MLS LAST TOPIC : MALAYSIAN LEGAL SYSTEM : ISLAMIC FAMILY LAW

•ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984

•Marriage
•Divorce
•Other issues
•Legitimacy
•Guardianship & custody of child
•Maintenance
•Wife
•child
•Property
•Harta Sepencarian (marital property)
•Inheritance/ Distribution of Property

ENGAGEMENT
•Engagement is merely a promise to marry, not the marriage itself
–Can be broken
•Usually in accordance with the customs of a particular society
•A man & a woman can be engaged on 2 conditions:-
[Link] is no barrier between them to marry
[Link] is not engaged/married to someone else

•Q: What will happen if the engagement is called off?

•S.15 Islamic Family Law (Federal Territories) Act 1984
–the party in default shall be liable to return the betrothal gifts, if any, or the value thereof and to
pay whatever money have been expended in good faith by or for the other party in preparation
for the marriage

•Aishah lwn Jamaludin (1978) 3 JH 104

The man breached his promise to marry his fiancee. His fiancee is now asking for damages: her
dowry amounting to RM25, cost of the wedding preparation amounting to RM800 as well as
retaining the engagement ring.
Held: the man has to pay as requested and the fiancee was allowed to keep the engagement
ring.
The man was also ordered to pay RM25 for the wedding outfits made and RM400 as costs for
repairing her house for the wedding.
MARRIAGE
•Marriage is a contract
•Age of marriage – man > 18, woman >16 unless allowed in writing by a Syariah judge – s7
Note: Some states have changed the minimum age for a woman to 18.
•Relationships that forbid marriage (s.9):-
–Absolutely forbidden
[Link] relationship
[Link]
[Link]
[Link]’an wife
–Temporarily forbidden
[Link] man’s wife
[Link] in Iddah
[Link] of 2 siblings at the same time
[Link] divorced by 3 talaq’s
[Link] Muslim (except Kitabiah women)

•Conditions of a marriage:-
[Link]-to-be
- Islam
- A man, not a hermaphrodite
- A specific man
- Not in the midst of pilgrimage
- Not already having 4 wives
- Voluntary not coerced

2. Wife-to-be
- Islam
- A specific woman
- Not in a forbidden relationship with the man
- Not another man’s wife or in her Iddah
- Not in the midst of pilgrimage

[Link]
Conditions of a wali:
- Muslim
- A man
- Of age
- Voluntary, not coerced
- Not in the midst of pilgrimage
- Of sound mind
- Of good character

•The person who gives the woman’s hand in marriage

 - Birth father
- Paternal grandfather
- Male siblings from the same birth parents
- Male siblings from the same father
- Sons of siblings from the same birth parents
- Sons of siblings from the same father
- Paternal uncles from the same parents
- Paternal uncles from the same father
- Male sons of paternal uncles from the same parents
- Male sons of paternal uncles from the same father

3.2 witnesses
•Muslim
•Male
•Of age
•Not in the midst of pilgrimage

[Link] & kabul (offer & acceptance)

•Wali/imam/kadi (the person who solemnize the marriage) –
“ A son of B, I hereby solemnise this marriage between you and my daughter (name) (or X
daughter of Y) with a dowry of RMxxx”

•Groom – “I hereby accept X daughter of Y as my lawful wedded wife for a dowry of RMxxx”

Cont
•A married woman is not allowed to marry more than 1 husband
–But a married man can have up to 4 wives if he can prove that he is capable to do so
(financially, physically) and that he be fair to all his wives
–S.23 – requirements to be fulfilled before a man can marry more than 1
•With permission from the Syariah Court and usually with permission with his current wife/wives

•Marriage procedures – ss16-20, 22, 24, 25, 28-33

Solemnisation in Malaysian embassies etc abroad

•S.24 – a marriage may be solemnised by the Registrar of Marriages at the Malaysian embassy,
High Commission or consulate in any country
•Conditions to be fulfilled:
a)That one of the parties or both parties to the marriage are residents of the Federal Territories
b)That both parties have the capacity to marry
c)If either party is not a resident of the Federal territories, the marriage if solemnised will be
regarded as valid in the place where that party is ordinarily residing

Polygamy – s.23
•No man shall, within the subsistence of a marriage shall enter a marriage with another woman
unless he obtains written permission from the Syariah Court
–Such permission shall be granted if the man solemnly declare that
•The marriage is just or necessary
•His present income
•Particulars of his commitments and his ascertainable financial obligations and liabilities
•The number of his dependants, including his would bedependants as a result of the proposed
marriage
•Consent and/or views of his existing wife or wives
•A polygamous marriage shall not be registered unless the Court is satisfied that the marriage is
valid
•S.123 – punishment for entering into a polygamous marriage without the courts consent – fine
RM1,000 or 6 months imprisonment or both

s.33 Voluntary Registration

•any marriage according to Hukum Syarak solemnised under any law prior to or after the
appointed date may, if the marriage has not been registered, apply at any time to a Registrar to
register the marriage
•parties to the marriage have to appear before the Registrar and produce such evidence of the
marriage, either oral or documentary, and to furnish such other particulars he the Registrar
deems fit
•If upon furnishing such evidence and particulars, the Registrar finds the marriage to be valid,
he shall register the marriage.

s.34 Effect of Non Registration

•Failure to register is an offence but it will not be taken as invalidating a valid marriage
solemnised under Islamic laws
•Registration of an void marriage will not make the said marriage valid

DISSOLUTION OF MARRIAGE
•A husband can divorce his wife by pronouncing the talak
–Talak raj’ie
Rujuk (return to the original state of marriage without a new ijab & kabul) is permissible

–Talak bain
•Divorce with 3 talak’s (3 consecutive talak’s or just once)
– Rujuk not permissible unless the wife marries another man and is subsequently divorced from
him. She can now re-marry the ex-husband with a new ijab& kabul
•Divorce via khulu’ – damages is given by the wife to the husband to divorce her – she
renounces her rights to the marriage. Rujuk is not permissible but parties can re-marry with a
new ijab & kabul

•Methods of divorce:-
- Talak – official pronouncement of divorce
- Khulu’ }
 - Taklik } divorced due to an action/omission
- Fasakh} by the husband/wife
- Li’an }

Talak
•Most common method of divorce –
•Can only be done twice - rujuk is permissible
–the 3rd time is equivalent to 3 talak’s hence rujuk is no longer permissble

•Pronouncement of talak is usually made out of court

S.55 – no talak shall be registered in the court registry unless such order is made by the Syariah
Court
S.55A – once such divorce was made out of court, the parties must register the talak in the
Syariah Court
–The court will then hear evidence that led to the pronouncement of talak and decide whether
the talak is valid.
–The husband will then have to pronounce the talak again, in court – still considered as 1 talak
–Non registration is an offence – s.124

S.47 - Procedures to divorce by talak

S.48 – efforts for re-concialiation

Mohamad lwn Roslina (1991) 8 JH 275 (talak 3 must come with intention)
–According to the husband’s statement, he had said to his wife “I voluntarily divorce you” 3
times. The trial judge held that 3 talak was pronounced.
–During re-trial, the court decided that the words uttered by the husband must be accompanied
with intention. It was not the husband’s intention to divorce his wife. Hence, 3 talak’s was not
pronounced

Jasni lwn Rahmah (1991) 10 JH 213

The husband divorced the wife by “2 talak’s”. Prior to that he had already divorced her with 1
talak but they got back together.
Issue: by the words “2 talak’s”, are they now divorced by 3 talak’s (taking into account the
previous talak)
Court: yes. They are now divorced by 3 talak’s hence cannot rujuk
On appeal: the husband was made to swear & explain what he meant by “2 talak’s” – (i) 1 talak
but made a 2ndtime or (ii) 2 talak’s in the literal sense. The husband swore that his intention was
the former. Hence the talakwas decided to be talak for the 2nd time

Razeemah Haneem lwn Yusuf (1993) 9 JH 237

The husband filed for divorced under s.47 of the Islamic Family Law (Federal Territories) Act
1976 but the wife does not agree to the divorce. Hence the court ordered them to go for re-
conciliation. As the case was proceeding the husband had pronounced the talakoutside of court,
without permission from the court but was uttered in front of 2 witnesses and without the
presence of the wife. She was told of the pronouncement 2 months later. The husband
subsequently applied to the court to register the talak. The court did not call the witnesses but
relied on the husband’s statement that he had indeed pronounced the talak & decided that the
talak did happened.
–The findings of the trial judge was set aside, a re-trial was ordered.

Norriya lwn Abdul Manaf (1995) 11 JH 29

The husband uttered the words “I divorce you”.
Held: the pronouncement of talak did happen and the couple are divorced with 1 talak

•S.55A – a man who has divorced his wife by pronouncing the talak outside of Court and
without the permission of the Court shall within 7 days of the pronouncement report the same to
the Court
•The Court shall hold an inquiry to ascertain the validity of the talak
•If the Court is satisfied that talak was valid, it shall make an order approving the talak and take
the necessary steps to record the talak.

Khulu’
•S49
•Can be done by words or actions of the parties
•Divorce when the wife offers payment to the husband to release her from the obligations of the
marriage and the husband accepts the payment
–Payment as low as RM1
•Once payment is accepted, the talak must be pronounced by the husband
•Rujuk is not allowed.

•Talib lwn Sepiah (1979) 1 JH 84

–The wife asked for divorce from the husband but he refuses. Hence they were asked to go for
re-conciliation. Initial re-conciliation failed. The subsequent re-conciliation finally decided for a
divorce by khulu’ with payment of RM100

•Che Pah lwn Siti Rahmah (1976) 2 JH 244

–The husband ordered the wife to live with him but she refused because he is a drunkard,
gambler and doesn’t pray. The husband then stated that he will divorce her via khulu’
–Held: the wife paid RM100 and so the husband pronounced the talak unto her

•Nerat lwn Ahmad (1965) 3 JH 101

–An arbitrator was appointed to reconcile the husband and wife but no avail. He then decided
that the wife should pay RM150 to the husband and then only they can divorced. She paid the
amount and so the talak was pronounced.
Taklik (s.50)
•S.2 – a promise made by the husband upon solemnisation (s.22) to care for his wife, to not
neglect her, to not abuse her etc. If he breaks the promise without a valid reason, the talak will
happen.
•Also, taklik can happen when the husband makes a promise to divorce his wife upon the action
or omission of the wife.
–Eg : “if you leave the house, we are divorced” or “if you are not at home when I return, we are
through” or “talak will happen once you deliver our child”

•Hasnah lwn Saad (1975) 3 JH 84

–The wife is asking for the taklik to be enforced because her husband has been beating her up
for more than is allowed in Islam. A doctor was called to give evidence to the beatings.
–Held: the taklik has taken effect.

•Aminah lwn Ahmad (1971) 3 JH 81

–The wife is asking the court to confirm the talak as was stated by the taklik after solemnisation.
In the taklik, it was stated that talak will happen if the husband leaves the wife, did not
consummate the marriage or did not give maintenance to the wife without a valid reason for a
month. The husband went missing for about 3 months, with no valid reason
–Held: the taklik had taken effect. Talak is pronounced

•Siti Zainab lwn Mohamed Ishak (1976) 2 JH 323

–The wife is asking for enforcement of the taklik. She stayed in KL with the husband for a year
before moving back to her parents home in Ipoh with the husband travelling to and from Ipoh.
But the husband stopped going back to Ipoh and stopped paying maintenance for about 18
months. The wife tried to locate him but was unsuccessful.
–Held: the taklik has taken effect. Talak is pronounced

•Nora lwn Zamri (1987) 7 JH 105

–The husband pronounced the taklik twice. Once by saying “if you go back to your parents
home, we will be divorced by 1 talak”. Second by saying “If you still want what you requested,
the best way is for you to leave our home alone without my knowledge & return to your parents
home, then I will consider what you want as granted”.
–Held: the Talak did not occur. The 1st taklik will only take effect if she had gone back to her
parents home as soon as the statement was uttered. But since it did not, the taklikis no longer
valid. The second taklik is still in effect but the couple are still married since she was brought
back to her parents home by her father and not on her free will (she was ill. Her father brought
he to his home to seek treatment)
Fasakh (s.52)
•A divorce requested by a wife due to incapability/disability of the husband
[Link] has gone MIA - 1 year
[Link] has neglected or failed to provide maintenance - 3 months
[Link] is imprisoned – 3 years or more
[Link] has failed to perform, without valid reason, his marital obligations
[Link] of mind for a period of 2 years or suffering from leprosy or vitiligo or suffering a
communicable disease
[Link], is still a child, was married off before she reached puberty and the marriage was not
consummated
[Link] husband has been cruel to her
[Link] 4 months of solemnisation, the marriage has yet to be consummated due to the
willingful refusal of the husband
[Link] did not consent to the marriage or if consented, was coerced to consent, under duress,
unsoundmind, mistake etc
[Link] is mentally disordered under the definition of the Mental Disorders Ordinance

•Conditions of a Fasakh:
–Wife has been faithful
–Husband has no property/valuables in his name (for not providing maintenance)
•Judge/kadi will give the husband 3 days to provide the minimum of food/clothing/dowry/home

•Is not automatic. Parties must go to the Syariah Court to request for Fasakh
•Failure- the marriage can go through the Fasakh

•Rafiah lwn Hassan (1987) 6 JH 112

–The wife is asking for Fasakh since her husband had gone missing without any trace and he
has not left any property for the wife to be used as substitute to maintenance. The husband did
not attend court when summoned.
–Court: the wife was ordered to stay at her parents home and be faithful to her husband for 14
days. 2 people were appointed to be witness to her faithfulness. The husband didn’t return
home and still there was no news from him
Held: Fasakh was granted

•Joan Mary Sulaiman lwn Sulaiman (1993) 10 JH 86

–The parties married in Australia. Upon returning to Malaysia, the husband took a second wife.
He started neglecting the 1st wife. She is now asking for Fasakh on the grounds that he had not
provided maintenance for her for over a year, he had not fulfilled his marital obligations for over
a yearand he had not treated her fairly as his 1st wife
–Held: Fasakh was granted

•Hairun lwn Omar (1991) 8 JH

–The wife is asking for Fasakh on the grounds that her husband had abused her.
–Held: Fasakh granted

Li’an (s.50A)
•Generally used when a husband accuses his wife for committing adultery
•Must produce credible witnesses
–No witnesses - The husband would have to swear 5 times- 4 times that his wife had committed
adultery & the 5th time to swear that if was wrong, something bad will happen to him, he will be
punished for accusing his wife
–The wife in return would have to swear 4 times that all her husband said is a lie and that she
will be punished if what her husband said was actually true
•This is a permanent divorce. No remarriage is allowed. Ever.

Presumption of death (s.53)

•The husband has gone missing, presumed to have died or is dead, for more than 4 years
without any news
•Divorce is by Fasakh (s.52)

Apostasy / Conversion
•S.10 – no Muslim man/woman can marry a non-Muslim
–Exception: a Muslim man can marry a Kitabiyah woman
•(a) a woman whose ancestors were from the Bani Ya’qub; or
•(b) a Christian woman whose ancestors were Christians before the prophet hood of the
Prophet Muhammad; or
•(c) a Jewess whose ancestors were Jews before the prophethood of the Prophet Isa

•S.46(1) – the marriage of a man/woman leaving Islam shall not be considered dissolved unless
ruled as such by the Court

•S.46(2) – the conversion into Islam by a party of a civil marriage shall not dissolve the marriage
unless ruled as such by the Court

•Note: the decision of the Syariah Court on both these matters do not have legal effect on the
civil courts and its jurisdiction

Iddah/ Edah
•After a woman is divorced from her husband, she will have to go through a period of time call
Iddah/Edah
•5 types of Iddah/edah:
(a)For a woman who is still menstruating- Usually after the 3rd subsequent menstruation
(b)For a woman who is no longer menstruating (menopause/removed her uterus/disease/never
had her menses)– 3 months
(c)For a pregnant woman – the remainder of her pregnancy (until she gives birth or miscarried)
(d)For a woman whose marriage was never consummated – 4 months 10 days
(e)For a woman whose husband has gone missing and is presumed to be dead under s.53 –
the wife would have to wait for 4 years and later be under iddah for another 4 months and 10
days

•She cannot re-marry during this period since she is still considered a wife to her husband
•S.65 – the wife has the right to maintenance during Iddah
•A couple who have divorced may get back together again without a new ijaband kabul during
the Iddah period

Rujuk (s.51)
•Return to the original marriage stage
•The parties to a divorce decides to get back together during the period of Iddah
•If during the iddah the parties decided to get back together, they would have to inform the
religious authorities of their intentions - s.51(2)

Maskahwin (Dowry) (s.21)

•S.2 – obligatory marriage payment that has to be given from the husband to the wife.
•Monetary or something of value
Janat v Sheikh Khuda Buksh (1911) FMSLR 61
the husband must pay the dowry in monetary tearms. Only with the wife’s consent may he
substitute money with articles. The burden on proof is on the husband to proof the consent.
•Belongs to the wife – the husband has no right over it unless expressly allowed by the wife
(s.57)
Mutaah (s.56)
•Considered consolatory gifts
•For wives divorced “without a just cause”

Noor Bee v Ahmad Sanusi (1980) JH 63

•The husband was an officer in the army who was said to be responsible for the divorce while
the wife had shown her love and willingness to serve him

Hasnah bt Omar v Othman bin Ya (2008) 26(1) JH 43

•The wife had the right to claim for mutaah as she was divorced from the respondent without
reasonable grounds after 29 years of marriage and 10 children

•Not an absolute right of a wife to claim for mutaahespecially if the divorce was via fasakh

Ahmad Shah v Norhayati (2004) 17 JH 33

•Situations when a wife is not entitled to mutaah, including if she becomes an apostate or she
initiates fasakh due to a defect on part of the husband (insanity, impotence or poverty), or if the
fasakh was initiated by the husband due to defect on part of the wife (inability to consummate
marriage)

HARTA SEPENCARIAN (MARITAL PROPERTY)

•S.2 – property jointly acquired by husband and wife during the subsistence of marriage
•Originated from the Malay custom

Roberts lwn Umi Kalthum [1996] 1 MLJ 163

•Both husband & wife are working. They bought a house in KL costing RM50k, RM40k was
contributed by the husband, RM10k by the wife. The house was registered under the wife’s
name. They divorced & it was agreed that the husband has to pay maintenance to the wife
during the iddah amounting to RM500 a month for 100 days and RM5,700 as mutaah. The
husband suggested that the value of the house be divided equally between them but the wife
disagreed.
•Held: the house is considered as Harta Sepencarianhence to be divided between them
•Court: Harta Sepencarian is an issue of Malay Adat & only applicable when the husband/wife
claims from her husband/his wife during their lifetime. There is an assumption that any property
bought during marriage with funds from both parties is Harta Sepencarian
–

•Boto lwn Taha [1985] 2 MLJ 98

–Before marriage, the wife worked as coffeeshop assistant and the husband was in the
business of selling fish. After their marriage, the business prospered and he bought their marital
house, a piece of land, 4 fishing boats & a lot in the local market to sell fish. Upon divorcing, the
husband paid maintenance to the wife during Iddah. The wife applied for Harta Sepencarian
Held: even though the wife didn’t assist in the husband’s business directly, her presence was
enough to ensure his peace of mind & because of that he could run his business successfully.
Hence all property bought during the marriage is considered Harta Sepencarian, 1/3 of which
is given to the wife, 2/3 to the husband. With regards to one of the fishing boat which was
registered on both their names, it was divided equally between them.

S.122 – power of the Syariah Court to order division of Harta Sepencarian

(1) Property acquired by joint effort

(2)Equal division of property is best, subject to the following factors:

(a) the extent of the contributions made by each party in money, property,
or labour towards the acquiring of the assets;
(b) any debts owing by either party that were contracted for their joint benefit; and
(c) the need of the minor children of the marriage, if any,

(3) property acquired by the sole effort of one party

(4) the court will consider

(a) the extent of the contributions made by the party who did not acquire the assets to the
welfare of the family by looking after the home or caring for the family; and

(b) the need of the minor children of the marriage, if any the Court may divide the assets or the
proceeds of sale in such proportions as the Court deems reasonable, but, in any case, the party
by whose efforts the assets were acquired shall receive a greater proportion.

(5) Assets acquired during a marriage include the assets owned before the marriage by one
party that have been substantially improved during the marriage by the other party or by their
joint efforts.

•S.107A – during the course of any matrimonial proceeding, the court may prohibit the husband
or the wife from disposing of assets acquired by them, either solely or jointly.

Ningal lwn Jamal [1989] 2 MLJ xxix

As part of the divorce agreement, the husband agreed among others to sell a house & divide
the profits equally between him and the wife. However, the house was not sold & there was no
distribution of profits. The wife is applying that the house be sold & its profit divided as agreed,
as well as half the value of a car.
Held: since the house and car was bought after they divorce, the wife’s application was
rejected.

Hamimah Bee lwn Samsudin (1979) 1 JH 71

The divorced wife is claiming for a house, a car, a set of rattan sofa, a television, a gas stove &
2 cupboards. She said she is entitled to those items since she was the lawful wife of the
husband & that those items were bought during their marriage. She was a faithful wife, taking
care of her husband and children and maintaining the marital home without assistance from a
servant. Hence, everything that was acquired during the marriage is presumed to be Harta
Sepencarian
Held: It is Harta Sepencarian. The house to be divided equally between them, 1 cupboard and
gas stove is given to the wife while the other cupboard, car, tv set and refrigerator belongs to the
husband.

Rugayah lwn Bujang (1987) 6 JH 332

The wife is claiming Harta Sepencarian. She stated that their marital home was bought after
marriage. The expenses to build the house was borne by them. All the items in the house and
car was taken by the husband, as against their divorce agreement. The wife is now asking for
the marital home to replace the items and car taken by the husband,
Court: allowing the wife’s claim

Rokiah lwn Mohamad Idris (1987) 6 JH 272

The wife is asking for Harta Sepencarian on a piece of land, some investments and savings.
Kadi: she has no right over the land, investments and savings since they all belong to the
husband.
Appeal: the kadi (religious officer) did not take into consideration the wife’s contribution to their
marriage (cooking, cleaning, caring for the children, maintaining the house). So the wife is
entitled to 1/3 of the property or of its value

Normah lwn Khairul Anuar

The parties were married in 1989. after marriage, they stayed in an apartment in KL for 2 years.
The rental was paid by the husband. The wife then bought the apartment. The husband said the
wife bought the apartment with money given by him. All the items in the apartment was bought
by the husband and this was affirmed by the wife. The husband also said he had been sending
his wife to work except when their children fell sick & he had to stay at home to care for them.
The husband was aassistant technician, she was a secretary.
–Before marriage, he had bought a house in Setapak. In 1991 he bought a house in Cheras.
The house in Cheras was paid by the husband via monthly pay cuts. The wife never contributed
to the house. Besides the monthly pay cuts, he withdrew his EPF & ASB savings. He also
obtained a government loan. He had to sell the house in Setapak when he defaulted in payment
for the house in Cheras. He seeked assistance from his wife when the bank requested payment
but she did not offer any. Upon divorce, the wife is claiming for Harta Sepencarian on the
Cheras house
Held: the wife’s claim was rejected as she had not contributed anything to the purchase and
maintaining of loans to the house.

LEGITIMACY
•Under s.110 of the Islamic Family Law (Federal Territories) Act 1984, a child born more
than 6 months after the marriage of his parents or within 4 years after dissolution of the
marriage either by death or divorce and the woman has not remarried, the paternity of the child
shall be his father’s

Wan Azmi v Nik Salwani [1990] 9 JH 192

The court held that a child born 8 months after the marriage of the parents is legitimate.

Maryam Nurisa bt Othman v Huzairin bin Basir(2011)33JH (2) 227

The parties married in August 2008. Their daughter was born in September the same year. The
mother gave a statement that the child was conceived before marriage and the biological father
acknowledged this fact. The court decided that the girl is illegitimate.

Fatimah v Mat Zin (2001) 14 JH (2) 225

A child born a year after divorce was declared to be legitimate as there was proof of the parents
had intercourse during marriage. Furthermore, the child was born more than 6 months after the
intercourse

Mohammad Ismail v Hajah Rosita@ Nurul Asyiqin [2009] 3 ShLR 84

The parties were divorced on 3/2/2007 and a child was born on 7/9/2007. The father denied
paternity. The court advised the parties to do a paternity test and it was found to be negative.
Held: as the child was born within 4 years of divorce, it is up to the father to accept or deny
paternity of the child through a li’an. Here, as the father had denied paternity, the court ordered
the parties to take an oath, afterwhichthe court made an order declaring the father to not be the
biological father of the child.

S.113 provides for children born as a result of a syubhah intercourse (intercourse on an

erroneous impression that the marriage was valid or intercourse by mistake) shall be the
legitimate child of the man. –within 6 months to 4 years after the intercourse,

Ismail v Aris Fadhilah (1980) JH 5 326

The parties were married with the bride’s brother acting as wali even though at the time the
bride’s grandfather was still alive and not senile. They subsequently had 3 children.
Held: the marriage was invalid but their children were legitimate as the marriage was based on
a belief that it was a valid marriage.

Re Mohd Fairus bin Othman & Ita Wijaya bt Ismail (2009) 28 JH (2)203
Court rejected the plaintiff’s application to ascribe paternity of his child to him, him being the
biological father, as the marriage was held to be invalid. The court also decided that the
relationship was not categorized as a syubhah relationship as both parties realized and were
aware of the fact that their marriage was against the procedure..
•S. 114. Where a man acknowledges another, either expressly or impliedly, as his lawful child,
the paternity of the child shall be established in the man, if the following conditions are fulfilled,
that is to say:
(a) the paternity of the child is not established in any one else;
(b) the ages of the man and the child are such that filial relationship is possible
between them;
(c) where the child is of discreet age, the child has acquiesced in the
acknowledgment;
(d) the man and the mother of the child could have been lawfully joined in
marriage at the time of conception;
(e) the acknowledgment is not merely that he or she is his son, but that the
child is his legitimate son;
(f) the man is competent to make a contract;
(g) the acknowledgment is with the distinct intention of conferring the status of
legitimacy;
(h) the acknowledgement is definite and the child is acknowledged to be the
child of his body.

•S.115 - The presumption of paternity arising from acknowledgment may only be rebutted by—
(a) disclaimer on the part of the man;
(b) proof of such proximity of age, or seniority of the
child, as would render the alleged relationship
physically impossible;
(c) proof that the child is in fact the child of some other person;
or
(d) proof that the mother of the child could not possibly have
been the lawful wife of the man at the time when the child
could have been conceived

•S.116 - when a woman gave birth to a child during her Iddah, the paternity of the child shall
only vest in the husband upon his acknowledgement

•S.119 – once an acknowledgement is made and confirmed, such acknowledgement is

irrevocable

GUARDIANSHIP & CUSTODY

•Ss. 81- 87 Islamic Family Law (Federal Territories) Act 1984
•Welfare of the child is of utmost importance

•Guardianship & custody of a child is in the mother, especially when the child is still
small (s.81(1)) – usually under the age of 7)
S.81(2) – who obtains G&C when a mother loses her right to obtain G&C
S.83 – situations when the mother loses her rights to G&C of the child
S.81(3) – man shall not get G&C of a girl unless he is in a prohibited marriage relationship with
the child (father/grandfather)
S.81(4) – Guardians & Custodian of a child other than the parents
S.82 – conditions of a woman, other than the mother, who can be given G&C

S.84 – rights of G&C ceases when the child attains the age of 7 (boys) or 9 (girls) but may be
extended to 9 (boys) or 11 (girls) upon application of the guardian/custodian
S.84(2) – rights of G&C moves to the father. If the child has attained the age where he/she can
think for himself/herself, he/she may choose to live either with his/her father or his/her mother,
unless the courts states otherwise
S.85- G&C of an illegitimate child is with the mother

S.86(2) - due consideration to the wishes of the parents and wishes of the child when deciding
on G&C

•Wan Abdul Aziz lwn Siti Aishah (1975) 1 JH 47; (1977) 1 JH 50

–1st case: the mother is asking for G&C of the 2nd daughter who has been living with her father &
paternal grandmother since she was 27 months old & has been living with them for a year and a
half before the mother applied for G&C. The daughter is still living with them as the case was
being heard.
•Held: the utmost consideration when allowing G&C is the welfare of the child. This right is even
more important than the rights and wishes of the parent/s or guardian/s. hence, in this
situation, it would be wrong to separate the child with her paternal grandmother of whom she
has a strong bond. The mother’s application was rejected

–2nd case: the father is asking for G&C of their eldest daughter aged 9, who had been living with
the mother & maternal grandmother since she was 5, upon her re-marriage.
•Held: referring to the earlier decision above, it is best for the child to remain with her mother
and maternal grandmother

Wan Khadijah lwn Ismail (1975) 1 JH 53

The father is asking for G&C of his 5 daughters aged between 7-14 upon his wife re-marriage.
Held: G&C given to the father

Harun lwn Che Gayah (1975) 1 JH 66

–The parties to the divorce has a daughter who was given to the wife. The wife subsequently re-
married. The father later registered the daughter in a school & had taken the child from the
mother. The mother consequently removed the child from the school and brought her back to
her home. The father is now asking for G&C so as to allow the child to continue schooling.
–Court: upon listening to the arguments of both parties, had asked the child whether she prefers
to stay with her mother or father. G&C was given to the mother as per wishes of the child since
she had been living with her mother since she was small
Mohamad Salleh lwn Azizah (1984) 4 JH 212
•The mother was asking the G&C of her 4 children, aged between 39 days to 5 years, from her
ex husband. During the divorce, the children were given to the husband but she contented it
was so because she was very weak at that point of time since she had just given birth. There
was an agreement between them, giving G&C to the father.
•Kadi: the agreement cannot be enforced according to Islamic law since it involves children
under the aged of 7. Besides, there was no proof that the mother is not able and capable in
terms of physical & mental, she is a religious woman, is trustworthy, honest, has a permanent
home & still unmarried. Hence, G&C of the 4 children was given to her

•Kamaruddin lwn Rosnah (1987) 6 JH 282

–The parties to the marriages has 3 children. When they divorced, the eldest daughter aged 10
years opted to live with her father while her 2 younger brothers were given temporarily to the
father pending the mother’s G&C claims on them. However, she later took the children into her
custody. The mother subsequently re-married. The father is now asking for G&C of the 2
younger children. The mother is also asking for G&C of the 2 children as well as maintenance.
–Held: since the mother has re-married to a man with no blood ties to the children, her rights to
the children has automatically ceased. She was also working so it was the court’s view that it
would be beneficial for all 3 siblings to stay together under one roof. The husband has yet to re-
marry hence the court was of the view that he would be able to give full attention and love to his
children. G&C was given to the father.

•Rugayah lwn Bujang (1987) 6 JH 332

•The parties have 3 children aged between 5 to 10 years. When they divorced, it was agreed
that the eldest daughter go live with her father while the younger children, with the mother.
Later, the eldest daughter was also given to the mother. The mother then applied for full G&C
rights over her children as well as maintenance.
•Kadi: interviewed the elder children and found that they prefer to live with their mother. As the
youngest child was under the age of 7, G&C was given to the mother. All conditions of a
guardian & custodian was still fulfilled (she has not re-married). So G& C of all 3 children was
given to the mother & the father was ordered to pay maintenance

Right to Access
•When custody is given to a mother, she must ensure that access must be given to the father
without any obstacle, vice versa.
–Any ill feelings towards each other must be set aside for benefit of the child.
•Details of access is determined by the parties

•S.87(2)(c) – an order for custody may provide for the child to visit a parent deprived of custody
or any member of the family of a parent who is dead or has been deprived of custody at such
times and for such periods as the Court considers reasonable

•S.87(2)(d) – an order for custody may give a parent deprived of custody or any member of the
family of a parent who is dead or has been deprived of custody the right of access to the child at
such times and with such frequency as the Court considers reasonable.

Awatif Ibrahim v Haji Salleh (1979) 6 JH 142

The judge held that the child must be allowed to stay overnight with her mother once a week
every weekend.

Hasnan bin Yusof v Yasmin bt Mohd Yacob (2008) 25 JH 89

–The father was given visitation rights of the child but only through a grilled door which
prevented full body contact with the child. The father applied to have committal proceedings
against the mother.
–The court rejected the application as there was reasonable grounds why such order was given
(the father had previously taken the child away from the mother for 6 months. Instead, the court
changed the details of access, which will guarantee the child’s safety (the mother should
provide an observer/s during access)

•Right of access will not be given/minimised if it is not in the best interest of the child. Eg in
cases where father is known to abuse the child physically or sexually

Interim Order
•An interim order may be filed by any party, pending disposition of case by the court.

•S.201(1) of the Syariah Court Civil Procedure (FT) Act 1998 states that, “subject to the
IFL(FT)A, on application by any party to the custody of child, that the circumstances require an
interim order to be made…, the court may make such order which shall have immediate effect
and shall continue to be in force until the court has made a decision on the matter”

Radziah bt Ibrahim v Peter R Gottschalk@Yusuff bin Abdullah (2009) 27 JH 259

the application for an interim order was allowed after it was disclosed that there was a possibility
that the child would be abducted to Germany, the original place of the father.

•An interim order may be challenged by the other party and if necessary, the court may alter or
maintain the order

Azizi bin Ramli & Kiah bit Man v Wan Shariniee Fitra btWan Yahya & Zainab bt Hashim
(2004) 18 JH 39
–An interim order was set aside as the applicants succeeded in proving to the court that the
custody of the child should remain with the applicants. It was discovered that the child was living
comfortably with her father and paternal grandmother for about 2 years prior to the mother’s
application for interim custody. Besides that, the mother had also remarried a person who was
not a mahram to the child, which to a certain extent would deny her right to custody of the child.
Marlisa Nicolas bt Alamdin v Tiah bt Abdul Rahman & Anor [2011] 1 ShLR 41
–An application to set aside an interim order by the respondents was rejected as the court was
of the view that the order should be maintained as the mother should be given the opportunity to
see her small child (6 years old). Moreover, she had been previously deprived of this right for
more than 7 months

Variation Order
•Under s. 75, The Court may, on the application of any interested person, at any time and from
time to time vary, or at any time rescind, any order for the custody … of a child, where it is
satisfied that the order was based on any misrepresentation or mistake of fact or where there
has been any material change in the circumstances

Sheikh Abdul Shakir v Noor Haryatie bt Harun (2012) 35 JH 129

–The plaintiff claimed for a variation order as the defendant is now living abroad and also
married to a foreigner who was not a mahram to the child. His application was granted, also
taking into consideration that the child wanted to live with the plaintiff.

Maryam bte Abdullah v Hithir bin Rashid (2005) 19 JH(2) 242

–The plaintiff applied for a variation order was the initial order gave the defendant right to
access at any suitable time. This caused difficulties to the plaintiff. And so she requested that
the defendant give her notice of his intention to visit the children. Application was allowed.

•Can a temporary order of custody be varied?

–Yes as the order is temporary in nature and not absolute and final. It can be varied until final
judgement is made during full hearing.
Amirul Azizan v Faizah Fazlina [2010] 1 ShLR 51

MAINTENANCE OF CHILD
•Responsibility to maintain a child falls on the father – s.72(1)
–If the father has died or if he cannot be found, a responsible person may be ordered to
maintain the child – s.72(2)

•Power of the court to order a father/responsible person to pay maintenance for his/the child –
s.73(1),(2)
–S.73(3) – the court may order the father/responsible person to may payment for maintenance
to the guardian or custodian or trustee of the child
The court may order the father/responsible person to sell/charge his/her property to a
trust/trustee & to use the income from the property to maintain the child – s.74

•S.75 - power of the court to, at any point of time, vary/rescind a maintenance order as it deems
fit

•S.76 – the court may, at any point of time change any maintenance agreement made if he
thinks such change is necessary or if the terms of the agreement is no longer beneficial to the
child

•S.77 c/f to s.69 – enforcement when there are arrears in payment of maintenance

•When a man accepts a child that is

not his into his family, it is his
responsibility to maintain the child
for as long as the child is a child and for as long as
the child’s birth parents cannot afford to do so –s.78(1)

–This obligation ceases when the birth parents of the child takes the child back into their care –
s.78(2)

–Any monies used for the maintenance of the child is claimable from the birth parents – s.78(3)

•Maintenance of a child ceases when the child attains 18 years except by order of the court for
reasonable reasons – s.79

•S.80 – a woman who has neglected to maintain her illegitimate child may be ordered to do so
by the court
–Except when the child a product of rape

•Zainuddin lwn Anita (1982) 4 JH 73

–A woman is asking for maintenance for her 2 children amounting to RM400 from their father.
The father was then ordered to pay RM200 each to his children. But he defaulted in payment so
she is asking for arrears in maintenance amounting to RM3000. The father is appealing against
the claim stating that he had made payment of RM100 every month for 15 months. But there
was no evidence to support his claim. His appeal was rejected

•Fatimah lwn Shaik Muhamad (1977)1 JH 39

–The parties have 2 children, Upon divorce one child was given to the mother, the other to the
father. The wife was asking for maintenance for the child under her care. The Kadi ordered the
husband to pay RM90 a month to the wife. The husband appealed.
–Court: since the husband had failed to pay maintenance, now he has to pay arrears amounting
to RM2070. The court also looked into the maintenance amount of RM90 and compared it with
the cost of living in KL at that point of time. The court then decided that the amount was too little
as opposed to the cost of living and so ordered the husband to pay RM110 a month.

•Jinah lwn Abdul Aziz (1987) 6 JH 344

–The parties that divorced have 5 children aged between 6 to 21 years. At the time of the
divorce, the father agreed to pay RM500 each per month as maintenance to his children but he
failed to do so. He only paid RM900 for maintenance of all his children on reason that his
business was not doing well. The mother is now claiming for maintenance and for the arrears
due.
Court: as for the children aged 21 and 17 years, they are no longer eligible for maintenance.
Hence maintenance claim for them is rejected. For the other children aged under s, the father
was ordered to pay RM250 a month per child as maintenance and RM200 a month per child for
school expenses. As for the arrears, the court could not find any evidence that there was a prior
maintenance order to the effect. Hence, it could not be enforced.

•Zainab lwn Ahmad(1978) 5 JH 420

–The wife is asking for maintenance of RM70 for her 4 children. The husband was a laborer with
a salary of RM210 a month.
–Court: the husband would have to pay maintenance of RM60 a month. His employer was also
ordered to cut his pay and pay the maintenance directly to the wife

MAINTENANCE OF WIFE
•A court may order a man to pay maintenance to his wife or ex-wife – s.59
•Maintenance will not be awarded to a wife if she disobeys the lawful wishes of her husband eg
non consummation, leaves the marital home without his consent or refuses to follow the
husband

•Period of maintenance
–Until the death of the wife or for any shorter period or is rescinded (s.64)
–For a divorced wife, ceases with the completion of Iddah; or when the wife begins to disobey
the husband (s.65) whichever comes first
•A divorced wife is entitled to gifts from her former husband for as long as she remains
unmarried

Sri Utama Dewi Kasman v Abu Bakar bin Abdullah (2010) 30JH (1) 111
The Appeal Court after considering the husband’s financial standing allowed the appeal by the
appellant who claimed maintenance from her husband and ordered him to pay RM700
beginning April 2005 a month plus Eid festival celebration expenses every year amounting to
RM300 starting from 2005. The husband was also ordered to pay arrears in maintenance from
April 2005 – June 2008 and Eid expenses for the year 2006-2007 to be paid in cash to the wife.

Aminah Mokhtar v Zakaria Yahya (2009) 28 JH (2) 181

–The wife applied, among others, maintenance during her Iddah. The husband was ordered to
pay RM9000 to the wife which became a debt to be paid within 3 months after the order.

Khairul Faezah v Muhammad Salleh [2005] 1 ShLR 171

•The wife had applied for fasakh on the grounds of cruelty. In pursuant to the applicant, the
issue was whether she is entitled to maintenance during her iddah period.
•Court: no as the divorce was by way of fasakh which is irrevocable.

•S.66 – the court has the power to vary a maintenance order when there is a change in
circumstances in either the husband’s side or the wife’s.
S.67 – the court has the power to vary the terms of a maintenance order when it is satisfied that
there has been any material change in circumstances

•S.71 – a divorced wife has the right to stay in the house where she used to live when she was
married for as long as her husband is not able to get other suitable accommodation for her.
The right to accommodation shall cease if
a)The iddah period has expired; or
b)The period of guardianship of children has expired; or
c)The woman has remarried; or
If the woman has is guilty of open lewdness

INHERITANCE - INTESTATE
•Fusion of Islamic law and Adat
•Under the Federal Constitution, all matters regarding inheritance is provided under the State
list. However, matters of probate & administration of inheritance is under the Federal list
–Syariah Courts only have the power to decide which party gets which part of the property.

•Distribution of property is referred to as Faraid or Mirath.

–Faraid – knowledge in relation to inheritance, calculations which enables distribution of
estates, knowledge regarding the compulsory portions of the estate
–Mirath – the empowerment of a person over all others on any property which has been left
upon death by kinship, marriage or the freedom of slaves.

•Relationships which qualifies a person to inherit

–Marriage
–Kinship

•Relationship whom inheritance has been fixed eg father, mother, paternal grandfather, both
grandmother, daughter, son’s daughter, female siblings from same parents, female siblings from
same father, male
siblings from same mother,
female siblings from same mother

•Relationship whom inheritance has

not been fixed eg male sibling
from same parents, male sibling
from the same father

–Independence of slaves – the person

who frees a slave is entitled to inherit
the slaves property

•Rights to be settled prior to distribution of estates

–Funeral expenses
–Debts
–Zakat (tithe)
–Harta Sepencarian (marital property)

•Will – if the deceased leaves a will, the will shall be executed after all the above matters have
been settled.

Conditions: the will was not made for inheritors – void AND must only be 1/3 of the total net
worth of the estate

•Portion in distribution of estate

–Husband dies– ½ with no issue, ¼ if with issue
–Wife dies– ¼ with no issue, 1/8 if with issue
–Father dies– 1/6 with male issue, all if no male issue (some error here)
–Mother dies – 1/6 with issue or 2 or more male or female siblings from the same parents or
same father or same father, 1/3 with no issue, 1/3 from the remainder if leaves a father and
spouse
–Daughter dies– ½ with no sons, 2/3 if there is more than 1 daughter & no sons, the remainder
if there is a son

•Although inheritance is under the jurisdiction of the Syariah Courts, it is the Civil Courts who will
normally hear the case.
–The Civil Courts would have to refer to Islamic principles in division of property but instead they
refer to common law principles

•Re Timah bte Abdullah [1941] MLJ 51

–The Civil High Courts decided that the non Muslimheirs to a Japanese convert could not inherit
her property. Hence, the administration of her property was left to the Government.

•S.50 Administration of Islamic Law (Federal Territories) Act 1993

•If in the course of any proceedings relating to the administration or distribution of the estate of a
deceased Muslim, any court or authority, other than the Syariah High Court or a Syariah
Subordinate Court, is under the duty to determine the persons entitled to share in the estate, or
the shares to which such persons are respectively entitled, the Syariah Court may, on the
request of such court or authority, or on the application of any person claiming to be a
beneficiary or his representative and on payment by him of the prescribed fee, certify the facts
found by it and its opinion as to the persons who are entitled to share in the estate and as to the
shares to which they are respectively entitled

Property of a Spouse after Conversion s.51A LRA

•When a person who has converted into Islam dies before his/her non Muslim marriage has
been dissolved, that person’s matrimonial assets shall be distributed upon application by the
interested party
–“Interested party/ies” is defined as the surviving spouse and children of marriage, if any, and
the parents of the deceased converted spouse
•Considerations:-
(a)the extent of the contributions made by the interested parties in money, property or works
towards the acquisition of the matrimonial asset or payment of expenses for the benefit of the
family;
(b)any debts owing by the deceased and the interested party which were contracted for their
benefit;
(c)the extent of the contributions to the welfare of the family by looking after
the house or caring for the family;
(d) the duration of the marriage;
(e) the needs of the children, if any, of the marriage; and
(f)the rights of the interested party under the Distributions Act 1958 if the deceased had not
converted.

INHERITANCE- TESTATE
•Only affecting 1/3 of the total net worth of the property
•Shaik Abdul Latif lwn Shaik Elias Bux (1915) 1 FMSLR 204
–The deceased left a will willing all his property to his adopted children and his 2 widows.
–Held: the will was void since he left more than 1/3 to his adopted children while is legal heir
received nothing

Siti lwn Mohamed Nor (1928) 6 FMSLR 135

A man died leaving all his property to his children without leaving any property to his widow
Held: the will was void since only some his heirs inherited all his property without due
consideration of his other heirs. Only with the consent of all his heirs that a particular heir can
inherit all the property shall the will be valid

OTHER MATTERS CONCERNING MARRIAGE

•Abandonment – s.126
•Abusing the wife – s.127
•Unfairness towards the wife- s.128
•Disobeyment by wife – s.129
•Intercourse between husband-wife during Iddah without proclamation of Rujuk – s.131
•Polygamy without consent of the court – s.123
•Divorce proclamation out of court & without consent of the court – s.124
•Non reporting of eg talak, rujuk etc – s.s.125, 27
•Committing apostasy to dissolve a marriage – s.130
•Coerced/forced to marry – s.37
•Giving false statement to enter a marriage – s.38
•Prohibited solemnisation of marriage – s.39
•Offences related to solemnisation of marriage – s.40

On 30th June 2010, Kamariah, a Chinese convert married Ahmad (a Muslim), her classmate from
university. They have two sons; Jamal was born on December 28th 2010 and Johan was born on
the 31st October 2017. They also have three daughters, Aminah, Zila and Fatimah, who were
born in February 2013, November 2014 and May 2019 respectively. Aminah is a special needs
child who needs constant care and attention. (JAMAL : 11 / JOHAN 4 / AMINAH 8/ ZILA
7/ FATIMAH 2 / BABY ON THE WAY

Since Aminah was born, Ahmad was the sole provider for his family as he wanted Kamariah to
concentrate on raising the children. Kamariah, however, had been selling cookies online to earn
extra money. Currently, they are all staying in a semi-detached house which Ahmad and
Kamariah jointly bought and registered under both their names. Ahmad had also bought a
Toyota Vios under his name for his own use, and a Myvi for Kamariah, which he registered
under her name. Ahmad still own his bachelor pad in Port Dickson, which he had renovated
after he married Kamariah and is now occasionally renting it out to holiday-goers as an extra
source of income.

A week ago, Ahmad had divorced Kamariah via Whatsapp and their divorce confirmation
hearing will be heard next week. When asked the reason for the divorce, Ahmad merely said
that the divorce is not Kamariah’s fault. He said that she has been a good, faithful and loyal wife.
But he had fallen in love with another woman and wants to marry her. Two days ago, Kamariah
found out that she is 9 weeks pregnant. Kamariah comes to you asking for advice on the
following issues: