METHODS OF PROOF AND EVIDENTIARY REQUIREMENTS IN DIVORCE CASES: AN ISLAMIC PERSPECTIVE

Abstract

The bulk of Shariah Court cases nowadays involve matters pertaining to the dissolution of marriage. The most common ones are ṭalāq, taʿlīq and fasakh. The reason as to why the Shariah Courts are crammed with these cases is not merely due to the increasing number of divorce cases but can also be attributed to the difficulty in proving them. Today, as lifestyles become more complicated, ṭalāq is no longer the same as ṭalāq, previously understood. The husband no longer pronounces it openly or orally. Current technology such as SMS and email has overshadowed the sanctity of ṭalāq. The situation becomes worse when the sender, that is the husband, denies it. To obtain dissolution of marriage via taʿlīq or fasakh, in most cases, has proved to be a nightmare. There are many causes that contribute to it; ranging from the complexity of the subject itself, the provisions of the law and how to apply them, misconception on the methods of proof, and the wrong imposition of burden of proof. Due to all these factors, it is simply concluded by one section of the society as ‘gender discrimination’ and sometimes the blame has been put on the Shariah Court itself. This paper intends to provide some suggestions and solutions to the problems mentioned above. It is hoped that the courts and those involved in legal suits would be ready to accept the wider concept of evidence without confining themselves merely to the requirements of two male witnesses.