World Class Higher Education: USIM LAW Undergraduate 8

World Class Higher Education: USIM LAW Undergraduate 2. “Section 52(1)(b) of the Islamic Family Law (Federal Territory) Act1984, which follows the Maliki law, had made a fundamental change in the law. The trial judge had therefore wrongly applied the provisions of the dominant Shafii view — where fasakh is only granted if the husband is shown to be incapable of maintaining his wife — to the new section.” Per Professor Tan Sri Ahmad Ibrahim, in Siti Rohani bte Muhamad Yusuf v Mohd Sazali bin Derham. Explain the principle adopted by the Maliki sect on the wife’s entitlement to claim dissolution of her marriage by fasakh if the husband is unable to provide for her maintenance. (20 Marks)

Answer Scheme

According to the doctrine of the Maliki school, the wife is entitled to claim dissolution of her marriage by fasakh (1 mark)

if the husband is unable to provide for her maintenance at the time of the claim, (1 mark)

without regard to whether he had been unable in the past, (1 mark)

unless the wife knew at the time of the conclusion of the marriage (1 mark)

that the husband was indigent. (1 mark)

If the poverty of the husband has not been legally established, (1 mark)

the kadi will order him to provide for her maintenance (1 mark)

or to divorce her; (1 mark)

if the husband does neither (1 mark)

or if his poverty has been proved, (1 mark)

the kadi at his discretion may allow the husband a period of grace/grace period  to fulfil his obligation, (1 mark)

 which may be one month, (1 mark)

 or according to some jurists not more than two months. (1 mark)

If the term expires without the husband having provided for maintenance (1 mark)

the kadi dissolves the marriage. (1 mark)

 Where the husband is absent, (1 mark)

 the wife will similarly be granted a dissolution of the marriage, (1 mark)

 but not until the husband has been warned, (1 mark)

if this is feasible (1 mark)

and given a suitable period of respite. (1 mark)

Sample answer by USIM LAW undergraduate 1050623

The muslims in Malaysia practising from the dominant Shafii view. However under section 52(1)(b) of the Islamic Family Law (Federal territory) Act 1984 follows the Maliki law. Thus made a fundamental change in the law.

This section regards to the wife’s entitlement to claim dissolution of her marriage by fasakh. By referring to the case of Siti Rohani bte Muhamad Yusuf v Mohd Sazali bin Derham [1993] 2MLJ1. The appellant apply to the court for fasakh. Both married and had one child. The wife work as a teacher while the husband work as technical assistant. The husband rent the house and the wife followed him eventhough she have to go work alternatily to Kuala Lumpur everyday. The husband later transferred to Penang, But the wife is able to rent the house and stay far from her husband.

The husband came to visit his wife and his child only once a week and also failed to provide maintenance to the wife. On that time also the wife and child had removed to the parent’s wife house. After four month failed to pay the maintenance the wife went to concilitnon body. An attempt was made to change the husband to maintain his wife and his child. However, the husband still the same.

The wife apply to the court for fasakh in which her claim that the husband failed to provide maintenance to the wife and child. The Kadi in his view from the Syafii sect said that; fasakh only be granted if the husband is shown to be incapable of maintaining his wife. The court give another one month to pay the maintenance. The husband pay the maintenance within one month. This proved and satisfied the court that the husband is capable to pay maintenance and fasakh should not be granted.

The wife appealed upon the decision of the Kadi, and later decided upon the Maliki’s view that the applicant is claiming on fasakh. The Maliki’s view that the dissolution of marriage by fasakh will be granted if the husband is unable to provide for her maintenance. From the fact of the case, the court satisfy and it is proven the husband was unable to pay the maintenance to the wife for the period more than four month. The trial judge before the appeal had made the wrong application of the procisions from the Shafii’s view.

The court in its view that under the Syafie view, it order another three days to pays and to prove that he can maintain his wife by the order from the court. But there is unfair on the part of the wife if the husband failed to pay maintenance for the next or further monthly maintenance.

In the present case, the court allowed the appeal and dissolute the marriage in accordance with the Maliki’s view. Therefore the principle adopted by the Maliki sect is fasakh is the right of wife to claim for the dissolution of her marriage if there is any defect on the husband part. The defect of husband must be recognized an in accordance with Hukum Syara. For instance, the ground for dissolution is the failure of husband to fulfill his obligation and perform his duty as husband and father.

Therefore if the husband had been proven neglected his duties to maintain his wife for a period of three month also entitled the wife to claim for fasakh under the Maliki’s view. The court while attach to the fasakh claim consider the Maliki view and not to other claim like for ta’liq divorce or khulu’ and others.

The main principle adopted in Maliki view that differ from Shafi view is fasakh will be granted if it is proven the husband is unable to provide for her maintenance. Under the section 52(1) of the Islamic Family Law (Federal Territories) Act 1984 (Act 303) explained the ground which recognized under Hukum Syara’ like the husband disappear for one year, or threat the wife with cruelty is a valid ground for fasakh.

[Marks earned: Zero Point Eight (0.8) out of Twenty (20)].

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