ENACTMENT No. 1 Of 1984 ISLAMIC FAMILY ENACTMENT 1979
PART V - DISSOLUTION OF MARRIAGE
Section 40. Divorce by talak, order or shiqaq.
(1) A spouse intending to divorce shall file an application for divorce in Court in the form provided and be accompanied with an affidavit which shall contain the following-
(a) details of the marriage between the parties and names, age and sex of the children if any, of the marriage;
(b) details of facts that give rise to the jurisdiction of the Court;
(c) details of any previous proceedings between the spouses, if any;
(d) the grounds for the divorce;
(e) statements relating to any steps taken to reach a settlement, if any;
(f) any agreement relating to maintenance for the wife or children, if any, from the marriage, provisions as regards control and custody of the children, and a division of any property acquired through the joint effort of the parties or if there is no agreement, any proposal by the spouse relating the aforesaid; and
(g) details of the order applied for.
(2) On receipt of the application the Court shall cause a summons to be served on the other spouse together with a copy of the application and affidavit filed by the applicant and the summons shall require the other spouse to attend Court so as to enable the Court to investigate whether the other spouse agrees or does not agree to this divorce.
(3) If the other spouse agrees to the divorce and the Court is satisfied after due investigation that shiqaq has occured the Court shall advise the husband to pronounce one talak in its presence.
(4) If the husband pronounces one talak the Court shall record it in the certificate and subsequently forward a certified copy of that record to the relevant Registrar and Chief Registrar for registration.
(5) A talak rajii pronounced by a husband unless revoked earlier, either expressly or constructively, or by an order of Court, shall not operate to dissolve the marriage until the expiry of the iddah period.
(6) If the wife is pregnant at the time of the pronouncement of the talak or when the order was made, the talak or order shall not operate to dissolve the marriage until after the confinement period.
(7) Nothing in this section shall prohibit a wife whose marriage has been terminated by the talak operative under this section from marrying again with the same
husband without having to undergo a prior marriage with another person, unless the termination is one after the pronouncement of the third talak.
(8) If the husband pronounces a talak on his wife whom he has not consummated the talak shall operate immediately after the pronouncement.
(9) (i) If the Court is unable to advise the parties to reach a peaceful settlement or is satisfied that shiqaq is ever present between the parties to the said marriage, the Court may appoint according to Hukum Syarak two hakams to act for the husband and wife respectively. In making the appointment the Court shall, if possible give priority to the close relatives of both parties who have knowledge of the circumstances of the case.
(ii) The Court may give directions to the hakam as to the manner in which they should conduct suloh and the hakam shall conduct the suluh as directed and in
accordance with Hukum Syarak. If the hakams do not agree or if the Court is not satisfied with the manner the hakams had conducted the suloh the Court may dismiss the hakams and appoint another two hakams once again to replace the two dismissed.
(iii) The appointment of the hakams for the second time shall be made regardless whether the husband or wife agree or disagree with that appointments.
(iv) The hakams appointed for the first time shall endeavour to solicit full authority from their principals separately-
(a) if the hakam is representing the husband the authority to pronounce talak or accept the redemption; and
(b) if the hakam is representing the wife the authority
to accept the talak or pay the redemption,
and whatever step taken shall be made in the presence of the Court who shall record the step taken accordingly and transmit a certified copy of the record to the relevant Registrar and to the Chief Registrar to be registered.
(v) When a hakam reports that a divorce by talak or redemption ,has been agreed upon, the hakam shall transmit the matter to the Court and the Court shall record the matter accordingly.
(vi) If the hakams report that the parties should be divorced but are unable to order a divorce because the suloh has failed, the Court shall order a divorce in the form of one talak only and record such order.
(10) No person or an advocate and solicitor shall, without the consent of the hakam be allowed to represent any of the parties in any suloh in the presence
of the hakam except a close member of the family of the parties.