Mafqūd and Fasakh in the Writings of Muslim Jurists and Provisions of Malaysian Federal Territory Islamic Family Law: The Case of MH 370 Missing Plane

Abstract

In Islam, there are various forms of dissolution of marriages that
are permitted to avoid the greater evil which may result from their continuance.
Wives are granted the right to dissolve a marriage in order to protect their
rights, particularly in the case missing husbands, either alive or dead. This is
known as mafqūd, or missing person. Therefore, the objective of this study is
to discuss the concept of fasakh and mafqūd in accordance with the views of
Muslim jurists and the provisions of Islamic family law in Malaysia. This paper
also aims to analyse both those views in the context of the MH 370 incident.
This study uses the qualitative method, by collecting data obtained by means
of information gathering within the resources of the library and authoritative
websites. From the study, it is shown that the wife can apply for divorce on the
basis of fasakh when it is diffi cult to prove the status of a missing husband.
In other words, rulings applicable to fasakh can be activated in the case of
mafqūd. Further discussions are expected to fi nd the best period of presumption
of death, since it is based on ijtihād or the discretion of lawmakers.