In Islam, a formula uttered by any sane adult husband as condition for divorcing his wife upon the occurrence of a specified condition is effective. It is considered as conditional divorce.
Surah 5:1 – O you who believe! Fulfill all obligations.
Ta’liq is normally attached to a marriage contract. The usual form of ta’liq – condition set down leaving the wife the right to seek divorce if the husband fails to maintain her for a period three to four months, if the husband absent himself for four months or more without sending any maintenance to the wife. A talaq will be in effect if one of the conditions in an agreement or surat ta’lik is not fulfilled or breached. As conditions are pre-requisite, there has to be an agreement /surat ta’lik. This agreement is sealed at the solemnization of the marriage/ the akad nikah.
The conditions are listed in a specified form an agreed by both parties. If such thing happens, the wife, on the evidence of the breaking of this condition, may make a complaint to the Qadhi and apply a divorce by ta’liq. Upon receiving such application, the Qadhi will then record the sworn statement of the wife and of at least two witnesses.
If satisfied that provisions of law have been complied with, he will proceed to make an order the decree as is lawful. The particulars will be recorded into the register and certificate of divorce will be issued .
S50 of IFLA Divorce under taliq or stipulation
(1) A married woman may, if entitled to a divorce in pursuance of the terms of a taliq certificate made upon a marriage, apply to the court to declare that such divorce has taken place.
(2) the court shall examine the application and make an inquiry into the validity of the divorce and shall, if satisfied that the divorce is valid according to Hukum Syara’, confirm and recored the divorce and send one certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.
The form of ta’ liq prescribed in Kuala Lumpur is as follows:
“ I do solemnly declare when I leave my wife for 4 months Hijrah continuously or more voluntarily or with force, and I or my representative do not give her maintenance for such period whereas she is obedient to me or I cause hurt to her person, then she makes a complaint to the Shariah court and if found by the Shariah court to be true, and she gives to the Shariah court which received on my behalf a sum of one ringgit, then she is divorced by a talaq khuli.”
Cases of desertion of failure to maintain where husband was present
Aminah v Ahmad
F: the W complained that the H had deserted her and had not given her maintenance for over 3 months. The husband admitted that he had not lived with the W and had not maintained her but said that he had tied to take her back and to settle the dispute but this had failed. W called 2 witnesses to support her case.
H: Kadi gave judgment for the W and after ascertaining that she was in a state of purity decreed that one talaq divorce had been effected. The appeal of the H was dismissed.
Amdan v Ghazali
F: the W claimed cerai taliq on the ground that her H had not lived with her and had not given her maintenance for over 4 months. The H said that his W had returned to her mother’s house and when he tired to take her back, she had asked him to divorce her. He admitted that he ahd not given any maintenance to his wife for over 4 months.
H:At the end of the hearing the court adjourned the case as the W said she was in state of her menstrual period. At the adjourned hearing the wife said she was in state of purity and the court gave judgment in her favour and declared that the divorce by one talaq had been effected.
Zaidah v Abdul Rahim
F: W claimed that her husband had not maintained her for over 6 months. She called witnesses who however did not support her evidence. The husband took a solemn oath to deny her charges.
H: The court dismiss the claim.
Salemawegam v Mohamed Anuar
F: the W claimed cerai taliq as the husband had not given her for maintenance. In his defence the H claimed that the W had refused to consummate the marriage and thus he was not bound to give her maintenance.
H:The court asked both parties to take the solemn oath. The W took the oath and said that here had been sexual intercourse between them. The H however refused to take the oath. The court gave the judgment in favour of the W and decreed a divorce by one talaq.
Aisny v Hj Fahro Razi
F: W had applied to Shariah subordinate court to confirm a divorce under taliq. The H had pronounced the taliq in the statutory form used in Selangor at that time and the W claimed that the H had not complied with the terms of the taliq in that he had not given maintenance to his W and Children for over 4 months.
H: since the H had neglected to maintain her for 4 moths, W is entitled to have cerai taliq confirmed. A divorce by 1 talaq was decreed.
Fakhariah v Johari
F: D, after the marriage, had pronounced a taliq in which he stated that if he should fail to pay sufficient maintenance to the W for a period of 4 months or more, the W can make complaint to a shariah judge and if her claim is accepted by the judge, she will be divorced by one talaq. The P claimed that the D had not given her maintenance for over 3 motns and she calimed cerai taliq. The D admitted that he had not paid the maintenance but claimed that he was not bound to pay the maintenance as she had left the matrimonial home and she had gone to study in America without his permission.
H: Syariah judge dismissed the claim of the W and she appealed. Appeal allowed. What was pronounced by the D in the taliq was an agreement which was clear and without any condition. There was no express condition in the taliq stating that the W was only entitled to the maintenance if she was not nusyuz. As the D had admitted that he had not paid the maintenance to the P, she was entitled to obtain the cerai taliq. In this case also the D had never applied for an order from the court that the P was nusyuz and on this ground also the P was entitled to cerai taliq.
Cases where the husband was absent
Siti Zainab v Mohamed Ishak
F The W claimed that her husband had deserted her for over 3 months. Although a registered letter was sent to the H and an advertisement inserted in the newspapers he did not attend court. The W give evidence and called 2 witnesses who could not however support her story. Later she called 2 witnesses wo did so. The W claimed that she had remained in the matrimonial home and had not left it and in this he was supported by the witnesses.
H:The court asked her to take oath, to support her case. After she had taken it, judgment was given in her favour. 1 talaq effected.
Fathillah v Mohamed Ghafar
F: The W claimed that her husband had deserted her for over 3 months. The summons was served on the H but he did not attend. The w called witnesses who supported her. Although she ahd moved, she had been forced to do so at the request of the house owner and the H knew of this. The W took the solemn oath and judgment was given in her favour and the divorce by 1 talaq was confirmed.
Piah v Muhammad Zainal
F: the W applied for cerai taliq on the ground that the H had deserted her for oever 2 years and had not given her any maintenance. She gave evidence and called one witness to support her. She was then asked to take the oath. She was asked to pay RM1 to the Kadi for the H and after that the court declared the she was divorced by 1 talaq khuli (Khulu).
Tuminah v Arifin
F: the W applied for cerai taliq as she claimed that her husband and deserted her for over 4 years. The H did not attend although ther had been notification to all kadis in Johor and advertisement in the papers. The W called witnesses to support her evidence and she nad her witnesses were also asked to take the oath.
H: the court gave judgment for the W and declared that she was divorced by 1 talaq.
Cases of assault on the wife
Hasnah v Saad
F: the W claim cerai taliq on the ground that her husband has assaulted her n her face near her right ear. She produced the taliq declared by the husband, and medical certificate as evidence of her injuries. The H denied that he had assaulted her and claimed that injuries were self-inflicted.
H: the court gave judgment for the W and declared that she was divorced by 1 talaq.
Dah v Abdullah
F: the W complained that she had been assaulted causing injury to her hand and she had been treated in hospital. She also made a report to the police. The H denied the charges but he did not cross examine the W when she gave evidence. There was evidence that he had asked the W to forgive him.
H: the court gave judgment in favour for the W, declaring the she was divorced by 1 talaq khuli.
Mariam v Setafa
F: the W claimed that she had been assaulted and injured by the H. The H admitted that he had assaulted his W. The court asked the W to pay RM1 to the court for the H and gave judgment for the W, declaring that hse was divorced by 1 talaq khuli.
Adiba Yasmi v Abdul Rani
F: P had applied to confirm the divorce by taliq as she alleged the H had assaulted her. The H denied the allegation and calimed that the injury on the W was selfin-flicted. The P called a maid servant as her witness thus making the evidence given by her weak. Although the D called 3 witnesses, one woman and 2 men, the learned Kadi found that the evidence for the D was also weak. In the circumstances he called on the D to take oath to deny the allegation of P. after the D had taken the oath denying the allegation, the learned Chief Fadi dismissed the application of the P.