INTRODUCTION TO ISLAMIC LAW

(DIL1234)
SEMESTER 2022/2023

CASE REVIEW 1
TOPIC: TA’LIQ

ASSIGNED BY:
SIR AHMAD HOSNI BIN MUBARA

PREPARED BY:
IMAN ALYAH BAIDURI BINTI YUSRI
(DIL222034)
MASTURA SYALINA BINTI IZHAM RIZAL
(DIL223005)
ALINDA MARY NATHAN
(DIL222036)
NAJWA KHAIRUNNISA’ BINTI LAN BAH DUN
(DIL222032)

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 TABLE OF CONTENT

NO CONTENT PAGES

1. DEFINITION 3

2. INTRODUCTION 3-4

3. PROVISION 4

4. DALIL 5-6

5. FATWA 6-8

6. CASES 8

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1.0 DEFINITION
The Ta'liq agreement seems to be an ideal way of protecting Muslim women’s right in their
marriage. In Malaysia, divorce by ta’liq should be made in accordance with certain
procedures.

The basis of this type of divorce is the stipulation agreed upon by the husband, that the wife
would be entitled to a divorce under certain circumstances e.g. upon the husband's breach of a
condition agreed upon by the parties in the marriage contract. This type of divorce is also
known as tafwid at talaq.

2.0 INTRODUCTION
Ta'liq means an agreement made by the husband after the marriage contract in accordance
with sharia law and as provided in the State Islamic Family Law Act, Enactment, and
Ordinance. Taliq divorce can happen when there is a violation of ta'liq and after a complaint
is made and confirmed by the court. The practice of ta'liq is not obligatory in Islam but can be
practised when both parties agree. If the husband has violated the ta'liq agreement then the
divorce is declared. Ta'liq can be divided into official ta'liq and oral ta'liq as well as additional
ta'liq.

1. Official Ta'liq
The official practice of ta'liq aims to protect the wife in marriage, usually involving three
issues which are to prevent the wife from being abandoned by the husband, neglect of the
wife's maintenance by the husband and any harm done by the husband to the wife. The
husband will recite the ta'liq agreement in the marriage ceremony, and if the agreement is
violated in the future, then the divorce will fall. However, the pronunciation of ta'liq varies
according to the state and the complaint process also needs to be made according to certain
procedures.

2. Oral Ta'liq
Verbal ta'liq is ta'liq made by the husband by his own choice and usually does not touch on
the issues that have been stated in the official ta'liq. The husband is free to pronounce any
ta'liq whether it is pronounced by his own will such as the husband preventing the wife from
going out late at night to have fun or at the request of the wife for example the wife requires

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the husband not to polygamy otherwise the divorce will fall. However, verbal ta'liq
pronounced outside the court is classified as an out-of-court divorce as stated under Section
124 of the Federal Territories Islamic Family Law Enactment 1984 and is counted as an
offence.

3. Additional Ta'liq
Additional ta'liq is a ta'liq made based on the wishes of the husband, the request of the wife or
through discussion and mutual agreement of both parties without involving matters already in
the official ta'liq. The ta'liq must be made in front of the responsible party such as the
Religious Administration Officer and every detail of the agreement must be recorded and
documented as proof of the existence of additional ta'liq between the couple. Husband and
wife can enter any claim that can benefit them in the future. However, both parties need to
really understand the purpose of this additional ta'liq. It is not a light matter because talaq can
fall when ta'liq is violated. Consult an expert for more information.

3.0 PROVISION
In the legal context, a provision is a stipulation within a legal document or in a specific law.
This can also be known as a clause, contract clause, or contract provision. Legal provisions
are usually included in a contract or other type of legal agreement to protect the interests of
the parties involved.

There are some provisions in ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT
1984. For example;
1. Section 49 of Islamic Family Law (Federal Territory) ACT 1984,
● Where the husband does not agree to voluntarily pronounce a talaq, but the
parties agree to a divorce by redemption or cerai tebus talaq, the Court shall,
after the amount of the payment of tebus talaq is agreed upon by the parties,
cause the husband to pronounce a divorce by redemption, and such divorce is
ba-in sughra or irrevocable.
2. Section 81 of Islamic Family Law (Federal Territory) ACT 1984,
● the mother shall be of all persons the best entitled to the custody of her infant
children during the connubial relationship as well as after its dissolution.

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4.0 DALIL
The husband is bound by his agreement, as Muslims are generally bound by their
agreements, and are expected to fulfil their obligations. For instance, Surah al-Maidah 5: 1
states to the effect that:

O you who believe! Fulfil all obligations.

With regard to agreements or settlements made between a husband and wife.

Surah an-Nisa 4: 128 also states to the effect that:

If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they
arrange an amicable settlement between themselves; and such agreement is best; even
though men's souls are swayed by greed. But if you do good, and practise self-restraint, Allah
is well-acquainted with all that you do.

The Prophet (s.a.w.) himself was asked to give his wives an option to obtain a divorce from
him, in Surah al-Ahzab 33: 28 which states to the effect that:

O Prophet! Say to thy consorts: "Ifit be that you desire the life of this world, and its glitter, -
then come! I will provide for your enjoyment and set you free in a handsome manner
Ügbah b. Amir reported the Messenger of Allah (may peace be upon him) as saying: The
condition worthier to be fulfilled by you is the one which you made the private parts (of your
wives) lawful (for you).

[Sunan Abu Dawud, Kitab al- Nikah, chap. 706 no.2134)

In Ahmad Hasan Explanatory English Translation of Sunan Abu Dawud, it is elaborated in
the footnote to this Hadith that:

The condition imposed by the wife at the time of marriage or the word a man gives before his
marriage must be fulfilled. For instance, a woman marries on condition that the husband will
not take her outside the place she wants to stay. The husband should fulfil this condition. He
cannot legally take her outside the house where she has her residence. He can do so with her
consent.

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 The conditions, it should be noted, laid down at the time of marriage must be lawful such as
dower, residence, maintenance and good living.

All the Sunni schools recognise the doctrine of the delegation of the power of divorce to the
wife. The incident regarding the Prophet (s.a.w.) and his wives referred to in Surah al-Ahzab
33: 28 cited above is also put forward by some jurists as a basis for this doctrine. It is
explained by the jurists that the Prophet (s.a.w.) had, in obedience to the Qur'anic injunction,
empowered his wives to choose between living with him or a separation; the wives chose the
Prophet (s.a.w.) and so the marriages were not dissolved. It is inferred that a husband can
lawfully delegate to his wife the power to dissolve the marriage, if she so chooses.

The power given by tafwid or delegation cannot be revoked, and the wife to whom the power
is delegated exercises it in respect of her own person and has absolute right to exercise the
power or not as she may choose.? There are some differences of opinions, however, between
the traditional scholars as to the validity of certain conditions that would entitle the wife to a
dissolution of marriage e.g. the Hanbali view is that a husband who agreed in his marriage
contract not to take another wife during the continuance of the marriage would be bound by
such a stipulation so that the first wife would be entitled to a dissolution of the marriage in
the event of its breach, while the Hanafis and the Shafi'is would hold such a stipulation to be
void.

5.0 FATWA
● IRSYAD AL-FATWA SERIES 449: IS IT POSSIBLE TO RECALL LAFAZ TA'LIQ?
After examining the evidence and the views of the jurists, the Mufti of the Federal Territory
concluded the following points:

1. Conviction of talaq through questioning and proven by way of iqrar with talaq or oath
if consulted.
2. Pronounced talaq with the pronunciation of ta'liq when there are conditions that
cannot be withdrawn based on the opinion of the majority of jurists.
3. The pronunciation of ta'liq is part of the concept of talaq. Therefore, the act of playing
or joking with the word talaq is not an obstacle to nullifying the talaq as long as the

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 husband is in a state of understanding (rusyd), puberty and his own choice. This is
because matters involving talaq cannot be taken lightly.

The Prophet SAW affirmed in a hadith narrated by Abu Hurairah RA:

Three things that are serious are considered serious and jokes are considered serious, namely,
marriage, divorce, re-referencing (after divorce). - Narration of Abu Daud (2194)

The hadith above clearly shows the prohibition of not playing around in three things. This is
because joking about the three things will be punished as the original meaning of the word
regardless of the intention to joke. However, married couples need to attend the sharia court
to obtain confirmation related to the pronouncement of talaq whether it involves the
pronouncement of talaq directly (‫ )التنجيز‬or indirectly (‫)التعليق‬.

● DECISION OF FATWA, PERLIS STATE FATWA COMMITTEE TIME - 54 / 2021,

8 - 9 SEPTEMBER 2021 / 1 - 2 SAFAR 1443, No. 4/54 YEAR 2021: LAW OF
DIVORCE BECAUSE THE WIFE DOES THINGS THAT THE HUSBAND
DOESN'T LIKE

1. If the husband divorces his wife by means of ta'liq with the intention of filing a
divorce and that happens, then the divorce is filed according to the order of the
number of divorces he has ever filed.
2. If the husband divorces his wife by way of ta'liq without the intention of imposing a
divorce but simply to threaten or show hatred towards the thing he ta'liq, then the
divorce is not valid. This is because practice is based on intention.
3. The scholars who hold this opinion consider it part of the oath that the perpetrator
must fulfil the oath by feeding or clothing 10 poor people or freeing a slave. If he
cannot afford it, he should fast for 3 days. This is based on verse 2 of surah al-Tahrim.
4. If the husband has cheated on his wife by referring to the past and he knows that it has
happened, then the divorce is considered to fall immediately. This is because ta'liq for
things that have happened cannot be understood unless the intention is to impose
divorce, not to threaten or show hatred.
5. If the husband confuses the wife by relating something that is thought not to have
happened, but it turns out that the matter has already happened, then the divorce does
not fall if the husband did not intend to divorce but rather to threaten or scare the wife

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 from doing the thing because the basis of a person's speech is calculated based on the
appearance. So the threat will not happen on the surface but is aimed at things to
come.
6. Divorce is a provision given by shari'ak for the purpose of the welfare of life between
husband and wife. It is not permissible for a Muslim to play with the provision given
by the syar'i with the aim of benefiting in family relationships.

6.0 CASES
● Aisny v Haji Fahro Rozi
The wife applied for confirmation of divorce by ta'liq on ground that the husband has not
given her and her children ‘nafkah’ (maintenance) for over four months. In theSyariah
Subordinate Court, the application was dismissed as the judge held that the wife had shares
which she could sell to provide the ‘nafkah’. On appeal,the Appeal Committee reversed the
decision and held that as the shares belonged to the wife, there is no valid reason why she
should sell them to provide ‘nafkah’ for herself and her children. It was the duty of the
husband to provide the ‘nafkah’ and as he had failed to do so, the wife was entitled to obtain
the divorce by ta'liq.

● NORIZAM BINTI MOHD. LAZIM v HALIM AZMAN HAJI SULAIMAN

[1995]
The couple in this case were divorced because the wife violated ta’liq. The marriage lasted
for 5 years. The wife then made a claim for iddah maintenance, rent, arrears for 36 months,
mut'ah and debt. The Syariah Court of Appeal ruled that the Seremban High Court had
jurisdiction to hear because the Plaintiff resided in Negeri Sembilan.