ARBITRATION BY HAKAM

Arbitration by Hakam
◼ Definition
◼ Authorities
◼ Appointment of hakam
◼ The Statutory Provisions
◼ Cases
Definition
Tahkim is a process whereby the
disputing parties agree to appoint
someone to act as an arbitrator for the
settlement of the issue in dispute between
them. There should be clear
pronouncement (lafaz) that a person has
been appointed as an arbitrator, e.g., the
parties should say, “we have appointed
you as hakam to judge over the dispute
between us”
Authorities
“And if you fear a breach
between the husband and wife,
appoint a hakam from his family and
a hakam from her family;
if they shall desire a reconciliation
Allah will cause them to agree”

Surah an-Nisa’ ; 35
 Hadith on tahkim
“Whoever judges between two disputing
parties (by way of tahkim) and both of
them agree with (the arbitrator), whereas
he does not do justice between them,
Allah will curse him”
Essential elements of tahkim
◼ Disputing parties
◼ Arbitrators
◼ Sighah(ijab and qabul)
◼ The subject matter
◼ Hukm(judgement)
The Statutory Provisions

◼ Section 48 (1) to (7) of the IFLA,

1984
 Shari’ah Court

Appoint two hakam if the Court is satisfied

that there are constant quarrels – S 48 (1)

Hakam for Hakam for

the husband the wife

Section 48 (4)

Section 48 (5) Section 48 (6)

The Registrar records the outcome

Cases on hakam

❖Balqis
Fatimah v Najm ul Ikram Qureshi
❖Che Pah v Siti Rahmah

❖Talib v Che Sepiah

❖Nerah v Ahmad

❖Mohamad Sukri v Nalma

Balqis Fatimah v Naimul Ikram
◼ The High Court of Lahore based on verse
229 of surah al-Baqarah held that the
hakam has the power to separate the
spouses
◼ The marriage in this case was dissolved
by hakam
 Che Pah v Siti Rahmah
◼ The husband had applied for an order that his wife, should return
and cohabit with him
◼ The wife refused to do so as she claimed the husband was a
gambler and a drunkard and did not pray
◼ She asked for a divorce from him and offered to pay compensation
for khulu’
◼ The Court hearing the parties ordered the wife to return to the
husband and ordered the husband to pay her nafkah and a house
for her to stay
◼ The wife refused to go back to her husband and the husband too
did not give the nafqah as ordered
◼ The Qadi ordered that hakam to be appointed
◼ Hakam reported to the Court that they were unable to solve the
case
◼ The Court then appointed another hakam and they finally were
able to get the agreement of the parties for a khulu’ on the
payment of RM100 to the husband
 Talib v Che Sepiah
◼ The parties had been married since 1964
◼ The wife had applied for a divorce from her husband
◼ The husband refused to agree to a divorce even through
khulu’
◼ The Court ordered both parties to appoint their
respective hakam
◼ The hakam were unable to resolve the matter as the
husband's hakam did not agree to a divorce
◼ The Court then appointed another hakam and conferred
upon him the authority to effect a divorce
◼ The husband appealed to the Appeal Board but his
appeal was dismissed and the court’s decision was
affirmed
 Nerat v Ahmad

◼ The wife applied for khulu’ but the husband

refused to accept
◼ The Court decided to appoint hakams from each
parties to settle the matter
◼ The hakam for the husband agreed that there
should be a khulu’ on the wife paying RM150
and when the wife paid this amount to the
husband, he pronounced talaq on her.
Mohamad Sukri bin Salleh lwn Nalma bt Yaacob Nov
(2004) JLD XVIII BHG I JH 115

◼ The husband appealed on the decision by Kota

Bharu Syariah High Court that appointed a
Hakam with the authority to pronounce one
talaq on 14 Jan 2002. Previously, the
respondent had filed for divorce through talaq
due to constant quarrel (shiqaq) and were not
staying together for 11/2 year.
◼ The husband disagreed to pronounce talaq and
this led to the appointment of Hakam
◼ The Syariah Appeal Court held that the
appealed is allowed and the parties may
divorce through Khulu’ amouting to rm
1,500. to be affected within 21 days from
the date of the order