World Class Higher Education in Malaysia: USIM LAW Undergraduate 3

1. Provide the origin and ratio decidendi of these cases:

ii. Mustapha v Habeeba (10 marks)

Answer scheme

In the Negeri Sembilan case of Mustapha v Habeeba, (1 mark)
the learned kadi who heard the case held that
three divorces had been effected (1 mark)
when the husband as alleged pronounced,
‘I divorce you. I divorce you. I divorce you’ to the wife. (1 mark)
The learned kadi did not call any witnesses to support
the husband’s statement. (1 mark)
The Appeal Board ordered the case to be retried (1 mark)
as the case had not been heard
and adjudged correctly, (1 mark)
because no witnesses had been called. (1 mark)
They held that the mere statement (iqrar) of the husband could not
be accepted (1 mark)
as it was not conclusive (1 mark)
and the circumstances and conditions of the making of the statement
were not considered. (1 mark)

Sample answer by USIM LAW undergraduate 1050617

This case is about the husband pronouce talaq to his wife by saying “I divorced you. I divorced you. I divorced you”. The issue here whether the pronouncement of 3 Talaq at once, can consider as 3 talaqs or one talaq only. According to Hanafi sect, it fell under 1 talaq, but Shafii sect, 3 talaq. But, in this case, the Husband alleged that he is had induced by Black Magic. So, it is not under his proper sense. The Syariah Court held that talaq is consider as 3 talaq but they appealed to appeal court. The court give judgement that the lower court must determined on the influenced by the Black Magic and must trial with witness. So, the court held, the case retried before another kadi/judge.
[Marks earned: One Point Four (1.4) out of Ten]


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