d) She wanted to claim half of the shares, monies and properties under the husband's name because she

had been an active partner in the husband's

company. She was worried that her husband will transfer these properties to his second wife.

Party : Zawiyah (the wife)

An-Nisa, ayat 32: For men is a share of what they have

earned, and for women is a share of what they have earned.
Under section 2 of Islamic Law Reform and Marriage
where property jointy acquired by husband and wife during the
subsistence of marriage in accordance with the conditions
stipulated by hukum syarak
In the case of Robert v Umi Khaltum, Raja Azlan J stated that
harta sepencarian is a matter of Malay Custom and applicable
only to the case of a divorced spose who claims against the
other spouse during his or her lifetime

LAW

BOTO TAHA V JAAFAR MOHD [1985]

2 MLJ 98

Apply :

Applying to the situation at hand, the wife can claim for monies, shares

e) Her husband must make a promise to the court to treat her fairly or else their marriage would be
terminated in accordance with the taklik pronounced by her husband at the time of their marriage.

Party : Zawiyah
Taklik means suspended or attached. It envisages the occuring of something with
conditions. In the context of divorce, a talaq will be in effect if one of the condiitions in
an agreement or surat taklik is not fulfilled or is breached. As conditions are prerequites, there has to be an agreement or the surat taklik. This agrement is reached or
sealed at the solemnization of the marriage or the akad nikah. The conditon are listed
in a specified from and agreed by both parties.
Al-Maidah, ayat 1: Oh you who believe! Fulfil all obligations. Hadith: The Prophet SAW
said A believer is bound by his agreement, except an agreement to make lawful what
is unlawful and to make unlawful what is lawful.
There are two types of taklik which are Mudhaf and Muallaq (stipulation related to
spouses action). However, taklik that are related to the situation above is taklik
muallaq where the husband divorces his wife upon the commision of certain act. The
divorce is not effective until and unless the specified act is committed.

LAW

AMDAN V GHAZALI

APPLY :
Applying to the situation above, where the husband
has do the lafaz taklik at the early of marriage that if
he has not treat the wife well then talaq is effected,
Hence, since the husband is seldom returned to their
house after the second marriage, it amounts to unfair
treatment to her as the first wife. The divorce is
effective once the specified act is committed as it
breaches the agreement or surat taklik for the
husband to treat Zawiyah fairly.

Latif, in his counter-claim, alleged the following:

i) Zawiyah had refused to move to the new house that he had bought
because she did
not want to leave her aging parents.

Party : Latif

Section 59(2) of Islamic Family Law Act 1984 :

nusyuz happens when a wife disobey lawful wishes of her
husband by, withhold her association, leave the
husbands agaisnt his will and refuses to move with him to
another home, without valid reasons.
section 59(3) :
once the wife repents, she is entitled for the maintainence
back. In section 63, an agreement of maintainence is
effective upon approval with or without condition from
court and is a good defense to any claim for maintainence

In the case of Haji Ali v Aishah

(1981) MLJ 241
In the case of Haji Ali v Aishah, the wife claimed maintencace from her husband. The parties
had been married in 1972 and had lived for about a year when the wife left her husband to
live in a different house and then with her mother. She claimed that she was forced to leave
because of the differences with the first wife of the husband. She cclaimed thst the husband
had not paid her any maintainence or gone to live with her since 1975. She claimed
maintence from 1975. The defence of the husband was that the wife had left him to go back
to her mthers house and had refused to return to him. The learned Chief Kadi gave
judgement for the wife and ordered the husband to pay the sum of rm1710. However the
husband appealed and it was allowed as it was held that two important matters were not
considered at the trial whther in leaving the house the wife was guilty of nusyuz or not and
whether the husband was able to give maintenace to the wife as the evidence showed that
he was old and ill ad had no income or property.

APPLY :
Applying to Latifs situation where he claims that
Zawiyah, the wife is nusyuz when she refused to move
to the new house that he had brought, Hence, since
she is nusyuz, she is not entitle to be paid any
maintenance as accordance to section 59 of Islamic
Family Law Act 1984. However, on Zawiyahs part,
eventhough she claims that she has her own reason to
not to follow her husband to move in the new house as
she did not want to leave her aging parents, the
reason is still not valid for her to refuse to follow her
husband.

REFERENCES
Mimi Kamariah, 2001, Family Law in
Malaysia