A study on the application of darar as a ground to dissole the marriage through fasakh under Malaysian law

Abstract

The dissolution of marriage through fasakh is applied in the Syariah courts on a variety of grounds. The volume of fasakh cases in Malaysia reflects that the issue of marital conflicts is alarming and harmful to the family institution. Thus the thesis will examine the application of ḍarar or harm as the ground for fasakh under the law in Malaysia. It analyzes the views of the jurists from different schools of law on the degree to which occurrence of ḍarar entitles the wife to apply for fasakh based upon their legal evidences. The research is conducted through qualitative and quantitative methods, which involves content analysis as well as interviews with few personnel such as the Syarie Judges, The Chief Registrar, the court officers as well as the mufti to identify the application of ḍarar in fasakh cases. An empirical research is conducted in selected states representing four different zones in Peninsular Malaysia, namely Kedah represents the Northern zone, Malacca represents the Southern zone, Terengganu represents the Eastern zone, Selangor and Federal Territory of Kuala Lumpur represent the Central zone. The unreported files from five (5) Syariah courts of the said zones were examined to assist in identifying the application of ḍarar as the ground for fasakh divorce in the above Syariah courts. This method leads to an understanding of both the major principles of the Sharīʻah on ḍarar and its application through the rulings passed by the Syariah courts. For comparative purposes, the research has also analyzed the provisions of law related to ḍarar in dissolution of marriage cases as applied in Jordan, Egypt and Morocco. The study proves that the principle of prevention of ḍarar is well founded in the Islamic law. The study also proves that the court has employed the objective (maqasid) of the Shariah and invoked related legal maxims on darar as the basis of granting fasakh on the ground of darar. In practice, there are also several approaches observed by the judges before deciding on fasakh cases on the grounds of ḍarar. The study also establishes that the substantive law on fasakh is comprehensive, however there are rooms for improvement. There is a lack of clear interpretation of ḍarar under the law as well as the explanation on the types of ḍarar that bring to unstandardized decision by the court in cases which involves fasakh on the ground of ḍarar. It is then imperative for the court to extend the meaning of ḍarar beyond what is spelled under the law so as to serve a better protection to the wife against a risky marriage.