Z lwn. D [2021] SLRHU 23

Syariah High Court of Kuching (Samarahan)

Appeal Against the Confirmation of Talaq Pronouncement via WhatsApp.

1.    The Appellant and Respondent were married on 10 September 2012 and their marriage was registered at the Islamic Religious Office, Samarahan Division.

2.    On 14 December 2020, the Respondent filed for confirmation of divorce at Samarahan Syariah Subordinate Court. The application was based on the Appellant sending a text message via the WhatsApp application for the first time on the 11 December 2020 at 11:23 a.m., containing the pronouncement, “kali tok aku benar-benar cerai talak tiga dengan kau.” On 12 December 2020 at 3:05 p.m., the Appellant again sent a text message via WhatsApp to the Respondent with the pronouncement, “aku cerai talak tiga dengan kau.”.

3.    Based on the oral testimonies of both parties and the confession of the Appellant, the Syariah Subordinate Court ruled that talaq three (talaq bain kubra) had been pronounced upon the Respondent, taking into account the first pronouncement, and determined that the second pronouncement was considered as lagha (idle or void).

4.    Dissatisfied with the decision of the Syariah Subordinate Court, the Appellant filed an appeal to the Syariah High Court, providing several grounds for the appeal, namely:

i.              Factual Issue: The Court erroneously decided and found that talaq three was pronounced upon the Respondent solely based on the kinayah (indirect) pronouncement.

ii.             Error in Law and/or Fact: The Presiding Judge erred in law and/or fact when stating that the Appellant had the intention to divorce the Respondent when sending the WhatsApp message, “Kali tuk aku benar-benar cerai talak 3 dengan kau.”

iii.           Error in Law and/or Fact Regarding Intent: The Presiding Judge erred in law and/or fact by making his conclusion that the Appellant had the intention to divorce without obtaining a clear acknowledgement from the Appellant as to whether there was such an intention at the time of sending the WhatsApp message.

iv.           Failure to Directly Question the Appellant: The Presiding Judge erred in law and/or fact by failing to directly question the Appellant regarding his intention when sending the WhatsApp message to the Respondent. The matter of the Appellant’s intention in the Judgment was never raised or acknowledged by the Appellant.

v.            Misunderstanding the Appellant’s Explanation: The Presiding Judge erred in law and/or fact by failing to understand the Appellant’s testimony that the WhatsApp message was sent due to the Appellant’s frustration with the Respondent.

 

2.    Whether a pronouncement made via WhatsApp is categorized as a clear (Sorih) or indirect (Kinayah) pronouncement?

3.    Whether the Appellant had the clear intention to divorce the Respondent when sending the WhatsApp messages to the Respondent?

4.    Whether the Defendant was under the influence of drugs when making the pronouncement?

(a) The Court held that there are two key conditions relating to the pronouncement of talaq. The first condition pertained to the mutallaq (the husband), who was required to be mukallaf (legally accountable) under Islamic law. This was articulated in Al-Iqna’ (Volume 2, page 287), which stated:

“It was a condition for the person pronouncing talaq, even if with a lafaz taklik (conditional pronouncement), to be a mukallaf; talaq pronounced by a person who was not mukallaf was invalid. This was in accordance with the hadith: ‘The pen is lifted from three people: the insane person until he became sane, the sleeper until he woke, and the child until he reached puberty.’ An exception was made for a person who was intoxicated, in which case talaq pronounced by an intoxicated person was valid, as stated in the Raudhah.”

(b) The Court held that the Appellant, being a mukallaf (legally accountable), had the authority to pronounce talaq, provided the pronouncement was in accordance with Islamic law.  Additionally, the Court clarified that wilayah, or authority, grants the husband full power to divorce his wife without any external influence or coercion. In this case, the Court concluded that the Appellant exercised his full authority as a husband and that there was no evidence of any pressure or threats influencing his decision to divorce his wife.

2.    Whether a pronouncement made via WhatsApp is categorized as a clear (Sorih) or Indirect (Kinayah) Pronouncement?

(c)  Sighah is a fundamental element in the pronouncement of talaq, encompassing both the utterance of talaq by the husband (Appellant) and the intention (qasad or niat) to divorce. The Court has combined both elements due to their close relationship. In this case, the Respondent filed for confirmation of the divorce in the Syariah Lower Court of Samarahan, citing that the Appellant had sent two WhatsApp messages: the first on 11 December 2020 at 11:23 am with the phrase “kali tok aku benar-benar cerai talak tiga dengan kau,” and the second on 12 December 2020 at 3:05 pm, “aku cerai talak tiga dengan kau.”

(d) Upon reviewing the Appellant’s written words, their meaning is clear and unambiguous. However, according to Islamic law, talaq pronounced through writing is treated as a kinayah (figurative) talaq, which requires the husband’s intention for it to be valid. In Hashiah I’anat Al-Talibin (Juz 4, page 17), it is explained that a talaq pronounced with a kinayah phrase—one that contains both the meaning of divorce and another possible meaning—requires the intention of the husband at the time of uttering the phrase to be effective. This is further elaborated in the text, which specifies that the talaq only takes effect if the husband’s intention is present from the beginning of the utterance.

(e) Additionally, it is provided that if the husband does not have the intention to divorce the wife when making the utterance, the talaq will not be valid. The Court, upon reviewing the facts and considering Islamic jurisprudence, found that the Appellant’s utterances were indeed kinayah and required his intention to validate the talaq. This aligns with the views of the Shafi’i school of thought, which holds that written talaq is equivalent to oral talaq and requires the husband’s intention for it to be valid.

(f) Moreover, various Islamic legal sources, including Al-Fiqh ‘ala Al-Mazahib Al-Arba’ah (Juz 4, page 221), emphasize that a written talaq is valid only if accompanied by the husband’s intention. In line with the views of the Maliki school, the talaq becomes effective only if the husband is resolute in his intention to divorce when writing the words. If the husband is uncertain or seeking advice, the talaq does not take effect.

(g) The Court also referred to the Fatwa Committee of the National Council for Islamic Religious Affairs, where in its 55th session in July 2003, confirmed that written talaq, including through modern communication tools such as SMS, email, or WhatsApp, is considered kinayah and valid only if the husband’s intention is clear. The Court also held that the talaq in this case, communicated via WhatsApp, falls under kinayah and requires the Appellant’s clear intention to be valid. Therefore, the Court held that the talaq pronounced through these means was conditional upon the Appellant’s intention, under Hukum Syarak.

3.    Whether the Appellant had the clear intention to divorce the Respondent when sending the WhatsApp messages to the Respondent?

(h)  The Court held that intention (niat) is a crucial element in determining whether a talaq, especially one categorized as kinayah (figurative), is valid. The Judge must be satisfied that the person making the kinayah utterance had the intention to divorce at the time the utterance was made.

(i)    In this case, the Appellant challenged the decision in grounds 2 and 3 of the appeal, arguing that the Judge erred in law and/or fact by concluding that the Appellant had the intention to divorce without explicitly obtaining confirmation from the Appellant regarding his intention, and failing to ask him directly about his intent when sending the WhatsApp messages.

(j)    The messages in question were sent via SMS, with no denial from either party about the content of the messages. The Respondent acknowledged the clarity and understanding of the messages, confirming that they were indeed addressed to the Plaintiff. When questioned by the Judge about his intention to divorce, the Respondent clearly admitted that he intended to divorce the Plaintiff, as reflected in the text.

(k)  Upon reviewing the evidence, the Court found that the utterance contained the phrase of talaq three times. The Judge asked the Respondent three times whether he intended to divorce, and the Respondent confirmed his intention twice. The Court concluded that the Judge had fulfilled the requirements of Islamic law concerning the Appellant’s intention, as evidenced by the Appellant’s admission of his intent when sending the WhatsApp messages.

4.    Whether the Defendant was under the influence of drugs when making the pronouncement?

(l)    The Appellant asserted that the Trial Judge erred in law and/or fact by failing to understand the Appellant’s testimony that the WhatsApp messages was sent out of anger towards the Respondent. The Respondent testified that the cause was due to the Appellant being under the influence of drugs. Although the issue of drugs was not fully elaborated upon during the Appellant’s submissions, the Respondent argued that the Appellant was affected by drugs, was not in a rational state of mind, was in pain, and was hallucinating when sending the WhatsApp messages. The Respondent also claimed that the Appellant admitted to being irrational when writing the message, which contradicts the Trial Judge’s notes and judgment regarding the Appellant’s intention.

(m)  Concerning the drug influence issue, the Court referred to page 17, paragraph 26 of the Syariah Subordinate trial judge’s judgment. The Defendant (Appellant) clarified that there was no issue of being intoxicated by drugs, and clearly stated that he was aware and rational when sending the messages. This indicated that the utterance was made while he was fully aware and rational, with the requisite intention, making it valid under Islamic law.

(n)  Drugs are substances that impair the mental faculties of those who consume them. In this case, the Court referred to the opinion of Sheikh Shamsuddin Muhammad in the book Al-Iqna’ (Volume 2, p. 287) regarding the conditions for pronouncing talaq, which states that the person issuing the talaq must be mukallaf (legally accountable). Talaq is not valid if the person is not mukallaf, based on the hadith that states the pen is lifted from three categories of people: the insane until they regain their sanity, the sleeping until they wake, and the child until they reach maturity. However, in the case of intoxication, talaq is valid, as stated in the Raudhah. Therefore, the Court held that the issue of drugs was irrelevant in determining the validity or annulment of the talaq unless it could be proven that there was external coercion that forced the Appellant to the point of imminent danger to life had the drugs not been consumed.

1.    The Appellant’s appeal is dismissed; and

2.    The decision of the trial judge at Syariah Subordinate Court, is maintained.

3.    Any party dissatisfied with the decision may file a notice of appeal within 14 days.

1.    The Role of Intention (Niat): A central theme of the case was the importance of intention when pronouncing talaq. Even though the pronouncement was made through a written medium (WhatsApp), the court held that the husband’s intention (niyat) to divorce must be explicitly understood and clear for the talaq to take effect.

2.    Validity of Talaq via WhatsApp: The court affirmed that a talaq pronouncement made via WhatsApp is considered a kinayah (indirect) pronouncement, which requires the husband’s intention to be valid. The case clarified that talaq via digital communication, like WhatsApp, is valid only if accompanied by clear intention from the husband.