family law 2

1. Dissolution of MuslimDissolution of Muslim
MarriageMarriage

2. TalaqTalaq
 The definitionThe definition
 Te authoritiesTe authorities
 Types of talaqTypes of talaq
 Pillars of talaqPillars of talaq
 The statutory provisionsThe statutory provisions
 CasesCases

3. The DefinitionThe Definition
Literally talaq means freedom fromLiterally talaq means freedom from
bondage or untying the marriage knot.bondage or untying the marriage knot.
According to Jamal J Nasir;According to Jamal J Nasir;
““Talaq is the dissolution of a valid marriageTalaq is the dissolution of a valid marriage
contract forthwith or at a later date by thecontract forthwith or at a later date by the
husband, his agent or his wife dulyhusband, his agent or his wife duly
authorised by him to do so, using theauthorised by him to do so, using the
word talaq, a derivative or synonymword talaq, a derivative or synonym
thereofthereof””

4. The authorities for talaqThe authorities for talaq
 Al-Baqarah ; 229-232Al-Baqarah ; 229-232
 Al-Talaq ; 1-7Al-Talaq ; 1-7
 Hadiths of the ProphetHadiths of the Prophet
 Ijma’Ijma’

5. Al-QuranAl-Quran
 ““A divorce is only permissible twice, afterA divorce is only permissible twice, after
that the parties should either hold togetherthat the parties should either hold together
on equitable terms or separate withon equitable terms or separate with
kindness” Al-Baq: 229kindness” Al-Baq: 229
 ““O Prophet! When you divorce women,O Prophet! When you divorce women,
divorce them at their prescribed periods”divorce them at their prescribed periods”
at-Talaq: 1at-Talaq: 1

6. HadithHadith
 Of all lawful acts, the most detestable in theOf all lawful acts, the most detestable in the
sight of Allah is talaqsight of Allah is talaq

7. Hukm of TalaqHukm of Talaq
 WajibWajib
when it is most essential e.g., in the case of talaq by meanswhen it is most essential e.g., in the case of talaq by means
of hakamof hakam
 HaramHaram
when the husband divorces his wife duringwhen the husband divorces his wife during haidhaid period orperiod or
during the clean period but just had sex with herduring the clean period but just had sex with her
 MakruhMakruh
when it is not essential. If there is no harm anticipated eitherwhen it is not essential. If there is no harm anticipated either
to the husband or to the wifeto the husband or to the wife
 MubahMubah
when there is a need for it e.g., wife’s character is bad orwhen there is a need for it e.g., wife’s character is bad or
there is some harm if the marriage continuesthere is some harm if the marriage continues
 MandubMandub
when the wife exceeds the religious limit or is not fulfilling thewhen the wife exceeds the religious limit or is not fulfilling the
essential rights of Allah SWTessential rights of Allah SWT

8. Types of TalaqTypes of Talaq
 Talaq SunniTalaq Sunni
1) Talaq al-Ahsan (most approved form of1) Talaq al-Ahsan (most approved form of
talaq)talaq)
2) Talaq al- Hasan (Proper Divorce)2) Talaq al- Hasan (Proper Divorce)
 Talaq Bid’iTalaq Bid’i

9. Talaq al-AhsanTalaq al-Ahsan
 The pronouncement of oneThe pronouncement of one talaqtalaq in ain a
period of purity followed by abstinenceperiod of purity followed by abstinence
from sexual intercourse for the period offrom sexual intercourse for the period of
the ‘the ‘iddahiddah

10. Talaq al-HasanTalaq al-Hasan
 The pronouncement of theThe pronouncement of the talaqtalaq three timesthree times
in three consecutive periods of purity, that isin three consecutive periods of purity, that is
between three successive menstruations.between three successive menstruations.

11. 1st
pronouncement
2nd
pronouncement
26/1/04 26/2/04 26/3/04
3rd
pronouncement
Irrevocable
divorce

12. Talaq al-Bid’iTalaq al-Bid’i
 Talaq that is pronounced during the purityTalaq that is pronounced during the purity
period in which after the husband hadperiod in which after the husband had
intercourse with the wifeintercourse with the wife
 During wife’s mensesDuring wife’s menses
 The pronouncement of theThe pronouncement of the talaqtalaq three timesthree times
at shorter intervals or even in immediateat shorter intervals or even in immediate
succession or by the pronouncement of thesuccession or by the pronouncement of the
threethree talaqstalaqs at once e.g, “at once e.g, “I divorce you with 3I divorce you with 3
talaq”talaq”

13. Kinds of Talaq As to Its RevocabilityKinds of Talaq As to Its Revocability
 Talaq Raj’ITalaq Raj’I
 Talaq baainTalaq baain
Baain SughraBaain Sughra
Baain KubraBaain Kubra

14. Talaq raj’I (revocabledivorce)Talaq raj’I (revocabledivorce)
 The husband is allowed to revoke the talaqThe husband is allowed to revoke the talaq
i.e., to ruju’.i.e., to ruju’.
 A husband who has divorced his wife byA husband who has divorced his wife by
means of talaqmeans of talaq raj’iraj’i has a right to take herhas a right to take her
back as long as she is still in her period ofback as long as she is still in her period of
‘‘iddahiddah
 There is no need for a newThere is no need for a new aqadaqad andand mahrmahr ifif
the husband wishes to take back the wifethe husband wishes to take back the wife
 The wife is entitled toThe wife is entitled to nafqahnafqah during theduring the
‘‘iddahiddah

15. Talaq Ba’in (Irrevocable divorce)Talaq Ba’in (Irrevocable divorce)
 Ba’in Sughra eg. Khulu’. This divorceBa’in Sughra eg. Khulu’. This divorce
cannot be revoked but the parties cancannot be revoked but the parties can
remarry each otherremarry each other
 Ba’in Kubra is talaq by three talaqs. ThisBa’in Kubra is talaq by three talaqs. This
talaq puts an end to the marriage withouttalaq puts an end to the marriage without
possibility of remarrying, unless the womanpossibility of remarrying, unless the woman
has been lawfully married to another personhas been lawfully married to another person
and has been divorced after consummationand has been divorced after consummation
-refer to surah al-Baqarah ; 230-refer to surah al-Baqarah ; 230

16. Pillars of TalaqPillars of Talaq
 HusbandHusband
 WifeWife
 SighahSighah
–Intention (in the caseIntention (in the case
of kinayah divorce)of kinayah divorce)

17. HusbandHusband
 Sound mindSound mind
 MajorityMajority
 voluntarilyvoluntarily

18. Talaq shall be void if uttered in any ofTalaq shall be void if uttered in any of
the following casesthe following cases
 By the minorBy the minor
 By the insane or the mentally disorderedBy the insane or the mentally disordered
personperson
 By a person under coercionBy a person under coercion
 A person in a state of rage (full anger)A person in a state of rage (full anger)
 The fainting or sleeping personThe fainting or sleeping person

19. HadithsHadiths
 ““The persons are immune from theThe persons are immune from the
responsibility of shari’ah; sleeping personresponsibility of shari’ah; sleeping person
till he is awake, child until he has attainedtill he is awake, child until he has attained
the age of majority, the lunatic until hethe age of majority, the lunatic until he
regains his senses”regains his senses”
 ““The man who has become theThe man who has become the
master(husband) of woman alone canmaster(husband) of woman alone can
pronounce talaq”pronounce talaq”
 ““It is not accountable on my ummah if it isIt is not accountable on my ummah if it is
because of mistake, forgetfulness andbecause of mistake, forgetfulness and
anything which is forced on him”anything which is forced on him”

20. WifeWife
 Must be legal or lawful wifeMust be legal or lawful wife
 No requirements of majority/sound mindNo requirements of majority/sound mind
 If she is in her ‘If she is in her ‘iddahiddah of a revocable divorceof a revocable divorce
 If she has not completed her ‘If she has not completed her ‘iddahiddah

21. SighahSighah
 Explicit (Sarih)Explicit (Sarih)
 Implicit (Kinayah)Implicit (Kinayah)
 In WritingIn Writing

22. Sarih pronouncementSarih pronouncement
 A clear pronouncement using the wordA clear pronouncement using the word
divorcedivorce
e.g. I divorce youe.g. I divorce you
 It is effective even without intentionIt is effective even without intention
 ““There are 3 things whether taken seriouslyThere are 3 things whether taken seriously
or in jest are treated as serious that isor in jest are treated as serious that is
marriage, divorce and ruju’marriage, divorce and ruju’””
narrated by Abu Hurairahnarrated by Abu Hurairah

23. Kinayah PronouncementKinayah Pronouncement
 Indirect pronouncement of divorce usingIndirect pronouncement of divorce using
words other than the word divorcewords other than the word divorce
 Only effective with intentionOnly effective with intention
 E.g. Husband said to the wife;E.g. Husband said to the wife;
““ Go back to your parents house forever”Go back to your parents house forever”

24. Talaq in WritingTalaq in Writing
 The Shafi’e said ‘it is a kinayah form ofThe Shafi’e said ‘it is a kinayah form of
divorcedivorce
 Will be effective if couple with intentionWill be effective if couple with intention
 E.g. Husband writes “I divorce you”E.g. Husband writes “I divorce you”
 No intention no divorceNo intention no divorce
 If uttered will be effective even withoutIf uttered will be effective even without
intentionintention
 Similar view by Malikis & HanbalisSimilar view by Malikis & Hanbalis

25.  Hanafis:Hanafis:
 Two kinds:Two kinds:
– A clearly addressed to the wifeA clearly addressed to the wife
– E.g. ‘to my wife Aminah, you are divorced’E.g. ‘to my wife Aminah, you are divorced’
 Divorce is effective even without intentionDivorce is effective even without intention
(it is considered as sarih)(it is considered as sarih)
– If a general statement but not addressed toIf a general statement but not addressed to
the wife e.g. husband writes on a paper “ Youthe wife e.g. husband writes on a paper “ You
are divorced”are divorced”
– This requires intentionThis requires intention

26. Some issues relating toSome issues relating to talaqtalaq
 TalaqTalaq pronounced during the state ofpronounced during the state of
intoxicationintoxication
 In the state of angerIn the state of anger
 In the state of jestIn the state of jest
 Pronouncement of 3Pronouncement of 3 talaqstalaqs
 SMS divorceSMS divorce

27. Divorcepronounced in intoxicated conditionDivorcepronounced in intoxicated condition
 According to Hanafis, Malikis, Safiis and aAccording to Hanafis, Malikis, Safiis and a
narration from Hanbali jusrist, if the husbandnarration from Hanbali jusrist, if the husband
drinks on his own wishes and for pleasure,drinks on his own wishes and for pleasure,
talaqtalaq is valid. However,is valid. However, talaqtalaq is not valid if heis not valid if he
is forced to drink or intoxication is due tois forced to drink or intoxication is due to
certain medicationcertain medication
 A narration from Imam Ahmad ibn Hanbal,A narration from Imam Ahmad ibn Hanbal,
some companions like Uthman Ibn ‘Affan andsome companions like Uthman Ibn ‘Affan and
Umar Abd Aziz are of the view thatUmar Abd Aziz are of the view that talaqtalaq isis
not valid because the husband is not able tonot valid because the husband is not able to
think or act as normal person. He has lost histhink or act as normal person. He has lost his
mind and like a sleeping or insane person.mind and like a sleeping or insane person.

28. TalaqTalaq pronounced during the state of anger-pronounced during the state of anger-
Generally there are three stages of angerGenerally there are three stages of anger
 TalaqTalaq is not effective if the anger has caused ais not effective if the anger has caused a
damage in the mind and thinking of the person thatdamage in the mind and thinking of the person that
makes him like a madman who didn’t mean what hemakes him like a madman who didn’t mean what he
said and didn’t know what he saidsaid and didn’t know what he said
 If the anger is outside his normal behaviour butIf the anger is outside his normal behaviour but
does not reach the stage of a mad person, talaq isdoes not reach the stage of a mad person, talaq is
effective according toeffective according to jumhurjumhur but Ibnu Qayyim is ofbut Ibnu Qayyim is of
the view that it is not validthe view that it is not valid
 If the anger had not affected a person’s mind andIf the anger had not affected a person’s mind and
thinking, so much so that he knew what he saidthinking, so much so that he knew what he said
then thethen the talaqtalaq is validis valid

29. The state of jestThe state of jest
 According toAccording to jumhurjumhur, (Syafi’i and Hanafi), (Syafi’i and Hanafi)
talaqtalaq that is pronounced during the state ofthat is pronounced during the state of
jest is valid. Their argument is based onjest is valid. Their argument is based on
the hadith reported by Abu Hurairah r.a.the hadith reported by Abu Hurairah r.a.
 ““There are three things in which it makesThere are three things in which it makes
no difference whether it is said seriously orno difference whether it is said seriously or
in jest, namely, marriage, divorce andin jest, namely, marriage, divorce and
ruju’”-ruju’”- Ibn MajahIbn Majah

30.  However, According to Imam AhmadHowever, According to Imam Ahmad
and Malik,and Malik, talaqtalaq is not effective as it isis not effective as it is
considered as indirect orconsidered as indirect or kinayah talaqkinayah talaq..
They argued based on ayah 227 of surahThey argued based on ayah 227 of surah
al-Baqarahal-Baqarah
 ““But if their intention is firm for divorceBut if their intention is firm for divorce
Allah heareth and knowth all things” al-Allah heareth and knowth all things” al-
baq: 227baq: 227
 Hadith: “Your deeds are taken intoHadith: “Your deeds are taken into
account based on your intention”account based on your intention”

31. The effect of three talaq that isThe effect of three talaq that is
pronounced in single seatingpronounced in single seating
 Zahiri and 4 Sunni schools;Zahiri and 4 Sunni schools;
3 Talaq is effective3 Talaq is effective
 Shi’ah Imamiyah – Talaq is not effectiveShi’ah Imamiyah – Talaq is not effective
b’cos against the traditionb’cos against the tradition
 Zaidiyyah, Some Zahiris, Ibn Ishak, IbnZaidiyyah, Some Zahiris, Ibn Ishak, Ibn
Taimiyyah & Ibn Qayyim – One Talaq isTaimiyyah & Ibn Qayyim – One Talaq is
effectiveeffective

32. WitnessesWitnesses
 AlthoughAlthough talaqtalaq is pronounced withoutis pronounced without
witness it is still valid aswitness it is still valid as talaqtalaq is the right ofis the right of
the husband and there is no need to bethe husband and there is no need to be
confirmed or witnessed by 2 personsconfirmed or witnessed by 2 persons
 According to Shi’ah witnesses isAccording to Shi’ah witnesses is wajibwajib

33. The Statutory ProvisionsThe Statutory Provisions
 Section 47 of the IFLA, 1984Section 47 of the IFLA, 1984
 Section 48Section 48
 Section 54Section 54
Please refer to the provisions of thePlease refer to the provisions of the
IFLA, 1984IFLA, 1984

34. CasesCases
 Pendakwa Mahkamah Melaka v Ismail JaafarPendakwa Mahkamah Melaka v Ismail Jaafar
 Re Mohd Hussin bin Abdul Ghani and AnorRe Mohd Hussin bin Abdul Ghani and Anor
 Re Muhammad Husin And HazimahRe Muhammad Husin And Hazimah
 Mohamed bin Mohd Ali v RoslinaMohamed bin Mohd Ali v Roslina
 Norriya v Abdul ManafNorriya v Abdul Manaf
 Hasmah v JuhariHasmah v Juhari
 Haji Hanafiah v RokiahHaji Hanafiah v Rokiah
 Mustapha Batcha v RahmahMustapha Batcha v Rahmah
 Mohd Zuhdi v NorsharifahMohd Zuhdi v Norsharifah
 Zaiton v Abdul RazakZaiton v Abdul Razak