CLIENT COUNSELLING & SULH

LAD4012

THE SULH PROCEDURE ON THE APPLICATION OF

NAFKAH FOR WIFE

LECTURER:
SIR SYED MOHD NAJIB SYED OMAR
TURORIAL: TLB 4
GROUP MEMBERS:
NURULATIKA BINTI LASIMAN
NOOR SYAMIMI BINTI YUSOFF
NABIHAH AQILAH BINTI IDRIS

1122032
1122035
1122038

SEMESTER II 2015/2016
TABLE OF CONTENT
CONTENTS
1

Introduction

PAGES
3

2
3
4
5
6
7
8
9
10
11
12

Definition of Sulh
Authorities for Sulh
Brief History of the Application of Sulh in Malaysia
The Current Position of Sulh in Malaysia
Scope and General Procedure of Sulh
Definition of Maintenance
Verses in Quran and Hadith on Maintenance
Sulh Procedure for Maintenance for Wife
Decided Cases on Maintenance
Conclusion
References

4
4
5
7
8
10
10
13
15
19
20

Introduction
Prior to the advent of Islam, disputes were solved by using different
methods, with sulh and tahkim as the common modes used. The main
purpose of sulh and tahkim during the time was for maintenance of the

order in the case where disputants failed to achieve any agreement. 1

Parties resorted to sulh for amicable settlement once a dispute happened.
In case of failure of the sulh, parties proceeded with tahkim or
adjudication as the next mode to resolve the case. During the period, the
methods of dispute resolutions were mostly not in accordance with the
Islamic Law. For example, a hakam (an arbitrator) was sometimes chosen
from healers (kuhhan) and soothsayers, who were believed to have
supernatural powers.2 In the fragmented tribal society or pre-Islamic
Arabia, tahkim unlike arbitration was not an alternative to an established
judicial system. Rather it was the only means of dispute resolution short of
war if direct negotiation and mediation failed to achieve settlement. The
general belief that hakams were divinely inspired was extremely
important in bringing pressure to bear on the parties to submit disputes to
tahkim and to abide by the awards rendered. After the coming of Islam,
the Arabian Peninsula became the geographical base for the Islamic State.
Disputes were resolved in accordance with the Quran and hadith of the
Prophet SAW. The Prophet SAW rejected the appointment of healers and
soothsayers, who at that time were considered as spiritual mediators. The
rejection was based on the Quranic verse as follows: O you who have
believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to
other than Allah], and divining arrows are but defilement from the work of
Satan, so avoid it that you may be successful.3 Islam comes as the way of
life that guides the Muslims from all perspectives including on how to
resolve disputes. Islam encourages the use of sulh because of its ability to
resolve dispute without affecting the existing relationship among parties.
The approaches of dispute resolutions in Islam are as follows: (1) sulh
(negotiation,

mediation,

conciliation

and

compromise);

(2)

nasihah

(counseling); (3) qada (court adjudication); (4) tahkim (arbitration); (5)

1 Muhammad Hamidullah, Administration of Justice in the Early Islam, vol. 11,
(1937) Islamic Culture, at 163-71.
2 Joseph Schacht, An Introduction to Islamic Law, Clarendon Press, 1984, at 7.
3 Quran, al-Maidah, (5):90
3

muhtasib (ombudsman); (6) fatwa of mufti (expert determination); (7) wali

al-mazalim (chancellor); and other hybrid mechanisms.4

Definition of Sulh
The word sulh literally means termination of a dispute. 5 It is derived
from the word saluha or salaha, which means to be good, right, proper,
suitable, or the process of restoring something. It is a process of restoring
justice amicably among disputants in order to attain the agreed
settlement outside the court.6 Under the Islamic Law, sulh is considered as
complementary to court adjudication and highly recommended as
compared to the other mechanisms. For example, Al-Shafie encouraged a
judge to command parties to attempt sulh. However, if parties disagree,
the judge should proceed to adjudicate the case. The Shafie and Hanbali
jurists were of the view that sulh is a kind of agreement between
disputants to settle disputes amicably. Similarly, Article 1531 of The
Majelle stated as follows, Sulh is a contract of removing a dispute by
consent. And it becomes a concluded contract by offer and acceptance. 7
According to the definition, sulh is regarded as a contract concluded by
offer and acceptance, and consists of settling dispute by mutual consent.
Ibn Irfah defined sulh as,a process which involves a transfer of ownership
or allegation by way of accepting alternative or compensation offered in
order to resolve or prevent dispute from happening. 8 The Maliki perceived
sulh as a way of resolving past and future disputes involving disputants.
4 Syed Khalid Rashid, (2004). Alternative Dispute Resolution in the Context of
Islamic Law. The Vindobona Journal of International Commercial Law and
Arbitration, 8(1), at 105
5 Mustafa al-Khin et al., al-Fiqh al Manhaji ala Madhhab al-Imam al-Shafii, Dar
al-Qalam, 1996, vol.3, at 149.
6 Aida Othman, And Sulh is the Best: Amicable settlement and Dispute
Resolution in Islamic Law, (Ph.D Thesis, Harvard University, 2005)
7 Article 1531, The Majelle, C.R. Tyser, The Other Press, 2003, at 254.
4

In contrary, other schools maintained that sulh can only be applicable in

past disputes, not to future disputes.

Authorities for Sulh

The Quran and hadith of the Prophet SAW stated the need to resolve
any disputes between conflicting parties, especially among Muslims with
justice and fairness. Authorities supporting tahkim could also be used for
sulh. Some of the verses in the Quran are as follows:
a) And if two parties or groups among the believers fall to fighting, then
make peace between them both, but if one of them rebels against the
other, then fight you (all)

against the one that which

complies with the command of Allah; Then if

rebels till it

it complies, then make

reconciliation between them justly, and be equitable. Verily! Allah loves

those who are equitable. The believers are nothing else than brothers. So
make reconciliation between your brothers, and fear Allah, that you may
receive mercy.9
b) There is no good in most of their secret talks save (in) him who orders
sadaqa (charity in Allahs cause, or maaruf (good deeds), orconciliation
between mankind, and he who does this seeking the good pleasure of
Allah, We shall give him great a reward.10
c) Kathir bin Abd Allah bin Amru bin Auf al-Muzani reported that the
Prophet SAW said: Sulh is permissible among the Muslims except the one
which makes the unlawful as lawful and which makes the unlawful as

8 Salih Abd al-Sami al-Abi al-Azhari, Jawahir al-Iklil Syarh al Allamah Khalil Fi
Mazhab al-Imam Malik, Dar al-Fikr, (n.d), vol. 2, at 102.
9 Quran, al-Hujurat, (49):9-10.
10 Quran, al-Nisa, (4):114.
5

lawful. Muslims are bind by their promises except promises that permit
the unlawful as lawful and the lawful as unlawful.11
d) Abu Hurairah reported that the Prophet SAW said: There is a sadaqa to
be given for every joint of the human body and for every day on which the
sun rises, there is reward of a sadaqa for the one who establishes sulh and
justice among people.12
These authorities from the Quran and hadith of the Prophet SAW
demonstrate that Islam encourages all means of peaceful settlement,
including sulh.

In fact, all approaches of peaceful settlement are

recommended provided that the matter is not contravened to the Islamic

Law. The Islamic Law even allows the application of mediation with nonmuslims provided that the matter is in line with the Islamic teachings.

Brief History of the Application of Sulh in Malaysia

Malaysia is a multicultural country, consisting of different races
including Malays, Chinese and Indian. Despite the differences, Islam has
been given a special position under the Constitution of Malaysia.

It is

recognised as the religion of the Federation, securing its position and

implementation in the country. 13 Islam was adopted in the Malay Peninsula
during the twelfth and thirteenth century, when the Malay rulers
embraced the religion.

The Rulers then started to incorporate Islamic

Laws and Malay custom to the law of the country. For examples, UndangUndang Melaka (Malacca Laws) and Undang-Undang Laut Melaka (Malacca
Maritime Laws), which later influenced other state laws, such as the Laws
11 Abu Isa Muhammad Bin Isa, Kitab al-Ahkam, in Al-Jame al-Sahih wahuwa
Sunan al-Tirmidhi, Dar al-Fikr, (n.d), vol.3, hadith 1352.
12 Sahih Al-Bukhari, vol.3, translation by Muhsin Khan, Dar Al-Arabia, Beirut,
(nd), at 543.
13 Article 3(1) Federal Constitution
6

of Kedah (1605), the Laws of Johor (1789) and Ninety-Nine Laws of Perak
(1878).
The application of Sulh or dispute resolutions in Malaysia started since the
period of the Malacca Sultanate.

The Malacca Digest, which was a

compilation of Islamic Law based on the Shafii school of jurisprudence and

Malay customary law was the applicable law. 14

The law was very

influential as it was later adapted and adopted to other state laws, such as
the Law of Kedah and Ninety-Nine Laws of Perak.

It promoted the

application of sulh in most cases, especially involving personal and

property law. The Malacca Digest, as the governing law, influenced the
practice of the Malay society at that time.

The law influenced the

application of sulh in the Malay states.

Sulh, in the form of mediation and conciliation was widely applied as
a tool to resolve disputes, usually in cases involving religion and
matrimonial matters.15 Conciliation was and remains a most significant
aspect of legal procedure in Asia. The procedures for conciliation which
was often carried out by certain prestigious local leaders, gentry, tribal
chieftains, clans or lineage heads were and are delicate. Open conflict was
to be avoided and the pride of each party to be maintained. During the
sulh procedure, parties were assisted by a neutral third party who was
called a mediator.

In the Malay society, the mediator for the local

community can either be the ketua kampung (head of village), imam (the
leader of prayer at the mosque), ulama (religious scholars) or qadi
(judges in the syariah court). In practice, parties tend to refer to their
family members and elders to settle the dispute, especially the one
involving matrimonial matters due to the belief that problems should not
be publicized to save the reputation and to preserve the family institution.

14 Sharifah Suhana Ahmad, Malaysian Legal System, Malayan Law Journal Sdn
Bhd, (1999), at 3.
15 Farid Sufian Shuaib, Powers and Jurisdiction of Syariah Courts in Malaysia, 2nd
Edn, Petaling Jaya: LexisNexis, 2008, at 16-17.
7

The position changed when the colonialists, starting from the

Portuguese, the Dutch, the British and the Japanese came to the country.
Among the four foreign powers, the British left the most impact. English
Law was inserted to the country, making the existing Islamic Law a
secondary law that only governs trivial matters, including matrimonial
disputes and personal law.16 The inclusion of the English Law started with
the introduction of the First Charter of Justice in Penang in 1807, followed
by the Second Charter of Justice in 1826 which extended the application of
English Law to Singapore and Malacca.

The Third Charter of Justice in

1855 was introduced to recognise the existing courts in these states. 17

Despite of these laws, the British was not allowed to interfere in religious
matters. However, there were many instances where the implementation
of Islamic Law was restricted either by direct or indirect interference.
Nevertheless, sulh and Malay adat were still being applied within the
Malay communities. In most cases, the Ketua Kampung was the mediator
between conflicting parties.

The Ketua Kampung would analyse the case

and evidence presented by parties and advice for a peaceful settlement.

Hence, it can be concluded that sulh is a part of the Malaysia Legal
System and is not a foreign concept to the people, especially the Malays
society in Malaysia.

The Current Position of Sulh in Malaysia

The

position

of

the

Islamic

Law

has

improved

after

the

establishment of the Syariah Courts by virtue of the Federal Constitution. 18

The Syariah Courts is governed and supervised by the Syariah Judiciary
Department of Malaysia (JKSM) and currently under the Prime Ministers
16 Farid Sufian Shuaib, Development of Syariah Courts in Malaysia: Waves of
Reformation, [2008] 9, CLJ xli, at 2.
17 Supra note 36, at 22-24.
18 List II State List, para 1 of the Federal Constitution of Malaysia.
8

Department. It is headed by the Director General, who is also the Syariah

Chief Justice. The main role of the JKSM is to standardize the law among
different states and enhance the effectiveness of Syariah Courts in
Malaysia. For example, the JKSM Practice Direction No.3/2002 has
extending the application of sulh to other states.19 It has been mentioned
that the JKSM role is to enhance the effectiveness of Syariah Courts in
Malaysia. The effectiveness of Syariah courts can be measured by some
factors, including the number of settled cases in courts. The number of
settled cases can be increased with the application of Sulh in courts. By
virtue of the JKSM Practice Direction No.3/2002, all cases need to be
referred to sulh before proceed to the court. The Sulh Work Manual JKSM
2002 and the Sulh Officer Ethical Code JKSM 2002 were introduced as a
guideline in conducting sulh and prescribes ethical rules that must be
followed by the sulh officer.

Scope and General Procedures for Sulh

Basically, there are five general procedures for sulh. First, the case
must be registered according to the court jurisdiction as provided under
Section 61 and 62 of Administration of the Religion of Islam (State of
Selangor) Enactment 2003, Section 2(1), 4 and 45 of Islamic Family Law
(State of Selangor) Enactment 2003. Secondly, the Registrar will evaluate
the case either it can be put under sulh or directly to be heard in the
court. According to Rule 3 of Syariah Court Civil Procedure (Sulh) Selangor
Rules 2001, the Registrar is responsible to determine whether the case
can be brought to sulh process or not. There are two kind of claims or
application that can be made under sulh which are claims or application
specified under Islamic Family Law (State of Selangor) Enactment 2003
such as betrothal, maintenance of wife and children, mutah, custody of
19 JKSM, <http://www.jksm.gov.my/jksmv2/aa/uploads/032002.pdf> viewed 7
August 2014.
9

child, jointly acquired property and any other case which the Registrar
finds it suit. The other one is claim or application other than what had
been stated in Islamic Family Law (State of Selangor) Enactment 2003
which also being provided under the original jurisdiction of Syariah Court
in Section 61 (3) (b) of Administration of the Religion of Islam (State of
Selangor) Enactment 2003 such as the jointly acquired property with the
deceased.
Thirdly, prior to the sulh proceeding, the court has to examine any
possibility of settlement. If there is a possibility of settlement between
parties, the Registrar shall:
(a) Not fix a date for the trial of the action within a period of three months
from the receipt of the summons or the application. The period of three
months is a normal period to settle dispute that involve sulh session
periodically. If the settlement can be finished earlier, then the agreement
between the parties can be brought to the judge for the purpose of
recording and endorsement. Vice versa, the period of three months can be
drag longer without have to follow the hearing date by make an
application to the court.
(b) Fix a date, as soon as practicable, for the parties to hold sulh. The sulh
session needs to be made within 21 days from the date of case
registration to avoid too many postponed cases and that there is no
complaint made to the court on regards with the time taken.
(c) After the Registrar had chosen the date for sulh session, a Registrar
shall serve a notice of the date fixed for sulh to the parties to ensure that
they aware to come on the date.20
The fourth one is the presence of the parties. Failure to attend the
sulh proceeding amounting to contempt of court.21 Once the proceeding

20 Shariah Court Civil Procedure (Sulh) (Federal Territories) Rules 2004, Rule 3.
21 Ibid, Rule 4.
10

starts, the parties have to follow the procedure as stated in Rule 5 as

follows:
(1) Sulh shall be conducted in a majlis (hereinafter referred to as Majlis
Sulh in the presence of the parties to the action.
(2) Majlis Sulh shall be chaired by a Registrar or any public officer
appointed for such purpose by the Chief Syariah Judge.
(3) In a Majlis Sulh, every party shall appear in person and no Peguam
Syarie may appear or act as such for any party and no party shall be
represented by any person without the leave of the Chairman.
(4) The Chairman shall, where possible, assist the parties to resolve the
dispute concerning the subject matter of the sulh and shall give each
party an opportunity to be heard.
(5) In a Majlis Sulh, the Chairman may take evidence from the parties,
accept any document submitted and may, if he thinks necessary, adjourn
the Majlis Sulh from time to time.22
Finally, once parties agree for a settlement, the chairman prepares
the draft agreement which will be confirmed and signed by the parties.
The draft agreement will be sent to the court for judgment by consent. 23 In
contrary, if parties fail to achieve settlement, the chairman will write a
report containing his recommendations for the case. 24 The report will be
sent to the court, which will later fix a date for hearing to continue the
proceeding.25 Other than the SCCPSR 2004, guidelines are made to govern
the sulh procedure. The Sulh Officer Ethical Code JKSM 2002 (the Code) is
22 Ibid, Rule 5.
23 Ibid, Rule 6 and Section 131 Syariah Civil Procedure (Federal Territories) Rules
2004.
24 Ibid, Rule 7.
25 Ibid, Rule 8.
11

the guideline on roles and responsibilities of the sulh officers, 26 while the
Sulh Work Manual JKSM 2002 (the Manual) is the complete guideline for
the sulh procedures.27

Definition of Maintenance
Maintenance or nafaqah of a wife is an important obligation of the
husband. A man is under a duty to provide for maintenance for his family
which includes his wife, children, parents and other members of his family
as ordained by the hukum syarak.. As regards his wife, a man must
provide maintenance for her throughout the period of his marriage and
during 'iddah upon divorce. Maintenance includes all the basic necessities
of life, which is required by a person for the sustenance of his or her life.
Under Muslim Law, the obligation of a Muslim to maintain arises only if the
claimant has no means to maintain himself or herself. But the obligation of
the husband to maintain his wife is absolute, irrespective of the fact that
the wife bears a sound financial position and he is not in a position to
maintain her.

Verses in Quran and Hadith on Maintenance

The duty to provide maintenance for a wife is as clearly stated in the
holy Qur'an, surah Al-Baqarah (2:233)28, Allah commands that:

26 Sulh Officers Code of Ethics, Department of Shariah Judiciary, Malaysia (JKSM)

2002, Released by Dato Sheikh Ghazali bin Hj. Ab. Rahman, former Chief
Shariah Judge.
27 Sulh Work Manual, Department of Shariah Judiciary, Malaysia (JKSM) 2002.
28 surah Al-Baqarah (2:233)
12

 The husband shall bear the cost of their food and clothing on
equitable term
Although the above verse states that the husband is to provide food and
clothing, the definition of maintenance is not necessarily limited to the
above

only.

It

may

cover

other

necessities

such

as

residence,

nourishment, education, some other essential services such as medical

services even if the wife happens to be wealthy in her own right or even
though she may have her own income (Mimi Kamariah, 1999).29
In our laws, although there are provisions for maintenance, the term
maintenance or nafaqah has not been defined in the statutes. Hence, it
leaves room for the courts to determine the scope of maintenance,
because the needs of the family would differ from one generation to
another and depending on what is required to maintain a family. Most
often than not, maintenance would refer to financial support for the wellbeing and upkeep of the wife and children including, apart from food and
clothing, the children's education and other basic necessities.
Similarly, one hadith narrated by Abu Dawood and al-Nasai which
means:
O Rasulullah, what are our wives rights on us? Rasulullah
(peace and blessings be upon him) said give them food to eat as
you eat, and clothe them as you clothe.30
However, the amount of maintenance which the husband needs to provide
for his wife and children should not be beyond his means as the Islam
would not place any unreasonable burden on its ummah. It is stated in
surah al-Talaq (65:7):
Let him who has abundance spend out of his abundance, and
whoever has his means of subsistence straitened to him, let him
29 Family law in Malaysia, p 342
30 Hadith by Abu Dawood and al-Nasai
13

spend out of that which Allah has given him. Allah lays not on any
soul a burden beyond that which he has given it. Allah brings
about ease after difficulty.31
A man has to spend according to his status and wealth and hence, he has
to give maintenance in line with his resources. This is confirmed by
Prophet Muhammad saw who has commanded in a hadith that Aishah told
that Hind, a daughter of Utbah said:
O, Prophet! Abu Sufian does not give me and my son enough
maintenance except what I take from him without his knowledge'.
The Prophet replied, 'Take what is enough for you and your
son to the extent which is recognized by law.32
It is clear, therefore, that it is the cardinal duty of a husband to
provide for the maintenance of the wife and children during marriage.
Even after divorce, a husband continues to be responsible to give
maintenance to his children, and as far as the Islamic law is concerned, a
man only needs to give maintenance to his former wife during the 'iddah
period. If the wife was divorced while she is expecting a child, the period
of 'iddah would be until she delivers the baby. Surah at-Talaq (65:6) states:
Let women in 'iddah live in the same style as you live,
according to your means. Trouble them not in such a way
as to make things difficult for them. And if they are
pregnant, then spend your substance on them until they
deliver (the baby):

33

and if they suckle your child, give

them recompense: and take mutual counsel together,

according to what is just and reasonable.

31 Surah al-Talaq (65:7)

32 Miskat ul-Masabih, vol 1

33 Surah at-Talaq (65:6)

14

However, the husbands obligation to maintain his wife exists only so long
as she remains faithful to him and obeys his reasonable commands.
Although a Muslim wifes right to be maintained by her husband is an
absolute right yet, she must be faithful and obedient to him in respect of
all the matrimonial affairs. In other words, a wife will not be entitled to
maintenance once she is disobedient or nusyuz until she repented and
obeyed commands from her husband. For example, if she leaves her
husbands place without his permission, she will lose her right of
maintenance. In Melaka, the obligation to maintain one's wife has been
codified in the Islamic Family Law (State of Melaka) Enactment 2002
('IFLME'). IFLME gives the Syariah Court the power to order a man to pay
maintenance to his wife with the exception in certain situations wherein a
wife loses her right to maintenance, for example, where the wife commits
nusyuz.
Under the s 60(1) IFLME, the Syariah Court may, subject to Hukum
Syara', order a man to pay maintenance to his wife or former wife.

34

Further, clause (2) states that subject to Hukum Syara' and confirmation
by the court, a wife, however, shall not be entitled to maintenance when
she is nusyuz, or unreasonably refuses to obey the lawful wishes or
commands of her husband. This means, inter alia, when she withholds her
association with her husband; when she leaves her husband's home
against his will; or when she refuses to move with him to another home or
place; without any valid reason according to Hukum Syara. However, s
60(3) IFLME provides that as soon as the wife repents and obeys the
lawful wishes and commands of her husband, she ceases to be nusyuz
and therefore will be entitled to get maintenance.

34 Section 60(1) of Islamic Family Law (State of Melaka) Enactment 2002

('IFLME')
15

Sulh Prodecure for Maintenance for Wife

Generally, the application of Sulh for the settlement of cases in
Syariah Court has no specific procedure on each case. The Sulh Officer will
apply certain standards approaches in solving the cases. However, there
are some specific questions that differentiate between Sulh procedures of
nafkah for wife case with other cases.
The Sulh procedure for the settlement of nafkah for wife case starts
by the Sulh Officer give the initial statement. On this session, the Sulh
Officer will introduce himself and his position to help in settling the
dispute as the natural person. He also will explain in brief the benefit of
Sulh in the case settlement and will make comparison between Sulh
procedure and trial in the court. Clearly, a Sulh Officer needs to gain
phycology and persuading skills to attract the client to use this Sulh
procedure. In facts, the success of Sulh procedure will benefit all, not only
to the clients, but also on the Syariah court itself. There will be reduction
on the pending nafkah for wife cases in Syariah court.
Secondly, the plaintiff (the wife) will start on her statement of claim.
She will state her claims for each and every single particular thing for her
need. The claims are different according to the nafkah for wife cases. It
was preferred to specify in details the claims so that the discussion will be
in clearer stage. At this point, the defendant was not allowed to speak out
and rebut the claims. Later, the defendant was given the opportunity to
make his defence or explanation on the claims that being proposed by the
plaintiff. The defendant can explain on his ability in providing the nafkah if
the amount is unreasonable for him to pay. If the parties get quarrel, the
Sulh Officer will calm the situation. Here, the experience and patient were
needed to handle the disputing parties in resolving their issue. This is one
of the challenges for being a Sulh Officer.

16

Thirdly, the concurrent discussion begins where this session allowed

both plaintiff and defendant to speak out their arguments. The plaintiff will
argued on her claim and if the defendant disagreed about the claims, he
can rebut it by providing valid reasons. At this level, the Sulh Officer will
evaluate the situation in fair between the plaintiff and the defendant. He
will determine the most suitable and fair solutions for the parties to be
presented at the end of the Sulh session.

However, in some special situation, the Sulh Officer will conduct the
caucus meeting when he thinks it necessary. This kind of necessity can
only be determined by the Sulh Officer. If he saw some unbalanced
arguments and situation between the parties, he will proceed with this
caucus meeting with the particular party. The caucus meeting is a session
between the Sulh Officer and one of the parties either the plaintiff of the
defendant. This is a session where that party may have the opportunity to
be opened without feeling threaten or uneasy in the concurrent
discussion. This is normal for the disharmony marriage where it might be
some unbalanced if the solution is achieved the Sulh Officer only heard on
one parties argument.
Last but not least, the Sulh Officer will make the conclusion and
provides the solutions for both parties in last session. This session will
determine either the Sulh session was successful or not. It is not binding
for the parties to follow the solutions made by the Sulh Officer. The
plaintiff might win some of her arguments and some might not. If the
parties agreed on these solutions, the Sulh Officer will have to prepare on
the agreement contract and this agreement will be endorsed as an Order
by the court. On the other hand, if the parties refused to continue and
disagreed on these solutions, thus the Sulh session was regarded as a fail

17

session. The Sulh Officer will then make a report and trial in the court
room will be held on the parties.35

Decided Cases on Maintenance

1. Dzulfaezah bt Abdul Hamid v Izuddin bin Murshid36
In this case, the plaintiff was married to the defendant on 7 September
1985 and had six children from the said marriage. On 17 April 2001, the
parties were divorced and the said children remained under the care of
the plaintiff. The plaintiff sought to recover arrears of maintenance, a sum
of RM90,000, which had accrued since their marriage on 7 September
1985 until their separation on 17 April 2001. The above sum encompassed
claims for basic necessities, expenses incurred during and after delivering
child, expenses for a suitable accommodation and the cost for hiring a
domestic maid. The court held that the wife is entitled to maintenance
from her husband. The defendant was bound to provide maintenance to
his wife. In determining the arrears of maintenance, it would be
35 Interview session with Muhammad Hafiz bin Mokhsin. Sulh Officer of Kuala
Langat Syariah Court.
36 [2009] 3 SHLR 125
18

appropriate to look into the financial status of the husband, whether at the
material time he was in difficulty or was too poor, whether he was rich or
of average earner. Therefore the defendant was ordered to pay the
plaintiff the established arrears of maintenance, a sum of RM11,906.

2. Nurul Huda bt Ismail v Nurrizal bin Ahmad Imran37

The parties herein were married on 21 February 2004. They had no
children. Since their misunderstanding in June 2004, the parties had been
staying separately, the plaintiff, with her parents in Batu Caves and the
defendant, in Seremban. Since then, neither the defendant nor his agent
provided her with maintenance. The plaintiff filed this application to
dissolve the marriage on the ground that the defendant had failed or
neglected to provide her with maintenance for a period exceeding three
months. The court held that it was satisfied that the defendant had failed
to provide maintenance to the plaintiff for a period of approximately seven
months namely, from June 2004 to 1 February 2005 (end of the allegationthe date the case was filed).

3. Rogayah bte Yaacob v Ahmad Zainudin bin Yaacob 38

The plaintiff and defendant were married on 3 October 1993 in Bahau,
Negeri Sembilan and their marriage was registered pursuant to the Islamic
Family Law (Negeri Sembilan) Enactment 1983. From their marriage they
had four children. After the marriage, they stayed in Negeri Sembilan and
in 1994 they moved to Kelantan. They stayed together in Kelantan till
37 [2009] 1 SHLR 108
38 [2006] 4 SHLR 112
19

December 1999. The plaintiff worked as a teacher, while the defendant, a

programmer, worked on a freelance basis. However, their relationship
began to turn into a crisis. Further, the plaintiff had to frequently visit
National Heart Institute in Kuala Lumpur for reasons of heart disease. Due
to this, the plaintiff, with the permission of the defendant, moved to her
village in December 1999 with her children. The defendant however,
refused to move with her because of his business. The plaintiff had also
declined to return to Kelantan when requested by the defendant. Apart
from the heart disease requiring medical attention, the plaintiff refused to
return to him because of the difficulties faced in managing the household
and the children on her own. She was not facing this problem while
staying with her parents in Kuala Pilah. The defendant merely visited the
plaintiff, once a fortnight and sometimes once a month or even once in
two months. Complications to their relationship began as a consequence
of staying apart. Therefore, in October 2000, the plaintiff applied for
fasakh divorce as the defendant had neglected to fulfil his duties in
providing maintenance and further, he had neglected his duties towards
the children and the household needs. The plaintiff had in fact referred
their problem to the Islamic Religious Department, Kelantan and had
undergone counselling sessions twice. The defendant however, failed to
attend despite being served with the necessary documents. The
defendant in his defence stated that he had visited the plaintiff and during
these visits, he had purchased household needs to the extent of his
means. Approximately, a sum of RM3,600 was spent per year for a period
of four years (2000-2004). Further, he had also given the plaintiff cash
money according to his means. The defendant alleged that the main
reason for the fasakh divorce was that the plaintiff wanted him to stay
with her in Kuala Pilah. He had in fact, requested the plaintiff to return to
Kota Bharu but she declined on the ground that she wanted to be closer to
her parents. The issue in this case is not concerning the failure to provide
maintenance but the inadequacy of the maintenance so provided. The
question herein is whether the inadequacy of maintenance constitutes a
valid ground for the dissolution of marriage by fasakh. A related issue is
20

whether the plaintiff would be still entitled to maintenance despite her

refusal to return and stay with the defendant. The court allowed the
plaintiffs application. It was held that the plaintiff was mistaken when she
alleged that the defendant had not provided her with maintenance. From
the al-da'wa and al-jawab, the court found that she had actually meant
that the defendant failed to give her cash money. According to hukum
shara', maintenance includes food, dwelling home, clothing, domestic
maid and other necessities of life. If the above is provided, the husband is
not required to give cash money unless the parties have agreed that the
husband is to provide cash money instead of the above necessities. The
court also believed that the approximate amount of maintenance provided
for the plaintiff was RM200 per month and this amount was far from
adequate. From the al-da'wa and al-jawab, the court found that this
amount included her maintenance as well as the children's, from
December 1999 to November 2000 (the date when this case was filed).
This was for a period of 12 months, that is, a period of more than three
months where the maintenance provided for the plaintiff and her children
was a mere RM200 per month. Thus, it is apparent that the defendant had
failed to provide adequate maintenance for a period exceeding three
months. The court need not consider the reasons for the defendant's
failure to provide adequate maintenance, either due to his inability or
refusal, as it makes no difference under the law. Lastly, the court gave the
judgment that S 129 of the Islamic Family Law (Negeri Sembilan)
Enactment 1983, clearly states that nusyuz occurs when the wife
intentionally refuses to abide by the lawful wishes of her husband. However, if she has valid reasons in accordance with hukum shara', it would
not constitute nusyuz.

4. Ramzas bt Daud v Ghani bin Idris39

39 [2012] 2 SHLR 69
21

In this case, the plaintiff and defendant were married on 22 May 2010 in
Thailand in accordance with hukum syarak by a wali am. They were
divorced with triple talaq (bain kubra) which was affected vide the short
messaging system (SMS) sent by the defendant to the plaintiff on 10
August 2010. The said marriage and divorce was affirmed by the
Terengganu Shariah High Court on 8 November 2010. Their marriage only
lasted for four months. The plaintiff, since her marriage to the defendant
and until the date of the divorce, was an entrepreneur involved in the
crackers business. Meanwhile, the defendant was the Director of the Kuala
Terengganu City Council. The plaintiff filed the claims against the
defendant regarding the arrears of maintenance with a sum of RM8000
(RM2000 x four months) and mut'ah with a sum of RM99,300. The court
held in allowing the plaintiffs claims that it was reasonable that the
defendant pay a sum of RM1,500 per month as the arrears of
maintenance throughout the period of iddah. This sum is arrived at by
taking into consideration her food expenses at the rate of RM900 per
month and medical and miscellaneous expenses amounting to RM600.
This figure was reasonable and in accordance to hukum syarak and the
existing laws. In addition, the divorce was not at the initiate of the
plaintiff. It was due to the defendant's failure to settle amicably the family
problems between his first wife and her family.

5. Norani bt Abd Rahman v Md Taib bin Hanapi 40

The plaintiff and the defendant were husband and wife who were married
on 12 December 1984. The parties had four children from their marriage.
In this case, the primary claim of the plaintiff was to determine the validity
of the divorce between the plaintiff and the defendant which was alleged
to have taken place in April or May 2000. The plaintiff alleged that the
defendant had, around the said time, uttered the following words through
the phone: Do not phone Khalijah anymore, do not ridicule her, and if you
40 [2008] 4 SHLR 79
22

do, our relationship will be severed. The plaintiff admitted making phone
calls to Khalijah and on 1 May 2000, she had made four such calls to
Khalijah. The main issue before the court was whether the words uttered
by the defendant were considered as kinayah divorce. Further, if the
divorce had taken effect between them, the court would have to settle the
ancillary claims resulting from the divorce. The court confirming kinayah
divorce and allowing ancillary claims resulting from the divorce. The
plaintiff in this case was entitled to accommodation and maintenance
including food, drinks, clothing and medicine. In accordance with hukum
Syarak, existing laws and the decided cases, it would be reasonable that
the rate of eddah maintenance payable by the defendant to the plaintiff
would be a sum of RM320 per month. For the issue of eddah maintenance,
the court had given the opportunity of Sulh procedure for the disputing
parties to determine the amount payable with regard to the maintenance
during eddah. However, the parties did not benefited and wasted this
opportunity, thus the court had ultimate power in determining the
necessity of eddah maintenance and its amount payable to the plaintiff.

Conclusion
As have been mentioned, sulh is widely practiced in Malaysia, especially
among the Muslims as a method to resolve disputes without having to
bring the case to the court.

Traditionally, the Ketua Kampung is the

mediator between conflicting parties. The Ketua Kampung would analyse

the case and advice for a peaceful settlement.

In most cases, parties

refer the dispute to their family members and elders.

This practice is

usually adopted in matrimonial disputes, which is not publicized to save

the reputation and to preserve the family institution. However, as
mentioned, the practice is limited to certain types of cases, mostly
regarding matrimonial and religious matter.

Therefore, it is suggested

that sulh is used as a method to settle cases among the Muslims

community in Malaysia. Currently, most cases are governed by the
common law system. The system itself is proven to be quite lacking in
23

resolving cases, due to its adversarial nature which requires time and high
cost.

As a result, mediation is used as an alternative to the current

system.

Generally, the application of mediation is a purely voluntary

process.

It can be either court mediation or mediation by non-judge

mediator.

It has been used as the other alternative to the current tort

litigation system.

Similarly, sulh may be used as the alternative for

Muslims in Malaysia. The concept of sulh is similar to mediation in the

sense that it involves resolving dispute amicably with the assistance of a
neutral third party.

Unfortunately, not many Muslims in Malaysia have

information about the concept of sulh.

Many resort to the western

litigation system or other alternative dispute resolution whenever a

dispute occurs. Hence, the knowledge of sulh needs to be given in order
to increase the awareness and revive its application by Muslims in
Malaysia. The awareness and knowledge on sulh can be given by offering
a specific subject of sulh at schools and academic institutions in Malaysia.
The syllabus should include discussions of all types of sulh, especially
mediation in general and briefly. It should include the general concept of
sulh, its techniques, ethics and approaches in conducting the procedure.
Aside from courses, training should be given to people who are interested
in becoming a sulh officer. Programmes may be conducted to promote
sulh as a method of dispute resolution in medical negligence cases.

References
1. Ahmad Ibrahim Family Law in Malaysia (3rd edition,1997) Malayan
2.
3.
4.
5.

Law Journal, Kuala Lumpur

Mimi Kamariah Majid, Family Law in Malaysia , 1998
Islamic Family Law (State of Melaka) Enactment 2002
Raihanah Azahari, Sulh dalam Kes Kekeluargaan Islam, 2008
Muhammad Hamidullah, Administration of Justice in the Early Islam,
vol. 11, (1937)
24

6. Joseph Schacht, An Introduction to Islamic Law, Clarendon Press,

1984
7. Syed Khalid Rashid, (2004). Alternative Dispute Resolution in the
Context of Islamic Law. The Vindobona Journal of International
Commercial Law and Arbitration.
8. Mustafa al-Khin et al., al-Fiqh al Manhaji ala Madhhab al-Imam alShafii, Dar al-Qalam, 1996
9. Aida Othman, Sulh is the Best: Amicable settlement and Dispute
Resolution in Islamic Law, (Ph.D Thesis, Harvard University, 2005)
10.
Article 1531, The Majelle, C.R. Tyser, The Other Press, 2003
11.
Salih Abd al-Sami al-Abi al-Azhari, Jawahir al-Iklil Syarh al
Allamah Khalil Fi Mazhab al-Imam Malik, Dar al-Fikr,

25