Nor Aniza bte Idris v Mohammad Fauzi bin Ahmad [2006]

FACTS OF THE CASE:

The case relates to the confirmation of divorce outside the court for purposes of registration
under s 55A of the Islamic Family Law (FT) Act 1984. The following was the chronology of the
marital issues:

24 March 2005 The Defendant came to RTM, where the Plaintiff was
recording, and chased her out of their matrimonial home,
instructing her to gather her belongings and leave the house.

Jun 2005 The Defendant and the Plaintiff frequently argued, with the
defendant repeatedly asking the plaintiff to leave the house
throughout the year.

23 July 2005 The plaintiff was denied entry to the house when the
defendant changed the locks without providing the plaintiff
with a duplicate key.

The issue became more serious on 7th September 2005, when the following conversation
occurred between P and D:

7 September 2005 at 12.45pm Defendant sent an SMS to Plaintiff writing “Aku biawak
tapi tidak berzina… dengan laki orang…, jadi aku lepaskan
kau.”

7 September 2005 at 1.30pm The Plaintiff replied to the SMS, asking for Defendant’s
intention in sending such message

7 September 2005 at 1.30pm The Defendant responded with: “Macam adik kau Nor
dengan Rizal, Uda dgn K Zie.. Kau dengan aku bercerai..
Berai.”

On 20 August 2005, Defendant and Plaintiff went to Jabatan Agama Islam WP but the Defendant
suddenly changed his mind and refused to wait in line to meet the officers.

The plaintiff claims that, based on events that occurred before the SMS was sent, she believed
that the defendant intended to divorce her when he wrote the message. On the other hand, the
defendant denies these allegations, claiming that he sent the message out of anger. He further
asserts that he did not utter the words written in the message, neither at the time it was sent nor
afterward.
LEGAL ISSUES :

1. Whether the divorce would be effective as the defendant claimed he did not utter the lafaz
while writing the message?
2. Whether the defendant had the intention of effecting talaq kinayah?

i) When the intention is required, is it at the time of writing or is it sufficient for the
intention to be made before or after writing?

ii) Whether in proving the intention, it could be proven by way Qarinah?

3. Whether talaq kinayah must be accompanied with intention?

4. Whether the talaq is effective when written in a state of anger with loss of sanity?

JUDGEMENT: Based on the reasons provided, and after D took the oath, the following
decision was made:

(i) There is no proven intention on D's part to issue talaq in the two SMS messages. Therefore,
the court ruled that talaq did not occur in either of the SMS messages. The marriage between P
and D remains intact according to Hukum Zahir.

(ii) P's claim to register the divorce is dismissed.

RATIO DECIDENDI:

Issue : Whether the divorce would be effective as the defendant claimed he did not utter the lafaz
while writing the message?

Judgement: Divorce would be effective if the written words were spoken, but if unspoken, it
would be necessary to be accompanied with intention to divorce.

Ratio decidendi: The court referred to the following authorities:

1) Imam Nawawi in Kitab Raudat al-Talibin: When a husband capable of talking/ speaking,
writes the talaq, the effectiveness will be based on the situation.
a) If he reads and utters what was written, be it while writing the talaq or upon after,
the talaq is effective.
b) If he does not read and utter what was written, it will depend on whether it was
accompanied with the intention to divorce by the husband.
- If while writing, he has no intention, according to sahih opinion, there is
no talaq.
 - If while writing, he has the intention, talaq is effective and talaq kinayah
has now become talaq sorih which intention is no longer a requirement to
prove its effectiveness. - weak opinion

2) Imam Syirazi in Kitab al-Majmu: When a husband writes talaq upon his wife using
lafz sorih without the intention to divorce, it will not be effective.

But if the husband with the writing had intended divorce, there are two opinions according to
Imam Shafie:

1) No effective divorce as the husband is capable of talking/ speaking.

2) According to sahih view, talaq is effective as its effectiveness of talaq through utterance
is the same as written talaq. Hence, court accept
and use the strongest opinion from Mazhab Shafie that talaq is effective when the written
talaq is uttered and if there is no utterance of divorce, it must be accompanied with the
intention. In this case, the defendant had claimed he did not read the messages out loud
and has no intention to divorce as it took place when he was in the state of anger.

RATIO DECIDENDI:

1. In determining intention, mere reliance cannot be placed on circumstantial evidence even

if it is strong. Strong circumstantial evidence can only be relied upon by the wife to take
an oath in the event the husband refuses to do so. The refusal of the husband to take the
oath does not exhaustively mean that the husband has admitted his intention to divorce,
because sometimes refusal could be due to the realization of the serious consequences of
an oath. Therefore, the al-mardudah oath of the wife is only allowed when there is an
absolutely strong qarinah. This is also because the intention to be determined in the
present case was made at the time the SMS's were written. The defendant could have, in
his heart, wanted to divorce the plaintiff before or after the SMS's were written but not at
the time they were written.
● Lets see how the judge answer this LI: LEGAL ISSUES: Whether the defendant had the
intention of effecting talaq kinayah?

i) When the intention is required, is it at the time of writing or is it sufficient for the
intention to be made before or after writing?

ii) Whether in proving the intention, it could be proven by way Qarinah?

● The ratio decidendi of this case focused on the issue of relying on circumstantial evidence
and the timing of intention in determining the validity of talaq. To address these two
issues, the judge referred to Imam Nawawi in his Kitab Raudah (page 32). From this, the
court highlighted that strong circumstantial evidence alone cannot show intention unless
 accompanied by an oath from the wife, particularly in circumstances where the husband
refuses to take one. However, the husband's refusal is not necessarily deemed as an
admission of intention, as it could be due to his understanding of the serious implications
of taking an oath. Additionally, the intention must exist at the time the SMS is written.
The book mentions that talaq kinayah requires intention, and this intention must be
present at the time of the utterance. Talaq does not occur if the intention exists before or
after the utterance of talaq kinayah. In this case, the husband denied having the intention
to divorce when writing the SMS. It can be seen that the defendant may have wished to
divorce the plaintiff either before or after the SMS messages were written, but not at the
time they were written.
● Furthermore, the judge also referred to Al-Dimyati regarding the husband's denial of
intention. The book states that a husband’s denial of intention for talaq kinayah is
admissible with his oath affirming that he did not intend talaq. Intention, being a matter
of the heart, can only be confirmed or denied by the person who harbors it. As in the
present case, no one can know another’s true intention, so the court accepts the husband's
oath to deny the existence of any such intention.
2. The court is of the view that the intention to talaq or divorce ought to be determined by
an oath taken by defendant, who is responsible to have written both the SMS's. If the
defendant refuses to take oath, the plaintiff, as the wife, has to take the oath. Thereafter,
the intention to divorce, based on the said SMS's, would become effective. If the plaintiff
refuses to take the oath, her application would then be dismissed.
● LEGAL ISSUES: Whether talaq kinayah must be accompanied with intention?
● The other reason for the judgment is that a written talaq must be accompanied by
intention. Imam Al-Dimyati states: "The previous difference of opinion about whether
intention must be present at the beginning of the pronunciation of talaq kinayah,
throughout the pronunciation, or at any part also applies to the question of writing talaq."
Therefore, the court believed that if talaq kinayah is verbally conditional on intention, it
is even more so conditional on a written talaq that includes divorce by kinayah. The court
ruled in this case that the defendant, who sent both both SMS messages, should have
taken an oath to establish whether there was an intention to divorce or not. The wife is
required to take the oath if the defendant declines to do so. Only then would the intention
to divorce, based on the SMS messages, become effective. If the plaintiff refuses to take
the oath, her application will be dismissed.

3. In the event the defendant refuses to take oath and the plaintiff takes the oath, the court
may then determine the question whether the divorce made in a state of anger was
effective or not. Although there is a submission that divorce was declared in a state of
anger, however, the issue would become relevant only when it is apparent that the
defendant had intended to divorce. At the time the above two SMS's were written the
defendant had no intention to divorce. Therefore, the court hereby declares that the
 divorce is ineffective by the writing of the two SMS's. The marriage between the plaintiff
and the defendant is still subsisting in accordance with Hukum Zahir.
● LEGAL ISSUES: Whether the talaq is effective when written in a state of anger with loss
of sanity?
● The last reason is that under Shafi'i law, a divorce issued in anger is regarded as valid
unless the person loses complete awareness or sanity. However, intention is still required
for the divorce to take effect. In this case, the court ruled that the husband did not intend
to divorce when he sent the SMS messages. Actually, The judge discussed this specific
issue as the wife had submitted that the husband was angry when he declared the divorce.
To resolve this, the court relied on the Shafi'i school of thought, which is the main Islamic
legal school followed in Malaysia. According to Shafi'i scholars, "They agree that talaq is
valid for a person who is angry, even if they claim to have lost consciousness due to their
anger." Imam Nawawi provides no elaboration on this matter, as if the ruling of a divorce
(talaq) issued in anger is absolute—whether the anger impairs sanity or not. Nevertheless,
based on this, it is evident that in the Shafi'i school of thought, talaq is valid for an angry
person without exception. However, this issue is only relevant if it is clear that the
defendant intended to divorce. At the time the SMS messages were written, the defendant
had no intention to divorce. As such, the court declared that the divorce, based on the two
SMS messages, was ineffective. The marriage between the plaintiff and the defendant
remains intact according to Hukum Zahir. To sum up, in this case, the deciding factor was
the intention to divorce, not merely the husband's anger. While the court did not disregard
the Shafi'i rule regarding anger, it concluded that at the time the SMS messages were
written, the husband lacked the necessary intention. Without intention, the divorce could
not be valid.