Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles

In Islam, if a husband treats his wife with cruelty either physically or mentally, she has the right to apply to the court for the marriage to be dissolved on the ground of fasakh. In Malaysia, the practice is that the Syariah (In Malay language, Shari‘ah is known as Syariah) Court asks the wife to...

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Main Authors:	Abas, Afridah, Md Hashim, Noraini, Abdul Hak, Nora
Format:	Article
Language:	English
Published:	INSI Publications 2012
Subjects:	K Law (General) KPG Malaysia
Online Access:	http://irep.iium.edu.my/27919/ http://irep.iium.edu.my/27919/ http://irep.iium.edu.my/27919/1/Fasakh_and_IBM.pdf

id	iium-27919
recordtype	eprints
spelling	iium-279192013-02-13T22:32:55Z http://irep.iium.edu.my/27919/ Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles Abas, Afridah Md Hashim, Noraini Abdul Hak, Nora K Law (General) KPG Malaysia In Islam, if a husband treats his wife with cruelty either physically or mentally, she has the right to apply to the court for the marriage to be dissolved on the ground of fasakh. In Malaysia, the practice is that the Syariah (In Malay language, Shari‘ah is known as Syariah) Court asks the wife to provide sufficient evidence to prove her claim, failure of which the application for fasakh will be set aside. In some cases, a Syariah Court demands a high standard of proof of the act of cruelty by the husband such as the requirement of two male witnesses, who have witnessed such act. This has caused difficulty to the wife, as it is practically hard to fulfil this requirement. Whilst, under section 54 (1) (b) of the Law Reform (Marriage & Divorce) Act, 1976, the plaintiff may petition for divorce on the ground that the respondent has behaved in such a way that the plaintiff cannot be reasonably be expected to live with the respondent. The act of cruelty of the respondent either physically or mentally is more than adequate to the term behaviour as stated under the present divorce law. In the case of irretrievable breakdown of marriage, both the objective and subjective tests have been used by the courts to decide whether or not the plaintiff can reasonably be expected to live with the respondent as a consequence of the respondent’s behaviour, including, cruelty. If it is proven, then the court will grant the application for divorce. This article examines the above issues relating to the methods of proof and evidentiary requirement in cruelty cases. Relevant legal provisions as provided under the Malaysian laws i.e., the LRA 1976 and the Islamic Family Law Act/Enactments and the practice of the Malaysian courts relating to this issue are also examined. Decisions of the Syariah and Civil Courts on cruelty in divorce cases are analysed to highlight the practice in Malaysia. INSI Publications 2012-11 Article PeerReviewed application/pdf en http://irep.iium.edu.my/27919/1/Fasakh_and_IBM.pdf Abas, Afridah and Md Hashim, Noraini and Abdul Hak, Nora (2012) Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles. Australian Journal of Basic and Applied Sciences, 6 (11). pp. 160-165. ISSN 1991-8178 http://www.ajbasweb.com/ajbas_Special%20issue_2012.html
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English
topic	K Law (General) KPG Malaysia
spellingShingle	K Law (General) KPG Malaysia Abas, Afridah Md Hashim, Noraini Abdul Hak, Nora Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles
description	In Islam, if a husband treats his wife with cruelty either physically or mentally, she has the right to apply to the court for the marriage to be dissolved on the ground of fasakh. In Malaysia, the practice is that the Syariah (In Malay language, Shari‘ah is known as Syariah) Court asks the wife to provide sufficient evidence to prove her claim, failure of which the application for fasakh will be set aside. In some cases, a Syariah Court demands a high standard of proof of the act of cruelty by the husband such as the requirement of two male witnesses, who have witnessed such act. This has caused difficulty to the wife, as it is practically hard to fulfil this requirement. Whilst, under section 54 (1) (b) of the Law Reform (Marriage & Divorce) Act, 1976, the plaintiff may petition for divorce on the ground that the respondent has behaved in such a way that the plaintiff cannot be reasonably be expected to live with the respondent. The act of cruelty of the respondent either physically or mentally is more than adequate to the term behaviour as stated under the present divorce law. In the case of irretrievable breakdown of marriage, both the objective and subjective tests have been used by the courts to decide whether or not the plaintiff can reasonably be expected to live with the respondent as a consequence of the respondent’s behaviour, including, cruelty. If it is proven, then the court will grant the application for divorce. This article examines the above issues relating to the methods of proof and evidentiary requirement in cruelty cases. Relevant legal provisions as provided under the Malaysian laws i.e., the LRA 1976 and the Islamic Family Law Act/Enactments and the practice of the Malaysian courts relating to this issue are also examined. Decisions of the Syariah and Civil Courts on cruelty in divorce cases are analysed to highlight the practice in Malaysia.
format	Article
author	Abas, Afridah Md Hashim, Noraini Abdul Hak, Nora
author_facet	Abas, Afridah Md Hashim, Noraini Abdul Hak, Nora
author_sort	Abas, Afridah
title	Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles
title_short	Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles
title_full	Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles
title_fullStr	Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles
title_full_unstemmed	Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles
title_sort	dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles
publisher	INSI Publications
publishDate	2012
url	http://irep.iium.edu.my/27919/ http://irep.iium.edu.my/27919/ http://irep.iium.edu.my/27919/1/Fasakh_and_IBM.pdf
first_indexed	2023-09-18T20:41:21Z
last_indexed	2023-09-18T20:41:21Z
_version_	1777409386170286080

Dissolution of marriage on the ground of cruelty : a comparative overview of fasakh and irretrievable breakdown of marriage principles

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