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According to Taqiy al-Din Abi Bakr bin Muhammad al-Husayni (2001), ruju can be made only on "a wife who was consummated and divorced with one or two talaqs, without approval of any payment (khulu') and must be made during the' iddah' era." This is quoted by Raihanah Abdullah and Zulzaidi Mahmod in an article entitled Rujuk: Peruntukan Undangundang dan Pelaksanaannya di Malaysia.

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).

There are few verses in the Holy Qur’an pertaining to ruju’. In Surah At-Talaq, Allah mentioned in verse 2 which goes: “Then when they are about to fulfill their term appointed, either take them back in a good manner”. Meanwhile, in another Surah of the Qur’an, Allah says to the effect:

َ ٌ ‫فإإ ْم َس‬ َ ‫الط َل ُق َم َرتإَان‬ ‫يح إبإإ ْح َسا ٍن‬ ٍ ‫اك إبمَ ْع ُر‬ ٌ ‫َس إر‬ ْ ‫وف أَ ْو ت‬

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

The above two verses clearly stated that “when they are about to fulfil their term appointed “signify that ruju’ or reconciliation of marriage is only permitted during the time of ‘iddah. Based from The Oxford Dictionary of Islam, ‘iddah’ can be interpreted as “The waiting period a woman must observe after the death of her spouse or a divorce, during which she may not remarry, this is according to the Quran 2:228 and 2:238.

ْ ‫الَ والْيَْوم‬ َُ ‫ك ُت ْم َن مَ ا َخلَ َق‬ ْ ‫ُن أَن َي‬ ُ ‫ال فإي أَ ْر َحا إم إه َن إإن‬ ُ ‫َص ََننبإأ‬ ‫إن بإ َإ‬ ‫ال إخ إر ۚ وَُبُعولَُت ُه َن‬ ْ ‫ك َن ي‬ َ ‫ف إس إه َن َثَل َثةقُ ُرو ٍء ۚ َو َل َي إحّللَه‬ َ ‫ُؤم‬ ْ ‫َ والْ َُم َطلق َُات يَت ََرب‬ ‫إ‬ َ‫ُن مُْإثلال َذإيَ ع‬ َ ‫أَ َح ّق بإ َر ّد هَإن فإي َٰ ذل‬ َ ‫إك إإ ْن أَ َرادُوا إإ ْصَل ًح ا ۚ َولَه‬ ‫ليْ إه َنإ بالْ َم ْع ُر إ‬ ّ ‫وفَ ۚلو‬ ٌ‫َر َج ٌة ۗ َوالَُ َع إزي ٌز َحكإيم‬ َ ‫لَ علَي إْه َن د‬ ‫إلر َجا إ‬

ُ ‫َ احف‬ َ ‫الص‬ ‫ل َاقنإتإي َن‬ ‫س َط ٰىَوقُ ُوموا إَإ‬ ‫إظ وا ََعل‬ ‫الصَ إ‬ ْ ‫ل ةالْ ُو‬ َ ‫لو َ إات َو‬ َ ‫ى‬

The waiting period after a divorce is three months and after the death of a spouse is four months and ten days. Any pregnancy discovered during this period is assumed to be the responsibility of the former husband.”

In Malaysia, the law that governs reconciliation is stated in IFLA 1984 under Section 1

47(5) stipulates that the conciliatory committee shall be named and s 48 stipulates that Hakam shall be appointed. The rules laid down in the IFLA 1984 for settling disputes in family matters are the guidelines. The clause in compliance with Section 48 relates to the advice of the Quran that the arbitration process should be followed in the case of marital disputes. Neither the Quran nor the Sunnah shall signify the appointment of the conciliatory panel. Nonetheless, because of the need to have a committee which can further examine the causes of the dispute between the parties, it can be defended based on al-Siyasah alShariyyah. First, there are many similar provisions in Articles 47(5) to (17) and 48. For example, the appointments of the conciliatory committee and the appointment of relatives of the parties,the conciliatory committee and the Hakam must conduct the conciliation procedure in accordance with the instructions of the court27 and the court has the authority to remove the conciliatory committee and the Hakam should be unsuccessful in their efforts as directed. It seems that the appointments of the conciliatory committee and the Hakam have the power to remove the conciliatory committee.

Conversely, s 47 (5) refers to cases where an application for divorce is lodged either by a husband or a spouse, and there is a reasonable possibility of reconciliation, while s 48 applies to cases where Shiqaq (marital discord) between the parties exists. It is therefore for the court to examine whether there is shiqaq (marital discord) in marriage, whether there is a chance of reconciliation between the parties, and whether steps have been taken to bring about reconciliation. The inquiry is necessary for the court to decide whether to apply s 47(5) or s 48.29 However, there is no specific guidance to assist the court in determining which section to apply.

1 ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT 1984

Thirdly, in paragraph 47, the conciliation committee has the power to settle differences between the parties as far as possible and to report the result to the tribunal. In s 48, on the other hand, Hakam has two authorities:

(1) If it is approved by the parties, the Hakams the order a divorce or a Khulu.

(2) If the Hakams are not allowed, they shall report to the court and the court shall appoint other Hakams in their place and give them the power to order a divorce.

It is noticed from that above that the two clauses can work in sections in a similar way at least. The main difference between the two clauses is that the hakams are allowed to order the parties to divorce or khulu, contrary to the conciliation board.

Registration of the Ruju’

Federal Territory Islamic Religious Department (JAWI) JAWI manages the Ruju process for a couple who are still in the Iddah period, while for a spouse who has expired Iddah to receive a Ruju confirmation from the Federal Territory of the Syariah Court.2

For the Ruju process in JAWI, couples need to bring the following documents; Divorce order / judgment from the Federal Territory of the Syariah Courts Application form ruju.' For the application of the Ruju ' registration, the spouse must submit the following documents; Ruju ' order / judgment from the Federal Territory of the Syariah Courts Application form for registration of Ruju.'

Application of Ruju Registration 'at the Selangor Islamic Religious Department (JAIS)

2 Ruju' Registration. (n.d.). Retrieved November 10, 2019, from https://malaysia.gov.my/portal/subcategory/1612.

The husband and wife who have left the talaq raj'i and intend to restore marriage and union during the iddah era shall make a reference to the PAID and the husband to be recited before the Registrar.

A husband who has access to his wife and does not make a statement in the presence of the Registrar shall be present at the PAID in which he lives to validate the bench.

Responsibility of Applicants.

1. The claimant must complete the Electronic Registration Application Form electronic or manually (if offline) on the NCR Electronically Platform.

2. The claimant shall submit the following forms and documentation to PAID: a. Print of the Identification Card / Passport of the partner (if foreign) b. Certificate for Divorce (DC) 3. Please make a payment of RM10.00.

4. Bring DC to PAID after 5 working days from the date of registration. If, on behalf of the claimant who is present to take the DC, the official letter and photocopy of the identity card of the applicant and the representative are attached.

The validity of ruju’ by resuming sexual intercourse and the refusal of wife’s consent to reconcile

There are two (2) underlying issues regarding ruju’ that normally happened in Malaysia which are: 1.

Whether resuming cohabitation is a valid ruju’ based on humum syara’?

2.

Whether the refusal of consent of the wife to ruju’ affects the validity of ruju’?

First issue: Whether resuming cohabitation is a valid ruju’ based on hukum syara’

First and foremost, the position of the wife when the ‘ruju’ (resuming cohabitation) was made. With regards to the present fact of the case that the ‘ruju’ was made a month after the spouse was still in her ‘iddah’ period as an ‘iddah period for divorced woman is three periods of purity which equivalents to nearly three months for a woman with a normal menstrual cycle. A reconciliation can be made as the talaq was a talaq raj’I (revocable divorce) and the spouse was still in her ‘iddah’ period.

The question is thus, whether the so-called ‘ruju’ which was made by the husband’s act which is resuming cohabitation with the wife was a valid one. Therefore, it is very important to acknowledge the pillars (rukun) of reconciliation in order to determine whether all of the pillars are fulfilled. The pillars of reconciliation had been clearly highlighted in a Kuala Terengganu case of Abdullah Fuad bin Mamat v Maliza bt Awang3 by referring to Kitab Mughni al-Muhtaj, volume 5 page 2. The three pillars of reconciliation or ruju’ are: a)

The Husband

b)

The pronouncement used

c)

The wife (former wife in the period of ‘iddah’

The kitab further explained on the first pillar of reconciliation 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 a sound mind, done willfully (not coerced nor under duress), not a murtad..” Hence, the husband must make sure that all of these conditions are met during the act of reconciliation as to fulfill the requirements of the first pillar of reconciliation.

The second pillar of reconciliation is the pronouncement used. In this present case, there is undefined of any form of pronouncement (verbal) of reconciliation being made. After considering all matters, the reconciliation was made through an act of resuming cohabitation.

3 [2013] 1 SHLR 76

Hence, decisions have to be made whether resuming cohabitation with the divorced wife (talaq raj’i) during her period of iddah would constitute a valid form of reconciliation.

In the case of Norshinah Bte Kamaridun v Baharuddin bin Othman4 has further discussed the validity of reconciliation by way of resuming cohabitation. Referring to Kitab Mughni Muhtaj, Volume 5, page 6 stated that ‘There would be no reconciliation or ruju’ by way of sexual intercourse.’ Nevertheless, contrast of opinions of the four madhahib in regards to this matter.

As indicated by Raihanah Abdullah and Zulzaidi Mahmod (2010) 5 in their article entitled Peruntukan Undang-undang dan Pelaksanaannya di Malaysia, the Shafi’I madzhab only recognized a reconciliation (ruju’) by method of declaration (verbal) and does not ratify reconciliation by way of conduct, and that would include reconciliation by resuming cohabitation.

In addition, the scholars continued to write that some of the Hanbali, Maliki and Hanafi sects accede to reconciliation by way of conduct. On the other hand, Kitab Hashiah I’anat al-Talibun, volume 4 page 34 stated that Imam Abu Hanifah opined that sex as invalid form of reconciliation of marriage. This is cited in the previously mentioned case of Norshinah bte Kamaridun v Baharuddin Othman.

Taking into account that the official madzhab of our nation is the Shafi’i madzhab as emphasized by DIrector-General of JAKIM, Dato’ Haji Othman Mustapha in an article on JAKIM”s website in 2014, the question arises here is what is the position here in Malaysia? First of all, the definition of hukum syara’ needs to be determined. Since the inquirer resides in Kuala Lumpur, the interpretation section of the Islamic Family Law (Federal Territory) Act 1984 may be cross –referred.

Section 26 of the Act defines hukum syara’ as “Islamic law according to any recognized Mazhab”. From this definition, it can be interpreted that opinions of all four major 4 [2005] 4 SHLR 158 5 R Abdullah, Z Mahmod . (2010) 6 ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT 1984

madzhab would be acceptable. In view of the sample case of Norshinah bte Kamaridun v Baharuddin bin Othman and the case of Norhasnizar bt Yusoff v Sazli bin Yeop 7, the approach of the Court has been to follow the opinion of the Shafi’i section. 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. Therefore, applying the Shafi'i madzhab would not constitute a valid ruju' to restore marriage by resuming cohabitation with the divorced wife, irrespective of whether or not the conjugal relationship is followed by intention (niyyah). This is in line with the judgment of the then Chief Judge of Syariah Subordinate; Tuan Mawardi Che Man in the above-mentioned case of Norhasnizar.

Second issue: Whether the refusal of consent of the wife to ruju’ affects the validity of ruju’

As mentioned in the paragraphs above, the ruju ' foundations do not include the wife's approval, i.e. the person with whom the husband wishes to reconcile. In the case of Abdullah Fuad bin Mamat v Maliza bt Awang 8, the question of the wife's denial of consent in the form of ruju' was addressed. In this case, the Court had referred to Kitab al-Fiqh alIslami wa Adillatuhu written by Dr Wahbah al-Zuhaili which states that the consent of the wife is not required to reconcile. In spite of this, in order to provide a remedy for a woman who refuses to consent to a marriage for valid reasons under hukum syara, the drafters of the legislation provided for such an event by providing for Section 51(9) 9 of 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 the reasons given by Hukum Syara, the Court shall not order the re-establishment of conjugal relations, but the Court shall appoint a conciliatory committee, as provided for in section 47, and that section shall apply accordingly."

In conclusion, with regard to the first issue, despite the "reconciliation" made by way of resuming cohabitation during the' iddah period, the "ruju" would not have been valid. This is in place of the inclination of the Malaysian Syariah Courts to follow the Shafi'i madzhab on this matter, whereby the Shafi'i madzhab does not, by way of conduct, join the Ruju. 7 [2009] 2 SHLR 185 8 [2013] 1 SHLR 76 9 ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT 1984

Meanwhile, with regard to the second issue, the refusal of consent by a wife would not have an impact on the 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 have no significance in this case. However, if a woman refuses to reconcile marriage with valid reasons in accordance with hukum syara', applying Section 51(9) 10of the Law on Islamic Family Law (Federal Territory) of 1984, the Court will not order a woman to proceed with ruju, but the Court will appoint a conciliatory committee, as provided for in Section 47 of the Act, and that section will apply accordingly.

REFERENCES. 1. ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT 1984 10 ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT 1984

2. Ruju'

Registration.

(n.d.).

Retrieved

November

10,

2019,

from

https://malaysia.gov.my/portal/subcategory/1612. 3. [2013] 1 SHLR 76 4. [2005] 4 SHLR 158 5. [2009] 2 SHLR 185 6. [2013] 1 SHLR 76 8. Raihanah Abdullah & Zulzaidi Mahmod. (2010). Rujuk: Peruntukan Undang-undang dan Pelaksanaannya di Malaysia. Jurnal Syariah, 18(1), 1-28. Retrieved from https://s3.amazonaws.com/academia.edu.documents/49681913/2._RUJUK_PERUNTUKAN_ UNDANG-UNDANG_DAN_PELAKSANAANNYA_DI_MALAYSIA.pdf?response-contentdisposition=inline%3B%20filename%3DRUJUK_PERUNTUKAN_UNDANGUNDANG_DAN_PELAK.pdf&X-Amz-Algorithm=AWS4-HMAC-SHA256&X-AmzCredential=AKIAIWOWYYGZ2Y53UL3A%2F20191110%2Fus-east1%2Fs3%2Faws4_request&X-Amz-Date=20191110T145022Z&X-Amz-Expires=3600&X-AmzSignedHeaders=host&X-AmzSignature=39e0f3ffc2eb0fb4b61c0bc0cb75fb323a4b6be34c365c3a9ca040e1b2a9988b...