THE PROCEDURE OF PRONOUNCEMENT OF LI’AN

Since li'an is the dissolution of a marriage that has the effect of separation forever and the couple
is prohibited from returning as husband and wife, then several procedures must be followed
before li'an is pronounced as follows;

First, the court must ensure that the party who wishes to pronounce li'an is a valid married couple
according to syariah law. Second, the husband who wants to pronounce li'an must be a husband
who is able to pronounce the divorce that is sane, mature and voluntary.

Third, the court should remind the related couple about the punishment of Allah that will befall
them if the party commits a false oath. Fourth, instruct the couple involved to stand up when
doing li'an so that each can be seen by the public.

Fifth, the pronunciation of li'an should be what the Court directs. If the party involved violates
the speech taught by the court or pronounces the li'an before being instructed by the court, then
the li'an is invalid1.

An example of pronouncement of li’an would be, “Indeed, the child conceived by my wife or the
child born is the child of adultery and not my child.” For the wife, she should deny this
accusation by adding the phrase, "Indeed this child conceived or this child born is his child and
not the child of adultery.”

Among the examples of the pronunciation of the denial of the child's lineage is what was
reiterated in Section 14(6) of the Kelantan Syari’ah Penal Code Enactment; “Bahawa anak ini
atau apa yang dikandung oleh isteri aku bukanlah dari aku.”

Some scholars think that the name of the man accused of committing adultery with his wife
should also mentioned. If his wife is present at the pronouncement, she should be pointed out, if
not present, her name should be mentioned.

1
Pembubaran Perkahwinan, Nusyuz dan Idah di Mahkamah Syari’ah Malaysia, Roziana Mat Amin, Mohd Nurhusairi
Mat Hussin, Raihanah Abdullah, 2022
Further, the wife's lian speech should be done after the husband has finished pronouncing his lian
speech. Therefore, if the wife pronounces the li'an first or the judge separates the couple before
the husband pronounces the li'an, then the separation is invalid.

In addition, the pronuncement must be attended by a group of Muslims, at least four people
according to the Maliki Madhhab, while the Syafi'e Madhhab believes that the presence of
Muslims when reciting li'an is only sunah.

THE DURATION OF THE DENIAL OF PATERNITY

Muslim scholars have formed different opinions on the duration of the denial of paternity or in
other words, for how long can a husband deny the paternity of the child borne by his wife? In a
book entitled Pemantapan Sistem Kekeluargaan written by Basri Ibrahim, the majority of the
Muslim scholars (jumhhur fuqaha’) opine that a husband cannot deny his paternity upon a child
borne by his wife, after his wife gave birth to/delivered the child2.

On the other hand, the prominent madzhabs have different opinion regarding this. According to
Madzhab Hanafi, if the husband wants to deny the nasab of the child borne by his wife, he must
do so the moment the child was born or within 7 days after the child is born. If the denial is done
after 7 days, it will not be accepted and the child would still be attached to him. The delay on
denying the child would imply that he recognized the child as of his nasab. His silence is his
recognition of the child.3

Madzhab Maliki, on the other hand, for the lafaz of li’an to be valid, the two following
conditions must be satisfied;

(1) The husband alleged that he and his wife have not had any sexual intercourse that could
cause her pregnancy.
(2) The denial of paternity must be done before the birth of the child. If the husband remains
silent until the birth of the child, even after one day, the li’an of the husband will not be valid,

2
https://peguamsyariefas.com.my/tag/lian/
3
Kamus Istilah Udanng – Undang Jenayah Syari’ah (Hudud, Qisas & Takzir), Mohd Shukri Hanapi, 2016
 and the husband will be imposed with a hadd punishment for qazaf due to alleging the wife
of committing adultery.

According to Madzhab Syafi’e, the husband is permitted to deny paternity of a child to be done
throughout the wife’s pregnancy until the child is born. If he choose to wait to pronounce li’an
until the child is born, he must do so in an instant.

CONSEQUENCES OF LI’AN4
There are several consequences of li’an and among them are as follows;
(1) The husband will be subjected to hadd qazaf if he fails to make the oath after accusing his
wife.
(2) If the husband pronounces li'an but the wife refuses to respond, then according to Imam
Syafi'e and Imam Malik, the punishment of adultery will be imposed on the wife. This is
because the refusal to swear indirectly shows that the wife admits her husband's accusations.
However, according to Imam Abu Hanifah, the wife is not subject to stoning for the offense
of adultery if it is based solely on the reluctance to respond to her husband's li'an. Therefore,
for Imam Hanifah, it is sufficient if the wife is imprisoned until she admits adultery or takes
an oath to deny her husband's li'an.
(3) Obligation of Tafriq (separation) between husband and wife. According to the opinion of
Hanafi scholars, separation (furqah) is not completed except with separation (tafriq) from
the Judge. According to Ulama Syafi'e, a divorce is completed even with the husband's
pronouncement of li'an (lafaz) even if the wife has not made the pronouncement of li'an
because it is a separation that is made with words, so it is completed with the lafaz of the
husband alone, just as talaq occurs with only the words of the husband.
(4) The child whose paternity is denied by the father can only be attached to the mother alone.
The denied child is not entitled to receive maintenance from his mother's ex-husband who
pronounced li'an. Also, the child and his mother's ex-husband cannot inherit each other's
property. Also, if the child is a girl, then the ex-husband cannot be her wali during her nikah
ceremony.
(5)
4
Pembubaran Perkahwinan, Nusyuz dan Idah di Mahkamah Syari’ah Malaysia, Roziana Mat Amin, Mohd Nurhusairi
Mat Hussin, Raihanah Abdullah, 2022
CASE
(1) Md Yussof v Nur Fauziah5

In this case, the couple has two children and the defendant is the second wife of the plaintiff. The
defendant gave birth to a third child, three days after their divorce. However, the plaintiff denied
that the child was not his nasab and requested to swear an oath of Li’an.

The husband and the Family Counseling Service officers failed to locate and find the defendant
so that the summons could not be handed over. The plaintiff filed a complaint again and in the
complaint he had pronounced talaq on the defendant. Their divorce was confirmed by the court.
The plaintiff has taken an oath to deny that the child born to the defendant is not his nasab before
the Court of Kadi Belait and in front of four witnesses.

The pronouncements are as follow: “Aku bersaksi dengan nama Allah ta’ala bahawasanya aku
berkata benar di dalam kesaksianku. Dan sesungguhnya bahawa anak tersebut itu, iaitu anak
yang Bernama ... yang baru dilahirkan oleh bekas isteri say aitu adalah hasil dari anak zina dan
bukan anak saya.”

Based on the testimony and the oath of the plaintiff, the Court of Kadi Belait has decided that the
child born to the defendant is not his nasab.

(2) Wan Azmi v Nik Salwani6

Wan Azmi and Nik Salwani was married on 29 June 1987. However, on 21 December 1987 they
divorced at the Kadi Court, Tumpat, Kelantan. Soon after, on 18 March 1988 Nik Salwani gave
birth to a child who was alleged to be the son of Wan Azmi.

5
Pembubaran Perkahwinan Dalam Perintah Darurat (Undang-undang Keluarga Islam), 1999 Brunei Darussalam dan
Hukum Syarak, by Haji Johar bin Haji Muhammad, 2010

6
(1990) 19 JH 192-194
Nik Salwani further filed a claim for nafkah of child support and during pregnancy in the Kota
Bharu Kadi Court against Wan Azmi. However, Wan Azmi seek for the Court to make a
declaration order that the child was not his.

The Court in this case ruled that the child was indeed a legitimate child and Wan Azmi is the
paternal father of the child. Wan Azmi’s application was rejected by the Court based on the
following grounds:

 There is an evidence that Wan Azmi had intercouse with Nik Salwani and as a result, a child
was born after six months of that intercourse.
 The denial by Wan Azmi that the child is not his son was only made after Nik Salwani
claimed for the maintenance of the child.

CONCLUSION
Due to the considerable impact on the parties who pronounce li'an, it is better if the husband does
not resort to pronounce li'an in the absence of witnesses and strong evidence. Meanwhile, in
relation to the child born by the wife, it is more appropriate if a DNA test is carried out to
identify whether the child born is the biological child of the couple. If the husband is still
suspicious of his wife, then divorce is a better alternative for the dissolution of their marriage
instead of taking the easy way out by accusing and pronouncing li'an against the wife. Although
Islam allows li'an to protect the lineage and honor of the husband, it should be used with caution
because it has a very serious impact on the Islamic family system, especially for children whose
lineage is not recognized.