CLIENT COUNSELLING & SULH

LAD4012

THE SULH PROCEDURE ON THE APPLICATION OF

NAFKAH FOR WIFE

LECTURER:
SIR SYED MOHD NAJIB SYED OMAR

TURORIAL: TLB 4
GROUP MEMBERS:
NURULATIKA BINTI LASIMAN

1122032

NOOR SYAMIMI BINTI YUSOFF

1122035

NABIHAH AQILAH BINTI IDRIS

1122038

SEMESTER II 2015/2016

TABLE OF CONTENT
CONTENTS

PAGES

Introduction

Definition of Sulh

Authorities for Sulh

Brief History of the Application of Sulh in Malaysia

The Current Position of Sulh in Malaysia

Scope and General Procedure of Sulh

Definition of Maintenance

10

Verses in Quran and Hadith on Maintenance

10

Sulh Procedure for Maintenance for Wife

13

10

Decided Cases on Maintenance

15

11

Conclusion

19

12

References

20

Introduction
Prior to the advent of Islam, disputes were solved by using different methods, with
sulh and tahkim as the common modes used. The main purpose of sulh and tahkim during
the time was for maintenance of the order in the case where disputants failed to achieve any
agreement.1 Parties resorted to sulh for amicable settlement once a dispute happened. In case
of failure of the sulh, parties proceeded with tahkim or adjudication as the next mode to
resolve the case. During the period, the methods of dispute resolutions were mostly not in
accordance with the Islamic Law. For example, a hakam (an arbitrator) was sometimes
chosen from healers (kuhhan) and soothsayers, who were believed to have supernatural
powers.2 In the fragmented tribal society or pre-Islamic Arabia, tahkim unlike arbitration was
not an alternative to an established judicial system. Rather it was the only means of dispute
resolution short of war if direct negotiation and mediation failed to achieve settlement. The
general belief that hakams were divinely inspired was extremely important in bringing
pressure to bear on the parties to submit disputes to tahkim and to abide by the awards
rendered. After the coming of Islam, the Arabian Peninsula became the geographical base for
the Islamic State. Disputes were resolved in accordance with the Quran and hadith of the
Prophet SAW. The Prophet SAW rejected the appointment of healers and soothsayers, who
at that time were considered as spiritual mediators. The rejection was based on the Quranic
verse as follows: O you who have believed, indeed, intoxicants, gambling, [sacrificing on]
stone alters [to other than Allah], and divining arrows are but defilement from the work of
Satan, so avoid it that you may be successful.3 Islam comes as the way of life that guides the
Muslims from all perspectives including on how to resolve disputes. Islam encourages the use
of sulh because of its ability to resolve dispute without affecting the existing relationship
among parties. The approaches of dispute resolutions in Islam are as follows: (1) sulh
(negotiation, mediation, conciliation and compromise); (2) nasihah (counseling); (3) qada
(court adjudication); (4) tahkim (arbitration); (5) muhtasib (ombudsman); (6) fatwa of mufti
(expert determination); (7) wali al-mazalim (chancellor); and other hybrid mechanisms.4

Muhammad Hamidullah, Administration of Justice in the Early Islam, vol. 11, (1937) Islamic Culture, at 16371.
2
Joseph Schacht, An Introduction to Islamic Law, Clarendon Press, 1984, at 7.
3
Quran, al-Maidah, (5):90
4
Syed Khalid Rashid, (2004). Alternative Dispute Resolution in the Context of Islamic Law. The Vindobona
Journal of International Commercial Law and Arbitration, 8(1), at 105

Definition of Sulh
The word sulh literally means termination of a dispute.5 It is derived from the word
saluha or salaha, which means to be good, right, proper, suitable, or the process of restoring
something. It is a process of restoring justice amicably among disputants in order to attain the
agreed settlement outside the court.6 Under the Islamic Law, sulh is considered as
complementary to court adjudication and highly recommended as compared to the other
mechanisms. For example, Al-Shafie encouraged a judge to command parties to attempt sulh.
However, if parties disagree, the judge should proceed to adjudicate the case. The Shafie and
Hanbali jurists were of the view that sulh is a kind of agreement between disputants to settle
disputes amicably. Similarly, Article 1531 of The Majelle stated as follows, Sulh is a contract
of removing a dispute by consent. And it becomes a concluded contract by offer and
acceptance.7 According to the definition, sulh is regarded as a contract concluded by offer
and acceptance, and consists of settling dispute by mutual consent. Ibn Irfah defined sulh
as,a process which involves a transfer of ownership or allegation by way of accepting
alternative or compensation offered in order to resolve or prevent dispute from happening.8
The Maliki perceived sulh as a way of resolving past and future disputes involving
disputants. In contrary, other schools maintained that sulh can only be applicable in past
disputes, not to future disputes.

Authorities for Sulh

The Quran and hadith of the Prophet SAW stated the need to resolve any disputes
between conflicting parties, especially among Muslims with justice and fairness. Authorities
supporting tahkim could also be used for sulh. Some of the verses in the Quran are as
follows:
a) And if two parties or groups among the believers fall to fighting, then make peace
between them both, but if one of them rebels against the other, then fight you (all) against the
one that which rebels till it complies with the command of Allah; Then if it complies, then
5

Mustafa al-Khin et al., al-Fiqh al Manhaji ala Madhhab al-Imam al-Shafii, Dar al-Qalam, 1996, vol.3, at
149.
6
Aida Othman, And Sulh is the Best: Amicable settlement and Dispute Resolution in Islamic Law, (Ph.D
Thesis, Harvard University, 2005)
7
Article 1531, The Majelle, C.R. Tyser, The Other Press, 2003, at 254.
8
Salih Abd al-Sami al-Abi al-Azhari, Jawahir al-Iklil Syarh al Allamah Khalil Fi Mazhab al-Imam Malik,
Dar al-Fikr, (n.d), vol. 2, at 102.

make reconciliation between them justly, and be equitable. Verily! Allah loves those who are
equitable. The believers are nothing else than brothers. So make reconciliation between your
brothers, and fear Allah, that you may receive mercy.9
b) There is no good in most of their secret talks save (in) him who orders sadaqa (charity in
Allahs cause, or maaruf (good deeds), orconciliation between mankind, and he who does
this seeking the good pleasure of Allah, We shall give him great a reward.10
c) Kathir bin Abd Allah bin Amru bin Auf al-Muzani reported that the Prophet SAW said:
Sulh is permissible among the Muslims except the one which makes the unlawful as lawful
and which makes the unlawful as lawful. Muslims are bind by their promises except promises
that permit the unlawful as lawful and the lawful as unlawful.11
d) Abu Hurairah reported that the Prophet SAW said: There is a sadaqa to be given for every
joint of the human body and for every day on which the sun rises, there is reward of a sadaqa
for the one who establishes sulh and justice among people.12
These authorities from the Quran and hadith of the Prophet SAW demonstrate that
Islam encourages all means of peaceful settlement, including sulh. In fact, all approaches of
peaceful settlement are recommended provided that the matter is not contravened to the
Islamic Law. The Islamic Law even allows the application of mediation with non-muslims
provided that the matter is in line with the Islamic teachings.

Brief History of the Application of Sulh in Malaysia

Malaysia is a multicultural country, consisting of different races including Malays,
Chinese and Indian. Despite the differences, Islam has been given a special position under
the Constitution of Malaysia. It is recognised as the religion of the Federation, securing its
position and implementation in the country.13 Islam was adopted in the Malay Peninsula
during the twelfth and thirteenth century, when the Malay rulers embraced the religion. The
Rulers then started to incorporate Islamic Laws and Malay custom to the law of the country.
9

Quran, al-Hujurat, (49):9-10.

Quran, al-Nisa, (4):114.
11
Abu Isa Muhammad Bin Isa, Kitab al-Ahkam, in Al-Jame al-Sahih wahuwa Sunan al-Tirmidhi, Dar alFikr, (n.d), vol.3, hadith 1352.
12
Sahih Al-Bukhari, vol.3, translation by Muhsin Khan, Dar Al-Arabia, Beirut, (nd), at 543.
13
Article 3(1) Federal Constitution
10

For examples, Undang-Undang Melaka (Malacca Laws) and Undang-Undang Laut Melaka
(Malacca Maritime Laws), which later influenced other state laws, such as the Laws of Kedah
(1605), the Laws of Johor (1789) and Ninety-Nine Laws of Perak (1878).
The application of Sulh or dispute resolutions in Malaysia started since the period of
the Malacca Sultanate. The Malacca Digest, which was a compilation of Islamic Law based
on the Shafii school of jurisprudence and Malay customary law was the applicable law.14
The law was very influential as it was later adapted and adopted to other state laws, such as
the Law of Kedah and Ninety-Nine Laws of Perak. It promoted the application of sulh in
most cases, especially involving personal and property law. The Malacca Digest, as the
governing law, influenced the practice of the Malay society at that time. The law influenced
the application of sulh in the Malay states.
Sulh, in the form of mediation and conciliation was widely applied as a tool to resolve
disputes, usually in cases involving religion and matrimonial matters.15 Conciliation was and
remains a most significant aspect of legal procedure in Asia. The procedures for conciliation
which was often carried out by certain prestigious local leaders, gentry, tribal chieftains, clans
or lineage heads were and are delicate. Open conflict was to be avoided and the pride of each
party to be maintained. During the sulh procedure, parties were assisted by a neutral third
party who was called a mediator. In the Malay society, the mediator for the local community
can either be the ketua kampung (head of village), imam (the leader of prayer at the mosque),
ulama (religious scholars) or qadi (judges in the syariah court). In practice, parties tend to
refer to their family members and elders to settle the dispute, especially the one involving
matrimonial matters due to the belief that problems should not be publicized to save the
reputation and to preserve the family institution.
The position changed when the colonialists, starting from the Portuguese, the Dutch,
the British and the Japanese came to the country. Among the four foreign powers, the British
left the most impact. English Law was inserted to the country, making the existing Islamic
Law a secondary law that only governs trivial matters, including matrimonial disputes and
personal law.16 The inclusion of the English Law started with the introduction of the First
Charter of Justice in Penang in 1807, followed by the Second Charter of Justice in 1826
14

Sharifah Suhana Ahmad, Malaysian Legal System, Malayan Law Journal Sdn Bhd, (1999), at 3.
Farid Sufian Shuaib, Powers and Jurisdiction of Syariah Courts in Malaysia, 2nd Edn, Petaling Jaya:
LexisNexis, 2008, at 16-17.
16
Farid Sufian Shuaib, Development of Syariah Courts in Malaysia: Waves of Reformation, [2008] 9, CLJ xli,
at 2.
15

which extended the application of English Law to Singapore and Malacca. The Third Charter
of Justice in 1855 was introduced to recognise the existing courts in these states.17 Despite of
these laws, the British was not allowed to interfere in religious matters. However, there were
many instances where the implementation of Islamic Law was restricted either by direct or
indirect interference. Nevertheless, sulh and Malay adat were still being applied within the
Malay communities.

In most cases, the Ketua Kampung was the mediator between

conflicting parties. The Ketua Kampung would analyse the case and evidence presented by
parties and advice for a peaceful settlement. Hence, it can be concluded that sulh is a part of
the Malaysia Legal System and is not a foreign concept to the people, especially the Malays
society in Malaysia.

The Current Position of Sulh in Malaysia

The position of the Islamic Law has improved after the establishment of the Syariah
Courts by virtue of the Federal Constitution.18 The Syariah Courts is governed and supervised
by the Syariah Judiciary Department of Malaysia (JKSM) and currently under the Prime
Ministers Department. It is headed by the Director General, who is also the Syariah Chief
Justice. The main role of the JKSM is to standardize the law among different states and
enhance the effectiveness of Syariah Courts in Malaysia. For example, the JKSM Practice
Direction No.3/2002 has extending the application of sulh to other states.19 It has been
mentioned that the JKSM role is to enhance the effectiveness of Syariah Courts in Malaysia.
The effectiveness of Syariah courts can be measured by some factors, including the number
of settled cases in courts. The number of settled cases can be increased with the application
of Sulh in courts. By virtue of the JKSM Practice Direction No.3/2002, all cases need to be
referred to sulh before proceed to the court. The Sulh Work Manual JKSM 2002 and the Sulh
Officer Ethical Code JKSM 2002 were introduced as a guideline in conducting sulh and
prescribes ethical rules that must be followed by the sulh officer.

17

Supra note 36, at 22-24.

List II State List, para 1 of the Federal Constitution of Malaysia.
19
JKSM, <http://www.jksm.gov.my/jksmv2/aa/uploads/032002.pdf> viewed 7 August 2014.
18

Scope and General Procedures for Sulh

Basically, there are five general procedures for sulh. First, the case must be registered
according to the court jurisdiction as provided under Section 61 and 62 of Administration of
the Religion of Islam (State of Selangor) Enactment 2003, Section 2(1), 4 and 45 of Islamic
Family Law (State of Selangor) Enactment 2003. Secondly, the Registrar will evaluate the
case either it can be put under sulh or directly to be heard in the court. According to Rule 3 of
Syariah Court Civil Procedure (Sulh) Selangor Rules 2001, the Registrar is responsible to
determine whether the case can be brought to sulh process or not. There are two kind of
claims or application that can be made under sulh which are claims or application specified
under Islamic Family Law (State of Selangor) Enactment 2003 such as betrothal,
maintenance of wife and children, mutah, custody of child, jointly acquired property and any
other case which the Registrar finds it suit. The other one is claim or application other than
what had been stated in Islamic Family Law (State of Selangor) Enactment 2003 which also
being provided under the original jurisdiction of Syariah Court in Section 61 (3) (b) of
Administration of the Religion of Islam (State of Selangor) Enactment 2003 such as the
jointly acquired property with the deceased.
Thirdly, prior to the sulh proceeding, the court has to examine any possibility of
settlement. If there is a possibility of settlement between parties, the Registrar shall:
(a) Not fix a date for the trial of the action within a period of three months from the receipt of
the summons or the application. The period of three months is a normal period to settle
dispute that involve sulh session periodically. If the settlement can be finished earlier, then
the agreement between the parties can be brought to the judge for the purpose of recording
and endorsement. Vice versa, the period of three months can be drag longer without have to
follow the hearing date by make an application to the court.
(b) Fix a date, as soon as practicable, for the parties to hold sulh. The sulh session needs to be
made within 21 days from the date of case registration to avoid too many postponed cases
and that there is no complaint made to the court on regards with the time taken.
(c) After the Registrar had chosen the date for sulh session, a Registrar shall serve a notice of
the date fixed for sulh to the parties to ensure that they aware to come on the date.20

20

Shariah Court Civil Procedure (Sulh) (Federal Territories) Rules 2004, Rule 3.

The fourth one is the presence of the parties. Failure to attend the sulh proceeding
amounting to contempt of court.21 Once the proceeding starts, the parties have to follow the
procedure as stated in Rule 5 as follows:
(1) Sulh shall be conducted in a majlis (hereinafter referred to as Majlis Sulh in the
presence of the parties to the action.
(2) Majlis Sulh shall be chaired by a Registrar or any public officer appointed for such
purpose by the Chief Syariah Judge.
(3) In a Majlis Sulh, every party shall appear in person and no Peguam Syarie may appear or
act as such for any party and no party shall be represented by any person without the leave of
the Chairman.
(4) The Chairman shall, where possible, assist the parties to resolve the dispute concerning
the subject matter of the sulh and shall give each party an opportunity to be heard.
(5) In a Majlis Sulh, the Chairman may take evidence from the parties, accept any document
submitted and may, if he thinks necessary, adjourn the Majlis Sulh from time to time.22
Finally, once parties agree for a settlement, the chairman prepares the draft agreement
which will be confirmed and signed by the parties. The draft agreement will be sent to the
court for judgment by consent.23 In contrary, if parties fail to achieve settlement, the
chairman will write a report containing his recommendations for the case.24 The report will
be sent to the court, which will later fix a date for hearing to continue the proceeding. 25 Other
than the SCCPSR 2004, guidelines are made to govern the sulh procedure. The Sulh Officer
Ethical Code JKSM 2002 (the Code) is the guideline on roles and responsibilities of the sulh
officers,26 while the Sulh Work Manual JKSM 2002 (the Manual) is the complete guideline
for the sulh procedures.27

21

Ibid, Rule 4.
Ibid, Rule 5.
23
Ibid, Rule 6 and Section 131 Syariah Civil Procedure (Federal Territories) Rules 2004.
24
Ibid, Rule 7.
25
Ibid, Rule 8.
26
Sulh Officers Code of Ethics, Department of Shariah Judiciary, Malaysia (JKSM) 2002, Released by Dato
Sheikh Ghazali bin Hj. Ab. Rahman, former Chief Shariah Judge.
27
Sulh Work Manual, Department of Shariah Judiciary, Malaysia (JKSM) 2002.
22

Definition of Maintenance
Maintenance or nafaqah of a wife is an important obligation of the husband. A man is
under a duty to provide for maintenance for his family which includes his wife, children,
parents and other members of his family as ordained by the hukum syarak.. As regards his
wife, a man must provide maintenance for her throughout the period of his marriage and
during 'iddah upon divorce. Maintenance includes all the basic necessities of life, which is
required by a person for the sustenance of his or her life. Under Muslim Law, the obligation
of a Muslim to maintain arises only if the claimant has no means to maintain himself or
herself. But the obligation of the husband to maintain his wife is absolute, irrespective of the
fact that the wife bears a sound financial position and he is not in a position to maintain her.

Verses in Quran and Hadith on Maintenance

The duty to provide maintenance for a wife is as clearly stated in the holy Qur'an,
surah Al-Baqarah (2:233)28, Allah commands that:
The husband shall bear the cost of their food and clothing on equitable term
Although the above verse states that the husband is to provide food and clothing, the
definition of maintenance is not necessarily limited to the above only. It may cover other
necessities such as residence, nourishment, education, some other essential services such as
medical services even if the wife happens to be wealthy in her own right or even though she
may have her own income (Mimi Kamariah, 1999).29
In our laws, although there are provisions for maintenance, the term maintenance or
nafaqah has not been defined in the statutes. Hence, it leaves room for the courts to determine
the scope of maintenance, because the needs of the family would differ from one generation
to another and depending on what is required to maintain a family. Most often than not,
maintenance would refer to financial support for the well-being and upkeep of the wife and
children including, apart from food and clothing, the children's education and other basic
necessities.
Similarly, one hadith narrated by Abu Dawood and al-Nasai which means:
28
29

surah Al-Baqarah (2:233)

Family law in Malaysia, p 342

10

O Rasulullah, what are our wives rights on us? Rasulullah (peace and blessings be upon
him) said give them food to eat as you eat, and clothe them as you clothe.30
However, the amount of maintenance which the husband needs to provide for his wife
and children should not be beyond his means as the Islam would not place any unreasonable
burden on its ummah. It is stated in surah al-Talaq (65:7):
Let him who has abundance spend out of his abundance, and whoever has his means of
subsistence straitened to him, let him spend out of that which Allah has given him. Allah
lays not on any soul a burden beyond that which he has given it. Allah brings about ease
after difficulty.31
A man has to spend according to his status and wealth and hence, he has to give
maintenance in line with his resources. This is confirmed by Prophet Muhammad saw who
has commanded in a hadith that Aishah told that Hind, a daughter of Utbah said:
O, Prophet! Abu Sufian does not give me and my son enough maintenance except what I
take from him without his knowledge'. The Prophet replied, 'Take what is enough for you
and your

son to the extent which is recognized by law.32

It is clear, therefore, that it is the cardinal duty of a husband to provide for the
maintenance of the wife and children during marriage. Even after divorce, a husband
continues to be responsible to give maintenance to his children, and as far as the Islamic law
is concerned, a man only needs to give maintenance to his former wife during the 'iddah
period. If the wife was divorced while she is expecting a child, the period of 'iddah would be
until she delivers the baby. Surah at-Talaq (65:6) states:
Let women in 'iddah live in the same style as you live, according to your
means. Trouble them not in such a way as to make things difficult for them.
And if they are pregnant, then spend your substance on them until they deliver

30
31
32

Hadith by Abu Dawood and al-Nasai

Surah al-Talaq (65:7)
Miskat ul-Masabih, vol 1

11

(the baby): 33and if they suckle your child, give them recompense: and take
mutual counsel together, according to what is just and reasonable.
However, the husbands obligation to maintain his wife exists only so long as she
remains faithful to him and obeys his reasonable commands. Although a Muslim wifes right
to be maintained by her husband is an absolute right yet, she must be faithful and obedient to
him in respect of all the matrimonial affairs. In other words, a wife will not be entitled to
maintenance once she is disobedient or nusyuz until she repented and obeyed commands
from her husband. For example, if she leaves her husbands place without his permission, she
will lose her right of maintenance. In Melaka, the obligation to maintain one's wife has been
codified in the Islamic Family Law (State of Melaka) Enactment 2002 ('IFLME'). IFLME
gives the Syariah Court the power to order a man to pay maintenance to his wife with the
exception in certain situations wherein a wife loses her right to maintenance, for example,
where the wife commits nusyuz.
Under the s 60(1) IFLME, the Syariah Court may, subject to Hukum Syara', order a
man to pay maintenance to his wife or former wife. 34 Further, clause (2) states that subject to
Hukum Syara' and confirmation by the court, a wife, however, shall not be entitled to
maintenance when she is nusyuz, or unreasonably refuses to obey the lawful wishes or
commands of her husband. This means, inter alia, when she withholds her association with
her husband; when she leaves her husband's home against his will; or when she refuses to
move with him to another home or place; without any valid reason according to Hukum
Syara. However, s 60(3) IFLME provides that as soon as the wife repents and obeys the
lawful wishes and commands of her husband, she ceases to be nusyuz and therefore will be
entitled to get maintenance.

33
34

Surah at-Talaq (65:6)

Section 60(1) of Islamic Family Law (State of Melaka) Enactment 2002 ('IFLME')

12

Sulh Prodecure for Maintenance for Wife

Generally, the application of Sulh for the settlement of cases in Syariah Court has no
specific procedure on each case. The Sulh Officer will apply certain standards approaches in
solving the cases. However, there are some specific questions that differentiate between Sulh
procedures of nafkah for wife case with other cases.
The Sulh procedure for the settlement of nafkah for wife case starts by the Sulh
Officer give the initial statement. On this session, the Sulh Officer will introduce himself and
his position to help in settling the dispute as the natural person. He also will explain in brief
the benefit of Sulh in the case settlement and will make comparison between Sulh procedure
and trial in the court. Clearly, a Sulh Officer needs to gain phycology and persuading skills to
attract the client to use this Sulh procedure. In facts, the success of Sulh procedure will
benefit all, not only to the clients, but also on the Syariah court itself. There will be reduction
on the pending nafkah for wife cases in Syariah court.
Secondly, the plaintiff (the wife) will start on her statement of claim. She will state
her claims for each and every single particular thing for her need. The claims are different
according to the nafkah for wife cases. It was preferred to specify in details the claims so that
the discussion will be in clearer stage. At this point, the defendant was not allowed to speak
out and rebut the claims. Later, the defendant was given the opportunity to make his defence
or explanation on the claims that being proposed by the plaintiff. The defendant can explain
on his ability in providing the nafkah if the amount is unreasonable for him to pay. If the
parties get quarrel, the Sulh Officer will calm the situation. Here, the experience and patient
were needed to handle the disputing parties in resolving their issue. This is one of the
challenges for being a Sulh Officer.
Thirdly, the concurrent discussion begins where this session allowed both plaintiff
and defendant to speak out their arguments. The plaintiff will argued on her claim and if the
defendant disagreed about the claims, he can rebut it by providing valid reasons. At this level,
the Sulh Officer will evaluate the situation in fair between the plaintiff and the defendant. He
will determine the most suitable and fair solutions for the parties to be presented at the end of
the Sulh session.

13

However, in some special situation, the Sulh Officer will conduct the caucus meeting
when he thinks it necessary. This kind of necessity can only be determined by the Sulh
Officer. If he saw some unbalanced arguments and situation between the parties, he will
proceed with this caucus meeting with the particular party. The caucus meeting is a session
between the Sulh Officer and one of the parties either the plaintiff of the defendant. This is a
session where that party may have the opportunity to be opened without feeling threaten or
uneasy in the concurrent discussion. This is normal for the disharmony marriage where it
might be some unbalanced if the solution is achieved the Sulh Officer only heard on one
parties argument.
Last but not least, the Sulh Officer will make the conclusion and provides the
solutions for both parties in last session. This session will determine either the Sulh session
was successful or not. It is not binding for the parties to follow the solutions made by the
Sulh Officer. The plaintiff might win some of her arguments and some might not. If the
parties agreed on these solutions, the Sulh Officer will have to prepare on the agreement
contract and this agreement will be endorsed as an Order by the court. On the other hand, if
the parties refused to continue and disagreed on these solutions, thus the Sulh session was
regarded as a fail session. The Sulh Officer will then make a report and trial in the court room
will be held on the parties.35

35

Interview session with Muhammad Hafiz bin Mokhsin. Sulh Officer of Kuala Langat Syariah Court.

14

Decided Cases on Maintenance

1. Dzulfaezah bt Abdul Hamid v Izuddin bin Murshid36
In this case, the plaintiff was married to the defendant on 7 September 1985 and had six
children from the said marriage. On 17 April 2001, the parties were divorced and the said
children remained under the care of the plaintiff. The plaintiff sought to recover arrears of
maintenance, a sum of RM90,000, which had accrued since their marriage on 7 September
1985 until their separation on 17 April 2001. The above sum encompassed claims for basic
necessities, expenses incurred during and after delivering child, expenses for a suitable
accommodation and the cost for hiring a domestic maid. The court held that the wife is
entitled to maintenance from her husband. The defendant was bound to provide maintenance
to his wife. In determining the arrears of maintenance, it would be appropriate to look into the
financial status of the husband, whether at the material time he was in difficulty or was too
poor, whether he was rich or of average earner. Therefore the defendant was ordered to pay
the plaintiff the established arrears of maintenance, a sum of RM11,906.

2. Nurul Huda bt Ismail v Nurrizal bin Ahmad Imran37

The parties herein were married on 21 February 2004. They had no children. Since their
misunderstanding in June 2004, the parties had been staying separately, the plaintiff, with her
parents in Batu Caves and the defendant, in Seremban. Since then, neither the defendant nor
his agent provided her with maintenance. The plaintiff filed this application to dissolve the
marriage on the ground that the defendant had failed or neglected to provide her with
maintenance for a period exceeding three months. The court held that it was satisfied that the
defendant had failed to provide maintenance to the plaintiff for a period of approximately
seven months namely, from June 2004 to 1 February 2005 (end of the allegation-the date the
case was filed).

36
37

[2009] 3 SHLR 125

[2009] 1 SHLR 108

15

3. Rogayah bte Yaacob v Ahmad Zainudin bin Yaacob38

The plaintiff and defendant were married on 3 October 1993 in Bahau, Negeri Sembilan and
their marriage was registered pursuant to the Islamic Family Law (Negeri Sembilan)
Enactment 1983. From their marriage they had four children. After the marriage, they stayed
in Negeri Sembilan and in 1994 they moved to Kelantan. They stayed together in Kelantan
till December 1999. The plaintiff worked as a teacher, while the defendant, a programmer,
worked on a freelance basis. However, their relationship began to turn into a crisis. Further,
the plaintiff had to frequently visit National Heart Institute in Kuala Lumpur for reasons of
heart disease. Due to this, the plaintiff, with the permission of the defendant, moved to her
village in December 1999 with her children. The defendant however, refused to move with
her because of his business. The plaintiff had also declined to return to Kelantan when
requested by the defendant. Apart from the heart disease requiring medical attention, the
plaintiff refused to return to him because of the difficulties faced in managing the household
and the children on her own. She was not facing this problem while staying with her parents
in Kuala Pilah. The defendant merely visited the plaintiff, once a fortnight and sometimes
once a month or even once in two months. Complications to their relationship began as a
consequence of staying apart. Therefore, in October 2000, the plaintiff applied for fasakh
divorce as the defendant had neglected to fulfil his duties in providing maintenance and
further, he had neglected his duties towards the children and the household needs. The
plaintiff had in fact referred their problem to the Islamic Religious Department, Kelantan and
had undergone counselling sessions twice. The defendant however, failed to attend despite
being served with the necessary documents. The defendant in his defence stated that he had
visited the plaintiff and during these visits, he had purchased household needs to the extent of
his means. Approximately, a sum of RM3,600 was spent per year for a period of four years
(2000-2004). Further, he had also given the plaintiff cash money according to his means. The
defendant alleged that the main reason for the fasakh divorce was that the plaintiff wanted
him to stay with her in Kuala Pilah. He had in fact, requested the plaintiff to return to Kota
Bharu but she declined on the ground that she wanted to be closer to her parents. The issue in
this case is not concerning the failure to provide maintenance but the inadequacy of the
maintenance so provided. The question herein is whether the inadequacy of maintenance
constitutes a valid ground for the dissolution of marriage by fasakh. A related issue is
whether the plaintiff would be still entitled to maintenance despite her refusal to return and
38

[2006] 4 SHLR 112

16

stay with the defendant. The court allowed the plaintiffs application. It was held that the
plaintiff was mistaken when she alleged that the defendant had not provided her with
maintenance. From the al-da'wa and al-jawab, the court found that she had actually meant
that the defendant failed to give her cash money. According to hukum shara', maintenance
includes food, dwelling home, clothing, domestic maid and other necessities of life. If the
above is provided, the husband is not required to give cash money unless the parties have
agreed that the husband is to provide cash money instead of the above necessities. The court
also believed that the approximate amount of maintenance provided for the plaintiff was
RM200 per month and this amount was far from adequate. From the al-da'wa and al-jawab,
the court found that this amount included her maintenance as well as the children's, from
December 1999 to November 2000 (the date when this case was filed). This was for a period
of 12 months, that is, a period of more than three months where the maintenance provided for
the plaintiff and her children was a mere RM200 per month. Thus, it is apparent that the
defendant had failed to provide adequate maintenance for a period exceeding three months.
The court need not consider the reasons for the defendant's failure to provide adequate
maintenance, either due to his inability or refusal, as it makes no difference under the law.
Lastly, the court gave the judgment that S 129 of the Islamic Family Law (Negeri Sembilan)
Enactment 1983, clearly states that nusyuz occurs when the wife intentionally refuses to abide
by the lawful wishes of her husband. How-ever, if she has valid reasons in accordance with
hukum shara', it would not constitute nusyuz.

4. Ramzas bt Daud v Ghani bin Idris39

In this case, the plaintiff and defendant were married on 22 May 2010 in Thailand in
accordance with hukum syarak by a wali am. They were divorced with triple talaq (bain
kubra) which was affected vide the short messaging system (SMS) sent by the defendant to
the plaintiff on 10 August 2010. The said marriage and divorce was affirmed by the
Terengganu Shariah High Court on 8 November 2010. Their marriage only lasted for four
months. The plaintiff, since her marriage to the defendant and until the date of the divorce,
was an entrepreneur involved in the crackers business. Meanwhile, the defendant was the
Director of the Kuala Terengganu City Council. The plaintiff filed the claims against the
defendant regarding the arrears of maintenance with a sum of RM8000 (RM2000 x four
39

[2012] 2 SHLR 69

17

months) and mut'ah with a sum of RM99,300. The court held in allowing the plaintiffs
claims that it was reasonable that the defendant pay a sum of RM1,500 per month as the
arrears of maintenance throughout the period of iddah. This sum is arrived at by taking into
consideration her food expenses at the rate of RM900 per month and medical and
miscellaneous expenses amounting to RM600. This figure was reasonable and in accordance
to hukum syarak and the existing laws. In addition, the divorce was not at the initiate of the
plaintiff. It was due to the defendant's failure to settle amicably the family problems between
his first wife and her family.

5. Norani bt Abd Rahman v Md Taib bin Hanapi40

The plaintiff and the defendant were husband and wife who were married on 12 December
1984. The parties had four children from their marriage. In this case, the primary claim of the
plaintiff was to determine the validity of the divorce between the plaintiff and the defendant
which was alleged to have taken place in April or May 2000. The plaintiff alleged that the
defendant had, around the said time, uttered the following words through the phone: Do not
phone Khalijah anymore, do not ridicule her, and if you do, our relationship will be severed.
The plaintiff admitted making phone calls to Khalijah and on 1 May 2000, she had made four
such calls to Khalijah. The main issue before the court was whether the words uttered by the
defendant were considered as kinayah divorce. Further, if the divorce had taken effect
between them, the court would have to settle the ancillary claims resulting from the divorce.
The court confirming kinayah divorce and allowing ancillary claims resulting from the
divorce. The plaintiff in this case was entitled to accommodation and maintenance including
food, drinks, clothing and medicine. In accordance with hukum Syarak, existing laws and the
decided cases, it would be reasonable that the rate of eddah maintenance payable by the
defendant to the plaintiff would be a sum of RM320 per month. For the issue of eddah
maintenance, the court had given the opportunity of Sulh procedure for the disputing parties
to determine the amount payable with regard to the maintenance during eddah. However, the
parties did not benefited and wasted this opportunity, thus the court had ultimate power in
determining the necessity of eddah maintenance and its amount payable to the plaintiff.

40

[2008] 4 SHLR 79

18

Conclusion
As have been mentioned, sulh is widely practiced in Malaysia, especially among the Muslims
as a method to resolve disputes without having to bring the case to the court. Traditionally,
the Ketua Kampung is the mediator between conflicting parties. The Ketua Kampung would
analyse the case and advice for a peaceful settlement. In most cases, parties refer the dispute
to their family members and elders. This practice is usually adopted in matrimonial disputes,
which is not publicized to save the reputation and to preserve the family institution. However,
as mentioned, the practice is limited to certain types of cases, mostly regarding matrimonial
and religious matter. Therefore, it is suggested that sulh is used as a method to settle cases
among the Muslims community in Malaysia. Currently, most cases are governed by the
common law system. The system itself is proven to be quite lacking in resolving cases, due
to its adversarial nature which requires time and high cost. As a result, mediation is used as
an alternative to the current system. Generally, the application of mediation is a purely
voluntary process. It can be either court mediation or mediation by non-judge mediator. It
has been used as the other alternative to the current tort litigation system.

Similarly, sulh

may be used as the alternative for Muslims in Malaysia. The concept of sulh is similar to
mediation in the sense that it involves resolving dispute amicably with the assistance of a
neutral third party. Unfortunately, not many Muslims in Malaysia have information about the
concept of sulh. Many resort to the western litigation system or other alternative dispute
resolution whenever a dispute occurs. Hence, the knowledge of sulh needs to be given in
order to increase the awareness and revive its application by Muslims in Malaysia.

The

awareness and knowledge on sulh can be given by offering a specific subject of sulh at
schools and academic institutions in Malaysia. The syllabus should include discussions of all
types of sulh, especially mediation in general and briefly. It should include the general
concept of sulh, its techniques, ethics and approaches in conducting the procedure. Aside
from courses, training should be given to people who are interested in becoming a sulh
officer. Programmes may be conducted to promote sulh as a method of dispute resolution in
medical negligence cases.

19

References
1. Ahmad Ibrahim Family Law in Malaysia (3rd edition,1997) Malayan Law Journal,
Kuala Lumpur
2. Mimi Kamariah Majid, Family Law in Malaysia , 1998
3. Islamic Family Law (State of Melaka) Enactment 2002
4. Raihanah Azahari, Sulh dalam Kes Kekeluargaan Islam, 2008
5. Muhammad Hamidullah, Administration of Justice in the Early Islam, vol. 11, (1937)
6. Joseph Schacht, An Introduction to Islamic Law, Clarendon Press, 1984
7. Syed Khalid Rashid, (2004). Alternative Dispute Resolution in the Context of Islamic
Law. The Vindobona Journal of International Commercial Law and Arbitration.
8. Mustafa al-Khin et al., al-Fiqh al Manhaji ala Madhhab al-Imam al-Shafii, Dar alQalam, 1996
9. Aida Othman, Sulh is the Best: Amicable settlement and Dispute Resolution in
Islamic Law, (Ph.D Thesis, Harvard University, 2005)
10. Article 1531, The Majelle, C.R. Tyser, The Other Press, 2003
11. Salih Abd al-Sami al-Abi al-Azhari, Jawahir al-Iklil Syarh al Allamah Khalil Fi
Mazhab al-Imam Malik, Dar al-Fikr,

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