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M A L D I V E S L A W R E V I E W
2 0 1 3 V O L U M E 2
M A L D I V E S L A W R E V I E W
The Maldives Law Institute, founded by Suood, Anwar & Co.,
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C O N T E N T S
Adam, Muhammad Nasheed Tackling the High Rate of Divorce in the
Maldives within the Ambit of Classical
Fiqh……………….…………………………………………………………………………………... [2013] 2 MLR 5
Wisham, Ismail Vaguthy Amuru: The Law on temporary relief in the
Maldives…….…… [2013] 2 MLR 31 Qazi, Batool Zahoor Capital
Punishment in Maldives: A Necessity or a
Choice?………………………………………….…………………………………………….…… [2013] 2 MLR 46
| 5
T A C K L I N G T H E H I G H R A T E O F D I V O R C E I N T H E M
A L D I V E S
WITHIN THE AMBIT OF CLASSICAL FIQH
Muhammad Nasheed Adam
INTRODUCTION
The Maldivian Family Act 2001 was originally promulgated to tackle
the issue of
the high rate of divorce in the Maldives;1 which is among the
highest in the whole
world.2 In spite of this fact, the law only scratches the surface
of this problem and
left the gist of it unscathed. The Act only lays down few
procedural formalities in
order to restrain the rate of divorce and decrease the number of
couples
terminating their marriage contracts. The Maldivian legislators
should have given
this subject a more profound and more comprehensive treatment than
the one it
was afforded. When endorsing any piece of legislation to address
the issue of the
B.A. (Shariah) (Azhar), MCL (IIUM), Lecturer, Faculty of Law,
Maldives National University. 1 Ahmad Zahir, “Fashaa Bas”, in
Aailaa aai behey Qawaaidh 2001, Male, Ministry of Justice,
2001,
p. 3. (Preamble to the Family Regulations 2001) 2 Inter Press
Service (IPS) reported on 24 June 2010 that the “Maldives has one
of the highest divorce
rates in the world, with 10.97 divorces per 1000 inhabitants.”
See:
http://ipsnews.net/news.asp?idnews=51935 24 June 2010, accessed on
19 August 2010. And a Maldivian NGO Haama Jamiyya in a statement to
the CEDAW Committee says: “Considering that the Maldives had, one
of the highest divorce rates, if not the highest in the world, it
is noted that the divorce rates which dipped initially following
the enforcement of the Family Law has once again risen to very
high
levels.” See:
http://www.iwraw-ap.org/resources/pdf/Maldives%20oral%20statement.pdf
accessed on 21 August 2010. The anthropologist who authored a book
on Maldives and its people Clarence Maloney writing about the
Maldives says: “Most striking is the frequency of divorce. The
Maldives has the highest divorce rate (of registered marriages) of
any country in the world, according to United
Nations statistics. In the 1970s the rate was eighty-five divorces
for every 100 marriages.” See:
http://www.iias.nl/iiasn/iiasn5/insouasi/maloney.html accessed on
24 August 2010.
6 |
high divorce rate there is a dire need for the Maldives to adopt
and embrace a
drastic approach that may not be favoured by majority scholars of
the fiqh.3
This article invites all Maldivian intellects, and in particular,
scholars of Islamic
law to bring to the discussion table some fiqhi views concerning
divorce, that
differ and deviate from the mainstream opinion of the Muslim
jurists. It must be
noted however that said views are fully supported by highly revered
Sunni
scholars like Ibn Taymiyyah, Ibn Qayyim al-Jawziyyah, Ahmad
Muhammad
Shakir, Nasir al-Din al-Albani, Ibn Baz, Ibn „Uthaymin and others.
Their views
on this subject are supported by Quranic verses and Prophetic
traditions though
these views differ drastically from the traditionally held
conventional opinions of
majority jurists. According to these views, the divorce will not be
effective unless
it is performed before two witnesses and also it is nothing but
nonsense if the
divorce was carried out while the wife was undergoing the menstrual
period or
the divorce was executed within a period of tuhr4 in which the
couple performed a
sexual intercourse.5 Another measure which can be incorporated into
the
Maldivian family law in order to curb the high rate of divorce in
the Maldives is
imposing and enforcing a compensation scheme for the unjustified
divorces
unlitaterally carried out by husbands. This entails reviving the
old and forgotten
institute of mut„ah which is an Islamic answer to indemnity in
cases of talaq.6
CALLING FOR WITNESSES IN CASES OF TALAQ
If the command laid down by the Quran for the validity of talaq to
be fulfilled is
to be followed, then calling witnesses is a must.7 The Quran
declares that:
(
3 Fiqh is Islamic jurisprudence. 4 Tuhr is the time between two
menstrual periods. 5 Ahmad Muhammad Shakir, Nizam al-Talaq fi
al-Islam, Taif (Saudi Arabia), Maktabah al-
Ma„arif, 1389 A. H, pp. 137 – 138. 6 Talaq means divorce performed
by the husband by pronouncing any statement that carries a
clear
meaning of repudiating his marriage to his wife. 7 Ja„far
al-Sabhani, Al-I„tisam bi al-Kitab wa al-Sunnah, Beirut, Dar
al-Adwa li al-Tiba„ah wa al-
Nashr wa al-Tawzi„, 1997, p. 165.
| 7
8)
“O Prophet! When ye do divorce women, divorce them at their
prescribed periods, and
count (accurately), their prescribed periods: And fear Allah your
Lord: and turn them not out of their houses, nor shall they
(themselves) leave, except in case they are guilty of some
open lewdness, those are limits set by Allah: and any who
transgresses the limits of Allah, does verily wrong his (own) soul:
thou knowest not if perchance Allah will bring about
thereafter some new situation. Thus when they fulfill their term
appointed, either take them
back on equitable terms or part with them on equitable terms; and
take for witness two persons from among you, endued with justice,
and establish the evidence (as) before Allah.
Such is the admonition given to him who believes in Allah and the
Last Day. And for those who fear Allah, He (ever) prepares a way
out.”9
These verses very plainly affirm the need for witnesses to be
called when the talaq
is performed and also when raj„ah (revocation of talaq) is
executed.
( ) “…and take for witness two persons from among you, endued with
justice…”
The imperative command in wa-ash-hidu () indicates that
calling
eyewitnesses to observe the performance of divorce is a compulsory
obligation
(wajib), for there is no evidence whatsoever to support any other
possibility.10
8 Surah al-Talaq: 1 – 2. 9 This is „Abdullah Yusuf „Alis
translation. Muhammad Marmaduke Pickthalls translation reads: “O
Prophet! When ye (men) put away women, put them away for their
(legal) period and reckon the period, and keep your duty to Allah,
your Lord. Expel them not from their houses nor let them go forth
unless they commit open immorality. Such are the limits (imposed
by) Allah; and whoso transgresseth Allah's limits, he verily
wrongeth his soul. Thou knowest not: it may be that Allah will
afterward bring some new thing to pass. Then, when they have
reached their term, take them back in kindness or part from them in
kindness, and call to witness two just men among you, and keep your
testimony upright for Allah. Whoso believeth in Allah and the Last
Day is exhorted to act thus. And whosoever keepeth his duty to
Allah, Allah will appoint a way out
for him.” 10 Ahmad Muhammad Shakir, Nizam al-Talaq fi al-Islam,
Taif (Saudi Arabia), Maktabah al-Ma„a
rif, 1389 A.H, p. 118.
8 |
It is vital for a clear and persuasive understanding of the true
meaning of this
verse to take a linguistic approach and examine it thoroughly. The
imperative
command for calling for witnesses wa ash-hidu () in the verse
indicates the
compulsory nature of this obligation, but, the question of when
this command of
“calling for witnesses” should be applied is the crucial factor
whose answer will be
vital in alleviating the hardship created by the high number of
divorces in any
Muslim society.
The command for calling witnesses in the verse wa ash-hidu ) )
should be
linked to one of the preceding two phrases in the verse; on this
basis, the
requirement to call for witnesses may arise in any of the following
instances:
1. the command of wa ash-hidu () is applicable on the occasion of
talaq
for its link to the phrase fa talliqu hunna li „iddatihinna ( ), or
2. the command of wa ash-hidu () is applicable on the occasion
of
raj„ah viz. revoking the divorce, for its link to the phrase fa
amsiku hunna
bi ma„ruf ( .(
If we take this linguistic approach we will find that the meaning
is closer to the
first possibility for the rational reason that the whole verse
mainly discusses talaq,
not raj„ah.11 Hence according to the real meaning of the verse, the
need for calling
of witnesses is compulsory to make the talaq valid and effective,
and any divorce
without this requirement would not be valid or effective.12
It is worth mentioning that the traditional view held by the
classical schools of
fiqh deviates from this clear elucidation rendered by this
linguistic interpretation.
For example, Shafi„i scholars hold two views regarding the calling
of witnesses as
demanded by this verse. The first view of the Shafi„i school on
this issue is that
calling witnesses is mandub (recommended) for both talaq and
raj„ah. The second
11 Raj„ah means renewing the previous marriage contract after a
revocable divorce. 12 Ja„far al-Sabhani, Al-I„tisam bi al-Kitab wa
al-Sunnah, Beirut, Dar al-Adwa li al-Tiba„ah wa al-
Nashr wa al-Tawzi„, 1997, pp. 168 – 170.
| 9
view of Shafi„is on the same issue is that calling witnesses is
mandub for talaq, but
wajib (compulsory) for raj„ah.13
The Hanafi jurists are inclined to take the first view articulated
by Shafi„is and
likewise argue that calling witnesses is only mandub (recommended)
in both talaq
and raj„ah but not as a compulsory obligation upon whose
fulfillment the validity
and effectiveness of the divorce and its revocation depend.14
Ibn Hazm15 who belongs to the Zahiri school of fiqh embraced the
literal meaning
of the verse which is also supported by the spirit of the Shari„ah.
According to Ibn
Hazm any talaq or raj„ah performed without the presence of
witnesses are null and
void.16
The Ja„fari (also known as Ithna „Ashari) school of fiqh which
belongs to the
Shi„ah wing of Muslims have aligned with Ibn Hazm as far as talaq
is concerned.
According to the Shi„ah scholars calling witnesses is a compulsory
obligation in
case of talaq but not in case of raj„ah. Therefore no talaq will be
valid or effective
without the presence of witnesses, but there is no need for
witnesses to perform a
legitimate and efficient raj„ah.17
Many juristic scholars of Zaydi school18 are also staunch
supporters of the view
that claims that the validity and effectiveness of talaq fully
depends on observing
the command laid down by the verse wa ashhidu (), hence calling
witnesses
to observe the performance of talaq is vital for its legitimacy and
effectiveness.19
13 Ahmad Husayn Jarjinazi, Fath al-Khallaq: al-Jami„ li Ahkam
al-Talaq, Himass, Dar al-Irshad,
1993, p. 38. 14 Ibid. 15 Ibn Hazm is a renowned scholar of fiqh and
author of one of the outstanding treatises of Islamic
law called Al-Muhalla. 16 Ibid. 17 Ja„far al-Sabhani, Al-I„tisam bi
al-Kitab wa al-Sunnah, Beirut, Dar al-Adwa li al-Tiba„ah wa
al-
Nashr wa al-Tawzi„, 1997, pp. 165 – 173. 18 Zaydi school of fiqh,
another Shiya„i faction, that is manifestly closer to the Sunni
wing of Islam
and whose principles are more attuned and compatible to the
corresponding Sunni doctrines than
Ja„fari (or Ithna „Ashari Shi„ah. 19 Muhammad ibn Yahaibn
al-Mutahhar, Ahkam al-Ahwal al-Shakhsiyyah min Fiqh al-Shari„ah
al-
Islamiyyah, San„a, Dar al-Fikr, 1989, vol. II, p. 64.
10 |
The emphasis given in the Quran to the importance of witnesses is
noteworthy.
Not only does it oblige them to be „adl20 (equitable), but it also
cautions and
reminds them of the responsibility conferred to them by God.21
Presumably, one
of the objectives of the holy Quran in this matter seems to be, to
ensure, that
there should be no grounds for possible disagreement between the
spouses after a
divorce procedure has been set in motion. For this reason, the
Quran requires the
presence of two witnesses to a divorce so that „iddah,22
maintenance, inheritance,
and other issues, which may arise from a divorce, do not become
matters of
dispute. It is not unreasonable to assume in such circumstances,
that, there could
be some controversial matters to be settled between the spouses or
anyone else
who might be concerned. In addition, the testimony of two witnesses
to a divorce
would leave no grounds for disagreement relating to the manner and
time of talaq
pronounced by a husband.23
Many scholars who authored reliable exegeses of the holy Quran (or
mufassirun)
expressed their unequivocal support for the compulsory nature of
calling
witnesses for the validity of talaq.
Fakhr al-Din al-Razi, says: “[Muslims] were ordered to bring out
two eye-witnesses when
they repudiate the marriage by performing talaq and also when they
revoke this talaq by a
raj„ah.”24
Ibn Jarir al-Tabari, who is nick named as Shaikh al-Mufassirin
(Master of all Tafsir
scholars) in his commentary on the Quran spoke out in favour of the
calling of
witnesses in the event of performing talaq. He opined that the
command wa ash-
hidu () in the verse should be applied to talaq as well as
raj„ah.
20 „Adl means a person of good character, just and having the good
quality of religious virtues and
moral integrity. 21 Kamal Ahmad „Awn, Al-Talaq fi al-Islam Muhaddad
wa Muqayyad, Riyadh, Dar al-„Ulum li al-
Tib„ah wa al-Nashr, 1983, p. 74. 22 „Iddah is the obligatory
waiting period before a new marriage contract for a woman after she
has
become a divorcee or a widow. 23 Ahmad Husayn Jarjinazi, Fath
al-Khallaq: al-Jami„ li Ahkam al-Talaq, Himass, Dar
al-Irshad,
1993, p. 38. 24 „Abd al-Rahman al-Sabuni, Nizam al-Usrah wa Hall
Mushkilatiha fi Daw al-Islam, Beirut, Dar al-
Fikr al-Mu„asir, 2001, p. 142. The translation is mine.
| 11
Al-Suddi and „Ata ibn Abi Rabah have articulated the same message
saying that
talaq and raj„ah both require witnesses.25
Al-Qurtubi and Abu Hayyan al-Nahwi al-Andalusi are also inclined to
favour this
view that regards the calling of witnesses for the repudiation of
marriage as a
condition for the validity of talaq.26
Among the Prophets Companions to whom this view is attributed are
„Ali ibn
Abi Talib, „Abdullah ibn „Abbas and „Imran ibn Husayn.27
„Abdullah ibn „Abbas elucidating the significance of witnesses in
the execution of
talaq declared: “A marriage can be contracted validly if there are
witnesses. In the same
manner that contract can be repudiated only in the presence of
witnesses and then that
repudiation can be revoked legitimately if there are
witnesses.”28
While this verse of the holy Quran positively indicates the
compulsory nature of
calling witnesses for a talaq to be valid and effective, this view
also found
expressly articulated support from some Companions of the holy
Prophet and
many scholars of the past, subsequently in modern times some of
the
contemporary scholars also gave their blessing for the same
opinion. Muhammad
Abu Zahrah29 says that if he was given the chance to choose, he
would have
chosen that talaq would only be valid and effective if it is
performed before two
witnesses.30 „Ali Khafif31 says that making the validity of the
talaq conditional
upon presence of witnesses is the view which can bring harmony to
the society for
it is closer to the public interest of the Muslim Ummah.32 Muhammad
Baltaji33
25 Muhammad Baltaji, Fi Ahkam al-Usrah: Dirasah Muqaranah, Cairo,
Dar al-Taqwa, 2001, p. 465. 26 „Abd al-Rahman al-Sabuni, Nizam
al-Usrah wa Hall Mushkilatiha fi Daw al-Islam, Beirut, Dar
al-
Fikr al-Mu„asir, 2001, p. 142. 27 Muhammad ibn Yahya ibn
al-Mutahhar, Ahkam al-Ahwal al-Shakhsiyyah min Fiqh al-Shari„ah
al-
Islamiyyah, San„a, Dar al-Fikr, 1989, vol. II, p. 64. 28 Al-
Qurtubi, Tafsir al-Qurtubi, vol. XXVIII, p. 88. as cited by Ahmad
al-Ghanduri, Al-Ahwal al-
Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 331. The translation is
mine. 29 A former professor of Shari„ah at Cairo University and a
leading scholar and author of Islamic law of the last century, from
Egypt. 30 Muhammad Abu Zahrah, Al-ahwal al-Shakhsiyyah, Beirut, Dar
al-Fikr al-„Arabi, 1958, p. 365. 31 A former professor of Shari„ah
at Cairo University and a leading scholar and author of Islamic law
of the last century, from Egypt. 32 „Ali Khafif, Furaq al-Zawaj, p.
131. as quoted by „Abd al-Rahman al-Sabuni, Nizam al-Usrah wa
Hall Mushkilatiha fi Daw al-Islam, Beirut, Dar al-Fikr al-Mu„asir,
2001, p. 143.
12 |
with some cautiousness expresses his view that this approach of
taking the call for
witnesses as a compulsory measure in performing talaq should be
adopted
formally in Muslim states.34
The leading Hadith scholar of our time Shaykh Nasir al-Din
al-Albani after giving
scriptural evidence to support invalidity of any divorce done
without witnesses,
opines that, since the validity of marriage depends on the presence
of witnesses,
divorce should be given equal treatment as far as the presence of
witnesses is
concerned, for divorce is far too critical than marriage in this
regard.35
Muhammad Yusuf Musa who taught Islamic law in both Cairo University
and
Alexandria University opined expressly that the view which supports
the validity
and effectiveness of talaq depending on the calling of witnesses
should be adopted
as a binding legal provision in the Family Law of Egypt.36 Muhammad
al-
Ghazali37 articulated the same argument with more vigour and
force.38
Ahmad al-Ghandur was no less enthusiastic to adopt the same
approach and in
his commentary on the Kuwaiti Family Law, he urged the Kuwaiti
legislators to
take up this view and include it in the textual body of legal
provisions that govern
the family matters in the country, so no divorce will be valid or
effective unless
witnesses were called to observe the repudiation. If this had been
done it would be
an implementation of the Shariah instructions regarding this matter
for the
Quran points toward the necessity of calling witnesses to oversee
the
performance of talaq. According to Ahmad al-Ghandur39 this is also
according to
33 Former Dean of Dar al-„Ulum (Faculty of Islamic and Arabic
Studies) of Cairo University. 34 Muhammad Baltaji, Fi Ahkam
al-Usrah: Dirasah Muqaranah, Cairo, Dar al-Taqwa, 2001, pp.
466–467. 35 See Shaykh Albanis fatwa on http://www.fatawa-
alalbany.com/fiqh/hn%2808_04.rm%29.html (accessed on 4 June 2013).
36 Muhammad Yusuf Musa, Al-Amwal wa Nazariyyah al-„Aqd fi al-Fiqh
al-Islami, Cairo, Dar al-Fikr
al-„Arabi, 1996, pp. 94 – 95. 37 A leading Muslim scholar and
author of the last century, from Egypt. 38 Muhammad al-Ghazali,
Qadaya al-Marah bayn al-Taqalid al-Rakidah wa al-Wafidah, Cairo,
Dar
al-Shuruq, 1990, p. 184. 39 A former professor of Shari„ah at
Kuwait University and a leading scholar and author of Islamic
law.
| 13
what is required by the communal need and public interest of the
whole Islamic
Ummah.40
„Abd al-Rahman al-Sabuni41 is another staunch proponent of
invalidating any
talaq if it is performed without calling for witnesses to observe
and view the
repudiation.42 He explicates this legal verdict taken from the
divine command in
the verse wa ash-hidu ( ) and explains elaborately that if we
applied the
jurisprudential principles of the Islamic legal theory, in the
interpretation of the
verse then there is no other applicable and convincing ruling
available.43 He
rightfully points out that it is a well-known doctrine in Usul
al-Fiqh, that every
imperative command proposes a compulsory obligation unless there is
a
convincing piece of evidence which puts forward a different idea.
Furthermore
the context of the verse proves beyond doubt that the calling for
witnesses in case
of talaq is a compulsory obligation.44
Some scholars take a middle approach between the views that say
that calling
witnesses is indispensable for the validity of talaq and the
opinion of mainstream
scholars who suggest that calling witnesses for the performance of
divorce is a
mere recommended mandub. Among them is „Abd al-Fattah Muhammad Abu
al-
„Aynayn who says that “calling witnesses should be made compulsory
and in case
of dispute between the husband and the wife over repudiation of the
marriage no
juridical decision should be granted in favour of the separation
validating and
confirming the talaq if there were no witnesses to verify the
divorce. However, as
a matter between the divorcing husband and his Creator Almighty
Allah, it will
be a valid divorce and the husband has a moral and religious
responsibility to bear
the consequences of his talaq pronouncement. It is an obvious sin
he has incurred
to himself for violating the Quranic injunction that demands the
calling of
witnesses at the time of repudiation.”45
40 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„
al-Islami, Kuwait, Maktabah al-Falah ,
1992, pp. 331 – 332. 41 A former professor of Shari„ah at Halab
University and a leading scholar and author of Islamic
law from Syria. 42 „Abd al-Rahman al-Sabuni, Nizam al-Usrah wa Hall
Mushkilatiha fi Dawi al-Islam, Beirut, Dar al-
Fikr al-Mu„asir, 2001, pp. 142 – 143. 43 Ibid. 44 Ibid. 45 „Abd
al-Fattah Muhammad Abu al-„Aynayn, Al-Islam wa al-Usrah, Cairo,
Al-Farmawi, (n. d.),
pp. 43 – 47.
14 |
In order to reduce the horribly high rate of divorce in the country
it is an
imperative requirement for the Maldives to promulgate legislation
making any
divorce performed without calling witnesses null and void and no
repudiation
should be valid and effective unless and until done before two
witnesses.
TALAQ AL-BID‘AH: IS IT A VALID AND EFFECTIVE DIVORCE?
Shari„ah strongly urges Muslims to abstain from talaq unless it
becomes an
inevitable necessity, in which case Shariah insists on making this
acrimonious
experience as soothing and peaceful as possible. To achieve this
end, it is essential
for Muslims to abide by the rules laid down by the Quran and the
Sunnah of the
Prophet. One such demand of the Shariah is that the repudiation of
the marriage
should be a talaq al-sunnah, and not a talaq al-bid„ah. If the
Muslims followed the
guidelines of Shariah in this matter, no man ever has to worry
about the
repudiation he has performed as quoted by the righteous Caliph „Ali
ibn Abi
Talib.46
All the jurists of all the schools of fiqh unanimously agree that
talaq al-bid„ah is a
sin and it should be discouraged and the one who commits that act
deserves
severe reprimand from the authorities and the community at
large.47
The juristic scholars of Shariah are divided into two groups on
this issue.48 The
mainstream view held by the vast majority of scholars supports the
view that this
type of talaq is a valid and effective repudiation of the marriage
contract despite its
sinful nature.49 Then there is a sizable minority who support the
contrasting view
that talaq al-bid„ah is nothing but nonsense which would not be
counted as a valid
and effective talaq.50
46 Muhammad Rawwas Qalaji, Mawsu„ah Fiqh „Ali ibn Abi Talib,
Beirut, Dar al-Nafais, 1996, pp.
443 – 444. 47 Muhammad Ibrahim al-Hafnawi, Al-Mawsu„ah al-Fiqhiyyah
al-Muyassarah, Mansurah, Maktabah
al-Iman, (n. d.), p. 104; and Mustafa al-Khinn, Mustafa al-Bugha
and „Ali al-Sharbaji, Al-Fiqh al-
Manhaji ala al-Madhhab al-Imam al-Shafi„i, Damascus, Dar al-Qalam,
1992, vol. IV, p. 126. 48 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah
fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 327. 49 Abu al-Husayn Yahya ibn Abi al-Khayr ibn Salim
al-„Imrani, Al-Bayan fi Madhhab al-Imam al-
Shafi„i, Beirut, Dar al-Minhaj, (n. d.), vol. X, p. 79. 50
Ibid.
| 15
The juridical dispute on this issue has its roots in the early ages
of the
Companions. Two contrasting views are attributed to the Companion
„Abdullah
ibn „Umar.51 Among the juristic scholars who argued in favour of
the latter
opinion that puts forward the idea that talaq al-bid„ah does not
constitute a valid
and effective repudiation of the marriage contract, are Sa„id ibn
Musayyib,52
Taus,53 Ibn „Ulayyah, Hisham ibn al-Hakam and others.54 This view
was
embraced by the Zahiri School of fiqh and was backed by the most
ardent
proponent of this school, Ibn Hazm, in his book Al-Muhalla.55
Ibn Taymiyyah is another outstanding scholar who very zealously
supported the
view56 that talaq al-bid„ah does not constitute a valid and
effective repudiation of
the marriage contract. In his Fatawa, he very strongly defended
this view and gave
a detailed account of how he derived legitimate proofs from the
Quran and the
Sunnah.57 Ibn Taymiyyahs leading disciple Ibn Qayyim al-Jawziyyah
was no less
fervent in his endorsement of this view.58 He too elaborated on
this issue in his
book Zad al-Ma„ad fi Hady Khaiyr al-„Ibad.59
Almost a century later,60 Muhammad ibn Ibrahim al-Wazir became
another
important patron of this view.61 He authored a book in which he
firmly attested
and provided evidence for the fact that talaq al-bid„ah is actually
an ineffective and
51 Muhammad Rawwas Qalaji, Mawsu„ah Fiqh „Abdillah ibn „Umar,
Beirut, Dar al-Nafais, 1995,
pp. 565 – 566. 52 Muhammad ibn Yahya ibn al-Mutahhar, Ahkam
al-Ahwal al-Shakhsiyyah min Fiqh al-Shari„ah al-
Islamiyyah, San„a, Dar al-Fikr, 1989, vol. II, p. 85. 53 Muhammad
ibn Isma„il al-San„ani, Subul al-Salam: Sharh Bulugh al-Maram min
Jam„ Adillah al-
Ahkam, Beirut, al-Maktabah al-„Asriyyah, 1992, vol. III, p. 302. 54
Abu al-Husayn Yahya ibn Abi al-Khayr ibn Salim al-„Imrani, Al-Bayan
fi Madhhab al-Imam al-
Shafi„i, Beirut, Dar al-Minhaj, (n. d.), vol. X, p. 79. 55 Abu
Muhammad „Ali ibn Ahmad ibn Sa„id ibn Hazm, Al-Muhalla, (n. pp.),
Dar al-Fikr, (n. d.),
vol. X, pp. 161 – 174. 56 Muhammad Rawwas Qalaji, Mawsu„ah Fiqh
„Ibn Taymiyyah, Beirut, Dar al-Nafais, 1998, vol.
II, p. 972. 57 See: Taqiyy al-Din Ahmad ibn Taymiyyah al-Hurrani,
Majmu„ah al-Fatawa, Riyadh, Maktabah
al-„Abikan, 1998, vol. XXXIII, pp. 7 – 28. 58 Shams al-Din Abu
„Abdillah Muhammad ibn Abi Bakr al-Zar„i al-Dimishqi, Zad al-Ma„ad
fi
Hady Khayr al-„Ibad, Kuwait, Maktabah al-Manar al-Islamiyyah, 1986,
vol. V, pp. 218 – 241. 59 Ibid., pp. 218 – 241. 60 Ibn Qayyim
al-Jawziyyah died in the year 751 A.H., and Muhammad ibn Ibrahim
al-Wazir died in the year 840 A.H. 61 Muhammad ibn „Ali ibn
Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar
min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat
al-Azhariyyah, 1978, vol. VIII, p. 10.
16 |
invalid repudiation by presenting seventeen proofs for his case.62
This book was
later emulated by another concise work of Fiqh and Hadith penned
by
Muhammad ibn Isma„il al-San„ani.63 In his commentary on Ibn Hajars
book
Bulugh al-Maram, entitled Subul al-Salam he says:
“I used to deliver fatwa64regarding the talaq al-bid„ah, that it is
an ineffective and invalid
divorce, and I authored a book explaining this opinion. But then
for a while I stopped advocating for this opinion thinking that it
is not the preferential view. Yet again after
sometime it dawned upon me that the view I was holding previously
which says that talaq al-bid„ah is not a valid and effective
divorce, is indeed the rightful opinion. There is no
doubt that every bid„ah is an act of going astray (dalalah), and
every act of that kind is both
forbidden and has no effect whatsoever. Indeed this is applicable
to talaq al-bid„ah.”65
Again, almost a century later, Muhammad ibn „Ali ibn Muhammad
al-
Shawkani66 was inclined to give preference to this very view that
says talaq al-
bid„ah is an ineffective and invalid divorce which should not be
counted as a
legitimate repudiation of the marriage.67
More recently the former Grand Shaykh of al-Azhar, Mahmud Shaltut
in his
book entitled Al-Islam: „Aqidah wa Shariah explicitly opined that
the true and
reliable interpretation of the verses that speaks of talaq in the
Quran clearly
reveals that the talaq al-bid„ah is not an effective and valid
divorce whereby the
marriage contract can be terminated. Hence, this type of talaq is
no more than just
nonsense which has no consequence at all upon the marital bond
between the
spouses.68
62 Muhammad ibn Isma„il al-San„ani, Subul al-Salam: Sharh Bulugh
al-Maram min Jam„ Adillah al-
Ahkam, Beirut, Al-Maktabah al-„Asriyyah, 1992, vol. III, p. 303. 63
Ibid. 64 Fatwa means legal opinion. 65 Ibid. Translation is mine.
66 Imam al-Shawkani died in the year 1250 A.H. That is 1835 A.C. 67
Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh
Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat
al-Azhariyyah, 1978, vol. VIII, pp. 6 – 10.
It is worth noting that in this book Nayl al-Awtar Imam al-Shawkani
is evidently inclined to give
preference to this above mentioned view, but in his book entitled
Al-Sayl al-Jarrar he is giving
preference to the contrasting view which says talaq al-bid„ah,
despite its sinful nature it is a valid
and an effective divorce. See: Muhammad ibn Yahya ibn al-Mutahhar,
Ahkam al-Ahwal al-
Shakhsiyyah min Fiqh al-Shari„ah al-Islamiyyah, San„a, Dar al-Fikr,
1989, vol. II, p. 87. 68 Mahmud Shaltut, Al-Islam: „Aqidah wa
Shari„ah, Cairo, Dar al-Shuruq, 1997, p. 175.
| 17
In recent times, the most vocal proponent of this opinion that
views talaq al-bid„ah
as an ineffective and invalid repudiation of the marriage is Ahmad
Muhammad
Shakir. He argued that this type of talaq has no authentic proof to
support its
validity but there are numbers of genuine and dependable proofs
that establishes
the invalidity of this form of divorce.69
Among the contemporary scholars of fiqh, there are many
enthusiastic supporters
of this view who resolutely advocated that talaq al-bid„ah is
invalid and it should
be regarded so, and the family laws of the Muslim countries should
reflect this
fact in the formal legislations. Among them is Kamal Ahmad „Awn who
very
actively tried to promote this view in his book named Al-Talaq fi
al-Islam
Muhaddad wa Muqayyad,70 and Muhammad Salih al-Munajjid who is
the
administrator of the famous fatwa website www.islamqa.com.71 Two of
the
leading scholars of our time in Islamic law Shaykh Ibn Baz and
Shaykh ibn
„Uthaymin are also supporters of this opinion.72
Ahmad al-Ghanduri summed it up saying that: “many juristic scholars
have
opined that invalidity and ineffectiveness of the talaq al-bid„ah
are closer to the
jurisprudential rules and policies of fiqh, to the meaning and
spirit of the Quran,
and to the essential legal maxims of the Shariah.”73
The invalidity and ineffectiveness of talaq al-bid„ah is also
adopted by the Ja„fari
(also known as Ithna „Ashri) school of Shi„ah.74 Many outstanding
jurists of the
Zaydi school of fiqh which is much closer to the Sunni schools of
fiqh also held the
69 Ahmad Muhammad Shakir, Nizam al-Talaq fi al-Islam, Taif,
Maktabah al-Ma„arif, 1389 A.H.,
pp. 15 – 117. 70 Kamal Ahmad „Awn, Al-Talaq fi al-Islam Muhaddad wa
Muqayyad, Riyadh, Dar al-„Ulum li al-
Tiba„ah wa al-Nashr, 1983, pp. 61 – 70. 71 See: “Al-Talaq fi
al-Hayd” in http://www.islamqa.com/ar/ref/72417, “Masail fi
al-Talaq al- Mu„allaq” in http://www.islamqa.com/ar/ref/191258,
“Talaq thalath Marrat fi Tuhrin Jama„aha fihi” in
http://www.islamqa.com/ar/ref/106328, (accessed on 4 June 2013). 72
Ibid. 73 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„
al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 329. The translation is mine. 74 Ja„far al-Sabhani,
Al-I„tisam bi al-Kitab wa al-Sunnah, Beirut, Dar al-Adwa, 1997, pp.
225 – 235.
18 |
same view. Among these Zaydi scholars who advocated passionately
for this view
are al-Baqir, al-Nasir and al-Sadiq.75
As al-Shawkani very clearly states in his book Nayl al-Awtar, if
the proofs on
which the two contrasting views regarding the effectiveness and
validity of talaq
al-bid„ah were weighed, the strongest and most reliable opinion is
the one
supported by the minority that says that talaq al-bid„ah is
ineffective and invalid.76
The following are some of the proofs to which al-Shawkani was
referring:
(1)
( )77 O Prophet! When ye do divorce women, divorce them at their
prescribed periods, and count
(accurately), their prescribed periods: And fear Allah your
Lord.78
Here the verse only allows opening one single door to talaq, which
is talaq in a
time the divorcee can begin counting down her „iddah period. It is
well-known
that a woman if divorced while she is undergoing menstrual period,
cannot
immediately start the countdown of her „iddah. Hence the verse very
forthrightly
forbids divorce at the time of menstruation or nifas. Forbidding
anything clearly
suggests that the forbidden thing will not be counted valid and
consequently will
have no effect and will be worthless and ineffective.79 And the
Sunnah of the
holy Prophet explains the meaning of the phrase (divorce them at
their
prescribed periods) in this verse in the following tradition:
75 Muhammad ibn Isma„il al-San„ani, Subul al-Salam: Sharh Bulugh
al-Maram min Jam„ Adillah al-
Ahkam, Beirut, Al-Maktabah al-„Asriyyah, 1992, vol. III, p. 302. 76
Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh
Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat
al-Azhariyyah, 1978, vol. VIII, p. 9. 77 Surah al-Talaq: 1 78 This
is „Abdullah Yusuf „Alis translation. Pickthalls translation reads:
“O Prophet! When ye (men) put away women, put them away for their
(legal) period and reckon the period, and keep your duty to
Allah, your Lord.” 79 Ja„far al-Sabhani, Al-I„tisam bi al-Kitab wa
al-Sunnah, Beirut, Dar al-Adwa, 1997, p. 226.
| 19
"
( :
80 )
Ibn „Umar reported that he repudiated his wife while she was
menstruating during the lifetime of the Prophet. „Umar ibn
al-Khattab asked the Prophet about it, whereupon the
Prophet said: Command him („Abdullah ibn „Umar) to take her back
and keep her (as a wife) until she is purified and then let her
experience the period of menstruation and then,
when she is again purified he has the choice of keeping her as his
wife or divorcing her before
touching her (without having an intercourse with her), for that is
the period of waiting („iddah) which Allah, the Exalted and
Glorious, has commanded for the divorce of
women.81
(2)
: ) :
82 )
Ibn „Umar narrated that he divorced his wife while she was
undergoing her menstrual
period. Ibn „Umar said: The Prophet (peace and blessing be upon
him) returned her to me and did not count it (the pronouncement of
talaq) anything.83
(3)
) : :
: :
( 84
80 Sahih Muslim: 3473. 81 Abu Muhammad „Ali ibn Ahmad ibn Sa„id ibn
Hazm, Al-Muhalla, (n. pp.), Dar al-Fikr, (n. d.),
vol. X, p. 162. The translation is mine. 82 Muhammad ibn „Ali ibn
Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar
min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat
al-Azhariyyah, 1978, vol. VIII, p. 9. 83 The translation is mine.
84 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh
Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat
al-Azhariyyah, 1978, vol. VIII, p. 9.
20 |
Ibn Jurayj narrated that Abu al-Zubayr told him:
'Abd al-Rahman ibn Ayman, the freed-slave of „Urwah asked Ibn „Umar
while Abu al- Zubayr was listening: What do you think of a man who
divorces his wife while she is menstruating? „Abdullah ibn „Umar
replied: „Abdullah ibn „Umar (meaning himself)
divorced his wife while she was menstruating during the time of the
Prophet. So „Umar asked the Prophet saying: „Abdullah ibn „Umar
divorced his wife while she was
menstruating. „Abdullah said: He (the Prophet) returned her to me
and did not count it
(the pronouncement of that divorce) anything.85
(4)
:
86 ) ( Sa„id ibn Mansur reported through the narration of „Abdullah
ibn Malik that „Abdullah ibn „Umar divorced his wife while she was
experiencing the menstruation, and (when asked
about it) the Prophet said: “It (the divorce while the wife is
having menstruation) is nothing.87
(5)
Almighty Allah did not legitimize this type of talaq, nor did He
give us the
permission to perform divorce in this manner, hence it is
unacceptable, invalid
and ineffective, for the Prophet clearly states in an
unquestionably sound hadith
that:88
( ) 89
“Anyone who has done anything which is not in line with our way (of
doing things) then it
will not be acceptable from him.”90
85 The translation is mine. 86 Muhammad ibn „Ali ibn Muhammad
al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat
al-Azhariyyah, 1978, vol. VIII, p. 9. 87 The translation is mine.
88 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh
Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat
al-Azhariyyah, 1978, vol. VIII, p. 10. 89 Sahih al-Bukhari: 2697;
Sahih Muslim: 1718.
| 21
(6)
( 91 ). : Ibn Hazm narrated that „Abdullah ibn „Umar spoke about a
person who divorces his wife while she is undergoing menstrual
period, and „Abdullah ibn „Umar said that: “This (divorce) will not
be effective.”92
(7)
Another support for this view is a logical proof derived from the
analogical
reasoning qiyas which draws similarities betweem talaq al-bid„ah to
the act of a
wakil (an agent) who was authorized to do a particular thing in a
limited and
specific time. If this wakil performed the action he was asked to
do beyond the
time limit prescribed for him by his principal, his action should
be ineffective and
invalid. The same way when a Muslim performs the talaq beyond the
prescribed
time to do so, his action which is talaq should be invalid and
ineffective.93
(8)
In case some aspects of any particular action are forbidden and
others are allowed
and then if this action was performed in its forbidden form in that
case that
particular act will be ineffective and invalid. For example, sale
is originally
allowed in Islam, but sale of wine, intoxicating drugs, pigs and
dead animals are
not allowed and if these sales took place they would be invalid
sales. In the same
way marriage is allowed, but the marriage to a relative of a
prohibited degree, or
marriage to a woman who is already married or undergoing the „iddah
period is
forbidden and hence will be regarded as invalid. Exactly the same
should be
applied to divorce. Divorce should have its limits and
restrictions. All
unnecessary repudiations are very much discouraged, for they are
either sinful or
very much close to be a sin, and yet divorce is permitted in Islam
for pragmatic
reasons. It is allowed to be performed in tuhr period in which no
sexual
intercourse has taken place or when the wife is known to be
pregnant. It is
90 The translation is mine. 91 Abu Muhammad „Ali ibn Ahmad ibn
Sa„id ibn Hazm, Al-Muhalla, (n. pp.), Dar al-Fikr, (n. d.),
vol. X, p. 162. 92 The translation is mine. 93 Muwaffaq al-Din Abu
Muhammad „Abdullah ibn Ahmad ibn Qudamah, Al-Mughni, Makkah
al-Mukarramah, al-Maktabah al-Tijariyyah, (n. d.), vol. VIII, p.
239.
22 |
disallowed to be performed when the wife is undergoing her
menstruation or
nifas. So if the divorce is executed as a talaq al-bid„ah which is
evidently prohibited
and outlawed it would be invalid and ineffective.94
In order to curb the high rate of divorce in the Maldives, any
divorce performed
as a talaq al-bid„ah should be outlawed and hence be regarded as an
invalid and
ineffective repudiation of the marriage, and this should have no
bearing on the
marriage itself.
MUT‘AH: INDEMNITY FOR TALAQ
Under the laws of some Muslim countries, a divorced wife is
entitled to receive
from her former husband what is called mut„ah. This concept is
referred to in the
Quran in the following verse:
95) (
“For divorced women maintenance should be provided on a reasonable
scale. This is a duty
on the righteous.”96
Mut„ah literally means anything that renders any benefit and is
useful.97 This term
is very often used to mean a “consolatory gift”, “compensation”
and
“indemnity”.98 In the Shariah vocabulary, the term mut„ah is used
in different
contexts for different meanings. The mut„ah which is attached to
the repudiation
of the marriage contract is defined in the Shariah terminology as
“what is given to
94 Taqiyy al-Din Ahmad ibn Taymiyyah al-Hurrani, Majmu„ah
al-Fatawa, Riyadh, Maktabah al-
„Abikan, 1998, vol. XXXIII, p. 14. 95 Surah al-Baqarah: 241. 96
This is „Abdullah Yusuf „Alis translation. Muhammad Marmaduke
Pickthalls translation reads: “For divorced women a provision in
kindness: a duty for those who ward off (evil).” 97 Ahmad
al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami,
Kuwait, Maktabah al-Falah,
1992, p. 348. 98 Tahir Mahmood, Personal Law in Islamic Countries,
New Delhi, Academy of Law and Religion,
1987, p. 287.
| 23
the divorcee by her divorcing husband to alleviate the pain of
separation and ease the
hardship that may arise as a consequence of the divorce.”99
Mut„ah is basically different from regular maintenance following
divorce. In the
case of dissolution of an unconsummated marriage contracted without
a mahr,
only mut„ah is payable and no mahr or maintenance of „iddah can be
claimed by
the divorcee.100 This rule is enforced in Jordan, Lebanon, Morocco
and Yemen.
In some other countries mut„ah has to be paid – in addition to mahr
and
maintenance of „iddah – where, after the consummation of marriage,
a man
inflicts on a woman a talaq al-ta„assuf (arbitrary divorce) against
her wishes and
without any fault on her part.101
( 102)
“There is no blame on you if ye divorce women before consummation
or the fixation of their
dower; but bestow on them (a suitable gift), the wealthy according
to his means, and the
poor according to his means;- A gift of a reasonable amount is due
from those who wish to do the right thing.”103
This verse clearly indicates that paying mut„ah is an obligatory
duty for every
husband who divorces his wife prior to the consummation of the
marriage and
before specifying the mahr.104 It is an issue that enjoys a general
consensus of all
juristic scholars that a divorcee can rightfully claim mut„ah if
she was divorced
before the consummation and no mahr was spelled out in the marriage
contract.105
99 Muhammad al-Zuhayli, Al-Ta„wid al-Maddi „an al-Talaq, Damascus,
Dar al-Maktabi, 1998, p. 81.
The translation is mine. 100 Tahir Mahmood, Personal Law in Islamic
Countries, New Delhi, Academy of Law and Religion,
1987, p. 287. 101 Ibid. 102 Surah al-Baqarah: 236. 103 This is
„Abdullah Yusuf „Alis translation of the sacred verse. And Muhammad
Marmaduke Pickthalls translation reads: “It is no sin for you if ye
divorce women while yet ye have not touched them, nor appointed
unto them a portion. Provide for them, the rich according to his
means, and the straitened
according to his means, a fair provision. (This is) a bounden duty
for those who do good.” 104 „Abd al-Rabb Nawab al-Din Al Nawab
al-Din, Mwsu„ah al-Marah al-Muslimah al- Mu„asirah,
Riyadh, Dar al-„Asimah li al-Nashr wa al-Tawzi„, 2000, vol. I, p.
148. 105 Abu al-Husayn Yahya ibn Abi al-Khayr ibn Salim al-„Imrani,
Al-Bayan fi Madhhab al-Imam al-
Shafi„i, Beirut, Dar al-Minhaj, (n. d.), vol. IX, p. 471.
24 |
Besides the textual proof from the Quran this view gains backing
from the
Companions of the holy Prophet like „Ali ibn Abi Talib, „Abdullah
ibn „Abbas
and „Abdullah ibn „Umar.106
The verses were taken literally by the scholars of the Zahiri
school of fiqh and they
extended the legal ruling of imposing the compulsory duty of paying
mut„ah on
every divorcing husband for his repudiated wife, regardless of
consummation of
the marriage or the specification of the mahr.107 This view which
was very
eloquently defended by Ibn Hazm also has won the support from some
juristic
scholars outside the Zahiri School. Among them is Ibn Jarir
al-Tabari who with
Zahiri scholars argued that the verse wa li al-mutallaqati mata„ (
) did
not differentiate between the divorcees in their right to get the
mut„ah. Hence the
verse should be taken in its general broad meaning without
specification for
which there is no evidence to justify it.108 Long before these two
Imams, (i.e. Ibn
Hazm and al-Tabari), al-Hasan al-Basari staunchly argued in favour
of this
view.109 This view was also embraced by the jurists like Sa„id ibn
Jubayr.110
Furthermore, al-Zuhri and Abu Thawr are also enthusiastic adherents
of this
view.111 Abu al-„Aliyah too is a supporter of this opinion.112
Certainly the
quotation attributed to „Ali ibn Abi Talib that says “every
divorcee is entitled to
mut„ah”113 gives a strong backing to this view in addition to its
original reliance on
the verse of the Quran.
106 Muhammad „Ali al-Sabuni, Rawai„ al-Bayan: Tafsir Ayat al-Ahkam
min al-Quran, Damascus, Dar
al-Qalam, 1990, vol. I, p. 355. 107 Abu Muhammad „Ali ibn Ahmad ibn
Sa„id ibn Hazm, Al-Muhalla, (n. p.), Dar al-Fikr, (n. d.),
vol. X pp. 245 – 249. 108 Abu Ja„far Muhammad ibn Jarir al-Tabar,
Jami„ al-Bayan fi Tafsir al-Quran, Beirut, Dar al-
Ma„rifah, 1983, vol. II, pp. 327 – 328. 109 Muhammad „Ali
al-Sabuni, Rawai„ al-Bayan: Tafsir Ayat al-Ahkam min al-Quran,
Damascus, Dar
al-Qalam, 1990, vol. I, pp. 354 – 355. 110 Abu „Abdillah Muhammad
ibn Ahmad al-Ansari al-Qurtubi, Al-Jami„ li Ahkam al-Quran,
Beirut, Dar Ihya al-Turath al-„Arabi, (n. d.), vol. III, p. 228.
111 Ibid. 112 „Imad al-Din Abu al-Fida Isma„il ibn Kathir
al-Qurashi, Tafsir al-Quran al-„Azim, Damascus,
Dar al-Fayha, 1994, vol. I, p. 387. 113 Ahmad Fathi Bahansi,
Nafaqah al-Mut„ah bayn al-Shari„ah wa al-Qanun, Cairo, Dar
al-Shuruq,
1988, p. 48; Ahmad Husayn Jarjinazi, Fath al-Khallaq al-Jami„ li
Ahkam al-Talaq, Himass, Dar al-
Irshad li Tawzi„at al-Matbu„at, 1993, p. 106; and Ahmad al-Ghandur,
Al-Ahwal al-Shakhsiyyah fi al-
Tashri„ al-Islami, Kuwait, Maktabah al-Falah, 1992, p. 347.
| 25
If the repudiation occurred before the consummation and a mahr was
specified in
the marriage contract, then half of that specified amount named as
mahr in this
particular case will be mut„ah.114 If we exclude this woman (who
was divorced
prior to the consummation and a specific mahr was named before the
talaq), then
every other divorcee is entitled to get the mut„ah according to
Shafi„i.115 This view
was backed later by ibn Taymiyyah.116 Some contemporary scholars
like Wahbah
al-Zuhayli and Ahmad al-Ghandur are also inclined to give
preference to this
view advocated by Shafi„i.117
Maliki scholars opine that paying mut„ah always invariably takes
one single legal
ruling, and that is mustahabb (strongly recommended) but not
compulsory.118 This
evidently contrasts with the view held by Shafi„is that paying
mut„ah is a
compulsory obligation except for the divorcee for whom a specific
mahr was
named and was divorced before the consummation of the marriage, for
this
woman gets half of the mahr as mut„ah.119
Hanafi scholars on this issue take a middle path between Shafi„is
and Malikis. If
the divorcees marriage was repudiated after its completion by means
of the
consummation or the divorcees marriage was not consummated when the
talaq
was performed but a mahr was named, then in these two cases paying
mut„ah is
strongly recommended but not obligatory. Here Hanafis team up with
Malikis
and their reason is that the divorcee in these two cases will get
half of the specified
mahr or half of the mahr similar to that which a woman of her
social status gets
when the specification was not done. Apart from these two cases the
Hanafi
position is identical to the Shafi„i position and they together
speak out in favour of
114 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„
al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 348. 115 Shams al-Din Muhammad ibn Abi al-„Abbas Ahmad ibn
Hamzah, Nihayah al-Muhtaj ila Sharh
al-Minhaj, Beirut, Dar al-Kutub al-„Ilamiyyah, 1993, vol. XI, p.
364. 116 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„
al-Islami, Kuwait, Maktabah al-Falah,
1992, p.350. 117 Ibid, p. 351; and Wahbah al-Zuhayli, Al-Fiqh
al-Islami wa Adillatuhu, Damascus, Dar al-Fikr,
1997, vol. IX, p. 6833. 118 Wahbah al-Zuhayli, Al-Fiqh al-Islami wa
Adillatuhu, Damascus, Dar al-Fikr, 1997, vol. IX, p.
6831. 119 Ibid.
26 |
mut„ah being a mandatory duty upon the divorcing husband and a
lawful right of
the repudiated wife.120
Three views are attributed to Ahmad ibn Hanbal regarding this
matter and one of
them is in line with the opinion of Shafi„i and the second is
absolutely similar to
that of Hanafis. And the third view is that every divorcee with no
exception is
entitled to get the mut„ah, including the one who was divorced
prior to
consummation with a named specific mahr in the marriage
contract.121 Both these
Imams recognize mut„ah as an obligatory duty (wajib) upon the
divorcing
husband.122
From this brief review of the classical view on the mut„ah, it is
evidently apparent
that it has an important role to play in the aftermath of the
talaq. With trivial and
insignificant differences in their opinion all the jurists of all
schools of fiqh
converge in absolute concurrence in emphasizing the importance of
mut„ah.123 If
fully utilized, mut„ah can and will render the double benefit of
alleviating the
excruciating pain from the victims of unjustified talaq and
radically reducing the
number of those unpardonable and inexcusable divorces in the
Maldives.
a) As Muhammad al-Zuhayli of Damascus University very
eloquently
articulated, the mut„ah is the Islamic alternative to the
compensation for divorce in secular judicial systems.124 If
we
explore, exploit and utilize its full potential there would be no
need
at all to invent a new regime of indemnification for the
social,
psychological, and economical sufferings imposed upon the
divorcee as a result of a husbands rushed repudiation.
b) It seems that Muslims have neglected mut„ah for a very long
time,
for al-Nawawi seven centuries ago deplored the fact that
people
120 Ibid, pp. 6830 – 6831. 121 Ahmad al-Ghandur, Al-Ahwal
al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah
al-Falah,
1992, pp. 347 – 348. 122 Ibid, pp. 348 and 350. 123 Muhammad
al-Zuhayli, Al-Ta„wid al-Maddi „an al-Talaq, Damascus, Dar
al-Maktabi, 1998, p.
83. 124 Ibid, pp. 81 – 95.
| 27
have abandoned this important aspect of the Shariah.125 In
his
Fatawa al-Nawawi said: “The fact that the divorcees are entitled to
get
the mut„ah and the divorcing husbands have a compulsory obligation
to pay
this mut„ah is something contemporary women are ignorant about.
They
should be educated about this and the knowledge about the Shariah
ruling
on mut„ah should be popularized and spread.”126
c) Ahmad al-Ghandur echoes this observation of al-Nawawi when
he
says in his book on the Islamic Family Law: “Mut„ah is a
compensation to the repudiated wife for the divorce. It will
be
highly beneficial if we imposed this mut„ah on each and every
divorcing husband in order to curb the number of divorces and
to
hearten and console the divorcee. This would go a long way to
protect the revered institution of family from the mischief
of
roguish husbands. Furthermore this will be a desired revival of
the
implementation of the legal provisions of our divine law.”127
A
very closely similar view to this was also expressed by „Abd
al-
Rahman al-Sabuni.128 Muhammad Baltaji also argues in favour
of
imposing the payment of mut„ah on the divorcing husband if he
repudiates his marriage unilaterally without a justifying reason
for
the divorce.129
d) It is a well-known fact that unjustified talaq performed
unilaterally
by the husband for no good reason brings hardship, harm,
suffering
and injury to the repudiated wife. Islam does not approve
imposing
any kind of injury upon an innocent party. One of the
outstanding
legal principles of Islamic law is that “no injury should be done,
and no
injury may be met with another injury”, hence every injury
according
to the Shariah should be removed and repaired. Thus if the
125 Shams al-Din Muhammad ibn al-Khatib al-Shirbini, Mughni
al-Muhtaj ila Ma„rifah Ma„ani Alfaz
al-Minhaj, Beirut, Dar al-Fikr, 1998, vol. III, p. 307. 126
Muhammad al-Hajjar (edit.), Fatawa al-Imam al-Nawawi al-Musammah bi
al-Masail al-
Manthurah, Cairo, Dar al-Salam, 1985, p. 214. The translation is
mine. 127 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„
al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 353. The translation is mine. 128 Muhammad al-Zuhayli,
Al-Ta„wid al-Maddi „an al-Talaq, Damascus, Dar al-Maktabi, 1998,
p.
91. 129 Muhammad Baltaji, Fi Ahkam al-Usrah: Dirasah Muqaranah,
Cairo, Dar al-Taqwa, 2001, pp. 467
– 473.
28 |
unwarranted talaq caused any harm to the divorcee, the injury
she
suffered should be removed by financial compensation.130 This
is
exactly what the Kuwaiti Family Law promulgated in its
Section
165 that reads:
If a valid marriage is dissolved after consummation the wife shall
be entitled, in addition to her maintenance, to compensation which
shall
be assessed at an amount not exceeding one years maintenance, in
accordance with the circumstances of the husband, and which shall
be given to her in monthly installments following the completion of
her
waiting period, provided the parties have not agreed otherwise with
regard to the amount or the manner of payment.
e) Exceptions to the preceding paragraph shall be:
i. divorce for non-payment of maintenance due to hardship of the
husband;
ii. divorce on grounds of darar if caused by the wife;
iii. divorce by consent of the wife;
iv. annulment of marriage at the request of the wife; v. death of
one of the spouses.131
Ahmad al-Ghandur in his book on the Islamic family law praised
Kuwaiti
legislators for imposing this compensation for talaq on the
repudiating husband,
but he expressed his regret that Kuwaiti law only prescribed for
this purpose an
amount not exceeding one years maintenance while in his view, the
law should
have charged the divorcing husband an amount no less than three
years
maintenance to reach the desired end from this imposition.132
Like Kuwait, Syria too incorporated the principle of mut„ah into
its promulgated
law and utilized this doctrine to curb the increasing talaq rate
and to ease the
130 „Abd al-Fattah „Amr, Al-Siyasah al-Shar„iyyah fi al-Ahwal
al-Shakhsiyyah, Amman, Dar al-
Nafais, 1998, pp. 180 – 181. 131 Dawoud El Alami and Doreen
Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab
World,
London, Kluwer Law International, 1996, pp. 144 – 145. 132Ahmad
al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami,
Kuwait, Maktabah al-Falah,
1992, pp. 344 – 345.
| 29
sufferings of talaq victims.133 Section 117 of the Syrian Law of
Personal Status
reads:
“If a husband pronounces a talaq and it is apparent to the judge
that the husband has acted arbitrarily and without reasonable
cause, and that the wife will suffer misery and hardship,
the judge may make an award against him for compensation to the
wife according to his circumstances and the degree of arbitrariness
in an amount not exceeding three years
maintenance for a woman of like social status. This shall be in
addition to the maintenance
for the waiting period. The judge may rule that this compensation
be paid as a lump sum or in monthly installments according to the
circumstances.”134
Egypt too imposed a punitive mut„ah on the arbitrarily divorcing
husband.135
Egyptian law took a middle path between the Syrian and Kuwaiti laws
in fixation
of the mut„ah. Article 18 bis reads:
“A woman with whom a valid marriage has been consummated, whose
husband divorces
her without her agreement and without any cause on her part shall
in addition to the maintenance for her waiting period be entitled
to compensation (mut„ah) which shall be
assessed as at least two years maintenance, taking into
consideration the circumstances of the divorcing husband in terms
of wealth or poverty, the circumstances of the divorce and
the length of the marriage. The divorcing husband shall be
permitted to pay the compensation in installments.”136
Among the non-Arab Muslim countries, Malaysia adopted this remedial
mut„ah
as a disciplinary and retaliatory measure against the divorcing
husband if his
divorce was without good justification.137 Section 56 of the
Islamic Family
(Federal Territories) Act states that:
“In addition to her right to apply for maintenance, a woman who has
been divorced
without just cause by her husband may apply to the Court for mut„ah
or a consolatory gift, and the Court may, after hearing the parties
and upon being satisfied that the woman has
133 Ahmad Husayn Jarjinazi, Fath al-Khallaq: al-Jami„ li Ahkam
al-Talaq, Himass, Dar al-Irshad li
Tawzi„at al-Matbu„at, 1993, p. 107. 134 Dawoud El Alami and Doreen
Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab
World,
London, Kluwer Law International, 1996, p. 235. 135 Tahir Mahmood,
Personal Law in Islamic Countries, New Delhi, Academy of Law and
Religion,
1987, p. 33. 136 Dawoud El Alami and Doreen Hinchcliffe, Islamic
Marriage and Divorce Laws of the Arab World,
London, Kluwer Law International, 1996, p. 60. 137 Tahir Mahmood,
Personal Law in Islamic Countries, New Delhi, Academy of Law and
Religion,
1987, p. 232.
30 |
been divorced without just cause, order the husband to pay such sum
as may be fair and just according to Hukum Shar„.”
Like these countries, Maldives also should adopt awarding mut„ah
for the
divorced wife if the divorce was an unjustified unilateral
repudiation on the part
of the husband.
CONCLUSION
The Maldives should incorporate the following three provisions into
its family
law in order to curb the high divorce rate
i. any talaq without witnesses shall not be regarded as a valid and
lawful
dissolution of marriage,
ii. the divorce known as talaq al-bid'ah should be treated as an
invalid
annulment of marriage,
iii. in case of unilateral divorce from the part of the husband
without
acceptable justification, he should be held liable to pay the
divorcee a
suitable and satisfactory financial compensation.
| 31
V A G U T H Y A M U R U
THE LAW ON CIVIL TEMPORARY RELIEF IN THE MALDIVES
Ismail Wisham
INTRODUCTION
The law on temporary relief finds its roots in traditional
principles of equity where
the common law remedy that was available was found to be
inadequate. Equity
supplements those remedies legally available for the parties to a
claim, and award
of its relief is highly discretionary in nature.
Equitable remedies are specific, directed in almost all
circumstances towards the
intended parties and are ideally very much limited in scope. Equity
is empowered
to fashion a remedy to procure substantial justice that is fair and
practical. It is the
subjective nature of the award of temporary relief that
necessitates the Courts
discretion. Equitable remedies are designed to meet the needs of
the particular
case after close analysis of the facts and equitable remedies
accommodate the
relative merits of the plaintiff and defendant in the particular
case1.
The phrase „civil temporary relief in the title has been included
with the intention of
limiting the scope of the research herein to the subject matter
restrictions of the
Civil Court as per Schedule II of the Courts of Judicature Act
2010. For us, the
Rules on Court Proceedings 20032, section 295 outlines the
prevalent practice running
up to the 2008 Constitution. This is where the discussion
starts;
„Vaguthy Amuru, locally translated means „Temprorary Order. LL.B
(Hons) (IIUM), MCL (IIUM), Practicing Attorney. 1 Gummow, „The
injunction in aid of legal rights (1953) 56 Law & Contemp
Probs, 83. 2 „Shareeai Kumurumaabehey Gavaidh 2003 (version
6.0)
32 |
Regulations on Temporary Order & Measures of the Civil
Court
1. The Court, on advice of the Chief Judge, shall issue temporary
orders
and measures prayed for by parties to a claim provided such
application is submitted by a party to the claim.
2. The Order or measure enumerated under subsection (1) herein may
continue to remain in force until such time as may be directed by
the
Court and is limited only by such time as when the final Judgment
conclusive in the matter is issued. In matters where enforcement of
he judgement is a foreseeable and probable difficulty, the Court,
on advice
of the Chief Judge, may also extend the provisions of the temporary
measure or order beyond Judgment until such time as the
Judgment
may be enforced. 3. The Order or measure under subsection (1)
herein may only be granted
where the Court is satisfied that acting otherwise would be to
the
detriment of a party involved. 4. (a) The Civil Court may award
temporary or preventive relief
against:
2. the defendant or respondent attempting to move the subject
matter out of the jurisdiction of the court.
3. the defendant or respondent attempting to tamper with the
subject matter so as to devalue or lessen the subject
matter. 4. apparent reasons to believe the final and
conclusive
judgment to be frustrated.
5. The potential loss that may befall any party.
(b) The Court shall have discretion to order a bond to be placed
as
surety against the party applying for temporary relief enumerated
under subsection (1) herein. The party upon whom a temporary Order
is issued may also apply to have the Order lifted
after placing a bond as surety against his actions. 5. (a) Either
party to a claim may petition the Court to remove a
moveable or immoveable property from anyones possession and
place it under the charge of a Court-determined special Custodian
until such time a final and conclusive Judgment may be
reached
by the Court, provided there are reasons to believe that continued
possession on part of such party may mean loss or damage to
such
property. (b) In determining the special Court-appointed Custodian
under
subsection (a) herein, the Court shall have due regard to the
| 33
consensus of the parties and shall determine on the volition of the
Court only if such consensus cannot be reached.
(c) In engaging the special Court appointed Custodian; the Court
shall outline to him his duties, powers, rights, prerogatives
and
duration of his engagement. The Custodian so appointed shall employ
a special degree of care upon the property so entrusted and
shall diligently attend to its affairs. The Custodian shall produce
to the Court proper accounts of all income and expenditure relevant
to the property so entrusted. No substantive measure may
be taken by the Custodian upon the property unless with the
permission of the Court except in cases of general
administrative
matters. 6. Any party applying for temporary relief under these
Regulations shall
do so in writing outlining the need and basis for such an Order.
Upon application and upon satisfaction of the Court that all proper
procedures have been met and provided the Court feels it is just
and
equitable to do so, the Court shall issue the temporary Order
immediately. Such Orders shall have its basis and duration
included
therein as well.
As it would stand, the law is fairly accommodative of prayers
towards temporary
relief. From a cursory reading it seems evident that the necessary
elements are all
present3. In 2011, the High Court endorsed section 295 of the Rules
of Court
Proceedings 2003 and decided the case of Zahir Adam v Guraidhoo
Council4. The
case involves an application for enforcement of a Supreme Court
decision issued
earlier5 which had declared that Zahir Adam enjoyed no rights to
the land in
question where he had been running a Boat Yard, asking him to
vacate it. The
Island Council applied to the islands Magistrate Court which
decided that the
respondents property at the Yard was not to be cleared and that the
respondents
were temporarily restrained from removing anything unless and until
the arrears
had been cleared.
Zahir Adam, on the other hand, maintained all the while that the
arrears were a
matter still in dispute and that without a proper Judgment as to
the lawfulness of
3 Comparatively, American law dictates that to obtain a Temporary
Restraining Order, a plaintiff
must prove four elements as per the case of Pappan Enters. v.
Hardee's Food Sys, (1) likelihood of
success on the merits; (2) the extent to which the plaintiff is
being irreparably harmed by the
defendant's conduct; (3) the extent to which the defendant will
suffer irreparable harm if the TRO issues; and (4) the public
interest. 143 F.3d 800, 803 (3d Cir. 1998). 4 2010/HCA/245 5
2010/SCA/22
34 |
the imposed charges, there was no legal duty upon him to pay the
demanded
figure. In overturning the Court Order, the High Court observed the
necessary
law that triggers a partys rights to temporary relief pending
Judgment in a civil
matter.
“It can be established that even if a Judge has discretion in
ordering
temporary relief in cases where unfair prejudice befalls a party,
if such relief is not granted pending decision of the matter
applied for, this
discretion is triggered as a preventive measure only if there is
reasonable evidence suggesting:
i. a risk of the respondent absconding, or
ii. the respondent was attempting to destroy, wast-off or move
money or property out of the jurisdiction of the Court, or
iii. any act that may amount to a material frustration of claim, or
iv. lack of interim measure may mean irreparable damages to
the
applicant”
The discussion herein talks of prevalent case law decided within
the last two to
three years by the three tiers of Courts in the Maldives in
addition to cases
comparatively cited from elsewhere. From the whole bundles of case
law that
follows and with the cumulative reading of section 295 of the Court
Procedure
Rules 2003, several principles can be derived. As it stands, the
law on temporary
relief in the Maldives can be broken down as; awarded (i) only when
just and
equitable to do so on the balance of convenience, for parties that
exhibit a (ii)
more than prima facie claim, where the award of the temporary
relief will not
amount to (iii) premature determination of the main application,
and where (iv)
damages are not adequate remedy, and where issuance would not be
(v)
unrealistic and futile, and may be (vi) issued ex parté and is
(vii) enforced
separately. Each component will be discussed independently.
(i) Just and Equitable on the Balance of Convenience
As it has been pointed out before, temporary relief is very
subjective in nature and
is specifically designed to overcome the injustices apparent in
relation to a specific
case. Where it was just and equitable to do so, can only be seen
from the reasons
of judgment.
| 35
Several issues were decided by the Singapore Court of Appeal in
deciding
Maldives Airports Co. Ltd. v GMR Malé International Airport Pte
Ltd6. What is
important for our discussion at this point here is the
establishment of the principle
which says that the court should exercise its discretion to grant
the injunction as a
separate matter that must be assessed against the balance of
convenience. The
Singapore Court relied on the 1975 authority of American Cynamid
Co. Ltd. v
Ethicon7.
“The assessment is one which involves a balance of convenience. The
essential principle is that because the court is asked to conduct
this
balancing exercise at an early stage and based only on
affidavit
evidence, it should take whichever course appears to carry the
lower
risk of injustice if that course should ultimately turn out to
have
been the “wrong” course, in the sense of an injunction having been
granted when it should have been refused or an injunction having
been
refused when it should have been granted8.”
How would one measure whether it was just and equitable to do so?
In the Zahir
Adam and Guraidhoo Council string of decisions, one case
established the
principle of issuing the justification of the decision, i.e. that
the mere mention of
the reasons are not enough and that subsequent to materially
proving the
existence of the contention, Judges are absolutely bound to even
specify the legal
reasoning behind the grant of temporary relief9. This is reflective
of the Australian
case law that warned Judges of empty reasoning and blind awards.
This very
interesting point was pointed out by Judge Deane J in the 1985
decision of
Muchinski v Dodds10, wherein he deemed that in determining matters
of equitable
relief, there should be no „indulgence of idiosyncratic notions of
fairness and justice.
6 [2013]SGCA 16. Among them include whether the Maldivian state is
immune under the Act of State doctrine or whether the Court of
Appeal does in fact have substantial law jurisdiction over
the matter etc. These will be discussed in greater detail below. 7
[1975] AC 396 8 Citing Regina v Secretary of State for Transport,
Ex parte Factortame Ltd and Others (No 2) [1991] 1
AC 603, 683. 9 Zahir Adam v Guraidhoo Council, 2011/HCA/84. See
also section 295(6) Court Proceedings Rules
2003. 10 [1985] 160 CLR 583, 615.
36 |
(ii) More than Prima Facie claim
The most paramount of the local decisions on temporary relief comes
from the
Supreme Court decision in the case of Nexbis Ltd. v Anti-Corruption
Commission11
dated 27 August 2012. The Anti-Corruption Commission had issued a
directive
upon the Department of Immigration and Emigration on 24 January
2010 under
which the Department was required to cease all activities under the
Maldives
Immigration Border Control System (MIBCS) project made way under
the
Concession Agreement signed between the Government and the
Petitioner. The
directive also required a re-tender in line with the revised R.F.P.
dictated by the
National Planning Council or the Cabinet of Ministers. When the
Department
failed to comply, the ACC sought the Courts intervention in the
matter. The
Civil Court dismissed the claim on several grounds including the
directive was
both ultra vires and pre-mature12. The Commission filed the appeal
and asked for an
interim order temporarily restraining the respondent in carrying
out any works in
furtherance to the MIBCS project until the High Court awards its
final judgment.
The Court obliged on 16 July 2012 with their Order No.:
(OTHR)95-
B2/94/2012/1, and the Third Party Intervener at both the Civil
Court and the
High Court, Nexbis Ltd., Australia sought the appeal of the same,
in turn, at the
Supreme Court. In their Judgment, the unanimous bench of the
Supreme Court
highlighted that:
“While it can be ascertained that the Order (in question) was
intended by the High Court as temporary relief against irreparable
loss until such time as a permanent order and eventual judicial
endorsement can be
attained in the High Court matter no.: 105/HC-A/2012, the
discretionary prerogative of the Court in such matters of
temporary
relief is never an unlimited power and there are general conditions
to fulfill before such temporary injunctions may be granted by a
Court.
They are: a) There is a clear possibility of a compromise of the
applicants
material right or lawful privilege (fumis boni juris -
presumption of sufficient legal basis). It can only be established
that there is such a legal rule that protects such
material right or lawful privilege in addition to the
11 21/SCA/2011 12 Per Judge Ali Rasheed, Anti-Corruption Commision
v Department of Immigration & Emigration,
2158/Cv-C/2011.
| 37
satisfaction of the Court that there exists sufficient facts that
forms the basis of such possibility.
b) There is a risk that stems from the possibility of the time
taken to complete the trial (periculum in mora). This means
that the time taken ordinarily for such proceedings would mean
irreparable harm or loss to the applicant.
c) The applicant fulfills the necessary locus standi.”
In determining the case the Court pointed out that the Commissions
claim was
without sufficient legal basis. This requires a level of evidence
and proof that is more
than prima facie. Temporary relief is awarded almost always at the
onset of the
case. At this point in the proceedings, the plaintiff is not
required to provide
sufficient basis of the claim. Under normal circumstances, a prima
facie claim
would have been enough. What the Court had decided essentially is
that the
matter has to be convincing enough and that the matter to be proved
more than
prima facie. The Supreme Court notes that;
“the lawful grounds requiring compliance (by the Department
of
Immigration) is non-existent as there are no legal principles that
allow the Anti-Corruption Commission the right to force such
directives
upon state institutions or offices. Therefore, and because there
can be no legal principle that protects the material right that
forms the subject
matter of the aforementioned Appeal before the High Court, there is
no legal basis for temporary relief therein”
In the recent High Court decision of Apollo Holdings Pvt. Ltd. v
Maldives Customs
Service13, reference was made by the Court on the earlier cited
Nexbis decision.
The important point to note here is that the requirement of more
than prima facie
claim in this particular case was determined to have not been
satisfied.
The facts were that the company had filed suit at the Civil Court
for a
determination that the companys arrears in customs duties were a
liability of a
third party company who is owned by one of the directors at the
applicant
companys Board. Within the claim, the applicants sought a temporary
order
restraining the Customs Service in implementing measures against
outstanding
and long over-due customs duties.
13 2013/HCA/160
38 |
The Civil Court refused to grant the injunction on the basis that
there was no
evidence of a claim being lodged by the Company against one of
their directors
alleging secret profits and breach of fiduciary duties. In the
absence of a Court
order or judgment deciding that the director and his syphoning
company are to be
held responsible, the Court was unsatisfied that there was a more
than prima facie
claim in this particular case.
(iii) Without Prejudice to the Main Claim
In determining that there is a more than prima facie claim, the
Court has to be
careful as not to tread on the ambit of the final and penultimate
judgment. This is
to say that the temporary relief prayed for therein has to be
materially different
from the prayers pleaded in the original application. If the
distinction cannot be
made, the Court runs the risk of a pre-mature judgment. On this
note in the
Nexbis Appeal cited above, the Supreme Court points out that;
“One of the most important considerations in granting temporary
relief is that such relief shall always be without prejudice to
the
material right or lawful privilege that forms the subject matter of
the application proper. No Court has the authority to negate or
validate any such right or privilege at the very beginning.
Otherwise it amounts
to prematurely awarding the permanent relief prayed for.”
In the matter of Maldives Tourism Development Corporation Ltd. v
Ministry of
Toursim14, Judge Abdulla Ali refused to grant an injunction asking
for a
deferment in paying the Corporations obligations in the form of
head lease
payments, pending Judgment of the disputes raised subsequent to the
Tourism
Amendment Act 2010. Under the Amendment, the mode of calculating
the
Tourism land tax was revised creating a much higher land tax that
was payable to
the Ministry of Tourism than those projected when the head leases
of six different
islands were signed with the company. The application asked that
the payment of
head lease be deferred until such time as a conclusive judgment may
be heard in
the application proper. Judge Abdulla Alis refusal were on the
grounds that (i)
lease payments constituting discrepancies or disputes therein are
financial in
nature and thus are „measurable and determinable without doubt and
reparable with
compensation, i.e. damages were adequate, and (ii) that the
application was similar
14 Order BCR-8/2012/02 in case No.: 2490/CvC/2010.
| 39
to the prayers in the main petition, which meant that determination
then would
have amounted to prematurely deciding the main dispute.
(iv) Unrealistic & Futile Orders
The Singapore Court of Appeals 6 December 2012 decision in Maldives
Airports
Co. Ltd. v GMR Malé International Airport Pte Ltd15 is also very
important to note
here. The case has to be appreciated to have settled the matter on
the realistic
scope of the temporary relief sought for and its futility.
The case was an appeal from the decision of the High Court wherein
an interim
injunction was granted to restrain the appellants, Maldives
Airports Company
Limited and the Government of the Republic of the Maldives from
interfering
with the performance of their obligations under a concession
agreement entered
into on 28 June 2010.
The facts were that the Concession Agreement was entered into
between the
Appellants and a consortium under which the latter was granted a
concession of
25 years to develop and maintain Malé International Airport. A
series of events
took place after the Concession Agreement was entered into. First,
an action was
brought before the Civil Court for a declaration that cl. 2(a) and
2(b)16, Annex 10
of the Concession Agreement was contrary to the Airport Service
Charge Act
1978. Having heard the matter in December 2011, the Civil Court
upheld the
petition. The long sequence of events that unfolded afterwards led,
unfortunately,
towards the commencement of arbitral proceedings by the parties
involved. GMR
applied to the Singapore High Court restraining the Maldivian
Government and
MACL from taking possession of the Airport. Faced with the imminent
prospect
of the Concession Agreement being terminated prematurely and the
Airport being
taken over by the Appellants, the Respondent sought an injunction
from the
Singapore High Court which was subsequently granted. The matter
before the
Court of Appeal was on the legal merits of this temporary order
issued unless and
until a final and conclusive decision may be reached by the
Arbitral tribunal.
What the applicants sought essentially was to restrain the
Appellants and their
directors, officers, servants or agents from taking any step
to:
15 [2013]SGCA 16 16 Which allowed the Respondent to impose a U$
27.oo fee on departing passengers
40 |
a) “interfere either directly or indirectly with the performance by
the Respondent of its obligations under the Concession
Agreement;
and b) take possession and/or control of the Airport or its
facilities
pending further order by the Singapore court or an arbitral
tribunal constituted to resolve the dispute.”
The High Courts basis in granting the application was found under
on sub-para
(a) above. No order was made in the terms of (b) although in their
Judgment the
Court of Appeal did point out that “it might well be said that it
would not have been
possible for the Appellants to do any of the acts under (b) without
thereby also doing the acts
under (a), contrary to the terms of the Injunction”. Importantly
though, the Court
refused to uphold the injunction on the basis that the application
was of
unrealistic scope and that the temporary relief sought for was
futile. No