October 4, 2022

The position of Talaq-e-Biddat in Southeast Asian States

Muslim Law in India and Abroad, by Tahir Mahmood and Saif Mahmood[1], records the following position about the abrogation of the practice of talaq-e-biddat as a means of divorce, through statutory enactments, in southeast Asian Muslim prominent States.

(i)               Indonesia:

The Constitution of Indonesia guarantees freedom of religion among Indonesians. However, the Government recognizes only six official religions Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:

(a)   Law of Marriage 1974

Article 38. A divorce shall be effected only in the court and the court shall not permit a divorce before attempting reconciliation between the parties. Divorce shall be permissible only for sufficient reasons indicating breakdown of marriage.

Article 41. In the event of a divorce both the parents shall continue to be responsible for the maintenance of their children. As regards custody of children, in case of a dispute between them the court shall take a decision. Expenses of maintenance and education shall be primarily the father’s liability, but if he is unable to discharge this liability the court may transfer it to the mother. The court may also direct the former husband to pay alimony to the divorced wife.

(b)  Marriage Regulations 1975

Article 14. A man married under Islamic law wanting to divorce his wife shall by a letter notify his intention to the District Court seeking proceedings for that purpose.

Article 15. On receiving a letter, the court shall, within thirty days, summon the parties and gather from them all relevant facts.

Article 16. If the court is satisfied of the existence of any of the grounds mentioned in Article 19 below and is convinced that no reconciliation between the parties is possible it will allow a divorce.

Article 17. Immediately after allowing a divorce as laid down in Article 16 above the court shall issue a certificate of divorce and send it to the Registrar for registration of the divorce.

Article 19. A divorce may be allowed on the petition of either party if the other party:

(a) has committed adultery or become addict to alcohol, drugs, gambling or another serious vice; (b) has deserted the aggrieved party for two years or more without any legal ground and against the said party’s will;

(c) has been imprisoned for at least five years;

(d) has treated the aggrieved party with cruelty of an injurious nature;

(e) has been suffering from a physical deformity affecting conjugal duties, or where relations between the spouses have become too much strained making reconciliation impossible.

(ii)             Malaysia

Under the Constitution of Malaysia, Islam is the official religion of the country, but other religions are permitted to be practiced in peace and harmony. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:

Islamic Family Law Act 1984

Article 47. (1) A husband or a wife who desires a divorce shall present an application for divorce to the court in the prescribed form accompanied by a statutory declaration containing,

(a) particulars of the marriage and the name, ages and sex of the children, if any, of the marriage;

(b) particulars of the facts giving the court jurisdiction under Section 45;

(c) particulars of any previous matrimonial proceedings between the parties, including the place of the proceedings;

(d) a statement as to the reasons for desiring divorce;

(e) a statement as to whether any, and if so, what steps have been taken to effect reconciliation;

(f) the terms of any agreement regarding maintenance and habitation of the wife and the children of the marriage, if any, and the division of any assets acquired through the joint effort of the parties, if any, or where no such agreement has been reached, the applicants proposals regarding those matters; and

(g) particulars of the order sought.

(2) Upon receiving an application for divorce, the court shall cause summons to be served on the other party together with a copy of the application and the statutory declaration made by the applicant, and the summons shall direct the other party to appear before the court so as to enable it to inquire whether or not the other party consents to the divorce.

(3) If the other party consents to the divorce and the court is satisfied after due inquiry and investigation that the marriage has irretrievably broken down, the court shall advise the husband to pronounce one Talaq before the court.

(4) The court shall record the fact of the pronouncement of one Talaq and shall send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

(5) Where the other party does not consent to the divorce or it appears to the court that there is reasonable possibility of a reconciliation between the parties, the court shall as soon as possible appoint a Conciliatory Committee consisting of a religious officer as Chairman and two other persons, one to act for the husband and the other for the wife, and refer the case to the Committee.

(6) In appointing the two persons under sub-section (5) the court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case.

(7) The court may give directions to the Conciliatory Committee as to the conduct of the conciliation and it shall conduct it in accordance with such directions.

(8) If the Committee is unable to agree or if the court is not satisfied with its conduct of the conciliation, the court may remove the Committee and appoint another Committee in its place.

(9) The Committee shall endeavour to effect reconciliation within a period of six months from the date of its being constituted or such further period as may be allowed by the court.

(10) The Committee shall require the attendance of the parties and shall give each of them an opportunity of being heard and may hear such other persons and make such inquiries as it thinks fit and may, if it considers it necessary, adjourn its proceedings from time to time.

(11) If the Conciliatory Committee is unable to effect reconciliation and is unable to persuade the parties to resume their conjugal relationship, it shall issue a certificate to that effect and may append to the certificate such recommendations as it thinks fit regarding maintenance and custody of the minor children of the marriage, if any, regarding division of property and other matters related to the marriage.

(12) No advocate and solicitor shall appear or act for any party in any proceeding before a Conciliatory Committee and no party shall be represented by any person other than a member of his or her family without the leave of the Conciliatory Committee.

(13) Where the Committee reports to the court that reconciliation has been effected and the parties have resumed their conjugal relationship, the court shall dismiss the application for divorce.

(14) Where the Committee submits to the court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the court shall advise the husband to pronounce one Talaq before the court, and where the court is unable to procure the presence of the husband before the court to pronounce one Talaq, or where the husband refuses to pronounce one Talaq, the court shall refer the case to the Hakams [arbitrators] for action according to section 48.

(15) The requirement of sub-section (5) as to reference to a Conciliatory Committee shall not apply in any case

(a) where the applicant alleges that he or she has been deserted by an does not know the whereabouts of the other party;

(b) where the other party is residing outside West Malaysia and it is unlikely that he or she will be within the jurisdiction of the court within six months after the date of the application;

(c) where the other party is imprisoned for a term of three years or more;

(d) where the applicant alleges that the other party is suffering from incurable mental illness; or

(e) where the court is satisfied that there are exceptional circumstances which make reference to a Conciliatory Committee impracticable.

(16) Save as provided in sub-section (17), a Talaq pronounced by the husband or an order made by the court shall not be effective until the expiry of the Iddat.

(17) If the wife is pregnant at the time the Talaq is pronounced or the order is made, the Talaq or the order shall not be effective until the pregnancy ends.

(iii)          Philippines:

It is a secular State. Christians constitute its majority. On the issue in hand, it has the following legislation in place:

Code of Muslim Personal Law 1977

Article 46. (1) A divorce by Talaq may be effected by the husband in a single repudiation of his wife during her Tuhr [non-menstrual period] within which he has totally abstained from carnal relations with her.

(2) Any number of repudiations made during one Tuhr [non-menstrual period] shall constitute only one repudiation and shall become irrevocable after the expiration of the prescribed Iddat.

(3) A husband who repudiates his wife, either for the first or second time, shall have the right to take her back within the Iddat period by resumption of cohabitation without need of a new contract of marriage. Should he fail to do so, the repudiation shall become irrevocable.

Article 85. Within seven days after the revocation of a divorce the husband shall, with the wife’s consent, send a statement thereof to the Circuit Registrar in whose records the divorce was previously entered

Article 161. (1) A Muslim male who has pronounced a Talaq shall, without delay, file with the Clerk of the Sharia Circuit Court of the place where his family resides a written notice of such fact and the circumstances attending thereto, after having served a copy to the wife concerned.

The Talaq pronounced shall not become irrevocable until after the expiration of the prescribed Iddat.

(2) Within seven days from receipt of notice the Clerk of the Court shall require each of the parties to nominate a representative. The representatives shall be appointed by the court to constitute, with the Clerk of the Court as Chairman, an Agama [religious scholars] Arbitration Council which shall try and submit to the court a report on the result of arbitration on the basis of which, and such other evidence as may be allowed, the court will pass an order.

(3) The provisions of this Article will be observed if the wife exercises right to Talaq-e-Tafweez.

Article 183. A person who fails to comply with the requirements of Article 85, 161 and 162 of this Code shall be penalized by imprisonment or a fine of two hundred to two thousand Pesos, or both.

Reference

As quoted by Supreme court in Shayra Bano v. Union of India (2017)


[1] Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2012 edition)