Keputusan Bantahan Awal kes Nusyuz

Monday 28 February 2011 was the “Tarikh Keputusan” (decision date) for my ex-wife’s “Permohonan Bantahan Awal” (preliminary objection) for the “Nusyuz” (disobedience) case at the Mahkamah Rendah Syariah Shah Alam.

I filed the “Nusyuz” case on 1 September 2009. As expected, my now ex-wife adopted numerous tactics to delay this case. It would be to her disadvantage if she was declared “Nusyuz” before the “Hadhanah” (child custody) and “Harta Sepencarian” (matrimonial assets) cases are heard.

During the first mention date on 10 September 2009, my ex-wife turned up alone. When we were called, she requested for another mention date on grounds that she has yet to appoint a lawyer to represent her. Typical delaying tactic!

To the best of my knowledge, nothing moved up and until 18 March 2010. Incidently, the courts had decided that 18 March 2010 would be the "Bicara" date for our divorce case. My ex-wife had no choice but to turn up as she wanted the divorce case to be settled (so that she can get married to her boyfriend). 

As for the nusyuz case, by then she had ran out of excuses and reluctantly (I'm sure), she filed her "Penyata Pembelaan" (statement of defence). 6 months to file in her “Penyata Pembelaan”?

Incidently, our divorce was confirmed and concluded by the Mahkamah Rendah Syariah Shah Alam on that date.

During the next mention date on 14 July 2010, my ex-wife filed in a “Bantahan Awal” on the “Nusyuz”. Her application is on grounds that the divorce has already been concluded, therefore rendering the “Nusyuz” case merely an academic one.

The next mention date was set (by my ex-wife’s lawyer) for 21 October 2010 for me to file in my defence. 3 months??? Bloody obvious what they’re up to eh? We promptly filed in our defence and the next mention date was set for 2 December 2010.

As expected, both my ex-wife and her lawyers failed to turn up on 2 December 2010 and subsequently on 11 January 2011. In their absence, it was decided on 11 January 2011 that both parties are to file their “Hujjah” or case summary within 2 weeks and for the “Bantahan Awal” to be decided on 28 February 2011.

Surprisingly, my ex-wife’s lawyer turned up on 28 February 2011. However, not surprisingly, they tried to delay the proceedings again. They filed in their “Hujjah” that very morning in hope that the Honourable Judge would need time to review the same. This is the second time they have filed in their defence on “Tarikh Keputusan”.

The Honorable Judge then looked back on the attendance record and noted that the Defendant (my ex-wife) and her lawyer had failed to turn up for the previous two mention dates. I reckon, this may have prompted him to proceed with the “Keputusan”.

The Honourable Judge decided as follows:

He noted that the “Bantahan Awal” was on the basis that both parties are already divorced and therefore rendering the “Nusyuz” case merely an academic one.

The Honourable Judge however agreed to our “Hujjah” whereby

1.    I had filed by “Nusyuz” case on 1 September 2009, i.e. PRIOR to the divorce;

2.    My application is an application for the Syariah Courts to declare my ex-wife “Nusyuz”, and NOT a “Perintah Kembali Taat” (order to obey) application;

3.    It is the right of a husband to apply to the declare his wife “Nusyuz” whilst the marriage was still in existence; and

4.    The divorce case simply cannot take away that right and there is no provisions in the law for the same.

Based on the above, the Honourable Judge decided that

1.       My ex-wife’s “Permohonan Bantahan Awal” is therefore rejected;

2.      The “Nusyuz” case is to proceed and “Tarikh Bicara” is to be set; and

3.      The cost for the “Bantahan Awal” is to be borne by my ex-wife.

We were ordered to complete our pleadings, i.e. for me to file my “Jawapan Kepada Pembelaan Defendan” within 14 days and for the “Bicara” to commence on 14 April 2011.

Therefore, it is now time for me to start preparing for the “Ikatan Dokumen” (bundle of documents).