Abandoned by your husband: 'left hanging', a missing or imprisoned husband, and the way out

1What "left hanging" means

In Malay, a wife who is digantung tak bertali ("hung without a rope", left hanging) is one who is still married on paper but no longer receives anything from the marriage: the husband does not come home, does not provide maintenance, does not talk things through, and at the same time does not divorce her. She is not free to start a new life, yet she does not enjoy her rights as a wife either.

The Quran uses an almost identical image. In Surah an-Nisa' 4:129, Allah states that husbands will never be able to be fully just in feelings between their wives, and so forbids them to incline wholly towards one so as to leave the other as if suspended (ka al-muʿallaqah). The verse was revealed in the context of polygamy, and that is why this situation often arises when a husband has more than one wife: the husband 'disappears' to another home, and the home left behind is left waiting.

Yet the same situation can arise in a monogamous marriage, and can happen to a first wife or a second wife. This page also covers two situations with different causes but similar effects: a husband who has genuinely gone missing with no news of him (mafqud), and a husband who is imprisoned.

The purpose of this page is not to encourage divorce. Many wives choose to wait and work to improve things, and that is an honourable choice. The aim is for that choice to be made knowing one's own rights, not out of a belief that there is no other way.

2The Shariah view: retain in kindness or release in kindness

The Shariah gives a husband only two options when a marriage is in difficulty, and both must be carried out well. Surah al-Baqarah 2:229 says: retain in a fair manner (imsak bi maʿruf) or release with kindness (tasrih bi ihsan). A third option, holding on to a wife without treating her as a wife, falls under neither.

Surah al-Baqarah 2:231 is even clearer: do not retain them to harm them, so that you transgress; and whoever does that has certainly wronged himself. Keeping a wife bound in marriage simply so that she cannot marry anyone else, or to punish her, is the clearest example of what this prohibits.

For a polygamous husband, his responsibilities do not shrink because the number of wives grows. Every wife is entitled to material maintenance (food, clothing, housing), a fair rota of nights, and treatment that does not wrong her. Justice in feelings is not fully required (4:129), but justice in conduct is. See The fiqh of polygamy for an explanation of these conditions and obligations.

Malaysian law reflects the same principle. Act 303 s.52(1)(h)(vi) makes inequitable treatment according to Hukum Syarak by a husband with more than one wife one form of cruelty that can be a ground for fasakh.

• Not nushuz on the wife's part: a wife who is no longer visited and not given maintenance does not become nushuz by being abandoned. Nushuz can only be confirmed by the Court (s.59(2)) - see When maintenance lapses.
• Rights are not lost through silence: in the Shafiʿi school, a wife's unpaid maintenance becomes a debt owed by the husband and does not lapse with the passage of time; Act 303 s.69 likewise allows arrears of maintenance to be claimed as a debt. What is easily lost through delay is the evidence, not the right.

3First steps: documents and intermediaries

The first steps are best taken gently, but each one should leave a written trail. This is not a sign of distrust; it is because every period in the law is counted from a date, and dates have to be proved.

1. Note down two dates today. The date your husband last came home or stayed the night, and the date maintenance was last given (and how much). Keep them in a dated notebook or a digital file that cannot be altered later.
2. Contact your husband in writing. A short, polite and clear message: ask when he will come home and how maintenance for the home and children will be arranged. Keep screenshots showing the date. Avoid words that could be read as threats or abuse.
3. Keep evidence of expenses. Rent or mortgage receipts, utility bills, school fees, medical costs. These help the court assess the rate of maintenance and arrears - see Maintenance rates.
4. Involve an intermediary. A family member respected by both sides, or a representative such as the arbiter (hakam) mentioned in Surah an-Nisa' 4:35. Ask them to record what is promised too.
5. Counselling at the religious office. The district Islamic religious office provides family counselling services. If your husband is summoned and does not attend, that too is a record. Sulh (reconciliation) sessions are run by the Syariah Court after a claim has been filed. See Counselling.
6. Check your marriage certificate. Find the page with the taʿliq pronouncement and read its conditions yourself. Keep copies of your marriage certificate, identity card, children's birth certificates and any earlier court orders in a safe place.

If the marriage was unregistered, or took place abroad without being registered in Malaysia, the legal steps take longer because the marriage must first be validated. See Secret polygamy and Unofficial marriage.

4The way out through the court: a timeline

Act 303 does not force a wife to wait for ever. Section 52(1) lists the grounds for fasakh (dissolution of marriage by the Court), and several of them bear directly on an abandoned wife. One ground is enough; a wife may base her application on more than one ground. Besides fasakh, a wife may also apply for confirmation of a taʿliq divorce under s.50 if the taʿliq condition on her marriage certificate has been met.

The table below sets out the minimum periods stated in the text of Act 303. These periods are conditions for applying; they do not mean an application will certainly succeed, and the court will examine the evidence.

Taʿliq, fasakh and khulʿ: what is the difference? All three routes lead to separation through the Court, but their basis and consequences differ.

• Taʿliq divorce (s.50): taʿliq is a conditional pronouncement recited by the husband after the marriage contract. If its condition is met (for example, the husband does not provide maintenance for the stated period), the wife asks the Court to confirm that a divorce has taken place. The Court examines whether the condition was truly met and is valid according to Hukum Syarak. In many states, the taʿliq procedure requires the wife to pay a small sum of money stated in the pronouncement; check your certificate.
• Fasakh (s.52): dissolution by the Court on the listed grounds, without needing the husband's consent. The wife must prove her grounds. Fasakh is not counted as a talaq.
• Khulʿ, or divorce by redemption (s.49): a divorce with the consent of both parties, in which the wife pays a sum in redemption. If the amount is not agreed, the Court may assess it according to Hukum Syarak. This talaq is baʾin sughra, meaning the husband cannot take her back except by a new marriage contract.

The consequences. In all three cases, a wife with whom the marriage has been consummated observes the ʿiddah. The rights to maintenance during the ʿiddah, accommodation during the ʿiddah, and mutʿah (s.56) depend on the type of separation, its cause, and the Court's decision according to Hukum Syarak; these rights are not the same for every route. A pregnant wife is generally entitled to maintenance until she gives birth (Surah at-Talaq 65:6), subject to the Court's decision. Any unpaid mahr remains her right (s.57), and maintenance in arrears before the separation remains a debt (s.69).

For more detail see Talaq, ʿIddah and taking back and Maintenance after divorce.

5Maintenance and children while the case is under way

A wife does not have to choose between 'waiting' and 'divorcing' before claiming maintenance. As long as the marriage subsists, maintenance remains obligatory, and the Court can order it.

• Current maintenance (s.59(1)): the Court may, subject to Hukum Syarak, order a husband to pay maintenance to his wife. This claim can be filed on its own, without applying for divorce.
• Arrears (s.69): unpaid maintenance can be claimed as a debt. If the husband dies, arrears that accrued before his death are a debt against his estate. This is where a record of the date maintenance was last given becomes important.
• Interim maintenance (s.70): if the Court is satisfied that there are grounds for maintenance, it may make an interim maintenance order that takes effect immediately until the main claim is decided. This matters because cases can take several months.
• Child maintenance (s.72): a father must support his children, whether they are in his care or in someone else's. A claim for child maintenance is separate from a wife's maintenance and is unaffected even if husband and wife are in dispute. See Child maintenance.
• Housing: housing is part of a wife's maintenance. If your husband threatens to evict you from the matrimonial home or to sell property, seek advice immediately; the Court can make an injunction against the disposal of jointly acquired matrimonial property (harta sepencarian) (s.107A).

A court order also has practical effects: if a maintenance order is not complied with, the wife can apply for enforcement action, and it opens the way to help from the Family Support Division (see the Support section below).

A wife may also apply to the Court for an order that her husband resume living with her (s.120); wilfully failing to comply with such an order can be an offence (s.126). See When maintenance lapses.

6A missing or imprisoned husband

A missing husband (mafqud). In fiqh, a mafqud is a person who has gone missing and of whom it is not known whether they are alive or dead. Scholars differ on how long his wife must wait:

• It is reported in al-Muwatta' of Imam Malik, Book of Divorce, that ʿUmar ibn al-Khattab (may Allah be pleased with him) ruled that the wife of a missing husband should wait four years, then observe the ʿiddah of death, after which she is free to marry. This view is held in the Maliki school; the Hanbali school also applies a four-year period, particularly where the disappearance occurred in circumstances that outwardly point to death. It is also the earlier view (qawl qadim) of Imam al-Shafiʿi.
• In the later view (qawl jadid) of Imam al-Shafiʿi, the wife may not remarry until the husband's death is established with certainty or a period has passed beyond which a person would not ordinarily still be alive. The Hanafi school likewise takes the approach of waiting longer.
• Malaysian law does not leave a wife waiting indefinitely: Act 303 s.53 sets a period of four years as a condition for applying, and the decision is made by the Court after an inquiry.

Under Act 303 s.53(1), if a husband has died, is believed to have died, or has not been heard of for four years or more, and the circumstances are such that he ought to be presumed dead according to Hukum Syarak so that his wife may remarry, the Court may, on the wife's application and after due inquiry, issue a certificate of presumption of death, and may also make an order of fasakh. This certificate is treated as a death certificate for the purpose of remarriage (s.53(2)) and is registered as if it were a divorce (s.53(4)). A wife may not remarry without this certificate even if the civil High Court has granted leave to presume her husband dead (s.53(3)).

A wife need not necessarily wait four years. If her husband's whereabouts have been unknown for more than one year, fasakh can be sought under s.52(1)(a), and three months' failure to provide maintenance under s.52(1)(b) may arise sooner. The text of s.53 does not say what happens if the husband reappears after the certificate has been issued; that question is subject to Hukum Syarak and the Court's decision, and should be referred to a Syarie lawyer. While the husband is missing, responsibility for child maintenance passes to whoever is obliged to provide it under Hukum Syarak (s.72(2)).

An imprisoned husband. Prison does not end a marriage and does not end the obligation of maintenance. A wife can still claim maintenance and arrears against her husband's property or income (s.59, s.69), even though in practice he may be unable to pay. A wife may choose to wait; many do, and that is their right. If she chooses to apply for fasakh under s.52(1)(c), the sentence must be three years or more, final, and the husband must have served one year of it (s.52(2)). Other grounds, such as failure to provide maintenance, may also be considered.

On children: an imprisoned father is still his children's father, and that relationship is usually good to maintain as long as it does not harm the children. Prison visits are subject to the rules of the Malaysian Prison Department. Questions of custody and access are decided on the basis of the child's welfare - see Custody (hadanah) and lineage.

7Support and help

An abandoned wife often carries two burdens at once: money that has been cut off and feelings that have been hurt. There is help for both.

• Zakat (asnaf): a wife who no longer receives maintenance and cannot support herself and her children may apply for zakat assistance as a poor or needy recipient (asnaf fakir or miskin) through the zakat centre or the state Islamic religious council. Bring documents showing your situation, including a record of the maintenance that stopped.
• Family Support Division (BSK), JKSM: if the Syariah Court has made a maintenance order and it has not been paid, the BSK can help with enforcement and, subject to its conditions, an advance on maintenance. This help requires a court order first; that is why claiming maintenance in court matters even when the husband cannot be contacted.
• Legal aid: the Legal Aid Department (Legal Affairs Division, Prime Minister's Department) handles Syariah cases such as fasakh, taʿliq and maintenance for those who qualify; in some states, the state Islamic religious council also provides Syarie legal aid.
• Family support: parents, siblings and the wali can help with housing, looking after the children on hearing days, and serving as witnesses to important dates.
• Counselling and emotional support: being left without explanation can bring shame, anger and a long period of uncertainty. Speaking to a counsellor at the religious office, or to a support line, is not a sign of weakness. See Counselling.

For a second wife whose marriage has been kept secret, or a first wife whose husband has moved to another household, the pages Secret polygyny and Existing wife explain the specific rights of each.

Sources & references