Dissolution of Muslim Marriage Part II

KHULU (Divorce by redemption)

The wife has the right to claim dissolution of marriage if there is apprehension that she transgress the limits of God. Eg. when she deeply detests her husband and can no longer perform her marital duties, she can take step to terminate the marriage. Khulu is effected by means of appropriate words, spoken or written by two parties or their respective agents, by which the wife offers and the husband accepts compensation out of her property for the release of his marital rights. The divorce is completed by pronouncement of talaq. It is irrevocable and is classified as talaq bain sughra. Technically khulu is the divorce of husband and wife for a compensation paid by the wife to the husband.

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 longer loves him, she no longer wishes to continue conjugal relations with him or she is unable to tolerate or accept his negative behaviour. Surah 2:229 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 freedom. These are the limits ordained by Allah, so do not transgress them. 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 repudiation when they cannot live according to Gods will morally and religiously. The amount of money/value of gift is not fixed - dependent on Hs approval. It may include a house, a car, a piece of land, an orchard or even the return of the mas kahwin (mahr)

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

Procedure for Khulu

S 49 of IFLA

Cases

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

TALIQ

In Islam, a formula uttered by any sane adult husband as condition for divorcing his wife upon the occurrence of a specified condition is effective. Considered as conditional divorce. Surah 5:1 O you who believe! Fulfill all obligations. Taliq is normally attached to a marriage contract. The usual form of taliq condition set down leaving the wife the right to seek divorce if the husband fails to maintain her for a period three to four months, if the husband absent himself for four months or more without sending any maintenance to the wife.

A talaq will be in effect if one of the conditions in an agreement or surat talik is not fulfilled or breached. As conditions are pre-requisite, there has to be an agreement /surat talik. This agreement is sealed at the solemnization of the marriage/ the akad nikah. The conditions are listed in a specified form an agreed by both parties. 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 divorce by taliq. Upon receiving such application, the Qadhi will then record the sworn statement of the wife and of at least two witnesses. If satisfied that provisions of law have been complied with, he will proceed to make an order the decree as is lawful. The particulars will be recorded into the register and certificate of divorce will be issued S50 of IFLA

The form of ta liq prescribed in Kuala Lumpur is as follows: I do solemnly declare when I leave my wife for 4 months Hijrah continuously or more voluntarily or with 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, then 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 a talaq khuli.

Cases failure to maintain where husband was present

Aminah v Ahmad Amdan v Ghazali Zabidah v Abdul Rahim Aisny v Hj Fahro Razi W applied for confirmation of the cerai taliq under S. 50(1) of IFLA(FT) 1984. Court held : since the H had neglected to maintain her for more than 4 months, W is entitled to have the cerai taliq confirmed.A divorce by one talaq was decreed.

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

Cases where husband was absent/assault on the wife

Siti Zainab v Mohamed Ishak Fathillah v Mohamed Ghafar Piah v Muhammad Zainal Tuminah v Arifin Hasnah v Saad

FASAKH

It means the annulment of the marriage contract by the court after the W has made and application therefor. Hence, whilst the H has the talaq, the W has the fasakh to dissolve the marriage. Surah 2:231 Surah 4:128

Although fasakh is at the disposal of the W, two further conditions must be fulfilled by the W before court can grant her application: i) No agreement or consensual plan between H and W to divorce each other through fasakh; ii)There must be an evidence on oath of 2 witnesses, if the disability is impotency

Fasakh is also available to the H, if he becomes aware that his W is insane, suffering from leprosy or elephantiasis/ is incapable of sexual intercourse because of physical infirmity. In practise, this option is rarely exercised as the H already has the right of talaq.

Grounds for fasakh

1) Seperation due to disease or defect According to Shafii school, a H or W may be granted fasakh on the basis of the following: i) unsoundness of mind ii) leprosy or elephantiasis iii) vertiligo iv) any illness which prevents them from sexual intercourse, such as impotence or absence of sexual organ.

Cont..
2) Non-providing maintenance 3) On account of cruelty 4) H has deserted the W or has been imprisoned S 52 of IFLA

Cases

Abdul Aziz v Che Pah Atikah Abdul HAmid v Razali Ahmad Rafiah v Hassan Habsah v Ahmad Rosnani v San Ahmad Joan Mary v Sulaiman

LIAN

When a man accuses his W of adultery, but has no witnesses other than himself, he must testify 4 times that he is truthful, and a 5th time the curse of Allah shall be upon him, if he lied. To avoid chastisement, the wife must also testify 4 times that he has lied and a 5th time that the wrath of Allah should be upon her, if he had been truthful. The marriage then dissolved and became irrevocable.

Surah 24:4-9 S 50A IFLA