LAW605

FAMILY LAW 1
(ISLAMIC)
MUHAMMAD ALIYAIZZUDDIN BIN
MOHD SHUKRI (2016239116) 1
 Case Presentation:
Mahad Ahmed Mohamed v
Natasha bt Zolkeflee
[2017] 4 SHLR 67

Decided:
SHARIAH SUBORDINATE COURT (PETALING JAYA)
HUSAINI ROSLIN SHSCJ

MUHAMMAD ALIYAIZZUDDIN BIN

MOHD SHUKRI (2016239116) 2
 Hyperlink
https://drive.google.com/open?id=10kWpRJ
dzKov73L3RdGcpnlotqFwBtlVQ

MUHAMMAD ALIYAIZZUDDIN BIN

MOHD SHUKRI (2016239116) 3
FACTS OF THE CASE
 The plaintiff and the defendant were
married in Selangor in 2011 with the
defendant's father acting as wali and
witnessed by two witnesses.

 In 2015, the plaintiff said,

“It's over between us. Consider this a full talak.
A complete talak.”
('the pronouncement').
MUHAMMAD ALIYAIZZUDDIN BIN
MOHD SHUKRI (2016239116) 4
FACTS – CONT…
 The plaintiff filed for an affirmation of
divorce outside the court.

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MOHD SHUKRI (2016239116) 5
ISSUES
1. Whether the pronouncement
fulfilled the conditions which
validates talak.

2. To determine number of talak

pronounced based the said
pronouncement

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MOHD SHUKRI (2016239116) 6
ISSUE 1:
Whether the pronouncement
fulfilled the conditions which
validates talak

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CONDITIONS OF TALAK
Derived from I'anat al-Talibin: volume 4,
page 3:
1. Husband
2. Pronouncement (Sighah)
3. Intention
4. Wife (mahal talak)
5. Husbandry powers

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Fulfillment of 1st Condition:
Husband

 Both parties got married on 3rd

September 2011 at Petaling Jaya, Selangor.
 Marriage registered under section 45 of
Administration of Islamic Law (State of
Selangor) Enactment 2003.
 Certificate of Marriage presented to the
Court was issued by Pejabat Agama
Daerah Petaling
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 Based on previously listed facts, the Court
is satisfied that legally, the plaintiff is the
husband to the defendant.

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Fulfillment of 2nd Condition:
Pronouncement
Three modes of pronouncement:
1. Explicit (Soreh)
i. Shafie, Hanbali & Zahiri classified three
explicit words – talak, firaq & saraah

2. Implicit (Kinayah)
i. Other than abovementioned three explicit
words

3. Talak in writing
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MOHD SHUKRI (2016239116) 11
 The pronouncement of talak pertaining to
this condition is:
“It's over between us. Consider this a full talak. A
complete talak.”
 Since there is no lafaz soreh of talak, the
pronouncement is considered under
lafaz kinayah.
 The Court then must look into the
intention whether there is talak intended
or not.
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MOHD SHUKRI (2016239116) 12
Fulfillment of 3rd Condition:
Intention
Derived from Mughni Muhtaj: volume 4,
page 479:

 If explicitly pronounced (lafaz soreh), talak

is effective whether intended or not.
 I'anat al-Talibin: volume 4, page14 & 15
◦ Misunderstanding of non-Arabic person
(A’jam) on the meaning of word ‘talak’ when
pronounced is not an exception.
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 If implicitly pronounced (lafaz kinayah), the
talak’s effectivenes is subject to the
husband’s intention.
◦ If not intended, talak is not effective even the
sentence is complete.

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MOHD SHUKRI (2016239116) 14
Fulfillment of 4th Condition:
Wife (mahal talak)
 It is requirement that the pronouncement
must be directed to the wife .
 If the husband has more than one wife,
the pronouncement must be specifically
directed to that particular wife.
 In this case, the Court refer to the
pronouncement:
“It’s over between us.”

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MOHD SHUKRI (2016239116) 15
 The word ‘us’ in that line, as alleged by
the plaintiff, was directed to himself and
the defendant.
 Hence, the Court ruled that the element
of ‘mahal talak’ is established based on the
phrase “It’s over between us.”

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MOHD SHUKRI (2016239116) 16
Fulfillment of 5th Condition:
Husbandry power
 Husaini Roslin SHSCJ require an
additional condition for a valid talak.
◦ Talak was pronounced by way of husbandry
powers
 During the pronouncement:
◦ Legitimate wife of the husband
◦ The wife is within the wilayah of the husband
◦ Thus, talak is effective when pronounced

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MOHD SHUKRI (2016239116) 17
 In this case, the Court relied on the
pledges by the husband and wife that
during the pronouncement, the defendant
was the legitimate wife of the plaintiff and
within the husband’s wilayah.

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Conclusion on 1st Issue
1. To conclude, talak is effective since the
pronouncement fulfilled the
conditions of valid talak.

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ISSUE 2:
To determine the number of talak
pronounced based on the said
pronouncement.

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 Syeikh Khatib Syarbini in Mughni Muhtaj,
volume 4, page 529-530 decided that
pronouncement of 3 talak in one sitting is
considered as 3 talak

 He quoted a Hadith narrated by Imam

Muslim where:
◦ After second year of Khalifah Umar period,
pronouncement of 3 talak in one sitting is
fixed to be considered as 3 talak
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 Since plaintiff’s pronouncement of “It’s
over between us…” is considered as lafaz
kinayah, the Court look into his intention
during the pronouncement.

 The Court concluded that the later

pronouncement of “It’s over… , consider
this a full talak, complete talak” shows that
talak pronounced is intended.
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 Other grounds for the Court decision are
as followed:
◦ Plaintiff’s allegation that he did not wished to
proceed the marriage with the defendant.
◦ Plaintiff was sane during the pronouncement
and it was made out of free will without
coercion.

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Conclusion on 2nd Issue
 Therefore, it was held that there is three
talak pronounced based on the said
pronouncement.

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Held,
On 4th June 2015,
1. Divorce was affirmed between the
palintiff and defendant with three talak
under talak bain kubro
2. The wife was not on period therefore
the Court instructed her to undergo
three months period of iddah starting
from that date.

MUHAMMAD ALIYAIZZUDDIN BIN

MOHD SHUKRI (2016239116) 25
Commentary & Critics
 Is 5th Condition (Husbandry Powers)
necessary ?
 Husaini Roslin SHSCJ requires the existence
of husbandry power during the
pronouncement:
◦ Legitimate wife of the husband
◦ The wife is within the wilayah of the husband
◦ Thus, talak is effective when pronounced

 Term ‘wilayah’
◦ The Court did not determine the scope of ‘wilayah’
concerned under condition of Husbandry powers.
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 Wilayah in Arabic (‫ )والية‬refers to
administrative division, usually translated
as ‘state’, ‘province’, or occasionally as
‘governorate’.

 Derived from wali (‫)ولي‬

◦ Wali - to govern
◦ Governor - governs a wilayah that which is
governed
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 No other case law raise such condition
under SHLR expressly.
◦ It is assumed, the requirement of ‘the wife is
within the wilayah of the husband’ means the
wife is within the authority of the husband
 Thus, husband has general authorities to
guide the wife in good faith.
◦ As in this case, husband has authority or right
to pronounce talak to the wife.

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 Is 5th Condition (Husbandry Powers)
necessary ?

No. Because it is subsidiary details under the 1st

Condition (Husband) which is legal capacity of
the husband.

MUHAMMAD ALIYAIZZUDDIN BIN

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THANK YOU

MUHAMMAD ALIYAIZZUDDIN BIN

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