Peguam Syarie
In the preceding article (Marriage in Islam: Beyond the words “I do” Part I), we had touched on one of the two essential elements to build a happy Muslim family i.e. iman, and the two subdivisions under it, namely; ‘aqeedah and ‘ilm based on a “Muslim happy family model” as elucidated in an article entitled “Model Keluarga Bahagia Menurut Islam”, written by Nur Zahidah Hj Jaapar and Associate Professor Raihanah Hj Azahari. For this second part of the article, we will further explore the second element which is ‘amal and the subdivisions under it, as listed by the writers of the article.
‘Amal
This second element is as per stated by Yusuf al-Qaradawi, in his book called “al-‘Ibadah fi al-Islam”. The duo (writers of the article) began elaborating the second element by stating that the precondition to build a happy Muslim family is to associate iman with ‘amal. Or in other words, these two must co-exist. The writers continued that as Muslims, we must put into practice the commandments that Allah prescribed for us, as vicegerents (khalifah) of the Almighty. The branches of ‘amal as spelled out by the writers include niyyah, akhlaq, social, amanah, and physical safety, of which all of these branches will be dealt with, one by one, in the following paragraphs.
There is a quote as shown on the Brainy Quote website by Harold S. Geneen which goes “leadership is practiced not so much in words as in attitude and in actions” and Marshall Goldsmith; an American leadership guru also once said “one of the most important actions, things a leader can do, is to lead by example. If you want everyone else to be passionate, committed, dedicated, and motivated, you go first!” Based on these two quotes, we can see how important it is to actualise what we believe in and to practise what we have learnt. As human beings, we are not only leaders to our subjects but we are foremost the leaders of our own selves. It is our personal responsibility to lead our lives positively, by doing the acts that Allah orders us to do and to refrain from His prohibitions.
A verse from the Qur’an which mentions both iman and ‘amal in one verse is verse 97 of Surah An-Nahl, whereby Allah says:
“Whoever works righteousness, whether male or female, while he (or she) is a true believer (of Islamic Monotheism) verily, to him We will give a good life (in this world with respect, contentment and lawful provision), and We shall pay them certainly a reward in proportion to the best of what they used to do (i.e. Paradise in the Hereafter)”
(Translation by Muhsin Khan)
*All qur’anic translations are taken from 
Niyyah
As Muslims, niyyah or intention forms an integral part of our lives, as the acts of worship that we perform on a daily basis such as in our five daily prayers, in our ablutions, among others, revolves around niyyah; lillahi ta’ala. In fact, in the famous forty hadeeth of Imam Nawawi, the first hadeeth in its compilation is pertaining to niyyah. Whereby it is stated that “Actions are according to intentions, and everyone will get what was intended…” (See: 40hadithnawawi.com).
According to Sayyid Sabiq, in his book; Fiqh al-Sunnah, as cited by the writers of the article, the underlying objectives of building a successful Muslim family are, inter alia, to satisfy the innate fitrah of mankind in having a family of their own, to attain serenity and tranquillity of the soul, to ensure happiness in one’s household, and to produce soleh and solehah offspring.
By having a clear intention in mind, a husband and wife will strive and direct their actions towards realising the goals that a Muslim family should achieve. By contemplating on Surah Luqman, parents will get valuable guidance, on how to educate their children, and concomitantly their own selves. The lessons can be found from verses 13-19, whereby Luqman said to his son:
Not to commit syirk (associating Allah with partners)
To be dutiful and good to your parents and to give thanks to Allah and to our parents
To perform salah, enjoin for al-ma’ruf (goodness) and to forbid from al-munkar and to be patient with the adversities that befall us
Not to be arrogant to others
Portray humbleness/ moderateness (in walking and in tone of voice)
Next, according to Akram Radamursi, in his book al-‘Usrah al-Muslimah fi al-‘Alim al Mu’asir, akhlaq is one of the essential ingredients to build a happy Muslim family, as per stated by the writers in their article. We should inculcate good moral conducts in the lives of our children since small so that they will grow up to become sensible and good-natured individuals. How children behave outdoors very much reflect on the ways they are raised by their parents at home. As Prophet Muhammad s.a.w. is the best of mankind, parents should live their lives by making the Holy Prophet as an example and should shape their children with the same mould as well. Allah s.w.t. says in Surah Al-Qalam, verse 4:
“And verily, you (O Muhammad SAW) are on an exalted standard of character.”
Books such as Syama’il al-Muhammadiyyah which, inter alia, talks about the manners and moral conducts of the Holy Prophet in his everyday life and Ar-Raheeq al-Makhtum (The Sealed Nectar) which biographs about the Holy Prophet would be a good read for parents and children alike.
The writers of the article further stated that a construction of a Muslim family must be founded on the concept of husn al mu’asyarah or al-mu’asyarah bil ma’ruf i.e. good social interaction between the members of the family. The definition of “good” must be in accordance with the teachings contained in the Qur’an and Sunnah. As stated by Mahmud Saedon bin Osman in his working paper entitled “Asas Pembentukan Keluarga Bahagia”, as cited in the article, something is not declared as “good” (ma’ruf), unless it is good and blessed by Allah and it is not included in the categories of munkar, ma’siyah and abuse/corruption.
Interactive communications in one’s household are needed to connect each member of the family and for the family members to understand each other better. Dr. Amal Ibrahim Abd El-Fattah Khalil from King Saud bin Abdul-Aziz University for Health Sciences, wrote in his article entitled “The Islamic Perspective of Interpersonal Communication” that family members should make communication among them as a routine and they should improve on how they interact with one another. As communication itself is a process, each family member needs to be patient in understanding one another and in building stronger ties between them.
Bear in mind that in developing good communications between family members, it is not only about expressing one’s thoughts and feelings to another or the others, but it requires a good pair of listening ears, and a pure heart that sympathises and concerns about the matter(s) or feelings shared/expressed. Plus, each member of the family should be proactive in finding and providing solutions for any problem faced by any member of the family.
Amanah is one of the ingredients for a happy Muslim family as stated by Hidayah Allah Ahmad, in his book “Al Shash Mausu’ah al-Tarbiyyah al-‘Amaliyyah li al-Tifl”. In an article entitled “Value of Al-Amanah in Human Life” written by Sofiah bt. Samsudin and Md. Sirajul Islam from International Islamic University Malaysia, the writers began their article by providing the definition of amanah based on what was stated by Al-Ragib al-Asfahani, whereby “amanah” is originated from the word “amn”, which means “tranquillity of the heart”. And as cited by the writers, according to Al-Ragib, “amanah” literally means “honesty, straightness and integrity”.
A verse from the Holy Qur’an which talks about amanah can be found in Surah An-Nisaa’ verse 58, whereby Allah says to the effect:
“Verily! Allah commands that you should render back the trusts (al-amanaat) to those, to whom they are due…”
Reflecting on the word amanah in the above verse, the concept of amanah in Islam is very much related with the concept of “takleef” or accountability. In a family, everyone has his/her very own responsibilities be he/she a husband or a wife or a parent or even a child. And in discharging their duties and responsibilities, they are accountable in what they are doing. The duties of parents to their children and vice versa would need a topic on its own. Hence, we will not be listing one by one in this article. But the general idea pertaining to the concept of amanah in one’s family is that, by knowing that each and every member of the family has religious and familial responsibilities and duties to undertake, a family voyage would experience a smooth sailing, in sha Allah.
Physical Safety and Economic Stability
Islam, being a holistic religion (syumuliyyah) also concerns about the taking care of men’s physical and mental health. I have watched Malay dramas which depicted the characters of a husband having Othello Syndrome (delusional jealousy), which triggered him to abuse his wife uncontrollably whenever he saw his wife with other men (though for office matters), and sometimes a husband or a wife having an anger disorder which negatively affects the rest of the family members. These scenes were not merely fictional, nor were the dramas being exaggeratingly dramatic, but they are occurring in real life. Therefore, we should never take mental health issues lightly as they can lead to an irretrievably broken down marriage or even family, if not taken care of properly.
Islam acknowledges mental health issues, and according to Associate Professor Dr. Ramli Musa, from Kulliyyah of Medicine, International Islamic University Malaysia, the Islamic model that is designed to cure mental illness is known as “bio-psycho-social and spiritual model”, whereby the psycho-social aspect requires the support of the family members. This shows that, family members should not be in denial of nor neglect the mental illness but need to address the matter by providing all the attention, love, help and support that they can give towards the affected member, and to seek professional advice and treatment to cure such mental illness.
On the other hand, when it comes to financial management in a family, both parents especially the husband/father who has the responsibility to provide sustenance for the family, need(s) to ensure the economic stability of the family, avoid extravagant expenditures and inculcate saving habits in their children at an early age. Though wealth can never guarantee happiness, economic stability can help to provide a better living standard for the betterment of the family.
Allah s.w.t. says in the Qur’an, in Surah Al-Israa’, verse 17:
“Verily, spendthrifts are brothers of the Shayatin (devils), and the Shaitan (Devil – Satan) is ever ungrateful to his Lord”
Building a happy Muslim family is a golden dream for many. Yet, many choose not to live in accordance to the Islamic tenets. When in fact, the Qur’an and the Sunnah have provided comprehensive guidelines for husband and wife, as well as parents and children to adhere to, in ensuring happiness and harmony in one’s family. Allah s.w.t. says in Surah Al-Baqarah, verse 256:
“Whoever disbelieves in Taghut and believes in Allah, then he has grasped the most trustworthy handhold that will never break”
The time has come for each member of the family to make a self-reflection and determine the aspects in life that we can improve, in line with the Islamic teachings to build a family that is filled with mawaddah, sakeenah, wa rahmah, in sha Allah. Wallahu a’lam.
As people could be easily infatuated with and be blinded by love, it is very pertinent to consider the right person you are going to spend the rest of your life with, as your spouse is the one that will be your support system and your other half, in creating a family that is filled with mawaddah, sakeenah wa rahmah.
Taqwa or righteousness is one of the key considerations in selecting a spouse. Allah says in Surah Al-Nuur verse 32: “Marry those among you who are single, and the virtuous ones among your slaves, male or female; if they are in poverty, Allah will give them means out of His grace: For Allah is Ample-giving, and He knows all things”. In commenting about this verse, the writer of “Tuhfat al-‘Arous (The Bride’s Boon)” stated that “religiousness is the only condition mentioned in the verse for a suitable match”.
And in fact, in a famous authentic hadeeth narrated by Bukhari and Muslim, the Prophet said: “A woman is married for four things: her wealth, her family status, her beauty and her religion. So you should marry the one who is superior in religion, otherwise you will be a loser”. Based on the Quranic verse and the hadeeth of the Prophet, by marrying someone who is faithful to his or her religion, a marriage and family that are erected towards seeking Allah’s pleasure can be achieved, and whenever something is done that is not incompliance with the Islamic faith, the other spouse can help to rectify the wrong done and pull the other back on track towards the truth, as stated by Dr. Aisha Hamdan, in her book entitled “Nurturing Eeman in Children” at page 50.
Marriage and parenting are interrelated. A righteous marriage couple needs to be guided on how to steer and navigate their marriage life towards building a blessed and happy family institution. Below are listed the ingredients to build a happy family from the Islamic perspective.
MUSLIM MODEL OF A HAPPY FAMILY
In an article written by Nur Zahidah Hj Jaapar from UiTM and Associate Professor Raihanah Hj Azahari from the Department of Fiqh and Usul, Academy of Islamic Studies in University of Malaya, they have come up with a Muslim model of a happy family, containing a number of important elements that need to be worked out and considered by both husband and wife as parents. The two main ingredients are iman and ‘amal. Whereby, the authors divided iman into ‘aqeedah and ‘ilm. Meanwhile, ‘amal will be further divided into niyyah, akhlaq, social, amanah, as well as physical and economic safety/stability. The first part of this article will only touch on iman and the categorisations under it.
This element is discussed based on what Akram Radamursi wrote in his book entitled “al-Usrah al-Muslimah fi al-‘Alim al-Mu’asir”. According to the writers of the article, Allah stresses on the importance of protecting our faith and piety (taqwa) in strengthening the relationship among family members. In verse 1 of Surah An-Nisaa’, Allah says:
“O mankind! Be dutiful to your Lord, Who created you from a single person (Adam), and from him (Adam) He created his wife [Hawwa (Eve)], and from them both He created many men and women and fear Allah through Whom you demand your mutual (rights), and (do not cut the relations of) the wombs (kinship). Surely, Allah is Ever an All-Watcher over you”.
Dr. Aisha Hamdan in her parenting book (as cited in the preceding paragraph), had elaborated on this point rather beautifully. Since iman is what lies in the heart and to be meant as a “sincere faith” in the six pillars of iman, a child who is nurtured with iman will make a choice in his or her life from within instead of due to the external influences. And with iman in the heart, a child’s actions are directed towards reaping for Allah’s pleasure instead of seeking for worldly gains. Not only children, a husband and wife who have iman will be wary of their conducts and ensure that what they are doing are in line with what their faith preaches. With iman, the structure of a Muslim family is sturdy and firm, and without it, just like a house with broken pillars, it will inevitably collapse and crush to pieces. As iman is the basic foundation of the life of a human being, it is the most crucial element that needs to be instilled in one’s own family.
‘Aqeedah
Next, according to the writers of the article, the second element of a Muslim model of a happy family is ‘aqeedah. And this is based on Yusuf Qasim in his book called “Huquq al-‘Usrah fi al-Fiqh al-Islami”. The writers said that the strength of one’s iman is very much connected with the soundness of the ‘aqeedah of each and every individual Muslim including a husband and wife. And the ‘aqeedah is considered as sound and strong when a person’s ‘aqeedah is based on a firm faith and trust in the existence of Allah, in line with the teachings of the Qur’an and Sunnah, and to refrain from associating Allah with anything else (syirk) as well as a firm belief in the perfect traits/characteristics of Allah.
A verse in the Qur’an which reflects the call for a true ‘aqeedah is as laid down in Surah al-A’raf, verse 59, whereby Allah says:
“We had certainly sent Noah to his people, and he said, “O my people, worship Allah; you have no deity other than Him. Indeed, I fear for you the punishment of a tremendous Day.
According to Dr. Aisha Hamdan, ‘aqa’id (the plural for ‘aqeedah) connote “those things that people’s hearts affirm and believe in; things that people accept as true”. In elaborating about the relationship between ‘aqeedah and iman, she wrote that iman is founded and based on ‘aqeedah and the connection between ‘aqeedah, iman and family-building is that the existence of these two elements will be some sort of a compass which would direct the hearts of all the entities in a family unit to lead their lives with a sincere intention to please Allah, and to duly follow His commandments because of Him and not to please anybody else, as Allah says in Surah Al-Baqarah verse 165 that: “… those who believe are stronger in love for Allah…”.
‘Ilm
The next element is ‘ilm, and this is based on what was written by Yusuf Qaradawi, in his book called “Fi Tariq ila Allah”. According to the writers of the article, knowledge is the most essential precondition in attaining happiness as every single thing in this world needs to be based upon knowledge. As a Muslim who is knowledgeable, he/she needs to act according to what he/she is taught or has learned, especially in being fearful to God (taqwa). As Allah says in the Qur’an, in verse 28 of Surah Faatir:
“…It is only those who have knowledge among His slaves that fear Allah…”
Seeking and possessing knowledge are very much needed in building a happy and blessed Muslim family as knowledge will drive us to “which is true in life-to the straight path,” as written by Dr. Aisha Hamdan on “the importance of knowledge”.
To conclude the first part of this discussion, by having a profound understanding of the true concept of marriage in Islam, and the underlying objectives that a Muslim marriage aims to achieve, both husband and wife will have a clearer outlook on how they should direct their lives, in becoming righteous servants of Allah and in playing their roles as husband and wife and future parents for their children. The first three essential ingredients in building a happy and blessed Muslim family which are highlighted in this present article, concern with the inner souls and minds of human beings. Despite their intangible nature, iman, ‘aqeedah and ‘ilm are three key-ingredients that need to be strengthened first and foremost, as they lay the basic foundation in building the blocks of a successful marriage or even family life from the Islamic perspective. Without these three, a marriage or even a family life will lose its Islamic essence and true happiness will never be achieved. Wallahu a’lam.
The recognition of al-iqrar as a means of proof can be traced in various verses in the Holy Qur’an. One of the ayaat which highlights this point is verse 135 of Surah An-Nisaa’. Whereby Allah says:
O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin, be he rich or poor, Allah is a Better Protector to both (than you). So follow not the lusts (of your hearts), lest you may avoid justice, and if you distort your witness or refuse to give it, verily, Allah is Ever Well-Acquainted with what you do.[7]
Ibn ‘Arabi in interpreting this verse, had stated as follows: “…Thus, in the language of law, bearing testimony against oneself is known as acknowledgement (iqrar).”[8] From the above verse, it is clear that iqrar is not a newly man-made invention but has gained recognition and inscribed in the Holy Book since thousands of years ago.
Moreover, al-iqrar can also be seen practised during the era of the Prophet. And the oft-cited case of Ma’iz illustrated the concept of al-iqrar at its best. Whereby, in the case of Ma’iz, he had confessed to the Prophet that he had committed adultery. Only after the fourth time that he had testified to the Prophet did the Prophet call him to know if he was mad, of which, he answered in the negative and the Prophet ordered for him to be stoned to death. From this narrative, the act of Ma’iz testifying to the Prophet about his commission of adultery signified that he had testified against himself and thus connoted al-iqrar.
Meanwhile, according to ijma’, the Muslim jurists have also come to a consensus when it comes to accepting al-iqrar as a means of proof. On the other hand, based on qiyas or analogy, Wahbah al-Zuhayli stated that if the syahadah is legally accepted as a means of proof without dispute, by analogy, to accept iqrar is more preferable.[9]
In Malaysia, the issue of retracted confession had been decided in a few cases, some of which came to different conclusions pertaining to its validity. Before we delve into the cases, let us first define retraction of confession and closely examine the position of retracted confession according to the Muslim jurists.
According to the Merriam-Webster’s online dictionary, to “retract” means to “take back, withdraw”.[10] Simply said, in the present context, a retraction of confession means to withdraw or take back a confession which had been made by the maker/confessor. This discussion can be divided into the rights of Allah, the rights of mankind and ta’zir crimes.
Rights of Allah (hudud offences)
The Muslim jurists have agreed that retraction of confession in hudud offences would amount to a valid retraction. The effect of such retraction would render the hudud punishment to be substituted with ta’zir punishment if there are other evidences to support it.[11] The authorities to support this view is the case of Ma’iz, whereby when it was reported that Ma’iz attempted to run away during the commencement of stoning, the Prophet said “I wish you should have left him and brought him to me”, and Ibn Qayyim had interpreted the act of Ma’iz, attempting to run away from the scene of the execution of stoning as a connotation of retraction of confession.[12] Further, the retraction of confession creates doubt, and as the saying goes: “udra’ul hudud bil syubuhaat”. Thus, hudud punishment cannot be imposed as the retraction of confession casts doubt and doubt renders a hudud punishment unenforceable.
Rights of Mankind (Qisas)
According to Al-Qurtubi, a confession involving the rights of mankind cannot be retracted. This finding is based on Surah Al-Qiyaamah, verses 14-15[13], whereby Allah says:
Nay! Man will be a witness against himself [as his body parts (skin, hands, legs, etc.) will speak about his deeds]. Though he may put forth his excuses (to cover his evil deeds).
From the above two verses, it can be understood that whatever that has been done by a human being would be held accountable. This shall include a confession that was previously made. This finding is in line with the view of most of the jurists, including for the cases of qisas[14] and qazaf.[15] Article 1588 of the Mejelle also makes clear on this point, whereby it reads: “it is not lawful to go back from admissions concerning the rights of people”.[16] This maxim is very much related with the maxim in the Mejelle which states “a person is bound by his own admission”[17] Hence, a person who has made a confession pertaining to the rights involving mankind is bound by the confession made and is not allowed to retract it.[18]
Ta’zir Offences
According to Anwarullah, since the standard of proof in ta’zir offence suffices, if it only reaches the level of zann or beyond reasonable doubt, thus, it is not the same as in cases involving hudud offences, where retraction creates doubt and thus had punishment cannot be imposed due to the existence of doubt (retraction).[19] On the other hand, retraction in ta’zir offence does not affect the enforcement of ta’zir punishment(s).
In the Malaysian context, we could see the different approaches taken by the Syariah Courts in deciding on the issue of retracted confession. For instance, in the case of Faridah lwn. Pendakwa Jenayah Kelantan JH 1, Bhg. 1, (1981-82), 89, whereby the Plaintiff was arrested for an attempt to commit illicit sexual intercourse with a man. Initially she admitted, later she made an application to retract such confession. The Court of Appeal in allowing her application had referred to several sources such as Kitab al-Mughni and al-Raudhah, as recorded in Sharkawi Tughah, Vol. 9, page 113, whereby it is permitted for those who have made confession pertaining to the offence of zina or of drinking intoxicants, to retract his/her iqrar as though it has never taken place ab initio. The Court had also referred to Kitab Fathul Wahhab, Vol. 5, page 134, whereby a person who had committed zina but had retracted his/her confession, the judgment must be set aside[20].
A similar approach had been taken in the case of Che Lah lwn. Pendakwa Jenayah Kelantan JH 1, Bhg. 1, (1981-82), 86. In this case, the accused admitted in respect of the commission of zina with a girl. He later retracted his confession and the issue is whether he would still be liable to the said offence that he initially admitted. It was held that the initial admission cannot be taken as a proof of zina but merely of khalwat because of the existence of retraction.[21] The Court had referred to Kitab Fathul Wahhab, Vol. 5, page 134, whereby it is stated that “if a person has made a confession in zina case then retracts it, punishment cannot be imposed”.
In contrary, in the case of Pendakwa v. Awang Mat Isa (1979) JH Bhg. 1, 80, the case also involved the offence of zina. At first, the Plaintiff pleaded guilty to the said offence but later wished to retract his confession. The Court, in referring to Kitab Sharkawi Tahrir, Vol. 2, page 141, which stated that “a valid confession cannot be retracted except in cases of murtad, drinking liquor, theft and robbery”, held that the retraction was invalid and convicted the accused to three months imprisonment.[22]
In conclusion, despite that al-iqrar or confession is unanimously accepted as a valid means of proof, the effect of its retraction depends very much on the nature of cases that the maker of the confession is convicted with. Even so, from the decided cases cited above, we could see that the Courts in relying to different authorities have come to different conclusions in accepting the maker’s retraction of confession in setting aside the conviction, despite the nature of the crime is the same i.e. ta’zir offence. Be that as it may, it is worth to be reminded that as Muslims, we are bound to state the truth be it against our own selves. Remember, we may escape the punishment in this world, but never will our deeds we be left unjudged in the Hereafter by the Most Just. Wallahu a’lam.
[11] Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 367.
“And those who accuse their wives [of adultery] and have no witnesses except themselves – then the witness of one of them [shall be] four testimonies [swearing] by Allah that indeed, he is of the truthful. And the fifth [oath will be] that the curse of Allah be upon him if he should be among the liars.”
And in a hadith reported in Sahih Muslim, it was narrated that:
“Ibn Umar (Allah be pleased with them) reported Allah’s Messenger (may peace be upon him) saying to the invokers of curse: Your account is with Allah. One of you must be a liar. You have now no right over this woman. He said: Messenger of Allah, what about my wealth (dower that I paid her at the time of marriage)? He said: You have no claim to wealth. If you tell the truth, it (dower) is the recompense for your having had the right to intercourse with her, and if you tell a lie against her, it is still more remote from you than she is...”
THE OCCURRENCES OF LI’AN
‘Abd al-Fattah Ibrahim in his book entitled Ahkam al-Usrah fi al-Shari’ah al-Islamiah explains that li’an can take place in two occurrences:
When a husband alleges his wife of committing zina (adultery) but could not bring forth four witnesses.
When a husband denies the nasab of the child borne by the wife due to uncertainty in the process of the child delivery.
PILLARS (ARKAN) AND CONDITIONS OF LI’AN
Meanwhile, Basri Ibrahim in his book called Pemantapan Sistem Kekeluargaan, page 209, lists out the pillars of li’an into four, namely:
The one who pronounces the li’an (the husband):
The husband must be the legitimate husband of the wife who has been pronounced li’an upon, and the husband must be of sound mind.
The person who has been pronounced li’an upon (the wife):
The wife must be the legitimate wife of the husband (who pronounces the li’an) and of sound mind.
The cause (sabab) of li’an:
The cause of li’an as discussed above is either due to the denial of nasab of the child borne by the wife or accusing/alleging a wife of committing zina.
The pronouncement (lafaz) of li’an:
The pronouncement of li’an must be in the correct order/sequence. The majority of the scholars (ulama’) are of the view that li’an would be valid if pronounced in the Arabic language or even in other languages. Nevertheless, according to the Hanbali madzhab, any husband and wife who can speak Arabic should pronounce li’an in Arabic as illustrated in the Qur’an.
THE CONDITIONS OF LI’AN
On the other hand, the conditions of li’an as highlighted by Jabatan Kehakiman Syariah Negeri Kelantan on its online portal are:
The qazaf (the allegation of adultery by the husband towards the wife) must precede the li’an.
The li’an of the husband is followed by the li’an of the wife.
Both of the husband and wife must pronounce the words of li’an. This is because the pronouncement of li’an is elucidated clearly in the Qur’an and must be pronounced accordingly.
All the five oaths/swears of li’an must be pronounced successively, one after another (mu’allat).
The Judge must advice the parties not to tell lies whilst pronouncing li’an.
According to the above portal, all of the above conditions must be fulfilled for a li’an to be valid.
THE DURATION OF THE DENIAL OF PATERNITY (NASAB)
Muslim scholars have formed different opinions on the duration of the denial of paternity or in other words, for how long can a husband deny the paternity of the child borne by his wife? In a book entitled Pemantapan Sistem Kekeluargaan written by Basri Ibrahim, the majority of the Muslim scholars (jumhhur fuqaha’) opine that a husband cannot deny his paternity upon a child borne by his wife, after his wife gave birth to/delivered the child.
On the other hand, according to the writer, the Shafi’i madzhab permits the denial of paternity of a child to be done throughout the wife’s pregnancy until the child is born. Whereas, the scholars of the Hanafi madzhab are of the view that the denial of paternity should be made abruptly as soon as the child is born or during the process of delivery, for the li’an to be valid. In contrast, if the li’an is made after that, the li’an would not be valid. The justification for the view is that the silence of the husband before this connotes that the husband is pleased (redha) with the child.
Meanwhile, the Maliki madzhab holds the same view as the Hanafi School, but with two extra conditions attached. Firstly, the husband has not consummated the wife within a period which could cause the wife to be pregnant. Secondly, the denial of paternity must be done before the birth of the child. If the husband remains silent until the birth of the child, even after one day, the li’an of the husband will not be valid, and the husband will be imposed with a hadd punishment for qazaf due to alleging the wife of committing adultery.
THE CONSEQUENCES OF LI’AN
Now, we have come to the penultimate part of the discussion on li’an, whereby we would explore the effect(s) of the pronouncement of li’an that both husbands and wives must know before they even think of pronouncing li’an. Wahbah al-Zuhaily in his kitab entitled Al-Fiqh al-Islami wa Adillatuh explains the consequences of li’an as follows:
The hadd punishment for qazaf upon the husband will lapse and the same applies to the wife, whereby the hadd punishment for zina would lapse as well once li’an is made by both parties.
It is forbidden for the husband and wife to resume conjugal relation even prior to the faraq (judicial separation) decreed by the Judge.
The parties should be separated (faraq).
Li’an is a type of oath which would prohibit the parties who pronounced it from reconciling the marriage forever (haram mu’abbad).
If the li’an is made to deny the nasab of the child borne by the wife, the husband is not obligated to the wife and the child as there is no link of lineage intertwined between them (the husband and the child).
In conclusion, li’an shows that apart from the pronouncement of talaq, a marriage can be dissolved when a marriage couple pronounce li’an towards each other, provided that all of the conditions and pillars of li’an (as discussed above) are fulfilled. The pronouncement of li’an should not be treated as a jest, as the wrath or curse of Allah would befall upon those who are not being truthful whilst pronouncing li’an.
Looking at the Malaysian context particularly in the State of Selangor, li’an is covered under Section 51 of the Islamic Family Law (State of Selangor) Enactment 2003, whereby the provision briefly states the consequences of li’an. The Section reads:
Where the parties to a marriage have taken oath by way of li’an according to Hukum Syarak before a Syarie Judge, upon judgment, the Syarie Judge shall order them to be farak and be separated and to live apart forever.
From the above provision, similar to what have been discussed above, li’an would result in the parties to the marriage to be judicially separated (faraq) forever as li’an causes a marriage to be haram mu’abbad.
Meanwhile, under Section 36 of the Syariah Criminal Offences (Selangor) Enactment 1995, a man who alleges his wife of committing adultery without bringing forth four witnesses, and refuses to pronounce li’an is said to have committed qazaf, and would be liable for “a fine not exceeding five thousand ringgit” or for “imprisonment for a term not exceeding three years or to both.”
The punishment for qazaf as prescribed in Surah An-Nur, verse 4 which amounts to 80 lashes can only be duly imposed if the proposal to implement hudud law in Malaysia becomes a success. Wallahu a’lam.
“Then when they are about to fulfil their term appointed, either take them back in a good manner or part with them in a good manner.” – Al-Baqarah: 229
The wordings in the above two verses which state “when they are about to fulfil their term appointed” signify that ruju’ or reconciliation of marriage is only permitted during the time of ‘iddah.
According to The Oxford Dictionary of Islam, ‘iddah is defined as “The waiting period a woman must observe after the death of her spouse or a divorce, during which she may not remarry, based on the Quran 2:228 and 2:238 . The waiting period after a divorce is three months, and after the death of a spouse it is four months and ten days. Any pregnancy discovered during this period is assumed to be the responsibility of the former husband.”
And according to Taqiy al-Din Abi Bakr bin Muhammad al-Husayni (2001), ruju’ can only be made upon “a wife who has been consummated, and has been divorced with one or two talaq, without accepting any payment (khulu’) and must be made during the time of ‘iddah”. This is cited in an article entitled Rujuk: Peruntukan Undang-undang dan Pelaksanaannya di Malaysia by Raihanah Abdullah and Zulzaidi Mahmod.
This means, ruju’ can only be made when a woman is divorced with a talaq raj’i (revocable divorce), whereas, ruju’ cannot be made upon a wife who has been divorced with talaq ba’in (irrevocable divorce) as an irrevocable divorce requires a new ‘aqad (marriage contract). Having understood the general concepts of ruju’, let us proceed with the issues.
WHETHER RESUMING COHABITATION IS A VALID RUJU’ BASED ON HUKUM SYARA’
In answering this issue, we have to firstly determine the position of the wife when the “ruju’” (resuming cohabitation) was made. Construing the facts of the present case, the “ruju’” was made a month after the wife was divorced with one talaq. This means, the wife was still in her ‘iddah period as an ‘iddah period for a divorced woman is three periods of purity equivalent to approximately three months for a woman with a normal menstrual cycle. A reconciliation is thus can be made as the talaq was a talaq raj’i (revocable divorce) and the wife was still in her ‘iddah period.
The question is thus, not whether a ruju’ can be made upon the wife, but, whether the so-called “ruju’” which was made by the act of the husband, i.e. resuming cohabitation with the wife, was a valid one. It would be of significance for us to know the rukun (pillars) of ruju’, and whether all the pillars are fulfilled.
A Kuala Terengganu case of Abdullah Fuad bin Mamat v Maliza bt Awang [2013] 1 SHLR 76 had elucidated about the pillars of ruju’ rather clearly by referring to Kitab Mughni al-Muhtaj, Volume 5, page 2. The three pillars of ruju’ are: “…the husband, the pronouncement used and the wife (former wife in the period of ‘iddah)”.
The kitab further elaborated on the first pillar of ruju’ by stating: “… the conditions of the husband who wishes to reconcile are the same as the conditions to marry, which are: a person who has attained the age of maturity (baligh), of sound mind, done willfully (not coerced nor under duress), not a murtad…”
Thus, in order to satisfy the requirements of the first pillar of ruju’, as the husband, you must ensure that all of these conditions are met during the act of reconciliation.
Moving on to the second pillar of ruju’ which is the pronouncement used. What is interesting in this present case is that, there is no mention of any form of pronouncement (verbal) of ruju’ being made. Nevertheless, the “ruju’” was made through an act of resuming cohabitation. Therefore, we have to determine whether resuming cohabitation with the divorced wife (talaq raj’i) during her period of ‘iddah, would constitute a valid form of ruju’.
The case of Norshinah bte Kamaridun v Baharuddin bin Othman [2005] 4 SHLR 158 would be of good reference as this case also discusses on the validity of ruju’ by way of resuming cohabitation. This case referred to Kitab Mughni Muhtaj, Volume 5, at page 6, which states: “There would be no ruju’ by way of sexual intercourse.” Nevertheless, there are actually differences of opinions of the four madhahib with regards to this matter.
According to Raihanah Abdullah and Zulzaidi Mahmod (2010) in their article entitled Rujuk: Peruntukan Undang-undang dan Pelaksanaannya di Malaysia, the Shafi’i madzhab only acknowledges a reconciliation (ruju’) by way of pronouncement (verbal) and does not ratify reconciliation by way of conduct, and that would include reconciliation by resuming cohabitation.
On the other hand, the writers continued to write that some of the Hanbali, Maliki and Hanafi sects accede to reconciliation by way of conduct. Meanwhile, Kitab Hashiah I’anat al-Talibun, Volume 4, page 34 states that Imam Abu Hanifah opines that sexual intercourse as an invalid form of reconciliation of marriage. This is quoted in the aforementioned case of Norshinah bte Kamaridun v Baharuddin bin Othman [2005] 4 SHLR 158.
The question here is therefore, what is the position here in Malaysia, considering that the official madzhab of our country is the Shafi’i madzhab as emphasised by the then Director-General of JAKIM; Dato’ Haji Othman Mustapha in an article on JAKIM’s website in 2014. The definition of hukum syara’ needs to firstly be clarified. Since the inquirer resides in Kuala Lumpur, the interpretation section of the Islamic Family Law (Federal Territory) Act 1984 may be cross –referred.
Section 2 of the Act defines hukum syara’ as “Islamic Law according to any recognized Mazhab”. From this definition, it can simply be understood that the opinions of all the four major madzhab would be acceptable. Nevertheless, based on the case of Norshinah bte Kamaridun v Baharuddin bin Othman [2005] 4 SHLR 158 and the case of Norhasnizar bt Yusoff v Sazli bin Yeop [2009] 2 SHLR 185, the approach of the Courts has been to follow the opinion of the Shafi’i sect, first. Only if the opinion of the Shafi’i madzhab runs in contrary with the public policy would the opinions of other sects be referred to.
Thus, applying the Shafi’i madzhab, reconciliation of marriage by way of resuming cohabitation with the divorced wife would not constitute a valid ruju’, regardless if the conjugal relation is accompanied with intention (niyyah) or not. This is in line with the decision by the then Syariah Subordinate Chief Judge; Tuan Mawardi Che Man in Norhasnizar’s case mentioned above.
WHETHER THE REFUSAL OF CONSENT OF THE WIFE TO RUJU’ AFFECTS THE VALIDITY OF RUJU’
As discussed in the foregoing paragraphs, the pillars of ruju’ do not include the consent of the wife i.e. the person with whom the husband wishes to reconcile with. The issue of refusal of consent of the wife in the context of ruju’ has been discussed in the case of Abdullah Fuad bin Mamat v Maliza bt Awang [2013] 1 SHLR 76. 68]. In this case, the Court had referred to Kitab al-Fiqh al-Islami wa Adillatuhu written by Dr Wahbah al-Zuhaili which states that the consent of the wife is not required to reconcile.
Despite that, in order to provide remedy for a wife who refuses to consent upon the ruju’ with valid reasons according to hukum syara’, the drafters of the legislation have foreseen such an event by providing Section 51(9) in the Islamic Family Law (Federal Territory) Act 1984 which states: “If after a revocable divorce the husband pronounces a ruju’ but the wife has not consented to the ruju’ for reasons allowed by Hukum Syara’, she shall not be ordered by the Court to resume conjugal relations, but the Court shall appoint a conciliatory committee as provided under section 47 and that section shall apply accordingly.”
In conclusion, with regards to the first issue, despite the “reconciliation” by way of resuming cohabitation was made during the period of ‘iddah, the “ruju’” would not be a valid one. This is in lieu of the Malaysian Syariah Courts’ inclination to follow the Shafi’i madzhab regarding this matter, whereby the Shafi’i madzhab does not accede to ruju’ by way of conduct.
On the other hand, with regards to the second issue, a wife’s refusal of consent would not affect a reconciliation made by a husband. Nevertheless, in this case, since the ruju’ by way of the husband resuming cohabitation with the wife without any form of pronouncement does not constitute a valid ruju’, whether the wife consents or does not consent to the ruju’ would be of no significance in this present case.
Even if there is a valid ruju’, a wife’s refusal of consent towards the ruju’ would not affect the validity of the reconciliation of marriage. Nevertheless, if the wife refuses to reconcile to the marriage with valid reasons in accordance with hukum syara’, applying Section 51(9) of the Islamic Family Law (Federal Territory) Act 1984, the Court would not order the wife to proceed with ruju’, but the Court shall appoint a conciliatory committee as provided under Section 47 of the Act and that Section would apply accordingly. Wallahu a’lam. Thank you.
QUESTION REGARDING THE DIFFERENCE BETWEEN KHULU’ AND FASAKH: Assalamu’alaikum. I am Nazira (not my real name) from KL Sentral. I have been married for two (2) years and we do not have any child. The first year of our marriage was filled with love, trust, respect and happiness. Starting from the second year of our marriage, my husband started to show his true colours, the sides I have never seen of. He would easily become fumed with anger over small matters. All along prior to that moment, he had never raised his voice to me what more to lift up his hands or feet.
Things changed 360° now that he started to scold me every now and then, even when I talked nicely to him and did not do anything wrong. Sometimes he would say mean things to me and would use foul languages that were very downgrading, negative and had definitely broke my heart to pieces. At first I felt very strange towards his drastic changes. One day, as I was about to put his trousers into the washing machine, I found a crumpled loose sticky note written on it, the words; “Sayang, breakfast I dah hidangkan atas meja ni. Sorry, I kena pergi kerja dulu, ada urgent matter”. I knew it for sure that it was not my handwriting and I started to get fishy over it.
To cut things short, I later found out that he had eloped and got married with another lady in Thailand for five months already without my knowledge, a fact he didn’t deny of. In fact, he expressly confessed that to me when I pressured him to tell me the truth. I felt dejected and cheated by the news. That explained why he rarely returned home especially during weekends, though all this while he said to me that he had to go for outstations. He had also failed to provide maintenance for myself for three months in a row already. When I asked him for money, he would say that I am now earning almost as much as him, why would he provide maintenance for me. Furthermore, he did not even divide the night turns fairly between his two wives. Moreover, he had been negligent in his five daily prayers and had started to play lottery. At times, he had hit me on the back and had slapped my face whenever he got angry for instance, due to his loss at a lottery.
I could not stand anymore his hot-temperedness, his ill conducts, his failure to provide maintenance and his unfair treatments. When I asked him to divorce me, he would laugh off and say that why would he divorce me when he could take advantage over me by ordering me to do house chores, free of charge for himself and his second wife? I have had enough and would like to seek for divorce by myself since he refused to let me go. Should I proceed with khulu’ or fasakh, as I am confused between the two terms and concepts. Hopefully to get my inquiry answered. Thank you. Wassalam.
Ibn Abbas reported that Jamilah, the wife of Thabit b Qais came to the Prophet and said ‘O Messenger of Allah, I do not blame Thabit about his character and piety, but I dislike being ingratitude in Islam. The Messenger of Allah asked if she was prepared to return the garden given to her by Thabit. “Yes” she said. The Prophet said to Thabit “accept the garden and give her a single divorce”.
Based on the above hadeeth, there need not be a proof of a breakdown of marriage, as the applicant wife did not even find any fault on the part of the husband. It would suffice if she is able to prove that she dislikes her husband and because of that, she is afraid that the continuance of marriage in such a state would cause her not to perform her marital obligations as a wife, which thereafter could lead her to become nusyuz.
Whereas, fasakh is an option that can be exercised by a husband or a wife to end the marriage through judicial process by invoking ground(s) that is/are acceptable under the Islamic law. Based on The Islamic Family Law in Malaysia written by Najibah Mohd Zin et al., 2016, initially, the law was meant to safeguard the rights of women who are exposed to marital abuse and neglect. However, after the amendment, the law gives equal opportunity for both men and women alike to invoke fasakh, though a wife tends to benefit more from the provision, as a man is conferred with the right to dissolve a marriage by pronouncing talaq. The basis of invoking fasakh is harm or dharar. In Malaysia, section 52 of the Islamic Family Law (Federal Territory) Act 1984 specifically governs the provision relating to fasakh.
WHETHER THERE ARE GROUNDS TO APPLY FOR DIVORCE UNDER KHULU’ OR FASAKH
As discussed above, section 52 of the Islamic Family Law (Federal Territory) Act 1984 specifically provides for the dissolution of marriage or fasakh. The provision lays down grounds that are not exhaustive.
Referring to the facts that you have presented, there are a few grounds under section 52 of the Act which can be invoked, namely, section 52(1)(b), section 52(1)(h)(i),(vi) and (l).
Section 52(1)(b) provides for failure to maintain for a period of three months as one of the grounds of fasakh. A decided case to refer to is the case of Cik Pah v Abdul Aziz b Ahmad, whereby the wife claimed that the husband was insolvent and failed to provide maintenance. The Court ordered the wife to take an oath (yamin istizhar) and to swear that she remained faithful to the husband. The judge was satisfied that the husband was impoverished but adjourned the case for nine days with three days grace period for the husband to prove that he could pay the maintenance. The wife repeated her claim and she was ordered to take an oath with the consent of the husband and subsequently the court granted a fasakh divorce. This case shows that a failure to maintain is one of the acceptable grounds to dissolve marriage through fasakh.
For your information, yamin istizhar is a form of oath which is aimed to strengthen and clarify the claims and to deny any allegation that is put forward against the applicant, after the applicant has successfully proven his/her claim.
Next, section 52(1)(h)(i) provides “that the husband treats her with cruelty, that is to say, inter alia, habitually assaults her or makes her life miserable by cruelty of conduct”. This section does not merely cover for physical assault. In fact, any form of mental/psychological assault is also governed by this provision. A case to refer to is the case of Hasnah v. Zaaba (1995) 10 JH 59, whereby the wife claimed that the husband had habitually assaulted her and made her life miserable by cruelty of conduct. The Syariah High Court judge decided that cruelty has taken place whereby the husband had habitually assaulted the wife by beating and cursing her, which made the wife’s life miserable. The Court permitted the application of the wife to dissolve the marriage through fasakh. From the facts of the case that you have presented, we could see that the conducts of your husband such as beating and slapping your face whenever he got fumed with anger could constitute “cruelty” under section 52(1)(h)(i).
On the other hand, a case to refer to with regards to mental assault is the case of Zarina bt Syaari v. Mohd Yusof b. Omar (2005) ShLR, Vol. 4, 173, whereby the learned judge of the Syariah Lower Court (Federal Territories) had decided that the refusal to communicate on the part of the husband, cheating the wife by marrying another without her knowledge, and refusal to sleep with the wife amounted to mental cruelty which were habitual. The court held that the term ‘habitual assault’ was relevant in cases of mental and emotional assault. Thus, the wife has to prove that the actions took place habitually, continuously and repeatedly.
Referring to the facts that you have presented, your husband had on several occasions mentally assaulted you by swearing to you using foul languages which were very degrading and cruel. Based on the above decided case, for a case involving the mental and psychological aspects of the applicant, since the term used in the provision is “habitual”, you must prove to the Court that the cursing and swearing were done continuously and on a frequent basis.
Based on Section 52(1)(h)(vi) of the Islamic Family Law (Federal Territory) Act 1984, a wife can apply for fasakh if her husband marries more than one wife and does not treat her equitably in accordance with the requirements of Hukum Syara’. In this case, your husband had admitted that he had married a second wife. It is undeniable that polygamy is allowed in Islam. This point can be elucidated by a verse from the Qur’an which reads, “then marry from among [other] women such as are lawful to you – [even] two, or three, or four: but if you have reason to fear that you might not be able to treat them with equal fairness, then [only] one – or [from among] those whom you rightfully possess. This will make it more likely that you will not deviate from the right course.” (Surah An Nisaa – Women, 4:3).
Nevertheless, as expressly mentioned in the aforementioned verse, if the husband fears that he might not act justly between all his wives, then he is allowed to marry only one wife. Based on the facts that you have textually conveyed, your husband had not been fair in the night turns and had spent most of his time with his second wife. That is a clear form of unlawful neglect. Thus, section 52(1)(h)(vi) can be invoked as a ground to annul your marriage via fasakh.
Lastly, section 52(1)(l) of the Islamic Family Law (Federal Territory) Act 1984 regards “any other ground that is recognized as valid for dissolution of marriages or fasakh under Hukum Syara’” to be a ground to dissolve the marriage through fasakh. This provision widens the scope of fasakh, so as not to restrict it to only the specified grounds which are listed expressly in the provisions. This is because; to list down expressly the exact and specific grounds for fasakh would be numerous and therefore impractical. Thus, any other ground to dissolve the marriage through fasakh that is recognised by Hukum Syara’ would suffice.
In this case, your husband had not lived in accordance with the Islamic tenets by neglecting the performance of prayers when in fact, the establishment of prayers is compulsory for a person who has attained puberty. Allah says in the Qur’an, “…Indeed, prayer has been decreed upon the believers a decree of specified times.” (Quran 4: 103). Whereas, the prohibition of gambling is recorded in the Qur’an, in Surah Al-Maa’idah, whereby Allah says, “O you who believe! Intoxicants (all kinds of alcoholic drinks), and gambling, and Al Ansaab (stone altars for sacrifices to idols, etc.), and Al Azlaam (arrows for seeking luck or decision) are an abomination of Shaytaan’s (Satan’s) handiwork. So avoid (strictly all) that (abomination) in order that you may be successful. Shaytaan (Satan) wants only to excite enmity and hatred between you with intoxicants (alcoholic drinks) and gambling, and hinder you from the remembrance of Allah and from As Salaah (the prayer). So, will you not then abstain?” (Al-Maa’idah 5:90-91).
A husband has a duty to lead the marriage and his family by observing the commandments ordered by Allah and the Prophet and to refrain from committing acts that are prohibited by the religion of Islam. By neglecting his prayers and playing lottery, your husband had brought himself towards destruction. Allah says in the Qur’an, “…and do not throw [yourselves] with your [own] hands into destruction [by refraining]. And do good; indeed, Allah loves the doers of good.” He had also failed to be a good example as the leader of the family. His conduct of playing lottery had also proven to cause harm to your physical body as you have said that he would physically assault you whenever he suffered a loss after playing the lottery.
Thus, his acts could fall under subsection (l) as your husband had acted cruelly by breaching the commandments and prohibitions of hukum syara’.
In conclusion, having studied the facts that you have presented, we believe that the more suitable action for you to take is to apply for an annulment of marriage through fasakh instead of to apply for khulu’, as your case matches several grounds for an application of fasakh under section 52(1)(b),(h)(i),(vi) and (l) of the Islamic Family Law (Federal Territory) Act 1984. It is however important to note that, a fasakh application must be supported with satisfactory evidence to be adduced to the Court, otherwise the Court might simply strike off the application due to want of proof. It is advisable for Puan Nazira to consult and seek the aid and expertise of a Syarie lawyer (Peguam Syarie) as this issue involves complicated matters which are best dealt by the expert in this respective field. Wallahu a’lam. Thank you.
“A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness” (Al-Baqarah: 229).
However, a wife is granted the privilege to seek divorce by way of khulu’ (redemption), ta’liq, and fasakh. These rights require sanctions from the Court as stated in the Islamic Family Law in Malaysia by Najibah Mohd Zin, et al. (2016). The brief definitions of the above three types of divorce by a wife are laid down below:
Khulu’: A divorce pronounced by the husband by way of redemption after the amount of the payment of tebus talaq (the wife compensates for her release) is made {See s 49 of the Islamic Family Law (Federal Territory) Act 1984 (hereinafter referred to as IFLA 1984) and Surah Al-Baqarah: 229}.
Ta’liq: A divorce due to breach of any stipulation by the husband which is pronounced during the marriage solemnisation, as required by statutes. The breach could be the basis for the wife to lodge a complaint in the Syari’ah Court and it is for the Court to grant the divorce if the breach is satisfactorily proven {See page 175 of the Islamic Family Law in Malaysia by Najibah Mohd Zin, et al. (2016)}.
Fasakh: A dissolution of marriage through a Court order due to certain acceptable grounds which are recognised under the Islamic law {See page 193 of the Islamic Family Law in Malaysia by Najibah Mohd Zin, et al. (2016) and s 52 of the IFLA 1984}.
Most Muslim women in Malaysia are only aware of these three types of divorce that they could seek in Court. Little did they know the existence of divorce by means of hakam which is less time-consuming and could be a way out for marriages that are hanging on by a thread.
THE DEFINITION OF HAKAM
Linguistically speaking, tahkim connotes “conferring power to impose punishment upon someone”, as cited in an article entitled; “Hakam dalam Mahkamah Syariah: Analisis Pelaksanaannya di sisi Prinsip Syariah di Malaysia” written by Hammad Mohamad Dahalan and Mohamad Azhan Yahya. Whereas, the Article provides the technical definition of hakam as “a process where the disputing parties appoint a person each as a hakam (arbitrator) to solve the issue of contention arising between them, in accordance with hukum syara’”.
The concept of hakam is not something foreign nor is it a new invention, as it is not only judicially recognised in the context of the Malaysian Islamic Family Law but in fact, it has been encouraged by the Qur’an to be practiced in solving disputes between two parties. The verse related to this is enshrined in Surah An-Nisaa’, verse 35. Allah says:
“And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]”
Reflecting on the above verse, the uniqueness of appointing hakam as an alternative dispute resolution can be seen, whereby the disputing parties are given the right to appoint the arbitrators of their choice. The qualifications required for a hakam before he is appointed would be explained later as we discuss this matter further.
Through a divorce by way of tahkim, a wife who desires to get a divorce is able to get what she wishes for by following the procedures, as spelled out under Section 48 of the IFLA 1984.
PROCEDURES OF HAKAM
A divorce by way of hakam commences the moment a wife files a claim of divorce under Section 47 of the IFLA 1984. Under Section 47(2) of the Act, upon receiving an application for divorce, the Court will issue a summons upon the other party (in this case would be the husband) including a copy of the application and the statutory declaration made by the wife. The summons requires the husband to appear before the Court, in order to inquire whether the husband consents to the divorce or otherwise.
If the husband refuses to consent to the divorce, the Court will as soon as possible appoint a conciliatory committee (jawatankuasa pendamai – JKP). The persons appointed under the conciliatory committee, consist of a Religious Officer as Chairman and two other persons, one for the husband and the other for the wife as stated under Section 47(5) of the Act.
Section 47(14) of the Act states that “where the committee submits to the Court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the Court shall advise the husband to pronounce one talaq before the Court”. Nevertheless, if the husband does not wish to be present in Court to pronounce the talaq or if the husband refuses to pronounce the said talaq, the Court will then refer the case to the attention of hakam and thereby, Section 48 of the Act will apply.
The State of Selangor has taken the first leap in gazetting the Hakam (State of Selangor) Rules 2014 (hereinafter referred to as the Hakam Rules 2014), which provides detailed guidelines on the implementation of hakam in the Malaysian Syariah Court practice. Rule 3(3) of the Hakam Rules 2014 provides that the Court is required to ensure that syiqaq (constant quarrels between husband and wife which affect the marital harmony – Rule 2 of the Hakam Rules 2014) exists between the husband and wife before the parties are brought before the hakam. This shows that the provision on the appointment of hakam cannot be simply invoked as to avoid from the occurrence of arbitrary or even unnecessary divorce.
As stated in a book entitled “Managing Marital Disputes in Malaysia: Islamic Mediators and Conflict Resolution in the Syariah Courts” written by Sven Cederoth Cederroth and Sharifa Zaleha Syed Hassan, normally a marriage situation is said to be in a state of syiqaq when the husband refuses to let go off the wife (divorce) or when the wife is unable to seek for divorce by means of ta’liq or fasakh due to unavailable grounds. Other instances of syiqaq are listed under Rule 4 of the Hakam Rules 2014.
THE APPOINTMENT OF HAKAM
Referring to Rule 4 of the Hakam Rules 2014, hakam can only be appointed from among the close relatives (saudara karib) of the husband and wife who fulfils the qualifications as listed out under sub-rule 8(1) and (2). As interpreted under Rule 4(2) of the Hakam Rules 2014, “close relatives” are referring to “any man who is related by consanguinity, affinity or fosterage and having knowledge on the circumstances of the case”.
The qualifications of a hakam as listed out under sub-rule 8(1) are:
(a) Professing the religion of Islam;
(b) Male;
(c) Possessing a sound mind and reached the age of maturity (mukalaf);
(d) Just and trustworthy (amanah); and
(e) Acquiring basic knowledge on family affairs and Hukum Syara’
Meanwhile, based on Rule 11 of the Hakam Rules 2014, this complies with the directions given by the Court as well as Hukum Syara’ in conducting the Majlis Tahkim (proceeding). Nevertheless, the hakam who is conferred with full authority from the Principal (the husband/wife), has wider power which is to:
(i) pronounce one talaq or khulu’ before the Court (hakam for the husband)
(ii) accept the pronouncement of khulu’ before the Court (hakam for the wife)
Thus, from here we could see that through hakam, a wife’s wish to dissolve a marriage (even when her husband refuses to consent) can be realised as a hakam with full power is conferred with the authority to pronounce the talaq or khulu’ in order to release the wife from the marriage.
DETERMINATION ON THE TYPES OF DIVORCE
In order to determine which type of divorce would be pronounced, under Rule 12 of the Hakam Rules 2014, the hakam needs to identify which party causes the syiqaq. Referring to Rule 12(2), if the syiqaq –
(a) appears to be caused by the husband or both husband and wife, both Hakam shall propose divorce by talak;
(b) appears to be caused by the wife, both Hakam shall propose divorce by khuluk and the rate of ‘iwadh shall be determined by Hakam;
(c) cannot be determined in terms of its cause and the husband claims divorce, both Hakam shall propose divorce by talak; or
(d) cannot be determined in terms of its cause and the wife claims divorce, both Hakam shall propose divorce by khuluk and the rate of ‘iwadh shall be determined by Hakam.
Whereas, based on Rule 15, either the divorce is made by way of talaq or it is made by way of khulu’, a divorce by way of tahkim has the effect of talaq ba’in. This means, a new ‘aqad is needed if the parties wish to reconcile after the talaq or khulu’ is made.
In conclusion, the option that is available for a wife who wishes to dissolve her marriage but whose husband refuses to consent is to resort to hakam. This type of divorce acts as a tool to end the “torture” that a wife “is compelled” to go through, for having to sail the voyage of marriage which has irretrievably broken down and has lost the essences of mawaddah, sakeenah wa rahmah. In addition, a divorce by way of hakam is also time-efficient as Rule 16(1) of the Hakam Rules 2014 states that (subject to sub-rule (2)) the duration of the proceeding shall not exceed thirty days from the date of the appointment and declaration issued by the Court. Moreover, the application for a divorce by appointing hakam is also budget-friendly as the parties who are planning to apply for hakam are only required to pay the filing cost which is affordable.
By raising awareness on hakam (especially to Muslim women), they will know that there exists another right of divorce that Muslim women can resort to, apart from khulu’, fasakh and ta’liq. When other means are to no avail, this type of divorce is hoped to be a saviour for Muslim women who are left “gantung tak bertali” by their inhumane and egoistic husbands. Divorce by way of tahkim can be a form of warning to all husbands out there, that the right to pronounce talaq upon their wives is not absolute. Last but not least, this post aims to urge all of the Muslim women out there, to increase their level of legal literacy as many are still clueless about this right that is statutorily conferred to them, which in turn would detriment their very own lives and interests. Furthermore, All Muslim women and men alike should know their obligations as well as their rights as husbands and wives, in order to ensure that they will discharge their duties responsibly and will not allow others to infringe their rights, naively and ignorantly. Wallahu a’lam.
HAKAM: ANOTHER WAY OUT FOR MUSLIM WOMEN TO GET A DIVORCE was last modified: Ogos 31st, 2018 by Peguam Syarie Faiz Adnan Associates
By Peguam Syarie Faiz Adnan Associates On 30 Ogos 2018 In Isu Semasa, Mahkamah Syariah, Syariah Tags child marriage, legal and syariah points of view, peguam syarie, peguam syarie faiz adnan
CHILD MARRIAGE: FROM THE LEGAL AND SYARIAH POINTS OF VIEW
INTRODUCTION: The marriage solemnisation of a 41 year old Kelantanese man to an 11 year old Thai girl (child marriage) sometime in June this year, has sparked outrage among the locals as well as human rights activists abroad, detesting a young child to become someone else’s bride. This much publicised news still remains a spotlight and attracted debates, whether to ban it altogether or to keep it within strict bounds. The question here is what is the position of child marriage in the Islamic context? Does Islam really permit a child to tie the knot?
Before we delve further into the matter and explore the opinions of the Islamic scholars pertaining to it, it is best for us to firstly understand the concept of marriage in Islam. Marriage in Islam is considered as a sacred contract and is in fact encouraged by our beloved Prophet Muhammad s.a.w. if all the marriage requirements are duly met. A hadeeth reported by ‘Abdullah Bin Mas’ud in the Translation of Sahih Muslim, Book: 8 reads:
0 young men, those among you who can support a wife should marry, for it restrains eyes (from casting evil glances) and preserves one from immorality; but he who cannot afford it should observe fast for it is a means of controlling the sexual desire.
But what most of us fail to notice is that, with marriage comes responsibility. This issue of responsibility is what we need to concern most about when it comes to child marriage, as to whether a young child is capable to shoulder the responsibility of being a wife and a future mother. What we need to bear in mind is that marital commitments are not a one-man responsibility but a joint responsibility of both parties to the marriage contract.
THE DEFINITION OF CHILD IN ISLAM
Next, the definition of “child” in Islam also requires contemplation. It is worth to be highlighted that, unlike the Western perspective on the definition of “child”, a “child” according to the shari’ah is not ultimately be defined according to a specified age. This is based on an article entitled “Child Marriage and Minimum Age of Marriage under Islamic Family Law” by Zanariah Noor. The Convention on the Rights of the Child (hereinafter referred to as “CRC”) in its Article 1 defines a child to be a person under the age of eighteen (18) years unless if the laws of certain countries fixed a lower age. Malaysian laws also adopt the minimum age set by CRC, except for the Adoption Act 1952 which sets the age of under 21 years old for a person to be defined as a child.
On the other hand, in Islam, the determinant is the state of puberty (bulugh). Based on the article entitled; “Child Marriage and Minimum Age of Marriage under Islamic Family Law” by Zanariah Noor, a state of puberty can be determined based on two ways:
Physical change
Referring to the above article, a female is said to have reached the age of puberty when she starts to discharge blood from the womb (haidh), whereas, a male attains the age of bulugh when there is an emission of seminal liquid (maniy). On the other hand, when there is no apparent physical change, the state of bulugh is determined by looking at the age of the person. If a person has attained the age of 15 years (Hanafi, Hanbali, Shafi’i madhahib) or the age of 17 years (Maliki madhab), he/she is said to have attained the age of puberty.
JURISTIC OPINIONS ON CHILD MARRIAGE
On the issue of releasing a child for her to be wedded with someone, there are differences of opinions among the Islamic scholars. Based on an article entitled; “Bayan Linnas Siri ke-141: Perkahwinan Kanak-kanak Mengikut Perspektif Syariah”, which can easily be accessible via the official website of the Federal Territory Mufti, the scholars which totally prohibit child marriage are Ibn Syubrumah and Abu Bakr al-Asam. The justification of the prohibition is based on the verse from the Qur’an which reads:
وَابْتَلُوا الْيَتَامَى حَتَّى إِذَا بَلَغُوا النِّكَاحَ فَإِنْ آَنَسْتُمْ مِنْهُمْ رُشْدًا فَادْفَعُوا إِلَيْهِمْ أَمْوَالَهُمْ
“And try orphans (as regards their intelligence) until they reach the age of marriage; if then you find sound judgement in them, release their property to them” (Surah An-Nisaa’: Verse)
According to the above article, the wajh al-dilalah of the above verse is that the age of minority ends at the age of marriage. Thus, there would be no such thing as child marriage based on this interpretation.
On the other hand, the views which assent to child marriage can be further divided into two. The first view opines that child marriage is permissible, depending on the age of bulugh. Thus, no matter how “young” a person is, if she has already attained the age of puberty, it would be valid for her to get married. In contrast, the second view allows child marriage, even though the child has not attained the age of puberty. Nevertheless, the marriage can only be solemnised by “a person who is closest to the child, takes responsibility upon the child the most, loves her the most, knows best the maslahah (interest) of the child”. The person refers to the wali of the girl, i.e. the girl’s father. This opinion is held based on various authentic authorities from the Qur’an and hadeeth.
The verse of the Qur’an to support this contention is from Surah At-Talaq, Verse 4 which states to the effect:
وَاللَّائِي يَئِسْنَ مِنَ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ
And those of your women as have passed the age of monthly courses, for them the ‘Iddah (prescribed period), if you have doubts (about their periods), is three months, and for those who have no courses [(i.e. they are still immature) their ‘Iddah (prescribed period) is three months likewise, except in case of death].
Based on the interpretation of this verse by al-Jassas as cited in the above-mentioned article, the part of the verse which goes وَاللَّائِي لَمْ يَحِضْنَ means a child who has not attained the age of maturity (bulugh). This means, if a child has to observe a period of ‘iddah, impliedly, a child can get married.
THE STATEMENT OF MUFTI ON CHILD MARRIAGE
The question now is: what is the stance of the Federal Territory Mufti with regards to the validity of child marriage? Construing the official written statement of the Federal Territory Mufti on this issue, the Mufti stated that the hukm of a child marriage depends on the laws in Malaysia. In Malaysia, the shari’ah law only permits a marriage to be contracted the earliest at the age of 18 (male) and 16 (female), and any marriage contracted below the specified minimum age, requires a prior written consent from the Hakim Syar’ie. This is laid out under Section 8 of the Islamic Family Law (Federal Territory) Act 1984.
Nevertheless, he further stated that although the hukm of a child marriage is valid (sah) (provided that all the arkan of nikah are fulfilled), a child can only get married if he/she has attained the age where he/she is capable to discharge well the responsibilities that are tied together with a marriage contract and must understand the consequences of marriage such as pregnancy, the duty to provide maintenance, duty to provide conjugal relations, among others.
Interestingly, the Official Website of the Federal Territory Mufti had just published a new article dated 7th August 2018, which refined the discussions on child marriage in the shari’ah perspective by narrowing down the discussion in the context of siyasah shar’iyyah. The article entitled; Bayan Linnas #145: Isu Perkahwinan Kanak-Kanak Menurut Perspektif Siyasah Syar’iyyah defined siyasah shar’iyyah as “a branch of study which studies about administerial affairs of an Islamic State in the context of the laws, policy and system, in accordance with the usul of Islam, despite the non-existence of a specific dalil (proof) in the nas syara’”.
Thus, based on the concept of siyasah shar’iyyah, the Article stated that the Malaysian government has a right to curb child marriage through the implementation of laws and policies in order to ensure the interests of the children are protected, due to the fact that the nature of marriage entails marital responsibilities and obligations which might not be able to be carried out well by young children.
Meanwhile, based on the Islamic principle of maslahah mursalah (simply translated as the consideration of public interest), the Article further stated that the Government has the right to enforce laws which limit the age of marriage involving children, if the laws are ordained in order to protect the interests and welfare of the children. This is as long as the laws are not in contradiction with nas qat’ie.
Next, based on the principle of sadd az-zari’ah (blocking the means of evil), the Article continued that the Government can hinder/disallow child marriage as a means to prevent from any occurrence of unwanted child exploitation, child abuse, and other detrimental effects arousing from a child marriage (if solemnised arbitrarily).
Lastly, based on the principle of istihsan (juristic preference), the Article indicated that, despite the existence of legal authorities (dalil) which permit child marriage (as pointed out above), by applying istihsan on the basis of maslahah (protecting the interests of the children), the interests of the children are prioritised and preferred over the contentions which authorise or legalise child marriage.
In conclusion, the issue of child marriage should not be downplayed by any party, irrespective of race and creed. The interests and welfare of the children should be the paramount consideration before a Shari’ah Court Judge gives his written consent to permit the marriage solemnisation. Besides, the standard operating procedure (SOP) which has been outlined by the Syariah Judicial Department in cases of approving underage marriage applications should be supported, so as to avoid from any occurrence of marital abuse among innocent and vulnerable children.
Despite the existence of juristic opinions which permit child marriage as discussed in the foregoing discussions, based on the principle of siyasah syar’iyyah that has been elaborated above and as what has been pointed out in the official written statement of the Federal Territory Mufti, the Government has the power/authority to limit the minimum age of marriage in order to uphold justice (protecting the interests of vulnerable children and preventing from any incidence of child exploitation or abuse). Following the call to raise the minimum age of marriage for Muslims, as what have been reported in several local news portals, the Selangor Islamic Religious Council (MAIS) had took the first leap before the other Islamic Religious Councils of the rest of the States in Malaysia, by proposing to amend the minimum age of marriage (by increasing the minimum age limit of marriage).
Nevertheless, the proposal to increase the minimum age of marriage for Muslims in Malaysia should not be misunderstood as a means to illegalise what Allah permits (permitting child marriage in certain strict conditions and circumstances, in line with the Shari’ah, which would certainly not jeopardise children’s lives). Instead, as summed up by the Honourable Mufti of the Federal Territory, looking at the ‘urf in Malaysia, child marriage is best disallowed in accordance with law by following the Islamic principles of maslahah mursalah, sad al-zari’ah and istihsan. Whereas, exceptions would only be applicable in certain remote cases, after adhering to very strict conditions set by the Court. Wallahu a’lam.
QUESTION REGARDING CUSTODY RIGHTS: Assalamu’alaikum. I am Natasha Fellina from Ampang, Kuala Lumpur. I have already divorced with my husband for five (5) years already and out of the marriage, we are blessed with two kids, a son aged 16 named Aman (not his real name) and a daughter aged 14 years old named Arina (not her real name). Ever since we got divorced, Aman stays with my husband at Lorong Maarof, Bangsar, and he is enrolled in a private school in Bangsar. On the other hand, Arina resides with me at Ampang and also attends school at the same place where I work at as a Chemistry teacher. I was told by my former husband’s sister that my former husband is planning to get married to her office secretary, Belinda. That news infuriated me as I have a feeling that my husband’s attention towards Aman might diminish and his welfare might be neglected due to the extra commitment that he will have once he got married to Belinda. I am not trying in the least to separate my son from his own father, but as his mother, who gave birth to him, and carried him in the womb for nine whole months, all I want is for my son to get the best for his life and his future. I am willing to have full custody over both of the children and would prefer Aman to stay with me rather than having to stay with someone that he barely knew of. I doubt Belinda could be a good mother to a young adult like Aman, as she is only 25, a very young lady herself and she has zero knowledge and experience about motherhood. Therefore, my question here is, with regards to the children’s custody (hadhanah), between my former husband and I, who amongst us would be best entitled with the custody over both of the children? This is because, I remain single ever since the divorce took place 5 years ago, and the children have already reached the age of mumayyiz. How about the visitation rights if one of us is granted with full custody over the children? Thank you.
Wa’alaikumussalam. Thank you Puan Natasha for the questions. I truly understand and would like to express my deepest concern towards the worries that you have regarding your children’s future and welfare. Before we delve further into the matter, we firstly have to determine the underlying issues, in order to be able to reach a viable solution. The issues which can be drawn are:
Whether the biological mother can be granted with the custody rights over the children?
Whether the visitation rights can be conferred to the other party, should the custody is granted to one of the parties.
WHETHER THE BIOLOGICAL MOTHER CAN BE GRANTED WITH THE CUSTODY RIGHTS OVER THE CHILDREN
After determining the issues in this present question, it is advisable for us to have the correct and clear understanding about custody rights or hadhanah in Islam. According to a book entitled “Islamic Family Law in Malaysia” by Najibah Mohd Zin et al. (2016), hadhanah is literally defined as “to clasp in one’s arm or to embrace someone”. The book continues to provide the technical definition of hadhanah as defined by Al-Sayyid Sabiq, which carries the meaning of “the care or protection granted to a child or a lunatic who has yet to be independent, by way of providing for their needs, protecting them from danger and nurturing their body, soul and mind.”
From the above definitions, we could understand that the concept of hadhanah transcends beyond the physical care of a child, as it also includes the nourishment of the inner aspects of the child, such as nurturing the correct ‘aqeedah in the child’s life. Interestingly, our present case involves children who have attained the age of mumayyiz, which means the age of discernment between right and wrong.
Referring to Section 81 of the Islamic Family Law (Federal Territory) Act 1984, subject to Section 82 of the Act, “the mother shall be of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution.” However, since this case involves children who have attained the age of mumayyiz, and not infant children, this provision could not automatically be applied in this case.
We have to bear in mind that in determining the person who is best entitled to claim the right of being a hadhinah in a case where the children have attained the age of discernment, based on the case of Bashirah bt Ishak v Zawawi bin Zakaria [2015] 3 SHLR 7, the learned Judge had referred to kitab al Um, written by Imam al-Shafi’e, Volume 3, which states that when a child has attained the age of seven or eight years old, i.e. a sense of maturity, the child has the liberty to choose either to be with the father or the mother.
The above finding is in line with Section 84(2) of the Islamic Family Law (Federal Territory) Act 1984 which states:
… and if the child has reached the age of discernment (mumaiyiz), he or she shall have the choice of living with either of the parents, unless the Court otherwise orders.
The right to choose which is conferred upon the children is also underpinned in a hadeeth which is cited in the Islamic Family Law in Malaysia by Najibah Mohd Zin et al. (2016), whereby the hadeeth reads:
Narrated by Abu Hurairah that a woman came to the Prophet p.b.u.h. and asked: O Messenger of Allah, my (former) husband wants to take my son away when he (my son) is capable of bringing water from the well of Abu ‘Inabah and it is very useful for me. The Messenger said to the child: This is your father and this is your mother, choose either one of them. The child chose his mother and then both of them left.
The rationale of granting the mumayyiz child with the right to choose his or her own custodian is due to the fact that the interest of the child overrides the interests of the parents. The presumption is that the person that is chosen by the child is more loving and caring towards the child and thus the interests of the child would thereby be more protected and guaranteed, as expounded in the Islamic Family Law in Malaysia by Najibah Mohd Zin et al. (2016).
The principle of the welfare of the child as the paramount consideration in child custody application is reflected in the provision of the Islamic Family Law (Federal Territory) Act 1984, Section 86(2) which reads:
(2) In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and, subject to that consideration, the Court shall have regard to –
(b) the wishes of the child, where he or she is of an age to express an independent opinion.
Nonetheless, the right conferred upon the child to choose his custodian is not an absolute right as the right must not jeopardise the child’s upbringing or even welfare. There are three conditions which need to be satisfied before a child can exercise his/her right to choose the guardian. The conditions have been outlined in the Islamic Family Law in Malaysia by Najibah Mohd Zin et al. (2016). They are as follows:
The persons elected must be from ahl al-hadanah as stated in page 144, volume 9 of Al Mughni by Ibn Qudamah.
The requirements of hadhinah must be duly satisfied by both of the persons chosen by the child as stated in Minhaj, page 392 by Al-Nawawi and at page 92, Volume 5 of Al-Umm written by Al-Shafi’e.
In exercising this right, the child must possess the ability to make a decision, as quoted in Al-Mughni, page 144, Volume 9 by Ibn Qudamah and at page 92, Volume 5, Al-Umm by Al-Shafi’e.
A child’s participation in a judicial proceeding involving the right of child custody is in fact recognised by the United Nations Convention on the Rights of the Child, in its Article 12(1), as cited in an article entitled; Children’s Participation in Custody and Access Proceeding, written by Roslina Che Soh.
Based on case laws such as the case of Bashirah bt Ishak v Zawawi bin Zakaria [2015] 3 SHLR 7, the Court would conduct an interview with the children to know the guardian(s) of their choice that they would want to stay with, before the Court makes its wise decision. With regards to the power of the Court in granting the right of child custody, Section 86(4) of the Act deserves to be highlighted. It says, “Where there are two or more children of a marriage, the Court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently.”
Thus, based on the above provision and the Court’s ruling in the case of Bashirah bt Ishak v Zawawi bin Zakaria [2015] 3 SHLR 7, provided that the children agreed to remain with their respective parents and should the Court be satisfied that the children’s welfare are guaranteed by preserving the status quo of the children; i.e. the son to be remained with the husband and the daughter to stay with the wife, the decision pertaining to the right of custody would likely be as such.
Nevertheless, if both children decide to be with the biological mother, then it is likely that the status quo would be changed, provided that the welfare of the children are best protected, and the wife has fulfilled all the qualifications of a hadhinah and has not committed any act which could disqualify her from being a hadhinah. Thus, in such a case, the answer to this issue would be in the affirmative.
WHETHER THE VISITATION RIGHTS CAN BE CONFERRED TO THE OTHER PARTY, SHOULD THE CUSTODY IS GRANTED TO ONE OF THE PARTIES
With regards to the above issue, the Law makers have foreseen the interest of the parent who is not granted with full custody, by granting him/her the right of visitation and access to the child. This can be seen under Section 87 of the Act which says:
(c) provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the Court considers reasonable;
(d) give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the Court considers reasonable;
Hence, in line with the decision made in a 2014 case of Faizuddin bin Tasaruddin against Zairawati binti Mohd Fauzi, which can be accessed on Jabatan Kehakiman Syariah Selangor’s (JAKESS) website, the parent who is being denied from the custody has the right of visitation and access to the children. And based on the case of Bashirah bt Ishak v Zawawi bin Zakaria [2015] 3 SHLR 7, if the children are to be placed separately, one with the wife and the other with the husband, the segregation should not break the ties and relationship between the children as siblings, and between the children and both parents as a divorce in Islam is bound by three magical words which are “separate with kindness” – Qur’an:229.
In conclusion, as this case involves mumayyiz children, a right to choose the guardian of their choice is conferred due to their maturity of thinking to make a sound decision. This right is enshrined under Section 84(2) of the Islamic Family Law Federal Territory Act (1984) which states: … and if the child has reached the age of discernment (mumaiyiz), he or she shall have the choice of living with either of the parents, unless the Court otherwise orders.
If one of the parties (the husband/wife) disagrees / is not satisfied with the choice made by the children, the Court will commence a full trial, whereby the Court would conduct an interview with the children to know the guardian(s) of their choice that they would want to stay with, before the Court makes its wise decision.
However, as has been discussed above, the right to choose which is granted to the children is not absolute. The discretion lies with the Court to decide otherwise if it deems that the welfare of the child is better guaranteed and protected in deciding as such. If both children choose to be with the biological mother, the welfare of the children are protected by placing them under the custodian of the mother, the mother has fulfilled all the qualifications of a hadhinah and has not committed acts which could make her lose her right of hadhanah, then, it is most likely that both of the children would be placed under the care and custody of the biological mother.
On the other hand, the parent who has been denied from the right of child custody would be granted with visitation right. As the issue of hadhanah involves several matters, it is advisable for you to consult a Syari’e lawyer whose area of expertise also covers the area of hadhanah, with the hope that you would be better enlightened pertaining to this case. Wallahu a’lam.
WHAT IS THE FORM OF PRONOUNCEMENT OF TALAQ MADE BY THE HUSBAND
Based on the facts above, your husband had sent you a text message (SMS) which reads, “If you meet Lisa just once more, I will move out of your life.” Thus, the question which lies here is that, what is the actual or exact form of pronouncement of talaq that your husband had made. It is therefore crucial and of substance to determine whether the pronouncement of talaq which was made in the form of writing (kitabah) is classified as a sarih (express) or kinayah (implied) pronouncement of talaq.
Based on the book entitled al-Fiqh al-Manhaji, written by Mustafa al Bugho and ‘Ali al-Syarbaji, page 116, a pronouncement of talaq can be divided into sarih (express) and kinayah (implied). Based on the abovementioned book, “Sarih talaq is a pronouncement of talaq which is used expressly/clearly signifying the meaning of talaq and the wording cannot be interpreted with other meaning(s). The wording or pronouncement can be classified into three, namely; talaq / divorce, release/free and separate.”
Whereas, kinayah means “…every wording/pronouncement which may be interpreted as talaq or other than talaq,” as stated in the abovementioned book. In another kitab entitled al-Fiqh al-Islami wa Adillatuhu written by the eminent scholar; Wahbah al-Zuhaili, volume 7, page 502, kinayah pronouncement includes the pronouncement of talaq which is made in writing. Referring to the SMS which was sent by your husband and the aforementioned authorities from hukum syara’, it can clearly be seen that your husband’s SMS would constitute a pronouncement of talaq in the form of kinayah due to the following reasons:
The whole wordings of the sentence in the SMS of your husband did not contain the word “talaq”, “divorce”, “release” or “separate”. In fact, the word used could be interpreted to be meant as talaq or other than talaq.
Whereby the “pronouncement” was made in the form of a short message (SMS) which was typed by your husband but was not pronounced verbally to you at any material time.
It is also important to note that, a kinayah talaq pronounced by way of SMS is merely the same as a written talaq (kitabah). This is following the maxim which is laid down in Article 69 of the Majalla which reads; “الكتاب كالخطاب” which carries the meaning of ‘the letter is considered as an oral expression’ as cited in the “Introduction to Middle Eastern Law” by Chibli Mallat. Thus, when it comes to a pronouncement of talaq in the form of SMS, as what happens in this present case, in order to determine whether the SMS is a kinayah or a sarih form of pronouncement of talaq, the word used in the SMS must be observed and considered, as what has been discussed in the foregoing paragraphs. And as discussed in the preceding paragraphs, if the pronouncement is in the form of kinayah, the intention of the husband whether to/not to divorce needs to be taken into account.
WHETHER THE TEXT MESSAGE (SMS) FULFILS THE VALID CONDITIONS AND ELEMENTS OF TALAQ?
In the message (SMS), your husband had written, “If you meet Lisa just once more, I will move out of your life.” The message was sent to your phone number from your husband’s phone number as stated in the facts of this case. In determining whether a valid talaq has been made or otherwise, based on the text message, it depends on whether all the pillars and conditions of a valid talaq have been fulfilled. In the book entitled al-Fiqh al-Islami wa Adillatuhu written by Wahbah al-Zuhaili, volume 7, page 479, the pillars of talaq according to the Shafi’ie Madzhab consist of five pillars:
The one who pronounces the talaq (Taliq)
Sighah
Possessing wilayah
Possessing qasad
Referring to the first pillar of talaq, if your husband is a mukallaf (baligh (had reached the age of puberty) and of sound mind) and had not been coerced to pronounce the talaq, thus the first pillar is fulfilled. Moving to the second pillar i.e. sighah, your husband had pronounced the talaq in the form of kinayah and in a written form which was a text message (SMS). Thus, since it was a kinayah form of pronouncement of talaq, it requires intention. If the lafaz or pronouncement is not accompanied with an intention to make a talaq, the pronouncement would not amount to a valid This is based on al-Fiqh al-Islami wa Adillatuhu written by Wahbah al-Zuhaili.
Next, the third pillar of talaq is mahal. Referring to an unreported case of Mahad Ahmed Mohamed v Natasha Binti Zolkeflee, mahal talaq refers to whom the talaq is addressed to. Kitab I’anat al-Talibin states that, to make the lafaz talaq as one complete sentence, the language used in the sentence must also be comprehendible which shall include the status or the position of the person to whom the talaq was pronounced (mahal talaq) and the wording of the talaq In the above cited case, the Court referred to the sentence “It’s over between us”, whereby in the Plaintiff’s testimony, the Plaintiff admitted that the word “us” referred to both the Plaintiff and Defendant. The Defendant also testified that the Plaintiff had pronounced the talaq and had understood that the pronouncement was meant to divorce the Defendant. Thus, the Court was satisfied that the requirement of mahal talaq was fulfilled.
Applying the above principle to this present case, the pronouncement of talaq was made in a written form, by way of kinayah, and was sent as a text message to your phone number by your husband. Thus, the third pillar is fulfilled as the words “I will move out of your life” was addressed to you by your husband, as the lawful wife of your husband. From the sentence “I will move out of your life”, the word “I” refers to your husband and the word “your” refers to you.
Moving to the fourth pillar which is possessing wilayah. Wilayah means authority. In the above cited case, the Court was satisfied that the requirement of wilayah was also fulfilled in that case as when the talaq was pronounced, the Defendant was still the lawful wife of the Plaintiff and thus, was still under the wilayah or authority of the Plaintiff as the lawful husband of the Defendant. Applying the principle to this present case, if you have not been divorced by your husband prior to receiving the message (SMS) and you are still the lawful wife of your husband whilst the talaq is being pronounced, thus, this requirement is also fulfilled.
The last pillar of talaq is qasad or intention. Since your husband had pronounced a kinayah talaq, thus, based on the kitab of al-Fiqh al-Islami wa Adillatuhu written by Wahbah al-Zuhaili as discussed above, only if your husband intended to divorce you whilst typing the message to you, would the pronouncement of talaq via the SMS, constitutes a valid pronouncement of talaq.
WHETHER THERE IS A VALID FORM OF TA’LIQ DIVORCE
It is also crucial to take into consideration that the lafaz kinayah was made together with ta’liq which states, “If you meet Lisa once more, I will move out of your life”. According to the kitab of al-Fiqh al-Islami wa Adillatuhu written by Wahbah al-Zuhaili, volume 7, page 565, sighah could be in the forms of attaching/annexing talaq to a matter which happens in the future and sighah which is not attached to a condition. There are three types of talaq, which are instant talaq, conditional talaq and talaq that is based on a future time.
Based on the ta’liq that was made by your husband, it was a conditional ta’liq whereby talaq will only take place should the subject matter of the ta’liq is committed in the future, using the word such as; if, when, among others. Therefore, the lafaz talaq that was pronounced by your husband to you via the text message (SMS) was a lafaz kinayah and was pronounced conditionally (ta’liq) whereby, the talaq was conditional upon your meeting with Lisa after receiving the message from your husband.
Nevertheless, despite you having met Lisa after receiving the SMS from your husband, your husband had used the word or term “will” or in Malay it would be translated to “akan”, a term which is expressing a future tense as elucidated in the Oxford Dictionaries. Thus, it is still questionable whether talaq would instantly fall or not. Two questions have to be considered. Firstly, whether the term “will” is merely a threat to divorce you should you meet Lisa once more after receiving the message, or in other words, whether your husband really intends to take an action to divorce you when using the word “will”. Secondly, whether talaq would instantly fall, once the action of, i.e. meeting Lisa, is fulfilled. Only if your husband intends to divorce you instantly once the action is fulfilled, would the pronouncement of talaq ta’liq constitute a valid pronouncement of divorce.
In conclusion, based on the above discussions, the pronouncement of talaq that was made by your husband (validity of talaq via SMS) was a kinayah pronouncement of talaq. Moreover, since the pronouncement of talaq is attached with a condition, such a pronouncement would constitute a conditional divorce (talaq ta’liq). The talaq ta’liq would only be valid after the condition is fulfilled. Nevertheless, since the words used are ambiguous and not clearly expressing talaq, thus, it depends on the intention of your husband if he really intends to divorce you or not. Since this issue involves several complicated matters, it is best and advisable for you to seek the aid and assistance of a Syarie lawyer to advise you regarding this matter. Wallahu a’lam. Thank you.