Introduction

The two cases of faskh ¹ or divorce initiated by wives through a request made to judges (qāḍī) and ruled by the Terengganu Sharia Court provided valuable insights into the reformulation of Islamic family law in Malaysia. The process led to the recognition of two unconventional grounds not typically found in traditional Islamic jurisprudence for faskh by the Court, including drug addiction and domestic violence as stated in decisions of 11003-014-0372-2010 and 11300-014-0011-2011 cases. The decisions are significant for the innovative application of ijtihād (Islamic legal reasoning) due to the absence of the reasons stated in almost all classical schools of fiqh, including Ḥanafī, Mālikī, Shāfīʻī, Ḥanbalī, and Ẓahīrī, as well as in the most authoritative relevant literature.

Abū Isḥāq al-Shāṭibī (1320-1388 AD) proposed domestic violence as a reason for faskh ² but the proposal was considered a shādh (strange opinion) in the Mālikī School. Mālik ibn Anas (711-795 AD), the founder of the school, suggested that only six reasons were allowed to enact faskh, including insanity (al-junūn), leprosy (al-baraṣ), leprosy (al-judhām), having a vagina clogged up with a horn-like bone (al-qarn), a broken penis (al-jubb), and impotence (al-'innah) ³ in line with the opinion of al-Shāfiʻī (767-820). Moreover, Abū Ḥanīfah (699-767 AD) recommended that the petition of faskh should be allowed for cases of the broken penis and impotence while Ibn Ḥazm (994-1064) and Dāwud al-Ẓāhirī (815-883 AD) argued for the deformity of the husband as the only reason for enactment.

Scholars after the generation of the Imam al-Madhhab presented other arguments on faskh by adding some new reasons, such as sibling marriage (either blood or milk relation) and apostasy, ⁴ as well as deformities of the husband in the form of a broken penis, impotence, a dangerous illness, insanity, leprosy, and vitiligo. ⁵ In the book, al-Fiqh ʻAlā Madhāhib al-Arbaʻah, al-Jāzirī explained that the more explicit examples of deformities included a broken penis (al-jubb or al-khiṣāʼ), impotence (al-ʻinnah), the vagina clogged up with meat (al-ratq) or a horn-like bone (al-qarn), the vagina covered by beef flooded with sweat (al-ʻalf), the vagina fused with urinary and bowel tract (al-ifḍāʼ), and an extremely smelly vagina (al-bakhr). ⁶ Several other reasons have also been included, such as the failure of the husband to provide living support to the wife, ⁷ disappearance (ghayb),⁸ and constant discord between the couple (shiqāq).⁹

Contemporary discourse on the identification of drug addiction as a reason for faskh remains fragmented into three distinct theoretical positions as explained by Saʻd al-Dīn Musʻad Hilālī from the University of al-Azhar. (a) Some scholars argued that drug addiction, including cigarettes, either before or after marriage could become a reason, (b) others suggested the consideration only when a husband became an addict after marriage, and (c) a section believed addiction should not be a reason for faskh at all.¹⁰ However, the information on the individuals related to the three groups and the methodologies for formulating the position are not presented in the explanation made by Hilālī.

The consideration of domestic violence as a reason for faskh is another issue of contemporary discourse. Musṭafā al-Sibāʻī (1915-1964 M) and Wahbah al-Zuḥaylī¹¹ did not analyze the concept from the perspective of al-maqāṣid al-sharīʻa. Roh Saham also examined some decisions of the Egyptian Court from 1920 to 1955 and observed some differences from stipulations in the classical fiqh to some intriguing aspects. This was specifically in the discourse of khulʿ (divorce ransom), which was the result of ijtihād using the principle of uṣūl al-fiqh.¹² Moreover, Muhammad Zubair Abbasi analyzed the Islamic Family Laws of Pakistan concerning khulʻ and considered the legislation to be deviating from stipulations in the classical fiqh.¹³ The last two names did not investigate faskh cases through the maqāṣid al-sharīʻa reasoning. In the context of Malaysia, Raihanah Abdullah affirmed the use of al-Shāṭibī's opinion that accepted domestic violence of the husband as a base of faskh to support the renewal of Islamic family laws. Meanwhile, Raihanah did not apply maqāṣid al-sharīʻa in the analysis and ignored the aspect of drug addiction.¹⁴

The reasons for filing faskh were expanded in article 50 (1) of the 2017 Terengganu State Islamic Family Law Enactment. The article clarifies provisions covering injustice, unfairness, and forced marriage but it is necessary to consider the principles of maqāṣid al-sharīʻa in submitting faskh. This is necessary to ensure more relevance to contemporary social realities, which have not received attention in recent times. Contemporary research has also not applied the method despite its ability to guarantee the reactive and proactive capacities of faskh law in achieving benefits and preventing harm, specifically for women.

Article 50(1) of the Terengganu Islamic Family Law has expanded several important reasons for faskh, such as the disappearance and incapability of the husband to maintain and protect the wife. However, there is a need for the exploration of the limited cases of drug addiction and domestic violence in the processing of conducting deeper reformulation of faskh law. In this case, maqāṣid al-sharīʻa is an important basis related to protection (ḥifẓ al-ʻaql), life (ḥifẓ al-nafs), and wealth (ḥifẓ al-māl). The concept is necessary for the reformulation of law to ensure stronger protection for victims experiencing violence in different forms. Therefore, this research examines the dynamics of faskh petitions in the Terengganu Sharia Court with a focus on drug addiction and domestic violence as reasons.

The first reason for this research is that faskh law reform, specifically in the Terengganu Sharia Court, has not been previously analyzed. The second is that the decisions regarding drug addiction and domestic violence as grounds for faskh are unusual and peculiar when examined through the classical schools of fiqh (Ḥanafī, Mālikī, Shāfīʻī, Ḥanbalī, and Ẓahīrī), the most authoritative relevant literature, and contemporary discourse. Therefore, this research aims to offer valuable insights into the reformulation of Islamic family law by incorporating the issue of maqāṣid al-sharīʻa, which has garnered significant attention among scholars. The process focuses on answering two fundamental research questions. The first is to examine the rationalization of faskh in the Sharia Court of Terengganu, specifically the consideration of drug addiction and domestic violence as reasons in decisions 11003-014-0372-2010 and 11300-014-0011-2011, through the theoretical framework of maqāṣid al-sharīʻa. The second is to investigate the broader implications of these judicial decisions for the contemporary Islamic legal discourse by exploring the contribution to the reformation of Islamic family law in the modern context.

This research argues that drug addiction and domestic violence of the husband can be legitimate reasons for faskh when the activities make the wife unhappy. The position was strengthened using the sophisticated theoretical constructs developed by Abū Ḥāmid al-Ghazālī (450-505 H) and the theory of maqāṣid al-sharīʻa by Abū Isḥāq al-Shāṭibī. Moreover, the research is divided into three parts and the first focuses on the verdicts of the Terengganu Sharia Court on drug addiction and domestic violence as reasons for faskh. The second deals with the reasons explained by classical fiqh literature to understand the status as ẓannī (mutable) or qaṭʻī (absolute, immutable). The last part examines the feasibility of drug addiction and domestic violence as reasons for faskh through the maqāṣid method and synthesizes classical fiqh stipulations and ijtihād of the judges in the mentioned cases to reformulate laws in line with the current contexts.

2. Research Methodology

The current research employed an integrated method that combined case research analysis and normative legal research to examine two landmark decisions from the Terengganu Sharia Court, Malaysia. The decisions established novel grounds for marriage dissolution, representing a significant development in Islamic family law jurisprudence. A hierarchical data collection method was also used with a prime emphasis on primary sources while incorporating secondary materials. The primary data was obtained from Court decisions number 014-0372-2010 and 11300-014-0011-2011 as well as direct interviews conducted with presiding judges. These were supplemented by an extensive examination of cross-madhhab fiqh literature, scholarly articles, and relevant legal provisions from the Islamic Family (Terengganu) Act 1985.

The theoretical framework was maqāṣid al-sharīʻa principles, specifically the sophisticated constructs developed by Abū Ḥāmid al-Ghazālī (450-505 H) and Abū Isḥāq al-Shāṭibī (720-790 H). This was due to the ability of the theories to provide important analytical tools to understand the adaptation of Islamic jurisprudence to contemporary challenges while preserving the essential principles.

Additionally, case research analysis was used to examine how the Court handled the two unprecedented grounds for faskh, including drug addiction and domestic violence. Meanwhile, the normative legal analysis explored the integration of existing legal frameworks with maqāṣid al-sharīʻa principles to address modern social realities by the Court. The integrated method enabled a comprehensive understanding of the dynamic relationship between Islamic legal reform, social context, and judicial interpretation in contemporary Muslim societies. It also transcends descriptive analysis to provide substantive insights into the evolution of Islamic law in addressing contemporary social challenges while maintaining doctrinal integrity. Moreover, the framework facilitates a nuanced examination of how modern courts reconcile traditional Islamic jurisprudence with recent social issues, contributing valuable perspectives to the ongoing development of Islamic family law.

3. The Verdicts of the Court: Between the Stipulations of Fiqh and the Ijtihād of the Judges

The Terengganu Shari'a Court decided several cases between 2000-2023 stipulating drug consumption as part of the reasons for faskh. However, due to the complexities related to several complicating factors, the focus is only on decisions 11003-014-0372-2010 and 11300-014-0011-2011. First, the reasons are not found in classical fiqh jurisprudence, secondly, the integration of modern issues requires a balance between following the rules of faskh in classical jurisprudence and overcoming contemporary challenges. Moreover, each case has unique legal and social dynamics, leading to the focus of the analysis on the method used by the court in handling legal issues related to the decisions taken during this period.

3.1. Case Number 11003-014-0372-2010

A woman registered a divorce petition assigned as case number 11003-014-0372-2010 to the Terengganu Sharia Court, Malaysia on 14 November 2010.¹⁵ The litigant and the defendant got married on 26 August, 1999 in Wakaf Mempelam village, Kuala Terengganu, and had three children. The reasons proposed by the litigant and later proven before court were, first, the defendant (the husband) had not given the litigant (the wife) living support for more than three consecutive months. Second, the husband had committed domestic violence against her, third, the couple had been separated for one year, and, fourth, the defendant was a drug addict arrested several times by the National Drug Agency of Terengganu.¹⁶

The judge decided on faskh concerning the legal pronouncement (fatwa) of the National Fatwa Committee of Malaysia in 2006. The fatwa stipulates that consuming methamphetamine drugs or other kinds of illegal drugs is forbidden (ḥarām), including every other relevant activity, such as planting, processing, owning, selling, spreading, and buying.¹⁷ Moreover, the judge referred to the fatwa of Shaikh Muḥammad Ḥasanīn Mahklūf (1890-1990 AD), a former mufti of Egypt from the book Fatāwā Sharʿiyyah wa Buḥūth Islamiyyah, that consuming, giving, and selling drugs are forbidden (haram).¹⁸ Musṭafā al-Sibāʻī (1915-1964 AD) wrote that faskh could be approved for the existence of harm within the family. This notion of harm applies to five aspects of life, including religion, wealth, life, descendants, and the mind.¹⁹ The judge also referred to the concept of ḍarar of Wahbah al-Zuḥaylī that explored all the possible situations capable of causing a marriage to fail in achieving its fundamental purposes.²⁰ In line with al-Zuḥaylī, ʻUmar ʻAbd Allāh suggested that judges were legally authorized to end a marriage when a husband caused harm to the wife.²¹ Meanwhile, ʻUthmān ibn Shaṭā al-Bakrī (1849-1892 AD) in a very popular book in Nusantara, Iʿānat al-Ṭālibīn, stated that judges were permitted to grant the proposal of a woman for faskh based on the condition she was not a rebellious wife (nushūsh) and not provided living support.²²

The judge decided to grant faskh petition between the litigant and the defendant on 25 May, 2011 referring to the opinions of these scholars as well as the evidence presented in the trial. This was achieved through a verdict of ṭalāq bāʼin sughrā that required the wife to engage in ʿidda for three menstrual cycles.²³

3.2. Case Number 11300-014-0011-2011

The Terengganu Sharia Court, Malaysia received faskh petition assigned as case number 11300-014-0011-2011 in July 2011. The wife and the husband were teachers and got married on 31 May 1991 in 91-A of Tok Ku village, Chabang Tiga, Kuala Terengganu. The reasons proposed by the litigant and later proven before the Court were that, first, the husband did not provide living support, second, repeatedly sold the belongings of the wife such as jewelry, and third, committed domestic violence.²⁴ Therefore, the judge made a legal decision based on al-Nisāʼ 04: 24, which focused on the ways to educate a rebellious wife (nushūsh) through separation of bed, hitting based on specific requirements, and some restrictions. Another reference was the reasons explained by Wahbah al- Zuḥaylī for faskh, such as a disharmonious relationship between the husband and the wife as well as domestic violence through physical or verbal means, such as hitting or destroying the dignity of the wife.²⁵ This is in line with the provision of Articles 52 (1) (h) and 49 (1) (h) of the Islamic Family Laws of 1985 of Terengganu that domestic violence can be in two forms, including physical and verbal, such as hitting or cussing.²⁶

The judge referred to the position of al-Aḥwāl al-Shakhṣiyyah written by Aḥmad al-Ḥuṣarī that the maltreatment of the wife as part of the reasons for faskh was not limited to physical abuse but included avoidance of communication, turning of back when in bed, preference for another woman, and hitting the wife hard.²⁷ The facts presented in court and the literature stated to address this issue were subsequently used by the judge to do settlement for ṭalāq bāʼin sughrā towards the litigant and the defendant on 29 July 2012 with the wife also required to engage in ʿidda for three menstrual cycles.²⁸

4. The Reformulation of Faskh Law: Is It Possible?

The discussion in previous sections showed that the two reasons granted for faskh by the court, drug consumption, and domestic violence, were based on the combination of the ijtihād of the judges and classical fiqh provisions. This leads to the question Is this kind of reformulation possible?" which needs to be considered because the qaṭʻī (absolute, immutable) reasons required in classical fiqh books prohibit ijtihād. The further consequence is that the verdicts of the court are invalid from the perspective of Islamic Law. However, ijtihād is allowed when there is proof that the activities are ẓannī affairs (not absolute, mutable). This section answers the question asked as a step in reformulating the law of faskh.

Faskh is linguistically defined as cancellation (naqada) or dissolution (farraqa).²⁹ In terms of marriage, the concept refers to the cancellation or dissolution of marriage due to a particular reason hampering its eternity.³⁰ There is no clear statement in the Qur'an that supports faskh but certain basic principles related to its permission are mentioned in some verses such as al-Baqarah 01: 23 and al-Nisā' 04: 35. The term is different from the other types of annulment stated clearly in the Qur'an, such as ṭalāq (al-Baqarah 01: 229), khulʻ (al-Baqarah 01: 229), ẓihār (al-Mujādalah 58: 1-4), īlāʼ (al-Baqarah 01: 226), and liʻān (al-Nūr 24: 6-9). However, jurists agreed that faskh is another type of annulment due to its suitability for the basic principle of "it is forbidden to harm either ourselves or others (lā ḍarar wa lā dirār)." ³¹

The decision to cancel a marriage contract through faskh is subject to the rights of judges with a petition proposed by the wife that is obliged to present reasonable and relevant pieces of evidence. According to Abū Zahrah (1898-1974 AD), this type of case is called al-ṭalāq bi al-ḥukm al-qāḍī (a divorce based on the provision of judges).³² The husband is also entitled to petition for faskh but the right is exclusive and termed ṭalāq, which can be pronounced twice as ṭalāq rajʿī. However, the process is different from faskh petition, which is unlimited and allows the couple to remarry through a new contract and dowry.³³ There are several other cases of faskh with the permanent application, such as an annulment due to inbreeding through blood or nursing relationship and apostasy, and the decision does not require the participation of the judge.³⁴

Scholars have different opinions about faskh in terms of fiqh. For example, the Ḥanafī School allows a wife to petition when the husband has any disease related to impotence, broken testicles, or damaged penis.³⁵ The school does not permit any reasons other than the three but Mālikī and Shāfiʻī do not decide or limit certain diseases and allow dissolution based on the ability to disharmonize the family, such as insanity, leprosy, or others.³⁶ Ibn Qayyim, a scholar from the Ḥanbalī School, broadened the scope of deformity (ʿayb) beyond the widely accepted view probably due to the influence of the Mālikī and Shāfiʻī schools. The scholar suggested that any type of deformity suffered by either the husband or the wife capable of harming the harmony of familial relationships such as being dumb, lame, and stump are valid reasons for faskh.³⁷ Ibn Qayyim further argued that the harmony of the family depended on physical perfection.³⁸ Therefore, new infectious diseases, including HIV and TBC, can be reasonably perceived as additional reasons for faskh.

The schools of Mālikī, Shāfiʻī, and Ḥanbalī include some cases such as the incapability of the husband to provide living support for the wife and being lost or jailed as valid reasons for faskh. In a broader scope, Al-Shāṭibī argued that destruction in the family should serve as a benchmark in determining reasons for faskh. The destruction in the context focuses on every trouble related to five aspects of human life, including religion, self, descendants, wealth, and the mind.³⁹ The perception of Al-Shātibī is unusual and considered unreasonable by the majority of scholars but appears to be an advanced opinion at the time of introduction.

The explanation shows a vast diversity of views on the reasons for faskh. In this context, recalling the question formulated, is it possible to reformulate the law of faskh? The answer is "Yes, it is possible." The variety of opinions introduced by scholars leads to an understanding that the law of faskh is ẓanni (changeable), not qaṭʻī (absolute). This is because there is no clear argumentation (ṣarīḥ/qaṭʻī) confirming the concept, leading to several ijtihād (efforts) to determine the most proper reasons for faskh. The process has caused different opinions due to the variation in the understanding and methods applied by the scholars. Moreover, opinions derived from a school can be different from those of others without any obligation to agree with each other.

5. Decisions of Court, the Classical Fiqh, and Synthesis: Exploring the Implications

This section explores how the principles of maqāṣid al-sharīʻa can synthesize the decisions of the Court with the classical fiqh and the subsequent implications for the discussion on the contemporary reformulation of Islamic family law. The al-maṣlaḥa theory proposed by Al-Ghazali and al-istiqrāʼ al-sharīʻa by al-Shāṭibī was applied to the decisions of the Terengganu Sharia Court, Malaysia to evaluate the ijtihād conducted by the judges that included drug addiction and domestic violence as reasons for faskh. The purpose was to rationalize the decisions and understand the implications.

5.1. Drug Addiction as a Reason for Faskh

The explanation of the status of drugs in fiqh is important before analyzing the decisions through the sharīʻa perspective to strengthen the argument of this research. In the Qurʼān, al-Aʻrāf 07:157, Allah says that He makes lawful for humans the right things (ṭayyib) and prohibits evil (khabā'ith). Referring to this verse, several scholars agree with the prohibition of using or consuming any type of dirty and dangerous products. It is also recommended to avoid the products when the proportion of the benefits and the dangers are the same.⁴⁰ The process has led some Muslim countries to introduce regulations on the prohibition of drug consumption and other products similar to drugs.⁴¹ This is reasonable since drugs have the potential to harm the lives of humans and hamper responsibility to religion, family, society, and nation.⁴² Therefore, the consumption of drugs is believed to be prohibited in Islam. This argumentation is supported by a Hadith of the Prophet Muhammad that any type of intoxicating drink is regarded as khamr and all are prohibited.⁴³ The background information shows that the prohibition of drugs is at the same level as the drinking of alcohol (khamr) because both have the same consequence ('illa), i.e., intoxication and harm. The application of the analogy leads to the conclusion that both khamr and drugs are prohibited (haram). However, some scholars allow the usage of the products for medical purposes while the majority supports the prohibition.⁴⁴

The discussion of divorce based on only fiqh argumentation is not sufficient because the process is allowed by the Prophet but hated by Allah.⁴⁵ The Hadith is undoubtedly understood by the judges, leading to the consideration of maqāṣid al-sharīʻa principles with a focus on the four elements, including the protection of the mind (ḥifẓ al-ʻaql), the wealth (ḥifẓ al-māl), the life (ḥifẓ al-nafs), and the descendants (ḥifẓ al-nasl) in the process of rationalizing the decisions.

The first aspect is focused on the protection of the mind with some research identified to have proved the ability of drugs to severely affect users in form of insanity and stress based on hallucination and delusion. The process can lead to suicide or a minimum of anger, trembling, confusion, and mental disorders.⁴⁶ These situations often threaten the affected individuals and endanger the safety of others, including family members.

The second aspect is the protection of wealth (ḥifẓ al-māl) which is explained in the classical discourse of maqāṣid al-sharīʻa to be focused on looting or destructing the properties of others.⁴⁷ However, the concept can currently be applied to other cases similar to looting or destruction, such as protecting the wealth of a family by avoiding drug consumption. The rationale (ʻilla) behind the concept is that almost all drug addicts, specifically in the lower middle class, use daily income expected to be typically spent on family or children's needs, which they utilize to buy drugs. Moreover, research has proved that drug addicts could use the wealth of their wives⁴⁸ or commit crimes, such as looting and robbing to buy drugs.⁴⁹ The trend was confirmed by the report of the Singapore Department of Statistics that most drug addictive men contributed to some criminal acts such as looting and robbing while their women counterparts tended to engage mainly in prostitution in 2015.⁵⁰

The third aspect is the protection of life (ḥifẓ al-nafs) which is limited to murder and the enactment of qisas in the classical discourse of maqāṣid al-sharīʻa.⁵¹ However, the discourse could be contextualized to any case capable of leading to the death of others at the time. This is in line with the rule that any addition to a proposed law is regarded as same as the purpose intended.⁵² Therefore, in the maqāṣid discourse, the consumption of drugs contradicts the maṣlaḥa due to the possibility of leading to death or the minimum of endangering lives. Some examples of the adverse impacts are dry mouth, excessive sweating, swollen eyes, headache, insomnia, paleness, and low body endurance capable of causing paralysis, heart disease, increased blood pressure, blood vessel rupture, and death. This is in line with the provision of the verse, "God has taught us not to throw (ourselves) with our (own) hands into destruction."⁵³

The fourth aspect is focused on the protection of the descendants. The research conducted through My Health of the Health Ministry of Malaysia showed that drug consumption could inhibit human reproduction. This is related to the ability of drugs to cause some sexually transmitted diseases such as impotence, unexpected productivity of sperm, penis destruction, and HIV.⁵⁴ Addiction also can severely impact pregnant women, specifically babies, by causing premature birth and miscarriage as well as the production of a tiny-size, overactive, and easily agitated baby with the possibility of mental disorders depending on the types of drugs used.⁵⁵

The explanation leads to the deduction that the decisions related to faskh enacted by the judges of the Terengganu Sharia Court are in line with fiqh due to the consistency with the principles of maqāṣid al-sharīʻa. The main reason is that anything capable of destroying the five pillars of religion is called mafsada while those providing support are known as maṣlaḥa.⁵⁶ Therefore, it was concluded that the decisions were made to protect life, the mind, descendants, and wealth from any adverse effect of marriage.

5.2. Domestic Violence as a Reason for Faskh

The keyword that becomes the main focus of the domestic violence issue is ḍirār (oppression). It is related to the maqāṣid al-sharīʻa through the need to protect the mind (ḥifẓ al- 'aql) and life (ḥifẓ al-nafs). In terms of protecting the mind, violent activities such as hitting can have severe effects on the body and mental health of the wife and are also capable of leading to death. This is the reason the religion prohibits the husband from causing difficulties for the wife (al-Nisāʼ 04: 19) murdering or looting one another (إِنَّ دِمَاءَكُمْ وَأَمْوَالَكُمْ حَرَامٌ عَلَيْكُمْ),⁵⁷ and threatening each other (لا ضرر ولاضرار).⁵⁸

The discussion related to the protection of life in the classical maqāṣid al-sharīʻa is centered on the case of murder but also includes every action capable of leading to the death of an individual. The actions can be in the form of hitting or injury with the ability to cause harm or death. The trend is in line with the information presented in My Health provided by the Ministry of Health of Malaysia that the health risks from domestic violence can lead to deformity and death.⁵⁹ Therefore, the government of Malaysia enacted the Domestic Violence Act of 1994 (Act 521) to save the life of wives.⁶⁰ Similar regulation has also been implemented in other countries through the adoption of models and characteristics tailored to the needs of each society.⁶¹ The maqāṣid al-sharīʻa perspective shows that it is reasonable to regard domestic violence as a reason for faskh due to the focus on saving the life of the wife. In conclusion, the reasons proposed by the Court are in line with maqāṣid al-sharīʻa principles.

5.3. Synthesis and Implication

The discourse of laws related to faskh in the fiqh literature is subject to disagreement as previously explained. This is due to the possibility of some schools neglecting the opinions of others. For example, the Ḥanafī School agreed there were only three reasons for faskh, including impotence, a broken penis, or damaged testicles.⁶² Meanwhile, scholars from the al-Mālikī and al-Shāfiʿī schools disagreed by introducing other reasons related to diseases such as insanity and leprosy capable of disrupting the harmony in a family.⁶³ Ibn Qayyim al-Jawziyah, an adherent of the Ḥanbalī School, broadened the meaning of deformities to include dumbness, lameness, stumps, or other diseases capable of disrupting the harmony in a family (mawadda wa raḥma).⁶⁴

Abū Isḥāq al-Shāṭibī, an adherent of the Mālikī School, introduced a more sophisticated opinion by stating that only one reason should be added. This was focused on every action that could endanger the sustainability of the family based on five matters, including religion, life, descendants, wealth, and the mind.⁶⁵ The perspective was based on the expertise of al-Shāṭibī in maqāṣid and has inspired several other modern scholars to propose similar ideas with some contextualization and developments.⁶⁶ Therefore, domestic violence is a strong view from the perspective of usul al-fiqh even though the inclusion as a reason for faskh tends to be a weak opinion among most fiqh scholars.

ʿIlla (reasons), maṣlaḥa (benefit), and mafsada (harm) are integral to the provision of strong opinion for the inclusion of domestic violence as a reason for faskh. For example, the ʿilla proposed in case number 11003-014-0372-2010 was the negative impacts of drug addiction on the lives (al-nafs), mind (al-ʻaql), descendants (al-nasl), and wealth (al-māl) of the married couple. This showed that the decision to include drug addiction as a reason for faskh was right based on the principles of maṣlaḥa and mafsada as observed in the correlation with 'illa. These principles were able to provide a strong foundation in terms of uṣūl al-fiqh discourse. Moreover, al-Ghazālī stated that the suitability of the decision was based on the ability of drugs to harm the five pillars, including religion, life, mind, descendants, and wealth. These pillars are known as mafsada and every action that saves the pillars is called maṣlaḥa.⁶⁷

The argumentation was further strengthened by the theory of al-istiqrāʼ al-sharīʻa introduced by al-Shāṭibī to present inductive reasoning towards sharīʻa debates. Moreover, the definition of the maqāṣid al-sharīʿa value was suggested to require a close reading of dalīls that consisted of different meanings and purposes holistically, instead of separately. This could be either the dalīls in the form of ẓāhir, muṭlaq, muqayyad, kuliyya, or juzʼiyya found in naṣṣ and fiqh laws. The context identification (qarāʾin aḥwāl) as written (manqūlah) or unwritten (ghayr manqūlah) also needs to be considered. The result of this procedure is a definite (al-al-qaṭʻ) and convincing (al-yaqīn) decision according to al-Shāṭibī.⁶⁸

The process of deciding the cases based on only one reason, drug addiction or domestic violence, is considered significant in this context from maqāṣid al-sharīʻa perspective. However, the decision could be stronger with the addition of other reasons such as the lack of willingness to support the living conditions of the wife and the separation for a long time. Al-Shāṭibī shows there is often a definite (al-qaṭʻ) and convincing (al-yaqīn) decision. The trend is observed in decision number 11300-014-0011-2011 where domestic violence was combined with the unwillingness of the husband to provide living support, thereby providing more strength to the reasons based on both fiqh and uṣūl al-fiqh perspectives.

In terms of the maqāṣid al-sharīʻa principle, there are two irrefutable arguments to justify the confirmation of drug addiction and domestic violence as reasons for faskh. Firstly, it is clear that one school (madhhab) is not obligated to follow the opinion or decision of another. This shows the reasons determined for faskh by several scholars in the classical fiqh discourse are debatable (ẓannī). The trend is different from other cases such as ṭalāq (al-Baqarah 01: 229), khulʻ (al-Baqarah 01: 229), ẓihār (al-Mujādalah 58: 1-4), īlāʼ (al-Baqarah 01: 226) and liʻān (al-Nūr 24: 6-9) where the position of the Qur'an is clearly stated. There is no explicit statement in the Qur'an explaining the law of faskh, thereby subjecting the concept to debate. Secondly, the absence of a clear argument for faskh law in the Qur'an allows several scholars to attempt to identify the basic principles existing in some verses. The provision of al-Baqarah 01: 231 and al-Nisāʼ 04: 35 as well as a hadith from the Prophet that harm to self or others (lā ḍarar wa lā dirār)⁶⁹ is forbidden is argued to be the basic principle of faskh. Meanwhile, the position is generic and the decision of law needs to be based on surrounding reasons ('illa). This shows that the methods to determine reasons ('illa) for faskh (taḥqīq al-manāṭ) are different across scholars and schools depending on the understanding of the 'illa connected to the maṣlaḥa and mafsada produced.

The two reasons show the possibility of reformulating faskh laws regarding the reasons through the contemporary fiqh, decisions of judges, or legislation. The trend was explained by Wahbah al-Zuḥaylī, a modern scholar, as the enlargement of the meaning of ḍirār to cover everything that could cause disaster to the wife.⁷⁰ Moreover, Article 2 of the Enactment of Islamic Family Law of 1985 in Terengganu, Malaysia proposes a broader scope for ḍirār to cover everything capable of threatening the soul, body, mind, and wealth of the wife.⁷¹ Article 50 (1) of Enactment of Islamic Family Law in Terengganu of 2017 which is the revised version of the Enactment of Islamic Family Law of 1985 also widens the reasons for faskh by adding the case of disappearance (ghayb) of the husband for more than one year, lack of willingness to provide living support to the wife for over four months, imprisonment for more than one year, exiled to a foreign country based on legislation rules, or impotence. Furthermore, faskh can be accepted when a wife is married off by her wali mujbir before reaching a marriageable age (balīgh) and rejects the marriage before copulation. The other reasons stated in the legislation include abuses, having a relationship with another evil woman, forcing immoral living, despoiling her belongings, hampering the wife from getting her rights, forbidding the process of conducting religious obligations, not serving fairly in polygamy marriage, and intentionally not copulating for four months after marriage. Faskh is also permissible for women married off by force, mistake, or to an idiot.⁷²

The debates of the scholars and the enactments of Islamic Family Laws in Terengganu, Malaysia were observed not to have discussed the addition of drug addiction and domestic violence to the reasons for faskh. Therefore, the judges attempted to conduct ijtihād to determine the most appropriate law on ḍirār based on the principle that two rewards should be provided when correct and one when incorrect.⁷³

The ijtihad of the judges provides new pathways to reform faskh law even though the decision is limited to the Terengganu Shari Court. This research convincingly argues that the addiction of the husband to drugs and instances of domestic violence can be accepted as reasons for faskh when the activities lead to sadness for the wife and present the grievances to Sharia Court. The importance of the decision is based on the successful integration of maqāṣid al-sharīʻa that protects the religion, soul, mind, descendent, and wealth. This thoughtful application of Islamic principles serves as a precedence for modernizing faskh while maintaining the principles of maqāṣid al-sharīʻa. Beyond the immediate impact on law, the decisions serve as a model for broader Islamic legal reform by showing how Islamic jurisprudence can evolve to meet interpretations capable of guiding future reform in Islamic family law and other areas.

6. Conclusion

This study highlighted that, the issue of divorce in Malaysia had fundamentally changed with a specific focus on the grounds or reasons for faskh (annulment) as observed in the two cases decided at the Terengganu Sharia Court. Significantly, some individuals have argued that Malaysian Islamic family laws were rigid; however, this research precisely showed the existence of certain rapid renewals. The trend was identified in the cases related to the acceptance of drug addiction and domestic violence as grounds for faskh in the decisions of the court. This was despite the lack of clarity for both conditions in classical fiqh and even the discussions of contemporary fiqh experts; thereby, showing the significance of Islamic legal law reformulation. The confirmation of drug addiction as a reason was justified through the threat presented to the soul (al-nafs), mind (al-ʻaql), descendent (al-nasl), and wealth (al-māl) of the wife. Similarly, domestic violence was identified as a legitimate reason due to the harm caused to the mind (al-ʻaql) and soul (al-nafs) of the wife. The decisions were further supported through the theory of maṣlaḥa proposed by Al-Ghazālī and al-Shāṭibī that prioritized preserving (ḥiẓf) the five fundamental values, including religion, soul, mind, descendent, and wealth.

The application of al-Shāṭibī's al-istiqrā' al-sharīʻa theory showed the need to holistically examine both cases, which presented the ground reasons for divorce cases. It was observed that decision number 11003-014-0372-2010 related to drug addiction was read together with other reasons, such as the lack of willingness of the husband to provide living support for more than three consecutive months and separation by not living in the same house for a long time. Moreover, decision number 11300-014-0011-2011 related to hitting and humiliation of the wife was read together with the lack of willingness of the husband to provide living support. The combination of the methods was able to synthesize classical fiqh and contemporary judicial decisions with the principle of taṣarruf al-imām manūṭ bi al-maṣlaḥa, showing the decisions made by the judges were in line with the public welfare.

Additionally, this research argued that drug addiction and domestic violence were valid reasons for faskh in the contemporary Islamic legal discourse when the wife was unhappy and presented her grievances in Sharia Court. The results showed the flexibility of Islamic law and offered a framework for further legal reform in other cases of Islamic family law. Therefore, the integration of maqāṣid al-sharīʻa into judicial decision-making was supported with an emphasis on the protection of religion, soul, mind, descendent, and wealth. This research helps in improving the understanding of how Islamic family law could be reformulated to accommodate societal needs while maintaining the maqāṣid al-sharīʻa principles.

Conflict of Interest

The author of the manuscript has no financial or non-financial conflict of interest in the subject matter or materials discussed in this manuscript.

Data Availability Statement

The data associated with this study will be provided by the corresponding author upon request.

Funding Details

We would like to thank the Indonesian Endowment Fund for Education Agency - Lembaga Pengelola Dana Pendidikan Indonesia (LPDP) within the Ministry of Finance, Republic of Indonesia, for funding this research.