• the-validity-of-ruju

    THE VALIDITY OF RUJU’ BY RESUMING SEXUAL INTERCOURSE & THE REFUSAL OF WIFE’S CONSENT TO RECONCILE

    QUESTION REGARDING THE VALIDITY OF RUJU’: I am Harith Shah Aqlan from Kerinchi, Kuala Lumpur. I have a question with regards to the validity of ruju’ that I made to my wife. I have pronounced one talaq outside the Court to my wife on January this year and the Court had validated and confirmed the said talaq. After a month from the date of pronouncement of talaq, I have resumed cohabitation with my wife without expressly uttering the word ruju’. I would like to know whether the said ruju’ is valid, and would the consequence remains the same if my wife refuses to consent to the said ruju’? Wassalam, thank you.

     

    ANSWER:

    Wa’alaikumussalam. Thank you for the questions Mr. Harith. We would try our level best to attend to your queries. It is important to bear in mind that the issue of ruju’ or reconciliation in marriage should not be taken lightly as the misconceptions of it might lead to serious consequences. Before we provide the general concepts of ruju’, it is best for us to firstly determine the underlying issue(s) in this case, which are:

    • Whether resuming cohabitation is a valid ruju’ based on hukum syara’
    • Whether the refusal of consent of the wife to ruju’ affects the validity of ruju’?

    There are several verses in the Holy Qur’an pertaining to ruju’. In Surah At-Talaq, Allah says in verse 2 which goes:

    Then when they are about to fulfil their term appointed, either take them back in a good manner

    In another Surah of the Qur’an, Allah says to the effect:

    الطَّلاَقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ

    Then when they are about to fulfil their term appointed, either take them back in a good manner or part with them in a good manner.”Al-Baqarah: 229

    The wordings in the above two verses which state “when they are about to fulfil their term appointed” signify that ruju’ or reconciliation of marriage is only permitted during the time of ‘iddah.

    According to The Oxford Dictionary of Islam, ‘iddah is defined as “The waiting period a woman must observe after the death of her spouse or a divorce, during which she may not remarry, based on the Quran 2:228 and 2:238 . The waiting period after a divorce is three months, and after the death of a spouse it is four months and ten days. Any pregnancy discovered during this period is assumed to be the responsibility of the former husband.

    And according to Taqiy al-Din Abi Bakr bin Muhammad al-Husayni (2001), ruju’ can only be made upon “a wife who has been consummated, and has been divorced with one or two talaq, without accepting any payment (khulu’) and must be made during the time of ‘iddah”. This is cited in an article entitled Rujuk: Peruntukan Undang-undang dan Pelaksanaannya di Malaysia by Raihanah Abdullah and Zulzaidi Mahmod.

    This means, ruju’ can only be made when a woman is divorced with a talaq raj’i (revocable divorce), whereas, ruju’ cannot be made upon a wife who has been divorced with talaq ba’in (irrevocable divorce) as an irrevocable divorce requires a new ‘aqad (marriage contract). Having understood the general concepts of ruju’, let us proceed with the issues.

     

    WHETHER RESUMING COHABITATION IS A VALID RUJU’ BASED ON HUKUM SYARA’

    In answering this issue, we have to firstly determine the position of the wife when the “ruju’” (resuming cohabitation) was made. Construing the facts of the present case, the “ruju’” was made a month after the wife was divorced with one talaq. This means, the wife was still in her ‘iddah period as an ‘iddah period for a divorced woman is three periods of purity equivalent to approximately three months for a woman with a normal menstrual cycle. A reconciliation is thus can be made as the talaq was a talaq raj’i (revocable divorce) and the wife was still in her ‘iddah period.

    The question is thus, not whether a ruju’ can be made upon the wife, but, whether the so-called “ruju’” which was made by the act of the husband, i.e. resuming cohabitation with the wife, was a valid one. It would be of significance for us to know the rukun (pillars) of ruju’, and whether all the pillars are fulfilled.

    A Kuala Terengganu case of Abdullah Fuad bin Mamat v Maliza bt Awang [2013] 1 SHLR 76 had elucidated about the pillars of ruju’ rather clearly by referring to Kitab Mughni al-Muhtaj, Volume 5, page 2. The three pillars of ruju’ are: “…the husband, the pronouncement used and the wife (former wife in the period of ‘iddah)”.

    The kitab further elaborated on the first pillar of ruju’ by stating: “… the conditions of the husband who wishes to reconcile are the same as the conditions to marry, which are: a person who has attained the age of maturity (baligh), of sound mind, done willfully (not coerced nor under duress), not a murtad…”

    Thus, in order to satisfy the requirements of the first pillar of ruju’, as the husband, you must ensure that all of these conditions are met during the act of reconciliation. 

    Moving on to the second pillar of ruju’ which is the pronouncement used. What is interesting in this present case is that, there is no mention of any form of pronouncement (verbal) of ruju’ being made. Nevertheless, the “ruju’” was made through an act of resuming cohabitation. Therefore, we have to determine whether resuming cohabitation with the divorced wife (talaq raj’i) during her period of ‘iddah, would constitute a valid form of ruju’. 

    The case of Norshinah bte Kamaridun v Baharuddin bin Othman [2005] 4 SHLR 158 would be of good reference as this case also discusses on the validity of ruju’ by way of resuming cohabitation. This case referred to Kitab Mughni Muhtaj, Volume 5, at page 6, which states: “There would be no ruju’ by way of sexual intercourse.” Nevertheless, there are actually differences of opinions of the four madhahib with regards to this matter.

    According to Raihanah Abdullah and Zulzaidi Mahmod (2010) in their article entitled Rujuk: Peruntukan Undang-undang dan Pelaksanaannya di Malaysia, the Shafi’i madzhab only acknowledges a reconciliation (ruju’) by way of pronouncement (verbal) and does not ratify reconciliation by way of conduct, and that would include reconciliation by resuming cohabitation.

    On the other hand, the writers continued to write that some of the Hanbali, Maliki and Hanafi sects accede to reconciliation by way of conduct. Meanwhile, Kitab Hashiah I’anat al-Talibun, Volume 4, page 34 states that Imam Abu Hanifah opines that sexual intercourse as an invalid form of reconciliation of marriage. This is quoted in the aforementioned case of Norshinah bte Kamaridun v Baharuddin bin Othman [2005] 4 SHLR 158.

    The question here is therefore, what is the position here in Malaysia, considering that the official madzhab of our country is the Shafi’i madzhab as emphasised by the then Director-General of JAKIM; Dato’ Haji Othman Mustapha in an article on JAKIM’s website in 2014. The definition of hukum syara’ needs to firstly be clarified. Since the inquirer resides in Kuala Lumpur, the interpretation section of the Islamic Family Law (Federal Territory) Act 1984 may be cross –referred. 

    Section 2 of the Act defines hukum syara’ as “Islamic Law according to any recognized Mazhab”. From this definition, it can simply be understood that the opinions of all the four major madzhab would be acceptable. Nevertheless, based on the case of Norshinah bte Kamaridun v Baharuddin bin Othman [2005] 4 SHLR 158 and the case of Norhasnizar bt Yusoff v Sazli bin Yeop [2009] 2 SHLR 185, the approach of the Courts has been to follow the opinion of the Shafi’i sect, first. Only if the opinion of the Shafi’i madzhab runs in contrary with the public policy would the opinions of other sects be referred to.

    Thus, applying the Shafi’i madzhab, reconciliation of marriage by way of resuming cohabitation with the divorced wife would not constitute a valid ruju’, regardless if the conjugal relation is accompanied with intention (niyyah) or not. This is in line with the decision by the then Syariah Subordinate Chief Judge; Tuan Mawardi Che Man in Norhasnizars case mentioned above.

     

    WHETHER THE REFUSAL OF CONSENT OF THE WIFE TO RUJU’ AFFECTS THE VALIDITY OF RUJU’

    As discussed in the foregoing paragraphs, the pillars of ruju’ do not include the consent of the wife i.e. the person with whom the husband wishes to reconcile with. The issue of refusal of consent of the wife in the context of ruju’ has been discussed in the case of Abdullah Fuad bin Mamat v Maliza bt Awang [2013] 1 SHLR 76. 68]. In this case, the Court had referred to Kitab al-Fiqh al-Islami wa Adillatuhu written by Dr Wahbah al-Zuhaili which states that the consent of the wife is not required to reconcile.

    Despite that, in order to provide remedy for a wife who refuses to consent upon the ruju’ with valid reasons according to hukum syara’, the drafters of the legislation have foreseen such an event by providing Section 51(9) in the Islamic Family Law (Federal Territory) Act 1984 which states: “If after a revocable divorce the husband pronounces a ruju’ but the wife has not consented to the ruju’ for reasons allowed by Hukum Syara’, she shall not be ordered by the Court to resume conjugal relations, but the Court shall appoint a conciliatory committee as provided under section 47 and that section shall apply accordingly.

     

    CONCLUSION:

    In conclusion, with regards to the first issue, despite the “reconciliation” by way of resuming cohabitation was made during the period of ‘iddah, the “ruju’ would not be a valid one. This is in lieu of the Malaysian Syariah Courts’ inclination to follow the Shafi’i madzhab regarding this matter, whereby the Shafi’i madzhab does not accede to ruju’ by way of conduct.

    On the other hand, with regards to the second issue, a wife’s refusal of consent would not affect a reconciliation made by a husband. Nevertheless, in this case, since the ruju’ by way of the husband resuming cohabitation with the wife without any form of pronouncement does not constitute a valid ruju’, whether the wife consents or does not consent to the ruju’ would be of no significance in this present case.

    Even if there is a valid ruju’, a wife’s refusal of consent towards the ruju’ would not affect the validity of the reconciliation of marriage. Nevertheless, if the wife refuses to reconcile to the marriage with valid reasons in accordance with hukum syara’, applying Section 51(9) of the Islamic Family Law (Federal Territory) Act 1984, the Court would not order the wife to proceed with ruju’, but the Court shall appoint a conciliatory committee as provided under Section 47 of the Act and that Section would apply accordingly. Wallahu a’lam. Thank you.