MAAMA V WABR [2020] SLRHU 9

Syariah High Court of Selangor (Shah Alam)

Appeal for Validation of Divorce Pronouncement

(a)    The Court deemed the pronouncement of talaq made by the Appellant via WhatsApp on 1 May 2017, at 12:35 PM as valid and thus rendered the talaq effective;

(b)     Henceforth, from that date and time, the Respondent was divorced by triple talaq, totalling three talaqs at once, known as talaq bain kubra, and the Defendant must observe the iddah until the birth of the child; and

(c)     The divorce shall be registered at the Islamic Religious Office of the Sepang District, and the original Marriage Certificate shall be invalidated.

2.    The Appellant, in the grounds of appeal, presented the following reasons:

(a)         The Learned Judge of the Syariah Subordinate Court in Sepang had erred in fact and the Syariah Law by failing to consider the situation and circumstances of the Plaintiff who was unaware of the consequences of the uttered number of divorces.

(b)         The Learned Judge of the Syariah Subordinate Court in Sepang had erred in law and the Syariah Law by failing to consider the consequences of the triple divorce on the interests that would be faced by the parties involved in pronouncing the triple divorce.

(c)          The Learned Judge of the Syariah Subordinate Court in Sepang had erred in fact and law by solely relying on one opinion of the scholars without considering other opinions of other scholars to ensure the parties’ issues, especially the effects of pronouncing the triple divorce, are adequately addressed.

(d)         The learned Judge of the Syariah Subordinate Court in Sepang had erred in fact, law, and procedure by failing to consider the current circumstances and the public interest resulting from the pronouncement.

(a)         The Appellant pronounced divorce to the Respondent through a message conveyed via the WhatsApp, the statement was

“abang harap ayang terima semua ni, dengan ini abang ceraikan ayang secara langsung, jadi tak perlu ayang mai sini…abang ceraikan ayang dengan talak tiga”.

(b)   The Appellant argued that he had not denied pronouncing the divorce statement on 1 May 2017, around 12:35 PM at USM Engineering Campus, Nibong Tebal, Pulau Pinang, via WhatsApp.  However, the Appellant had only questioned the number of divorce as decided by the presiding judge.  In his defence, the Appellant asserted that the deficiencies and weaknesses in the incomplete and inadequate investigation conducted by the same Judge regarding the Appellant’s intention to divorce and the “number of divorces” at the time of pronouncing the divorce.

(c)   The Court then referred to the case of Mohd Zuhdi Nawawi lwn. Norsharifah Sharif [2004] 17(2) JH 175. There were three opinions or views among the fuqaha’ regarding pronouncing triple talaq at once with a single statement, namely-

(i)            The first opinion: The Zaidi Syiah, some of the Zahiriyyah scholars, and Ibn Ishak, Ibn Taimiyyah, and Ibn Qayyim held the view that only one talaq is issued and the statement does not have any effect. The laws of Egypt and Syria have adopted this opinion. Subsequently, the Fatwa Committee convened in Riyadh changed its stance from adhering to this opinion and instead opted for the majority view that state three talaq are meant as the utterance of three statements at once.

(ii)           The second opinion: The majority opinion among the imams of the four Sunni schools and the Zahiriyyah is that all three talaqs are pronounced. This is based on the narrations from most of the Companions, including the Rightly Guided Caliphs, except Abu Bakr and the four Abdullahs (Abdullah ibn Amr, Abdullah ibn Umar, Abdullah ibn Abbas, and Abdullah ibn Masud), Abu Hurairah, and others. It is also based on the narrations from most of the Tabi’in.

(iii)          The third opinion: The Syiah Imamiyyah belief is that divorcing a wife with three divorces pronounced at once does not result in divorce at all.

(d)   The Court also referred to the book Mughni Muhtaj, volume 4, page 479, in which explained that if a husband declares that he does not intend to divorce, the statement remains valid if such statement is clear and explicit. However, in cases of ambiguous statements requiring intention to ensure divorce, it heavily relies on the husband’s intention.  If the husband’s intention pertains to something other than divorce, the ambiguous statement uttered does not result in divorce, even if the sentence structure is complete.

(e)   The Court held that considering the Appellant’s state of mind when uttering the divorce, it was made in a state of anger and pressure due to the circumstances. In an attempt to alleviate this pressure, the Appellant unconsciously uttered the three divorces via WhatsApp without realizing the implication of the number of divorces pronounced. The Court, in addressing this issue, once again emphasized that the Appellant’s state of anger, resentment, dissatisfaction, and lack of composure that suddenly occurred on the day of the incident can only be interpreted based on the testimony of witnesses present in that situation.

(f)     The Court also held that the Syariah Subordinate Court Judge failed to consider crucial factors as provided in Hukum Syarak and to conduct a proper investigation into the main elements as argued by the Appellant before ruling on the nullification of the triple divorce against the Respondent. The Syariah Subordinate Court Judge also neglected to conduct a thorough examination and consideration of the Appellant’s mental state in determining the number of divorces issued, as well as failed to examine and consider all facts and allegations presented by the Appellant and the testimony of the Respondent. Consequently, the divorce ruling has clearly affected to both the Appellant, Respondent, their child, and respective families. The occurrence and ruling of the divorce have raised to the Appellant, leading to a sense of dissatisfaction with the divorce order.

(g)   The Court recognized that the genuine intentions of the Appellant and Respondent to reconcile as husband and wife for the sake of preserving their family’s welfare.  Having only recently entered into marriage and still holding strong mutual affection, the Court noted that divorce through threefold talaq would likely cause substantial harm to numerous parties, including both the Appellant and Respondent.

2.        The Court held that the decision of the Syariah Lower Court of Sepang in Case No: 10006-054-0561-2019 dated 17 October 2019, is set aside and annulled.

3.        The number of talaq pronounced is one talaq.

Key Take Away