1060644 The One who Passed & Got 19.6 over 20

The One who passed.
2. “Section 52(1)(b) of the Islamic Family Law (Federal Territory) Act1984,
which follows the Maliki law, had made a fundamental change in the law. The trial judge had therefore wrongly applied the provisions of the dominant Shafii view -- where fasakh is only granted if the husband is shown to be incapable of maintaining his wife -- to the new section.”
Per Professor Tan Sri Ahmad Ibrahim, in Siti Rohani bte Muhamad Yusuf v Mohd Sazali bin Derham.

Explain the principle adopted by the Maliki sect on the wife’s entitlement to claim dissolution of her marriage by fasakh if the husband is unable to provide for her maintenance.

(20 Marks)

Answer Scheme

According to the doctrine of the Maliki school, the wife is
entitled to claim dissolution of her marriage by fasakh (1 mark)
if the husband is unable to provide for her maintenance
at the time of the claim, (1 mark)
without regard to whether he had been unable in the past, (1 mark)
unless the wife knew at the time of the conclusion of the marriage (1 mark)
that the husband was indigent. (1 mark)
If the poverty of the husband has not been legally established, (1 mark)
the kadi will order him to provide for her maintenance (1 mark)
or to divorce her; (1 mark)
if the husband does neither (1 mark)
or if his poverty has been proved, (1 mark)
the kadi at his discretion may allow the husband a period of grace
to fulfil his obligation, (1 mark)
which may be one month, (1 mark)
or according to some jurists not more than two months. (1 mark)
If the term expires without the husband having provided
for maintenance (1 mark)
the kadi dissolves the marriage. (1 mark)
Where the husband is absent, (1 mark)
the wife will similarly be granted a dissolution of the marriage, (1 mark)
but not until the husband has been warned, (1 mark)
if this is feasible (1 mark)
and given a suitable period of respite. (1 mark)


Sample answer by USIM undergraduate 1060644 who GOT 19.6 OVER 20

According to doctrine of Maliki school the wife entitlement to claim dissolution of her marriage by fasakh if the husband is unable to provide for her maintenance at the time of claim, without regard to wether he had been unable in the past unless the wife knew at the time of the conclusion of the marriage that the husband was indigent. If the poverty of the husband has not been legally established, the Kadi will ordered him to pay for her maintenance or to divorce her. If the husband does neither or if his poverty has been proved, the Kadi at his discretion may allow the husband a period of grace to fulfill his obligation, which may be one month, or according to some jurists not more than two month. If the term expires without the husband having provided for her maintenance, The kadi dissolves the marriage Where the husband is absent, the wife will similarly be granted a dissolution of the marriage. But not until the husband has been warned, if this is feasible and given a suitable period of respite.
[Marks earned: Nineteen Point Six (19.6) OVER Twenty (20)]