KUALA LUMPUR – Judges should be empowered to issue arrest warrants for husbands who refuse to appear in shariah courts for divorce proceedings.
This is because divorce through the “hakam” route is heavily dependent on the husband attending the first hearing, but the biggest challenge is getting him to attend court, said a shariah lawyer Ashikin Rahim.
Ashikin told Scoop that there are several divorce procedures under the shariah law. But generally, the rules allow husbands to do so by declaring “talaq” which means “to release”.
“This is done under Section 47, a provision available in all states that governs regular divorce, mutual and non-mutual.
“If a husband is uncooperative and does not intend to divorce, the wife can apply for divorce through hakam, ‘fasakh’ and ‘ta’liq’ procedures.”
She added that in such situations, women would not have to go through extensive hurdles to apply for divorce in some states, such as Selangor and Kuala Lumpur.
“In Kuala Lumpur and Selangor, an individual can file for a divorce under the same Section 47. If the husband does not agree, matters can be escalated to the hakam stage.
“Through hakam, as long as the applicant goes through the three stages of reconciliation by the reconciliation committee (first stage) and meditations by the hakam panel (second and third stage), the wife will get the divorce,” she added.
Through fasakh and ta’liq, in the absence of the husband, women will have to attend the trial ex-parte (with only one party present) and prove to the court they qualify for a divorce due to a variety of reasons including physical or mental abuse, among others.
“The wife will have to bring at least two suitable witnesses and provide proof. This can include police or medical reports that can be used as supporting documents to obtain the divorce.”
Ashikin, who has been featured on television programmes to share about shariah matters, said it would be progressive to make it an offence if the husbands do not come to court after being served with necessary papers.
“I would say we should standardise in all states and allow judges to issue an arrest warrant for errant husbands. With police involvement, the court process won’t be disregarded.
“Compared to fasakh and ta’liq, there is no trial under hakam and the husband’s attendance is required at least once.”
Better legal representation, especially for domestic abuse victims
Meanwhile, shariah lawyer Noor Jehan Abu Bakar also acknowledged difficulties faced by Muslim women seeking a divorce, saying problems could be overcome if they have legal representation.
Jehan said usually, women who go to court to seek a divorce by themselves might not get the right advice on procedures and assume they have to convince their husbands to appear and declare talaq.
This, she says, is especially dangerous for victims of domestic violence.
“If the husband knows his wife isn’t represented, they will take advantage of the situation.
“I have had cases where husbands have asked their wives for tens of thousands of ringgit just to appear in court but in the end, they don’t show up,” she told Scoop.
Pointing towards the alleged murder of 32-year-old Nisya Syahkila Shahurun by her husband in Batu Gajah, Ipoh, Jehan suspects the victim who went to see her spouse to discuss their ongoing divorce proceedings may have been unrepresented.
With legal representation, Jehan said, women who are especially victims of domestic violence would not have to get into dangerous situations because there are ways to obtain a divorce without having to meet their husbands.
“The thing is, these unrepresented women could not prove that they have served the necessary documents to their husbands.
“Sometimes they have personally given the documents to the husband – but without an acknowledgement, they have to start the process all over again.
“If they have a lawyer, we can file the affidavit of service or get substituted service.”
On whether the shariah divorce system requires reforms, Jehan suggested improving access to legal representation.
Currently, those who cannot afford a lawyer are left at the mercy of the Legal Aid Department.
As Jehan points out, the department conducts a means test and not everyone qualifies for legal aid.
“For reforms, we may consider reducing the threshold for the means test.
“This means that even if someone has an income, they should be able to get legal aid to ensure they have access to justice.”
A potentially violent ending
Last Thursday, Nisya Syahkila Shaharun was allegedly murdered by her husband at a hotel in Batu Gajah, Ipoh.
A victim of domestic violence, Nisya filed for divorce through the fasakh route given her husband’s refusal to end their marriage and attend proceedings.
It was reported that Nisya and her husband were supposed to attend court on the day of the incident. According to Batu Gajah police chief Md Noor Aehawan Mohammad, the motive of the murder is the suspect’s dissatisfaction with his wife’s insistence to continue divorce proceedings.
Meanwhile, in April, a man was arrested after trying to shoot his wife at KLIA, but instead hitting her bodyguard. Police said that the couple was in the midst of a divorce. – June 26, 2024