LAW 605

ISLAMIC FAMILY LAW

AZHARI AHMAD 2014484942

SOFINA THAQIFAH 2014
ALMINA ALWEEN
2014
IMAN DAWAM
2014

TALAQ
 QUESTION
Amir married Rosie ten years ago. He had taken two bank loans
in order to purchase matrimonial home. Thing were not going
right for Amir at the office. He was not promoted to the post of
General Manager as he had planned. He felt most stressful. Rosie
has been asking for more money for the households. One
morning, he had a heated quarrel with Rosie. He stormed out of
the house shouting :

I divorced you, I divorced you, I divorced you, You can go back

to your family.

When he arrived at the office, Amir wrote message to his wife via
the short messaging system stating again :

I divorced you with one talaq. You can go back to your family.
 QUESTION
Rosie telephoned her parent to pick her up from her home.
When they arrived, she showed the sms to her father.
Rosies father took her to the Qadis office to report the
matter.

While they were talking to Qadi, Rosie received another

message from Amir stating :

I am sorry, I did not mean what I said earlier.

 QUESTION
Consider the following :

(a) As a Qadi, if the parties are the followers of the Shafii

school, discuss the status of Rosies marriage (10 marks)
(b) Assuming the parties are the followers of the Hanafi
School, would your answer be similar? (10 marks)
 DEFINITIONS

Terminology
Arabic
of Jurists
annulment of its
Freeing or legality by the
undoing the knot pronouncement
of certain words.
 ISLAMIC AUTHORITY

Al Baqarah
Ibnu Umar
: 229
Talaq may be
pronounced (twice), Of all lawful acts, the
then keep (them) in most detestable to
good fellowship or let Allah is divorce.
them go with kindness.
 TYPES OF TALAQ
A divorce by one or
two talaq not
followed by the
Rajii completion of iddah.

Revocable Talaq :
Sec.51 IFLA
Talaq

Sughra
Bain
Kubra
 TYPES OF TALAQ
When the husband pronounces
three talaqs by one or more words
to his wife at once or at different
times.

Effects : No possibility of remarrying

Talaq Bain unless the woman has been lawfully
Kubra married to another and has
divorced after consummation.

The wife becomes temporarily

prohibited for the husband to
remarry.
 TYPES OF TALAQ

So if a husband divorces
his wife (irrevocably) he
cannot, after that, remarry
Al Baqarah : 230
her until she has married
another husband and he
has divorced her.
 RUKUN TALAQ

Lawfully
Husband Wife
married

Intentions of
the husband
 INTENTION

Lafaz Modes of expression

Sarih Explicit
Sarih (explicit)
Even without intention
the Talaq is effective

Lafaz Talaq by Kinayah Kinayah

(implicit)
The court will look into
the intention Writing
 INTENTION
Jumhur: writing must be clear, can be
read and permanent

Hanafi: Writing must be clear 1. If the

writing is specifically for the wife, talaq
Talaq in
is effective even without intention 2. If
writing
the writing is not directly to the wife,
talaq is not effective without intention

Shafie, Maliki, Hambali: Writing must

be clear and accompanied with
intention
 (SHAFII)

Writing must be
clear and Haji Hanafiah v
accompanied by Rokiah
intention

If a person pronounces a divorce according to

what is written, this is counted as a divorce unless he
claims that he merely intended to read it as in this
case where the husband merely read the writing but
did not intended to effect a divorce which was
forced upon him by his children.
 (SHAFII)

Radzi v Abdullah

Plaintiff said: I divorce you three times on 5/1. Plaintiff

applied to register their divorce under Section 55A AUKI.
Defendant denied the said pronouncement alleging that
she was not at home during that time. Plaintiff has failed
to prove his pronouncement of talaq. Defendant has
taken an oath. Court held: talaq 3 was not effective on
5/1. However, talaq 3 was effective on 28/1 when plaintiff
made statement on oath by reading his iqrar before
commissioner for oath. Court allowed the husband to
register the divorce pronounced outside court and
without consent from the court.
 (SHAFII)

Mohd Zuhdi v Nor Sharifah

Dispute between husband and wife through phone. The
husband asked: how many talaq do you want? The wife
said: up to you. The husband said: take three talaq. The
court held that three talaq is effective because the
husband was aware and understand.
 APPLICATION (SHAFIE)

Regardless the claims

Shafie : 3 talaqs made by Amir that he
in one setting is had no intention of
equal to 3 divorcing Rosie but the
talaqs. words uttered by Amir
was clear.

Effect : If Rosie wants to marry

Established the
Amir again, she had to marry
pronouncement
another man and get divorced
of talaq 3.
after consumnation.
 (HANAFI)
Pronouncement of
Three three divorces during
pronouncements of the lifetime of the
talaq in one sitting is Prophet SAW and that
considered as only of Abu Bakar and two
one talaq years of the caliphate
Al Baqarah : 229 of Umar was treated as
one Ibnu Abbas

Ibn Umar said that he divorced his wife when she was
menstruating. Upon mention of this to The Prophet SAW,
he said Order him to take her back and divorce her
when she is purified from menstrual discharge or she is
pregnant.
 (HANAFI)

Re Mohamed Hussin and Hazimah: Where the husband

is the follower of the Hanafi school of thought, the court
considered the three pronouncements made by him in
one sitting as equal to only one talaq, especially
because the wife was pregnant at the tim
 (HANAFI)
Nor Aniza Idris v Mohammad Fauzi Ahmad:
The defendant had sent, through his phone, an SMS to
the plaintiffs phone with the words I release you. The
word used by the defendant herein is release, which is
an ambiguous pronouncement which could be desirous
of intention. The defendant denied that he intended a
divorce when writing the SMS and contended that he
had not uttered what was written, either during or after
the writing. He further stated that the SMS was written in a
state of anger. The issue in this case is whether the
defendant had the intention of effecting talaq kinayah
(divorce in ambiguous terms), at the time of writing the
SMS.
Held: The plaintiffs claim to register the divorce was
dismissed.
 APPLICATION (HANAFI)

Talaq falls and to be treated as one talaq. Thus the

effect of this talaq upon Rosie is that it is sufficient to ruju
without aqad and it must to be done before Iddah
period lapse if they would want to get back together.