You are on page 1of 30

WRITTEN ASSIGNMENT

FAMILY LAW II (LAW 2221)

DATE OF SUBMISSION: NOVEMBER 28, 2017

BY:

NAME MATRIC NUMBER SECTION

AINUL IZZATI BINTI MOHD JAMILI 1524904 1

AMNI DIYANA BINTI RAHIM 1525560 5

AMIRAH BINTI AMIR HAMZAH 1523734 5

NUR AMALINA BINTI AZAMI 1528110 5

NOR ALBINA ALLESEANA BINTI MOHD JAIB 1528942 5


Question:

Shamima and Ismadi were divorced through fasakh after being married for two years.

The grounds of fasakh include failure to pay maintenance for more than three months and failure

to perform marital obligation for one year. She came to seek your advice on her ancillary rights

including her share in jointly acquired property for two-storey bungalow and a Proton Perdana

registered under her husbands name. She also wishes to claim an exclusive right to her money in

CIMB Bank amounting to RM 20 000 as well as three shops lots that were registered under her

name. She also wants to claim custody and maintenance of their adopted son, Mizan who is three

years old.

Advise her.

Outline of issue(s):

1. Whether the dissolution of marriage between Shamima and Ismadi by way of fasakh is valid?

2. Whether Shamima is entitled to her ancillary rights namely her share in the jointly acquired

property of the bungalow and car registered under her husbands name, and her exclusive share

of her money in the bank and shop lots registered under her name?

3. Whether Shamima is entitled to claim the custody and maintenance of their three years old,

adopted son?

1
Answer:

1. Whether the dissolution of marriage between Shamima and Ismadi by way of fasakh is

valid?

The first issue to be determined is whether the dissolution of marriage between Shamima

and Ismadi by way of fasakh is valid. Islamic law has prescribed several methods for the married

couples to end their marriage contract. One of the methods is fasakh, which is defined as an

option or khiyar given to the wife and husband to end their marriage through judicial process

based on the grounds that are acceptable in Islamic law.1 Fasakh is also considered as a way out

or an alternative for the wife if only talaq and khuluk cannot function as a way in dissolving the

marriage.2 The main reference for legal recognition of fasakh as a mode of divorce is embodied

in Surah Al-Baqarah verse 229:

then, either keep (her) in an acceptable manner or release (her) with good treatment

Since the Quran has not provided detailed information on the issue of fasakh, Muslim

jurists have developed the legal framework based on hadith of Prophet, narrated by Ibn 'Abbas

on the general rule of la darar wa la dirar3 which means there should be neither harming nor

reciprocating harm.4 It can also be seen through the practices of the Companions, i.e. during the

period of Umar as the caliph, he used to send letters to commanders of army, where in one of the

letters, he instructed them to detain men who had left their wives at home and request them to

send maintenance to their wives, and if they refused to do so they need to divorce them. He also

1
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 92.
2
Abdul Monir Yaacob and Siti Shamsiah Md Supi, Undang-Undang Keluarga Islam (Kuala Lumpur: Institut
Kefahaman Islam Malaysia (IKIM), 2006), p. 230.
3
Raihanah Haji Abdullah, Reasons to Dissolve a Marriage through Fasakh, Syariah Journal 1, no. 5, p.2.
4
Sunan Ibn Majah.

2
stated that men who divorced their wives still need to pay all the maintenance due to them.5

Majority of the Muslim jurists agreed that divorce by way of fasakh is the right of the wife rather

than the right of husband in ending a marriage. This is because the husband has exclusive right in

dissolving the marriage which is the pronouncement of talaq.

In the situation of Shamima and Ismadi, they were divorced by way of fasakh on the

ground of failure to pay maintenance for more than three months and failure to perform marital

obligation for one year.

For the first ground, the question arose is whether failure to pay maintenance for more

than three months constitute a valid ground for dissolution of marriage by way of fasakh.

Imam Muhammad Abu Zahrah defined marriage as a contract which legalizes relationship

between a man and a woman and makes them help or assist one another and determines rights

and duties of the husband and wife. One of the duties resulted from marriage is the duty of

husband to provide maintenance or nafaqah to the wife.

Nafaqah has been derived from the Arabic word of infaq which means to spend for a

good purpose.6 According to the Hanafi, Hanbali and Shafii schools, the common needs of a

wife that should be accommodated by the husband are food, clothing and accommodation. 7 In

addition, maintenance of wife also covers any house appliances and cost for the service of maid

if such service is necessary.8 Meanwhile, according to contemporary Muslim scholars like Zakiy

al-Din Shaban and Muhammad Mustafa Shalabi, nafaqah includes any kind of necessary

5
Ruhil Hayati bin Ismail, Fasakh: A Case Study in Syariah Court Negeri Sembilan, p. 14.
6
Azizah Mohd and Badruddin Hj Ibrahim, Muslim Wifes Rights to Maintenance: Husbands Duty to Maintain a
Working wife in Islamic Law and the Law in Malaysia, IIUM Law Journal 18 (2010), p. 104.
7
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 86.
8
Abdul Monir Yaacob and Siti Shamsiah Md Supi, Undang-Undang Keluarga Islam (Kuala Lumpur: Institut
Kefahaman Islam Malaysia (IKIM), 2006), p. 25.

3
services based on the custom of society.9 This obligation of a husband to pay maintenance to the

wife has been established based on various authorities. For example, Allah has mentioned in the

Quran:

but he shall bear the cost of their food and clothing on equitable terms10

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.11

There is also hadith of the Prophet, narrated from Aisyah:

Hind, the daughter of 'Utba, wife of Abu Sufyan, came to Allah's Messenger and said:

Abu Sufyan is a miserly person. He does not give adequate maintenance for me and my

children, but (I am constrained) to take from his wealth (some part of it) without his

knowledge. Is there any sin for me? Thereupon Allah's Messenger said: Take from his

property what is customary which may suffice you and your children.12

Hence, based on the above authorities, payment of maintenance to wife is wajib upon the

husband.13 Nonetheless, non-payment of maintenance as a ground of fasakh is not unanimously

agreed by the four major schools. According to Shafii, Maliki and Hanbali schools, it is

permissible to dissolve the marriage on the ground of failure to maintain 14 as it is stated in Surah

Al-Baqarah verse 231:

9
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 86.
10
Surah al-Baqarah(2): 233.
11
Surah an-Nisa(4) :34.
12
Sahih Muslim.
13
Abdul Monir Yaacob and Siti Shamsiah Md Supi, Undang-Undang Keluarga Islam (Kuala Lumpur: Institut
Kefahaman Islam Malaysia (IKIM), 2006), p. 23.
14
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 194.

4
When ye divorce women, and they fulfil the term of their ('Iddat), either take them back

on equitable terms or set them free on equitable terms; but do not take them back to

injure them, (or) to take undue advantage; if any one does that; He wrongs his own soul.15

Meanwhile, Hanafi jurists differ from the view, where they applied humanistic approach

when imposing the liability of providing maintenance to wife. Two factors, namely the ability of

husband to provide financial needs and the situations that arise where the husband may

experience difficulties in his life are being considered.16 Thus, they are of the opinion that the

husband cannot be subjected to suffer more hardship by allowing the wife to demand fasakh, and

they proposed alternative ways in solving this problem i.e. by forcing the man to spend on family

and imprisonment as the last resort. Their argument is based on a Quranic verse which reads:

Let the man of means spend according to his means: and the man whose resources are

restricted, let him spend according to what Allah has given him.17

In practice, there are various approach in handling this matter as to balance between the

right to dissolve the marriage subjected to harm suffered by wife and the difficulty of the

husband in providing financial needs. For example, if the husband is around but does not have

financial means to support the wife, the court should give time to the husband to prove before the

court that he has such capability to maintain the family, but the duration should not be more than

three months. However, if he failed to prove it, the court must order for the dissolution of

marriage. Nonetheless, this does not apply when the failure to pay maintenance is not provided

15
Surah Al-Baqarah(2) :231.
16
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 195.
17
Surah At-Talaq(65) :7.

5
with lawful reasons. Nowadays, the failure in fulfilling this obligation by husband is mostly due

to neglect by the husband rather than financial difficulties.18

Meanwhile in Malaysia, Section 52(1)(b) of Islamic Family Law (Federal Territories)

Act 1984 (hereinafter known as IFLA) specifically stated that a woman who is married in

accordance with Hukum Syara shall be entitled to obtain an order for the dissolution of marriage

or fasakh on the ground that the husband has neglected or failed to provide for her maintenance

for a period of three months. However, according to Section 59(2) of IFLA, the right ceases to

exist when the wife is proven to be nusyuz.19

Failure to provide maintenance as a ground of fasakh can be illustrated in the case of

Halijah binti Mat Serat v Mohd Idris bin Nordin20. In this case, the plaintiff had applied for

dissolution of marriage under Section 53 of Islamic Family (Perak) Enactment 2004 on the

ground of failure of the husband, who was a drug addict, in providing maintenance for more than

three months. The court allowed the application of fasakh and held that the failure was due to the

husbands own neglect and not because of any illness or disability that become an impediment in

fulfilling this obligation towards his wife. This case also emphasized that a working wife is not

prevented from getting her maintenance from the husband.

In a quite recent case of Ainun binti Abdul Majid v Mohamad Adam bin Bakar21 the

application of fasakh was made by the wife on the ground of failure of the husband to provide

maintenance for more than three months under Section 53(1)(b) of Islamic Family Law

18
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 195.
19
Section 59(2) of Islamic Family Law (Federal Territories) Act 1982. Nusyuz happens when a wife does either one
of these three things i.e. withholds her association with her husband, leaves her husbands home against his will or
refuses to move with him to another home without any lawful reason.
20
[2009] 1 ShLR 151.
21
[2008] 4 ShLR 141.

6
(Selangor) Enactment 2003. The court found that the ground was successfully proven with the

evidences submitted by the wife such as financial expenses by the wife for three months and also

credit cards statement. The judge also viewed that when the husband has failed to provide

maintenance for a long period of time or when the failure is being done repeatedly by the

husband, it can be categorized as habitual assaults of the wife under Section 53(1)(h)(ii) of IFLA.

Here, habitually assaults does not only confined to physical injury but also includes an act of

causing emotional distress. Thus, failure in providing maintenance to wife does not only makes

the wife suffers financial hardship but it also can cause emotional distress to her.

The Syariah court has adopted the approach of providing the period of respite and oath of

istizhar as a method of proof for the husband to show his capability in maintaining his wife and

children before fasakh is granted.22 However, this approach is only applicable for husband who

suffered from financial difficulties, and not for other situations.23 For instance, in the case of Siti

Rohani v Md Sazali24, the wife had applied fasakh due to the husband failure to provide

maintenance to her and their children for more than three months. The court adjourned the case

and gave a period of one month for the husband to prove that he was not able to provide

maintenance and subsequently ordered the maintenance to be paid. The husband complied with

the order and the application for fasakh was rejected by the court. However, upon appeal, the

decision was quashed and fasakh was granted as the court found that the husbands failure was

due to his own neglect and not because of destitute.

In the situation of Shamima, her husband, Ismadi had failed to provide maintenance to his

family for more than three months. Assuming that Shamima, during the marriage, has not been

22
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 202.
23
Ibid.
24
(1994) 9 JH 230

7
declared to be nusyuz by any Syariah Court, she is entitled to get maintenance. In applying all the

rules that had been laid out above, Shamima has a valid ground to apply for fasakh under Section

52(1)(b) of IFLA. The application is also strengthened if it is proven that Ismadis failure is due

to his neglect and not because of financial difficulties. Thus, non-payment of maintenance for

more than three months by Ismadi is a valid ground for Shamima to dissolve the marriage by

way of fasakh.

For the second ground of the application of fasakh, the issue is whether failure to

perform marital obligation for one year is a valid ground for dissolution of marriage by way of

fasakh. According to Section 52(1)(d) of IFLA, it is stated that a woman or man who is married

in accordance with Hukum Syara shall be entitled to obtain an order for fasakh on the ground

that the husband or wife has failed to perform marital obligations (nafkah batin) for a period of

one year without any reasonable cause.

Our law on application of fasakh due to failure to perform marital obligation differs from

other countries. For example, in Bangladesh, according to Section 2(iv) of the Dissolution of

Muslim Marriage Act 1939, a woman who is married under Muslim Law shall be entitled to

obtain a decree for the dissolution of her marriage on the ground that the husband has failed to

perform his marital obligation for a period of three years without any reasonable cause. Here, we

can see that in Bangladesh, the period of time for the wife to apply for fasakh if the husband does

not perform marital obligations is longer to be compared with our law which the period is only

up to one year. Moreover, in Bangladesh, the right is entitled to the wife only, unlike in

Malaysia, where both husband and wife can apply for fasakh on the ground of failure to perform

marital obligations.

8
It is illustrated in the case of Maznah Bt Kassim v Othman Bin Nordin25, where the wife

made several allegations including failure of the husband to perform marital obligation for more

than one year, and the occurrence of syiqaq26 and mental abuse due to long term of conflict in the

marriage. The couple also did not share the same bed though they were living under the same

roof. Since the husband did not deny the allegations, therefore the court held that the marriage

can be dissolved through fasakh due to the husbands failure to provide nafkah batin to the wife

which is a part of the marital obligation, without any valid reasons.

In the case of Zarina bte Shaari v Mohd Yusoff bin Omar,27 the application of fasakh is

granted to the plaintiff wife as the couple are living in syiqaq or enmity due to the husbands

failure to perform his responsibility by not giving nafkah batin. In this case, the couple lived

together but did not communicate nor did they had sexual intercourse. The husband who was

practicing polygamy claimed that he was being fair and just by dividing the night. However,

although there was division of night, the defendant did not give nafkah batin to the plaintiff. The

wife further justified that her husband had made her life suffer by torturing her emotionally and

mentally.

In a Metro newspaper article dated 30th January 2015 written by Suraini Awaludin,

entitled Kemusykilan Syariah: Gagal tunai nafkah batin the writer has discussed on the failure

of the husband to perform the marital obligations. In the article, the writer was asked by a

woman regarding her husband who had not performed any marital obligation for two years but

still provides the maintenance or nafkah zahir to her. The writer answered her question by stating

25
[2007] 3 SHLR 112
26
Syiqaq or darar is a situation where there are constant quarrels between the husband and wife.
27
[2005] 4 SHLR 173

9
that every husband is obliged to give nafkah batin to their wives as it is his responsibility as

provided in Surah Al-Baqarah verse 223:

Your wives are a place of sowing of seed for you, so come to your place of cultivation

however you wish and put forth (righteousness) for yourselves. And fear Allah and know

that you will meet Him. And give good tidings to the believers.

The writer also stated that one of the main purpose of marriage is to legalize the sexual

relationship between a man and a woman, and the husband is sinful if he does not fulfil the

sexual desire of his wife. Therefore, the writer suggested to the woman to file the application of

fasakh as her husband has neglected his duty to perform marital obligation towards her.

In applying the above laws to Shamimas situation, her divorce through fasakh on the

ground of failure of her husband to perform marital obligation for one year is valid by assuming

that Ismadi has no reasonable cause in doing so. As a husband, Ismadi is obliged to perform his

marital obligation towards his wife, Shamima as it is a part of his responsibility. To conclude,

their dissolution of marriage is valid on the ground that Ismadis failure to provide maintenance

for more than three months and to perform his marital obligation for one year. Every wife has

the right to claim for maintenance and marital obligation from her husband, and it is compulsory

for the husband to provide such rights to the wife. If the husband denies it, the wife is entitled to

dissolve the marriage by way of fasakh.

10
2. Whether Shamima is entitled to her ancillary rights namely her share in the jointly

acquired property of the bungalow and car registered under her husbands name, and her

exclusive share of her money in the bank and shop lots registered under her name?

The next legal issue that will be discussed is whether Shamima is entitled to claim

ancillary rights which are her share in the jointly acquired property of the two-storey bungalow

and a Proton Perdana registered under Ismadis name, and also her exclusive share of RM 20 000

in CIMB Bank and three shop lots registered under her name. By virtue of Section 25 of the

Civil Law Act 1956, it is clearly provided that personal matters of the Muslims in regards to the

disposal and devolution of property shall not be affected by the principles of English law and

shall be governed by Muslim law or in Sabah and Sarawak, native law and custom.

In order to determine the issue arose, we must first understand the definition of jointly

acquired property or also commonly known as harta sepencarian. There are no specific

definitions of jointly acquired property provided in the main sources of Islamic Law, i.e. the

Quran and Sunnah, as the concept is developed by the Malay Archipelago based on the Islamic

recognition of rights to property.28 However, certain views of the scholars have proved the

existence of such concept in Islam albeit in practice, it differs in some aspects. 29 The

contemporary scholars, though does not specifically address it as harta sepencarian, had found

such concept to be within the discussion of mata al-bay (household items) or mal alzaujayn

(married couples property).30 Imam Al Suyuti in Al Asybah wa Al Nadzir explained on the

28
Mat Hussin, M. N. & Abdullah, R. Amalan Pembahagian Harta Sepencarian Di Malaysia: Satu Sorotan Literatur.
Journal of Shariah Law Research, 1(1), (2016) p. 75-88.
29
Ibn al-Qayyim mentioned that in cases where the husband and wife worked together in obtaining household and
mortgages, the ownership of the property should not be based on the name listed in the property but based on
the evidence of contributions by the parties involved.
30
Jamaluddin, M. H. & Mat Hussin, M. N. Harta Sepencarian vs Harta Perkahwinan dalam Perundangan Sivil: Satu
Sorotan Ringkas. AlBasirah, 6(1), (2016), p. 79-96.

11
well-known Islamic jurisprudential principle that a social custom of a particular nation or

community which does not contradict Shariah principles may be recognized as a legal rule.31

Hence, under Section 2 of IFLA, the definition of harta sepencarian as property jointly acquired

by husband and wife during the subsistence of marriage is in accordance with the conditions

stipulated by Hukum Syara. Similarly, Raja Azlan Shah in the case of Roberts v Ummi

Kalthom,32 defined it as property acquired during marriage by a husband with his wife, as a

result of their joint efforts and resources. In general, under the Malaysian Islamic Family Law, a

woman is entitled to assert her rights to jointly acquired property in three distinct circumstances

which are by divorce,33 practice of polygamous marriage by husband34 or after the death of

husband.35 However, the discussion will only be confined to rights to harta sepencarian due to

divorce.

In order to constitute an asset as harta sepencarian, firstly, the party who is claiming

must prove to the court that the property was acquired during the subsistence of the marriage and

not any time after the pronouncement of valid talaq.36 This can be illustrated in the case of

Zarah v Zaidon37 where the court dismissed the claim made by a divorced wife due to her failure

to prove that the property was acquired during the marriage.

Principally, harta sepencarian can be divided into three types, namely joint effort

property, sole effort property and property own before marriage but has been substantially

31
Abdullah, R., Martinez, P. & Mohd Radzi, W. Islam & Adat. Indonesia & the Malay World, 38(111), (2010). p. 161-
180.
32
[1966] 1 MLJ 163
33
Section 122 of Islamic Family Law (Federal Territories) Act 1984
34
Section 23(9) of Islamic Family Law (Federal Territories) (Amendment) Act 2006 provides that every court has the
power on application by any party to the marriage to order a division of any jointly acquired property.
35
Department of Islamic Judiciary Malaysia issued a Practice Direction No. 5, 2003 enforceable on November 1,
2003 which allows claim of harta sepencarian by a widow after death of her husband.
36
Ibrahim, A. The Family Law in Malaysia & Singapore. (Malayan Law Journal Sdn Bhd, 1984)
37
(1983) 3 JH 225

12
improvised at the time of the marriage. The basis of all the types of harta sepencarian is the

requirement of contribution, be it direct or indirect. In the case of Semah bt Daud v Hassan bin

Awang38, the court highlighted the requirement of contribution either in the form of direct or

indirect contribution in determining the division of harta sepencarian. A direct contribution

connotes the endeavor put in by either party in the form of financial or labor while indirect

contribution covers anything that usually does not come in monetary form, such as moral support

or take responsibility to look after the children. Thus, as long as the party can prove to the court

that they had contributed either directly or indirectly to the acquisition of the property, they are

entitled to the share of harta sepencarian.

For the first type of harta sepencarian, i.e. joint effort property, the presence of a direct

financial contribution is imperative from both husband and wife in order to constitute an asset as

a joint effort property. In Haji Abdul Rahim v Isngaton39, the wife had contributed in pecuniary

form to the purchase of the land that was used to build the matrimonial home. She was also the

backbone of the family given that she was the one who maintain all the expenses in the family.

Thus, after considering all the direct contribution from the wife, the court held that the land was

indeed a harta sepencarian and therefore the husband was ordered to transfer half of the land to

the wife.

However, this does not mean that indirect contribution, i.e. mere domestic work of a wife

in aiding the acquisition of the property would bar her from getting shares in it. This principle

brings us to the second type of harta sepencarian i.e property acquired by the sole effort of one

party. An asset would be considered as a sole effort property if the direct contribution is made by

38
(2008) 26(2) JH 209
39
(1980) 2 JH 264

13
only one party to the marriage, while the other party contributed indirectly. In this situation, the

court may divide the assets in such a proportion that court deems reasonable by considering the

extent of contribution made by the non-acquiring party to look after the welfare of the family and

the needs of the minor children.40 In the case of Tengah v Ibrahim41, the house acquired solely

using the husbands salary was entitled to be divided, due to the effort made by the wife in

looking after the household and the family. Thus, it is clear that a wife who did not contributed

directly to attain the property but does the household duties and takes care of the family must be

compensated by the husband which subsequently entitled her to a share.

The third type of harta sepencarian is the property acquired before the marriage but was

substantially improved by either one or by both parties during the marriage. In this instance, the

law will deem the asset as part of harta sepencarian that is will be subjected to division based on

the ability of the claimant to prove so before the court. This has been laid down in Section

122(5) of IFLA which had also been applied in the case of Daud Anderson Macdonald v Norabi

bt Muda42. In this case, the defendant contended that the property was acquired two months prior

to their marriage and shall not be part of harta sepencarian. The court held that although the said

property was registered under the defendants name, there were no impediments for the plaintiff

to claim his entitlement to the said property as a jointly acquired property as the plaintiff had

contributed towards the purchase of said property by paying the deposit and other payments

inclusive of the monthly installments during the subsistence of their marriage. From the case, it

can be said that for a property owned before marriage to be subjected to division as a harta

40
Section 122 (3) & (4) of Islamic Family Law (Federal Territories) Act 1984
41
(1979) 1(2) JH 71
42
[2011] 1 SHLR 62

14
sepencarian, it must be proven to the court that the other party had put in effort to improve it

either by his own or by their joint effort.

It is extremely important for the court to decide whether the asset is a joint acquisition,

merely sole effort, or a sole property acquired before the marriage as it affects the measure of

distribution of the property. If a wife has directly contributed to the acquisition of the property,

she will be entitled to one half of the property. However, if her contribution is only confined to

indirect form, she will be entitled to one third of the property only.43

A case to show the decision of court that allows one half of property as share of the harta

sepencarian is the case of Wan Junaidah v Latiff44 where the monthly payment of the land was

being paid through a joint account, and the court held that this is a joint effort property. The

husband is required to pay half the amount of the proceeds from the sale of the land as the wifes

share in the harta sepencarian.

In cases involving an asset registered under the name of the one party, the court will still

put consideration into the extent of contribution by both parties before deciding the proportion of

division. For example, in the case of Norhayati bt Yusoff v Ahmad Shah b Ahmad Tabrani45

where the court considered the wifes contribution as a loyal housewife who took care of the

children and the husbands well-being as an indirect contribution to the acquisition of the

property thus entitled the wife to one third of the share to the matrimonial house even though it

was registered solely under the name of the husband.

43
Ibrahim, N. Masalah Tuntutan Harta Sepencarian. Undang-undang Keluarga Islam, 14(7), (2007) p. 216-256.
44
(1988) 8 JH 122
45
[2006] 1 CLJ (Sya) 7

15
In the recent case of Mohd Najib bin Md Nasir v Mastura bt Ahmad46, the husband

appeal against the trial courts decision of the division of harta sepencarian for a double story

house to be divided 40% for the wife and 60% for himself . The husband alleged that the trial

judge had erred when he ordered the division of 40% of the said property in the wifes favor on

the ground that she had failed to prove the extent of her contribution to the property. The appeal

court held that the 40% rate decided by the trial judge was reasonable because even though the

wifes contribution was from her collection of money received from the husband, she had

admitted that she was a full-time housewife which proved her indirect contribution towards the

acquisition of the property. Thus, we can conclude that the method used by the court in

calculating the proportion of property is based on the courts discretion in determining the extent

of contribution of the parties in getting hold of the property, be it direct or indirect.

In Shamimas situation, firstly, she is claiming her shares in the harta sepencarian for the

two-storey bungalow and the Proton Perdana which were registered under her husbands name.

In order to succeed her claim, she must first satisfy the court with evidences that the properties

were acquired during the subsistence of her marriage and she had contributed in acquiring the

said properties. In this situation, it is presumed that Ismadi did a loan from bank in order for him

to acquire the bungalow and the car, and he is still in liability of the loan. Logically speaking,

Ismadi who had neglected his wifes maintenance would also neglected to pay the monthly

installments of the house and car. Presuming that Shamima is a businesswoman who had her

own income and she had helped her husband by paying the installments of the properties, it is

clear that she had made fiscal contribution to the acquired properties. She also, presumably had

acted as a responsible wife by performing all the duties such as maintaining their child and

46
[2015] 1 SHLR 90

16
taking care of the household without any assistance from a servant. Thus, her contribution to the

property was clearly consist of her direct and indirect contribution and therefore the assets are

joint effort properties, which entitled her to the share of harta sepencarian of the said properties.

As provided under Section 122 of IFLA, the power to order the division of harta

sepencarian can only be enforced by the same court which permits the pronouncement of talaq

or order for dissolution of marriage, and the claim for division of harta sepencarian cannot be

made in isolation from the divorce proceedings. In other words, when Shamima submitted the

application for divorce through fasakh, her claim for the division of harta sepencarian should be

accompanied along and will be heard after the divorce proceeding. In the situation, Shamima

must return to the court that had granted the fasakh and make a new application for order of

division of harta sepencarian by producing evidences of her contributions to the properties.

Secondly, Shamima also claims her exclusive right to her money in CIMB Bank

amounting to RM 20 000 and three shop lots that were registered under her name. In this

situation, Shamima needs to prove before the court that the said properties were acquired by her

own effort in the absence of Ismadis contribution. Here, it is presumed that Shamima had started

her business even before she got married with Ismadi, thus the said properties were acquired

solely by Shamima before the marriage. In Islam, a marital bond is considered as a sacred

contract or mithaqan ghazilan which would not, in any way give effect in rights to own property.

A Muslim woman who enters into a marriage is entitled to retain ownership of her property the

same way she owned it while she was a feme sole. What was earned by the wife is never the right

of the husband and the wife has the full right and freedom to transfer or to form any contract

17
over what she possesses as what she deemed appropriate. Such basis also applies to the

husband.47 This is hinged in Surah Al-Nisa verse 32 which says:

For men is a share of what they have earned, and for women is a share of what they have

earned.

Shamima also alleged that during their marriage, Ismadi had never helped in running her

business nor did he help to look after their child while she was busy working. Our law has

clearly provides that the division of harta sepencarian among the parties is confined to the

property acquired during the marriage, which connotes that the property acquired before and

after the marriage in the absence of any contribution made by the other spouse is not subjected to

the division.48 Thus, it can be concluded that Shamima does entitled to claim her exclusive right

to the money in CIMB Bank as well as the shop lots which were registered under her name, since

there is no contribution whatsoever on behalf of Ismadi in improvising the properties acquired by

Shamima.

47
Abdullah, R., Martinez, P. & Mohd Radzi, W. Islam & Adat. Indonesia & the Malay World, 38(111), (2010), p. 161-
180.
48
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 241.

18
3. Whether Shamima is entitled to claim the custody and maintenance of their three years

old, adopted son?

The last issue to be determined is whether Shamima is entitled to claim the custody and

maintenance of their adopted son, Mizan who is three years old. In answering this, we will first

discuss on the law of adoption in Islam and in Malaysia, which will then give rise to the issue of

custody as well as the maintenance of the adopted child.

According to Barrons Dictionary of Legal Terms, fourth edition, adoption means the

legal process by which the parent-child relationship is created between persons not so related by

blood. The adopted child becomes an heir and is entitled to all other privileges belonging to a

natural child of the adoptive parent49. This principle is not recognized in Islam, where under

Islamic law, adoption or kafalah is never a mode to establish paternity50 neither does it create

any legal family relationship. One cannot become a persons real son merely by virtue of a

declaration. This has been stated in Surah Al-Ahzab, verse 4 and 5:

and He has not made your claimed sons your (true) sons. That is (merely) your saying

by your mouths, but Allah says the truth, and He guides to the (right) way. Call them (the

adopted children) by (the names of) their fathers; it is more just in the sight of Allah. But

if you do not know their fathers, they are your brothers in religion

The asbabul nuzul or cause of revelation of the above verses was due to the practice

during pre-Islamic Arabia, where the adoption system was very similar with the common law,

i.e. the child takes the family name of the adoptive father. During that time, even the Prophet

49
Barrons Dictionary of Legal Terms, 4th edn (New York: Barrons Educational Series, Inc. 2008)
50
Datuk Professor Ahmad Ibrahim, Family Law in Malaysia and Singapore, (Singapore: Malayan Law Journal Pte.
Ltd., 1984), p. 284

19
Muhammad adopted Zaid Ibn Harithah, a slave given to him by his wife, Khadijah. After Zaid

accepted Islam, his biological father came to claim him but Zaid refused to go back with him.

This has made the father so angry and as the consequence, he disowned Zaid. As the Prophet

treated Zaid well and they both established father-child relationship, the Prophet declared his

adoption of Zaid and Zaid could be called as Zaid Ibn Muhammad (Zaid the son of Muhammad).

However, when the Prophet migrated to Madinah, this kind of adoption was prohibited. Zaid was

no longer called Zaid Ibn Muhammad but Zaid Ibn Harithah.

This shows that there are no similar legal consequences of adoption between Islamic law

and the common law. In Islam, the adoptive child will never become ones own child, which

means that we cannot change the family name of the adopted child. The adoptive child also will

not get the similar legal status as the biological child which excludes them from the right to

inherit and the child will also be considered as non-mahram to the adoptive family. This

prohibition is on the basis that it would create confusion to the pattern of the family relationships

and the legal rights and duties that has been invested by the law51. Nonetheless, this does not

render Islam to be barbaric towards the law of adoption. In fact, there is also a way to make the

adopted child as mahram to the adoptive family, which is through breastfeeding by the adoptive

mother. This is known as radaah or fosterage, where under this practice, the foster child will be

in a similar position as the biological child when it comes to the matter of marriage, as said by

Prophet Muhammad:

What becomes mahram (forbidden for marriage) through breastfeeding is that which

becomes mahram through blood ties.52

51
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 319.
52
Sahih al-Bukhari and Muslim

20
It means that the foster child is prohibited from marrying the adoptive parents and their

biological children forever. Thus, it is clear that in Islam, adoption is allowed with some

conditions that must be observed.

In Malaysia, the rules of adoption for Muslims is governed under the Registration of

Adoption Act 1952 (hereinafter known as RAA). Under this adoption, except for the issue of

inheritance and the childs legal status, the adopted child can be said to enjoy the same rights as a

biological child, which includes the rights of maintenance and custody. After all, the intention of

the RAA is to allow the adoptive parents to take care of the adopted child.53

Moving on to the issue of custody or also known as hadhanah of the three-year old child.

Under Islamic law, hadhanah is defined as the protection from harm, given to those who cannot

act for themselves, such as child or a lunatic, and the care given to them such as in looking after

their food, drink and anything that gives advantages and benefits to them.54 It also means the

caring for the infant during the early years of life, when the infant needs women to look after it.55

Prophet Muhammad said:

Everyone of you is a guardian and is responsible for his charges: The Imam (ruler) of the

people is a guardian and is responsible for his subjects, a man is the guardian of his

family (household) and is responsible for his subjects, a woman is the guardian of her

husbands home and of his children and is responsible for them, and the slave of a man is

53
Raymond Mah & Liow Pei Xia, Adoption in Malaysia, available at http://www.mahwengkwai.com/adoption-
malaysia/
54
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 267.
55
Dr. Mehrun Siraj, Resolving Child Custody Disputes: The Law & Practice in Malaysia, (Lexis Nexis).

21
a guardian of his masters property and is responsible for it. Surely, everyone of you is a

guardian and responsible for his charges.56

From the Hadith above, it shows that hadhanah, is not merely a right but also a responsibility.57

Hence, when someone is given the right to take care of a child, he will also bear the

responsibility to give a proper care to the child as best as he could.

In most cases, the issue of hadhanah revolves around the person who is more entitled to

obtain it. In Islam, majority of the scholars is of the opinion that the mother is more entitled to

the hadhanah of a small infant. We can see that during the Prophets time, a woman who had

been divorced came to the Prophet and told him that the father of her infant son wanted to take

him away from her. The Prophet then said:

You have got more right to take him till you marry someone else.58

It also happened in the time of the Caliphs where the right of hadhanah was questioned between

Sayyidina Umar and his wife. In deciding this, Sayyidina Abu Bakr said to Sayyindina Umar:

Her (the wifes) smells and virtues are better for this infant rather than yours.59

Hence, it is clear that in Islam, the mother will be given priority to the right of hadhanah. The

rationale behind this principle is because logically, the natural motherly instinct makes her more

compassionate, closer to the child and understand the child better than the father or anyone

else.60 However, according to the first hadith quoted above, the right of hadhanah vested on the

mother ceases upon her marrying another man who is stranger to the child. The reason is because

56
Sahih al-Bukhari
57
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 269.
58
Sunan Abu Dawud
59
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 272.
60
Ibid.

22
it is presumed that the man will mistreat the child, hence to prevent such thing from happening,

the child should not remain with the mother. Nevertheless, if the subsequent marriage is

dissolved, the mothers right of hadhanah will revive.61

In Malaysia, since there is not much case on the dispute of custody over an adopted child,

the rights of hadhanah of the adopted child can safely be said to be the same as the right of

hadhanah of a biological child. Section 81(1) of IFLA states that the mother is the best entitled

to the hadhanah of her infant child during the marriage as well as after its dissolution.62 In an old

case of Jainah v Mansor63, the adoption was recognized as part of the customary law of Pahang.

The court held that when the husband dies, the adoptive mother is ordinarily entitled to custody

of the adopted child. In the case of Zawiyah v Ruslan64, the court held that the hadhanah of the

three-year-old boy is granted to the mother. In Rosna v Mohamed Nor65, even though the

paternal uncle had been appointed as the guardian of the child by the father of the child before

the latter passed away, the right of hadhanah was entitled to the mother as the child was still

small.

However, the law further provides under Section 86(3) of IFLA that even though the

right of hadhanah of a small infant is given to the mother, such right should be paramount to the

welfare and interest of the child. This means that if the right of hadhanah which is given to the

mother would bring harm to the interest and welfare of the child, the court will reconsider such

right in order to give the utmost preference to the childs interest and welfare. After all, the

61
All school except Maliki
62
Section 81(1) of Islamic Family Law (Federal Territories) Act 1984
63
[1951] 1 MLJ 62
64
(1980) 1 JH (2) 102
65
(1979) 1 JH (2) 94

23
objective of hadhanah, according to al-Mughni is to ensure that the welfare of children is

protected66

In the case of Wan Abdul Aziz v Siti Aishah67, the child has been living with her father

and paternal grandmother since the age of two years and three months and this has made the

child became so attached to the grandmother. The court is of the opinion that to separate the

child from the father, it would seriously affect the feelings and emotions of the child. Hence, the

right of hadhanah was granted to the father. In Zety Aznin Azmi v Abd Mutalib bin Abdullah68,

the court has given a paramount consideration to the welfare of the two children in deciding the

dispute of hadhanah. Since the father has failed to provide maintenance to the family even

before the dissolution of marriage, the hadhanah of two children was given to the mother.

The court will also consider the wishes of the child when he or she is of the age to

express an independent opinion69. It means that the child can choose either to live with his

mother, father or any other persons who are entitled to obtain hadhanah when he or she has

reached the age of mumayyiz, which is seven years old70. In the recent case of Norasid bin Jeran

v Azilawati bt Jusoh71, the Shah Alam Shariah Court Of Appeal quashed the order made by the

trial court, where the hadhanah order was issued based on the choice made by a 4-years old

child. The appeal court held that child had not reached the age of mumayyiz and therefore not

entitled to make a choice.

66
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 278.
67
(1975) 1 JH (1) 47
68
[2008] 2 SHLR 109
69
Section 86(2) of Islamic Family Law (Federal Territories) Act 1984
70
This rule is similar to the opinion in Shafie school.
71
[2016] 4 SHLR 11

24
Next, for the issue of maintenance of the adopted child, Section 78 of IFLA is the only

provision that concerns on the maintenance of an adopted child. The provision reads as:

Where a man has accepted a child who is not his child, as a member of his family, it shall

be his duty to maintain the child while he or she remains a child, and the court may make

such orders as may be necessary to ensure the welfare of the child.72

In this provision, the meaning of the child who has been accepted as family member includes

the adopted child and also the child who has been privately accepted into the family. Hence, if

the child is adopted under RAA, it can be used as evidence to show that the child has been

accepted as a member of the family.73 Also, under this provision, the word man basically refers

to the adoptive father of the child. Hence, it is the duty of the man to maintain the child as long

as he or she remains his child. However, the law further provides that the duty will cease if the

birth parents take the child back.74

The Muslim jurists are unanimous that the father is the primary person who is responsible

in maintaining his children. This is based on Surah Al-Baqarah verse 233:

The mother shall give suck to their offspring for two whole years, if the father desires to

complete the term. But he shall bear the cost of their food and clothing.

Thus, it is clear that the father is obliged to provide maintenance for his children.

However, the Muslims jurists differ on the issue of the extent of this obligation. According to the

Maliki, Hanbali and Shafie, the obligation of the father provide maintenance for his children is

72
Section 78(1) of Islamic Family Law (Federal Territories) Act 1984
73
Nik Noriani Nik Badli Shah, Family Law Maintenance and Other Financial Rights, (Kuala Lumpur: Dewan Bahasa
dan Pustaka, 1993) p. 52
74
Section 78(2) of Islamic Family Law (Federal Territories) Act 1984

25
subject to his capability. According to the jurists, the father is only obliged to maintain his

children if he has surplus from his property or from maintaining himself and his wife. However,

the Hanafis is of the opinion that as long as the father has the ability to earn a living, he is

obliged to provide maintenance for his children. It means that the responsibility will not be

terminated unless the father is unable to work due to mental and physical disabilities. However,

the Hanafi, Shafie, and Hanbali jurists agreed that if the father is capable, he shall be compelled

to earn a living in order to maintain his children. The Shafie also viewed that if there are no

other means to the father, he shall sell the surplus from his property to provide the maintenance

to his children. Thus, it is clear that in Islam, as long as the father owns property which exceeds

his needs and he also is capable of working, he is obliged to provide maintenance to his

children75.

The duty to provide maintenance for the child does not cease to exist even when the

marital relationship between the mother and the father of the child is no longer exist. In the case

of Roslaili v Ahmad Azman,76 the court granted the claim of maintenance from the divorced

wife for her three sons from their father, which includes RM 300 per month and their expenses

for education and Eid celebration. The court will also consider the financial capability of the

father in assessing the amount of maintenance that should be given to the child. For example, in

the case of Sanisah v Zulkifli,77 the court reduced the claim for maintenance amounting to RM

450 to RM 150 a month, since the fathers salary is RM 1300. In Zety Aznin v Abdul Mutalib,78

the court ordered the father to pay RM 200 to the first child and RM 100 to the second child,

whom both of them are under the custody of the mother after the divorce.

75
Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell, 2016), p. 107-108.
76
(2006) 21 JH (1) 101
77
(2002) 15 JH (2)197
78
[2008] 2 SHLR 109

26
On the issue of maintenance given to an adopted child, Section 78 of IFLA appears to be

in line with Islamic teaching, because as far as the concept of helping the poor and the orphan is

concerned, Islam does not only agrees to it but even highly recommends it. Thus has been stated

in Surah Al-Baqarah verse 215:

They ask you (Muhammad), what they should spend. Say, Whatever you spend of good

is for parents, relatives, orphans, the needy and the traveler. And whatever you do of

good. Indeed, Allah is Knowing of it.

The Prophet also has said in a hadith narrated by Sayyidina Sahl Ibn Sad which means:

I and the one who sponsors an orphan will be like this in Paradise, and he gestured with

his index and middle fingers.79

Applying the above laws to Shamimas situation, her child has been adopted under RAA,

thus makes the adoption recognized by the law. Shamima has also been the foster mother of the

child, hence their relationship is now mahram. This has indirectly provides the rights of custody

and maintenance of the adopted child to be similar as the biological child. On the issue of

custody, since the child is only three years old, Shamima has more right to the hadhanah of the

child than her ex-husband, Ismadi. On the other hand, Ismadi has the obligation to provide

maintenance for their adopted child even though Ismadi and Shamima are no longer husband and

wife. However, in determining the amount of the maintenance, the court shall consider the

financial capability of Ismadi. Hence, it is clear that in general, Islamic law does not only protect

the rights of ones biological child, but also give the equal treatment to the adopted child other

than the rights of inheritance and legal status.

79
Sahih al-Bukhari

27
BIBLIOGRAPHY

1. Najibah Mohd Zin et al., Islamic Family Law in Malaysia (Selangor: Sweet & Maxwell,

2016)

2. Abdul Monir Yaacob and Siti Shamsiah Md Supi, Undang-Undang Keluarga Islam (Kuala

Lumpur: Institut Kefahaman Islam Malaysia (IKIM), 2006) p. 23, 25, 230.

3. Raihanah Haji Abdullah, Reasons to Dissolve a Marriage through Fasakh, Syariah Journal 1,

no. 5, p. 2

4. Ruhil Hayati bin Ismail, Fasakh: A Case Study in Syariah Court Negeri Sembilan, p. 14

5. Azizah Mohd and Badruddin Hj Ibrahim, Muslim Wifes Rights to Maintenance: Husbands

Duty to Maintain a Working wife in Islamic Law and the Law in Malaysia, IIUM Law

Journal 18 (2010), p. 104

6. Mat Hussin, M. N. & Abdullah, R. Amalan Pembahagian Harta Sepencarian Di Malaysia:

Satu Sorotan Literatur. Journal of Shariah Law Research, 1(1), (2016) p. 75-88.

7. Jamaluddin, M. H. & Mat Hussin, M. N. Harta Sepencarian vs Harta Perkahwinan dalam

Perundangan Sivil: Satu Sorotan Ringkas. Al Basirah, 6(1), (2016), p. 79-96.

8. Abdullah, R., Martinez, P. & Mohd Radzi, W. Islam & Adat. Indonesia & the Malay World,

38(111), (2010). p. 161-180.

9. Ibrahim, N. Masalah Tuntutan Harta Sepencarian. Undang-undang Keluarga Islam, 14(7),

(2007) p. 216-256.

10. Barrons Dictionary of Legal Terms, 4th edn (New York: Barrons Educational Series, Inc.

2008)

11. Datuk Professor Ahmad Ibrahim, Family Law in Malaysia and Singapore, (Singapore:

Malayan Law Journal Pte. Ltd., 1984), p. 284

28
12. Raymond Mah & Liow Pei Xia, Adoption in Malaysia, available at

http://www.mahwengkwai.com/adoption-malaysia/

13. Dr. Mehrun Siraj, Resolving Child Custody Disputes: The Law & Practice in Malaysia,

(Lexis Nexis).

14. Nik Noriani Nik Badli Shah, Family Law Maintenance and Other Financial Rights, (Kuala

Lumpur: Dewan Bahasa dan Pustaka, 1993) p. 52

15. The Holy Quran

16. Sahih al-Bukhari, Sahih Muslim, Sunan Ibn Majah, Sunan Abu Dawud

17. Islamic Family Law (Federal Territories) Act 1984

18. Civil Law Act 1956

19. Jurnal Hukum

20. Shariah Law Reports

29