RMZ v SSAR

Shariah Subordinate Court (Selangor)

Divorce

1. The Plaintiff (the husband) and the Defendant (the wife) were solemnised on 7.8.2018 in Songkhla, Thailand and were blessed with a son.

2. The Plaintiff in his claims stated that he has divorced the Defendant outside of the Syariah Court on 1.12.2019 at 11 pm.

3.  The divorce pronouncement was sent by the Plaintiff through the short message system (“SMS”)-

“Aku RMZ dengan pemikiran yang waras menceraikan kamu SSAR”.

Issue

1. Whether the divorce pronouncement sent  by the Plaintiff via SMS has fulfilled all the elements of talaq?

(a) The husband

(i) The marriage of the Plaintiff and the Defendant is a valid marriage  as per Salinan Sah Daftar Perkahwinan Luar Negeri (Negeri Perak). Thus, the Plaitiff is a lawful husband to the Defendant.

(ii)  The husband who pronounced talaq must be mukallaf.  In the book of Mughni Muhtaj, Volume 4, page 479 it states that-

“It is required that the person (husband) who pronounces talaq is a mukallaf except in the case of a person who is drunk (unintentionally)”.

(iii) Therefore, based on the above conditions the Court is satisfied that the first element has been fulfilled.

(b) The words of talaq and the intention of divorce

(i)  The words of talaq is divided into two which are sarih (clear) and kinayah (vague).

(ii)  For sarih talaq, there are three words when enunciated then the talaq is valid, which are divorce, separate and letting go.

(iii)  The element of intention need not be present during the pronouncement of sarih talaq.  However for kinayah, it will depends on the intention of the husband.

(iv) Further, the husband must be able to fully understand the meaning of talaq where it indicates the separation between husband and wife or to dissolve the marriage bond, then it shall be accepted.

(v)  In this case, the Court is satisfied that the pronouncement made by the Plaintiff through the SMS was valid since it was the Plaintiff himself who wrote and send the message to the Defendant signifying that he is divorcing the Defendant.

(vi) The Court referred to the Muzakarah Decision of the 59th Fatwa Committee of the National Council for Islamic Religious Affairs of Malaysia which was convened on 27 August 2003 and discussed issues related to divorce through SMS. Muzakarah has decided that-

“(a) Divorce in the form of a clear written form from the husband addressed to his wife specifically such as through facsimile, SMS, e-mail and so on is a talak by way of malice and it is valid if it is accompanied by intention.

(b) All divorces must be submitted to the Syariah Court to establish the divorce.

(c)Divorce performed using modern communication tools is a method of divorce that does not comply with the divorce etiquette outlined by shariah”.

(c)  Mahal Talaq

(i)  For this element, the talaq must be clearly referred to the wife.

(ii) The divorce pronunciation uttered by the Plaintiff in this case which is “kamu” was referred directly to the Defendant.

(d) The territory of the husband

(i)  The talaq is imposed by the authority of the husband (the wife is still in the husband’s territory).

(ii)  In this regard, the court is satisfied that based on the Plaintiff and Defendant’s iqrar that both of them have never been divorced.

(iii) This means that when the talaq was pronounced, the Defendant was still the lawful wife of the Plaintiff.

(iv)  Therefore, the Defendant is still in the ‘power’ (territory) of the Plaintiff as a husband.

1. The Court held that all of the elements of talaq as required by Hukum Syarak have been fulfilled and the pronouncement of talaq by the Plaintiff to the Defendant is valid.

(a) soreh; and

(b) kinayah

2. As for the talaq pronounced via SMS or other methods is regarded as talaq kinayah and therefore the intention of the husband will  be questioned.  The talaq is valid if the husband has planned to divorce his wife; but, if he didn’t, the talaq is invalid.

3. With regards to the divorce pronounced outside of the Court, the Islamic Family Law (State of Selangor) Enactment 2003 provides that-

“Section 125 

  Divorce outside Court and without the Court’s permission-

Any man who divorces his wife by the pronouncement of talaq in any form outside the Court and without the permission of the Court commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment”.