Vicarious Liability

Vicarious Liability

Vicarious liability is a liability which arises due to the special relationship between the employer and employee, master and servant, and etc. Some of the justifications:

i) Master is liable because of employing a negligent employee

ii) Failure in controlling the employee

iii) Master derives benefit from the employee’s services

iv) Master is in a better financial position to compensate the injured party (deep pockets)

v) Master would be in a better position to insure against losses.

In order to prove vicarious liability, 3 elements have to be proven.

i) There must be a wrongful or tortious act by the tortfeasor

ii) There exists a special relationship recognized by law between the person alleged to be vicariously liable and the tortfeasor.

iii) The tort is committed within the course of employment.

2. Special Relationship

Tests are employed to determine whether there is a special relationship (whether it is a contract of service or contract for services).

Control Test

1. Short v Henderson

Lord Thankerton held that the four indicia of a contract of service are… (a) the master’s power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master’s right to control the method of doing the work; and (d) the master’s right of suspension or dismissal.

2. Collins v Hertfordshire County Council

In this case, there was a junior surgeon and a visiting surgeon. The issue was on vicarious liability. Court held that the junior surgeon is an employee while the visiting surgeon is not. Thus, the hospital is only vicariously liable for the junior surgeon.

In a contract for services, the master can order or require what is to be done, however, for a contract of service, the master can require what is to be done and also how it shall be done.

Organisation Test

1. Stevenson Jordan

In a contract of service, a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for services, although the work is done for the business, it is not integrated into it but is only accessory to it.

2. Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd

In this case, the plaintiff was a sawyer at the defendant’s sawmill and he sustained injuries while carrying a log with a co-worker. The Court held that since the defendants determined the wages and the number of logs to be sawn, the plaintiff’s work was an integral part of the defendant’s business and was therefore an employee of the defendants.

Multiple Test

1. Ready Mixed Concrete

In this case, one Mr. Latimer worked for Ready Mixed Concrete. Mr. Latimer’s contractual terms included the need to wear the company uniform, to maintain the lorry at his own expense and pay its running costs, the mutual intention that he was an independent contractor, the company paid for the petrol and etc. Court held that he was an employee of the company.

3 Elements:

 i) There is a payment of wage or other remuneration for the performance of the worker’s service

ii) The worker agrees, in the performance of service, to be subject to the other’s control in a sufficient degree to make that other master.

iii) The other provisions of the contract are consistent with its being a contract of service.

 Malaysia

1. Bata Shoe Company (Malaysia) Ltd v Employees Provident Fund Bhd

Court employed the control test. The salesmen in retail shops are not employees of Bata because:

i) the company does not select such salesmen for appointed.

ii)Their wages are not paid by the company.

iii)The company has no direct control over the manner in which the work is to be done by the salesmen.

iv) Furthermore, the right of suspension or dismissal is exercised by the manager.

Hospital Staff

1. Cassidy v Ministry of Health

The plaintiff went to the hospital for a routine operation but came away with stiff fingers due to the doctor’s negligence. The Court held that the hospital was vicariously liable although they have no control in how the work is done. However, they were liable because they employed the staff and chosen them for the task. They also have the power of dismissal.

2. Roe v Ministry of Health

The plaintiff underwent a surgery. At the time, the anaesthetic was stored in glass ampoules immersed in a phenol solution. However, the glass had micro-cracks which were invisible to the eye but it allowed the phenol to penetrate. When the anaesthetic was administered, it caused permanent paraplegia. Court held that the micro-cracks were not foreseeable given the scientific knowledge at that time. Therefore, the hospital had applied the best practice and was not negligent.

3. Tan Eng Siew v Dr Jagjit Singh Sidhu

The doctor worked in the hospital for a short period and the hospital claims he is independent. The hospital provided him the facilities needed to carry out his work. It was held that the doctor was an independent consultant and the hospital is not vicariously liable.

Lending a Worker

If an employer lends out his worker to another party, the original employer is still liable for the tort of his worker, unless he has divested himself of all possession and control.

1. Mersey Docks

A crane driver was hired from Mersey Docks by the hirers. The driver drove the crane negligently and injured someone. The Court held that Mersey Docks is still liable even if the employee was lent to a hirer.

3. In the Course of Employment

A conduct is said to be within the course of employment if:

i) it is expressly or impliedly allowed by the employer;

ii) when the employee does something that is authorized in an unauthorized manner; or

iii) when the employee does something that is closely connected to what he is employed to do.

1. Staton v National Coal Board

An employee was going to collect his wages when he was involved in an accident. The Court held that even though the employee had finished his working hours, the collecting of the wages was still in the course of employment.

Carelessness of worker in the performance of his job

The commission of a careless act by a worker may still be within the course of employment as long as it wasn’t done on his frolic.

1. Century Insurance Co Ltd v Northern Ireland Road Transport Board

The driver was delivering petrol to a petrol station. He was pumping the petrol underground when he lit his cigarette and threw it away. It resulted in an explosion. Court held that it was not in the course of employment since the lighting of the cigarette was not part of the job.

Unauthorised mode of doing something authorised

If the employee makes a mistake in the course of his job, the employer may be liable.

1. Bayley v The Manchester, Sheffield, and Lincolnshire Railway Company

A railway porter saw a man of whom he thought would go onto the wrong train and pull him off the train by force. The man was injured. Court held that although the porter was negligent, he was still acting within the scope of his employment.

Tort committed in protection of employer’s property

1. Poland v John Parr and Sons

An employee saw a lorry belonging to his firm off which a boy wanted to steal sugar. He pushed the boy off the lorry and injured him badly. The company was held to be vicariously liable since it was for the employer’s benefit.

Worker delegating his responsibility

A servant cannot delegate his responsibility to a third party, thus, an employer will be held liable if the third party commits a tort.

1. Ilkiw v Samuels & Ors

A lorry driver was under instructions from his employers not to allow anyone else to drive the lorry. He allowed a third party who was incompetent to drive. Court held that the employer was vicariously liable.

Worker acting for his own benefit

If the worker does an act for his own benefit, he may still be acting within the scope of his employment.

1. Zakaria bin Che Soh v Chooi Kum Loong & Anor

In this case, the worker was a driver. After sending a director home, he took the vehicle for lunch and met with an accident. Court held that it was still within the course of employment as it was reasonably expected that he would go for lunch.

2. Samin bin Hassan v Government of Malaysia

The plaintiff was knocked down by the defendant who was driving a land rover belonging to Telekom Berhad. The defendant alleged that he wanted to test the brakes when he actually went for lunch. Court found that the employer was not vicariously liable.

Acting against employer’s express prohibition

Even if a worker acts against the employer’s express prohibition, it doesn’t necessarily mean that he is acting outside the scope of his employment.

1. Joseph Rand Ltd v Craig

The workers were rubbish collectors and the employer had expressly prohibited them from throwing the rubbish in places other than the rubbish dump. Some employees deposited the rubbish on the plaintiff’s property. Court held that the employer was not vicariously liable.

2. Harrison v Michelin Tyre Co Ltd

In the premise of the factory, the employee drove the vehicle closely to other workers as a prank. The employee caused the plaintiff to fall and injure himself. Court held that although the employee’s act was prohibited, it was still within the course of employment.

3. Limpus v London General Omnibus Company

A bus driver racing to a stop to collect passengers deliberately obstructed the driver of a bus of a rival company, overturning the latter's vehicle. The bus driver had been given instructions against obstructing other buses. Court held that the employer was vicariously liable as the defendant was doing an authorized act in an unauthorized manner.

Employee acting on a frolic of his own   

1. Joel v Morison

If the employee was going against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.

2. Keppel Bus Co Ltd v Sa’ad bin Ahmad (controversial)

The bus passenger argued with the bus conductor. The conduct struck the claimant in the eye. The Privy Council held that an employee who struck the plaintiff while working as a conductor on the defendant’s bus was not doing so in the course of employment and neither was he authorized to strike the plaintiff.

3. Roshairee bin Abdul Wahab v Mejar Mustafa bin Omar & Ors

The 1^st defendant was in charge of the camp orientation. The 2^nd defendant was a part time lecturer who was involved. The defendants tortured the plaintiff while caused injury to the latter. The ragging was done in the premises of the government and the government didn’t authorize such acts. Court held that the government was vicariously liable for the act of the 1^st defendant. The 2^nd defendant was acting as an independent entity.

4. Bohjaraj a/l Kasinathan’s case

The plaintiff, who was a passenger on a bus operated by D2, was assaulted by D1, the bus conductor, when the plaintiff commented on D1’s rudeness to a few schoolchildren. Court held that D1 was in the course of employment and thus, D2 was vicariously liable.

Fraud of the worker

An employer may be liable for the fraud committed by his employee if such act was within the apparent scope of the employer’s function.

1. Lloyd v Grace, Smith & Co

In this case, the clerk took some deeds under the employer’s care and transferred the deeds to himself. Court held that the fraud was committed within the scope of employment and the employer is thus liable.

Commission of theft by employee

An employer may be liable for the theft committed by his employee if it occurred within the course of employment.

1. Morris v CW Martin & Sons Ltd

When an employer has a duty to take care of goods or belongings of another and he entrusts that duty to a servant, he is liable if that servant is careless or if the servant steals the goods.

Sexual abuse by employee

1. Lister & Ors v Hesley Hall Ltd

An employee can be held vicariously liable for sexual abuse committed by an employee.

Liability in Respect of Independent Contractors

A person is not liable for the tort committed by his independent contractor under a contract for services.

Alcock v Wraith:

Facts: Mr. and Mrs. Swinhoe lived in terrace No.50. They employed an independent contractor, Mr.Wraith, to do some re-roofing. The re-roofing caused damage to Mr. Alcock who lived in terrace No.47. Mr. Alcock claimed for damages against Mr. and Mrs. Swinhoe and also Mr.Wraith. Court held that Mr. Wraith’s liability is indemnified by the couple.

“…where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work.”

Exceptions:

1. Cases regarding nuisance

Matania v National Provincial Bank Ltd

This case was concerned with a claim for damages for nuisance caused by dust and noise during building operations on premises of which Mr. Matania occupied the second and third floors. The employer was liable for the nuisance caused by the independent contractors as the work constituted a hazardous operation.

2. Cases involving non-delegable duties of an employer for the safety of the employee

i) Alcock’s case

ii) DBKL v Ong Kok Peng

In this case, the employer hired some independent contractors to do repairs on a lift. It was negligently done which resulted in an injury to the plaintiff. Court held that the employer was vicariously liable as it was a non-delegable duty.

3. Cases involving the withdrawal of support

i) Bower v Peate

When a man orders a work to be done, which in the natural course of things, injuries consequences to others is expected, is bound to prevent the mischief and cannot avoid responsibility by employing someone else to do the work.

ii) Dalton v Angus and Hughes v Percival

The exception was limited to work on a party wall. It was held that the duty went as far as to require the defendant to see that reasonable skill and care were exercised in those operations which involved the use of a party wall. The defendant could not get rid of such responsibility by delegating the performance of it to a third party.

4. Cases involving extra-hazardous activities

i) Honeywill and Stein v Larkin Brothers Ltd

Extra-hazardous activities are acts which in their very nature brings special danger to others; such as acts that cause fire and explosion.

ii) Brooke v Bool and Salsbury v Woodlands

A person who does work which involves danger to another person’s property is liable for any damage resulting to it from the failure to take proper care and is equally liable if he delegates such duty to another person.

5. Where the employer is under some statutory duty under which he cannot delegate

i) DBKL v Ong Kok Peng

Facts: The plaintiff fell into a lift shaft that was under repair. The owner hired independent contractors to repair such lift. Court held that the owner of the premise was still liable. The maintenance of the lift was a statutory duty imposed on the defendant by the Factory and Maintenance Act. The defendant cannot escape liability by delegation.

- A non-delegable duty to take care means that the employer has to exercise such duty of care, whether by his contractor or not, otherwise he would be equally liable as the contractor, and even most times for the contractor’s liability.

6. Escape of fire

i) Lee Kee v Gui See & Anor – escape of fire

7. Escape of substances

i) Rylands v Fletcher – escape of water

8. Operation on the highway which may cause danger to highway users

Gray v Pullen

The defendant’s house was adjoining a highway. He employed a contractor to cut a trench across the highway to connect a drain from his house to a sewer. A highway user was injured when the trench wasn’t filled in properly. The defendant was liable for the contractor’s negligence.

Family Law

Family Law Notes

Betrothal (Khitbah)

- It means engagement or a mutual promise to marry. The iddah’ period for a woman upon the death of her husband is 4 months and 10 days according to Baqarah (2:234). The iddah period for a woman upon her divorce is 3 menstrual cycles, i.e. 3 months.

In Baqarah (2:234-235), it is stated: There is no blame on you if you make an offer of betrothal (khitbah) or hold it in your hearts. Allah knows that you cherish them in your hearts. But do not make a secret contract with them except in terms honourable nor resolve on the tie of marriage until the term prescribed is fulfilled. And know that Allah knows what is in your hearts and take heed of Him. And know that Allah is Oft-Forgiving Most Forbearing.

Hadith: A person shall not enter into a transaction when his brother had already entered into but not finalised and he should not make a proposal (khitbah) already made by his brother, until he permits it or until he gives it up.

- Betrothal is not a legal contract. It does not make the parties husband and wife; they are merely affianced.

- It is prohibited to have a contract of betrothal with a woman in the period of iddah after a revocable divorce as she is still tied to her husband and the husband has a right to revoke the divorce.

- If the divorce is irrevocable, it is haram to seek betrothal with her openly during iddah as her former husband can still seek to remarry her.

- But if the husband has died and the woman is in iddah of widowhood, the general view is that she can be sought in marriage by suggestion, but even in this case it would be haram to do so openly so as not to hurt her feelings and those of the family.

- It is also haram to make a proposal of marriage to a woman to whom a proposal has been made, unless the first proposal has been rejected.

Elements of marriage

1. A male party

2. A female party

3. A wali

4. 2 male witnesses

5. Pronouncement of ijab and qabul

Conditions of the husband

Baqarah (2:221), it is stated that it is better to marry a religious slave than an alluring girl who is not religious.

1. a Muslim male

2. Not within ihram haji or umrah

3. Doesn’t have four wives.

4. Voluntarily and not under duress

5. Must be a man and not a khunsa musykil (a person with 2 different sexual organs)

Conditions of the wife

 Baqarah (2:221), Do not marry unbelieving women (idolaters) until they believe. A slave woman who believes is better than an unbelieving woman even though she allure you.

1. A Muslim woman

2. Not a muhrim (within prohibited degrees) to a prospective husband

3. Not a wife to another person and not within the period of iddah in connection with that person.

4. Not within ihram haji or umrah.

Wali

A wali is a legal guardian for a woman. He is the woman’s closest adult male relative who has authority and responsibility with regard to her marriage. Aisyah reported the Hadith: ‘The marriage of a woman who marries herself without the consent of her guardian is void’ He said the words 3 times.

1. Muslim man

2. Must have attained the age of puberty. (upon night pollution)

3. Voluntarily and not under duress

4. Not within ihram haji or umrah

5. Not fasiq (reprobate person) / Not dishonest

6. Of sound mind

Permission of a woman

	Wali mujbir	Wali not mujbir
Virgin daughter	No need to ask for consent. However, it is recommended	Compulsory to get consent
Divorcee or widow	Compulsory to get consent	Compulsory to get consent

P.S : If the person is married but still a virgin, she is a virgin under the IFLA.

Reasons for transfer of wali aqrab to wali ab’ad

1. Wali aqrab has not attained the age of puberty

2. Wali aqrab is mad / unsound mind

3. Wali aqrab is fasiq

4. Wali aqrab is of a different religion with the woman

5. Wali aqrab is dead

Reasons of transfer of wali khassah (no.1 to 18 of the list of wali) to wali ammah (general)

1. Wali nasab is not available

2. Wali nasab lives 2 marhalah (60 miles) or more

3. Absence of wali aqrab as his whereabouts is unknown

4. Wali aqrab refuses to be wali and the Qadhi is satisfied that it is so

5. Wali aqrab is within ihram haji or umrah

6. Wali aqrab is about to be married to the woman concerned (cousins)

Witnesses

Hadith: ‘there is no marriage except where there is a wali and two witnesses who are adil (just). Otherwise the marriage will be invalid.

1. 2 male witnesses

2. Muslims

3. Sound mind

4. Attained the age of puberty

5. Can hear, speak and see

6. Understand the requirements of sighah ijab and qabul

7. Just and fair

Sighah (ijab and qabul)

- It simply means offer and acceptance.

Sighah ijab:

1)      the word nikah or tazwij or translation of both in whatever language shall be used or pronounced.

2)      May be made by the wali or his representative

Sighah qabul:

- An acceptance for a man himself or his representative after sighah ijab (offer) without the insertion of any extraneous words or undue delay.

Cases

1. Ismail v Aris Fadillah & Anor

The plaintiff asked the court to annul the marriage between his sister and the first defendant. He acted as wali when his sister was married to the first defendant but he later knew that the paternal grandfather was still alive at the time of marriage. Kadi held that the marriage was annulled as there was a nearer wali.

2. Hashim v Fatimah

Both parties to the marriage and the wali of the woman were resident in Kedah. However, the marriage took place in Padang Besar, Thailand. Chief Kadi held that the marriage was invalid as the distance between the place of residence and place of marriage was less than two marhalah.

3. Hussin v Saayah & AnorThe defendants went to Thailand to get married and without the consent of the plaintiff, i.e. the father of the bride. The Kadi annulled the marriage because the father did not consent to it and there was no evidence that the father refused to give consent.

What are the legal consequences of breach of promise to marry?

s.15 of the Islamic Family Law (FT) Act – the party in default has to return the betrothal gifts or the value thereof and to pay the amount of money expended in the preparation of marriage.

Recognition of contracts:

Maidah (5:1)

Tawbah (9:4)

Age of marriage

Male – when he reaches the age of puberty (first night pollution). Earliest is 12 years old.

Female – age of puberty (menstruation) – earliest 9 years old.

In the absence of any sign of puberty, then 15 years according to Shafie.

Aishah reported a Hadith: The prophet (pbuh)married me when I was 6 years old but I was admitted to his house at the age of nine.

- In Malaysia, most states including Johor and Melaka provide that no marriage will be solemnized under the Administration of Islamic Family Law Enactment if the male is under the age of 18 and the female is under the age of 16 except if a Shariah judge has given his permission in writing in certain circumstances.

- The Shafie School of law requires consent from wali for a woman’s marriage. The wali is authorised to solemnise the marriage on behalf of a woman or girl.

S 7 of IFLA (FT) – the marriage shall be solemnised by wali or representative of wali or the Registar as representative of wali. For women with no wali nasab, the marriage shall be solemnised by only the wali Raja.

Capacity to marry

A woman whose marriage is terminated by divorce or death can only marry after the iddah’ period. According to Baqarah (2:228), divorced women have to wait for 3 menstrual cycles before they can marry again. During the period, the husband can reconcile with them.

S.14 of the IFLA – governs the marriage of a woman.

Polygamy

Muslim men can marry up to 4 wives at a time provided they can treat their wives equally. Under Nisa (4:3), it is said that if a man fears that he is not able to treat all wives equally then it is better to marry only 1 so as to prevent injustice. The reason why polygamy was allowed was due to the effects of wars of Islam whereby many girls became orphans and women became widows.

S.23 of IFLA – a man should get permission in writing from the Court should he wish to marry more. The Court shall summon the existing wives to be present at the hearing of the application.

S.123 of IFLA – it is an offence to commit polygamy without the Court’s permission.

P.S: If a man has four wives and he divorces one, he is unable to marry another immediately as the divorced wife is still his wife during the period of iddah’.

Prohibited marriages

Nisa (4:22-24), Baqarah (2:221), Maidah (5:6)

Hadith

1. One should not combine a woman and her father’s sister nor a woman and her mother’s sister.

2. Fosterage makes unlawful what consanguinity makes unlawful.

S. 9 of IFLA lists down the prohibited degrees of marriage:

i) Consanguinity – because of blood ties

ii) Affinity – because of marriage

iii) Fosterage – because the parties share the same suckling mother. To be a suckling mother, the requirements: 5 x full provided the child was below 2 years old as defined in s.2 of IFLA.

S.9(4) – 2 sisters can’t be married to the same guy at one time as it may lead to jealousy. The reasoning is such: If one of the sisters were a male, they would be within prohibited degrees of marriage. Therefore, if they are both female, marriage is still forbidden.

s.10 of IFLA – no man shall marry a non-Muslim except a Kitabiyah

                        - no woman shall marry a non-Muslim.

Kafa’ah – religion, lineage, wealth and beauty

Maskahwin and pemberian

Definition in s.2 of IFLA – obligatory marriage payment from husband to wife under hukum syarak.

In Nisa (4:4) – give the women on marriage their dower as a free gift; but if they of their own good pleasure remit any part of it to you take it and enjoy it with pleasure and good cheer’.

In Islam – no fixed amount

In Malaysia – the amount is determined according to the Islamic Family Law Administration for each state. For e.g. RM300 for Selangor.

S.21 of IFLA – mas kahwin

s.57 of IFLA – Right to mas kahwin is still there even after divorce.

Cases

1. Janat v Sheikh Khuda Buksh

The parties divorced then the court ordered the husband to pay the maskahwin. Only with the wife’s consent may he substitute articles for money. However, in the absence of proof of consent, articles cannot be regarded as part of the maskahwin.

2. Shaari v Teh

The court ordered the husband to pay maskahwin and ordered the wife to go back to the husband.

3. Salma v Mat Akhir

The parties were divorced but the maskahwin hasn’t been paid. The Court ordered the husband to pay RM600 as dowry.

4. Siti Zamrah v Majid

The divorced wife claimed for mahr. Ex-husband said that the wife agreed to give all of her property. The wife denied and taken oath. The ex-husband was ordered to pay RM 700 to the divorced wife.

5. Abdul Kadir v Fatimah

The wife claimed payment of her maskahwin of RM24. The Kadi gave judgement in her favour.

Procedure and formalities

S.16 – Application for permission to marry

s.17 – Issue of permission to marry

s.18 – Reference to an action by Shariah judge

s.19 – Permission necessary before solemnization

s.20 – Place of marriage

s.22 – Entry in Marriage Register

s.24 – Solemnisation of marriages in Malaysian Embassies, etc., abroad

s.25 – Registration

s.29 - Books and Registers to be kept of all marriages

s.30 – Copies of entries to be sent to Chief Registrar

s.31 – Registration of foreign marriage of a person resident in the Federal Territory

s.34 – Legal effect of registration (doesn’t affect the validity of marriage)

Dissolution of marriage

Talaq

- It means to release or dismiss

Baqarah (2:229)

A divorce is only permissible twice; after that, the parties should either hold together on

equitable terms or separate with kindness.

(65:2)

Thus when they fulfill their term appointed, either take them back or part with them on equitable

terms.

Hadith: The most detestable of all things permitted by Allah is al-talaq.

According to Shafie school the pronouncement of talaq is divided into sarih (explicit terms) or

kinayah (implicit terms)

Sarih: it is the direct pronouncement of divorce. Upon pronouncement, the divorce is valid and

effective. For e.g. ‘I divorce you with 1 talaq’ is effective upon pronouncement. Even if it was

done without intention, it is still valid.

- A husband may only pronounce the talaq 3 times. The diagram illustrates how it works:

Number of talaqs	Ruju’ / Reconcile	Remarry
1	Yes	Yes
2	Yes	Yes
3	No	No

The only way for the husband to remarry the wife after 3 talaqs is if the wife undergoes the

process of Tahlil (making lawful).

Steps:

i) Wait for the wife’s iddah period to expire

ii) She marries a new man

iii) She consummates the marriage

iv) She gets divorced

v) She observes the period of iddah’

Types of talaq

1. Talaq Raj’i (revocable divorce)

The husband divorces his wife with 1 talaq and can still ruju’ during the period of iddah’ or after the expiry of iddah’ he can marry her again by going through the whole marriage ceremony again.

i) Talaq ahsan/sunni

- The most proper course of divorce. The husband pronounce one talaq only in the moment of the wife’s purity, i.e. when she is not on her menses and the husband is not having sexual intercourse  with the wife during that moment of purity.

ii) Talaq Bid’ie

- It is a valid divorce but it is forbidden. It occurs when the husband pronounces talaq while the wife is on her menses or during her purity but the husband is having sexual intercourse with her during the same moment of purity. If divorce during the period of menses, the iddah’ period is longer because it doesn’t count the period of menstrual cycle. The rationale of iddah’ is to see if the wife is pregnant.

2. Talaq Ba’in (irrevocable divorce)

i) talaq ba’in sughra

- dissolves a marriage instantly at the time of pronouncement. The husband cannot ruju’ during the period of iddah but he can remarry her after that period. It has to be done through a new marriage process and mas kahwin. This kind of talaq covers talaq through khulu’.

ii) talaq ba’in kubra

- pronouncement of three talaqs whether at one time or through accumulation of 3 talaqs. The husband can no longer ruju’ or remarry his wife except after she has undergone the process of tahlil. Another form of this talaq is talaq through li’an.

Procedure for talaq

S.47 – Divorce by talaq or by order. Under this section, a pronouncement of divorce cannot be made if the wife is pregnant or is having menses.

S.45 – Power of court to make order of talaq

S.54 – Maintenance of Register of Divorces and Annulments

S.55 – Registration of divorcees

S.51 – Resumption of conjugal relationship or ruju’

S.124 – It is an offence to pronounce talaq outside the court.

S.55A – Read with s.124, it is concerned with the registration of divorces outside the Court.

Pronouncement of 3 talaqs in one occasion

Shafie – taken as 3 talaqs (dominant opinion)

Hanafi – taken as 1 talaq only

Cases

1. Re Mohamed Hussin and Hazimah

- The husband pronounced 3 talaqs when the wife was pregnant. He was a Hanafi follower. The Court held that 3 talaqs were effective but upon appeal, it was held that the 3 talaqs became one talaq only.

2. Mohd Zuhdi v Norsharifah

- Pronouncement of 3 talaqs by the husband in one occasion made through the telephone out of anger. It was held that since both parties followed the Shafie school, 3 talaqs have been affected. The appeal was dismissed.

3. Mohd Husin bin Abdul Ghani & Anor

- There were 3 talaqs in one occasion out of anger. The wife was pregnant. Court held that it was effective according to Hanafi, i.e. only 1 talaq was affected.

4. Jasni bin Abdul Rahim v Rahmah bte Mohd Jono

The parties were divorced before with 1 talaq. The husband then pronounced 2 talaq. Court held that 3 talaq was affected. The husband took oath, saying that he intended only 2 talaqs in total. Court held that only 2 talaqs were effective.

5. Rojmah bt Abdul Kadir v Mohsin bin Ahmad

- The learned trial judge allowed the parties to register the divorce made outside the court. However, on appeal, the court rejected the application as there were no witnesses or evidences to prove that the divorce took place outside the court.

6. Zainab v Abdul Latif

- Pronouncement of talaq outside the court which was an offence under s.124 of IFLA. The parties had to confirm its validity with the Court according to s.55A.

Appointment of Arbitrators or Hakam

Nisa (4:35)

‘And if you fear a breach between the husband and wife appoint a hakam (arbitrator) from his family and a hakam from her family; if they shall desire a reconciliation Allah will cause them to agree’.

S.48 of IFLA – Arbitration by Hakam.

Khulu (Divorce by Redemption)

- The wife is entitled to claim under this type of dissolution of marriage if there is apprehension that she ‘transgresses the limits of God’. E.g. if she deeply detests her husband and can no longer perform her marital duties, she can take steps to terminate the marriage.

- Khulu’ is effected by means of appropriate words, spoken or written by two parties or their respective agents, by which the wife offers and the husband accepts compensation out of her property for the release of his marital rights. The divorce is completed by pronouncement of talaq. It is irrevocable and is classified as talaq bain sughra.

- Technically khulu’ is the divorce of husband and wife for a compensation paid by the wife to the husband.

- A wife requests for a divorce from her H by offering him money/gifts – she is unable to live with the H for various reasons, such as when she no longer loves him, she no longer wishes to continue conjugal relations with him or she is unable to tolerate or accept his negative behaviour.

Surah al-Baqarah (2:229)

“If you (judges) do indeed fear that they would be unable to keep the limits ordained, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah, so do not transgress them”.

- This verse permits a wife to redeem herself by giving some consideration to her husband and permits the husband to accept it in exchange for his repudiation when they cannot live according to God’s will morally and religiously. 

- The amount of money/value of gift is not fixed - dependent on husband’s approval. It may include a house, a car, a piece of land, an orchard or even the return of the mas kahwin (mahr).

- The effect of this type of divorce is that the former H cannot return to his former wife(ruju’), cannot add on a talaq to his former wife during her iddah period and he may return to his former wife only after marrying her again with a new mas kahwin.

S.49 of IFLA – If the husband doesn’t voluntarily pronounce a talaq, but if the parties agree to a divorce by redemption, the Court shall, after the payment of tebus talaq, cause the husband to pronounce a divorce by redemption, and such divorce is irrevocable. If the amount of payment is not agreed upon by the parties, Court will assess based on Hukum Syarak having regard to the status and means of the parties. If there is a reasonable possibility of reconciliation, the Court shall appoint a conciliatory committee under s.47.

1. Talib bin Salleh v Sepiah

The wife brought an action for divorce against the husband because the husband did not treat her fairly. The Court appointed a hakam to consider the matter. The hakam agreed on tebus talaq or divorce by redemption on the payment of RM100.

2. Che Pah v Siti Rahmah

The husband applied for an order for the wife to return and cohabit with him because she ran from the matrimonial home. The wife refused as she alleged that the husband gambles, drinks and do not pray. The wife offered to pay for the tebus talaq. The Court still ordered the wife to return. A Hakam was appointed and the Hakam got an agreement for tebus talaq with the payment of RM 100.

3. Nerah v Ahmad

There was a dispute between the husband and wife. Court appointed Hakam and the Hakam agreed for tebus talaq on the payment of RM 150 by the wife. Upon payment, talaq was pronounced.

Ta’liq

- 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 al-Maidah (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 absents 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

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 where husband has failed to maintain the wife

1. Aminah v Ahmad

The wife complained that the husband had deserted her and had not given maintenance for more than 3 months. The wife called 2 witnesses to support her case. Court held that one talaq has been affected.

2. Amdan v Ghazali

The wife claimed for ta’liq because her husband did not live with her and did not give maintenance for more than 4 months. Court gave judgement in favour of the wife and held that one talaq has been affected.

3. Zabidah v Abdul Rahim

The wife claimed that her husband did not give maintenance for more than 6 months. Witnesses were called but didn’t support the claim. Husband took oath to deny her charges. The Court dismissed her claim and talaq was not effective.

4. Aisny v Hj Fahro Razi

Wife applied for confirmation of cerai ta’liq under s.50(1). Court held that since the husband had failed to maintain her for more than 4 months, the wife is entitled to have the cerai ta’liq confirmed. A divorce by one talaq is affected.

                                                                                                                          

5. Fakhariah v Johari

Court held that the fact that the husband’s refusal to maintain the wife because she went to America to further her studies without his permission, did not absolve the ta’liq made by the husband. It further stated that there was no express condition in the ta’liq stating that the wife was only entitled to the maintenance if she was not nusyuz, and gave the decree in her favour.

P.S. if didn’t apply in court, there won’t be a divorce.

Cases where the husband was absent or assaulted the wife

1. Siti Zainab v Mohamed Ishak

The wife claimed that the husband had deserted her for more than 3 months. Witnesses were called. The wife claimed that she did not leave the matrimonial home and had taken oath to support the claim. Court held that divorce with one talaq is effective.

2. Fathillah v Mohamed Ghafar

Husband deserted the wife for more than 3 months. The wife called witnesses and took oath. Court held that divorce with one talaq is affected.

3. Piah v Muhammad Zainal

The husband had deserted the wife for more than 2 years and also failed to pay maintenance. The wife called witnesses and took oath. The Court asked the wife to pay RM 1 to the husband and she was then divorced by one talaq, by way of khulu’.

4. Tuminah v Arifin

Same as above

5. Hasnah v Saad

The wife claimed for ta’liq because the husband had assaulted her on her face. She then produced the ta’liq pronouncement by her husband and the medical certificate to support her case. The Court held that divorce with one talaq is affected.

Fasakh

It means the annulment of the marriage contract by the court after the W has made and application therefor. Hence, whilst the H has the talaq, the W has the fasakh to dissolve the marriage.

Surah al-Baqarah (2:231)

Surah an-Nisa (4:128)

Although fasakh is at the disposal of the W, two further conditions must be fulfilled by the W before court can grant her application:

i) No agreement or consensual plan between H and W to divorce each other through fasakh;

ii) There must be evidence on oath of 2 witnesses, if the disability is impotency

- Fasakh is also available to the husband, if he becomes aware that his wife is insane, suffering from leprosy or elephantiasis/ is incapable of sexual intercourse because of physical infirmity. In practice, this option is rarely exercised as the husband already has the right of talaq.

Grounds for fasakh

1) Separation due to disease or defect

•      According to Shafi’i school, a husband or wife may be granted fasakh on the basis of the following:

            i)          unsoundness of mind

            ii)         leprosy or elephantiasis

            iii)        vertiligo

            iv)        any illness which prevents them from sexual intercourse, such as impotence or                                absence of sexual organ.

2) Non-providing maintenance

3) On account of cruelty

4) Husband has deserted the wife or has been imprisoned

S 52 of IFLA – provides a long list of situations where fasakh may be granted.

1. Abdul Aziz v Che Pah

The wife claimed that the husband was too poor to give maintenance. The wife tendered evidence and witnesses testified. The wife took an oath. Court held that the wife was divorced through fasakh.

2. Atikah Abdul Hamid v Razali Ahmad

The wife claimed divorce through fasakh because the husband was taken away from communists and she did not hear from him until he came back 3 years later. She claimed that her husband failed to give maintenance and she took oath. Court ordered that a divorce by fasakh be granted.

3. Rafiah v Hassan

The wife claimed a divorce by fasakh because the husband had been missing since 1987. The husband had not sent maintenance since then. Court decreed a divorce by fasakh.

4. Habsah v Ahmad

The wife claimed fasakh because she alleged that he husband had not given maintenance to hear and his whereabouts is unknown. Court called witnesses and she took an oath. Court ordered that a divorce by fasakh is granted.

5. Rosnani v San Ahmad

Wife applied for fasakh because she alleged that the husband had deserted her and had not given maintenance for about a year. The wife called 2 witnesses. Court held that a divorce by one talaq through fasakh is granted.

6. Joan Mary v Sulaiman

The parties had married in Australia in 1961, and then they came back to Malaysia and stayed in Kelantan. The husband married his 2nd wife and neglected his first wife. The wife brought an action for fasakh on the grounds that the husband neglected her, failed to give maintenance to her, didn’t treat her fairly and also failed to perform his marital duties as husband for more than 1 year. The court ordered a divorce by way of fasakh.

Li’an

- When a man accuses his wife of adultery, but has no witnesses other than him, he must testify 4 times that he is truthful, and the 5th time the curse of Allah shall be upon him, if he lied.

- To avoid chastisement, the wife must also testify 4 times that he has lied and a 5th time that the wrath of Allah should be upon her, if he had been truthful. The marriage then dissolved and became irrevocable.

Surah an-Nur (24:4-9)

S.50 of IFLA –if granted, parties cannot remarry nor ruju’ anymore.

Ancillary Claims

1. Maskahwin/Mahr/Dowry

P.S Has been covered above.

2. Maintenance during iddah

S.65 of IFLA – the order for maintenance shall cease on the expiry of the period of iddah or the wife being nusyuz.

Definition of nusyuz is provided in s.59

On divorce, the wife is entitled to maintenance for the period of iddah.

Surah At-Talaq (65:6)

Let the women live in iddah in the same style as you live according to your means; annoy them not so as to restrict them. And if they carry life in their wombs then spend your substance on them until they deliver their burden.

1. Zahrah v Saidon

Divorced wife claimed for iddah maintenance. Court allowed her claim.

2. Zainuddin v Anita

Maintenance and accommodation should be given to a woman who is divorced with a revocable divorce.

3. Asiaamal v Abdul Jabbar

Divorced wife claimed maintenance and also the arrears. The husband agreed to pay but he had paid RM 220 in respect of the past maintenance. Court ordered the husband to pay maintenance and also the arrears after deducting the RM 220.

4. Piah v Che Lah

The divorced wife claimed for iddah maintenance. After examining the evidence, the learned Chief Kadi found that the wife had been guilty of nusyuz. Her claim was dismissed.

P.S. wife can claim maintenance under s.59 if the parties are still in a continuous marriage. A wife is not nusyuz if she didn’t follow what the husband commanded if the command is against Hukum Syarak or the order is unreasonable. If the wife is nusyuz then she is not entitled to get maintenance either during the continuance of a subsisting marriage or even during iddah period.

 3. Residence

- Right of accommodation of a divorced wife.  Surah At-Talaq (65:1)

O Prophet! When you divorce women divorce them at their prescribed periods and count accurately the prescribed periods and fear Allah your Lord. And turn them not out of their houses nor shall themselves leave except in case they are guilty of some open lewdness.

S. 71 of IFLA provides that a divorced wife is entitled to stay in the home where she used to live when she was married for as long as the husband is not able to get other suitable accommodation for her.

The right shall cease:

i) If the period of iddah has expired

ii) The period of guardianship of the children has expired

iii) If the woman has remarried

iv) If the woman has been guilty of open lewdness

v) If the iddah period ended and there is no claim of accommodation made by the wife, her right to the accommodation will lapse.

4. Muta’ah or Compensation

- It simply means consolatory gift.

Surah al-Baqarah (2:241), For divorced women muta’ah should be provided on a reasonable scale. This is the duty on the righteous.

S. 56 of IFLA

A woman who has been divorced without just cause by her husband may apply for muta’ah or a consolatory gift.

1. Noor Bee v Ahmad Sanusi

In this case, there is a right of mutaah but the amount was in dispute. The husband offered RM200 to the wife. From the facts, it was shown that the husband was responsible for the divorce. It is clear that the wife had shown her love and willingness to serve the husband. The husband was an army officer with RM1,700 monthly salary. The Kadi fixed RM1,500 as mutaah so the husband had to pay the balance of RM1,300.

-  is a gift which is provided by Islamic law to be paid where a divorce has not been caused by any defect on her part or by an application of fasakh for a defect or fault by the husband.

- It is payable not only in the case of talaq by husband but also in the case of khulu’.

- Reason – to console the wife and to remove any cause for accusation or shame which may arise from the divorce. It is also to enable her to face the difficulties caused by the separation from the husband on whom she had depended for maintenance.

- The amount of mutaah depends on agreement of the parties. If no agreement can be reached, it is fixed by the Kadi. In fixing the amount of mutaah, the Kadi will consider the financial position of the parties whether they are rich or poor and also the position and circumstances of the wife and the status of the family in the society. 

2. Piah v Che Lah

The parties were married for 43 years, wife was nusyuz but entitled to mutaah of RM500.

3. Rohaniah v Hj Ujang

The wife claimed mutaah of RM 10,000. The husband only offered RM 1,000. Court held that where there is a dispute on the amount, the judge should consider whether it is fair according to the position of both parties, including the financial position of the husband and the position and quality of the wife. In this case, the Court assessed the mutaah at RM 2,000.

4. Tengku Anun Zaharah v Dato Dr Hussein

The wife claimed from mutaah and based on evidence, the husband caused the divorce. The husband couldn’t prove that the wife was guilty of being a nusyuz. The Court held that since the parties were well off, the husband was ordered to pay the mutaah of RM 25,200.

5. Jaliah v Abu Bakar

In respect of every divorce which is asked by the wife or for reasons on her part, the wife cannot get mutaah.

5. Harta Sepencarian/ Matrimonial Assets

- Jointly acquired property based on Malay custom

- S 2 of IFLA – property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syarak.

S 2 of Admin of Islamic Law Enactment 1955 of Terengganu – the earnings or the property acquired as the result of joint labour of two spouses and includes the income derived from capital which is itself the result of joint labour.

S 122 of IFLA – Court shall have power to order the division of property. Subsection (1) and (2) is on property jointly acquired. Subsection (3) and (4) is on property acquired by sole effort. The extent of the contribution made by the party who did not acquire the assets and also the need of minor children will be considered by the Court. Furthermore, the party who acquired the assets gets a greater proportion. Subsection (5) states that assets owned before the marriage but substantially improved during the marriage can be included under the distribution.

1. Roberts v Umi Kalthum

Husband and wife bought a house for RM 50,000. Husband paid RM 40,000 while the wife contributed RM10,000. They were later divorced. The house was registered in the wife’s name. Court held that the jointly acquired property should be equally divided between them.

2. Boto v Jaafar

The husband was involved in a fishmonger business. The husband bought the matrimonial home, a piece of land, 4 fishing boats, and a fish stall. The parties were married in 1966 and later divorced. The wife claimed for harta sepencarian. Court held that the fact that the wife accompanied the husband in his business trips, gave up her employment because of the marriage, must amount to her joint efforts in the acquisition of the properties. She helped the husband to function effectively as a businessman. Court held that those properties were harta sepencarian and divided them into 1/3 for the wife and 2/3 for the husband.

3. Zarah v Saidon

The wife claimed for harta sepencarian but the claim was dismissed as there was no evidence that the properties were acquired during the marriage.

4. Tengku Anun Zaharah v Dato Dr Hussein

Wife claimed for harta sepencarian but the husband claimed that the property was acquired by his sole efforts. Court held that though the wife did not contribute financially to the property, she did contribute with her moral support and her position of royalty which enabled the husband to receive the title of Dato’. With that title, it was easier for him to prosper in business. The Court held that a piece of land shall be given to the wife as a share in the property.

5. Hasnah v Hussein

The divorced wife claimed for half of the share in the land and house which were jointly acquired during marriage. The husband contributed more to the property. Court held that the wife was entitled to ¼ of the value of the property.

Legitimacy of Children

Shafie school of law – where a child is born to a woman who is married to a man (a) after 6 months from the date of the marriage; or (b) within 4 years of the termination of the marriage, the mother not having remarried, then the paternity of the child is established with the husband.

Hadith: The child will be attributed to the husband and the adulterer will receive the stone.

S. 110 of IFLA– if child is born after 6 months of marriage or within 4 years after dissolution of marriage, the paternity is established in the man.

If within 6 months, the paternity of the child would not be so established unless the man asserts that the child is his and does not say that the child is the result of fornication (zina)

Syubhah intercourse is defined in s.2 to mean intercourse performed on erroneous impression that the marriage was valid or intercourse by mistake and includes any intercourse not punishable by hudud.

S. 113 IFLA – Syubhah intercourse with a woman and she delivers a child between 6 qarimah months and 4 qarimah years – paternity of the child is ascribed to the man.

S. 114 – Conditions for valid acknowledgement

S.115 – Presumption from acknowledgement rebuttable

S.116 – Acknowledgement by a woman in iddah

S.117 – Acknowledging another as mother or father

S.118 – Acknowledgement other than as a child, mother or father

S.119 – Acknowledgement irrevocable

1. Hj Ghazali v Asmah

The parties married in 1974 and were divorced in 1975. The wife claimed maintenance for a child born on the same day they were divorced but the husband denied that the child was his. Court held that the husband should have taken steps to deny that the child was not his as soon as possible but in this case he did not do so but only raised it as a defence to a claim by the wife.

Therefore, the child belongs to the husband as the child was born during the marriage and more than 6 months after marriage.

2. Salim v Masiah

 The Respondent married the appellant on 6/10/68 and the child was born on 2/6/69. The Appellant divorced the Respondent on 19/11/68. Court held the child was born more than 8 months after the marriage.  

3. Wan Azmi v Nik Salwani

The couple married on 29/6/1987 and divorced on 21/2/1988. On the 18/3/1988, the defendant gave birth to a child. The defendant brought an action for the maintenance of the child. The plaintiff husband denied that the child was his. Court held that since there was evidence that they had sexual intercourse and the child was born more than 6 months after the marriage, the child is the legitimate child of the plaintiff.

Custody of Children

Under the Islamic law, the custody is regarded as the right of the child and of the parents especially of the mother.

Hadith:

1. Abu Hurairah reported that a woman came to the Prophet (pbuh) and said: ‘Oh Messenger of Allah my husband wishes to go away with my son while he did me some service.’ Then the Prophet (pbuh) said to the boy: ‘This is your father and this is your mother. Take the hand of either of them whom you like.’ Afterwards the boy caught the hand of his mother.

2. Abdullah ibn Amr reported that a woman complained to the Prophet (pbuh): ‘Messenger of Allah my womb is a resting place of this son of mine, my breast a drinking place for him and my lap a soothing place for him, but his father divorced me and wishes to snatch him away from me.’ The Messenger said: ‘You got more right to take him till you marry someone else’.

IFLA:

S.81 – The mother shall be the person best entitled to the custody of her infant child during the connubial or marital relationship and also after its dissolution.

- This section must be read with s.82 which states that the mother is:

(i) a Muslim;

(ii) of sound mind;

(iii) of an age that qualifies her to give the care, love and attention that the child may need,

(iv) of good conduct from the standpoint of Islamic morality

(v) she lives in a place where the child may not undergo any moral or physical risk.

- S.81(2) further states that if the mother is disqualified under Hukum Syarak from having the right to hadhanah or custody, the right shall be passed to one of the following persons in order of preference:

(a) the maternal grandmother, how-high-soever;

(b) the father;

(c) the paternal grandmother, how-high-soever;

(d) the full sister;

(e) the uterine sister;

(f) the sanguine sister;

(g) the full sister’s daughter;

(h) the uterine sister’s daughter;

(i) the sanguine sister’s daughter;

(j) the maternal aunt;

(k) the paternal aunt;

(l) male relatives who could be their heirs as asabah or residuaries

- S.81(2) also states that the right is only passed from the mother provided that the custody of the other person does not affect the welfare of the child. Furthermore, in s.81(3), it is stated that no man can have custody of a female child unless he is within prohibited degrees of relationship.

- S.81(4) further states that subject to sections 82 and 84, where there are persons of the same line and degree equally qualified to take care of the child, then the custody is given to the person most virtuous who shows the greatest tenderness to the child. If all are equally virtuous, then the senior among them in age has the priority.

- S.83 is on how the right of custody is lost

- S.85 is on the custody of illegitimate children

- S.84 is on the duration of custody. The right of the hadhinah (mother) to the custody of a child is terminated when the child reaches the age of 7 years, if male, and 9 years, if female. However, the Court may allow the hadhinah to retain the custody of the child up to 9 years if male and 11 years if female. After the termination of the right of the hadhinah, the custody is transferred to the father. Once the child has reached the age of mumaiyiz or discernment, i.e. when the child can differentiate between good and bad, then the child has the choice of living with either of the parents, unless the Court orders otherwise.

- According to s.86, the Court has the power to make order for custody. Under s.86(2), the Court will decide the custody of the child and the paramount consideration is the welfare of the child. The Court will also have regard to the wishes of the parents of the child and also the wishes of the child, where he or she is of an age to express an independent opinion.

- Under s.86(3), there is a rebuttable presumption that it is for the good of a child during his or her infancy to be with the mother. In deciding whether the presumption applies to the facts, the Court shall have regard to the undesirability of disturbing the life of a child by changes of custody. Additionally, under subsection 4, the Court shall consider the welfare of each child independently if there are 2 or more children.

- S.87 also stipulates that an order for custody made may be subject to certain conditions imposed by the Court. The person given custody may decide all questions relating to the upbringing and education of the child.

- S.87(2) also states that an order for custody may contain conditions such as the child’s education and residence; provide for the child to be temporarily in the control of some other person than the person with custody, and etc.

Case Law:

Wan Abdul Aziz v Siti Aishah

The husband and wife married while they were studying in Australia. They had two children. They later separated and the younger girl stayed with the father and was looked after by the paternal grandmother. The elder girl stayed with the mother. They later divorced.

- In the first case, the mother claimed custody of the younger girl who was 4 years old. The Kadi gave custody of the child to the mother as she was entitled and fit to look after the child.

However, on appeal, the decision was reserved and the Kadi held that the father should have the custody of the child because the child had been living with the grandmother for over 2 and a half years and it would seriously affect her feelings. The welfare of the child is the basis and aim of custody.

- In the 2^nd case, the father claimed custody of the elder daughter who was 9 years old. The Kadi held that it was for the welfare of the child to remain with her mother and her maternal grandmother. An appeal was made but it was dismissed.

Wan Khadijah v Ismail

The mother claimed custody of her 5 children ranging from 7 to 14 years old. The mother had remarried. The Kadi asked the children to choose which parent why would like to live with and they chose the father. The Kadi then gave custody of the children to the father because the right of custody goes to the father since the mother has remarried. The Board relied on the fatwa of Shaik Ramli to the effect that if the children are grown up and if both parents have remarried the right of custody goes to the father.

Ahmad v Aishah

The parties had 3 children aged, 10 months, 2 years and 4 years at the time of divorce. The 2 younger children remained with the mother while the eldest child went with the father. The father had remarried again. The mother claimed custody of the eldest child. The Kadi gave custody to the mother by relying on the Hadith to the effect that the mother is more loving and better able to look after the child. Furthermore, it was to the interest of the child that she should be looked after by her mother rather than by her stepmother.

Maintenance of children

Hadith: Take from his property what is enough for your maintenance and the maintenance of your children.

S.72 of IFLA – Father has the duty to main his children regardless of custody. If the father is absent, then it is the duty of a person liable under Hukum Syarak.

S.73 of IFLA – power of court to order maintenance for children. 5 situations are given.

1. Khalid v Halimah

Divorced wife claimed maintenance for 4 children in her custody. The father had been paying RM 100 per month for the maintenance of the children. Court ordered the payment of RM 170 per month. On appeal, the amount was reduced to RM 120.

2. Wan Abdul Hamid v Maimunah

The wife asked for RM 100 per month for maintenance because she stated that the husband earned RM 300 a month. The husband claimed to have only RM 100 per month, so he offered RM 30. The Court concluded that the children needed RM 1 per day so he ordered RM 90 per month. On appeal, Court held that the kadi did not follow the proper procedure. If the father took oath to say that he doesn’t earn RM 300 a month, then the court can vary the order to RM 60.

3. Wan Maamor v Cik Jah

The divorced wife claimed maintenance of RM 150 a month but the father offered RM 30 a month. The Kadi made an order for the payment of RM 45 a month.

4. Tengku Anun Zaharah v Dato Dr Hussein

The father had agreed to pay RM 500 for the maintenance of the child but the mother claimed for an extra RM 350 per month. The Kadi then increased the maintenance to RM 800 per month because the father also has the responsibility to provide for the residence of the children even though the mother has custody.

5. Zarah v Idris

The divorced wife claimed maintenance for the two children. Court ordered the husband to pay RM 100 as maintenance to for them and also RM 50 a month to the wife for looking after them.

6. Zawiyah v Ruslan

The divorced wife claimed RM 100 for the maintenance of her 3 year old daughter. The father claimed that he earned RM 670 a month plus an allowance of RM 45. The Kadi ordered him to pay RM 45 a month for the child’s maintenance.