Dissolution of Muslim Dissolution of Muslim Marriage – Part IIMarriage – Part II

KHULU’ (Divorce by redemption)KHULU’ (Divorce by redemption)

The wife has the right to claim dissolution of marriage if there The wife has the right to claim dissolution of marriage if there is apprehension that she ‘transgress the limits of God’. Eg. is apprehension that she ‘transgress the limits of God’. Eg. when she deeply detests her husband and can no longer when she deeply detests her husband and can no longer perform her marital duties, she can take step to terminate the perform her marital duties, she can take step to terminate the marriage.marriage.

Khulu’ is effected by means of appropriate words, spoken or Khulu’ is effected by means of appropriate words, spoken or written by two parties or their respective agents, by which the written by two parties or their respective agents, by which the wife offers and the husband accepts compensation out of her wife offers and the husband accepts compensation out of her property for the release of his marital rights. The divorce is property for the release of his marital rights. The divorce is completed by pronouncement of completed by pronouncement of talaqtalaq. It is irrevocable and is . It is irrevocable and is classified as classified as talaq bain sughra.talaq bain sughra.

Technically khulu’ is the divorce of husband and wife for a Technically khulu’ is the divorce of husband and wife for a compensation paid by the wife to the husband.compensation paid by the wife to the husband.

A wife requests for a divorce from her H by offering him money/gifts – A wife requests for a divorce from her H by offering him money/gifts – she is unable to live with the H for various reasons, such as when she no she is unable to live with the H for various reasons, such as when she no longer loves him, she no longer wishes to continue conjugal relations with longer loves him, she no longer wishes to continue conjugal relations with him or she is unable to tolerate or accept his negative behaviour.him or she is unable to tolerate or accept his negative behaviour.

Surah 2:229Surah 2:229“ “ If you (judges) do indeed fear that they would be unable to keep the limits If you (judges) do indeed fear that they would be unable to keep the limits

ordained, there is no blame on either of them if she gives something for her ordained, 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 freedom. These are the limits ordained by Allah, so do not transgress them”.them”.

This verse permits awife to redeem herself by giving some consideration to This verse permits awife to redeem herself by giving some consideration to her husband and permits the husband to accept it in exchange for his her husband and permits the husband to accept it in exchange for his repudiation when they cannot live according to God’s will morally and repudiation when they cannot live according to God’s will morally and religiously. religiously.

The amount of money/value of gift is not fixed - dependent on H’s The amount of money/value of gift is not fixed - dependent on H’s approval. It may include a house, a car, a piece of land, an orchard or even approval. It may include a house, a car, a piece of land, an orchard or even the return of the the return of the mas kahwinmas kahwin ( (mahrmahr))

The effect of this type of divorce is that the The effect of this type of divorce is that the former H cannot return to his former former H cannot return to his former wife(wife(rujuruju’), cannot add on a talaq to his former ’), cannot add on a talaq to his former wife during her iddah period and he may wife during her iddah period and he may return to his former wife only after marrying return to his former wife only after marrying her again with a new her again with a new mas kahwin.mas kahwin.

Procedure for Khulu’Procedure for Khulu’

S 49 of IFLAS 49 of IFLA

CasesCases

Talib bin Salleh v Sepiah (1979) 1 JH(1) 84Talib bin Salleh v Sepiah (1979) 1 JH(1) 84 Che Pah v Siti Rahmah (1974) 2JH 244Che Pah v Siti Rahmah (1974) 2JH 244 Nerah v Ahmad (1965) 3 JH 101Nerah v Ahmad (1965) 3 JH 101

TA’LIQTA’LIQ In Islam, a formula uttered by any sane adult husband In Islam, a formula uttered by any sane adult husband

as condition for divorcing his wife upon the as condition for divorcing his wife upon the occurrence of a specified condition is effective. occurrence of a specified condition is effective.

Considered as conditional divorce. Considered as conditional divorce. Surah 5:1 – O you who believe! Fulfill all Surah 5:1 – O you who believe! Fulfill all

obligations.obligations. Ta’liq is normally attached to a marriage contract.Ta’liq is normally attached to a marriage contract. The usual form of ta’liq – condition set down leaving The usual form of ta’liq – condition set down leaving

the wife the right to seek divorce if the husband fails the wife the right to seek divorce if the husband fails to maintain her for a period three to four months, if to maintain her for a period three to four months, if the husband absent himself for four months or more the husband absent himself for four months or more without sending any maintenance to the wife. without sending any maintenance to the wife.

A talaq will be in effect if one of the conditions in an agreement or A talaq will be in effect if one of the conditions in an agreement or surat ta’liksurat ta’lik is not fulfilled or breached. As conditions are pre- is not fulfilled or breached. As conditions are pre-requisite, there has to be an agreement /requisite, there has to be an agreement /surat ta’lik.surat ta’lik. This agreement This agreement is sealed at the solemnization of the marriage/ the akad nikah.is sealed at the solemnization of the marriage/ the akad nikah.

The conditions are listed in a specified form an agreed by both The conditions are listed in a specified form an agreed by both parties.parties.

If such thing happens, the wife, on the evidence of the breaking of If such thing happens, the wife, on the evidence of the breaking of this condition, may make a complaint to the Qadhi and apply a this condition, may make a complaint to the Qadhi and apply a divorce by ta’liq. divorce by ta’liq.

Upon receiving such application, the Qadhi will then record the Upon receiving such application, the Qadhi will then record the sworn statement of the wife and of at least two witnesses.sworn statement of the wife and of at least two witnesses.

If satisfied that provisions of law have been complied with, he will If satisfied that provisions of law have been complied with, he will proceed to make an order the decree as is lawful. proceed to make an order the decree as is lawful.

The particulars will be recorded into the register and certificate of The particulars will be recorded into the register and certificate of divorce will be issued – S50 of IFLAdivorce will be issued – S50 of IFLA

The form of ta’ liq prescribed in Kuala Lumpur is as follows:The form of ta’ liq prescribed in Kuala Lumpur is as follows:

“ “ II do solemnly declare when I leave my wife for 4 months do solemnly declare when I leave my wife for 4 months Hijrah continuously or more voluntarily or with force, and Hijrah continuously or more voluntarily or with force, and I or my representative do not give her maintenance for I or my representative do not give her maintenance for such period whereas she is obedient to me or I cause hurt such period whereas she is obedient to me or I cause hurt to her person, then she makes a complaint to the Shariah to her person, then she makes a complaint to the Shariah court and if found by the Shariah court to be true, and she court and if found by the Shariah court to be true, and she gives to the Shariah court which received on my behalf a gives to the Shariah court which received on my behalf a sum of one ringgit, then she is divorced by a talaq khulisum of one ringgit, then she is divorced by a talaq khuli.” .”

Cases failure to maintain where Cases failure to maintain where husband was presenthusband was present

Aminah v AhmadAminah v Ahmad Amdan v GhazaliAmdan v Ghazali Zabidah v Abdul RahimZabidah v Abdul Rahim Aisny v Hj Fahro RaziAisny v Hj Fahro Razi

W applied for confirmation of the cerai ta’liq under S. W applied for confirmation of the cerai ta’liq under S. 50(1) of IFLA(FT) 1984. Court held : since the H had 50(1) of IFLA(FT) 1984. Court held : since the H had neglected to maintain her for more than 4 months, W neglected to maintain her for more than 4 months, W is entitled to have the cerai ta’liq confirmed.A is entitled to have the cerai ta’liq confirmed.A divorce by one talaq was decreed. divorce by one talaq was decreed.

Fakhariah v Johari [1992] 9 JH 69Fakhariah v Johari [1992] 9 JH 69The court held that the fact that the H’s refusal The court held that the fact that the H’s refusal to maintain the W because she went to to maintain the W because she went to America to further her studies without his America to further her studies without his permission, did not absolve the ta’liq made by permission, did not absolve the ta’liq made by the H. It futher stated that there was no express the H. It futher stated that there was no express condition in the ta’liq stating that the W was condition in the ta’liq stating that the W was only entitled to the maintenance is hse was not only entitled to the maintenance is hse was not nushuz, nushuz, and gave the decree in her favour.and gave the decree in her favour.

Cases where husband was Cases where husband was absent/assault on the wifeabsent/assault on the wife

Siti Zainab v Mohamed IshakSiti Zainab v Mohamed Ishak Fathillah v Mohamed GhafarFathillah v Mohamed Ghafar Piah v Muhammad ZainalPiah v Muhammad Zainal Tuminah v ArifinTuminah v Arifin Hasnah v SaadHasnah v Saad

FASAKHFASAKH It means the annulment of the marriage contract by the court It means the annulment of the marriage contract by the court

after the W has made and application therefor. Hence, whilst after the W has made and application therefor. Hence, whilst the H has the talaq, the W has the the H has the talaq, the W has the fasakhfasakh to dissolve the to dissolve the marriage.marriage.

Surah 2:231Surah 2:231 Surah 4:128Surah 4:128

Although fasakh is at the disposal of the W, Although fasakh is at the disposal of the W, two further conditions must be fulfilled by the two further conditions must be fulfilled by the W before court can grant her application:W before court can grant her application:

i) No agreement or consensual plan i) No agreement or consensual plan

between H and W to divorce each other between H and W to divorce each other

through fasakh;through fasakh;

ii)There must be an evidence on oath of 2ii)There must be an evidence on oath of 2

witnesses, if the disability is impotencywitnesses, if the disability is impotency

Fasakh is also available to the H, if he Fasakh is also available to the H, if he becomes aware that his W is insane, suffering becomes aware that his W is insane, suffering from leprosy or elephantiasis/ is incapable of from leprosy or elephantiasis/ is incapable of sexual intercourse because of physical sexual intercourse because of physical infirmity.infirmity.

In practise, this option is rarely exercised as In practise, this option is rarely exercised as the H already has the right of talaq.the H already has the right of talaq.

Grounds for fasakhGrounds for fasakh

1) 1) Seperation due to disease or defectSeperation due to disease or defect According to Shafi’i school, a H or W may be According to Shafi’i school, a H or W may be

granted fasakh on the basis of the following:granted fasakh on the basis of the following:i)i) unsoundness of mindunsoundness of mindii) ii) leprosy or elephantiasisleprosy or elephantiasisiii)iii) vertiligovertiligoiv) iv) any illness which prevents them from any illness which prevents them from sexual intercourse, such as impotence or sexual intercourse, such as impotence or absence of sexual organ.absence of sexual organ.

Cont..Cont..

2) Non-providing maintenance2) Non-providing maintenance

3) On account of cruelty3) On account of cruelty

4) H has deserted the W or has been imprisoned4) H has deserted the W or has been imprisoned

S 52 of IFLA S 52 of IFLA

CasesCases

Abdul Aziz v Che PahAbdul Aziz v Che Pah Atikah Abdul HAmid v Razali AhmadAtikah Abdul HAmid v Razali Ahmad Rafiah v HassanRafiah v Hassan Habsah v AhmadHabsah v Ahmad Rosnani v San AhmadRosnani v San Ahmad Joan Mary v SulaimanJoan Mary v Sulaiman

LI’ANLI’AN

When a man accuses his W of adultery, but has no When a man accuses his W of adultery, but has no witnesses other than himself, he must testify 4 times witnesses other than himself, he must testify 4 times that he is truthful, and a 5that he is truthful, and a 5thth time the curse of Allah time the curse of Allah shall be upon him, if he lied.shall be upon him, if he lied.

To avoid chastisement, the wife must also testify 4 To avoid chastisement, the wife must also testify 4 times that he has lied and a 5times that he has lied and a 5thth time that the wrath of time that the wrath of Allah should be upon her, if he had been truthful. The Allah should be upon her, if he had been truthful. The marriage then dissolved and became irrevocable. marriage then dissolved and became irrevocable.

Surah 24:4-9Surah 24:4-9 S 50A IFLAS 50A IFLA