A pronouncement of three talak can be deemed invalid for irrevocable divorce if made in anger or without clear understanding of its implications, emphasizing the need for intention.

JUDGMENT

Guy Ghazali:

Introduction

[1] The parties first appeared before this Court on 5 October 2020 for revocation of divorce as they wished to reconcile (rujuk).

[2] In the Case Statement filed by the plaintiff-husband ("the Husband"), the Husband stated that talak was pronounced on 16 August 2020 and the words used by him were "Aku ceraikan kau dengan talak tiga " ("I divorce you with three talak").

[3] At the hearing on 5 October 2020 ("the Intention to Rujuk Hearing"), the Husband took the stand and gave evidence. Among other things, it was the Husband's oral testimony that:

(a) He pronounced talak on the defendant-wife ("the Wife") on 16 August 2020.

(b) This was the first time that talak was pronounced on the Wife.

(c) The talak was pronounced verbally.

(d) The words uttered were "Aku ceraikan kau dengan talak tiga".

(e) He pronounced the talak as he was angry that the Wife had asked him to pronounce divorce in the presence of his mother.

(f) When asked why he had specifically used the words "talak tiga" (three talak), it was his evidence that while he knew he could pronounce one, two or three talak, he did not know the effect of the different pronouncements.

[4] Having considered the evidence, the Court was not satisfied that this was a proper case for rujuk. Consequently, the Court directed that the parties attend a pre-trial conference for them to take further directions in the matter.

[5] The Husband filed his Affidavit of Evidence-in-Chief ("AEIC") on 7 December 2020. In the Husband's AEIC, the Husband confirmed that he verbally pronounced three talak on the Wife on 16 August 2020. However, he sought to explain as follows:

... [0]n the 16 August 2020, at about 1 am, we [sic] having an argument on something and I was having a bad day and I was in a bad mood. My wife showed up at my mom's house and she triggered me by saying 'If you are not happy with me, tell your mother than u [sic] cannot be with me anymore'. It accumulated with the problems I was facing at work. My anger took over me and without thinking I accidentally divorced my wife at [sic] Talak 3 without any intention.

[6] The parties appeared before this Court again for hearing of this matter on 15 December 2020. At the said hearing, the parties maintained their position that they wished to reconcile and have the divorce revoked. In determining the matter, the Court considered the Husband's Case Statement, the Husband's AEIC and the Husband's oral testimony at the Intention to Rujuk Hearing.

[7] Having considered the above evidence, the Court confirmed the pronouncement of talak on 16 August 2020 as three talak bain kubra and ordered that the divorce be registered. As the Court made a decree of talak bain (irrevocable divorce), the Court made no order for nafkah iddah. [See also AM v. AN [2012] 6 SSAR 202 at [18], where the Appeal Board stated:"... [A]s we have made a finding that the divorce is a three-talak divorce, the wife is not entitled to the payment of iddah."] As for the other claims, the Wife waived mutaah and made no claim for matrimonial assets. In this regard, it is also noted that the parues do not hold any asset in joint NAMEs. In the circumstances, the Court ordered for the parues to retain assets in their respective NAMEs.

[8] Both parties have now filed an appeal against the Decree dated 15 December 2020. Their appeal is specifically in respect of the confirmadon of the pronouncement of talak on 16 August 2020 as three talak bain kubra.

The Pronouncement Of Three Talak

[9] It is enjoined in the Holy Quran (Surah 2, Al Baqarah, verse 229): "Divorce is twice; then either retain (her) in an equitable manner or release (her) with kindness...". And Surah 2, Al Baqarah, verse 230:

Then if he divorces her (a third ume), she shall not be lawful for him thereafter unless she marries another husband. If he (the other husband) divorces her, then there is no sin on them in returning to each other, if they think they can maintain the limits set by Allah. These are the