World Class Higher Education: USIM LAW Undergraduate 10

World Class Higher Education: USIM LAW Undergraduate

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 1050613

Mustapha v Habeeba (1990) The husband was said “I divorce you. I divorce you. I divorce you” to his wife. The husband is Hanafi practicer and at the time the wife was pregnant. At the court, subordinate court effected for talaq. At Appeal court, the husband defend himself was at the time not in proper sense and induce by black magc. The Syariah Appeal Court held that the subordinate court did not called any witness. According to Hanafi practice, a divorce at same time and place was effected one talaq only.

The ratio decidendi is triple divorce at the same time and place was effected one talaq only.

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