DOMESTIC VIOLENCE

FASAKH

PBL PROBLEM

• Azhar is Nur Najah‟s husband

• Nur Najah is living at 22, Jalan Anggerik, Cheras Kuala Lumpur

• Nur Najah has two children; Asyraf, 5 years old and Aisyah, 3 years old

• Nur Najah is working as a teacher at Sekolah Kebangsaan Sri Cheras

• Azhar is working at a private company as electrical technician

• They were happy at early stage of marriage

• After few years, Azhar always come home late

• Azhar had not performed solat and fasting during Ramadhan

• Nur Najah found out that Azhar involved in a drug addicted group in their home area

• Azhar becomes violent to Nur Najah and their children and had assaulted and caused hurt

to them

• Nur Najah suspected that Azhar has suffered HIV

• Nur Najah is now living in fear of her husband

DOMESTIC VIOLENCE

ISSUES

• What is fasakh and domestic violence?

• Whether assault and hurting the wife and/or children

will amount to domestic violence?

DEFINITION OF DOMESTIC VIOLENCE

1. Habitually assaulting the wife or making her life miserable by cruelty of conduct

2. Associating with women of evil repute or leading to what, according to hokum syara‟, is an infamous life

3. Attempting to force the wife to lead an immoral life

4. Disposing the wife‟s property or preventing her from exercising her legal rights over it.

5. Obstructing the wife in the observance of her religious obligations or practice

6. If the husband has more wives than 1, he does not treat the wife equality in accordance with the requirements of hokum syara‟

DOMESTIC VIOLENCE IN ISLAM

Al-Quran

• “The nobler among you in the sight of God is the more righteous among you”

(Quran, 49:13)

• “Retain them on kindness or release them in kindness. But do not retain

them to their hurt so that you transgress (the limits). If anyone does he

wrongs his own soul. Do not take God‟s instruction as a jest.” (Quran, 2:231)

Hadith

• It is narrated that the Prophet Muhammad (pbuh) said, “The most perfect of

the believers in belief is the best of them in character. The best of you are

the best to their women. And in another tradition, “The best among you are

those who are kindest to their wives.”

AUTHORITY IN DOMESTIC VIOLENCE:

SECTION 127 IFLA &

SECTION 2 DOMESTIC VIOLENCE ACT

SECTION 127 - ILL-TREATMENT OF WIFE: ISLAMIC

FAMILY LAW (FEDERAL TERRITORIES) 1984

1

• who ill-treats his wife

• or cheats his wife of her property

2 • commits an offence

3

• fine not exceeding one thousand ringgit

• or with imprisonment not exceeding six months

• or both.

…CTD‟

• (2) The Court may as an additional order direct the man

or woman who has been convicted under subsection (1)

to COMPENSATE the wife or husband who has been

cheated of her or his property, as the case may be.

SECTION 2 – DOMESTIC VIOLENCE ACT 1994

TYPES OF DOMESTIC VIOLENCE

causing a child to suffer

delusions by using any

intoxicating or any

substance

causing mischief or

destruction or damage to

property to cause distress or

annoyance to the victim

causing physical injury

causing psychological

abuse

by force or threat to

engage in any conduct

or act (sexual)

causing the victim to suffer

delusions by using any

intoxicating or any

substance

confining or detaining the

victim

Placing the victim in fear

of physical injury;

DOMESTIC VIOLENCE OCCURRED WHEN:

• a person made an offence, whether by himself or through a third

party, against―

(i) his or her spouse;

(ii) his or her former spouse;

(iii)a child;

(iv) an incapacitated adult; or

(v) any other member of the family;

CASE: ZAKHLINA BT KHALID V NOASMADI BIN

ABDULLAH [2013]3 SHLR

• Issues

• Whether the plaintiff entitled to divorce on the ground of cruelty of wife

• Facts of the case:

1. The parties were married on May 11,1995 and registered in Kuala Terengganu

2. The plaintiff claimed fasakh divorce as the defendant used to hurt (darar) her

3. The plaintiff alleged that the defendant was having an affair with another woman

4. The defendant however urged this court to dismiss the plaintiff’s application from divorce

Held

The court allowed the P’s claim

• Fasakh divorce according to Islamic is intended to curb harm(darar) to the wife.

• It is not the purpose of marriage in Islam to force the parties to live in misery or cruelty in a marriage that they disliked.

Administration of Islamic Family Law (Terengganu) Enactment 1985

• Section 2:

• definiton of fasakh,in accordance with Section 49

• Section 49 (1)(h):

• a woman married in accordance with Hukum Syara’ shall be entitled to obtain an order for fasakh on the ground of cruelty,that the husband habitually assaults her or makes her life miserable by cruelty of conduct.

FASAKH

ISSUES

• What is fasakh and domestic violence?

• What are the grounds provided for someone to claim

for fasakh?

DEFINITION OF FASAKH

• It means the annulment or dissolution of a marriage by

reason of any circumstance permitted by Islamic law

and relevant statutory provisions.

BASIS OF FASAKH

• Quran:

Al- Baqarah: 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.”

An-Nisa‟: Verse 35:

“And if you fear dissension between the two, send an

arbitrator from his people and an arbitrator from her

people. If they both desire reconciliation, Allah will cause

it between them. Indeed, Allah is ever Knowing and

Acquainted [with all things].”

• Hadith

لال رسول هللا عليه وسلم فىالرجل ال : عن ابى هريرة رضى هللا عنه لال

(رواه الدارلطنى والبيهمى)يجد ما ينفك على امرأته يفرق بينهما

From Abu Hurairah r.a. Rasulullah sallalallahu „alaihi wasallam reported on an act when a

husband fails to give necessities or nafkah toward his wife and families without any

reason accordance to hukum syarak, then it is allowed for the dissolution of marriage to

take place.

Fasakh has also has been accepted as a way to dissolve a marriage based on the

principles contained in the hadith of the Prophet (peace and blessings be upon him),

which stated:

والضرارال ضرر

Do not inflict injury nor repay one injury with another

AUTHORITY IN FASAKH:

SECTION 2 & 52 IFLA &

OTHER PROVISIONS

SECTION 2 IFLA

• “Darar syarie” means harm, according to what is

normally recognized by Islamic Law, affecting a wife in

respect of religion, life, body, mind, dignity and

property.

SECTION 52 IFLA

• A woman or man, as the case may be, married in accordance with

Hukum Syarak, shall be entitled to obtain an order for the dissolution

of marriage or fasakh on any one or more of the following grounds,

namely –

• (b) That the husband has neglected or failed to provide the

maintenance for a period of three months.

• (h) That the husband or wife treats her or him, as the case may

be, with cruelty, that is to say:

(i) habitually assault her or him or makes her or his life

miserable by cruelty of conduct

OTHER PROVISIONS

• Clause 27, the Law Code of Malacca, the reasons for

dissolution of marriage through fasakh was allocated.

• Islamic Administration Enactment for all states (e.g. Section

123, Kedah Islamic Administration Enactment 1962, Section 49,

Perak Islamic Family Law Enactment, Kelantan Islamic Family

Law Enactment)

SCHOLAR VIEWS

• In the Hanafi sect, a wife can apply to dissolve her marriage through

fasakh only when she can prove to the Court that her husband is

incapable of consummating the marriage. Marghinani in al-Hidayah

stated only three diseases which are sexual impotence, penis

decapitation and the disconnection of the two testicles 10.This

means that in the Hanafi sect, a wife may not request fasakh for

other than the stated reasons even if the husband has vitiligo or

leprosy.

• If a wife was married at a young age (before puberty) by her wali

mujbir, she has the right to seek fasakh upon reaching puberty. This

fasakh is known as khiyar al-bulugh (option of puberty).

However,fasakh because of khiyar al-bulugh is not allowed by the

Shafi‟I and Maliki sects.

• The concept of husband with disease according to the Maliki, Shafi‟e

and Hanbali sects is relatively wide as it includes all diseases such as

leprosy and vitiligo. Their principle in this matter is if the

embarrassment or illness suffered by the husband affect the

relationship between the husband and wife, or can be transmitted to

the wife and the fetus, then the wife may apply for fasakh.

• Apart from the reasons above, the inability of the husband to pay

for provision (nafkah), missing or imprisoned are also accepted.

• However, the Maliki and Hanbali sects have added one more

reason to apply for fasakh which is occurrence of harm in the

marriage.

• Harm being meant here refers to five items which are harmful to

the

• religion, self, race, wealth, and aqal (dignity).

CASE: HAIRUN MOHD SHARIFF V. OMAR

MOHD NOR [2004] CLJ (SYA) 75

Fact :

• This was an application by the appellant to dissolve her marriage by

way of fasakh pursuant to s. 52(1) of the Selangor Islamic Family

Law Enactment 1984 ('Enactment') on the grounds that her husband

('the respondent') had assaulted and was cruel to her.

• The learned judge acknowledged that the injuries so inflicted

amounted to cruelty in syarak, but opined nonetheless that that was

not proof that the appellant had been "habitually assaulted" as

required by s. 52(1)(h) of the Enactment.

• The appellant appealed and argued that the trial judge was wrong in

refusing her application for fasakh. The appellant further argued that

the learned judge had:

(i) failed to properly construe the phrase 'habitually assaults';

(ii) failed to consider that the respondent had given a written

undertaking not to further assault the appellant, but had reneged on

his words.

• Issues: -

Is the phrase ‘habitually assaults’ constitute domestic violence?

Whether the marriage can be annulled by fasakh?

• Judgement:

In the circumstances, the phrase 'habitually assaults' is only relevant to cases of mental cruelty, such as injuring one's inner feelings, which only arises when the same is being repeated over time, thereby necessitating the wife to prove the 'habitual' act. This is not an issue in the present appeal as the cruelty that arose was physical in nature. When cruelty is physical in nature, the act of assaulting, even if not habitual, may suffice to prove cruelty against a wife.

The previous decision dismissing the appellant's application upon the given grounds had clearly contravened s. 52(1)(h) of the Enactment.

• Held: The application for fasakh allowed

CONCLUSION

• According to section 2 & 52 IFLA, Najah can apply for fasakh

to divorce with Azhar.

• The penalties towards Azhar for committing the ill-treat is

stipulated under section 127 IFLA.