1.LAW 605 JUN 2013 PART C Mohd Izwan bin Ishak 2011457166 Nur Sakinah binti Hafiz 2011828328 Wan Nashitah Othman 2011489584

2. Rosmimah has been married to Sallehuddin for 20 years. They have 3 children , Aziz aged 18, Suria aged 14 and Malik aged 2 years. In 2010,Sallehuddin was assigned to manage the companys affairs in Dhubai. The whole family moved to Dhubai to accompany him. However, a year later he married Jenny, a French national, who converted to Islam. Rosmimah obtained Sallehuddins consent before she and the children left Dhubai. She and the hildren stayed at their matrimonial home at Kuala Lumpur. Since then neither she nor the children were given maintenance by Sallehudin. 3. (a) Distinguish between the concept of darar syarie and nusyuz in a polygamous marriage. 4. Surah Surah An-Nisa (4):3If you fear that you shall not be able to deal justly with the orphans, marry women of your choice two or three or four; but if you fear that you shall not be able to deal justly with them then only one. That will be more suitable to prevent you from doing injustice. Surah An-Nisa (4):129You are never able to be fair and just as between women, even if it is your ardent desire but turn not away from a woman altogether so as to leave her as it were hanging in the air. If you come to a friendly understanding and practise self-restraint, God is Oft Forgiving, Most Merciful. 5. Hadith Narrated by Ibnu Majah, Rasulullah (pbuh) said; Family of Hisham Al-Mughirah have requested my permission to give their daughter in marriage to Ali bin Abi Talib. Neither I give my permission nor will give in future, unless and until Ali bin Abi Talib divorces my daughter, for surely she is part of me and what troubles and agitates her, troubles and agitates me too, and what harms befall her, befalls upon me too. 6. Abu Bakar Ar-Razi in his book of Akhamul Quran -Allah commands marriage with one wife only if there is fear of injustice in marrying more than one. Imam Syafie in Kitab Al-Umm - marriage must not cause the wives to suffer in their livelihood. Hadith narrated by Ibnu Majah, the ruler can forbids or allows polygamy based on situations. 7. Shaik Mohammed Abduh - suggests that the State shouldinterfere to control polygamy. He said that polygamy in Islam is so restricted that it almost becomes a matter of necessity (dharurat) which is allowed to a person on condition that he can act with equity (adl) to all the wives. Thus, two conditions laid down by Shaik Mohammed Abdul for court to allow polygamous marriage are the husband must be capable to become just in distributing his favour and he must be in position to support plurality of wives and dependent. 8. IFLA 1984 Section 23(1) Section 23(1A) Section 23(2) Section 23(3) Section 23 (4) - grounds that court will consider to allow polygamy: the proposed marriage is just or necessary; the applicant has such means as to enable him to support all his wives and dependants according to hukum syarak, thirdly, the applicant would be able to accord equal treatment to all his wives as required to all his wives as required by hukum syarak and the proposed marriage would not cause darar syarie. 9. Section 2 darar syarie means harm according to whatis normally recognized by Islamic Law, affecting a wife in respect of religion, life, body, mind, dignity or property. Section 52(2) - the acts of wife which constitute asnusyuz or unreasonably refuses to obey the lawful wishes or commands of her husband. These include (a) when she witholds her association with her husband; (b) when she leave her husbands home against his will; (c) when she refuses to move with him to another home or place without any valid reason according to hukum syarak. 10. In distinguish between the concept of darar syarieand nusyuz in a polygamous marriage, a wife will not constitute as nusyuz even when she does the acts under Section 59(2) as the acts were due to injustice she received by her husband. A husband who practises polygamy but did not act in fair and justice manner cause darar syarie to wife or wives. Thus, the wife does not considered as nusyuz and can claim her right of maintenance as wife. 11. Roslan bte Abdul Ghani v Zulkifli [1986] 6 JH 338 The wife claimed payment of maintenance for herself. She alleged that she was the second wife of the defendant and that he had not paid her maintenance since 1 Jun 1985. The husband did not attend court and after hearing the wife and her witnesses the learned Kadi asked the wife to take an oath (sumpah al-istidzhar) that she had been faithful to the husband. The learned Kadi referred to the Holy Quran, verse 34 of Surah An-Nisa: Men are the protectors and maintainers of women because Allah has given the one more strength than the other and because they support them from their means. Therefore the righteous women are devoutly obedient and guard in the husbands absence what Allah would have them guard.And to the Hadith in Sahih Muslim Kitab Al-Hajj: Fear Allah concerning women! Verily you have taken them on the security of Allah and intercourse with them has been made lawful to you by the words of Allah their rights upon you that you should provide them with food and clothing in a fitting manner. 12. The learned Kadi referred to Raudh al-Talib stated that if a wife is nusyuz, she would lose her right to maintenance. And finally the Kadi referred to Muin al-Mubin and Kifayatul Akhyar. He has decided that the wife had not lost her right to maintenance and he ordered the husband to pay the maintenance at the rate of RM100 a month from 1 June 1985. The Kadi referred to surah At-Talaq, verse 7 to the effect: Let the man of means spend according to his means and the man who is restricted let him spend according to what Allah has given him. 13. (b) Rosmimah was never divorced by Sallehuddin. She wishes to apply for maintenance for herself and the children. Advise Rosmimah. 14. Issue The issue is whether Rosmimah and her children are entitled to the right of maintenance 15. Surah Surah al-Baqarah 2:223A father has to provide food and clothing for his wife and children. Surah an-Nisa 4:34Men are the protectors of women because Allah has given the one more strength than the other and because they support them from their means. Therefore the righteous women are devoutly obedient and guard in the husbands absence what Allah would have them guard. 16. Hadith The Prophet Muhammad SAW said that,Fear Allah in respect of your wives, they are in your care and control, they do not possess any means and you should give them clothing, food and other necessities. 17. Islamic Family Law Act 1984 Section 59(1)The court may order a man to pay maintenance to his wife. Section 59(2)A wife shall not be entitled to maintenance, when she is nusyuz or unreasonably refuses to obey the lawful wishes or commands of her husband, that is; a) when she withholds her association with her husband b) when she leaves her husbands home against his will, or c) when she refuses to move with him to another home 18. Section 72(1)It shall be the duty of a man to maintain his children as are reasonable having regard to his means and station in life. Section 73(1)The court may at any time order a man to pay maintenance for the child of his; a) if he has refused or neglected to provide reasonably for his child, b) if he has deserted his wife and the child is in her charge. 19. Cases Haji Ali v AisyahThe wife claimed maintenance from her husband as the husband had not paid her any maintenance or gone to live with her since 1975. The husband appealed on the ground that he could not afford to pay maintenance and alleged that the wife was nusyuz. The Appeal Board ordered a re-trial to decide on the issues of; a) whether the wifes leaving the husbands house was in a nusyuz manner or not; and b) whether the husband had the means to pay the maintenance. 20. Roslan bte Abdul Ghani v Zulkifli The wife claimed payment of maintenance for herself and took an oath that the she had been faithful to the husband. The court held that the wife is entitled to the right of maintenance since she was not guilty of nusyuz. 21. Application Rosmimah never withhold association with her husband, Sallehuddin. In fact, she is willing to move with her husband to Dhubai. She also obtained Sallehuddins consent before she left their home in Dhubai and has been faithful as a wife. Therefore, it is proven that Rosmimah is not guilty of nusyuz under Section 59(2) and is entitled to maintenance. Sallehuddin, on the other hand, has refused or neglected to provide maintenance for his children at time they left Dhubai and lived with his wife in Kuala Lumpur. As such, he has deserted his wife and the children that are in her charge. The court thus may order him to pay maintenance of the children under Section 73(1). Having regard his financial means, it is affordable for Sallehuddin to provide maintenance for his wife and his children since he has a prosper business in 22. Conclusion Rosmimah and her hildren are entitled to the right of maintenance. 23. (c) Three years after his marriage to Jenny, Sallehuddin had a heart attack and is half paralyzed. He opt for retirement and both he and Jenny returned to Kuala Lumpur. Sallehuddin purchased a new house in Kuala Lumpur and stayed with Jenny. Both of them had adopted Aziq, aged six months. During his marriage to Rosmimah, Sallehuddin had purchased a 20 acre agricultural land in Johor and had entered into a goat rearing business with Rosminahs brother, Atan. The business prospered and last month Sallehuddin decided to expand the business and purchased two more pieces of land in Johor. Sallehuddin also purchased ASB shares worth RM 100,000 and has savings of RM 300,000 in the CIMB Bank. Advice both Rosmimah and Jenny as to their rights of inheritance, in the event of Sallehuddins death. 24. Issue Whether Rosmimah and Jenny have rights of inheritance, in the event of Sallehuddins death. 25. ANSWER : The muslim women have special rights compared to the other women. This is because of the interaction between adat and syariat. Last time,the Asian women used to work with the husband in order to ease the burden of raising a family. Thus, term of harta sepencarian was not alien to us. Basically, there are two main adat being referred to. First, the Adat Perpatih. 26. Q: whether Harta Sepencarian falls under adat or syariah? Case of Hujjah Lijah binti Jamal v. FatimahBinti Md Diah, Briggs J stated: the rule governing harta sepencarian are not part of Islamic law proper, but a matter of Malay adat. After the amendment of Federal Constitution,the insertion of Article 121(1A), matters related to harta sepencarian to be heard in the Syariah Court. 27. Surah an-Nisa verse 32: And in no wise covet those things in which Allah has bestowed His gifts more freely on some of you than on others: to men is allotted what they earn, and to women what they earn: but ask Allah of His bounty. For Allah has full knowledge of all things. 28. Surah al-Baqarah verse 228: Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah has created in their wombs, if they have faith in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish to reconciliation. And women shall have rights similar to the right against them, according to what is equitable; but men have a degree (of advantage) over them. And Allah is Exalted in Power, Wise. 29. Al-Asybah wa an-Nazair written by Ibn Nujaim & As-Sayuti any custom practiced by a race which does not against the Islamic principles can be accepted and can be made as a law for the country.Al-Umm by Imam Ghazali Imam Syafii wrote that when a dispute occurs between man and a woman in regards to articles or household furniture in their household as a result of their divorce or even though not separated or both husband and wife die or one of them dies and in the situation where both husband and wife die or one of the two of them dies a dispute arises among the heirs on one of the two sides the method for resolution in all cases are the same. 30. Ctd Muslims scholars referred harta sepencarian asmata al-Bayt and Mal al-Zawjayn which means the property of the house; and property of the couple (husband and wife). Ibn Qayyim al-Jauziyyah mentioned in his book Kitab Al-Turuq al-Hukmiyyah recognized harta sepencarian as a part of Muslim practice. 31. Fatwa by Mufti Terengganu property that is individually belonged to either wife or husband, shall not be distributed among them, each of them take what is theirs, meanwhile the property which is acquired as a result of working together, thus the property must be distributed according to ration of the contribution made by the husband and wife, without taking into account how much he or she invested at first. 32. Legislation referred : Section 2 of the Islamic Family Law (FederalTerritories) Act 1984 Section 122(1) of the Islamic Family Law (Federal Territories) Act 1984 Section 122(2) of the Islamic Family Law (Federal Territories) Act 1984. 33. Case referred : Boto bte Taha v. Jaafar bin Muhammad[1985] 2 MLJ 98 Tengku Anun Zaharah v. Dato Dr Hussein (1980) 3 JH 125 Zainuddin v. Anita (1980) 4 JH 73 Aminah bt Ahmad v. Zaharah bt. Sharif [2008] 3 SHLR 56 34. Application : Both Rosmimah and Jenny need to provecircumstance under case Zainuddin v Anita. Although Rosmimah might not contribute in monetary forms for the acquisition of the property, but moral support and her obedience as a wife could be considered as contribution, by case of Aminah bt Ahmad v Zaharah bt Shariff. The award of property to Rosmimah could ease her burden of raising the children. 35. Conclusion : Rosmimah can claimed for the right of inheritanceas the first wife, and Jenny also can get the right of inheritance, after the property were deducted for the harta sepencarian for Rosmimah, and the rest are to be distribute accroding to faraidh.