Subjek: Family Law (Muslim) Tahun: 2013 Semester 2 (2013/2014)

1. DOMESTIC VIOLENCE
FASAKH

3. PBL PROBLEM
• Azhar is Nur Najah‟s husband
• Nur Najah is living at 22, Jalan Anggerik, Cheras Kuala Lumpur
• Nur Najah has two children; Asyraf, 5 years old and Aisyah, 3 years old
• Nur Najah is working as a teacher at Sekolah Kebangsaan Sri Cheras
• Azhar is working at a private company as electrical technician
• They were happy at early stage of marriage
• After few years, Azhar always come home late
• Azhar had not performed solat and fasting during Ramadhan
• Nur Najah found out that Azhar involved in a drug addicted group in their home area
• Azhar becomes violent to Nur Najah and their children and had assaulted and caused hurt
to them
• Nur Najah suspected that Azhar has suffered HIV
• Nur Najah is now living in fear of her husband

4. DOMESTIC VIOLENCE

5. ISSUES
• What is fasakh and domestic violence?
• Whether assault and hurting the wife and/or children
will amount to domestic violence?

6. DEFINITION OF DOMESTIC VIOLENCE
1. Habitually assaulting the wife or making her life miserable by cruelty of
conduct
2. Associating with women of evil repute or leading to what, according to hokum
syara‟, is an infamous life
3. Attempting to force the wife to lead an immoral life
4. Disposing the wife‟s property or preventing her from exercising her legal
rights over it.
5. Obstructing the wife in the observance of her religious obligations or practice
6. If the husband has more wives than 1, he does not treat the wife equality in
accordance with the requirements of hokum syara‟

7. DOMESTIC VIOLENCE IN ISLAM
Al-Quran
• “The nobler among you in the sight of God is the more righteous among you”
(Quran, 49:13)
• “Retain them on kindness or release them in kindness. But do not retain
them to their hurt so that you transgress (the limits). If anyone does he
wrongs his own soul. Do not take God‟s instruction as a jest.” (Quran, 2:231)
Hadith
• It is narrated that the Prophet Muhammad (pbuh) said, “The most perfect of
the believers in belief is the best of them in character. The best of you are
the best to their women. And in another tradition, “The best among you are
those who are kindest to their wives.”

8. AUTHORITY IN DOMESTIC VIOLENCE:
SECTION 127 IFLA &
SECTION 2 DOMESTIC VIOLENCE ACT

9. SECTION 127 - ILL-TREATMENT OF WIFE: ISLAMIC
FAMILY LAW (FEDERAL TERRITORIES) 1984
1
• who ill-treats his wife
• or cheats his wife of her property
2
• commits an offence
3
• fine not exceeding one thousand ringgit
• or with imprisonment not exceeding six months
• or both.

10. …CTD‟
• (2) The Court may as an additional order direct the man
or woman who has been convicted under subsection (1)
to COMPENSATE the wife or husband who has been
cheated of her or his property, as the case may be.

11. SECTION 2 – DOMESTIC VIOLENCE ACT 1994
TYPES OF DOMESTIC VIOLENCE
causing a child to suffer
delusions by using any
intoxicating or any
substance
causing mischief or
destruction or damage to
property to cause distress or
annoyance to the victim
causing physical injury
causing psychological
abuse
by force or threat to
engage in any conduct
or act (sexual)
causing the victim to suffer
delusions by using any
intoxicating or any
substance
confining or detaining the
victim
Placing the victim in fear
of physical injury;

12. DOMESTIC VIOLENCE OCCURRED WHEN:
• a person made an offence, whether by himself or through a third
party, against―
(i) his or her spouse;
(ii) his or her former spouse;
(iii)a child;
(iv) an incapacitated adult; or
(v) any other member of the family;

13. CASE: ZAKHLINA BT KHALID V NOASMADI BIN
ABDULLAH [2013]3 SHLR
• Issues
• Whether the plaintiff entitled to divorce on the ground of cruelty of wife
• Facts of the case:
1. The parties were married on May 11,1995 and registered in Kuala
Terengganu
2. The plaintiff claimed fasakh divorce as the defendant used to hurt (darar)
her
3. The plaintiff alleged that the defendant was having an affair with
another woman
4. The defendant however urged this court to dismiss the plaintiff’s
application from divorce

14. Held
The court allowed the P’s claim
• Fasakh divorce according to Islamic is intended to curb harm(darar) to the
wife.
• It is not the purpose of marriage in Islam to force the parties to live in
misery or cruelty in a marriage that they disliked.
Administration of Islamic Family Law (Terengganu) Enactment 1985
• Section 2:
• definiton of fasakh,in accordance with Section 49
• Section 49 (1)(h):
• a woman married in accordance with Hukum Syara’ shall be entitled to
obtain an order for fasakh on the ground of cruelty,that the husband
habitually assaults her or makes her life miserable by cruelty of
conduct.

15. FASAKH

16. ISSUES
• What is fasakh and domestic violence?
• What are the grounds provided for someone to claim
for fasakh?

17. DEFINITION OF FASAKH
• It means the annulment or dissolution of a marriage by
reason of any circumstance permitted by Islamic law
and relevant statutory provisions.

18. BASIS OF FASAKH
• Quran:
Al- Baqarah: Verse 231:
“ And when you divorce women and they have [nearly] fulfilled their term,
either retain them according to acceptable terms or release them
according to acceptable terms, and do not keep them, intending harm, to
transgress [against them]. And whoever does that has certainly wronged
himself. And do not take the verses of Allah in jest. And remember the
favor of Allah upon you and what has been revealed to you of the Book
and wisdom by which He instructs you. And fear Allah and know that Allah
is Knowing of all things.”

19. An-Nisa‟: Verse 35:
“And if you fear dissension between the two, send an
arbitrator from his people and an arbitrator from her
people. If they both desire reconciliation, Allah will cause
it between them. Indeed, Allah is ever Knowing and
Acquainted [with all things].”

20. • Hadith
‫لال‬ ‫عنه‬ ‫هللا‬ ‫رضى‬ ‫هريرة‬ ‫ابى‬ ‫عن‬:‫ال‬ ‫فىالرجل‬ ‫وسلم‬ ‫عليه‬ ‫هللا‬ ‫رسول‬ ‫لال‬
‫بينهما‬ ‫يفرق‬ ‫امرأته‬ ‫على‬ ‫ينفك‬ ‫ما‬ ‫يجد‬(‫والبيهمى‬ ‫الدارلطنى‬ ‫رواه‬)
From Abu Hurairah r.a. Rasulullah sallalallahu „alaihi wasallam reported on an act when a
husband fails to give necessities or nafkah toward his wife and families without any
reason accordance to hukum syarak, then it is allowed for the dissolution of marriage to
take place.
Fasakh has also has been accepted as a way to dissolve a marriage based on the
principles contained in the hadith of the Prophet (peace and blessings be upon him),
which stated:
‫ضرر‬ ‫ال‬‫والضرار‬
Do not inflict injury nor repay one injury with another

21. AUTHORITY IN FASAKH:
SECTION 2 & 52 IFLA &
OTHER PROVISIONS

22. SECTION 2 IFLA
• “Darar syarie” means harm, according to what is
normally recognized by Islamic Law, affecting a wife in
respect of religion, life, body, mind, dignity and
property.

23. SECTION 52 IFLA
• A woman or man, as the case may be, married in accordance with
Hukum Syarak, shall be entitled to obtain an order for the dissolution
of marriage or fasakh on any one or more of the following grounds,
namely –
• (b) That the husband has neglected or failed to provide the
maintenance for a period of three months.
• (h) That the husband or wife treats her or him, as the case may
be, with cruelty, that is to say:
(i) habitually assault her or him or makes her or his life
miserable by cruelty of conduct

24. OTHER PROVISIONS
• Clause 27, the Law Code of Malacca, the reasons for
dissolution of marriage through fasakh was allocated.
• Islamic Administration Enactment for all states (e.g. Section
123, Kedah Islamic Administration Enactment 1962, Section 49,
Perak Islamic Family Law Enactment, Kelantan Islamic Family
Law Enactment)

25. SCHOLAR VIEWS
• In the Hanafi sect, a wife can apply to dissolve her marriage through
fasakh only when she can prove to the Court that her husband is
incapable of consummating the marriage. Marghinani in al-Hidayah
stated only three diseases which are sexual impotence, penis
decapitation and the disconnection of the two testicles 10.This
means that in the Hanafi sect, a wife may not request fasakh for
other than the stated reasons even if the husband has vitiligo or
leprosy.

26. • If a wife was married at a young age (before puberty) by her wali
mujbir, she has the right to seek fasakh upon reaching puberty. This
fasakh is known as khiyar al-bulugh (option of puberty).
However,fasakh because of khiyar al-bulugh is not allowed by the
Shafi‟I and Maliki sects.
• The concept of husband with disease according to the Maliki, Shafi‟e
and Hanbali sects is relatively wide as it includes all diseases such as
leprosy and vitiligo. Their principle in this matter is if the
embarrassment or illness suffered by the husband affect the
relationship between the husband and wife, or can be transmitted to
the wife and the fetus, then the wife may apply for fasakh.

27. • Apart from the reasons above, the inability of the husband to pay
for provision (nafkah), missing or imprisoned are also accepted.
• However, the Maliki and Hanbali sects have added one more
reason to apply for fasakh which is occurrence of harm in the
marriage.
• Harm being meant here refers to five items which are harmful to
the
• religion, self, race, wealth, and aqal (dignity).

28. CASE: HAIRUN MOHD SHARIFF V. OMAR
MOHD NOR [2004] CLJ (SYA) 75
Fact :
• This was an application by the appellant to dissolve her marriage by
way of fasakh pursuant to s. 52(1) of the Selangor Islamic Family
Law Enactment 1984 ('Enactment') on the grounds that her husband
('the respondent') had assaulted and was cruel to her.
• The learned judge acknowledged that the injuries so inflicted
amounted to cruelty in syarak, but opined nonetheless that that was
not proof that the appellant had been "habitually assaulted" as
required by s. 52(1)(h) of the Enactment.

29. • The appellant appealed and argued that the trial judge was wrong in
refusing her application for fasakh. The appellant further argued that
the learned judge had:
(i) failed to properly construe the phrase 'habitually assaults';
(ii) failed to consider that the respondent had given a written
undertaking not to further assault the appellant, but had reneged on
his words.

30. • Issues: -
 Is the phrase ‘habitually assaults’ constitute domestic violence?
 Whether the marriage can be annulled by fasakh?
• Judgement:
In the circumstances, the phrase 'habitually assaults' is only relevant to
cases of mental cruelty, such as injuring one's inner feelings, which only
arises when the same is being repeated over time, thereby necessitating the
wife to prove the 'habitual' act. This is not an issue in the present appeal as
the cruelty that arose was physical in nature. When cruelty is physical in
nature, the act of assaulting, even if not habitual, may suffice to prove
cruelty against a wife.
The previous decision dismissing the appellant's application upon the
given grounds had clearly contravened s. 52(1)(h) of the Enactment.
• Held: The application for fasakh allowed

31. CONCLUSION

32. • According to section 2 & 52 IFLA, Najah can apply for fasakh
to divorce with Azhar.
• The penalties towards Azhar for committing the ill-treat is
stipulated under section 127 IFLA.