Question:

Last week, my husband made the following statement: “If this is the case, then let’s just get a divorce, there’s no need to reconcile if it is this difficult, I pronounce straight three talaqs upon you!” But now, my husband claims that he did not have any intention to divorce me, even more so to pronounce three talaqs upon me. He said that I misheard him. I am very certain that I heard him clearly. I do not suffer from hearing problems. I want to refer to the Religious Office but he said that there is no need for it since he had never made the pronouncements. He even said that there is no use for me to go to the Religious Office and he will tell them that he never said those words. I am currently caught in a dilemma. Am I divorced from my husband or not?

- Sufiah Adora, Kuala Terengganu

Answer:

Divorce is not a trivial matter, especially when it is done out of Court. The pronouncement of talaq by the husband should be made clearly so that there is no uncertainty as to the husband’s intention to divorce. An unclear pronouncement not only can raise doubts but can also be abused and misused by the husband.

The best method to divorce that is suggested as being proper, as can be seen in Surah al-Ahzab verse 49: “And release them in the best way.” Therefore, getting a divorce via the Syariah Court is what your husband should have done and not to pronounce talaq upon you without the Court’s permission.

In Malaysia, the effect of three talaqs that is pronounced at once by the husband is not stated under any of the Islamic law statutes or state enactments. Therefore, Courts have the discretion to refer to hukum syara’.

There are several hadiths which show that, during the time of the Prophet Muhammad S.A.W. the pronouncement of three talaqs at once is considered to be only one talaq. These hadiths were compiled in the Sahih Muslim and amongst them are:

As told by Ibn Abbas: “During the time of the Prophet S.A.W., Abu Bakar and the first two years of Caliph Umar, the pronouncement of three talaqs at once is considered to be one talaq. Hence Umar ibn Khattab said: “Indeed people have been rushing in matters whereby what is good for them is that just should be delayed and thought about deeply. How wonderful it would be to set upon them a rule on three talaqs.” Therefore the rule was set upon them.

However, there are also several hadiths that said the pronouncement of three talaqs at once was counted as three talaqs by the Prophet Muhammad S.A.W., for example:

As told by Hassan that Abdullah bin Umar pronounced one talaq upon his wife while she was menstruating, and he wanted to pronounce the next two talaqs during her period of Tuhr (being clean after menstruation). When the Prophet S.A.W. heard of this, He said: “Ibn Umar, Allah does not prescribe divorce in this manner. This is against Sunnah. The proper manner is by waiting for the period of Tuhr in order to pronounce talaq and afterwards to pronounce one talaq during each period of Tuhr.”

Abdullah bin Umar returned to his wife pursuant to the Prophet S.A.W.’s instructions, and the Prophet S.A.W. then stated: ``No, once your wife has gone through the cleansing process, you can then either divorce her or not.” Ibn Umar said: “O’ Prophet, if I had already pronounced three talaqs, may I return to my wife?'' And thereby the Prophet replied: “No, the divorce would have become a divorce whereby resumption of conjugal relationship cannot take place, but you have committed a sin as you have pronounced talaq in an improper manner.”

When faced with cases whereby the husband pronounced talaq more than what is proper, Rasulullah S.A.W. would judge the case based on the husband’s intention and purpose when he made the pronouncement of talaq. Many religious scholars agree that three talaqs pronounced at once falls under the category of talaq bidaat i.e. talaq that is pronounced not according to Sunnah even though it is valid under hukum syara’. The best way in which to pronounce talaq is to do so according to common courtesy and what is prescribed under the law.

Offence

Pronouncement of talaq outside of court is an offence in Malaysia. Section 121 of the Administration of Islamic Laws Enactment (Terengganu) 1985 states that if a man pronounce talaq outside of court, he can be fined for an amount not exceeding RM500 or imprisoned for a period not exceeding three months or both.

Hence, what you need to do now is lodge a report with the Syariah Court nearest to your residence so that a trial to ascertain the validity of the pronouncement of talaq can be conducted.

You and your husband will then be summoned to appear in Court and in determining the validity of the pronounced talaq, the Court will examine and consider all the circumstances and evidences that point to a proved or pronounced talaq.

It all depends on the completeness of all the requirements of talaq, being the husband, sighah (pronouncement), qasad (intention), against whom the talaq is pronounced (wife) and the husband’s power over his wife when he pronounced the talaq.

The Court will also examine whether the pronouncement by the husband was clear or ‘sarih’. The word talaq is one of the words that have to be clearly stated. Islamic jurists have agreed that talaq can be pronounced whether in Arabic or another language, in writing or by signs. If the pronouncement was clearly made or ‘sarih’ then the question of intention does not arise and therefore there is no need to prove his intention.

As for the number of talaqs that was pronounced against you, religious scholars agree that the number of talaq is complete whether a man (the husband) pronounced the talaq upon a woman (the wife) one by one or by combining all three talaqs in one kalimah (pronouncement).

The case of Zakaria Talib v. Norziah Ahmad [2005] 1 CLJ (Sya) 132 can also be referred to whereby in this case the husband had pronounced three talaqs at once via a letter and the judge was of the opinion that three talaqs was indeed pronounced as it is clear from the letter that talaq has been pronounced and so there is no need to prove that there was intention on the part of the husband to pronounce talaq or not. The judge also prohibited the husband from resuming conjugal relationships with the wife or even to remarry her as that can only be done if he had pronounced two talaqs or less upon her, pursuant to Surah al-Baqarah verse 229 which states: “resumption of conjugal marriage or remarriage can only be done if the talaq was pronounced only twice.''

- Panel lawyers, Sisters In Islam.
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