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M A L D I V E S L A W R E V I E W
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C O N T E N T S
Adam, Muhammad Nasheed Tackling the High Rate of Divorce in the Maldives within the Ambit of Classical Fiqh……………….…………………………………………………………………………………... [2013] 2 MLR 5 Wisham, Ismail Vaguthy Amuru: The Law on temporary relief in the Maldives…….…… [2013] 2 MLR 31 Qazi, Batool Zahoor Capital Punishment in Maldives: A Necessity or a Choice?………………………………………….…………………………………………….…… [2013] 2 MLR 46
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T A C K L I N G T H E H I G H R A T E O F D I V O R C E I N T H E M A L D I V E S
WITHIN THE AMBIT OF CLASSICAL FIQH
Muhammad Nasheed Adam
INTRODUCTION
The Maldivian Family Act 2001 was originally promulgated to tackle the issue of
the high rate of divorce in the Maldives;1 which is among the highest in the whole
world.2 In spite of this fact, the law only scratches the surface of this problem and
left the gist of it unscathed. The Act only lays down few procedural formalities in
order to restrain the rate of divorce and decrease the number of couples
terminating their marriage contracts. The Maldivian legislators should have given
this subject a more profound and more comprehensive treatment than the one it
was afforded. When endorsing any piece of legislation to address the issue of the
B.A. (Shariah) (Azhar), MCL (IIUM), Lecturer, Faculty of Law, Maldives National University. 1 Ahmad Zahir, “Fashaa Bas”, in Aailaa aai behey Qawaaidh 2001, Male, Ministry of Justice, 2001,
p. 3. (Preamble to the Family Regulations 2001) 2 Inter Press Service (IPS) reported on 24 June 2010 that the “Maldives has one of the highest divorce
rates in the world, with 10.97 divorces per 1000 inhabitants.” See:
http://ipsnews.net/news.asp?idnews=51935 24 June 2010, accessed on 19 August 2010. And a Maldivian NGO Haama Jamiyya in a statement to the CEDAW Committee says: “Considering that the Maldives had, one of the highest divorce rates, if not the highest in the world, it is noted that the divorce rates which dipped initially following the enforcement of the Family Law has once again risen to very high
levels.” See: http://www.iwraw-ap.org/resources/pdf/Maldives%20oral%20statement.pdf
accessed on 21 August 2010. The anthropologist who authored a book on Maldives and its people Clarence Maloney writing about the Maldives says: “Most striking is the frequency of divorce. The Maldives has the highest divorce rate (of registered marriages) of any country in the world, according to United
Nations statistics. In the 1970s the rate was eighty-five divorces for every 100 marriages.” See:
http://www.iias.nl/iiasn/iiasn5/insouasi/maloney.html accessed on 24 August 2010.
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high divorce rate there is a dire need for the Maldives to adopt and embrace a
drastic approach that may not be favoured by majority scholars of the fiqh.3
This article invites all Maldivian intellects, and in particular, scholars of Islamic
law to bring to the discussion table some fiqhi views concerning divorce, that
differ and deviate from the mainstream opinion of the Muslim jurists. It must be
noted however that said views are fully supported by highly revered Sunni
scholars like Ibn Taymiyyah, Ibn Qayyim al-Jawziyyah, Ahmad Muhammad
Shakir, Nasir al-Din al-Albani, Ibn Baz, Ibn „Uthaymin and others. Their views
on this subject are supported by Quranic verses and Prophetic traditions though
these views differ drastically from the traditionally held conventional opinions of
majority jurists. According to these views, the divorce will not be effective unless
it is performed before two witnesses and also it is nothing but nonsense if the
divorce was carried out while the wife was undergoing the menstrual period or
the divorce was executed within a period of tuhr4 in which the couple performed a
sexual intercourse.5 Another measure which can be incorporated into the
Maldivian family law in order to curb the high rate of divorce in the Maldives is
imposing and enforcing a compensation scheme for the unjustified divorces
unlitaterally carried out by husbands. This entails reviving the old and forgotten
institute of mut„ah which is an Islamic answer to indemnity in cases of talaq.6
CALLING FOR WITNESSES IN CASES OF TALAQ
If the command laid down by the Quran for the validity of talaq to be fulfilled is
to be followed, then calling witnesses is a must.7 The Quran declares that:
(
3 Fiqh is Islamic jurisprudence. 4 Tuhr is the time between two menstrual periods. 5 Ahmad Muhammad Shakir, Nizam al-Talaq fi al-Islam, Taif (Saudi Arabia), Maktabah al-
Ma„arif, 1389 A. H, pp. 137 – 138. 6 Talaq means divorce performed by the husband by pronouncing any statement that carries a clear
meaning of repudiating his marriage to his wife. 7 Ja„far al-Sabhani, Al-I„tisam bi al-Kitab wa al-Sunnah, Beirut, Dar al-Adwa li al-Tiba„ah wa al-
Nashr wa al-Tawzi„, 1997, p. 165.
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8)
“O Prophet! When ye do divorce women, divorce them at their prescribed periods, and
count (accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some
open lewdness, those are limits set by Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about
thereafter some new situation. Thus when they fulfill their term appointed, either take them
back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah.
Such is the admonition given to him who believes in Allah and the Last Day. And for those who fear Allah, He (ever) prepares a way out.”9
These verses very plainly affirm the need for witnesses to be called when the talaq
is performed and also when raj„ah (revocation of talaq) is executed.
( ) “…and take for witness two persons from among you, endued with justice…”
The imperative command in wa-ash-hidu () indicates that calling
eyewitnesses to observe the performance of divorce is a compulsory obligation
(wajib), for there is no evidence whatsoever to support any other possibility.10
8 Surah al-Talaq: 1 – 2. 9 This is „Abdullah Yusuf „Alis translation. Muhammad Marmaduke Pickthalls translation reads: “O Prophet! When ye (men) put away women, put them away for their (legal) period and reckon the period, and keep your duty to Allah, your Lord. Expel them not from their houses nor let them go forth unless they commit open immorality. Such are the limits (imposed by) Allah; and whoso transgresseth Allah's limits, he verily wrongeth his soul. Thou knowest not: it may be that Allah will afterward bring some new thing to pass. Then, when they have reached their term, take them back in kindness or part from them in kindness, and call to witness two just men among you, and keep your testimony upright for Allah. Whoso believeth in Allah and the Last Day is exhorted to act thus. And whosoever keepeth his duty to Allah, Allah will appoint a way out
for him.” 10 Ahmad Muhammad Shakir, Nizam al-Talaq fi al-Islam, Taif (Saudi Arabia), Maktabah al-Ma„a
rif, 1389 A.H, p. 118.
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It is vital for a clear and persuasive understanding of the true meaning of this
verse to take a linguistic approach and examine it thoroughly. The imperative
command for calling for witnesses wa ash-hidu () in the verse indicates the
compulsory nature of this obligation, but, the question of when this command of
“calling for witnesses” should be applied is the crucial factor whose answer will be
vital in alleviating the hardship created by the high number of divorces in any
Muslim society.
The command for calling witnesses in the verse wa ash-hidu ) ) should be
linked to one of the preceding two phrases in the verse; on this basis, the
requirement to call for witnesses may arise in any of the following instances:
1. the command of wa ash-hidu () is applicable on the occasion of talaq
for its link to the phrase fa talliqu hunna li „iddatihinna ( ), or 2. the command of wa ash-hidu () is applicable on the occasion of
raj„ah viz. revoking the divorce, for its link to the phrase fa amsiku hunna
bi ma„ruf ( .(
If we take this linguistic approach we will find that the meaning is closer to the
first possibility for the rational reason that the whole verse mainly discusses talaq,
not raj„ah.11 Hence according to the real meaning of the verse, the need for calling
of witnesses is compulsory to make the talaq valid and effective, and any divorce
without this requirement would not be valid or effective.12
It is worth mentioning that the traditional view held by the classical schools of
fiqh deviates from this clear elucidation rendered by this linguistic interpretation.
For example, Shafi„i scholars hold two views regarding the calling of witnesses as
demanded by this verse. The first view of the Shafi„i school on this issue is that
calling witnesses is mandub (recommended) for both talaq and raj„ah. The second
11 Raj„ah means renewing the previous marriage contract after a revocable divorce. 12 Ja„far al-Sabhani, Al-I„tisam bi al-Kitab wa al-Sunnah, Beirut, Dar al-Adwa li al-Tiba„ah wa al-
Nashr wa al-Tawzi„, 1997, pp. 168 – 170.
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view of Shafi„is on the same issue is that calling witnesses is mandub for talaq, but
wajib (compulsory) for raj„ah.13
The Hanafi jurists are inclined to take the first view articulated by Shafi„is and
likewise argue that calling witnesses is only mandub (recommended) in both talaq
and raj„ah but not as a compulsory obligation upon whose fulfillment the validity
and effectiveness of the divorce and its revocation depend.14
Ibn Hazm15 who belongs to the Zahiri school of fiqh embraced the literal meaning
of the verse which is also supported by the spirit of the Shari„ah. According to Ibn
Hazm any talaq or raj„ah performed without the presence of witnesses are null and
void.16
The Ja„fari (also known as Ithna „Ashari) school of fiqh which belongs to the
Shi„ah wing of Muslims have aligned with Ibn Hazm as far as talaq is concerned.
According to the Shi„ah scholars calling witnesses is a compulsory obligation in
case of talaq but not in case of raj„ah. Therefore no talaq will be valid or effective
without the presence of witnesses, but there is no need for witnesses to perform a
legitimate and efficient raj„ah.17
Many juristic scholars of Zaydi school18 are also staunch supporters of the view
that claims that the validity and effectiveness of talaq fully depends on observing
the command laid down by the verse wa ashhidu (), hence calling witnesses
to observe the performance of talaq is vital for its legitimacy and effectiveness.19
13 Ahmad Husayn Jarjinazi, Fath al-Khallaq: al-Jami„ li Ahkam al-Talaq, Himass, Dar al-Irshad,
1993, p. 38. 14 Ibid. 15 Ibn Hazm is a renowned scholar of fiqh and author of one of the outstanding treatises of Islamic
law called Al-Muhalla. 16 Ibid. 17 Ja„far al-Sabhani, Al-I„tisam bi al-Kitab wa al-Sunnah, Beirut, Dar al-Adwa li al-Tiba„ah wa al-
Nashr wa al-Tawzi„, 1997, pp. 165 – 173. 18 Zaydi school of fiqh, another Shiya„i faction, that is manifestly closer to the Sunni wing of Islam
and whose principles are more attuned and compatible to the corresponding Sunni doctrines than
Ja„fari (or Ithna „Ashari Shi„ah. 19 Muhammad ibn Yahaibn al-Mutahhar, Ahkam al-Ahwal al-Shakhsiyyah min Fiqh al-Shari„ah al-
Islamiyyah, San„a, Dar al-Fikr, 1989, vol. II, p. 64.
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The emphasis given in the Quran to the importance of witnesses is noteworthy.
Not only does it oblige them to be „adl20 (equitable), but it also cautions and
reminds them of the responsibility conferred to them by God.21 Presumably, one
of the objectives of the holy Quran in this matter seems to be, to ensure, that
there should be no grounds for possible disagreement between the spouses after a
divorce procedure has been set in motion. For this reason, the Quran requires the
presence of two witnesses to a divorce so that „iddah,22 maintenance, inheritance,
and other issues, which may arise from a divorce, do not become matters of
dispute. It is not unreasonable to assume in such circumstances, that, there could
be some controversial matters to be settled between the spouses or anyone else
who might be concerned. In addition, the testimony of two witnesses to a divorce
would leave no grounds for disagreement relating to the manner and time of talaq
pronounced by a husband.23
Many scholars who authored reliable exegeses of the holy Quran (or mufassirun)
expressed their unequivocal support for the compulsory nature of calling
witnesses for the validity of talaq.
Fakhr al-Din al-Razi, says: “[Muslims] were ordered to bring out two eye-witnesses when
they repudiate the marriage by performing talaq and also when they revoke this talaq by a
raj„ah.”24
Ibn Jarir al-Tabari, who is nick named as Shaikh al-Mufassirin (Master of all Tafsir
scholars) in his commentary on the Quran spoke out in favour of the calling of
witnesses in the event of performing talaq. He opined that the command wa ash-
hidu () in the verse should be applied to talaq as well as raj„ah.
20 „Adl means a person of good character, just and having the good quality of religious virtues and
moral integrity. 21 Kamal Ahmad „Awn, Al-Talaq fi al-Islam Muhaddad wa Muqayyad, Riyadh, Dar al-„Ulum li al-
Tib„ah wa al-Nashr, 1983, p. 74. 22 „Iddah is the obligatory waiting period before a new marriage contract for a woman after she has
become a divorcee or a widow. 23 Ahmad Husayn Jarjinazi, Fath al-Khallaq: al-Jami„ li Ahkam al-Talaq, Himass, Dar al-Irshad,
1993, p. 38. 24 „Abd al-Rahman al-Sabuni, Nizam al-Usrah wa Hall Mushkilatiha fi Daw al-Islam, Beirut, Dar al-
Fikr al-Mu„asir, 2001, p. 142. The translation is mine.
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Al-Suddi and „Ata ibn Abi Rabah have articulated the same message saying that
talaq and raj„ah both require witnesses.25
Al-Qurtubi and Abu Hayyan al-Nahwi al-Andalusi are also inclined to favour this
view that regards the calling of witnesses for the repudiation of marriage as a
condition for the validity of talaq.26
Among the Prophets Companions to whom this view is attributed are „Ali ibn
Abi Talib, „Abdullah ibn „Abbas and „Imran ibn Husayn.27
„Abdullah ibn „Abbas elucidating the significance of witnesses in the execution of
talaq declared: “A marriage can be contracted validly if there are witnesses. In the same
manner that contract can be repudiated only in the presence of witnesses and then that
repudiation can be revoked legitimately if there are witnesses.”28
While this verse of the holy Quran positively indicates the compulsory nature of
calling witnesses for a talaq to be valid and effective, this view also found
expressly articulated support from some Companions of the holy Prophet and
many scholars of the past, subsequently in modern times some of the
contemporary scholars also gave their blessing for the same opinion. Muhammad
Abu Zahrah29 says that if he was given the chance to choose, he would have
chosen that talaq would only be valid and effective if it is performed before two
witnesses.30 „Ali Khafif31 says that making the validity of the talaq conditional
upon presence of witnesses is the view which can bring harmony to the society for
it is closer to the public interest of the Muslim Ummah.32 Muhammad Baltaji33
25 Muhammad Baltaji, Fi Ahkam al-Usrah: Dirasah Muqaranah, Cairo, Dar al-Taqwa, 2001, p. 465. 26 „Abd al-Rahman al-Sabuni, Nizam al-Usrah wa Hall Mushkilatiha fi Daw al-Islam, Beirut, Dar al-
Fikr al-Mu„asir, 2001, p. 142. 27 Muhammad ibn Yahya ibn al-Mutahhar, Ahkam al-Ahwal al-Shakhsiyyah min Fiqh al-Shari„ah al-
Islamiyyah, San„a, Dar al-Fikr, 1989, vol. II, p. 64. 28 Al- Qurtubi, Tafsir al-Qurtubi, vol. XXVIII, p. 88. as cited by Ahmad al-Ghanduri, Al-Ahwal al-
Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah, 1992, p. 331. The translation is
mine. 29 A former professor of Shari„ah at Cairo University and a leading scholar and author of Islamic law of the last century, from Egypt. 30 Muhammad Abu Zahrah, Al-ahwal al-Shakhsiyyah, Beirut, Dar al-Fikr al-„Arabi, 1958, p. 365. 31 A former professor of Shari„ah at Cairo University and a leading scholar and author of Islamic law of the last century, from Egypt. 32 „Ali Khafif, Furaq al-Zawaj, p. 131. as quoted by „Abd al-Rahman al-Sabuni, Nizam al-Usrah wa
Hall Mushkilatiha fi Daw al-Islam, Beirut, Dar al-Fikr al-Mu„asir, 2001, p. 143.
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with some cautiousness expresses his view that this approach of taking the call for
witnesses as a compulsory measure in performing talaq should be adopted
formally in Muslim states.34
The leading Hadith scholar of our time Shaykh Nasir al-Din al-Albani after giving
scriptural evidence to support invalidity of any divorce done without witnesses,
opines that, since the validity of marriage depends on the presence of witnesses,
divorce should be given equal treatment as far as the presence of witnesses is
concerned, for divorce is far too critical than marriage in this regard.35
Muhammad Yusuf Musa who taught Islamic law in both Cairo University and
Alexandria University opined expressly that the view which supports the validity
and effectiveness of talaq depending on the calling of witnesses should be adopted
as a binding legal provision in the Family Law of Egypt.36 Muhammad al-
Ghazali37 articulated the same argument with more vigour and force.38
Ahmad al-Ghandur was no less enthusiastic to adopt the same approach and in
his commentary on the Kuwaiti Family Law, he urged the Kuwaiti legislators to
take up this view and include it in the textual body of legal provisions that govern
the family matters in the country, so no divorce will be valid or effective unless
witnesses were called to observe the repudiation. If this had been done it would be
an implementation of the Shariah instructions regarding this matter for the
Quran points toward the necessity of calling witnesses to oversee the
performance of talaq. According to Ahmad al-Ghandur39 this is also according to
33 Former Dean of Dar al-„Ulum (Faculty of Islamic and Arabic Studies) of Cairo University. 34 Muhammad Baltaji, Fi Ahkam al-Usrah: Dirasah Muqaranah, Cairo, Dar al-Taqwa, 2001, pp.
466–467. 35 See Shaykh Albanis fatwa on http://www.fatawa- alalbany.com/fiqh/hn%2808_04.rm%29.html (accessed on 4 June 2013). 36 Muhammad Yusuf Musa, Al-Amwal wa Nazariyyah al-„Aqd fi al-Fiqh al-Islami, Cairo, Dar al-Fikr
al-„Arabi, 1996, pp. 94 – 95. 37 A leading Muslim scholar and author of the last century, from Egypt. 38 Muhammad al-Ghazali, Qadaya al-Marah bayn al-Taqalid al-Rakidah wa al-Wafidah, Cairo, Dar
al-Shuruq, 1990, p. 184. 39 A former professor of Shari„ah at Kuwait University and a leading scholar and author of Islamic law.
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what is required by the communal need and public interest of the whole Islamic
Ummah.40
„Abd al-Rahman al-Sabuni41 is another staunch proponent of invalidating any
talaq if it is performed without calling for witnesses to observe and view the
repudiation.42 He explicates this legal verdict taken from the divine command in
the verse wa ash-hidu ( ) and explains elaborately that if we applied the
jurisprudential principles of the Islamic legal theory, in the interpretation of the
verse then there is no other applicable and convincing ruling available.43 He
rightfully points out that it is a well-known doctrine in Usul al-Fiqh, that every
imperative command proposes a compulsory obligation unless there is a
convincing piece of evidence which puts forward a different idea. Furthermore
the context of the verse proves beyond doubt that the calling for witnesses in case
of talaq is a compulsory obligation.44
Some scholars take a middle approach between the views that say that calling
witnesses is indispensable for the validity of talaq and the opinion of mainstream
scholars who suggest that calling witnesses for the performance of divorce is a
mere recommended mandub. Among them is „Abd al-Fattah Muhammad Abu al-
„Aynayn who says that “calling witnesses should be made compulsory and in case
of dispute between the husband and the wife over repudiation of the marriage no
juridical decision should be granted in favour of the separation validating and
confirming the talaq if there were no witnesses to verify the divorce. However, as
a matter between the divorcing husband and his Creator Almighty Allah, it will
be a valid divorce and the husband has a moral and religious responsibility to bear
the consequences of his talaq pronouncement. It is an obvious sin he has incurred
to himself for violating the Quranic injunction that demands the calling of
witnesses at the time of repudiation.”45
40 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah ,
1992, pp. 331 – 332. 41 A former professor of Shari„ah at Halab University and a leading scholar and author of Islamic
law from Syria. 42 „Abd al-Rahman al-Sabuni, Nizam al-Usrah wa Hall Mushkilatiha fi Dawi al-Islam, Beirut, Dar al-
Fikr al-Mu„asir, 2001, pp. 142 – 143. 43 Ibid. 44 Ibid. 45 „Abd al-Fattah Muhammad Abu al-„Aynayn, Al-Islam wa al-Usrah, Cairo, Al-Farmawi, (n. d.),
pp. 43 – 47.
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In order to reduce the horribly high rate of divorce in the country it is an
imperative requirement for the Maldives to promulgate legislation making any
divorce performed without calling witnesses null and void and no repudiation
should be valid and effective unless and until done before two witnesses.
TALAQ AL-BID‘AH: IS IT A VALID AND EFFECTIVE DIVORCE?
Shari„ah strongly urges Muslims to abstain from talaq unless it becomes an
inevitable necessity, in which case Shariah insists on making this acrimonious
experience as soothing and peaceful as possible. To achieve this end, it is essential
for Muslims to abide by the rules laid down by the Quran and the Sunnah of the
Prophet. One such demand of the Shariah is that the repudiation of the marriage
should be a talaq al-sunnah, and not a talaq al-bid„ah. If the Muslims followed the
guidelines of Shariah in this matter, no man ever has to worry about the
repudiation he has performed as quoted by the righteous Caliph „Ali ibn Abi
Talib.46
All the jurists of all the schools of fiqh unanimously agree that talaq al-bid„ah is a
sin and it should be discouraged and the one who commits that act deserves
severe reprimand from the authorities and the community at large.47
The juristic scholars of Shariah are divided into two groups on this issue.48 The
mainstream view held by the vast majority of scholars supports the view that this
type of talaq is a valid and effective repudiation of the marriage contract despite its
sinful nature.49 Then there is a sizable minority who support the contrasting view
that talaq al-bid„ah is nothing but nonsense which would not be counted as a valid
and effective talaq.50
46 Muhammad Rawwas Qalaji, Mawsu„ah Fiqh „Ali ibn Abi Talib, Beirut, Dar al-Nafais, 1996, pp.
443 – 444. 47 Muhammad Ibrahim al-Hafnawi, Al-Mawsu„ah al-Fiqhiyyah al-Muyassarah, Mansurah, Maktabah
al-Iman, (n. d.), p. 104; and Mustafa al-Khinn, Mustafa al-Bugha and „Ali al-Sharbaji, Al-Fiqh al-
Manhaji ala al-Madhhab al-Imam al-Shafi„i, Damascus, Dar al-Qalam, 1992, vol. IV, p. 126. 48 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 327. 49 Abu al-Husayn Yahya ibn Abi al-Khayr ibn Salim al-„Imrani, Al-Bayan fi Madhhab al-Imam al-
Shafi„i, Beirut, Dar al-Minhaj, (n. d.), vol. X, p. 79. 50 Ibid.
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The juridical dispute on this issue has its roots in the early ages of the
Companions. Two contrasting views are attributed to the Companion „Abdullah
ibn „Umar.51 Among the juristic scholars who argued in favour of the latter
opinion that puts forward the idea that talaq al-bid„ah does not constitute a valid
and effective repudiation of the marriage contract, are Sa„id ibn Musayyib,52
Taus,53 Ibn „Ulayyah, Hisham ibn al-Hakam and others.54 This view was
embraced by the Zahiri School of fiqh and was backed by the most ardent
proponent of this school, Ibn Hazm, in his book Al-Muhalla.55
Ibn Taymiyyah is another outstanding scholar who very zealously supported the
view56 that talaq al-bid„ah does not constitute a valid and effective repudiation of
the marriage contract. In his Fatawa, he very strongly defended this view and gave
a detailed account of how he derived legitimate proofs from the Quran and the
Sunnah.57 Ibn Taymiyyahs leading disciple Ibn Qayyim al-Jawziyyah was no less
fervent in his endorsement of this view.58 He too elaborated on this issue in his
book Zad al-Ma„ad fi Hady Khaiyr al-„Ibad.59
Almost a century later,60 Muhammad ibn Ibrahim al-Wazir became another
important patron of this view.61 He authored a book in which he firmly attested
and provided evidence for the fact that talaq al-bid„ah is actually an ineffective and
51 Muhammad Rawwas Qalaji, Mawsu„ah Fiqh „Abdillah ibn „Umar, Beirut, Dar al-Nafais, 1995,
pp. 565 – 566. 52 Muhammad ibn Yahya ibn al-Mutahhar, Ahkam al-Ahwal al-Shakhsiyyah min Fiqh al-Shari„ah al-
Islamiyyah, San„a, Dar al-Fikr, 1989, vol. II, p. 85. 53 Muhammad ibn Isma„il al-San„ani, Subul al-Salam: Sharh Bulugh al-Maram min Jam„ Adillah al-
Ahkam, Beirut, al-Maktabah al-„Asriyyah, 1992, vol. III, p. 302. 54 Abu al-Husayn Yahya ibn Abi al-Khayr ibn Salim al-„Imrani, Al-Bayan fi Madhhab al-Imam al-
Shafi„i, Beirut, Dar al-Minhaj, (n. d.), vol. X, p. 79. 55 Abu Muhammad „Ali ibn Ahmad ibn Sa„id ibn Hazm, Al-Muhalla, (n. pp.), Dar al-Fikr, (n. d.),
vol. X, pp. 161 – 174. 56 Muhammad Rawwas Qalaji, Mawsu„ah Fiqh „Ibn Taymiyyah, Beirut, Dar al-Nafais, 1998, vol.
II, p. 972. 57 See: Taqiyy al-Din Ahmad ibn Taymiyyah al-Hurrani, Majmu„ah al-Fatawa, Riyadh, Maktabah
al-„Abikan, 1998, vol. XXXIII, pp. 7 – 28. 58 Shams al-Din Abu „Abdillah Muhammad ibn Abi Bakr al-Zar„i al-Dimishqi, Zad al-Ma„ad fi
Hady Khayr al-„Ibad, Kuwait, Maktabah al-Manar al-Islamiyyah, 1986, vol. V, pp. 218 – 241. 59 Ibid., pp. 218 – 241. 60 Ibn Qayyim al-Jawziyyah died in the year 751 A.H., and Muhammad ibn Ibrahim al-Wazir died in the year 840 A.H. 61 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat al-Azhariyyah, 1978, vol. VIII, p. 10.
16 |
invalid repudiation by presenting seventeen proofs for his case.62 This book was
later emulated by another concise work of Fiqh and Hadith penned by
Muhammad ibn Isma„il al-San„ani.63 In his commentary on Ibn Hajars book
Bulugh al-Maram, entitled Subul al-Salam he says:
“I used to deliver fatwa64regarding the talaq al-bid„ah, that it is an ineffective and invalid
divorce, and I authored a book explaining this opinion. But then for a while I stopped advocating for this opinion thinking that it is not the preferential view. Yet again after
sometime it dawned upon me that the view I was holding previously which says that talaq al-bid„ah is not a valid and effective divorce, is indeed the rightful opinion. There is no
doubt that every bid„ah is an act of going astray (dalalah), and every act of that kind is both
forbidden and has no effect whatsoever. Indeed this is applicable to talaq al-bid„ah.”65
Again, almost a century later, Muhammad ibn „Ali ibn Muhammad al-
Shawkani66 was inclined to give preference to this very view that says talaq al-
bid„ah is an ineffective and invalid divorce which should not be counted as a
legitimate repudiation of the marriage.67
More recently the former Grand Shaykh of al-Azhar, Mahmud Shaltut in his
book entitled Al-Islam: „Aqidah wa Shariah explicitly opined that the true and
reliable interpretation of the verses that speaks of talaq in the Quran clearly
reveals that the talaq al-bid„ah is not an effective and valid divorce whereby the
marriage contract can be terminated. Hence, this type of talaq is no more than just
nonsense which has no consequence at all upon the marital bond between the
spouses.68
62 Muhammad ibn Isma„il al-San„ani, Subul al-Salam: Sharh Bulugh al-Maram min Jam„ Adillah al-
Ahkam, Beirut, Al-Maktabah al-„Asriyyah, 1992, vol. III, p. 303. 63 Ibid. 64 Fatwa means legal opinion. 65 Ibid. Translation is mine. 66 Imam al-Shawkani died in the year 1250 A.H. That is 1835 A.C. 67 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat al-Azhariyyah, 1978, vol. VIII, pp. 6 – 10.
It is worth noting that in this book Nayl al-Awtar Imam al-Shawkani is evidently inclined to give
preference to this above mentioned view, but in his book entitled Al-Sayl al-Jarrar he is giving
preference to the contrasting view which says talaq al-bid„ah, despite its sinful nature it is a valid
and an effective divorce. See: Muhammad ibn Yahya ibn al-Mutahhar, Ahkam al-Ahwal al-
Shakhsiyyah min Fiqh al-Shari„ah al-Islamiyyah, San„a, Dar al-Fikr, 1989, vol. II, p. 87. 68 Mahmud Shaltut, Al-Islam: „Aqidah wa Shari„ah, Cairo, Dar al-Shuruq, 1997, p. 175.
| 17
In recent times, the most vocal proponent of this opinion that views talaq al-bid„ah
as an ineffective and invalid repudiation of the marriage is Ahmad Muhammad
Shakir. He argued that this type of talaq has no authentic proof to support its
validity but there are numbers of genuine and dependable proofs that establishes
the invalidity of this form of divorce.69
Among the contemporary scholars of fiqh, there are many enthusiastic supporters
of this view who resolutely advocated that talaq al-bid„ah is invalid and it should
be regarded so, and the family laws of the Muslim countries should reflect this
fact in the formal legislations. Among them is Kamal Ahmad „Awn who very
actively tried to promote this view in his book named Al-Talaq fi al-Islam
Muhaddad wa Muqayyad,70 and Muhammad Salih al-Munajjid who is the
administrator of the famous fatwa website www.islamqa.com.71 Two of the
leading scholars of our time in Islamic law Shaykh Ibn Baz and Shaykh ibn
„Uthaymin are also supporters of this opinion.72
Ahmad al-Ghanduri summed it up saying that: “many juristic scholars have
opined that invalidity and ineffectiveness of the talaq al-bid„ah are closer to the
jurisprudential rules and policies of fiqh, to the meaning and spirit of the Quran,
and to the essential legal maxims of the Shariah.”73
The invalidity and ineffectiveness of talaq al-bid„ah is also adopted by the Ja„fari
(also known as Ithna „Ashri) school of Shi„ah.74 Many outstanding jurists of the
Zaydi school of fiqh which is much closer to the Sunni schools of fiqh also held the
69 Ahmad Muhammad Shakir, Nizam al-Talaq fi al-Islam, Taif, Maktabah al-Ma„arif, 1389 A.H.,
pp. 15 – 117. 70 Kamal Ahmad „Awn, Al-Talaq fi al-Islam Muhaddad wa Muqayyad, Riyadh, Dar al-„Ulum li al-
Tiba„ah wa al-Nashr, 1983, pp. 61 – 70. 71 See: “Al-Talaq fi al-Hayd” in http://www.islamqa.com/ar/ref/72417, “Masail fi al-Talaq al- Mu„allaq” in http://www.islamqa.com/ar/ref/191258, “Talaq thalath Marrat fi Tuhrin Jama„aha fihi” in http://www.islamqa.com/ar/ref/106328, (accessed on 4 June 2013). 72 Ibid. 73 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 329. The translation is mine. 74 Ja„far al-Sabhani, Al-I„tisam bi al-Kitab wa al-Sunnah, Beirut, Dar al-Adwa, 1997, pp. 225 – 235.
18 |
same view. Among these Zaydi scholars who advocated passionately for this view
are al-Baqir, al-Nasir and al-Sadiq.75
As al-Shawkani very clearly states in his book Nayl al-Awtar, if the proofs on
which the two contrasting views regarding the effectiveness and validity of talaq
al-bid„ah were weighed, the strongest and most reliable opinion is the one
supported by the minority that says that talaq al-bid„ah is ineffective and invalid.76
The following are some of the proofs to which al-Shawkani was referring:
(1)
( )77 O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count
(accurately), their prescribed periods: And fear Allah your Lord.78
Here the verse only allows opening one single door to talaq, which is talaq in a
time the divorcee can begin counting down her „iddah period. It is well-known
that a woman if divorced while she is undergoing menstrual period, cannot
immediately start the countdown of her „iddah. Hence the verse very forthrightly
forbids divorce at the time of menstruation or nifas. Forbidding anything clearly
suggests that the forbidden thing will not be counted valid and consequently will
have no effect and will be worthless and ineffective.79 And the Sunnah of the
holy Prophet explains the meaning of the phrase (divorce them at their
prescribed periods) in this verse in the following tradition:
75 Muhammad ibn Isma„il al-San„ani, Subul al-Salam: Sharh Bulugh al-Maram min Jam„ Adillah al-
Ahkam, Beirut, Al-Maktabah al-„Asriyyah, 1992, vol. III, p. 302. 76 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat al-Azhariyyah, 1978, vol. VIII, p. 9. 77 Surah al-Talaq: 1 78 This is „Abdullah Yusuf „Alis translation. Pickthalls translation reads: “O Prophet! When ye (men) put away women, put them away for their (legal) period and reckon the period, and keep your duty to
Allah, your Lord.” 79 Ja„far al-Sabhani, Al-I„tisam bi al-Kitab wa al-Sunnah, Beirut, Dar al-Adwa, 1997, p. 226.
| 19
"
( :

80 )
Ibn „Umar reported that he repudiated his wife while she was menstruating during the lifetime of the Prophet. „Umar ibn al-Khattab asked the Prophet about it, whereupon the
Prophet said: Command him („Abdullah ibn „Umar) to take her back and keep her (as a wife) until she is purified and then let her experience the period of menstruation and then,
when she is again purified he has the choice of keeping her as his wife or divorcing her before
touching her (without having an intercourse with her), for that is the period of waiting („iddah) which Allah, the Exalted and Glorious, has commanded for the divorce of
women.81
(2)
: ) :
82 )
Ibn „Umar narrated that he divorced his wife while she was undergoing her menstrual
period. Ibn „Umar said: The Prophet (peace and blessing be upon him) returned her to me and did not count it (the pronouncement of talaq) anything.83
(3)
) : :

: :
( 84
80 Sahih Muslim: 3473. 81 Abu Muhammad „Ali ibn Ahmad ibn Sa„id ibn Hazm, Al-Muhalla, (n. pp.), Dar al-Fikr, (n. d.),
vol. X, p. 162. The translation is mine. 82 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat al-Azhariyyah, 1978, vol. VIII, p. 9. 83 The translation is mine. 84 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat al-Azhariyyah, 1978, vol. VIII, p. 9.
20 |
Ibn Jurayj narrated that Abu al-Zubayr told him:
'Abd al-Rahman ibn Ayman, the freed-slave of „Urwah asked Ibn „Umar while Abu al- Zubayr was listening: What do you think of a man who divorces his wife while she is menstruating? „Abdullah ibn „Umar replied: „Abdullah ibn „Umar (meaning himself)
divorced his wife while she was menstruating during the time of the Prophet. So „Umar asked the Prophet saying: „Abdullah ibn „Umar divorced his wife while she was
menstruating. „Abdullah said: He (the Prophet) returned her to me and did not count it
(the pronouncement of that divorce) anything.85
(4)
:
86 ) ( Sa„id ibn Mansur reported through the narration of „Abdullah ibn Malik that „Abdullah ibn „Umar divorced his wife while she was experiencing the menstruation, and (when asked
about it) the Prophet said: “It (the divorce while the wife is having menstruation) is nothing.87
(5)
Almighty Allah did not legitimize this type of talaq, nor did He give us the
permission to perform divorce in this manner, hence it is unacceptable, invalid
and ineffective, for the Prophet clearly states in an unquestionably sound hadith
that:88
( ) 89
“Anyone who has done anything which is not in line with our way (of doing things) then it
will not be acceptable from him.”90
85 The translation is mine. 86 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat al-Azhariyyah, 1978, vol. VIII, p. 9. 87 The translation is mine. 88 Muhammad ibn „Ali ibn Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar min
Ahadith Sayyid al-Akhyar, Cairo, Maktabah al-Kulliyyat al-Azhariyyah, 1978, vol. VIII, p. 10. 89 Sahih al-Bukhari: 2697; Sahih Muslim: 1718.
| 21
(6)
( 91 ). : Ibn Hazm narrated that „Abdullah ibn „Umar spoke about a person who divorces his wife while she is undergoing menstrual period, and „Abdullah ibn „Umar said that: “This (divorce) will not be effective.”92
(7)
Another support for this view is a logical proof derived from the analogical
reasoning qiyas which draws similarities betweem talaq al-bid„ah to the act of a
wakil (an agent) who was authorized to do a particular thing in a limited and
specific time. If this wakil performed the action he was asked to do beyond the
time limit prescribed for him by his principal, his action should be ineffective and
invalid. The same way when a Muslim performs the talaq beyond the prescribed
time to do so, his action which is talaq should be invalid and ineffective.93
(8)
In case some aspects of any particular action are forbidden and others are allowed
and then if this action was performed in its forbidden form in that case that
particular act will be ineffective and invalid. For example, sale is originally
allowed in Islam, but sale of wine, intoxicating drugs, pigs and dead animals are
not allowed and if these sales took place they would be invalid sales. In the same
way marriage is allowed, but the marriage to a relative of a prohibited degree, or
marriage to a woman who is already married or undergoing the „iddah period is
forbidden and hence will be regarded as invalid. Exactly the same should be
applied to divorce. Divorce should have its limits and restrictions. All
unnecessary repudiations are very much discouraged, for they are either sinful or
very much close to be a sin, and yet divorce is permitted in Islam for pragmatic
reasons. It is allowed to be performed in tuhr period in which no sexual
intercourse has taken place or when the wife is known to be pregnant. It is
90 The translation is mine. 91 Abu Muhammad „Ali ibn Ahmad ibn Sa„id ibn Hazm, Al-Muhalla, (n. pp.), Dar al-Fikr, (n. d.),
vol. X, p. 162. 92 The translation is mine. 93 Muwaffaq al-Din Abu Muhammad „Abdullah ibn Ahmad ibn Qudamah, Al-Mughni, Makkah
al-Mukarramah, al-Maktabah al-Tijariyyah, (n. d.), vol. VIII, p. 239.
22 |
disallowed to be performed when the wife is undergoing her menstruation or
nifas. So if the divorce is executed as a talaq al-bid„ah which is evidently prohibited
and outlawed it would be invalid and ineffective.94
In order to curb the high rate of divorce in the Maldives, any divorce performed
as a talaq al-bid„ah should be outlawed and hence be regarded as an invalid and
ineffective repudiation of the marriage, and this should have no bearing on the
marriage itself.
MUT‘AH: INDEMNITY FOR TALAQ
Under the laws of some Muslim countries, a divorced wife is entitled to receive
from her former husband what is called mut„ah. This concept is referred to in the
Quran in the following verse:
95) (
“For divorced women maintenance should be provided on a reasonable scale. This is a duty
on the righteous.”96
Mut„ah literally means anything that renders any benefit and is useful.97 This term
is very often used to mean a “consolatory gift”, “compensation” and
“indemnity”.98 In the Shariah vocabulary, the term mut„ah is used in different
contexts for different meanings. The mut„ah which is attached to the repudiation
of the marriage contract is defined in the Shariah terminology as “what is given to
94 Taqiyy al-Din Ahmad ibn Taymiyyah al-Hurrani, Majmu„ah al-Fatawa, Riyadh, Maktabah al-
„Abikan, 1998, vol. XXXIII, p. 14. 95 Surah al-Baqarah: 241. 96 This is „Abdullah Yusuf „Alis translation. Muhammad Marmaduke Pickthalls translation reads: “For divorced women a provision in kindness: a duty for those who ward off (evil).” 97 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 348. 98 Tahir Mahmood, Personal Law in Islamic Countries, New Delhi, Academy of Law and Religion,
1987, p. 287.
| 23
the divorcee by her divorcing husband to alleviate the pain of separation and ease the
hardship that may arise as a consequence of the divorce.”99
Mut„ah is basically different from regular maintenance following divorce. In the
case of dissolution of an unconsummated marriage contracted without a mahr,
only mut„ah is payable and no mahr or maintenance of „iddah can be claimed by
the divorcee.100 This rule is enforced in Jordan, Lebanon, Morocco and Yemen.
In some other countries mut„ah has to be paid – in addition to mahr and
maintenance of „iddah – where, after the consummation of marriage, a man
inflicts on a woman a talaq al-ta„assuf (arbitrary divorce) against her wishes and
without any fault on her part.101
( 102)
“There is no blame on you if ye divorce women before consummation or the fixation of their
dower; but bestow on them (a suitable gift), the wealthy according to his means, and the
poor according to his means;- A gift of a reasonable amount is due from those who wish to do the right thing.”103
This verse clearly indicates that paying mut„ah is an obligatory duty for every
husband who divorces his wife prior to the consummation of the marriage and
before specifying the mahr.104 It is an issue that enjoys a general consensus of all
juristic scholars that a divorcee can rightfully claim mut„ah if she was divorced
before the consummation and no mahr was spelled out in the marriage contract.105
99 Muhammad al-Zuhayli, Al-Ta„wid al-Maddi „an al-Talaq, Damascus, Dar al-Maktabi, 1998, p. 81.
The translation is mine. 100 Tahir Mahmood, Personal Law in Islamic Countries, New Delhi, Academy of Law and Religion,
1987, p. 287. 101 Ibid. 102 Surah al-Baqarah: 236. 103 This is „Abdullah Yusuf „Alis translation of the sacred verse. And Muhammad Marmaduke Pickthalls translation reads: “It is no sin for you if ye divorce women while yet ye have not touched them, nor appointed unto them a portion. Provide for them, the rich according to his means, and the straitened
according to his means, a fair provision. (This is) a bounden duty for those who do good.” 104 „Abd al-Rabb Nawab al-Din Al Nawab al-Din, Mwsu„ah al-Marah al-Muslimah al- Mu„asirah,
Riyadh, Dar al-„Asimah li al-Nashr wa al-Tawzi„, 2000, vol. I, p. 148. 105 Abu al-Husayn Yahya ibn Abi al-Khayr ibn Salim al-„Imrani, Al-Bayan fi Madhhab al-Imam al-
Shafi„i, Beirut, Dar al-Minhaj, (n. d.), vol. IX, p. 471.
24 |
Besides the textual proof from the Quran this view gains backing from the
Companions of the holy Prophet like „Ali ibn Abi Talib, „Abdullah ibn „Abbas
and „Abdullah ibn „Umar.106
The verses were taken literally by the scholars of the Zahiri school of fiqh and they
extended the legal ruling of imposing the compulsory duty of paying mut„ah on
every divorcing husband for his repudiated wife, regardless of consummation of
the marriage or the specification of the mahr.107 This view which was very
eloquently defended by Ibn Hazm also has won the support from some juristic
scholars outside the Zahiri School. Among them is Ibn Jarir al-Tabari who with
Zahiri scholars argued that the verse wa li al-mutallaqati mata„ ( ) did
not differentiate between the divorcees in their right to get the mut„ah. Hence the
verse should be taken in its general broad meaning without specification for
which there is no evidence to justify it.108 Long before these two Imams, (i.e. Ibn
Hazm and al-Tabari), al-Hasan al-Basari staunchly argued in favour of this
view.109 This view was also embraced by the jurists like Sa„id ibn Jubayr.110
Furthermore, al-Zuhri and Abu Thawr are also enthusiastic adherents of this
view.111 Abu al-„Aliyah too is a supporter of this opinion.112 Certainly the
quotation attributed to „Ali ibn Abi Talib that says “every divorcee is entitled to
mut„ah”113 gives a strong backing to this view in addition to its original reliance on
the verse of the Quran.
106 Muhammad „Ali al-Sabuni, Rawai„ al-Bayan: Tafsir Ayat al-Ahkam min al-Quran, Damascus, Dar
al-Qalam, 1990, vol. I, p. 355. 107 Abu Muhammad „Ali ibn Ahmad ibn Sa„id ibn Hazm, Al-Muhalla, (n. p.), Dar al-Fikr, (n. d.),
vol. X pp. 245 – 249. 108 Abu Ja„far Muhammad ibn Jarir al-Tabar, Jami„ al-Bayan fi Tafsir al-Quran, Beirut, Dar al-
Ma„rifah, 1983, vol. II, pp. 327 – 328. 109 Muhammad „Ali al-Sabuni, Rawai„ al-Bayan: Tafsir Ayat al-Ahkam min al-Quran, Damascus, Dar
al-Qalam, 1990, vol. I, pp. 354 – 355. 110 Abu „Abdillah Muhammad ibn Ahmad al-Ansari al-Qurtubi, Al-Jami„ li Ahkam al-Quran,
Beirut, Dar Ihya al-Turath al-„Arabi, (n. d.), vol. III, p. 228. 111 Ibid. 112 „Imad al-Din Abu al-Fida Isma„il ibn Kathir al-Qurashi, Tafsir al-Quran al-„Azim, Damascus,
Dar al-Fayha, 1994, vol. I, p. 387. 113 Ahmad Fathi Bahansi, Nafaqah al-Mut„ah bayn al-Shari„ah wa al-Qanun, Cairo, Dar al-Shuruq,
1988, p. 48; Ahmad Husayn Jarjinazi, Fath al-Khallaq al-Jami„ li Ahkam al-Talaq, Himass, Dar al-
Irshad li Tawzi„at al-Matbu„at, 1993, p. 106; and Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-
Tashri„ al-Islami, Kuwait, Maktabah al-Falah, 1992, p. 347.
| 25
If the repudiation occurred before the consummation and a mahr was specified in
the marriage contract, then half of that specified amount named as mahr in this
particular case will be mut„ah.114 If we exclude this woman (who was divorced
prior to the consummation and a specific mahr was named before the talaq), then
every other divorcee is entitled to get the mut„ah according to Shafi„i.115 This view
was backed later by ibn Taymiyyah.116 Some contemporary scholars like Wahbah
al-Zuhayli and Ahmad al-Ghandur are also inclined to give preference to this
view advocated by Shafi„i.117
Maliki scholars opine that paying mut„ah always invariably takes one single legal
ruling, and that is mustahabb (strongly recommended) but not compulsory.118 This
evidently contrasts with the view held by Shafi„is that paying mut„ah is a
compulsory obligation except for the divorcee for whom a specific mahr was
named and was divorced before the consummation of the marriage, for this
woman gets half of the mahr as mut„ah.119
Hanafi scholars on this issue take a middle path between Shafi„is and Malikis. If
the divorcees marriage was repudiated after its completion by means of the
consummation or the divorcees marriage was not consummated when the talaq
was performed but a mahr was named, then in these two cases paying mut„ah is
strongly recommended but not obligatory. Here Hanafis team up with Malikis
and their reason is that the divorcee in these two cases will get half of the specified
mahr or half of the mahr similar to that which a woman of her social status gets
when the specification was not done. Apart from these two cases the Hanafi
position is identical to the Shafi„i position and they together speak out in favour of
114 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 348. 115 Shams al-Din Muhammad ibn Abi al-„Abbas Ahmad ibn Hamzah, Nihayah al-Muhtaj ila Sharh
al-Minhaj, Beirut, Dar al-Kutub al-„Ilamiyyah, 1993, vol. XI, p. 364. 116 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, p.350. 117 Ibid, p. 351; and Wahbah al-Zuhayli, Al-Fiqh al-Islami wa Adillatuhu, Damascus, Dar al-Fikr,
1997, vol. IX, p. 6833. 118 Wahbah al-Zuhayli, Al-Fiqh al-Islami wa Adillatuhu, Damascus, Dar al-Fikr, 1997, vol. IX, p.
6831. 119 Ibid.
26 |
mut„ah being a mandatory duty upon the divorcing husband and a lawful right of
the repudiated wife.120
Three views are attributed to Ahmad ibn Hanbal regarding this matter and one of
them is in line with the opinion of Shafi„i and the second is absolutely similar to
that of Hanafis. And the third view is that every divorcee with no exception is
entitled to get the mut„ah, including the one who was divorced prior to
consummation with a named specific mahr in the marriage contract.121 Both these
Imams recognize mut„ah as an obligatory duty (wajib) upon the divorcing
husband.122
From this brief review of the classical view on the mut„ah, it is evidently apparent
that it has an important role to play in the aftermath of the talaq. With trivial and
insignificant differences in their opinion all the jurists of all schools of fiqh
converge in absolute concurrence in emphasizing the importance of mut„ah.123 If
fully utilized, mut„ah can and will render the double benefit of alleviating the
excruciating pain from the victims of unjustified talaq and radically reducing the
number of those unpardonable and inexcusable divorces in the Maldives.
a) As Muhammad al-Zuhayli of Damascus University very eloquently
articulated, the mut„ah is the Islamic alternative to the
compensation for divorce in secular judicial systems.124 If we
explore, exploit and utilize its full potential there would be no need
at all to invent a new regime of indemnification for the social,
psychological, and economical sufferings imposed upon the
divorcee as a result of a husbands rushed repudiation.
b) It seems that Muslims have neglected mut„ah for a very long time,
for al-Nawawi seven centuries ago deplored the fact that people
120 Ibid, pp. 6830 – 6831. 121 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, pp. 347 – 348. 122 Ibid, pp. 348 and 350. 123 Muhammad al-Zuhayli, Al-Ta„wid al-Maddi „an al-Talaq, Damascus, Dar al-Maktabi, 1998, p.
83. 124 Ibid, pp. 81 – 95.
| 27
have abandoned this important aspect of the Shariah.125 In his
Fatawa al-Nawawi said: “The fact that the divorcees are entitled to get
the mut„ah and the divorcing husbands have a compulsory obligation to pay
this mut„ah is something contemporary women are ignorant about. They
should be educated about this and the knowledge about the Shariah ruling
on mut„ah should be popularized and spread.”126
c) Ahmad al-Ghandur echoes this observation of al-Nawawi when he
says in his book on the Islamic Family Law: “Mut„ah is a
compensation to the repudiated wife for the divorce. It will be
highly beneficial if we imposed this mut„ah on each and every
divorcing husband in order to curb the number of divorces and to
hearten and console the divorcee. This would go a long way to
protect the revered institution of family from the mischief of
roguish husbands. Furthermore this will be a desired revival of the
implementation of the legal provisions of our divine law.”127 A
very closely similar view to this was also expressed by „Abd al-
Rahman al-Sabuni.128 Muhammad Baltaji also argues in favour of
imposing the payment of mut„ah on the divorcing husband if he
repudiates his marriage unilaterally without a justifying reason for
the divorce.129
d) It is a well-known fact that unjustified talaq performed unilaterally
by the husband for no good reason brings hardship, harm, suffering
and injury to the repudiated wife. Islam does not approve imposing
any kind of injury upon an innocent party. One of the outstanding
legal principles of Islamic law is that “no injury should be done, and no
injury may be met with another injury”, hence every injury according
to the Shariah should be removed and repaired. Thus if the
125 Shams al-Din Muhammad ibn al-Khatib al-Shirbini, Mughni al-Muhtaj ila Ma„rifah Ma„ani Alfaz
al-Minhaj, Beirut, Dar al-Fikr, 1998, vol. III, p. 307. 126 Muhammad al-Hajjar (edit.), Fatawa al-Imam al-Nawawi al-Musammah bi al-Masail al-
Manthurah, Cairo, Dar al-Salam, 1985, p. 214. The translation is mine. 127 Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, p. 353. The translation is mine. 128 Muhammad al-Zuhayli, Al-Ta„wid al-Maddi „an al-Talaq, Damascus, Dar al-Maktabi, 1998, p.
91. 129 Muhammad Baltaji, Fi Ahkam al-Usrah: Dirasah Muqaranah, Cairo, Dar al-Taqwa, 2001, pp. 467
– 473.
28 |
unwarranted talaq caused any harm to the divorcee, the injury she
suffered should be removed by financial compensation.130 This is
exactly what the Kuwaiti Family Law promulgated in its Section
165 that reads:
If a valid marriage is dissolved after consummation the wife shall be entitled, in addition to her maintenance, to compensation which shall
be assessed at an amount not exceeding one years maintenance, in accordance with the circumstances of the husband, and which shall be given to her in monthly installments following the completion of her
waiting period, provided the parties have not agreed otherwise with regard to the amount or the manner of payment.
e) Exceptions to the preceding paragraph shall be:
i. divorce for non-payment of maintenance due to hardship of the husband;
ii. divorce on grounds of darar if caused by the wife;
iii. divorce by consent of the wife;
iv. annulment of marriage at the request of the wife; v. death of one of the spouses.131
Ahmad al-Ghandur in his book on the Islamic family law praised Kuwaiti
legislators for imposing this compensation for talaq on the repudiating husband,
but he expressed his regret that Kuwaiti law only prescribed for this purpose an
amount not exceeding one years maintenance while in his view, the law should
have charged the divorcing husband an amount no less than three years
maintenance to reach the desired end from this imposition.132
Like Kuwait, Syria too incorporated the principle of mut„ah into its promulgated
law and utilized this doctrine to curb the increasing talaq rate and to ease the
130 „Abd al-Fattah „Amr, Al-Siyasah al-Shar„iyyah fi al-Ahwal al-Shakhsiyyah, Amman, Dar al-
Nafais, 1998, pp. 180 – 181. 131 Dawoud El Alami and Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World,
London, Kluwer Law International, 1996, pp. 144 – 145. 132Ahmad al-Ghandur, Al-Ahwal al-Shakhsiyyah fi al-Tashri„ al-Islami, Kuwait, Maktabah al-Falah,
1992, pp. 344 – 345.
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sufferings of talaq victims.133 Section 117 of the Syrian Law of Personal Status
reads:
“If a husband pronounces a talaq and it is apparent to the judge that the husband has acted arbitrarily and without reasonable cause, and that the wife will suffer misery and hardship,
the judge may make an award against him for compensation to the wife according to his circumstances and the degree of arbitrariness in an amount not exceeding three years
maintenance for a woman of like social status. This shall be in addition to the maintenance
for the waiting period. The judge may rule that this compensation be paid as a lump sum or in monthly installments according to the circumstances.”134
Egypt too imposed a punitive mut„ah on the arbitrarily divorcing husband.135
Egyptian law took a middle path between the Syrian and Kuwaiti laws in fixation
of the mut„ah. Article 18 bis reads:
“A woman with whom a valid marriage has been consummated, whose husband divorces
her without her agreement and without any cause on her part shall in addition to the maintenance for her waiting period be entitled to compensation (mut„ah) which shall be
assessed as at least two years maintenance, taking into consideration the circumstances of the divorcing husband in terms of wealth or poverty, the circumstances of the divorce and
the length of the marriage. The divorcing husband shall be permitted to pay the compensation in installments.”136
Among the non-Arab Muslim countries, Malaysia adopted this remedial mut„ah
as a disciplinary and retaliatory measure against the divorcing husband if his
divorce was without good justification.137 Section 56 of the Islamic Family
(Federal Territories) Act states that:
“In addition to her right to apply for maintenance, a woman who has been divorced
without just cause by her husband may apply to the Court for mut„ah or a consolatory gift, and the Court may, after hearing the parties and upon being satisfied that the woman has
133 Ahmad Husayn Jarjinazi, Fath al-Khallaq: al-Jami„ li Ahkam al-Talaq, Himass, Dar al-Irshad li
Tawzi„at al-Matbu„at, 1993, p. 107. 134 Dawoud El Alami and Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World,
London, Kluwer Law International, 1996, p. 235. 135 Tahir Mahmood, Personal Law in Islamic Countries, New Delhi, Academy of Law and Religion,
1987, p. 33. 136 Dawoud El Alami and Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World,
London, Kluwer Law International, 1996, p. 60. 137 Tahir Mahmood, Personal Law in Islamic Countries, New Delhi, Academy of Law and Religion,
1987, p. 232.
30 |
been divorced without just cause, order the husband to pay such sum as may be fair and just according to Hukum Shar„.”
Like these countries, Maldives also should adopt awarding mut„ah for the
divorced wife if the divorce was an unjustified unilateral repudiation on the part
of the husband.
CONCLUSION
The Maldives should incorporate the following three provisions into its family
law in order to curb the high divorce rate
i. any talaq without witnesses shall not be regarded as a valid and lawful
dissolution of marriage,
ii. the divorce known as talaq al-bid'ah should be treated as an invalid
annulment of marriage,
iii. in case of unilateral divorce from the part of the husband without
acceptable justification, he should be held liable to pay the divorcee a
suitable and satisfactory financial compensation.
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V A G U T H Y A M U R U
THE LAW ON CIVIL TEMPORARY RELIEF IN THE MALDIVES
Ismail Wisham
INTRODUCTION
The law on temporary relief finds its roots in traditional principles of equity where
the common law remedy that was available was found to be inadequate. Equity
supplements those remedies legally available for the parties to a claim, and award
of its relief is highly discretionary in nature.
Equitable remedies are specific, directed in almost all circumstances towards the
intended parties and are ideally very much limited in scope. Equity is empowered
to fashion a remedy to procure substantial justice that is fair and practical. It is the
subjective nature of the award of temporary relief that necessitates the Courts
discretion. Equitable remedies are designed to meet the needs of the particular
case after close analysis of the facts and equitable remedies accommodate the
relative merits of the plaintiff and defendant in the particular case1.
The phrase „civil temporary relief in the title has been included with the intention of
limiting the scope of the research herein to the subject matter restrictions of the
Civil Court as per Schedule II of the Courts of Judicature Act 2010. For us, the
Rules on Court Proceedings 20032, section 295 outlines the prevalent practice running
up to the 2008 Constitution. This is where the discussion starts;
„Vaguthy Amuru, locally translated means „Temprorary Order. LL.B (Hons) (IIUM), MCL (IIUM), Practicing Attorney. 1 Gummow, „The injunction in aid of legal rights (1953) 56 Law & Contemp Probs, 83. 2 „Shareeai Kumurumaabehey Gavaidh 2003 (version 6.0)
32 |
Regulations on Temporary Order & Measures of the Civil Court
1. The Court, on advice of the Chief Judge, shall issue temporary orders
and measures prayed for by parties to a claim provided such application is submitted by a party to the claim.
2. The Order or measure enumerated under subsection (1) herein may continue to remain in force until such time as may be directed by the
Court and is limited only by such time as when the final Judgment conclusive in the matter is issued. In matters where enforcement of he judgement is a foreseeable and probable difficulty, the Court, on advice
of the Chief Judge, may also extend the provisions of the temporary measure or order beyond Judgment until such time as the Judgment
may be enforced. 3. The Order or measure under subsection (1) herein may only be granted
where the Court is satisfied that acting otherwise would be to the
detriment of a party involved. 4. (a) The Civil Court may award temporary or preventive relief
against:
2. the defendant or respondent attempting to move the subject
matter out of the jurisdiction of the court.
3. the defendant or respondent attempting to tamper with the
subject matter so as to devalue or lessen the subject
matter. 4. apparent reasons to believe the final and conclusive
judgment to be frustrated.
5. The potential loss that may befall any party.
(b) The Court shall have discretion to order a bond to be placed as
surety against the party applying for temporary relief enumerated under subsection (1) herein. The party upon whom a temporary Order is issued may also apply to have the Order lifted
after placing a bond as surety against his actions. 5. (a) Either party to a claim may petition the Court to remove a
moveable or immoveable property from anyones possession and
place it under the charge of a Court-determined special Custodian until such time a final and conclusive Judgment may be reached
by the Court, provided there are reasons to believe that continued possession on part of such party may mean loss or damage to such
property. (b) In determining the special Court-appointed Custodian under
subsection (a) herein, the Court shall have due regard to the
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consensus of the parties and shall determine on the volition of the Court only if such consensus cannot be reached.
(c) In engaging the special Court appointed Custodian; the Court shall outline to him his duties, powers, rights, prerogatives and
duration of his engagement. The Custodian so appointed shall employ a special degree of care upon the property so entrusted and
shall diligently attend to its affairs. The Custodian shall produce to the Court proper accounts of all income and expenditure relevant to the property so entrusted. No substantive measure may
be taken by the Custodian upon the property unless with the permission of the Court except in cases of general administrative
matters. 6. Any party applying for temporary relief under these Regulations shall
do so in writing outlining the need and basis for such an Order. Upon application and upon satisfaction of the Court that all proper procedures have been met and provided the Court feels it is just and
equitable to do so, the Court shall issue the temporary Order immediately. Such Orders shall have its basis and duration included
therein as well.
As it would stand, the law is fairly accommodative of prayers towards temporary
relief. From a cursory reading it seems evident that the necessary elements are all
present3. In 2011, the High Court endorsed section 295 of the Rules of Court
Proceedings 2003 and decided the case of Zahir Adam v Guraidhoo Council4. The
case involves an application for enforcement of a Supreme Court decision issued
earlier5 which had declared that Zahir Adam enjoyed no rights to the land in
question where he had been running a Boat Yard, asking him to vacate it. The
Island Council applied to the islands Magistrate Court which decided that the
respondents property at the Yard was not to be cleared and that the respondents
were temporarily restrained from removing anything unless and until the arrears
had been cleared.
Zahir Adam, on the other hand, maintained all the while that the arrears were a
matter still in dispute and that without a proper Judgment as to the lawfulness of
3 Comparatively, American law dictates that to obtain a Temporary Restraining Order, a plaintiff
must prove four elements as per the case of Pappan Enters. v. Hardee's Food Sys, (1) likelihood of
success on the merits; (2) the extent to which the plaintiff is being irreparably harmed by the
defendant's conduct; (3) the extent to which the defendant will suffer irreparable harm if the TRO issues; and (4) the public interest. 143 F.3d 800, 803 (3d Cir. 1998). 4 2010/HCA/245 5 2010/SCA/22
34 |
the imposed charges, there was no legal duty upon him to pay the demanded
figure. In overturning the Court Order, the High Court observed the necessary
law that triggers a partys rights to temporary relief pending Judgment in a civil
matter.
“It can be established that even if a Judge has discretion in ordering
temporary relief in cases where unfair prejudice befalls a party, if such relief is not granted pending decision of the matter applied for, this
discretion is triggered as a preventive measure only if there is reasonable evidence suggesting:
i. a risk of the respondent absconding, or
ii. the respondent was attempting to destroy, wast-off or move money or property out of the jurisdiction of the Court, or
iii. any act that may amount to a material frustration of claim, or iv. lack of interim measure may mean irreparable damages to the
applicant”
The discussion herein talks of prevalent case law decided within the last two to
three years by the three tiers of Courts in the Maldives in addition to cases
comparatively cited from elsewhere. From the whole bundles of case law that
follows and with the cumulative reading of section 295 of the Court Procedure
Rules 2003, several principles can be derived. As it stands, the law on temporary
relief in the Maldives can be broken down as; awarded (i) only when just and
equitable to do so on the balance of convenience, for parties that exhibit a (ii)
more than prima facie claim, where the award of the temporary relief will not
amount to (iii) premature determination of the main application, and where (iv)
damages are not adequate remedy, and where issuance would not be (v)
unrealistic and futile, and may be (vi) issued ex parté and is (vii) enforced
separately. Each component will be discussed independently.
(i) Just and Equitable on the Balance of Convenience
As it has been pointed out before, temporary relief is very subjective in nature and
is specifically designed to overcome the injustices apparent in relation to a specific
case. Where it was just and equitable to do so, can only be seen from the reasons
of judgment.
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Several issues were decided by the Singapore Court of Appeal in deciding
Maldives Airports Co. Ltd. v GMR Malé International Airport Pte Ltd6. What is
important for our discussion at this point here is the establishment of the principle
which says that the court should exercise its discretion to grant the injunction as a
separate matter that must be assessed against the balance of convenience. The
Singapore Court relied on the 1975 authority of American Cynamid Co. Ltd. v
Ethicon7.
“The assessment is one which involves a balance of convenience. The essential principle is that because the court is asked to conduct this
balancing exercise at an early stage and based only on affidavit
evidence, it should take whichever course appears to carry the lower
risk of injustice if that course should ultimately turn out to have
been the “wrong” course, in the sense of an injunction having been granted when it should have been refused or an injunction having been
refused when it should have been granted8.”
How would one measure whether it was just and equitable to do so? In the Zahir
Adam and Guraidhoo Council string of decisions, one case established the
principle of issuing the justification of the decision, i.e. that the mere mention of
the reasons are not enough and that subsequent to materially proving the
existence of the contention, Judges are absolutely bound to even specify the legal
reasoning behind the grant of temporary relief9. This is reflective of the Australian
case law that warned Judges of empty reasoning and blind awards. This very
interesting point was pointed out by Judge Deane J in the 1985 decision of
Muchinski v Dodds10, wherein he deemed that in determining matters of equitable
relief, there should be no „indulgence of idiosyncratic notions of fairness and justice.
6 [2013]SGCA 16. Among them include whether the Maldivian state is immune under the Act of State doctrine or whether the Court of Appeal does in fact have substantial law jurisdiction over
the matter etc. These will be discussed in greater detail below. 7 [1975] AC 396 8 Citing Regina v Secretary of State for Transport, Ex parte Factortame Ltd and Others (No 2) [1991] 1
AC 603, 683. 9 Zahir Adam v Guraidhoo Council, 2011/HCA/84. See also section 295(6) Court Proceedings Rules
2003. 10 [1985] 160 CLR 583, 615.
36 |
(ii) More than Prima Facie claim
The most paramount of the local decisions on temporary relief comes from the
Supreme Court decision in the case of Nexbis Ltd. v Anti-Corruption Commission11
dated 27 August 2012. The Anti-Corruption Commission had issued a directive
upon the Department of Immigration and Emigration on 24 January 2010 under
which the Department was required to cease all activities under the Maldives
Immigration Border Control System (MIBCS) project made way under the
Concession Agreement signed between the Government and the Petitioner. The
directive also required a re-tender in line with the revised R.F.P. dictated by the
National Planning Council or the Cabinet of Ministers. When the Department
failed to comply, the ACC sought the Courts intervention in the matter. The
Civil Court dismissed the claim on several grounds including the directive was
both ultra vires and pre-mature12. The Commission filed the appeal and asked for an
interim order temporarily restraining the respondent in carrying out any works in
furtherance to the MIBCS project until the High Court awards its final judgment.
The Court obliged on 16 July 2012 with their Order No.: (OTHR)95-
B2/94/2012/1, and the Third Party Intervener at both the Civil Court and the
High Court, Nexbis Ltd., Australia sought the appeal of the same, in turn, at the
Supreme Court. In their Judgment, the unanimous bench of the Supreme Court
highlighted that:
“While it can be ascertained that the Order (in question) was intended by the High Court as temporary relief against irreparable loss until such time as a permanent order and eventual judicial endorsement can be
attained in the High Court matter no.: 105/HC-A/2012, the discretionary prerogative of the Court in such matters of temporary
relief is never an unlimited power and there are general conditions to fulfill before such temporary injunctions may be granted by a Court.
They are: a) There is a clear possibility of a compromise of the applicants
material right or lawful privilege (fumis boni juris -
presumption of sufficient legal basis). It can only be established that there is such a legal rule that protects such
material right or lawful privilege in addition to the
11 21/SCA/2011 12 Per Judge Ali Rasheed, Anti-Corruption Commision v Department of Immigration & Emigration,
2158/Cv-C/2011.
| 37
satisfaction of the Court that there exists sufficient facts that forms the basis of such possibility.
b) There is a risk that stems from the possibility of the time taken to complete the trial (periculum in mora). This means
that the time taken ordinarily for such proceedings would mean irreparable harm or loss to the applicant.
c) The applicant fulfills the necessary locus standi.”
In determining the case the Court pointed out that the Commissions claim was
without sufficient legal basis. This requires a level of evidence and proof that is more
than prima facie. Temporary relief is awarded almost always at the onset of the
case. At this point in the proceedings, the plaintiff is not required to provide
sufficient basis of the claim. Under normal circumstances, a prima facie claim
would have been enough. What the Court had decided essentially is that the
matter has to be convincing enough and that the matter to be proved more than
prima facie. The Supreme Court notes that;
“the lawful grounds requiring compliance (by the Department of
Immigration) is non-existent as there are no legal principles that allow the Anti-Corruption Commission the right to force such directives
upon state institutions or offices. Therefore, and because there can be no legal principle that protects the material right that forms the subject
matter of the aforementioned Appeal before the High Court, there is no legal basis for temporary relief therein”
In the recent High Court decision of Apollo Holdings Pvt. Ltd. v Maldives Customs
Service13, reference was made by the Court on the earlier cited Nexbis decision.
The important point to note here is that the requirement of more than prima facie
claim in this particular case was determined to have not been satisfied.
The facts were that the company had filed suit at the Civil Court for a
determination that the companys arrears in customs duties were a liability of a
third party company who is owned by one of the directors at the applicant
companys Board. Within the claim, the applicants sought a temporary order
restraining the Customs Service in implementing measures against outstanding
and long over-due customs duties.
13 2013/HCA/160
38 |
The Civil Court refused to grant the injunction on the basis that there was no
evidence of a claim being lodged by the Company against one of their directors
alleging secret profits and breach of fiduciary duties. In the absence of a Court
order or judgment deciding that the director and his syphoning company are to be
held responsible, the Court was unsatisfied that there was a more than prima facie
claim in this particular case.
(iii) Without Prejudice to the Main Claim
In determining that there is a more than prima facie claim, the Court has to be
careful as not to tread on the ambit of the final and penultimate judgment. This is
to say that the temporary relief prayed for therein has to be materially different
from the prayers pleaded in the original application. If the distinction cannot be
made, the Court runs the risk of a pre-mature judgment. On this note in the
Nexbis Appeal cited above, the Supreme Court points out that;
“One of the most important considerations in granting temporary relief is that such relief shall always be without prejudice to the
material right or lawful privilege that forms the subject matter of the application proper. No Court has the authority to negate or validate any such right or privilege at the very beginning. Otherwise it amounts
to prematurely awarding the permanent relief prayed for.”
In the matter of Maldives Tourism Development Corporation Ltd. v Ministry of
Toursim14, Judge Abdulla Ali refused to grant an injunction asking for a
deferment in paying the Corporations obligations in the form of head lease
payments, pending Judgment of the disputes raised subsequent to the Tourism
Amendment Act 2010. Under the Amendment, the mode of calculating the
Tourism land tax was revised creating a much higher land tax that was payable to
the Ministry of Tourism than those projected when the head leases of six different
islands were signed with the company. The application asked that the payment of
head lease be deferred until such time as a conclusive judgment may be heard in
the application proper. Judge Abdulla Alis refusal were on the grounds that (i)
lease payments constituting discrepancies or disputes therein are financial in
nature and thus are „measurable and determinable without doubt and reparable with
compensation, i.e. damages were adequate, and (ii) that the application was similar
14 Order BCR-8/2012/02 in case No.: 2490/CvC/2010.
| 39
to the prayers in the main petition, which meant that determination then would
have amounted to prematurely deciding the main dispute.
(iv) Unrealistic & Futile Orders
The Singapore Court of Appeals 6 December 2012 decision in Maldives Airports
Co. Ltd. v GMR Malé International Airport Pte Ltd15 is also very important to note
here. The case has to be appreciated to have settled the matter on the realistic
scope of the temporary relief sought for and its futility.
The case was an appeal from the decision of the High Court wherein an interim
injunction was granted to restrain the appellants, Maldives Airports Company
Limited and the Government of the Republic of the Maldives from interfering
with the performance of their obligations under a concession agreement entered
into on 28 June 2010.
The facts were that the Concession Agreement was entered into between the
Appellants and a consortium under which the latter was granted a concession of
25 years to develop and maintain Malé International Airport. A series of events
took place after the Concession Agreement was entered into. First, an action was
brought before the Civil Court for a declaration that cl. 2(a) and 2(b)16, Annex 10
of the Concession Agreement was contrary to the Airport Service Charge Act
1978. Having heard the matter in December 2011, the Civil Court upheld the
petition. The long sequence of events that unfolded afterwards led, unfortunately,
towards the commencement of arbitral proceedings by the parties involved. GMR
applied to the Singapore High Court restraining the Maldivian Government and
MACL from taking possession of the Airport. Faced with the imminent prospect
of the Concession Agreement being terminated prematurely and the Airport being
taken over by the Appellants, the Respondent sought an injunction from the
Singapore High Court which was subsequently granted. The matter before the
Court of Appeal was on the legal merits of this temporary order issued unless and
until a final and conclusive decision may be reached by the Arbitral tribunal.
What the applicants sought essentially was to restrain the Appellants and their
directors, officers, servants or agents from taking any step to:
15 [2013]SGCA 16 16 Which allowed the Respondent to impose a U$ 27.oo fee on departing passengers
40 |
a) “interfere either directly or indirectly with the performance by the Respondent of its obligations under the Concession Agreement;
and b) take possession and/or control of the Airport or its facilities
pending further order by the Singapore court or an arbitral tribunal constituted to resolve the dispute.”
The High Courts basis in granting the application was found under on sub-para
(a) above. No order was made in the terms of (b) although in their Judgment the
Court of Appeal did point out that “it might well be said that it would not have been
possible for the Appellants to do any of the acts under (b) without thereby also doing the acts
under (a), contrary to the terms of the Injunction”. Importantly though, the Court
refused to uphold the injunction on the basis that the application was of
unrealistic scope and that the temporary relief sought for was futile. No