Azijah bt Othman v Draman bin Dollah [2013] 2 SHLR 77

AZIJAH BT OTHMAN v DRAMAN BIN DOLLAH [2013] 2 SHLR 77

Syariah High Court (Kuala Terengganu)

Fasakh

Facts

1. The Plaintiff and the Defendant were married on 2 October 1984 in Kuala Terengganu with RM 2,000.00 as mas kahwin.

2. During the early years of their marriage, the parties had divorced twice, the first being on 7January 1992.  Nevertheless, they had reconciled their divorce on the same day.

3. The Plaintiff alleged that the Defendant had failed to discharge his responsibilities as a husband and the Defendant had been cruel towards her and often directed insulting words to her.

4. The Plaintiff then filed for fasakh.

Issue

1. Whether the Plaintiff is entitled to obtain an order for dissolution of marriage (fasakh)?

Ratios 1.  Fasakh

(a) According to hukum syarak, fasakh nikah (annulment of marriage) is permitted on the ground to protect the wife from any danger or harm.

(b) In this case, the Plaintiff seek for fasakh since the current marriage with the Defendat had caused harm to the Plaintiff.  The Plaintiff claimed that the Defendant failed to carry out his responsibilities towards the family, being abusive and cheated on the Plaintiff.

(c)  Although marriage can be dissolved at any time, Islam does not encourage the dissolution of marriage.  This is in accordance with Surah Al-Baqarah verse 23-

“and when you divorce women and they have fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending to harm, to transgress.  And do not take the verse of Allah in jest….”

(d) Section 49 of the Administration of Family Law Enactment 1985 provides the grounds to obtain an order for fasakh, namely-

“(h) that the husband treats her with cruelty, that is to say, inter alia-

 (i)  habitually assaults her or makes her life miserable by cruelty of conduct; or

 (ii)  associates with women of evil reputes or leads what, according or according to Hukum Syara’ is an infamous life; or

 (iii)  attempts to force her to lead an immoral life; or

 (iv)  disposes of her property or prevents her from exercising her rights under Hukum Syara’ over it; or

 (v)  obstructs her in the observance or religious obligations; or

 (vi)  if he has more wives than one, does not treat her equitability in accordance with the requirements of Hukum Syara’;”

(e) The Plaintiff has proven to the Court that the Defendant had befriended another woman without a valid marriage and thus making the Defendant’s behavior despicable according to hukum syarak.

(f) As for this, the Plaintiff tendered copies of the obscene short message system (“SMS”) which were sent to the Defendant by a woman describing herself as ‘bb’.

(g) The Court held that the obscene SMS are evidence the Defendant befriended another woman without a valid marriage and sought happiness and satisfaction from another woman had caused distress to the Plaintiff.

(h) Therefore, based on the evidence presented by the Plaintiff, the Court allowed the application of fasakh made by the Plaintiff.

Decision 1.  The Plaintiff’s fasakh application was allowed by the Court.

2.  The costs for the proceeding to be borne by the parties.

Key Take Away

1. In genral, a husband is empowered with the right to dissolve marriage by way of talaq.

2. However, Islam grants the women right to dissolve a marriage through khulu’ fasakh and ta’liq in which require evidence to be proved in court.  This is accordance with Surah An-Nisa’ verse 128-

“and if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them- and settlement is the best.  And present in [human] souls is stinginess.  But If you do good and fear Allah – then indeed Allah is ever, with what you do, acquainted”.

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