Question 2a

Issue: Whether Salmi can terminate her marriage through Khul’.

Khul’ is defined literally as to pull out or to remove. It is a method of divorce in which the wife
can seek release from marriage from her husband by using the word khulu which can be made
in writing or verbally. Al-Quran in Surah Al-Baqarah 2, Verse 229: “Divorce is twice. Then,
either keep [her] in an acceptable manner or release [her] with good treatment. And it is not
lawful for you to take anything of what you have given them unless both fear that they will not be
able to keep [within] the limits of Allah.But if you fear that they will not keep [within] the limits of
Allah, then there is no blame upon either of them concerning that by which she ransoms herself.
These are the limits of Allah, so do not transgress them. And whoever transgresses the limits
ofAllah - it is those who are the wrongdoers''

Surah Al-Baqarah 2, Verse 230: “And if he has divorced her [for the third time], then she is not
lawful to him afterwards until [after] she marries a husband other than him. And if the latter
husband divorces her [or dies], there is no blame upon the woman and her former husband for
returning to each other if they think that they can keep [within] the limits of Allah. These are the
limits of Allah, which He makes clear to the people who know.

Surah Al-Baqarah 2, Verse 231: “And when you divorce women and they have [nearly] fulfilled
their term, either retain them according to acceptable terms or release them according to
acceptable terms,and do not keep them, intending harm, to transgress [against them]. And
whoever does that has certainly wronged himself. And do not take the verses of Allah in
jest.And remember the favor of Allah upon you and what has been revealed to you of the Book
and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all
things”

Khulu divorce is affected by means of appropriate words, spoken or written by 2

parties or their respective agents by which wife offers and husband accepts
compensation out of her property for the release of his marital rights. According to Maliki,
divorce with compensation by the wife or her guardian or divorce by the word of khulu.
Meanwhile Hanafi, It is an act of end of marital relationship with consent either by utterance of
the word khulu or some words with similar meaning. Shafie school of thought stated that
separation between husband and wife with certain payment or compensation in exchange by
using the word talaq or khulu’. Lastly Hanbali, dissolution of marriage by wife with compensation
using specific word of khulu with a purpose of releasing herself from her husband.In
Al-Baqarah 2 : 229 –If you fear that they cannot keep within the limits of Allah, there is no
blame on them for .According to Hadith, Khulu’ can even be granted even there is no fault by
the husband. This is because, Thabit is ugly and Jamilah might be unable to keep the limit of
Syariah

There are few conditions for Khulu’ which are subsistence of marriage where there must be a
valid subsisting marriage and not fasid or batil. It is immaterial whether consummated or not.
Not only that, the proposal and acceptance where there must be a proposal by either parties or
can be made by a third party persuading the husband. During the proposal, the consideration
must be mentioned. Acceptance can be made expressly or impliedly. Acceptance must be made
during the Majlis for Khulu to be effective. However, some jurists say that acceptance can be
made within reasonable time. If a proposal is made by the wife, she can withdraw the proposal
before the husband accepts it. But if the proposal is by the husband, he cannot withdraw till the
wife refuses or agrees to accept. As soon as the proposal is made and accepted, Khulu is
effective. It is immaterial whether consideration is paid or not.

Other than that, expression or language by general rule which can use any language as long as
understand the meaning of khulu'. According to Hanafi, instead of Khulu’, can use
Mufaraqah,Mubaraah. Meanwhile Shafie & Hanbali, Khulu is invalid by explicit or implicit words
of talaq provided the intention is khulu’, regardless of what language is used.

Applying to the above principles, Salmi may apply for khulu’ if her situation fulfilled the
conditions. Firstly, marriage between Salmi and Dahrun is a valid subsisting marriage. Next,
Salmi must propose to be divorce according to khulu’ to Dahrun. Besides that, khulu’ can be
expressed by Salmi using any language she wants, as long as Dahrun understands the
meaning of khulu’.

In conclusion, Salmi may ask for khulu’ to Dahrun and if it is accepted she must pay back the
“mas kahwin” given by Dahrun.

Issue: Whether Salmi can terminate her marriage through Fasakh.

Fasakh which is derived from the word fasakha, means annul, rescind or abrogate. Section 2 of
Islamic Family Law (Federal Territory) Act 1984 defines fasakh as the annulment of a
marriage by reason of any circumstance permitted by Islamic Law in accordance with Section
52. According to An-Nisa (2:128), “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 settlement is best even though men’s souls are swayed by greed.”Al-Baqarah (2:231)
stated “when you divorce women and they fulfill the terms of their iddah,either take them back
on equitable terms or set them free on equitable terms. But do not take them back to injure them
or to take undue advantage if anyone does that he wrongs his own soul". Based on hadith
reported by Abu Hurairah, it stated that Prophet SAW said regarding a person who does not
possess anything to enable him to give maintenance to his wife, they can both dissolve their
marriage.

The possible grounds to obtain fasakh is provided under Section 52. The first possible ground is
failure of the husband to provide maintenance. Section 52(1)(b) of IFLA 1984 stated that a
woman or man shall be entitled to obtain an order for fasakh on the ground that the husband
has neglected or failed to provide for her maintenance for a period of three months. In Sakdiah
v Ahmad, although the husband is poor, the maintenance for the wife is wajib. The Court held
that the wife can either be patient or apply for fasakh. In Siti Rohani v Mohd Sazali,the court
held that, based on Mazhab Shafie, proof of the husband being unable to pay maintenance is
required. Judge adjourned the case for a month to enable H to pay 1 month’s maintenance toW.
Husband paid RM300 as maintenance and the application was dismissed. On appeal,Syariah
Appeal Court decreed fasakh for dissolution of marriage on ground that H had neglected or
failed to provide maintenance for her for a period of 3 months. In Ainun bt Abd Majid v
Mohamad Adam bin Bakar, the plaintiff filed an application for fasakh on the ground that the
defendant failed to provide maintenance to her and their children for a continuous period
exceeding three months. The court granted the application and held that failure to provide
maintenance for a continuous or prolonged period would amount to cruelty which can cause the
wife emotional stress. When the failure to provide maintenance is established, then cruelty by
conduct is automatically established.

Other than that, another ground for fasakh according to Section 52 of the IFLA 1984 is if a
husband treats his wife with cruelty. In the case of Hasnah lwn Zaaba, the wife applied for
fasakh because husband habitually assaulted her and made her life miserable by cruelty and
conduct. The court granted fasakh in this case.

Applying the above principles, Salmi may apply for fasakh to terminate her marriage with
Dahrun, but she is required to prove that her circumstances fall within the ambit of Section 52
of IFLA 1984. Pursuant to Surah An-Nisa (2:128), Islam allows Salmi, as a wife who fears of
desertion of her husband, to search for a settlement which can offer the betterment of her life.By
virtue of hadith reported by Abu Hurairah, Salmi may dissolve her marriage by way of fasakh
when she found that Dahrun had failed to pay maintenance for more than 3 months. Salmi may
apply for fasakh as pursuant to Section 2 of IFLA1984 because of such failure on Dahrun’s
part. In applying Section 52(1)(b) of IFLA 1984, Salmi may be entitled to obtain fasakh
because Dahrun has neglected her and failed to provide maintenance for a period which
exceeds three months, proven by fact that Dahrun has not returned to Salmi and their children
in 4 months. It was also stated that Salmi had been taking care of the bills at home and the
children’s needs. In applying Sakdiah v Ahmad, it is ‘wajib’ on part of Dahrun to provide
maintenance, even though he is poor and financially unstable, he must give such maintenance.
As he failed to do so, Salmi mayapply for fasakh. Applying Siti Rohani v Mohd Sazali, court
may grant fasakh decree for Salmi on the basis that her husband, Dahrun has neglected her for
a period of 4 months. Applying Ainun bt Abd Majid v Mohamad Adam bin Bakar, Salmi’s
claim for fasakh may be successfully granted by the court because looking at the circumstances
of the case, failure of Dahrun in providing maintenance can logically cause a huge amount
amount of cruelty which may resulting to Salmi’s emotional stress. Secondly, in applying
Hasnah lwn Zaaba, Salmi was beaten by Dahrun multiple times and as such, has also
contributed to her life miserably.

In conclusion, Salmi may terminate her marriage by way of fasakh, on 2 grounds under Section
52 of IFLA 1984, which are failure of Dahrun to provide maintenance and because Dahrun had
made her life miserable through cruelty and conduct.