At the time that the marriage was contracted, the wife, though capable of giving a valid Consent, was, whether continuously or intermittently, a mentally disordered person within the meaning of the Mental Disorders Ordinance, 1952; and her mental disorder was of such a kind or to such extent as to render her unfit for marriage; any other grounds are recognized as valid for** khula in Pakistan** or fasakh under Hukum Syara'.Under S. 126, the husband's willful refusal to co-habit after a court order makes him liable to a fine of RM 500 and/or imprisonment of up to 6 months.
Under S. 53-58 of the Moudawana, the wife can access judicial divorce (talaq) on the grounds of Non-payment of maintenance (if the husband proves his inability to pay, he is granted up to 3 more months to provide maintenance) (a faskh on this grounds is revocable by the husband); Defect (mental or physical and that is incurable or only curable after more than 1 year), no matter whether the defect occurred at the time of marriage or later, provided that the wife did not explicitly or implicitly accept the defect (divorce may be deferred for 1 year in the hope of a cure) (a faskh on this grounds is irrevocable); Harm making it impossible to continue married life (arbitration may be ordered) just like Khula in Pakistan. A husband's absence, without a valid reason for more than 1 year (where the husband can be contacted a further period may be allowed by the judge); Ila, allowing the wife to apply for dissolution. A time period of 4 months is set. If the husband does not comply, the judge grants a revocable divorce.
The Wife can Institute Dissolution on the Following Grounds: The husband fails to maintain the wife (e.g., provide shelter, food, medical expenses, and clothing).In Yahaya v Adamu Salisu, the wife called witnesses to prove a lack of provision of food or adequate medical care. The Sharia Court of Appeal, Kano, affirmed the divorce. There is a manifest defect in the husband (either mental or physical disability). If the wife knew of the defect before the marriage but remained silent, she cannot access this ground. If the complaint is impotence or insanity, the case may be adjourned for 1 year. Failure to provide sexual satisfaction by a husband will be a ground for khula in Pakistan and other countries. In Modu Fugurambe v Amina Alirambe, the wife complained to Lamisula Area Court II Maiduguri that her husband was 'not her match sexually. She swore on the Holy Qur'an that her complaint was true and the marriage was dissolved.
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The husband is absent for a long period (desertion). For example, Aisha Umar complained to Area Court 1 Sokoto that her husband had left her for 2 years and 3 months. She produced Witnesses and was granted a divorce. The husband obstructs the wife's fulfillment of her religious obligations (i.e., refuses to permit her to go on pilgrimage); Lian, zihar, and ila' are recognized but seldom used. Injury or discord between the wife and husband, for instance, Luba Mamman complained to the area Court, Sokoto that her husband often verbally abused her father and accused her of committing adultery. The husband, Tukur Ibrahim, protested against the divorce. The Sharia Court of Appeal ruled that the wife could have a divorce. In Hadiza v Lawal Aminu, the wife sued for khula in Pakistan on the grounds of cruelty and destruction of property, and the family Court Zaria granted the divorce. For details contact Advocate Nazia on familycaselawyer.com
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