Fasakh

FASAKH

INTRODUCTION

      The term fasakh in Arabic language means to annul or rescind.  Whereas, under the Islamic family law, fasakh refers to the dissolution of marriage by court order between a husband and his wife on permissible grounds.  The definition of fasakh is also provided for in Section 2 of the Islamic Family Law (Federal Territories) Act 1984 (“Act 303”)-

“fasakh means the annulment of a marriage by reason of any circumstance permitted by Islamic Law in accordance with section Section 52;”

     Generally, there is no specific provision regarding the dissolution of marriage by way of fasakh provided in the Quran.  Nevertheless, the permissibility of fasakh can be found in several verses of the Quran such as in Surah al-Baqarah: verse 231 where Allah said-

“When you divorce women and they have almost reached the end of their waiting period, either retain them honorably.  But do not retain them only to harm them or to take advantage of them.  Whoever does that surely wrongs his own soul. Do not take Allah’s revelations lightly.  Remember Allah’s favors upon you as well as the Book and wisdom, He has sent you guidance.  Be mindful of Allah, and know that Allah has perfect knowledge of all things“.

GROUNDS WHERE FASAKH ARE PERMITTED

Section 52 of Act 303 provides as follows:

“(1) A woman married in accordance with Hukum Syara’ shall be entitled to obtain an order for the dissolution of marriage or  fasakh on any one or more of the following grounds, i.e.—

(a) that the whereabouts of the husband have not be known for a period of more than one year;

(b) that the husband has neglected or fail to provide for her maintenace for a period of three months;

(c) that the husband has been sentenced to imprisonment of three years or more;

(d) that the husband has failed to perform, without reasonable cause, his marital obligations (nafkah batin) for a period of one year;

(e) that the husband was impotent at the time of marriage and remains so and she was not aware at the time of the marriage that he was impotent;

(f) that the husband has been insane for a period of two years or is suffering from leprosy or vitiligo or is suffering from a venereal disease in a communicable form;

(g) that she, having been given in marriage by her wali mujbir before she attained the age of baligh, repudiated the marriage before attaining the age of eighteen years, the marriage not having been consummated;

(h) that the husband treats her with cruelty, this 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 repute or leads what, 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 legal rights over it; or

(v) obstructs her in the observance of her religious or practice; or

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

(i) that even after the lapsed of four months the marriage has still not been consummated owing to the wilful refusal of the husband to consummate it;

(j) that she did not consent to the marriage or her consent was not valid, whether in consequence of duress, mistake, unsoundness of mind, or any other circumstances recognized by Hukum Syara’;

(k) that at the time of marriage she, though capable of giving a valid consent, was, whether continuously intermittently, a mentally disordered person within the meaning of the Mental Disorder Ordinance 1952 [Ord. 31 of 1952] in the case of the Federal Territory of Kuala Lumpur, or the Lunatics Ordinance [Sabah Cap. 74] in the case of Federal Territory of Labuan, and her mental disorder was of such a kind or to the extent as to render her unfit for marriage;

(k) any other reason recognized as valid for dissolution of marriages or fasakh under Hukum Syara’. “

 

WHO CAN APPLY FOR FASAKH

Under Section 52(1A) of Act 303, any party i.e., either the husband or wife may apply for fasakh in the Syariah Court which has the jurisdiction over such matter.  Section 52(1A) is as follows:

 

“Any person who married in accordance with Hukum Syara’ is entitled to an order for the dissolution of marriage or fasakh on the grounds that the wife is incapacitated which prevents sexual intercourse. “

 

EXAMPLES OF CASES

     In the case of Ainun binti Abd. Majid v Mohamad Adam bin Bakar (Summon No.: 10005-014-229-04), the Syariah Subordinate Court of Kajang, Selangor has granted the claim made by the Plaintiff, Ainun binti Abd. Majid for the dissolution of her marriage with the Defendant, Mohamad Adam bin Bakar through fasakh.  The Court in this case found that among two reasons alleged by the Plaintiff, are grounds accepted under Syariah law to enable a marriage to be dissolved.

            The grounds accepted by the Court are-

(a) the Defendant failed to provide the Plaintiff with the nafkah zahir for more than three consecutive months; and

(b) the Plaintiff was mentally abused over the past seven (7) years due to the Defendant’s attitude and temperament.

      The Court has examined the other claims made by the Plaintiff and found that the grounds do not falls within the requirements of Section 53 of Islamic Family Law (State of Selangor) Enactment 2003.  The reasons are as follows:

(a) The Defendant borrowed Plaintiff’s money for more than hundred thousand ringgit and has yet to pay that money owed to the Plaintiff. Nevertheless, the Court found that the Plaintiff has agreed to grant the loan to the Defendant as debt and the Court also accepted the Defendant’s claim that the Defendant was still allowed to pay the debt since there was no time frame set by the Plaintiff. Therefore, the Court rejected this ground for

(b) The Defendant often returned home late at night since he plays golf. The Defendant also likes to bet while playing golf and having fun with the woman caddies. The Plaintiff’s claim that this behavior is an emotional and mental torture for her. However, the Court found that the Defendant returned home late until 11-12 pm only for 2-3 times a week and given that the Plaintiff could not prove the effect of such an attitude as persecution, therefore this ground was rejected.  In fact, the Plaintiff also has failed to prove that the Defendant is indulged with female caddies.

(c) The Defendants likes to spend time with other women and get married without the knowledge of the Plaintiff. For this reason, the Court rejected the Plaintiff’s claim since she failed to prove her claim.

(d) The Defendant failed to perform his obligation to pray, except for Friday prayers. In this regard, the Court is of the opinion that prayer is a Muslim’s responsibility to Allah, and should not be used as a ground to dissolve a marriage.

 

THE EFFECT OF FASAKH ON MARRIAGE

The effect of the dissolution of marriage through fasakh is as follows:

(a) Marriage is dissolved;

(b) The couple cannot remarry each other except with new talaq, e. three (3) times of talaq;

(c) Fasakh does not reduce the number of talaq;

(d) If they remarry each other with a new akad, they will start with a new talaq which is three;

(e) The wife has the right to claim for arrears for maintenance, maintenance during iddah, maintenance for living expenses during iddah and mutaah.

 

CONCLUSION

            Fasakh is a way out for a marriage that brings harm to a married couple.  Although the process of obtaining a fasakh is an onerous and lengthy process, the parties must continue to strive to save themselves from a detrimental situation that will adversely affect themselves and their families.   This is as in the Fiqh method; “la darar wala dirar” which means no harm to oneself and not harmful to others.  In the context of fasakh, when a marriage causes more harm, then it is obligatory to eliminate the harm from continuing to happen.  In fact, it is obligatory for every Muslim to eliminate any harm to himself.  In the event any muslim couple reaches a dead end, then fasakh is permissible.  Wallahu’alam.

 

 

Prepared by,

Nur Syaheerah Razailani

Nurul Sarah Jasmina Zamri

Messrs Misyail Othman & Co

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