World Class Higher Education: USIM LAW Undergraduate 9

World Class Higher Education: USIM LAW Undergraduate 9

1. Provide the origin and ratio decidendi of these cases:

Answer Scheme
ii. Mustapha v Habeeba (10 marks)

In the Negeri Sembilan case of Mustapha v Habeeba, (1 mark)
the learned kadi who heard the case held that
three divorces had been effected (1 mark)
when the husband as alleged pronounced,
'I divorce you. I divorce you. I divorce you' to the wife. (1 mark)
The learned kadi did not call any witnesses to support
the husband's statement. (1 mark)
The Appeal Board ordered the case to be retried (1 mark)
as the case had not been heard
and adjudged correctly, (1 mark)
because no witnesses had been called. (1 mark)
They held that the mere statement (iqrar) of the husband could not
be accepted (1 mark)
as it was not conclusive (1 mark)
and the circumstances and conditions of the making of the statement
were not considered. (1 mark)

Sample answer by USIM LAW undergraduate 1050610

In the case of Mustapha v Habeeba (1990) 7 JH 255, the husband pronounced three talaq consequently on one time, ‘I divorce you, I divorce you, I divorce you’ in front of his wife which is pregnant at that time. The husband in this case is from Hanafi sect (Mazhab). This matter was brought before the syariah court.

The learned judge in this case held that three talaq was effected and the husband cannot ruju’ with his wife unless she marries with another man and divorced. The learned judge refer to the opinion of the Syafi’i sect in judging the said matter.

On appeal, the court found that the learned judge is in error to adjudge the case by referring to the opinion given by the Syafi’i sect. Since the husband is from Hanafi sect, the right decision is to be derived from the opinion given by Hanafi sect.

Therefore, by referring to the Hanafi sect and considering that the wife was pregnant at that time, only one talaq was effected and they can ruju’ or reconcile during the iddah period of the wife.

[Marks earned: One Point Seven (1.7) out of Ten (10)]