zaiton Hamim v Nor Husin Othman (1999 JH I Jld.13, 115
Dissolving a marriage through SMS can be categorized under pronouncement of
Abdul Rahman bin Ishak v Syarliza Zainal Abidin [2005] 4 ShLR 165 talaq outside the court.
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 - Whether it is valid or not? Court had given different approach
permission was valid in accordance with Hukum Syara’ and had taken effect after
failing to observe the ta’liq conditions (H began gambling after the event). Azida Fazlina Abdul Latif v Shamsudin Latif Based on H’s oath only
(Ogos 2003)
Radzi Abdullah v Sharifa Bibi Nawabbudin [2006] 4 ShLR 72 Zainab Mahmood v Abd Latif Jusoh (1993) JH Based on H’s oath and
At their matrimonial home, H uttered the following words to his W’ I divorce you, I II, 297 statement from to witnesses.
divorce you, I divorce you. Then H subsequently applied to register the divorce
outside court. W denied the utterance and alleged that H was in fact not at their Pronouncement of divorce through letter
matrimonial home at the said time and date. H alleged that he had renounce Islam
and went back to Hinduism. Held- confirming the talaq bain kubra. H confession of Issue - Whether effective or not?
divorce is acceptable provided that there is no doubt and suspicious.
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
Haslina Abd Majid v Jamel Mat Noh [2006] 4 ShLR 60
upon you… and with this all relationships between us shall come to an end.” Gombak
PW alleged that DH on 4.3.2003 while in a car uttered to the PW the words’ I divorce SSC affirmed a divorce of 3 talak had taken place. H appeal. Held – affirm the
you with one talaq’. Again on 17.3.2003 the H uttered to the W the words, I divorce decision. The pronouncement or words used by the AH in his said letter were clear
u with one talaq. Both utterance admitted by DH. However H claimed the actual and unequivocal namely the word talak.
words is different, the 1st utterance was’ you take one talaq, only then you will know.
3 weeks after they agreed to reconcile. The 2nd utterance was ‘okay I Will give you The jurist were unanimous that a marriage would stand dissolved by the suedof
one talaq later’ – claiming that he has no intention of divorcing his W. Held: the 1st the word talak or such like word, be it verbally pronounced, in written from or in
utterance of talaq was effective and was ordered to be registered but the 2 nd sign language. In any case, since the pronouncement was written in clear (sarih)
utterance of talaq was ineffective for want of prove. words, it would no longer be necessary to prove intention. The divorce was valid
as prerequisites are there.
DIVORCE BY STIPULATION/ CONDITION (TAKLIK) Noraini Abd Rahman v Md Taib Hanapi [2005] 332
Utterance of taklik talak by way of insinuation (kinayah). DH had debarred his PW
Meaning of taklik - a promise expressed by the husband after solemnization of marriage from making telephone calls to a woman named khalijah with a warning ; don’t make
in accordance with Hukum Syarak and the provisions of this Act. any more telephone call to Khalijah and don’t badmouth her if you do that would be
-S2 IFLA- the end of the relationship between us. The PW ignored the prohibition and
henceforth made several calls to Khalijah through her hp. The DH had uttered a
Talaq taklik will be in effect if one of the conditions in an agreement or ‘surat takliq’ is taklik talak by way of insinuation/kinayah with the intention that the PW would stand
not fulfilled or is breached. divorced if the condition therein is fulfilled. The condition being that the PW made s
telephone call to Khalijah, irrespective of whether or not the call was returned or
Example: “Jika engkau balik ke rumah bapamu maka tercerailah kamu”. whether or not Khalijah had listened to it. With the PW making a phone call to
Khalijah after the pronouncement of the taklik talak, the condition thus spelt out was
A formula uttered by any sane adult H as a condition for divorcing his W upon the fulfilled, thereby triggered a divorce under syarak and statutes
occurrence of a specified condition.

Talak taklik in Malaysia Taklik talaq in accordance with law.

It has been statutorily required under the Malaysia Islamic Family Law that the H must In Federal Territory the prescribed form of the taklik is as follows:
pronounce taklik after solemnization of the marriage. ‘I do solemnly declare when I leave my W for 4 months voluntarily or involuntarily
and I or my representative do not give maintenance for such period whereas she is
Can be divide into 2: obedient to me or I cause hurt to her person, then she makes a complaint to the SC
- Ta’liq talaq uttered by the H’s option and if found by the SC to be true, and she gives to the SC for me a sum of one
- Taklik talaq in accordance with law. ringgit, then she is divorced by a talaq khul’i’.

Taklik talaq uttered by the husband’s option. S50 IFLA - Divorce under taklik or stipulation

Norizam v Halim Azman (1993) 10 JH 65 - W, on the evidence of the breaking of condition stipulated,
The H uttered taklik verbally to the effect that if the W wen to see, or to refer to a may make a complaint to the Qadhi and apply for a divorce by
certain individual relating to religious matters, she would be divorced with one talaq. How the taklik.
Subsequently, the PW went to see the person. Therefore, the court held that she taklil - Upon receiving such application, the Qadhi will then record
was divorced with one talaq. operates? the sworn statement of the W and of at least 2 witnesses. If
Qadhi satisfied that the provisions of Islamic law have been
complied with, he will proceed to make an order the decree as
Zainuddin Kamaruzzaman v Khairuzita Kharuddin [2006] 1 CLJ (Sya) 366- is lawful.
The appellant 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 Grounds for talak taklik according to law
(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 Perlis No Taklik Talaq
night. 2nd his intention not to divorce her but to prevent her from seeing Jamaluddin. Perak - Desertion for 3 months
Held- SHC affirm the decision made by SSC- the 1st pronouncement was an - Ruju’ without W consent
express pronouncement- intention is irrelevant- divorce of one talaq. 2nd – taklik had Kedah Desertion for 6 month
clearly been fulfilled- resulted a divorce of 2 talaq. Terengganu Desertion 4 months
Penang - Desertion 4 months
- Failure to provide maintenance
- Ruju’ without W consent
- Assault
Federal - Desertion 4 months
Territory - Failed to give maintenance
- Cause physical harm
- (provide for talaq khulu’- RM1)
 Negeri - Desertion 4 months Normah v Abdul Razak (1988) 6 JH 86
Sembilan - Failed to give maintenance The P made an application for divorce on the ground that her husband had been
- Cause physical harm imprisoned for 6 months. At the time of the application, the H never sent her any
Johor - Desertion 4 months maintenance, neither any assets to be used. After being satisfied with evidence, the
- Failed to give maintenance court confirmed their divorce by way of taklik.
- Caused physical harm (provide for talaq khulu’- RM1) Missing
for 1 year or more
Kelantan - Desertion 4 months Cases of desertion
- Failed to give maintenance
Desertion – refers to a situation whereby the H has not lived together with the W for a
- Caused harm to physical , property & dignity
certain, continuous duration of time.
- (provide for talaq khulu’- RM 1)
Pahang - Desertion 4 months
In the case where the H was present the court will hear both parties and decide on
- Failed to give maintenance
the evidence.
- Caused physical harm (provide for talaq khulu’- RM1) Missing
for 1 year or more
Aminah v Ahmad [1971] 2 JH 91-Perlis
Melaka - Desertion 4 months
- Failed to give maintenance In cases where H was absent, on proof of service of the notice or summons on the
- Caused physical harm H, the W could give her evidence and call witnesses and she would also be asked
Selangor - Desertion 4 months to take a solemn oath to strengthen her claim. In this case, the judge dissolved the
- Failure to give maintenance marriage with one talak based on the pronouncement of taklik during the
- Caused physical harm solemnization. Even though there is no specific provision on taklik in Perlis, this
- Ruju’ without W’s consent (provide for talaq khulu’- RM1) decision shows that taklik divorce can constitute a ground to dissolve the marriage.

Cases of failure to provide maintenance. Rohana Othman v Abu Bakar Jamaluddin (2006)-Melaka-
SC granted one talaq (Takliqtalaq) on the ground that H had deserted his W for more
The usual cases of cerai takliq are those where the W claims that she has not been than 4 months.
given maintenance. In some cases the H attends the court, in others he is not present.

Arfah Yusof v Mohd Bakri Abu Bakar [2008] 1 ShLR 147 Normah v Ahmad Kamaruddin (1977) 5 JH 355
The court held that as the PW and her witnesses had merely proved failure on part The PW made an application for taklik divorce on the ground that her H had left her
of DH to provide maintenance without establishing the issue of desertion had by sending her to her father’s house but never picked her up. H/e, the H in his
convinced the court that the DH had not completely violated the taklik condition. in defence alleged that he tried to pick but she refused to follow. On the issue of
this case the PW had seek for taklik divorce on the ground that the DH had failed to maintenance, the H said that it was due to her disobedience. The court rejected the
provide her maintenance as she had left to Perth Australia to pursue her PhD with application because the P’s disobedience to her husband was questionable.
the knowledge and consent of H and since then there had been no maintenance
provided by H. Despite the fact that the P managed to prove that the D had failed to Cases of assault
give her maintenance, the failure on her part to prove desertion resulted in her claim
being rejected. - If the H causes physical harm or injuries to the wife.
- Harm her means to hit or to cause injuries beyond what is permitted in Islamic law.
Noorjahan Zainal Abidin v Ghulam Nabi Kausar b Abd Aziz Din 2008 1 ShLR 91 - The court will hear the evidence and decide on the case.
The SHC Shah Alam had reaffirm the decision made by SSC on the ground that she
failed to prove her allegation regarding maintenance namely no bayyinah from 2 Hasnah v Saad [1975] 3 JH 84 Perlis
males witnesses had been given to support the Applicant W claims. The appellant The P lodged a complaint to the court that her H had hit her. A medical report was
W applied to have her marriage annulled through fasakh on the ground inter alia that submitted as evidence together with the police report. After being satisfied that the
he respondent had failed or neglected to provide her with maintenance for 3 months. H had pronounced taklik and that the claim he never caused injuries to the W had
not been proven, the court confirmed their taklik divorce.
 Dah v Abdullah [1974] 3 JH 120 Perlis Case: Aisny Mohd Daris v Hj Fahro Rozi bin Mahdi [1990] 2 MLJ xxvi
The P’s H hit and caused abrasion to his W, caused her to be treated at the hospital.
She made a police report. The H admitted that he had caused injuries but claimed
that the medical report and police report were false. This claim was not supported
by any evidence and he also refused to cross-examine the P. after considering all
the evidence, the court confirmed their divorce.

Adiba Yasni v Abdul Rani [1986] 7 JH 44

Medical certificate alone is not enough to prove the D’s act had caused physical
harm to P. In this case, the P seek divorce on the ground that she had been severly
beaten by her husband. There was no other evidence except a witness who was a
maid aged 17 who saw the incident. The H alleged that the W slapped and strangled
her own face and neck. The court then viewed that both parties had failed to produce
sufficient evidence as regards the question of who has caused such injuries to P.
The court then asked the D to take an oath. The application of taklik divorce was
rejected.

Nor Ainey Hashim v NorAzhar Jamaluddin-

Talaq takliq had been granted by the SC on the ground the H’s drinking habit, always
assaulting the W and failure to provide for maintenance