SHARIAsource

Sujak and Nuryani were married on 3 August 1982 and had two children (Tugik Dini Rike Nur Anggrainingsih (23) and Almaiciko Bawita Firnanda (13)). They also owned a property they had purchased with Nuryani's inheritance and Sujak's pension funds. The property had been placed in the name of their first child, Tugik, but was tenanted by Nuryani's mother (Wartini) and another family member (Rumini). On 5 February 2005, Nuryani passed away due to illness. On 12 February 2012, Nuryani's father, Joyo Suwito, passed away, also due to illness. On 23 December 2014, Tugik relocated to East Kalimantan with her husband. Then, on 8 December 2015, Sujak passed away. Since Sujak's passing, Almaiciko had been cared for by her uncle (Nuryani's younger brother), the applicant (Mutaal). As Almaiciko was still under the legal age of consent, the applicant sought from the court a stipulation that he was Almaiciko's legal guardian.

The court acceded to the application for guardianship, pursuant to arts 50(1) and 51(2) of Law No. 1 of 1974 on Marriage, in conjunction with art 107(4) of the Compilation of Islamic Laws, on the grounds that Almaiciko was under the age of consent (and not yet married) and that the applicant was a family member and, therefore, a legitimate applicant for guardianship.

The parties were married on 25 January 2010 and had one child aged 5 years. They had lived with the plaintiff's parents for two years until January 2012 before separating. The marriage deteriorated, the plaintiff submitted, because the defendant:

1. had not provided for his family, forcing the plaintiff's family to cover their daily expenses; and
2. showed no interest or desire to care for the plaintiff and their child.

The parties had been separated for a total of four years and one month at the time of the proceeding, during which time they had not been physically intimate. The plaintiff submitted that she could not remain married to the defendant as he had proven himself to be an irresponsible husband. The defendant was also absent from court. Accordingly, the plaintiff requested that the court grant her an irrevocable divorce (talak satu ba'in sughra).

After corroborating the plaintiff's submissions with evidence provided by the plaintiff's two witnesses, the court, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, acceded to the plaintiff's application on the grounds of ongoing conflict between the parties.

The parties were married on 13 November 2015. At the time of their marriage the plaintiff was virginal and the defendant a widower. The parties had lived with the defendant's parents until they separated on 25 March 2016. The plaintiff submitted that they had separated after frequent quarrelling caused by the defendant's:

1. unwarranted jealousy and accusations that the plaintiff was having an extra-marital affair;
2. profane language directed at the plaintiff;
3. violent tendencies towards the plaintiff when they argued;
4. refusal to take the plaintiff to see her ill father; and
5. prohibition on the plaintiff communicating with her parents and family.

The plaintiff produced two witnesses who provided information that corroborated with her submissions. Despite the defendant's absence, the court, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of Compilation of Islamic Laws, acceded to the plaintiff's request for an irrevocable divorce (talak satu ba'in sughra) on the grounds of ongoing conflict.

The parties were married on 3 April 2013 and had one child aged 2, who was under the care of the plaintiff. The plaintiff submitted that, by May 2013, the parties' marriage had become quarrelsome because the defendant had only spent his income on himself. Furthermore, the defendant had emotionally and physically abused the plaintiff, and would use profane language with the plaintiff's parents. The parties separated in 2015 and had remained separated for a total of one year and five months. Pursuant to art 19(d) and (f) of Government Regulation No. 9 of 1975, in conjunction with art 116(d) and (f) of the Compilation of Islamic Laws, the plaintiff requested that the court grant her an irrevocable divorce (talak satu ba'in sughro) on the grounds that the defendant's conduct had threatened her well-being, and ongoing conflict.

Despite the defendant's absence from court, the court acceded to the plaintiff's application, noting that the information provided by the two witnesses produced by the plaintiff corroborated with the plaintiff's submissions.

The parties were married on 14 May 2012 and had one child aged 3 years, who was in the care of the plaintiff at the time of the proceeding. The plaintiff submitted that the parties' marriage had been harmonious for the first five months. Since October 2012, however, it had become quarrelsome because the defendant was:

1. envious, even of his older brother; and
2. frequently angry for no apparent reason, which made the parties' home life unpleasant and disharmonious.

Problems escalated in November 2012 resulting in the defendant leaving the plaintiff. As familial intervention had failed to reconcile the parties' differences, the plaintiff submitted that divorce (talak satu ba'in sughra) was the only feasible option.

The court, pursuant to art 19(b) of Government Regulation No. 9 of 1975, and art 116(b) of the Compilation of Islamic Laws, acceded to the plaintiff's request on the grounds that the parties had been separated for two consecutive years or more.

The parties were married on 18 December 1994. The plaintiff submitted that the parties' marriage had been harmonious for the first nine years. Since April 2003, however, it had become quarrelsome because the defendant:

1. frequently gambled;
2. was frequently angry for no apparent reason;
3. had not secured any form of employment;
4. frequently went out at night;
5. was excessively jealous;
6. failed to provide for the plaintiff; and
7. had not been a leader of the parties' household.

Problems escalated in September 2015 when the defendant again accused the plaintiff of having an extra-marital affair with another woman. No longer able to tolerate the defendant's treatment of her, the plaintiff left the defendant and the parties had remained separated ever since. The plaintiff submitted that the most feasible option available to the parties was an irrevocable divorce (talak ba'in sughra).

The court, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, acceded to the applicant's request on the grounds of ongoing conflict.

The parties were married on 7 September 2010 and had one child who was currently under the care of the respondent. The parties had not been living together because the applicant's work commitments meant he was rarely able to return home. Moreover, the respondent needed to live with, and care for, her aged parents. The applicant submitted that given his high libido, and that because he could not be with the respondent, it would be preferable for him to take a second wife instead of committing adultery (zina). The respondent, the applicant submitted, had no objections to his request. The applicant also claimed that he would be able to care for both his wives and child given his monthly salary of IDR 4,650,000.

In acceding to the applicant's request, the court, pursuant to the elucidation of art 49(2)(i) of Law No. 7 of 1989 on the Religious Judiciary, noted that it had absolute authority to adjudicate the case. Furthermore, as the respondent had acceded to the applicant's request, all prescriptive requirements, as contained in art 5(1)(a) of Law No. 1 of 1974 on Marriage, in conjunction with art 41(b) of Government Regulation No. 9 of 1975, and art 58(1)(a) and (2) of the Compilation of Islamic Laws, had been met.

The applicant submitted that he and the respondent were married on 19 March 2010 and had one child, who was in the care of the respondent. The first the years of the parties' marriage had been harmonious, but since then they had become quarrelsome because the respondent was not prepared to be the wife of an Indonesian National Military (Tentara Nasional Indonesia) soldier. In June 2013, the respondent left the parties' home and the applicant's unit without the applicant's permission as her husband, or in an official capacity through the applicant's unit. The parties had remained separated since and the applicant had received dispensation as a member of the military to divorce the respondent.

The court was satisfied that the applicant had met the evidentiary burden contained in art 39(2) of Law No. 1 of 1974, and, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, acceded to the applicant's request for a revocable divorce (talak satu raj'i) on the grounds of ongoing conflict. The court also permitted the respondent to retain custody of the parties' child.

Two accused persons, both previously married to other persons, were charged with the crime of committing zinā (fornication), which is prohibited in the Islamic Penal Code of Sokoto State, Nigeria. The man denied the charge and declared his innocence in court. The woman admitted to having sexual intercourse with the accused man and to being pregnant as a result. The Court held that the crime of zinā (fornication) is proved by a valid confession, the evidence of four witnesses, or by pregnancy outside of marriage. Because the first accused person denied that he had made an earlier confession, a confession could only be verified by the testimony of four witnesses. Because only two witnesses had given such testimony, the confession was not valid. The Court also held that retraction of a confession is permissible. Therefore, even if the first accused, the man, had earlier confessed, his denial of the charge in court amounted to a valid retraction of the confession. The Court convicted the second accused person, the woman, on the basis of her in-court confession and sentenced her to death by stoning after childbirth and weaning. The woman successfully appealed her conviction.

Amina Lawal appealed the decision of the Upper Sharīʿa Court, Funtua, upholding her conviction of the capital crime of zinā (fornication) by the Sharīʿa Court of Bakori. As she had done in the appeals court, the Appellant retracted the confession made before the trial court. The Court held that a single confession is not a sufficient ground for a zinā conviction. Therefore, it determined that the Appellant's confession before the trial court was not a sufficient basis for conviction. Further, it determined that retraction of a confession for an offense that impinged on the “rights of God” [ḥuqūq Allāh] (such as zinā or alcohol consumption) is permissible and valid even after judgment, if made before the execution of a sentence. The Court also held that a child born by an unmarried woman within seven years of a former marriage is affiliated with the former husband [following the paternity canon in Islamic law], and under such circumstances, childbirth does not constitute proof of zinā. The Court allowed the appeal and quashed the conviction.

The parties were married on 11 June 2006 and had one child. The applicant submitted that the marriage was initially harmonious. Since 2009, however, it had become quarrelsome because of the respondent's frequent and unwarranted jealously and threats to divorce the applicant. In February 2011, the applicant left the matrimonial home, taking with him his clothes and possessions. He had remained separated from the respondent for the two months leading up to the proceeding.

In her counterclaim, the respondent submitted that the applicant had never provided her with suitable financial support, and that she was always too afraid to ask him. Moreover, since February 2011, the applicant had not provided her with basic financial support, which she calculated to be IDR 2 million per month over five months (IDR 10 million). Pursuant to arts 152, 158, and 156 of the Compilation of Islamic Laws respectively, the respondent claimed she was entitled to IDR 6 million for iddah (three-month period after divorce has been granted), IDR 50 million in mut'ah (divorce compensation), as well as child maintenance payments (IDR 2 million per month) until the parties' child reached 21 years of age.

Due to the parties' ongoing conflict, pursuant to art 19(f) of Goverment Regulation No. 9 of 1975, as well as art 116(f) of the Compilation of Islamic Laws, the court granted the applicant a revocable divorce (talak satu raj'i). In regards to the respondent's counterclaim, the court ordered the applicant to pay to the respondent:

1. IDR 5 million in financial support for five months;
2. IDR 3 million for iddah;
3. IDR 4 million for mut'ah; and
4. IDR 1 million per month in child maintenance until the child reaches 21 years of age.

In Farooq Siddiqui v. Mst. Farzana Naheed,[1] the Federal Shariat Court of Pakistan (“the Court”)[2] considers whether surrogacy can be reconciled with Pakistani law and sharī‘a, and whether the law needs to be updated. The underlying case involved a Pakistani doctor living abroad who orally contracted with a Pakistani woman to serve as a surrogate, as his wife was unable to conceive, creating a “false drama of marriage” as a cover.[3] When the child came due, the surrogate refused to give the child to the doctor, and litigation commenced. The lower courts held the contract invalid and ordered the doctor to pay maintenance.[4] The Federal Shariat Court does not address the instant case specifically, but holds that surrogacy contracts, with the exception of “test tube babies,” are un-Islamic and void.[5]

[1] Farooq Siddiqui v. Mst. Farzana Naheed (2017), 2017 PLD (FSC 78) (Pakistan).

[2] As part of his project of Islamification of Pakistan, then-Prime Minister Zia created the Shariat Court with authority to decide whether Pakistani law is consonant with Sharia. Several justices are required to be Islamic law scholars. See Niaz A. Shah, Women the Koran and International Human Rights Law 101 (2006).  

[3] Supra note 1.

[4] Id.

[5] Id.

In this excerpt from his treatise on judicial practice, the Shāfiʿī jurist Abū al-Ḥasan al-Māwardī (d. 450/1058) addresses about twenty-five legal issues pertaining to the role of translation and translators in Muslim courts. He then subdivides these issues into four major categories, namely:(1) the legal status of translation, where he investigates the question whether translation should be considered testimony (shahāda) or a simple report (khabar) and outlines the divergence between Shāfiʿī and Abū Ḥanīfa on the subject; (2) the status of the translator as the father or son of the litigant or as a woman; (3) the identity of one litigant as a foreigner; and (4) the identity of both litigants as foreigners. Māwardī then derives the eligibility requirements for translators in court from the eligibility requirements for witnesses, implying similarity between the two roles. Māwardī thus concludes that the fathers and sons of litigants may not act as translators in court. Likewise, women’s translation may be used only in monetary lawsuits (iqrār bi-l-amwāl), in which they must also be accompanied by the translation of another woman and a man. Women may not serve as translators in marriage-related cases (iqrār al-ḥudūd wa-l-manākiḥ), with the exception of cases concerning adultery, in which a woman may serve alongside at least three other translators. In his chapter in Justice and Leadership in Early Islamic Courts, Mahmood Kooria uses this passage to point to a shift in the Shāfiʿī view on the status of translators and testimony, with Mawārdī expanding the Shāfiʿī treatment of this topic considerably.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.

The parties were married on 26 May 2000 and had three children. The applicant submitted that the parties' marriage had been harmonious until June 2012, after which time it had become quarrelsome because the respondent had had an extra-marital affair. The applicant learned of the affair after noticing the respondent telephoning the other man from various places such as the parties' bedroom, the bathroom, and kitchen, sometimes in the middle of the night. The applicant also submitted that the respondent would wait until the applicant was asleep before calling the other man, and would even take their son Iqbal with her when she would meet him.

Problems escalated in August 2012 when the respondent forbade the respondent from seeing or telephoning this other man. The respondent maintained that he was merely a friend and became angry with the applicant. The applicant then left the matrimonial home and moved to his parents' home. The parties had remained separated for the three years leading up to the proceeding. Familial intervention had failed to make the parties reconcile, and the applicant sought the court's permission to divorce the respondent (talak satu raj'i).

The respondent's counterclaim included requests for:

1. IDR 25 million to cover her expenses for the four-year period the parties were separated;
2. IDR 3 million for iddah (three-month period after divorce has been granted);
3. a prayer (sholat) instrument as mut'ah (divorce compensation); and
4. IDR 3 million per month for child maintenance.

The applicant, in response, offered:

1. two motorcycles for the four-year period the parties were separated, as these were acquired during the parties' marriage;
2. IDR 1.5 million for iddah;
3. a prayer instrument as mut'ah, as requested; and
4. IDR 2.4 million per month for child maintenance.

The court acceded to the applicant's request, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, on the grounds of ongoing conflict. With regards to the respondent's counterclaim, the court, noting that the applicant's average monthly wage was IDR 5 million, ordered the applicant to pay to the respondent the following:

1. IDR 15 million for the four-year period;
2. IDR 3 million for iddah;
3. a prayer instrument; and
4. IDR 3 million per month in child maintenance.

The parties were married on 20 June 1975 and their marriage certificate was issued the following day. They had first lived with the applicant's parents and the respondent's parents before moving to their own home in Langsa. The parties had five children and had been happily married for 35 years. Since June 2010, however, their marriage had become quarrelsome because, the applicant submitted, the respondent believed the applicant was not providing her with enough financial support. Moreover, the respondent did not agree with the applicant wanting to take another wife and would, therefore, frequently ask the applicant for a divorce. Problems escalated in November 2014 and the parties chose to sleep in separate beds. Familial intervention had failed to make the parties reconcile and the applicant believed that a revocable divorce (talak satu raj'i) was the best option.

In her oral response to the applicant's submissions, the respondent submitted that actually:

1. the parties had quarrelled since 1989, not over finances but because the applicant had, while married to the respondent, married two other women without first obtaining the respondent's permission; and
2. problems had escalated in November 2014 because the respondent had learned that the applicant had already married yet another woman.

The respondent told the court that she did not object to the applicant's request to divorce her but she demanded IDR 9 million in backdated financial support for the previous six months, as well as IDR 4.5 million for iddah (three-month period after which divorce has been granted). In response to these demands, the applicant submitted that he should only provide the respondent with IDR 3.6 million for the previous six months and IDR 1.8 million for iddah because the respondent already made IDR 1.5 million per month working on a palm oil plantation.

The court, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, acceded to the applicant's request by granting him a revocable divorce (talak satu' raj'i) on the grounds of ongoing conflict. It also partially acceded to the respondent's demands by granting the following:

1. IDR 4.5 million in backdated maintenance; and
2. IDR 2.25 million for iddah.

In Danial Latifi & Anr v. Union of India, the Supreme Court of India (the “Court”) considers whether the Muslim Women Protection of Rights on Divorce Act, 1986 (“the Act”) abrogates its ruling in Mohd. Ahmed Khan v. Shah Bano Begum and Others (“Shah Bano”).[1] In Shah Bano, the Court held that divorced Muslim women unable to support themselves have a right to lifetime maintenance under Section 127 of the Indian Code of Criminal Procedure, which does not conflict with Muslim Personal Law[2] ostensibly limiting rights to mahr[3] and maintenance during the period of iddat.[4] [5] In Danial Latifi, the Court holds that the Act did not overturn Shah Bano, but instead that divorced Muslim women who are unable to maintain themselves are entitled to receive a one-time lump sum payment during the period of iddat sufficient for lifetime maintenance. The Court chiefly justifies this ruling by arguing that abrogating Shah Bano, would violate various constitutional rights of Muslim women. The Court also makes prudential arguments concerning the impact of abrogating Shah Bano on divorced Muslim women’s economic circumstances, and moreover holds that abrogation would be contrary to Islamic law.

[1] Danial Latifi & Anr v. Union of India (2001) 7 SCC 740 (India).

[2] India has a uniform criminal code, but different personal codes addressing family law for various religious communities. This dual system is very controversial in India.

[3] A sum agreed upon prior to marriage to be given to a wife in two parts (one deferred and one immediate).

[4] The roughly three-month period where re-marriage is forbidden to divorced women.

[5] Shah Bano produced political backlash resulting in the passage of the Act referenced above, with the intention of overturning the ruling. See supra note 1.

The parties were married on 14 September 2013 and had one child. Initially, they lived with the plaintiff's parents for three months in Banda Aceh, before moving to a shop rented by the plaintiff's parents out of which a mobile phone business was operated (also in Banda Aceh). The plaintiff submitted that the happiness in the marriage had begun to dissipate by January 2014 because:

1. the mobile phone business was managed poorly by the defendant's nephew, while the defendant, after spending the day socialising with his friends, would return and coerce the plaintiff into taking the day's takings to meet the parties' own domestic needs, despite not contributing to the business himself, physically assaulting her if she did not comply with his wishes;
2. the defendant would physically abuse the plaintiff while she was pregnant; and
3. the business' lack of success resulted in the plaintiff having to request money from her parents (four times per month).

Problems escalated on 19 February 2015 when the plaintiff refused to return home from an event at her parents' home with the defendant, having already been slapped several times that day by the defendant. When she refused, the parties began to quarrel while still at the event.

Accordingly, the plaintiff sought a judicial divorce on the grounds of ongoing conflict, pursuant to art 19(f) of Goverment Regulation No. 9 of 1975, and art 116(f) and (h) of the Compilation of Islamic Laws. The plaintiff also sought custody of the parties' child on the grounds that the child was under the age of 12 (belum mumayyiz), and should therefore remain with his mother, pursuant to art 105(a) of the Compilation of Islamic Laws, as well as IDR 3 million per month in child maintenance, pursuant to art 105(c) of the Compilation of Islamic Laws.

In a letter dated 15 April 2015, however, the plaintiff withdrew her application for divorce, stating that she and the defendant had reconciled their differences. The Court accepted the withdrawal, and ordered the plaintiff to pay court costs (IDR 466,000).

The parties were married on 11 February 2001 and had one child. The applicant submitted, however, that around September-October 2013, he and the respondent had begun to quarrel regularly. This was the result of:

1. the respondent's distrust of the applicant, whereas the applicant provided the respondent space and time for her own activities;
2. an increasing incompatibility and difference of opinion between the two parties;
3. the respondent requesting the applicant return her to her family, which the applicant interpreted as the respondent wanting to separate from the applicant, despite the respondent returning to the applicant after being counselled by her older sibling; and
4. the above incidents leaving the applicant feeling uncomfortable in the respondent's presence and his feelings towards the respondent somewhat dissipated.

Indeed, the applicant and respondent had not been physically intimate since 2008.

The respondent refuted many of the applicant's submissions, primarily that the applicant's own sexual dysfunction caused by a blood condition, as well as his constantly playing golf, had caused the aforementioned rift.

After judicial mediation proved unsuccessful, the court, pursuant to art 39(2) of Law No. 1 of 1974 on Marriage, art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, granted the applicant a revocable divorce (talak satu raj'i) on the grounds of ongoing conflict. The court also ordered the applicant to pay to the respondent maintenance costs of IDR 30 million backdated six months, as well as IDR 15 million for iddah (100-day period after divorce has been granted), and IDR 25 million for mut'ah (divorce compensation).

The parties were married on 18 February 2002 and had two children. The applicant submitted, however, that, since 2003, he and the respondent had quarrelled regularly. This was a result of:

1. incompatibility and a difference of opinion as to domestic affairs;
2. the respondent not obeying the applicant; and
3. the respondent often sharing embarrassing family stories with other people.

Problems escalated in October 2013 resulting in the parties separating, the applicant moving to his parents' home. Since then the parties had not been physically intimate.

The respondent dismissed many of the applicant's claims, qualifying that while she and the applicant had quarrelled, their problems were still reconcilable. Moreover, that she had been an obedient and respectful wife and had not shared embarrassing family stories with other people. The respondent claimed that the applicant had confessed his own infidelity to her, and that this was the primary cause of the rift in their marriage.

Pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, the court granted the applicant a revorcable divorce (talak satu raj'i) on the grounds of ongoing conflict. The court also ordered the applicant to pay to the respondent IDR 2 million per month in child maintenance, as well as IDR 1.5 million for iddah (100-day period after divorce has been granted), IDR 2 million for mut'ah (divorce compensation), and IDR 2 million in back payments.

The parties were married on 7 March 1997 before a marriage registry official at the local Office of Religious Affairs. The plaintiff submitted that, at the end of 2011, she and the defendant had begun to quarrel often. This was a result of the defendant's gambling addiction, as well as his lack of financial transparency with the plaintiff. On one occasion this lack of transparency had resulted in a pivotal disagreement that left the plaintiff feeling uncomfortable in her relationship with the defendant. While family intervention had previously made the parties reconcile, this disagreement compromised any genuine reconciliation. Problems escalated further in September 2013, when the defendant failed to maintain his end of an agreement with the plaintiff to purchase a vehicle.

The plaintiff, having lost patience with the defendant, left Batam (where the parties were living) and returned home to Padang to her parents' home. Since then the defendant had not asked the plaintiff how she and their children were. On 30 January 2014, the defendant sent to the plaintiff a piece of paper, the contents of which stated that he divorced the plaintiff. Accordingly, the plaintiff decided their differences were irreconcilable and sought to divorce the defendant.

The court, pursuant to art 19(f) of Government Regulation No. 9 of 1975, in conjunction with art 116(f) of the Compilation of Islamic Laws, acceded to the plaintiff's request for an irrevocable divorce (talak satu ba'in shugra) on the grounds that ongoing conflict between the parties was a legitimate reason for divorce.