THZA lwn. AAA [2021] SLRHU 15

Syariah High Court of Selangor (Shah Alam)

Review of the Reconciliation Committee Report

1.    The Applicant and the Respondent were married on 20 August 2006 in the state of Johor.   The Respondent filed for a divorce on 10 March 2021 at the Kuala Selangor Syariah Subordinate Court.

2.    On 20 April 2021, during the case proceedings, the Applicant disagreed with the divorce claim, while the Respondent remained adamant about continuing with it. The trial Judge directed the formation of a Reconciliation Committee and adjourned the case to 1 June 2021 to hear the report from the Reconciliation Committee.

3.    On 18 May 2021, a Reconciliation Committee session was conducted, chaired by an Islamic Affairs Officer, and attended by the parties and representatives of the parties.

4.    On 25 August 2021, both parties appeared before the trial Judge, and the Reconciliation Committee’s report conducted on 18 May 2021 was presented.  The trial Judge then found prolonged disputes and directed the case to be referred to hakam under Section 48 of the Islamic Family Law (State of Selangor) Enactment 2003 [Enactment No. 2 Of 2003].

5.    The Applicant is discontented with the finding of constant quarrels (shiqaq) by the trial Judge on the grounds that the trial Judge did not conduct an inquiry proceeding as per Rule 3(3) of the Hakam (State of Selangor) Rules 2014 [Sel. P.U. 5] to determine whether constant quarrels exist before issuing further directions. The Applicant applied for a review and subsequently requested the High Court to revoke the decision by the trial judge.

1.    Whether the trial Judge had erred in determining the finding of constant quarrels (shiqaq) without first conducting an inquiry as stipulated in the Hakam (State of Selangor) Rules 2014?

1.    Whether the trial Judge had erred in determining the finding of constant quarrels (shiqaq) without first conducting an inquiry as stipulated in the Hakam (State of Selangor) Rules 2014?

(a)   In this case, the Court referred to Sections 47(5) to (15) of [Enactment No. 2 Of 2003] regarding the provisions related to the Reconciliation Committee.

(b)   On 25 August 2021, the trial Judge issued a finding of constant quarrels (shiqaq) based on the Reconciliation Committee’s report and further inquiries made against the Applicant and Respondent.  Subsequently, the trial Judge adjourned the case to 15 September 2021 for the parties to appoint their respective arbitrators for the purpose of the first Hakam session.

(c)   The Court found that the Reconciliation Committee Report was received by the Court on 9 August 2021 regarding the reconciliation process conducted on 18 May 2021.  The report clearly stated that the Respondent was determined to pursue the divorce claim for the following reasons:

(i)            The Applicant was negligent in fulfilling his duties as a husband throughout the marriage;

(ii)           The Respondent managed the household affairs alone, including family finances, children’s school expenses, and so on;

(iii)          The Applicant did not provide assistance and was negligent in his responsibilities; and

(iv)         The Applicant and the Respondent had a child with a disability; Cerebral Palsy, that requires continuous treatment and support from the family, but the Applicant disregarded the matter and always portrays himself as a single.

(d)   During the Reconciliation Committee session, the Applicant, on the contrary, denied neglecting maintenance and requested a second chance to mend their marriage, further disagreeing with the Respondent’s divorce claim.

(e)   Further to that, the Court also found that the Reconciliation Committee report issued by the Religious Office itself suggested that the couple failed to reconcile, and the case was referred back to the Court.

(f)     The issue regarding the finding of constant quarrels (shiqaq) was also provided for under Subsection 48(1) Enactment No 2 of 2003 which provides-

“If satisfied that there are constant quarrels (shiqaq) between the parties to a marriage, the Court may appoint in accordance with Hukum Syarak two arbitrators or Hakam to act for the husband and wife respectively”.

(g)   In conclusion, the Court held that based on the provisions of subsection 48(1) of the [Enactment No. 2 Of 2003] and the Practice Direction as issued by Syariah Judiciary Department Malaysia, the appointment of an arbitrator can only be made after the Court is satisfied that constant quarrels (shiqaq)exist and has determined the presence of such quarrels. If no finding of constant quarrels (shiqaq) is made, the appointment of an arbitrator is invalid and not in compliance with the requirements of the same provision.

(h)    In summary, the Court acknowledged the Subordinate Court Judge’s discretion to assess the presence of irreconcilable differences based on the report from the Religious Affairs Officer.  The report, compiled after considering statements from both parties and their representatives during the Reconciliation Committee session, was deemed comprehensive.  It was considered by the Court as evidence of the ongoing occurrence of irreconcilable differences between the parties.

(i)     The Court further referred to Section 47(14) of the Enactment No. 2 Of 2003, wherein if the Reconciliation Committee’s report suggests that the couple cannot be reconciled, the subsequent process is as follows:

“Where the committee submits to the Court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the Court shall advise the husband to pronounce one talaq before the Court, and where the Court is unable to procure the presence of the husband before the Court to pronounce one talaq the Court shall refer the case to the Hakam for action according to section 48”.

(j)     The Syariah Subordinate Court judge found that there was constant quarrel (shiqaq) between the Applicant and the Respondent after being satisfied with the Reconciliation Committee’s report, which had indicated a failure to reconcile the parties and the Applicant’s refusal to divorce the Respondent. Accordingly, the Court held that there are no specific procedures for conducting an investigation to determine shiqaq.  However, if the Subordinate Syariah Court judge is satisfied with the Reconciliation Committee’s report, that clearly reflects the occurrence of shiqaq between the parties, then the judge is at his discretion to make his finding of such shiqaq.

(k)    The Court also held that there was no error made by the Subordinate Syariah Court judge for his finding about the existence of irreconcilable differences (shiqaq).  The Court was satisfied that the trial proceedings was conducted by the trial judge in accordance with Sections 47 and 48 of the Enactment No.2 of 2003 and the Hakam Rules (State of Selangor) 2014.

Key Take Away

   1.          Hakam, or arbitration, is an essential legal procedure in Islamic family law designed to resolve significant marital conflicts when reconciliation is unsuccessful. Pursuant to Section 48 of Enactment No.2 of 2003, upon establishing the presence of constant quarrels (shiqaq), the Court is then authorized to refer the matter to hakam.   In this process, arbitrators appointed by both parties strive to mediate and resolve the dispute.  This mechanism ensures a comprehensive and equitable analysis of marital issues, aiming to either facilitate reconciliation or, where reconciliation is not possible, to effectuate a fair dissolution of the marriage.