uest|on 7

8oklah had lefL her husband and refused Lo reLurn Lo hlm desplLe several aLLempL by her husband Lo
Lake her back She refused Lo llve wlLh her husband because she clalmed LhaL her husband was a
gambler a drunkard and dld noL pray She now wlshes Lo LermlnaLe Lhe marrlage
Advlse her
1he lssue ls wheLher 8oklah can LermlnaLe her marrlage Lhrough fasakh under dlssoluLlon of musllm
marrlage
lslamlc law has placed Lhe power Lo dlvorce ln Lhe hands of Lhe husband and noL Lhe wlfe Powever
ln order LhaL Lhere ls a balance sboto (lslamlc law) has also glven Lhe wlfe rlghLs whereby she may
seek separaLlon from Lhe husband when Lhe husband has defecLs or olb LhaL can spoll Lhe marrlage
or negaLe Lhe alms of a marrlage Accordlng Lo Lhe Shafl'e school of LhoughL separaLlon or dlvorce
beLween husband and wlfe whlle boLh are sLlll marrled ls elLher Lhrough tolop (dlvorce) or fosokb
(annulmenL or abrogaLlon of marrlage)
Shelkh Allslam Zakarla AlAnsarl has sald ln hls book 1uhfah ALh1hullb page 104

Meanlng Sepototloo of motltol tles lo llfe ls tbtooqb tolop ooJ fosokb"
lasakh means Lo annul a marrlage lL ls decreed by Lhe poJbl ([udge) afLer Lhe careful conslderaLlon
of an appllcaLlon made Lo hlm by Lhe wlfe 1he poJbl lf saLlsfled LhaL Lhe woman ls pre[udlced by
marrlage he wlll annul Lhe marrlage Lhe [urlsLlc basls for fasakh has been deduced from Lhe Poly
Curan
Surah al8aqarah
229 1he dlvorce ls Lwlce afLer LhaL elLher you reLaln her on reasonable Lerms or release her
wlLh klndness And lL ls noL lawful for you (men) Lo Lake back (from your wlves) any of your
Mahr (brldal money glven by Lhe husband Lo hls wlfe aL Lhe Llme of marrlage) whlch you
have glven Lhem excepL when boLh parLles fear LhaL Lhey would be unable Lo keep Lhe llmlLs
ordalned by Allah (eg Lo deal wlLh each oLher on a falr basls) 1hen lf you fear LhaL Lhey
would noL be able Lo keep Lhe llmlLs ordalned by Allah Lhen Lhere ls no sln on elLher of Lhem
lf she glves back (Lhe Mahr or a parL of lL) for her Alkhul (dlvorce) 1hese are Lhe llmlLs
ordalned by Allah so do noL Lransgress Lhem And whoever Lransgresses Lhe llmlLs ordalned
by Allah Lhen such are Lhe Zallmun (wrongdoers eLc)
231 And when you have dlvorced women and Lhey have fulfllled Lhe Lerm of Lhelr
prescrlbed perlod elLher Lake Lhem back on reasonable basls or seL Lhem free on reasonable
basls 8uL do noL Lake Lhem back Lo hurL Lhem and whoever does LhaL Lhen he has wronged
hlmself And LreaL noL Lhe verses (Laws) of Allah as a [esL buL remember Allahs lavours on
you (le lslam) and LhaL whlch Pe has senL down Lo you of Lhe 8ook (le Lhe Curan) and Al
Plkmah (Lhe ropheLs Sunnah legal ways lslamlc [urlsprudence eLc) whereby Pe
lnsLrucLs you And fear Allah and know LhaL Allah ls AllAware of everyLhlng
Surah annlsa
128 And lf a woman fears cruelLy or deserLlon on her husbands parL Lhere ls no sln on
Lhem boLh lf Lhey make Lerms of peace beLween Lhemselves and maklng peace ls
beLLer And human lnnerselves are swayed by greed 8uL lf you do good and keep away
from evll verlly Allah ls Lver WellAcqualnLed wlLh whaL you do
33 lf you fear a breach beLween Lhem Lwaln (Lhe man and hls wlfe) appolnL (Lwo)
arblLraLors one from hls famlly and Lhe oLher from hers lf Lhey boLh wlsh for peace Allah
wlll cause Lhelr reconclllaLlon lndeed Allah ls Lver Allknower WellAcqualnLed wlLh all
Lhlngs
ln Malaysla Lhe dlssoluLlon of marrlage were provlded under lederal 1errlLorles enacLed by Lhe
lslamlc lamlly Law AcL 1984 LhaL a women marrled ln accordance wlLh Pukum Syarak shall be
enLlLled Lo obLaln an order for Lhe dlssoluLlon of marrlage or fasakh on any of Lhe grounds namely
%o) LhaL Lhe whereabouLs of Lhe husband have noL been known for a perlod of more Lhan one year
%b) LhaL Lhe husband has neglecLed or falled Lo provlde for her malnLenance for a perlod of Lhree
monLhs
%n) LhaL Lhe husband has been senLenced Lo lmprlsonmenL for a perlod of Lhree years or more
%J) LhaL Lhe husband has falled Lo perform wlLhouL reasonable cause hls marlLal obllgaLlons (oofkob
botlo) for a perlod of one year
%e) LhaL Lhe husband was lmpoLenL aL Lhe Llme of marrlage and remalns so and she was noL aware aL
Lhe Llme of Lhe marrlage LhaL he was lmpoLenL
%f) LhaL Lhe husband has been lnsane for a perlod of Lwo years or ls sufferlng from leprosy or vlLllago
or ls sufferlng from a venereal dlsease ln a communlcable form
%q) LhaL she havlng been glven ln marrlage by her woll Mojblt before she aLLalned Lhe age of bollqb
repudlaLed Lhe marrlage before aLLalnlng Lhe age of elghLeen years Lhe marrlage noL havlng been
consummaLed
%b) LhaL Lhe husband LreaLs her wlLh cruelLy LhaL ls Lo say lotet ollo
(l) hablLually assaulLs her or makes her llfe mlserable by cruelLy of conducL or
(ll) assoclaLes wlLh women of evll repuLe or leads whaL accordlng Lo Pukum Syarak ls an
lnfamous llfe or
(lll) aLLempLs Lo force her Lo lead an lmmoral llfe or
(lv) dlsposes of her properLy or prevenLs her from exerclslng her legal rlghLs over lL or
(v) obsLrucL her ln Lhe observance of her rellglous obllgaLlons or pracLlce or
(vl) lf he has more wlves Lhan one does noL LreaL her equlLably ln accordance wlLh Lhe
requlremenLs of Pukum Syarak
%l) LhaL even afLer Lhe lapse of four monLhs Lhe marrlage has sLlll noL been consummaLed owlng Lo
Lhe wllful refusal of Lhe husband Lo consummaLe lL
%j) LhaL she dld noL consenL Lo Lhe marrlage or her consenL was noL valld wheLher ln consequence of
duress mlsLakeunsoundness of mlnd or any oLher clrcumsLance recognlzed by Pukum Syarak
%k) LhaL aL Lhe Llme of Lhe marrlage she Lhough capable of glvlng a valld consenL was wheLher
conLlnuously or lnLermlLLenLly a menLally dlsordered person wlLhln Lhe meanlng of Lhe MenLal
ulsorders Crdlnance 1932 OtJ J1 of 1952 ln Lhe case of Lhe lederal 1errlLory of kuala Lumpur or
Lhe LunaLlcs Crdlnance of Sabah Sabah cop 74 ln Lhe case of Lhe lederal 1errlLory of Labuan and
her menLal dlsorder was of such a klnd or Lo such exLenL as Lo render her unflL for marrlage
%l) any oLher ground LhaL ls recognlzed as valld for dlssoluLlon of marrlages or fosokb under Pukum
Syarak
Accordlng Lo Shelkh Allslam Zakarlya AlAnsarl ln hls book 1uhfah ALh1hullb page 104 Lhere are
sevenLeen (17) reasons for fosokb le
(1) 1he husband ls unable Lo pay Lhe mobot (dowry)
(2) 1he husband ls unable Lo provlde malnLenance or expenses Lo Lhe wlfe lncludlng expenses for
cloLhes and a resldence

(3) lo (muLual lmprecaLlon Lhe husband swears ln Lhe presence of a [udge Lo Lhe LruLh ln hls
accusaLlons LhaL hls wlfe has commlLLed adulLery whlle Lhe wlfe swears LhaL Lhe husband's
accusaLlons are unLrue)
(4) lree (from slavery)
(3) uue Lo cerLaln defecLs for example plebald skln dlsease lnsanlLy leprosy Lransmlsslble dlseases
eLc
(6) lraud and decepLlon ln Lhe marrlage
(7) uue Lo wotl sbobbob (lncesL) for example sexual relaLlons wlLh Lhe wlfe's moLher (moLherln
law) or Lhe wlfe's chlld (sLepchlld)
(8) lmprlsoned by Lhe enemy
(9) Converslon Lo lslam
(10) Pusband or one of Lhe spouses becomes an aposLaLe
(11) Pusband becomes a Musllm LogeLher wlLh hls Lwo wlves who are slsLers
(12) Pusband becomes a Musllm LogeLher wlLh hls wlves numberlng more Lhan four
(13) Pusband becomes a Musllm LogeLher wlLh hls wlves numberlng more Lhan Lwo slaves
(14) uue Lo lnequallLy of sLaLus (kofo)
(13) Cne of Lhe spouses belongs Lo anoLher person
(16) Converslon from one rellglon Lo anoLher for example Lhe wlfe converLs from !udalsm Lo
ChrlsLlanlLy
(17) uue Lo fosLer relaLlons

ln Lhe case of f|run v Cmfr
1
Lhe wlfe had clalmed fasakh on Lhe ground LhaL Lhe husband had
LreaLed her wlLh cruelLy by assaulLlng her 1he learned Syarlah [udge held LhaL Lhe husband had
assaulLed her exceeded whaL was allowed under Lhe Pukum Syarak Powever he applled SecLlon
32(l)(h) and (l)of Lhe Selangor lslamlc lamlly Law LnacLmenL llLerally by saylng LhaL whaL was done
by Lhe husand could noL be sald Lo be lazlm menyaklLl" and he Lherefore dlsmlssed Lhe clalm of Lhe
wlfe 1he wlfe appealed Lo Lhe 8oard of Appeal whlch held LhaL Lhe learned [udge had wrongly
lnLerpreLed Lhe LnacLmenL and LhaL Lhe physlcal assaulLs on Lhe wlfe consLlLuLed cruelLy under Lhe
Pukum Syarak and under SecLlon 32(l)(h)(l) of Lhe LnacLmenL ln anoLher case fsnf v 2fff
2
Lhe
plalnLlff applled for fasakh on Lhe ground LhaL her husband Lhe defendanL had hablLually assaulLed
her and made her llfe mlserable by cruelLy of conducL as provlded under SecLlon 49 of Lhe
AdlmlnlsLraLlon of lslamlc lamlly Law LnacLmenL of 1erengganu 1983 1he learned [udge of Lhe
Syarlah Plgh CourL was saLlsfled LhaL Lhe defendanL had LreaLed Lhe plalnLlff wlLh cruelLy and had
assaulLed and abused her and made her llfe mlserable 1he courL Lherefore allowed Lhe clalm of Lhe
plalnLlff for fasakh from Lhe defendanL ln applylng Lhe rules Lhe provlslons under Lhe law and Poly
Curan 8oklah has a husband who always drunken whlch resulLed ln maklng her llfe ln mlsery 1he
marrlage ls noL happy anymore as she was sLressed abouL how Lhe relaLlonshlp wenL whlle her
husband does noL even Lrylng Lo lmprove hlmself Lo be a beLLer husband 8oklsah's husband
clalmed Lo be a gambler drunkard and dld noL pray how a man llke hlm can make her llfe happy and
Lhere mlghL have assumpLlon LhaL when Lhe husband was drunk he mlghL acLed ouL of hls conLrol
for example lnvolve ln flghL and mlghL probably assaulLed her because was drunk and has no conLrol
of whaL he mlghL do Pls husband ls noL a good husband Loo lL ls proved when 8oklah clalmed LhaL
hls husband dld noL pray ln concluslon 8oklah may apply Lo Syarlah courL for LermlnaLlon of her
marrlage



1
(1990)8 !P (2) 89
2
(1993) 10 !P 39