TIU Law Journal 1

Vol. 1, No.1, 1989

Marriage Breakdown Under The Law Reform (Marriage And Divorce) Act, 1976 And In Islam: A Comparative View

DR. S. JAFFER HUSSAlN*

1 INTRODUCTION

The search for a rational divorce law has ceaselessly agitated the minds of social scientists and reformers in contemporary society.' For centuries the divorce law in Christian Europe and other parts of the world which have imbibed common law traditions was entrenched in religious moorings'. The basis for untying the conjugal knot was the proving of the 'fault' or the 'guilt' of one of the spouses before dissolution of marriage could be sanctioned. There was a realisation on the part of English reformers as well as peoples in other parts of the world that the divorce law based on the doctrine of 'matrimonial guilt' was hypocritical and irrational.' It was also realised that the grounds for divorce were not the real causes on which spouses sought to dissolve the marriage. The causes may be

>leThe author is a Professor, Kulliyyah of Laws, International Islamic University, Malaysia.

1 'See generally, RHEINSTElN, Max, Marriage, Stability, Divorce and the Law, Oxford:

University Press, 1972; See BROMLEY, P.M., Family Law, London: Butterworth, 4th. ed., 1981, pp.186-190; FREEMAN, M.D.A., "The Search for A Rationale Divorce Law", Current Legal Problems, Vol. 24, 1978, p. 178.

2 CRETNEY, S.M., Principles of Family Law, London: Sweet & Maxwell, 4th. ed., 1984 pp. 99-103; See also BROMLEY, P.M., op. cit., pp.186.

3 See, "Reform of the Grounds of Divorce: The Field of Choice", in The Report of the Royal Commission of England, 1966; See also "Putting Assunder: A Divorce Law for Contemporary Society", in The Report of the Archbishop ofCenlerbury, London: SP.C.K., 1966.

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sociological or psychological,"

The mounting objection to the retention of 'fault' grounds, the hypocrisy involved in the resolution of matrimonial conflicts, the evils of adversary procedure, the widespread perjury percolating into the courts and to top it all, the wounds that the unhappy spouses have to lick after having subjected themselves to the trauma of legal battle paved the way for liberalisation and reform in divorce law. Many countries around the world have accepted 'breakdown of marriage' as a standard for marital dissolution. In India too the Law Commission has recommended the adoption of breakdown of marriage as an additional ground for divorce.' In Malaysia, divorce was, before the passing of the Law Reform (Marriage and Divorce) Act, 1976 regulated and conditioned by the philosophy of religion of the spouses and the customary law that governed them," The seeds for reform of the matrimonial law were sown by the judicia). decision of Re Ding Do cal The impetus that this decision gave to the cause of reform resulted in the appointment of a Royal Commission in 1970 by the Yang di-Pertuan Agong to look into the question of the feasibility of reforms in the matrimonial law of nonMuslims of Malaysia," Among the recommendations made by the Royal Commission was that irretrievable breakdown of marriage should be the sale ground for divorce," The law has been virtually lifted from England and implanted on the Malaysian soil. The basis of divorce and the proof of breakdown of marriage are now same both in Malaysia and in England.

In islam the Supreme Legislator (Allah SW1) has laid down the principle upon which dissolution of marriage should take place if the "limits of God cannot be observed". The doctrine of divorce envisaged

4 See TURMAN, Lawrence D., "Departure From Fault", Journal of Family Law, Vol. 1,1961, p.181.

5 Law Commission of India Report., New Dehli : Government of India, 1978.

6 See AHMAD b. Mohamed Ibrahim, Family Law in Malaysia and Singapore, Singapore :Malayan Law Journal, 2nd. ed., 1984.

7 Re Ding Do Ca (1966) 2 MU 220.

l Report of the Royal Commission on Non-Muslim Marriage and Divorce Laws, Kuala Lumpur: Government Printers, 1971.

'See MALAYSIA. Law Reform (Marriage and Divorce) Bill, 1972 annexed to the Royal Commission on Non-Muslim Marriage and Divorce Law, Kuala Lumpur: Government Printers,1971.

Marriage Breakdown: Comparative View/SJ. Hussain 115

in the Qur'an, inter alia is the decision to no longer live together as husband and wife. A disagreement between the parties to live as husband and wife is called Shiqaq. A "breach between the two" referred to in the Qur'anic verse 9(.) imply that either the husband or the wife want to break off the marriage relationship. The concept of breakdown of marriage which has so much charm and appeal and which has spread like epidemic in the Western world and which is claimed to be in conformity with 'modem thinking' or 'ideas' is comparable to the concept of shiqaq which has existed in Shari'ah as early as fourteen centuries ago.

It is the purpose of this article first, to the place in' the proper perspective the concept of marriage breakdown as it obtains in Malaysia which in tum is based on English Law and in Islam; secondly, to examine the application of the principle of breakdown in its actual working under both the systems and lastly' to critically evaluate the merits or otherwise of thesdcomparable concepts: marriage breakdown and shiqaq. While doing so the writer will also take a side glance on some selected jurisdictions of United States and Australia to find out the manner in which the principle of breakdown of marriage is introduced in these countries.

2 BREAKDOWN OF MARRIAGE IN MALAYSIA

In Malaysia, like England, the sole ground of divorce is that the marriage has irretrievably broken down.'? However, the law provides for the purpose of proving breakdown of marriage that "the Court shall have regard to one or more of the following facts". They arei-"

a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation

9 (a) See Infra note 52.

10 MALAYSIA. Law Reform (Marriage and Divorce) Act. 1976, Section 53

1! Ibid. Sec. 54.

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d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.

The Matrimonial Cause Act, 1973 of England also provides identical factual situations in order to hold that the marriage has irretrievably broken down."

The provisions of the Law Reform Act, 1976 relating to the proof of breakdown of marriage are in pari materia with that of the English Statute." Not many cases have come up before the courts under this Act. But slowly cases are tickling down into the courts for decision. There is no case which has been decided under guideline one of Section 54 (1)(a); i.e. that the respondent has committed adultery and the petitioner finds it intolerable to live with respondent. It is deemed profitable to refer to English Law on this point. It may be pointed out that according to Section 47 of the Law Reform Act "the court shall in all suits and proceedings hereunder act and give relief on principles which in the opinion of the court are, as nearly as may be, comformable to the principles on which the High Court of Justice in England acts and gives relief in matrimonial proceedmgs.'?'

The fact to be proved under guideline one of the Matrimonial Causes Act, 1973 is that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent," This provision has given rise to considerable judicial controversy." The question that arose was whether there ought to be any link or some connection between adultery and intolerability or whether the two factors were independent of each other. In otherwords, should the petitioner merely prove adultery and say that he found the life intolerable due to other reasons than adultery of the respondent or is it necessary for him to prove adultery and establish that it is by reason of the adultery that his living with the respondent had become intolerable. In Goodrich v. Goodrichl"

11. MALAYSIA. Matrimonial Causes Act. 1973, Section 1 (2)

U Ibid.

14 MALAYSIA. Law Reform (Marriage and Divorce Act) 1976, Section 47

I' MALAYSIA. Matrimonial Causes Act. 1973, Section 1 (4).

16 See BROMLEY, P.M., op. cit. p. 197-198; See also PASSINGHAM, Benard, Law and Practice in Matrimonial Causes, London: Butterworth, 3rd. ed. 1979.

17 Goodrich v. Goodwich, (1971) 2 All E.R. 1340.

Marriage Breakdown: Comparative View/S.r. Hussain 117

it was held that the phrase has "committed adultery" and the phrase "and the petitioner fmds it intolerable to live with the respondent" were independent of each other. On the other hand in Roper v. Roper" it was held by Faulks J. that there was no necessary nexus between the committing of the adultery and the finding that it was intolerable to live with the respondent. The learned Judge stated that where the finding that had got to be made was that the respondent has committed adultery and the petitioner found it intolerable to live with the respondent, it meant "and in consequence of the adultery the petitioner finds it intolerable to live with the respondent?"

Some text writers such as Bromley" subscribe to the view taken in Goodrich v. Goodrich.2O(a) Rosenbaum" is of the opinion that to construe this guideline such that there need be no casual link between adultery and intolerability seems, prima facie to betray the intention of the drafter of the Divorce Reform Act, 1969 (now Section 1(2)(a) of the Matrimonial Causes Act, 1973). The matter seems to have been resolved by the decision of the Court of Appeal in Clearly v. Cleary.22 It has been held that since the subsection does not contain the words "in consequence of the adultery" it is not permissible to read these words into it. This decision was followed in Carr v. Carr,"

The second fact for the purpose of proving marriage breakdown in Malaysia is that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This guideline covers a large range of acts which may include most of the matrimonial offences such as cruelty, causes which are 'grave' and 'weighty' that warrant dissolution of marriage." In Savinder Kaur v.

11 Roper v. Roper (1972) 3 All E.R. 668 19 Ibid. p. 670.

20 Bromley, P.M., op. cit.

20 (a) Goodrich v. Goodrich (1971) 2 All E.R. 1340.

21 ROSENBAUM, N. P., "Divorce Reform in England: The Decline of the Matrimonial Offence", Journal of Family Law, Vo1.12 (1972-73) p. 370; See FREEMAN, M.D.A., "Adultery and Intolerability", Modern Law Review, Vol. 35, 1972, p.l00

22 Cleary v. Cleary (1974) 1 W.L.R., p. 73.

23 Carr v. Carr (1974) 1 W.LR.P. 1534.

24 See for details, CRE1NEY, S.M., op. cit. and the cases gathered on the subject. Supra note 2 at pp. 124-132.

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Tharma Singh,25 the Court was called upon to consider this guideline for granting divorce. The parties belonged to Sikh Community and' were married in 1969. They had three children, two daughters and a boy when the wife filed a petition for divorce in 1981. In order to prove the breakdown of marriage, the wife alleged cruelty consisting of drunken bouts, vulgar abuse and assault on her and the children on the part of her husband. This conduct of the husband, the wife pleaded was such that she could not reasonably be expected to live with him. The unreasonable behaviour of the husband was proved by evidence and divorce was granted. While disposing of the petition Shankar J. observed:"

"The language of the Act and the realities of the situation leave this Court no option but to advise the respondent to harness his reserve of inner strength... But as far as the petitioner is concerned the decree of dissolution must be made ... "

In England too under this guideline all such conduct which could be regarded as cruelty, desertion etc. has been taken as sufficient pointing to the direction that marriage has been irretrievably broken down."

However, the standard or the test for proving legal cruelty, desertion or constructive desertion will not be the same under the new divorce law which envisages a shift from 'matrimonial fault' to 'marriage breakdown'. In Pheasant v. Pheasant, 28 Justice Ormrod states that the test to be applied is closely similar to, but not necessarily identical with that which was formerly used in relation to constructive desertion. The learned Judge further pointed out that under the new law it would be consistent if the problem were to be approached more from the point of breach of obligation than in terms of the outdated idea of the matrimonial offence." These observation apply with equal strength to the Malaysian divorce law.

25 Savinder Kaur v. Tharma Singh, (1985) 1 M.Ll 273.

26lbid. at p. 275.

21 See Bromley, P.M., op, cit. pp. 197-198.

21 Pheasant v. Pheasaltt (1972) 1 All E.R. 587.

2' Ibid. p. 591.

Marriage Breakdown: Comparative View/SJ. Hussain 119

The third fact which the court shall have regard to while investigating whether there has been a breakdown of marriage under the Law Reform Act, 1976 is that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition," Courts in Malaysia have been deciding cases on the ground of desertion while granting or refusing divorce before the passing of the Law Reform Act. They have followed the principles and precedents laid down in English law." The only thing that the courts will have to keep in mind is that the basis for divorce has been changed from matrimonial offence to matrimonial breakdown.

The fourth fact or guideline for establishing breakdown of marriage is that the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition for divorce." Under the corresponding guideline of the Matrimonial Causes Act, 1973 of England, in addition to 'living apart' for a period of two years, the law provides that the respondent should consent to a decree of divorce being granted." However, if the parties have lived apart for a period of five years immediately preceding the presentation of the petition, then irrespective of the fact whether or not the respondent consents to dissolution of the marriage, the Court is authorized to grant divorce," Living separate and apart has been accepted as a good index of marital breakdown in most of the countries which have adopted irretrievable breakdown of marriage as a ground for divorce," In fact this is one of the best proof pointing towards marriage breakdown. It has been held in Santos v. Sant0836 that the phrase 'living apart' did not mean physical separation.

30 MALAYSIA. Law Reform (Marriage and Divorce) Act. 1976. Section 54 (1) (c).

31 See AHMAD b. Mohamed Ibrahim, op. cit., pp. 51-57.

32 MALAYSIA. Law Reform (Marriage and Divorce) Act. 1976, Section 54 (1) (d).

33 See MALAYSIA. Matrimonial Causes Act. 1973. Sec.2 (5).

34 Ibid. Section 1 (2) (e).

35 See for American Law, AREEN, Judith, Family LAw: Cases and Materials, New York :

Foundation Press, 1978; See also TM Family Law Act, 1975 of Australia has only one sole ground for divorce on breakdown of marriage which is evidenced by a separation period of one year; See further FINLAY, B.A., "Divorce Law Reform: The Australian Approach", Journal of Family Law, Vol. 10, 1970, p. 1.

36 Santos v. Santos (1972) 2 All E.R. 246.

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In addition to establishing the fact of separation, the petitioner had to prove that he did not recognize the marriage as subsisting and intended never to return. The principle of law laid down in Santos v. Santos" is likely to be followed in Malaysia.

The Law Reform Act of Malaysia also provides for dissolution of marriage based on mutual consent Under section 52 of the Act, if the spouses mutually agree to dissolve their marriage they may present a joint petition to the court and the court subject to the safeguards provided in the law is authorized to grant a decree of divorce. There is nothing new or novel that the reforming Act has made. The customary law of both the Chinese and the Hindus allowed consensual divorce." And the communities could dissolve their marriage without recourse to court provided they have married according to their own customary law and not under the Civil Marriage Ordinance, 1952 in which case the marriage could be dissolved only under the Divorce Ordinance, 1952.39

The High Court of Johore Bahru was once called upon to interpret and determine the scope of Section 52 of the Law Reform (Marriage and Divorce) Act, 1976 which deals with divorce by mutual consent. It was contended in a number of petitions (In Re Divorce Petitions Nos. 18, 20 and 24 of 1983),40 inter alia, that when (a) the parties are married for more than two years (b) have freely consented to the dissolution, and (c) proper provision is made for the wife and for support, care and custody of the children (i.e. the conditions embodied under section 52) a decree of divorce must be given. Once the spouses had mutually agreed to dissolve the marriage it was submitted that the court had no power whatsoever to inquire into the adequacy of the reasons for the joint petition because the satisfaction of the court was not related to the basis on which such mutual consent had been reached. But these arguments did not prevail. Justice Shanker emphatically ruled: 41 of the petition;

31 Ibid.

31 See AHMAD b. Mohamed Ibrahim, op. cit., pp. 65-66 and p. 79. 3~ See AHMAD b. Mohamed Ibrahim, op. cit., p. 45ff.

40 In Re Divorce Petitions Nos. 18, 20 & 24 of 1983, (1984) 2 M.LJ. 158.

H Ibid. at 161. But see Contra, Sivanesan v. Shyamala (1986) 1 M.LJ. 400 (S.C.).

Marriage Breakdown: Comparative View/S.J. Hussain 121

"If the mutual consent to dissolution by the spouses had the effect of matrimonial iron curtain behind which no angel may rush in, it may well also make a dead-letter of Section SS of reconciliation of parties who have became estranged, or to impose a cooling off period at any stage of divorce proceedings. "

It was further observed by Shankar J. that mere mutual consent by the spouses to a decree for dissolution does not of itself entitle them to a divorce." The learned judge was of the view that irretrievable breakdown of marriage was still the sole ground for divorce under the Act. This decision in effect lays down that even where dissolution is sought on the ground of mutual consent, the court has still to see whether or not there is irretrievable breakdown of marriage. The writer agrees with the decision so far as it relates to the procedural formalities or rather technicalities, but it is submitted with respect, that the decision cannot be supported on principle and policy contemplated by the Law Reform Act. In the opinion of the writer there cannot be a better proof of marriage breakdown than when the spouses themselves want to get rid of each other by mutual consent. It is hoped that Section 52 will not become a stumbling block in the way of the spouses who do not want to stay married. To borrow the words from Cheshire, it is better to wreck the unity of the family rather than wreck the future happiness of the parties by binding them to a companionship that has become odious."

3 MARRIAGE BREAKDOWN IN OTHER JURISDICTIONS

The majority of the States in the United States of America have discarded the law based on the concept of matrimonial fault and substituted in its place breakdown of marriage as a ground for divorce." Some States have added irretrievable breakdown of marriage in addition to the fault-oriented grounds. But unlike England, the law does not provide so

42 Ibid., Emphasis added.

43 CHESIRE, G.c., "The International Validity of Divorce", Law Quarterly Review, Vol. 61, 1945, p. 352. See Sivanesan. v. Shyamala (1986) 1 MU 400

44 See AREEN, Judith, op.cit., Supra note 35 at 343 ff.

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many guidelines for proving breakdown of marriage.

For example, in California irreconcilable differences causing irremediable breakdown of marriage are considered sufficient to grant of the degree of divorce," Some states like Iowa provide for the dissolution of the marriage if there has been a breakdown of marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved," Most of the States incorporate "living separate and apart" for a certain period as a criterion for a finding of the breakdown of marriage. The Florida divorce statute provides for the dissolution of marriage if it has broken down irretrievably.46(a) The statute does not define the term 'irretrievable breakdown' nor does it provide any guideline for establishing irretrievable breakdown. Of course there is a provision as is the case in all the states of America which have adopted breakdown of marriage as a ground for divorce for reconciliation. The Court is directed either to order both the parties to seek counseling or continue the proceedings for a reasonable time not to exceed three months to enable the parties themselves to effect a reconciliation. Colorado and Kentucky have adopted a similar approach to the dissolution of marriage." Under these statutes, the only criteria for proving breakdown of marriage is a finding that there is no reasonable prospects of reconciliation between the parties.

In the State of Missouri, irretrievable breakdown of marriage is the sole ground for dissolution. The statute follows the English Divorce Reform Act, 1969 in providing identical guidelines for evidencing breakdown of marriage."

The divorce law in Australia has travelled on the lines on which

45 See GODDARD, I.L., "A Report on California's New Divorce Legislation; Progress and Problem", Family Law Quarterly, Vo1.6, 1972, p. 405; See also for further details.

RHEINSTEIN, Max, op. cit., pp. 368-373.

46 See Iowa Code Annotated. Sec. 598. 17 (1973).

46 (a) Florida Statute Annotated Sec. 61 052 (1).

47 See Colorado Session Laws 523 and Kentucky Revised Statute. Annotated Sec. 403. 170 (1974).

4. Missouri, Statute Annotated Sec. 452305 (1975).

Marriage Breakdown: Comparative View/S.l Hussain 123

it developed in England." It was based on the concept of fault. Later the divorce law which has incorporated mainly the fault grounds namely, adultery, cruelty and desertion was altered including separation for a period of five years as a ground for divorce, the later being based on the concept of breakdown. With the passing of the Family Law Act 1975 the sole ground for divorce is that the parties have lived apart for not less than one year. The philosophy of the new law was the belief that "an enquiry into the cause of breakdown was not proper.?"

When breakdown of marriage was accepted as the basis for divorce eliminating the fault grounds a corresponding change was also made in the procedure law. In all the jurisdictions which have accepted marriage breakdown as the sole ground for dissolution, provision is made for reconciliation. As a matter of fact establishment of the family courts and strengthening the conciliatory process have been another major reform in the law of divorce."

4. SHIQAQ IN ISLAMIC LAW OF DIVORCE

The principle of breakdown of marriage is enshrined in the Qur' an and is amply supported by Hadith. The ayat in Qur'an" which deals with mutual discord between the spouses and the procedure to be adopted should an eventuality arise, reads as follows :

If ye fear a breach between them Twain, appoint (Two) arbiters, one from his family, and the other from hers. If they wish for peace, Allah will cause their reconciliation. For Allah hath full knowledge, and is acquainted with all things.

49 See FINLAY, H.A., "Fault, Causation and Breakdown in Anglo-Australian Law of Divorce", Law Quarterly Review, Vol. 94. 1918. p. 120

50 Ibid. at 94. It may be pointed out that New Zealand also provides for a two year period of separation as the sole basis of break-down of marriage on which dissolution could be granted. See Family Proceedings Act. 1980. Sec. 42.

51 See EEKELAAR. John. Family Law and Social Policy, London: Weidenfeld and Nicolson. 2nd. ed., 1984.

~2 Al-Qur'an 4 : 35.

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Again in the same Sura later, another ayat of the Qur'an says :53

And if they separate Allah will render them both free from want out of His ampleness, and Allah is Ample-giving, wise.

The above verses of Qur'an have been the corner stone upon which the law of divorce has been regulated throughout the history of Islam; both classical and modem. Neither in Qur'an nor in Hadith are the grounds for divorce enumerated though Qur'an refers to some causes when divorce may become incumbent. Stating that Qur'an does not limit

the causes to specified cases Maulana Muhammad Ali observes" .

" .. .if the different nations of the Europe and America, who profess the same religion, are at the same level of civilisation and same stage of advancement and have an affinity of feeling on most social and moral questions, cannot agree as to the proper causes of divorce, how could a universal religion like Islam, which was meant for all ages and all countries, for people in the lowest grade of civilisation as well as those at the top, limit those causes which must vary with changing conditions of humanity and society."

The Qadi has the necessary authority to dissolve the marriage on various grounds such as impotency, cruelty, insanity or failure to provide maintenance," These are specific causes which are not regarded as shiqaq. The word shiqaq is derived from 'shaqq' which means breaking into twO.56 Shiqaq means conflict between the couple of such a serious character that the bond of marriage is strained to breaking point. The

53 Al-Qur'an 4 : 130.

5. AU, MUhammad, The Religion of Is/am, New Delhi: Chan & Co., 197, pp. 7672·673.

55 AU, Ameer, Mohammedan Law, Lahore: Law Pub. Co., 7th. ed., 1976, Vol. II, pp. 476 ff.

56 AHMED, K.N., Divorce in Muslim Law, Islamabad: Islamic Research Foundation, 1976, p.278.

Marriage Breakdown: Comparative View/SJ. Hussain 125

literal meaning of Shiqaq is discord or hostility." The Juristic meaning of Shiqaq which occurs in the commentaries and the works of fiqh is identical with its literal meaning, that is, discord and conflict between the spouses," The most severe form of Shiqaq between the spouses is one which is not .attributable to any fault on the part of either of them." It is probable that Shiqaq arises due to a shortcomming on both sides; they may have acted in a way that has angered the other party and disagreement has widened to the extent of causing hatred and hostility between them."

The relevant ayat relating to shiqaq authorises the Qadi or the judge to appoint arbiters from the family of the husband and from the family of the wife when there is a breach (shiqaq) between them. If they reach an agreement to settle their differences, Allah SWT will assist them in attaining that which is in consonance with the Qur'anic concept mu'ashirah bi'lma'ruf (living in kindnessr" If efforts at reconciliation fail the Qadi has the authority to dissolve the marriage." Marriage is a 'means of profit' and spouses are enjoined to live in harmony and conjugal bliss with mutual love and peace with trust and respect to each other. If for any reason these ideals in a state of married life are not possible, i.e., if the limits imposed by God cannot be observed then dissolution will follow. But before the spouses are separated the directive given is to make efforts to bring about reconciliation between the parties. Maulana Abu Kalam Azad interpreting the verse relating to Shiqaq states;"

"It is not contemplated by a marriage that the parties should be tied together in all circumstances, nor that the wife should be a means of satisfaction of the passions of the husband. The

51 See HARUN Din, Al-Nafaqah wa'l Shiqaq wa Ta'addud al-Zawjat, Kuala Lumpur:

Watan, 1985.

sa Ibid.

S9 Ibid.

150 Ibid.

61 Ibid. at 82.

61 See TANZIL-Ur-Rahman, Code of Muslim Personal law, Karachi: Islamic Publisher, 1978, Vol. I. pp. 543-544

63 MAULANA Abdul Kalam Azad, Tarjman-ul-Quran, as cited in Balqis Fatima v. Najmul-Ikram, PLD (1959) Lahore, p, 566 at 5879-580.

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object of the marriage is the creation of the perfect and happy life ... if for some reason this is not possible the object of marriage has been defeated and it is necessary that the door be opened to the parties for a change. If on the object of the marriage being defeated, separation has not been allowed to the parties, this would have been a cruel limitation of the right of free choice and society would have been deprived of a happy married state of life".

The principle of shiqaq is amply supported by Hadith". It has been reported that Jamilah the wife of Thabit bin "Abbas came to the Holy Prophet and said "01 Allah's Prophet,65 I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him)". The Holy Prophet said "Will you give back the garden which your husband has given you". She agreed and the Holy Prophet asked Thabit to accept the garden and divorce his wife. Another incident of Thabit relates to his other wife Habibah which is stated by Imam Malik and Abu Daud. The Holy Prophet saw Habibah standing near his house and on inquiring what the matter was she said that she and her husband Thabit "can never pull on together". Habibah told the Prophet to take from her whatever her husband had given her. The Holy Prophet asked Thabit to take back whatever he had given to his wife and release her. It is of utmost importance ,to note here that the Holy Prophet did not ask any of the wives. of Thabit the reasons for their demand for divorce nor did he question the unreasonable attitude of the wives. All that both the wives told was Thabit was ugly and that they could not bear him. Both the wives have been reported to have said "If I did not fear God I would spit at his face".

64 See AL·BUKHARI, Sahih vol. VII (Delhi: Kitab Bhavan 1984) at p. 150 (Translation by Dr. Muhammad Muhsin Khan).

U Ibid.

Marriage Breakdown: Comparative View/SJ. Hussain 127

There is a Hadith which concerns the Holy Prophet himself in the matter of divorce. It is narrated by al-Awazi/" He asked al-Zuhri as to which of the wives of Prophet sought refuge with Allah from him. He said, that he was told by Yrwa that cAishah said that when the daughter A-Jaween was brought to Allah's Prophet as his bride and as he went near her she sought refuge with Allah. The Prophet is reported to have said: "You have sought refuge with the Great; return to your family". Again, Prophet is reported to have said that "If a woman be prejudiced by the marriage, let it be broken off.67

A similar approach to the doctrine of shiqaq is witnessed during the reign of Khulafa-i-Rashidin." A woman came to Hadrat COmar to seek divorce from her husband. Hadrat "Omar, on her refusal to live with her husband, put her in a secluded place for three days. When she was asked how she felt she replied, "I swear by God, I have never passed more peaceful nights." Hadrat COmar thereupon asked the husband to give a khul" to his wife. It must be pointed out that no inquiry was made as to the grounds or reasons why the wife did not want to live with the husband. It was also found that the husband had committed no fault.

5. APPLICATION OF THE DOCTRINE OF SHIQAQ IN INDO - PAK SUB-CONTINENT

In a number of decisions the Pakistani courts have applied the doctrine of shiqaq while granting dissolution of marriage in cases where wives have petitioned for khul" .69 By far the leading case on the subject is that of Balqis Fatima v. Najm-ul-lkram Qureshi.70 The wife in this case claimed that according to Shari'ah she had right to dissolve the marriage by khui". It was contended that a wife could come at any time to the court and demand dissolution of marriage on restitution of any benefit

66 Ibid. at 131.

67 Sahih Bukhari as cited by Ameer Ali, Mohammedan Law, VoL2 Supra note 55 at p. 478.

51 See Balqis Fatima v. Najm-ul-Ikram, op. cit., 574_

69 TANZIL-Ur-Rahman, op. cit., 574.

70 Balqis Fatima's Case, Supra note 70

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that she, had received from her husband. . Confronted by this proposition the Court formulated the question in the following manner:"

"The question which we have to decide in this reference is really a part of the broader question as to the attitude of Islam towards a discord between the husband and the wife. If a husband and the wife cannot live together in peace and harmony, does Islam allow them to separate or does it force them to continue."

Citing the Qur' anic verse relating to khui" as well as the verse relating to shiqaq and drawing support from the Hadith and the practice followed by the close companion of Prophet Muhammad, the court held that if there is shiqaq, the parties will not be observing the limits of God and vice versa. The two verses of Qur'an, i.e. the one relating to shiqaq and the other relating to khul" were read together by the court and it was further stated that, "once we accept the jurisdiction of Qazi to order dissolution in case of shiqaq, there would be little difficulty in holding that the Qazi can order a khul: .72" This decision has been followed subsequently in many cases," In Muhammad Sadiq v. Mst. Aishd" it was held that even if for any technical reason some grounds were treated individually (in the instant case cruelty and failure to provide maintenance) did not satisfy all the legal requirements, it did not mean that the other proved elements such as indiscreet acts by the spouses towards each other or deterioration of relationship beyond repair, would become irrelevant for grant of the decree of khul".

In Mukhtar Ahmad v. Ume Kalsom" and others, the same learned judge Muhammad Afzal Zullah declared that when conscience of the court was satisfied no procedural technicalities could be of any hinderance in granting to the wife khul", rather than forcing her into a hateful

71 Ibid. at 579.

72 Ibid. at 583.

ra See for Example. Siddiq v, Sharfan, (1968) PLD Lahore, 411; Muhammad Sidiq Y. Mst. Aisha (1975); MuJdar Ahmad v. Ume Kalsoom, (1975) PLD. Lahore 805.

74 Muhammad Sadiq v. Mst. Aisha (1975) PLD Lahore. 615.

75 Mulchtar Ahmad v. UI7U! Kalsoom (1975) PLD. Lahore. 805.

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union. It must be pointed out that in all these cases efforts at reconciliation between the parties had been made and that they were of no avail.

It may be pointed out that in an earlier decision of Sayeeda Khanan v. Muhammad Sami,76 it was held that incompatibility of temperament, lack of sympathy, dislike, mutual aversion etc. could not be sufficient grounds for obtaining divorce under Muhammadan Law. Cornelius, C.J. stated that "If wives were allowed to dissolve their marriages, without the consent of their husbands, by merely giving up their dowers, paid or promised to be paid, the institution of marriage would be meaningless as there would be no stability attached to it".

In India, like the earlier decision of Pakistan, it was held in M st.

Umar Bibi v. Mohammed Din77 that Islamic Law did not recognize divorce on the ground of incompatibility of temperament, dislike or hatred amongst the spouses. But as early as 1971 the Kerala High Court in Abbobacker v, Mamakoyd" declared that Islamic "ethos accepts irreconcilable breach as a ground for dissolution."

The facts of the case, briefly stated, were as follows:

The parties lived together for some time after their marriage when a son was born to them. The wife left the matrimonial home along with her son and did not return for about two years. The husband filed a suit for restitution of conjugal rights. There were serious differences between the spouses. The lower court granted the relief to the husband and dismissed the petition of the wife seeking· divorce. The wife appealed. She sought .divorce on three grounds: cruelty, failure to provide maintenance and irreparable breakdown of marriage. The Dissolution of Muslim Marriages Act, 1939 entitles the wife to obtain divorce on the ground of cruelty and failure to provide maintenance. The Act after stating the specific grounds proceeds to lay down' that divorce can be granted "on any other ground recognized as valid for the dissolution of marriage under Muslim Law." The contention of the wife respecting cruelty and failure to provide maintenance was not proved. The question thus remained was whether incompatibility of temperament. irreconcilable differences or dislike and aversion between the parties could be regarded as grounds recognized for dissolution of marriage under Muslim Law.

76 Sayeeda Khanam v, Muhammad Sami, (1952) PLD. Lahore, 113.

77 Mst. Umar Bibi v, Mohammed Di1J, A.I.R. (1945) Lahore 51.

71 Abbobacker v, Mamukoya, A.I.R. (1971) K.L.T. 663.

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Citing the Qur'an, the traditions of the Holy Prophet and drawing ample authority from the learned works and commentaries of the Qur'an, Justice Krishna Iyer came to the conclusion that when an intolerable situation had been reached, the partners living separate and apart for a substantial time, an inference could be drawn that the marriage had broken down in fact and so it should also end in law. The learned Judge observed: 79

Daily, trivial differences get dissolved in the course of time and may be treated as the teething troubles of early matrimonial adjustment. While the stream of life, lived in married mutuality may wash away smaller pebbles, what is to happen if intransigent imcompatitility of minds breaks up the flow of the stream? In such situation, we have a breakdown of the marriage itself and the only course left open is for law to recognize what is a fact and accord a divorce.

The question whether a Muslim wife who has wrongfully left the matrimonial home has the right to seek dissolution of the marriage merely on failure of the husband to maintain her for the statutory period of 2 years figured again in Yousuf vs. Sawaramma",

Soon after the marriage in the above case the wife went to stay at the husband's house. The very next day the husband left to a place where he was employed. After a month's stay in her husband's home, the wife went back to her parents and never returned afterwards. The husband did not provide her maintenance for 2 years. The husband tried to effect a reconciliation through the mosque committee but the efforts failed. The Mosque Committee reported that divorce was the only solution. The wife's petition for divorce was granted by the lower court. The husband came on appeal in the Kerala High Court. In his defence the husband contended that IDe wife who had wrongfully left the matrimonial home could not seek dissolution of marriage on mere failure to

79 Ibid. p.668.

10 Yousuf v. Sawaramma, A.I.R. (1971) Kerala, 261. The decision of Balqis Fatima. Supra note 70 of Pakistan has been cited with approval.

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provide her maintenance. Under these circumstances the court looked into Section 2(ix) of the Dissolution of Muslim Marriage Act 1939 which entitles the wife to obtain divorce on any other ground recognised as valid under Muslim Law. Justice Krishna Iyer declared:"

The Islamic Law's serious realism on divorce, when regarded as the correct perspective, excludes blameworthy conduct as a factor and reads the failure to provide maintenance for two years as an index of irreconcilable breach, so that the mere fact of non-maintenance for the statutory period entitles the wife to sue for dissolution.

It was further held that, 'the statement that the wife can buy divorce only with the consent of or as delegated by the husband is also wholly not correct. Indeed, a deeper study of the subject discloses a surprisingly rational, realistic and modem law of divorce and this is the relevant enquiry to apply Section 2(ix) and to construe correctly Section 2(ii) of the Act."82

6 SHIQAQ IN MALAYSIAN LEGISLATION

The Islamic principle of shiqaq has been adopted in the Administration of the Muslim Law Enactments of various states in Malaysia," The enacted Family Law Acts also provide for the appointmentof arbitrators or Hakam in cases where there are frequent quarrels between the spouses.

In Pahang, Section 79 of the Administration of Religion of Islam and the Malay Custom of Pahang Enactment, 1982, lays down the principle of shiqaq and the procedure that should be followed if a complaint is received in a Qadi's Court," It is provided that whenever there are

81 Ibid. p. 266.

IZ Ibid. p. 264.

13 See AHMAD b. Mohamed Ibrahim, op, cit., 242-246.

14 Administration of Religion of Islam, and the Malay Custom of Pahang Enactments, 1982 (effective first January 1983) Sec.79 (1)

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frequent quarrels between the husband and the wife, the court may appoint according to Hukum Syara, one Hakam for the husband and another for the wife." The Qadi may give direction to the Hakam in respect of the procedure to be followed during the time of negotiations." If the Hakams do not agree with each other or if the Qadi is not satisfied with the performance of the Hakam he is authorised to dismiss them and appoint new ones. The Hakams are enjoined to obtain full powers from their respective parties to enable them to effect a divorce order and should a divorce be pronounced it shall be reported to the Qadi for registration." If in the opinion of the Hakams the parties ought to have a divorce but there are grounds which prevent them from pronouncing the divorce they shall report the matter to the Qadi. Under these circumstances the Qadi shall appoint new Hakams and the two parties shall give them powers to settle the issue by way of reconciliation, divorce or bertebus talak. If any of the parties fail to give the powers to the respective Hakams without reasonable excuse they are subject to penal sanction." If the husband is found guilty and punished and still does not divorce his wife the court has the power to dissolve the marriage."

The Islamic Family Law Enactment, 1979 Kedah (Kedah No.1 of 1984) provides that the Court shall on the receipt of the application of the divorce by any party to a marriage serve summons on the other spouse requiring the spouse to attend the court so as to enable the Court to investigate whether the other spouses agrees or does not agree to a divorce." If the other spouse agree to a divorce and the court is satisfied after due investigation that shiqaq has occured the court shall advice the husband to pronounce one talak in its presence." It is also provided that if the court is unable to advice the parties to reach a peaceful settlement or is satisfied that shiqaq is ever present between the parties,

IS Ibid.

U Ibid. Sec. 79 (2).

17 Ibid. Sec. 79 (4) .

.. Ibid. Sec. 79 (6).

'9 Ibid. Sec. 79 (6).

90 Islamic Family Law Enactment. 1979. Kedah, Sec. 40 (1) and (2).

91 Ibid. Sec. 40 (3).

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the court may appoint according to Hukum Syarak, two Hakams to act for the husband and wife respectively." In making the appointment the court shall, if possible, give priority to the close relatives of both parties who have knowledge of the circumstances of the case. When a Hakam reports that a divorce by talak or redemption has been agreed upon the Hakam will report the matter to the court for record. If the Hakams report that the parties should be divorced but are unable to order a divorce because the suloh has failed the court shall order the divorce in the form of one talak only and record such order,"

Similar provisions exist in the Islamic Family Law Enactment 1983 of Kelantan." The Law provides that if the parties consent to divorce and the court is satisfied after due inquiry that the marriage has irretrievably broken down and there is no possibility of reconciliation the court may advice the husband to pronounce one talak before the court", The court shall record the talak and issue a certificate of divorce. If one of the party does not consent to a divorce and or court is of the opinion that there is a reasonable possibility of reconciliation the court shall appoint a conciliatory committee consisting of a Religious Officer as Chairman and three other persons to act for the husband and wife respectively." In making the appointment the court shall where possible give preference to the close relatives of the parties having knowledge of the circumstances of the case." It is provided that the committee shall endeavour to effect a reconciliation within the period of three months from the time of its constitution or within such further time as is approved by the court," If the conciliatory committee is unable to arrive at a reconciliation and to persuade the parties to resume married life together, the committee shall issue a certificate to that effect and may append to its certificate such recommendations as it thinks fit regarding maintenance,

91 Ibid. Sec. 40 (9).

93 Ibid. Sec.4O (9) (vi).

94 Islamic Family Law Enactment, 1983. Kelantan (No. 1 of 1983) Sec. 35.

95 Ibid. Sec. 35 (2).

96 Ibid. Sec. 40 (3).

97 Ibid. Sec. 35 (3).

91 Ibid. Sec. 35 (4).

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custody of minor children, division of property etc." If the committee succeeded in effecting a reconciliation between the parties, the court will dismiss the application for divorce."? If the committee is unable to bring the parties together to resume married life, the court shall advice the husband to pronounce one talak before the court.!" If the husband does not attend before the court or refuses to pronounce talak the court shall refer the matter to Hakam. The procedure relating to the appointment of Hakam and what shall the court do if the Hakam fails in their efforts to either effect a reconciliation or unable to pronounce talak is similar to the position that obtains in other Family Law Acts referred to above.

The Islamic Family Law (Federal Territory) Act, 1984 provides for the appointment of arbitrators i.e.; Hakams and lays down similar procedure for regulating reconciliation between the estranged spouses and if necessary to dissolve the marriage.P' Penang, Pedis, Perak and Terengganu have also provided in their respective Administration of Muslim Law Enactments for similar scheme for reconciliation by the Hakams and in the event of the parties not coming together for conjugal cohabitation, to effect a divorce by the help of the Court.'?'

7. CONCLUSION

Acceptance of the breakdown of marriage as the sole ground for divorce, discarding the traditional fault-oriented grounds has been a radical change towards the reformation and liberalisation of divorce law both in Malaysia and in the Anglo-American Complex. The new divorce law embodied under the Law Reform (Marriage and Divorce) Act, 1976 has been in operation only for a short period. Its success or otherwise cannot be assessed at the moment. The interpretative problems which have confronted the English Courts are bound to cause similar difficulties in Malaysia. The Law Reform Act has certainly unified the law

99 Ibid. Sec. 35 (5).

100 Ibid. Sec. 35 (7). 101 Ibid. Sec. 35 (8).

101 MALAYSIA. Islamic Family Law (Federal Territory) Act., 1984 (Act 303) Sec. 48.

103 See AHMAD b. Mohamed Ibrahim, op. cit., pp. 242-247.

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relating to non-Muslims in the matter of marriage and divorce.

The new law of divorce as pointed out by Professor Ahmad Ibrahim retains unfortunately the remnants of the old laW.IQ4. The learned Professor pertinently questions why the requirement of desertion for a continuous period of at least two years is still retained when it is possible for the parties to show that the marriage has been broken down where they have lived apart for a continuous period of at least two years. lOS This is because the Malaysian reformers have simply followed or rather imported the English divorce law.

As respects other jurisdictions which have adopted the breakdown of marriage as a ground for divorce we notice that the manner in which the principle of breakdown is introduced into the divorce law is different than that which is witnessed in England. While in England a long list of facts is given to prove marriage breakdown, the American statutes merely provide marital discord or irreconcilable differences as an index of marriage breakdown. In Australia marriage breakdown is to be presumed when the parties have lived separate and apart only for a period of one year. It may be pointed out that the Australian Law comes closest to that of Islamic Law of Divorce insofar as it lays down the principle of marriage breakdown.

The objectives of the divorce law of England, to borrow the words of the Royal Commision were to buttress, rather than to undermine, the stability of marriage and when, regrettably, a marriage has irretrievably broken down, to enable the empty shell to be destroyed with maximum fairness and the minimum bitterness, distress and humiliation.P' It may now be pointed out that the law in its actual working has not achieved these objectives!", Furthermore, it is doubtful whether the law has been successful in "taking the heat out of disputes."los The weakness or the drawback lies in the fact that the law incorporates the former grounds of

104 See AHMAD h. Mohamed Ibrahim, "The Law Reform (Marriage and Divorce) Bill, 1975", Journal of Malaysia and Comparative Law. 1975, p. 354.

105 Ibid. p. 357.

106 The Law Commission, Reform of the Grounds if Divorce: The Field of Choice, cmnd. 3123, para 15 at 10 (1966).

107 See BROMLEY. P.M .• op. cit., pp. 236-237; See Further CRE1NEY, S.M., op. cit., pp. 214-217.

101 See CRE1NEY, S.M., op. cit., p. 216.

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divorce based on the notions of matrimonial guilt in order to prove marriage breakdown. The dilemma in the application of the b(eaKdown concept to resolve matrimonial disputes has been neatly put by Lord Simon of Glaisdale thUS:109

"If even one of the parties adamantly refuses to consider living with the other again, the court is in no position to gainsay him or her. The court cannot say, 'I have seen your wife in the witness box. She wants your marriage to continue. She seems a most charming and blameless person. I cannot believe that the marriage has really broken down'. The husband has only to reply, 'I'm very sorry; it's not what you think about her that matters, it's what I think. I am not prepared to live with her anymore'. He may add for good measure, 'what is more, there is another person with whom I prefer to live'. The court may think that the husband is behaving wrongly and unreasonably: but how is it to hold that the marriage has not nevertheless irretrievably broken down?"

Under the Islamic Law of Divorce, it may be pointed out that the only guideline for proving shiqaq is the failure of the parties to reconcile themselves. Reconciliation alone has been made the true yardstick for measuring the magnitude of breakdown of marriage. The doctrine of shiqaq as laid down in Qur'anic verse referred to the above does not suffer from the inherent weakness and superficial technicalities as provided in the Malaysian Law and English or American Law. We have seen in Malaysian Law how a technical procedural formality became a roadblock in the way of the spouses desiring to obtain divorce even though they mutually agreed to dissolve the marriage. We have also noticed how in English Law the problem of interpreting the words "adultery and intolerability" has raised its ugly head while deciding whether to grant or not to grant a divorce to the disgruntled spouses. The

, tilting fortunes of the divorce decree rests on the disjunctive word 'and'.

109 Per Lord Simon, Riddell Lecture: See RA YDEN, William, Rayden's Law and Practice in Divorce and Family Mattifrs), 11th. ed., London: Butterworth, 1971.

Marriage Breakdown: Comparative View/S.l Hussain 137

The wisdom, the foresight and the advantage of the principle of shiqaq as envisaged in Shari'ah is clearly evidenced when we look to the application of this principle in Pakistan. The courts in Pakistan while handling the principle of shiqaq have unequivocally ruled that procedural technicalities cannot become a hindrance in separating the spouses who cannot observe the "limits of God." They have also declared that a judge will consider whether the rift between the parties is a serious one though he may not consider the reasons for the rift. It must be pointed out here that under the Islamic Law the courts or the Qadi does not probe into the most intimate as well as complex relationship between a man and his wife causing humiliation, embarrassment and bitterness. Such things are happening in the Western system of divorce law based on the concept of marriage breakdown which are greatly denounced'P. To say that under Islamic system, divorce is granted without going into the causes of divorce or without finding the reasons for the 'breach' is not to suggest that Islam does not give much importance to marriage or marriage institution. Marriage has been considered as Ibadah, an act of worship. What the law of Islam contemplates is that when the legitimate objects of matrimony have been destroyed without a flicker of life or any prospects of reconciliation, then and only then is a divorce allowed. This is in essence the doctrine of shiqaq.

Another aspect of reform of divorce law in contemporary society has been the realisation that reconciliation has got a role to play in saving broken marriages. We see this development only in the recent past, that is, only in the later part of the nineteenth century. Whereas, the Holy Qur'an from its very inception has made provision for the appointment of Hakam and the procedure that should be followed in case of a "breach between the two". It may be of interest to point out that in Singapore when reconciliatory machinery was strengthened and services rendered to the married persons, the rate of divorce among Muslims was checked and it fell considerably.'!'

It may be stated by way of conclusion and with a certain f!1easure

110 See CRElNEY. S.M. 01" cit., p. 107 at 216.

111 See SIRAr, M. "The Shari'ah Court and its Control in Divorce", Malaya Law Review, 1963, p. 148; See also by the same author, "Conciliation Procedures in Divorce Proceedings", Malaya Law Review, 1965, p. 314.

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of confidence that a close examination of the trends towards reforms of divorce law in contemporary society reveal that it has, perhaps unconsciously, marched in the direction of the Islamic Law of divorce based on the doctrine of shiqaq.