Shariah Law Case Study

5.2 Matrimonial issues

5.2.1 Judgment in the Absence of the Defendant and the Ex-Parte Judgment

This is the rule in the Shariah law that both plaintiff and defendant must be presence during the judgment of the court. According to the narration of 'Ali bin Abi Talib (d.661) based on the hadith of the Prophet, muslim judge is instructed to hear arguments from both disputing parties before dispensing judgment . However, in another hadith, the Prophet was reported to give judgment to Hind bint ‘Utbah, wife of Abu Sufyan in the latter’s absence . Hence, it was later a settled law that a judge is permitted to declare judgment in the absence of defendant showing the application of Istihsan.

In Malaysia the permission to declare judgment in absentia

The Islamic law upholds the principle of contract sanctity where third party is not allowed to claim for remedies or damages. However, the Malay custom of Harta Sepencarian allows spouse, upon divorce or death of either party, to claim property acquired during their marriage, although they are not directly involved in the acquisition of the property as a co-purchaser or co-sharer etc. Section 2 (1) of the Negeri Sembilan Islamic Family Law Enactment 2003, defines Harta Sepencarian as a property acquired by husband and wife either directly or indirectly during the marriage period in accordance with the conditions specified by

Plaintiff also claimed that any benefit obtained from the land and monthly pensions paid by the Federal Land Development Authority (FELDA) is to be equally divided. The court agreed with the claims and found evidence of direct and indirect contributions on part of the plaintiff in the property. Among the contributions made by the plaintiff on all the assets acquired by the defendant was through the joint participation of defendant and plaintiff's in the FELDA program. All the lands and the house were acquired by the defendant after they were both accepted to participate in FELDA, as marriage is a condition set by FELDA for acceptance to participate in this program. Plaintiff also performed her household duties such as taking care of the children, the needs of husband and doing other outside jobs to increase the family income. All these were considered by the court as an indirect contribution from the plaintiff in helping the defendant to obtain the