Issue: Methods of dissolution of Marriage by Fasha Cerai Tebus Talaq or Kholo This method of dissolution of marriage is effected by means

of appropriate words, spoken or written by two parties by which the wife offers an amount of money or property in exchange of release of his marital rights. The divorce will be irrevocable. It is a talaq bain. Ayat 229:Surah al-Baqarah 2 says that: if you indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. In the scenario, since Mohar treated Fasha with violence and unfairly by calling her sundal, Fasha is unable to take it anymore and she is entitled to dissolution of marriage by kholo which is by providing Mohar an amount of money or items. But before the effect of tebus talaq, Hakam will be appointed to act as arbitrators for both parties under s48. The provision that could be referred to is s49 of the Islamic Family Law (Federal Territories) Act 1984. S 49(1) mentioned where the husband does not agree to voluntarily pronounce a talaq, but the parties agree to a divorce by redemption, the Court shall, after the amount of talaq tebus be agreed upon by the parties, cause the husband to pronounce a divorce by redemption, and such divorce is ba-in sughra or irrevocable. 1) Case: Talib bin Salleh v Sepiah (1979) 1 JH 84 The parties married since 1964 and in 1976 the respondent brought an action for divorce against the husband as she alleged that the husband had not been just and had treated her unfairly. Subsequently, she agreed to return to the husband but she was continued being neglected and she filed the divorce by tebus talaq and appointed hakam under section 69(4) of the Enactment. The wife finally divorce by tebus talaq on payment of RM100.00. 1) Case: Mariam v Setafa The wife claimed that she was assaulted and injured by husband and husband admitted. The court asked the wife to pay RM 1 to the husband and declaring she was divorced by one talaq khuli. Method 2: Cerai Taliq Accordance to s50 of the IFL (Federal Territory), a married woman may entitle to a divorce if the terms of taliq certificate made upon a marriage are breached. In the case of the question, Fasha was molested and beaten by Mohar everytime she opened her mouth to say or explain something. This would have amount to an assault.

Thus, one of the case to follow is the case of Hasnah v Saad where the wife claim cerai taliq on the ground that the husband has assaulted her on her face near her right year. She produced medical certificate as evidence to her injuries. The husband denied and court gave judgment for the wife and declared she was divorced by one talaq. Dissolution by Fasakh In the current situation, accordance to s52 of the IFL , Fasha is entitled of a declaration by fasakh as the it fulfils at least one of the conditions laid down in the provision. Under s52(1) (h) (i), it mentioned: A woman married in accordance with Hukum Syara, shall be entitled to obtain an order for the dissolution of marriage or fasakh on any one or more of the following grounds, namely(h) that the husband treats her with cruelty, that is to say, inter alia(i) Habitually assaults her or makes her life miserable by cruelty and conduct;

Thus she fulfilled the requirements of s52(1) (h) (i) and entitled for a divorce by fasakh. Imam Malik opined that wife is entitled to ask the court for decree for divorce if the husband injures her in person to the extent she could not live with him anymore. Imam Ahmad also agreed with Iman Malik The appointment of Hakam is the common practise to resolve the difference between two person. Cases: 1) Hairun v Omar The wife had claimed fasakh on the ground that the husband had treated her with cruelty by assaulting her. The learned Syariah judge found that the husband had assaulted the wife and he found that the action exceed what was allowed in Hukum Syarak. The Board of Appeal allowed the claim of the wife. 2) Hasnah v Zaaba The plaintiff applied for fasakh on the ground that her husband, the defendant had habitually assaulted her and made her life miserable by cruelty of conduct as provided under section 49 of the Administration of Islamic Family Law Enactment of Terrengganu 1985. The court satisfied on the evidence and allowed the claim.

Rights and claims she is entitled to 1) She is entitled to the Mas Kahwin or Mahr as it is the obligation of the husband to hand it over to the wife at the marriage. Hence, if he has not paid the Mahr upon divorce, Mohar will need to pay her the amount of Mahr accordance to s57 of IFLA which says: nothing contained in this Act shall affect any right that a married woman may have under Hukum Syara to her mas kahwin and pemberian or any part thereof on the dissolution of her marriage. Surah an-Nisa (4) : (4) says: And give the women on marriage their dower as a free gift;but if they of their own good pleasure remit any part of it to you, take it and enjoy it with right good cheer Case: 1) Rosnah v Ibrahim The divorced wife claimed payment of her maskahwin of RM58 and the balance of the marriage expenses amounting to RM 300. The learned Chief Kadi Found, after the hearing, that the maskahwin has been paid but he ordered the husband to pay the balance of the marriage expenses. 2) Salma v Mat Akhir The divorced wife claimed payment of the maskahwin of RM600 which still owed. The husband claimed the wife remitted the payment of maskahwin and wife denied and called two witnesses. The court held the divorced wife is entitled of the maskahwin. She is also entitled of maintanence for period of iddah accordance to Surah At- talaq (65): 6 to the effect: Let the woman live in iddah in the same style as you live according to your means; annoy them not so as to restrict them. And if they carry life in their wombs then spend your substance on them until they deliver their burden. Under s65 of the IFLA it provides that the right of divorced wife to received maintenance of the former husband until the end of iddah period or if she is nusyuz. Case: Noor Bee v Ahmad Shanusi, the husband was an officer in the army divorce the wife when he was with the army in Port Dickson and the husband had sent RM 300 of iddah maintenance and the wife is not satisfied. The court ordered the husband to pay the balance of RM 222 until the iddah period ends. It is accordance to the living standard of the wife before divorce.

Zainuddin v Anita The divorced wife claimed iddah maintenance at the rate of RM 500 a month for 3 months totalling RM 1500. The court in this case held that maintenance and accommodation should be given to a woman who is divorced with a revocable divorce. 3) Fasha is entitled to stay in the home where she used to stay S71 IFLA provides that a divorced wife is entitled to stay in the home where she used to live when she was married for as long as the husband is not able to get other suitable accommodation for her. Until (1) The period of iddah has expired (2) If she remarried (3) If she is guilty of open lewdness.

4) She is entitled of Mutah or Consolatory gift Surah al- Baqarah (2): 241 for divorced women mutaah should be provided on a reasonable scale. This is aduty on the righteous. Fasha is entitled to Mutah although she wasnt divorced by the Husband for no good reason but according to the case of Noor Bee v Ahmad Sanusi, the wife could also obtain muta ah in the case of kholo because the payment could remove any cause for accusation or shame which may arise from the divorce. Last but not least, she is entitled to Harta Sepencarian Accordance to s2 of IFLA, Harta sepencarian means property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syara. She is entitled to it accordance to s58 of IFLA where either she could prove that she had substantially improved the said property or had involved in obtaining the properties. This is accordance that, the party contributed more will receive slightly more than the party that less contributed. 1) Rosnah v Ibrahim The divorced wife had claimed a share in various articles including jewellery and crockery. The chief Kadi ordered husband to return the personally jewellery of the wife he had pawned or sold or pay for the amount for trading to her as agreed. 2) Tengku Anun Zaharah v Dato Dr Hussein

The divorced wife claimed a share in the jointly acquired property and the respondent claimed those properties are obtained by his sole effort but the court found that the wife although did not contribute financially but morally to the husband where it contributes to the success and ability to obtain those property. The wife received a share of property to safeguard her future which is a piece of land with three acres.

In conclusion, she could either choose one of the method of dissolution which I would recommend Fasakh as she would need to pay him compensation and at the same time it would have secured one of the requirements which ensure her rights to decree. She will entitle of Mutah and Harta Sepencarian. She is also entitled to stay in the same house and maintenance until the iddah period ends if she uses the ground of Fasakh for dissolution.