Question:

My husband pronounced one talaq upon me outside the court. Our divorce has been registered, and we are now waiting for the hearing date to ascertain whether the talaq that was pronounced by my husband is valid according to humuk syara’. Two weeks after my husband pronounced the talaq, he came to our matrimonial home and have sexual intercourse with me to which I consented. Has there been resumption of conjugal relationship (ruju’) in this situation? What is the proper way for my husband to “recohabit” with me?

Anunziata Abdool Raheem
Kuala Lumpur

Answer:

Thank you very much for your query.

Ruju’ or resumption of conjugal relationship is a situation where a husband who has pronounced talaq upon his wife recohabits with her while she is still in her ‘iddah period. The ‘iddah period for a woman is the completion of three menstruation cycles.

A husband can only resume conjugal relationship with his wife if the said wife was divorced by one or two talaqs i.e. revocable divorce (talaq rajie). This is pursuant to the Surah al-Baqarah verse 229: “A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness”.

Based on Section 51 (8) of the Islamic Family Law (Federal Territories) Act 1984, there are several conditions that a divorced couple must fulfill in order to resume conjugal relationship:

Firstly, the ex-husband must pronounce his intention to recohabit (ruju’) with his ex-wife. Next, the ex-wife has to give her consent to her ex-husband’s intention. Next, the ex-husband has to make an application at a syariah court to register the ruju’.

Lastly, the syariah court will make an Order for the divorced couple to resume their conjugal relationship.
It is only after this whole process is complete that the husband can recohabit with his wife.

Looking at this legal provision, it is clear that there are two important elements in the process to resume conjugal relationship: pronouncement of the intention to recohabit by the ex-husband and acceptance by the wife.

A husband cannot assume that recohabitation would take place automatically because that is what he desires. The wife has to consent to his intention to recohabit. If the wife does not consent, then there is no resumption of conjugal relationship for that couple.

The husband also cannot force his ex-wife to recohabit with him.

When a divorced couple resumes conjugal relationship, they have to report it to the syariah court. This is to ensure that a proper record of divorces and recohabitation is maintained, and that there would not be any suspicions as to someone’s marital status.
According to the consensus of the four major schools of Maliki, Hanafi, Syafi’e and Hanbali, resumptiona of conjugal relationship is only affected if the intention to recohabit is pronounced clearly and unmistakably. However, there is difference of opinion between the four schools on whether resumption of conjugal relationship can take place following sexual intercourse.

According to the Syafi’e school which is adopted in Malaysia, sexual intercourse is considered insufficient to fulfill the requirement of recohabitation, even if the husband perform sexual intercourse with his wife with the intention to resume conjugal relationship. This is because, according to the Syafi’e school, the intention to resume conjugal relationship must be made verbally or in written form.

What you and your ex-husband have to do now is to go to the syariah court which is hearing your divorce case and make an application to ascertain the validity of your recohabitation. If it is determined by the court that resumption of conjugal relationship has indeed taken place, then you and your husband have to register it.

We hope that the answers we provided here would help you solve your problems.