Rosmimah has been married to Sallehuddin for 20 years and they have 3 children together. Sallehuddin took a job in Dubai and the whole family moved there. After a year, he married Jenny in Dubai without divorcing Rosmimah. Rosmimah and the children then returned to Malaysia with Sallehuddin's consent. Sallehuddin did not provide maintenance. The document discusses whether Rosmimah and the children are entitled to maintenance given the circumstances. It also discusses the rights of inheritance for both Rosmimah and Jenny in the event of Sallehuddin's death considering the properties acquired during his marriages.

1. LAW 605
JUN 2013 PART C
Mohd Izwan bin Ishak 2011457166
Nur Sakinah binti Hafiz 2011828328
Wan Nashitah Othman 2011489584

2. Rosmimah has been married to Sallehuddin for 20
years. They have 3 children , Aziz aged 18, Suria
aged 14 and Malik aged 2 years. In
2010,Sallehuddin was assigned to manage the
company‟s affairs in Dhubai. The whole family
moved to Dhubai to accompany him. However, a
year later he married Jenny, a French national, who
converted to Islam.
Rosmimah obtained Sallehuddin‟s consent before
she and the children left Dhubai. She and the hildren
stayed at their matrimonial home at Kuala Lumpur.
Since then neither she nor the children were given
maintenance by Sallehudin.

3. (a) Distinguish between the concept of darar syarie
and nusyuz in a polygamous marriage.

4. Surah
 Surah An-Nisa (4):3
“If you fear that you shall not be able to deal justly
with the orphans, marry women of your choice two or
three or four; but if you fear that you shall not be able
to deal justly with them then only one. That will be
more suitable to prevent you from doing injustice.”
 Surah An-Nisa (4):129
“You are never able to be fair and just as between
women, even if it is your ardent desire but turn not
away from a woman altogether so as to leave her as it
were hanging in the air. If you come to a friendly
understanding and practise self-restraint, God is Oft
Forgiving, Most Merciful.”

5. Hadith
Narrated by Ibnu Majah, Rasulullah (pbuh)
said;
“Family of Hisham Al-Mughirah have
requested my permission to give their
daughter in marriage to Ali bin Abi Talib.
Neither I give my permission nor will give in
future, unless and until Ali bin Abi Talib
divorces my daughter, for surely she is part of
me and what troubles and agitates her,
troubles and agitates me too, and what harms
befall her, befalls upon me too.”

6.  Abu Bakar Ar-Razi in his book of Akhamul Quran -
Allah commands marriage with one wife only if there
is fear of injustice in marrying more than one.
 Imam Syafie in Kitab Al-Umm - marriage must not
cause the wives to suffer in their livelihood.
 Hadith narrated by Ibnu Majah, the ruler can forbids
or allows polygamy based on situations.

7.  Shaik Mohammed Abduh - suggests that the State should
interfere to control polygamy.
 He said that polygamy in Islam is so restricted that it
almost becomes a matter of necessity (dharurat) which is
allowed to a person on condition that he can act with
equity (adl) to all the wives.
 Thus, two conditions laid down by Shaik Mohammed Abdul
for court to allow polygamous marriage are the husband
must be capable to become just in distributing his favour
and he must be in position to support plurality of wives and
dependent.

8. IFLA 1984





Section 23(1)
Section 23(1A)
Section 23(2)
Section 23(3)
Section 23 (4) - grounds that court will consider to allow
polygamy: the proposed marriage is just or necessary; the
applicant has such means as to enable him to support all his
wives and dependants according to hukum syarak, thirdly, the
applicant would be able to accord equal treatment to all his wives
as required to all his wives as required by hukum syarak and the
proposed marriage would not cause darar syarie.

9.  Section 2 – darar syarie means harm according to what
is normally recognized by Islamic Law, affecting a wife in
respect of religion, life, body, mind, dignity or property.
 Section 52(2) - the acts of wife which constitute as
nusyuz or unreasonably refuses to obey the lawful
wishes or commands of her husband. These include (a)
when she witholds her association with her husband; (b)
when she leave her husband‟s home against his will; (c)
when she refuses to move with him to another home or
place without any valid reason according to hukum
syarak.

10.  In distinguish between the concept of darar syarie
and nusyuz in a polygamous marriage, a wife will not
constitute as nusyuz even when she does the acts
under Section 59(2) as the acts were due to injustice
she received by her husband. A husband who
practises polygamy but did not act in fair and justice
manner cause darar syarie to wife or wives. Thus,
the wife does not considered as nusyuz and can
claim her right of maintenance as wife.

11. Roslan bte Abdul Ghani v Zulkifli
[1986] 6 JH 338
The wife claimed payment of maintenance for herself. She alleged that she was the second
wife of the defendant and that he had not paid her maintenance since 1 Jun 1985. The
husband did not attend court and after hearing the wife and her witnesses the learned Kadi
asked the wife to take an oath (sumpah al-istidzhar) that she had been faithful to the
husband. The learned Kadi referred to the Holy Quran, verse 34 of Surah An-Nisa:
“Men are the protectors and maintainers of women because Allah has given the one more
strength than the other and because they support them from their means. Therefore the
righteous women are devoutly obedient and guard in the husband‟s absence what Allah would
have them guard.”
And to the Hadith in Sahih Muslim Kitab Al-Hajj:
“Fear Allah concerning women! Verily you have taken them on the security of Allah and
intercourse with them has been made lawful to you by the words of Allah – their rights upon you
that you should provide them with food and clothing in a fitting manner.”


12. The learned Kadi referred to Raudh al-Talib stated that if a
wife is nusyuz, she would lose her right to maintenance.
And finally the Kadi referred to Mu‟in al-Mubin and
Kifayatul Akhyar. He has decided that the wife had not lost
her right to maintenance and he ordered the husband to
pay the maintenance at the rate of RM100 a month from 1
June 1985. The Kadi referred to surah At-Talaq, verse 7 to
the effect:
“Let the man of means spend according to his means and the
man who is restricted let him spend according to what Allah
has given him.”

13. (b) Rosmimah was never divorced by Sallehuddin.
She wishes to apply for maintenance for herself
and the children.
Advise Rosmimah.

14. Issue
The issue is whether Rosmimah and her children
are entitled to the right of maintenance

15. Surah
 Surah al-Baqarah 2:223
“A father has to provide food and clothing for his wife
and children.”
 Surah an-Nisa 4:34
“Men are the protectors of women because Allah has
given the one more strength than the other and because
they support them from their means. Therefore the
righteous women are devoutly obedient and guard in the
husband‟s absence what Allah would have them guard.”

16. Hadith
 The Prophet Muhammad SAW said that,
“Fear Allah in respect of your wives, they are in
your care and control, they do not possess any
means and you should give them clothing, food and
other necessities.”

17. Islamic Family Law Act 1984
 Section 59(1)
The court may order a man to pay maintenance to his
wife.
 Section 59(2)
A wife shall not be entitled to maintenance, when she
is nusyuz or unreasonably refuses to obey the lawful
wishes or commands of her husband, that is;
a) when she withholds her association with her
husband
b) when she leaves her husband‟s home against his
will, or
c) when she refuses to move with him to another home

18.  Section 72(1)
It shall be the duty of a man to maintain his
children as are reasonable having regard
to his means and station in life.
 Section 73(1)
The court may at any time order a man to
pay maintenance for the child of his;
a) if he has refused or neglected to provide
reasonably for his child,
b) if he has deserted his wife and the child is
in her charge.

19. Cases
Haji Ali v Aisyah
The wife claimed maintenance from her
husband as the husband had not paid her any
maintenance or gone to live with her since
1975. The husband appealed on the ground
that he could not afford to pay maintenance and
alleged that the wife was nusyuz. The Appeal
Board ordered a re-trial to decide on the issues
of;
a) whether the wife‟s leaving the husband‟s
house was in a nusyuz manner or not; and
b) whether the husband had the means to pay
the maintenance.

20. Roslan bte Abdul Ghani v Zulkifli
The wife claimed payment of maintenance for
herself and took an oath that the she had been
faithful to the husband. The court held that the wife
is entitled to the right of maintenance since she
was not guilty of nusyuz.

21. Application
Rosmimah never withhold association with her husband,
Sallehuddin. In fact, she is willing to move with her
husband to Dhubai. She also obtained Sallehuddin‟s
consent before she left their home in Dhubai and has
been faithful as a wife. Therefore, it is proven that
Rosmimah is not guilty of nusyuz under Section 59(2)
and is entitled to maintenance. Sallehuddin, on the other
hand, has refused or neglected to provide maintenance
for his children at time they left Dhubai and lived with his
wife in Kuala Lumpur. As such, he has deserted his wife
and the children that are in her charge. The court thus
may order him to pay maintenance of the children under
Section 73(1). Having regard his financial means, it is
affordable for Sallehuddin to provide maintenance for his
wife and his children since he has a prosper business in

22. Conclusion
Rosmimah and her hildren are entitled to the right
of maintenance.

23. (c) Three years after his marriage to Jenny,
Sallehuddin had a heart attack and is half paralyzed.
He opt for retirement and both he and Jenny
returned to Kuala Lumpur. Sallehuddin purchased a
new house in Kuala Lumpur and stayed with Jenny.
Both of them had adopted Aziq, aged six months.
During his marriage to Rosmimah, Sallehuddin had
purchased a 20 acre agricultural land in Johor and
had entered into a goat rearing business with
Rosminah’s brother, Atan. The business prospered
and last month Sallehuddin decided to expand the
business and purchased two more pieces of land in
Johor. Sallehuddin also purchased ASB shares
worth RM 100,000 and has savings of RM 300,000 in
the CIMB Bank.
Advice both Rosmimah and Jenny as to their rights
of inheritance, in the event of Sallehuddin’s death.

24. Issue
Whether Rosmimah and Jenny have rights of
inheritance, in the event of Sallehuddin‟s death.

25. ANSWER :
 The muslim women have special rights





compared to the other women.
This is because of the interaction between
„adat‟ and „syariat‟.
Last time,the Asian women used to work with
the husband in order to ease the burden of
raising a family.
Thus, term of harta sepencarian was not alien
to us.
Basically, there are two main adat being
referred to.
First, the Adat Perpatih.

26. Q: whether Harta Sepencarian falls
under adat or syariah?
 Case of Hujjah Lijah binti Jamal v. Fatimah
Binti Md Diah, Briggs J stated:
“ the rule governing harta sepencarian are not
part of Islamic law proper, but a matter of Malay
„adat‟.”
 After the amendment of Federal Constitution,
the insertion of Article 121(1A), matters related
to harta sepencarian to be heard in the Syariah
Court.

27. Surah an-Nisa‟ verse 32:
“And in no wise covet those things in which
Allah has bestowed His gifts more freely on
some of you than on others: to men is allotted
what they earn, and to women what they earn:
but ask Allah of His bounty. For Allah has full
knowledge of all things.”

28. Surah al-Baqarah verse 228:
“Divorced women shall wait concerning
themselves for three monthly periods. Nor is it
lawful for them to hide what Allah has created in
their wombs, if they have faith in Allah and the
Last Day. And their husbands have the better
right to take them back in that period, if they wish
to reconciliation. And women shall have rights
similar to the right against them, according to
what is equitable; but men have a degree (of
advantage) over them. And Allah is Exalted in
Power, Wise.”

29. Al-Asybah wa an-Nazair
written by Ibn Nujaim & As-Sayuti
any custom practiced by a race which does not
against the Islamic principles can be accepted
and can be made as a law for the country.
Al-Umm by Imam Ghazali
Imam Syafii wrote that when a dispute occurs between man and a
woman in regards to articles or household furniture in their household
as a result of their divorce or even though not separated or both
husband and wife die or one of them dies and in the situation where
both husband and wife die or one of the two of them dies a dispute
arises among the heirs on one of the two sides the method for
resolution in all cases are the same.

30. Ctd…
 Muslims scholars referred „harta sepencarian‟ as
“mata’ al-Bayt” and “Mal al-Zawjayn” which
means the property of the house; and property of
the couple (husband and wife).
 Ibn Qayyim al-Jauziyyah mentioned in his book
Kitab Al-Turuq al-Hukmiyyah recognized harta
sepencarian as a part of Muslim practice.

31. Fatwa by Mufti Terengganu
“property that is individually belonged to either wife or
husband, shall not be distributed among them, each
of them take what is theirs, meanwhile the property
which is acquired as a result of working together,
thus the property must be distributed according to
ration of the contribution made by the husband and
wife, without taking into account how much he or she
invested at first.”

32. Legislation referred : Section 2 of the Islamic Family Law (Federal
Territories) Act 1984
 Section 122(1) of the Islamic Family Law
(Federal Territories) Act 1984
 Section 122(2) of the Islamic Family Law
(Federal Territories) Act 1984.

33. Case referred : Boto bte Taha v. Jaafar bin Muhammad
[1985] 2 MLJ 98
 Tengku Anun Zaharah v. Dato Dr Hussein
(1980) 3 JH 125
 Zainuddin v. Anita
(1980) 4 JH 73
 Aminah bt Ahmad v. Zaharah bt. Sharif
[2008] 3 SHLR 56

34. Application :
 Both Rosmimah and Jenny need to prove
circumstance under case Zainuddin v Anita.
 Although Rosmimah might not contribute in
monetary forms for the acquisition of the
property, but moral support and her obedience
as a wife could be considered as contribution,
by case of Aminah bt Ahmad v Zaharah bt
Shariff.
 The award of property to Rosmimah could
ease her burden of raising the children.

35. Conclusion : Rosmimah can claimed for the right of inheritance
as the first wife, and Jenny also can get the right
of inheritance, after the property were deducted
for the harta sepencarian for Rosmimah, and the
rest are to be distribute accroding to faraidh.