Section 43
Section 43
(1)
Whenever a husband has mistreated his wife or assaulted or caused any act harmful to her body or modesty or her property either by his words or actions and the wife is unwilling to live together and continue their conjugal relationship, the wife may apply for a divorce in the prescribed form to the Court and if the complaint has been proved and the
Court fails to reconcile the parties, the Court may pronounce a divorce by a talaq baain.
(2)
Where it is found that the complaint of the wife has not been proved and rejected by the Court and subsequently the wife repeatedly makes the same complaint and the Court finds that there are constant quarrels between the husband and the wife, the Court may appoint two qualified Hakam competent in matters relating to arbitration, one acting on behalf of the husband and the other acting on behalf of the wife in accordance with Hukum Syara’.
(3)
In appointing the Hakam under subsection (2), the Court shall where possible, give preference to qarabah qarib of the parties having knowledge of the circumstances of the case.
(4)
The Court may give orders to the Hakam in respect of the procedures of the conduct of the reconciliation and the Hakam shall carry out the orders in accordance with Hukum Syara’, investigating the reasons for the quarrels (syiqaq) between the husband and the wife, and shall endeavour to reconcile them.
Islamic Family Law
B.L.R.0. 6/2012 37
(5)
The Hakam shall endeavour to obtain from both parties the full authority —
(a)
if he is the Hakam for the husband, for the pronouncement of talaq or to accept tebus talaq; and
(b)
if he is the Hakam for the wife, for the acceptance of the talaq or payment of tebus talaq, and any action taken shall be made before the Court which shall record such action and deliver a certified copy of the record to both the relevant
Registrar and the Chief Registrar for registration.
(6)
Where it is found that the Hakam are unable to agree, the Court shall order both of them to try again and if thereafter it is found that the disagreement continues, the Court shall dismiss both of them and appoint other Hakam.
(7)
Where it is found that the quarrels (syiqaq) between the husband and wife cannot be reconciled, and the Hakam are of the view that it will be unlikely to achieve a reconciliation, the Hakam shall make a decision of divorce with a talaq baain without ‘iwadh and refer it to the
Court and the Court shall record a judgment in accordance with the decision of the Hakam and shall record such divorce and deliver a certified copy of the record to both the relevant Registrar and the Chief Registrar for registration.
Order for dissolution of marriage by way of dharar Syar’ie.