Nullifying divorce in extreme anger harms no rights: judge Sameer

Former High Court Judge Ali Sameer stated that nullifying a divorce made in a state of extreme anger, under certain circumstances, does not infringe on anyone's rights.

Judge Sameer's comments come amid a public debate that arose after the Family Court ruled that a divorce was not valid. This ruling was made because the husband swore in court that he had used the phrase "you are divorced" in a state of anger so overwhelming that he had lost self-control.

The former judge, who has presided over many family cases, said that determining the intention of the person performing the act is a core principle in Islamic Sharia. He added that Islamic Sharia also recognizes the principle of refraining from punishing certain acts based on the person's psychological state when the act was committed.

He explained that this is the reason why judges must consider the individual's intent when delivering a verdict.

"Based on this standard, if it is evident that the person lacked the intention to divorce, and their intellect was overridden by anger or a similar state, the utterance of the phrase 'you are divorced' will not constitute a divorce. Earlier and later Islamic scholars have given opinions and presented Shariah-based evidence to support this," Sameer stated.

Sameer, who also served as Deputy Prosecutor General, noted that the current Maldivian Family Act does not specify the criteria courts must use to determine the validity of a divorce. The Act outlines the procedure for seeking a divorce and the penalties for divorcing outside of court. Even the regulations concerning family matters do not define the fundamental principles for validating a divorce.

Sameer pointed out that when the law and regulations are silent on a matter, judges must refer to the principles of Islamic Sharia. He highlighted that there is a difference of opinion among scholars regarding how a divorce becomes valid. If such a difference exists, he said, the judge must lean towards the preponderant opinion.

"The Family Court's decision, 'divorce is not valid because it was done in anger,' presents some of the details regarding the scholarly debate on whether a divorce done in anger is valid or not. Extreme anger is also considered a condition that affects the psyche, similar to confusion, insanity, or coercion," Sameer wrote.

The former judge argued that just as it is understood by reason that a divorce pronounced by a mentally challenged person is invalid, it must also be understood by reason that extreme anger can lead to a similar state. He noted that Islamic Sharia provides ways to deliver verdicts based on a person's psychological state.

Therefore, Sameer concluded that the answer to the question of whether nullifying a divorce made in anger is an absurd outcome is that it is a valid possibility. Furthermore, he said it cannot be claimed that this outcome violates Islamic Sharia or the Maldivian constitution.

"If one wishes to stipulate that such a divorce must be considered valid, then there is a way forward: a clause should be stipulated in the Family Act or a similar law that divorce is valid if the husband utters the word of divorce, regardless of his mental state. This would prevent further interpretation, make it difficult for different judges to make differing rulings, and ensure that different rulings do not arise for similar cases," Sameer wrote.

Sameer stressed that the nullification of a divorce made in anger does not prevent a wife who wishes to divorce from doing so. If the wife cannot live with the husband, the opportunity for divorce remains open. He reiterated that ruling that a divorce made in anger is invalid in certain circumstances does not infringe on anyone's rights.

"I believe the Family Court's decision in this case is not an unusual one. I view it as a decision made because it is permitted by Islamic Sharia and the laws of the Republic of Maldives," Sameer concluded.