mutaah is a consolatory gift or some sort of compensation to the ex wife?

1. Payment Of Mut'ah
After Divorce;
Consolatory Or Compensation ?
SITI NUR JANNAH BT HASANUDDIN
G1813858

2. Contents
• Definition of Mut’ah
• Mut’ah in Islam
• Mut’ah in other countries:
- Malaysia
- Bangladesh
- Indonesia
- Issues arising in regards to Muta’ah
- Conclusion

3. Definition of Mut’ah
• The word mut’ah carries four implications which include;
1) mut’ah pilgrimage (hajj)
2) Mut’ah marriage (Temporary marriage)
3) Mut’ah (consolatory gift given by husband to wife upon divorce)
4) Mut’ah which refers to the property given by the wife to husband after
aqad to be used for enjoyment based on the custom of certain places.
• Kamus Dewan, third edition, published by Dewan Bahasa dan
Pustaka, year 2002 issue, page 913, defined the meaning of
muta’ah as a husband’s gift (not compulsory [wajib] be given to a
wife after a divorce).
• Mut’ah is a payment made by a husband to his divorced wife as a
symbol of humility and kindness to remove any cause of
accusation or shame, which may arise from the divorce and to
lessen her financial burden caused by the separation.

4. Mut’ah in Islam
• Muta’ah originates from the Arabic word al-
Mataa’ ( ‫متاع‬ ) meaning things which may delight
the heart and can be put to good use.
• Syarak point of view; (Shafie)
•‫بشروط‬ ‫لمفارقة‬ ‫الزوج‬ ‫على‬ ‫يجب‬ ‫مال‬
it means granting of a husband’s assets which is
compulsory (wajib) to the wife after divorce under
certain terms and conditions.

5. • The evidence which suggests that muta’ah is
compulsory (wajib) is contained in Allah’s
commandment in Al-Baqarah (verse 236):
“There is no blame upon you if you divorce women you
have not touched nor specified for them an obligation.
But give them [a gift of] compensation - the wealthy
according to his capability and the poor according to
his capability - a provision in fair manner. That is a
duty upon the good-doers.”

6. • Hadith
The Prophet told an Ansar man who married a
girl from Bani Hanifah “Give her mut’ah even
with your songkok”
Muhammad Jamal al-Din al-Qasimi, Tafsir al-Qasimi al-Musamma
Mahasin al-Takwil (Lubnan: Dar Ihya al-Turath al-‘Arabi, 1st edn.,
1994), vol. 1, 576

7. • The second evidence can be found in Al-Quran,
Al-Baqarah (verse 241):
• “And for divorced women is a provision
according to what is acceptable - a duty upon
the righteous.”

8. Al Ahzab, (verse 49)
• O you who believe if you marry believing women
and then divorce them before you have touched
them (read tamassūhunna or tumāsūhunna) that
is, before you have copulated with them, there
shall be no [waiting] period for you to reckon
against them, [no] waiting period [needed to
preclude pregnancy] or otherwise. But provide for
them, give them what they can use for [securing]
comforts, in cases where no dowry has been fixed
for them; otherwise theirs is to retain half of what
was fixed

9. THE RIGHTFUL GROUP
• Muta’ah is to be given by the husband to the ex-wife under the
following conditions:
Wife’s
Conditions
→
Four
Mazhabs ↓
Divorce BEFORE
sexual
intercourse takes
place and
DOWRY has NOT
BEEN FIXED at
the time of
marriage
Divorce BEFORE
sexual
intercourse takes
place and
DOWRY has
BEEN FIXED at
the time of
marriage
Divorce AFTER
sexual
intercourse takes
place and
DOWRY has NOT
BEEN FIXED at
the time of
marriage
Divorce AFTER
sexual
intercourse takes
place and
DOWRY HAS
BEEN FIXED at
the time of
marriage
HANAFI Wajib Sunat Sunat Sunat
MALIKI Sunat Wajib Sunat Sunat
SYAFIE Wajib Wajib Wajib Wajib
HANBALI Wajib Wajib Is Not
Prescribed
Is Not
Prescribed

10. NOT ENTITLED TO MUT’AH
Wife who;
o Husband died
o Apostate (Murtad)
o Disobedience (Nusyuz)*
o Fasakh (separation/dissolve by judge) due to wife’s
defects(aib) - (suffering from contagious disease;
HIV or ) OR husband’s defects – impotent, insanity
# cannot be regarded as wife’s defects
- Incompatible - ZAHRAH v SAIDON 3 (1983) JH 225
- Not a virgin - ASIAMAMAL v ABDUL JABBAR 3 (1983) 1JH 262

11. Muta’ah Rate
• In Islam, the rate of muta’ah is not fixed. It can
be cloths, property or belongings.
• The rate of muta’ah may be determine through a
consensus by both husband and wife.
• It should be based upon husband’s financial
standings, the wife’s line of heritage and
behaviours.
• The wife will receive the amount of muta’ah as
agreed by both parties.

12. MUTA’AH IN SELECTED COUNTRIES
MALAYSIA
Syafie – Wajib to give muta’ah to wife after divorce
In IFLA - ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT 1984 (ACT 303)
Section 56.
Mut'ah or consolatory gift to woman divorced without just cause.
In addition to her right to apply for maintenance, a woman who has been
divorced without just cause by her husband may apply to the Court
for mut'ah or a consolatory gift, and the Court may, after hearing the
parties and upon being satisfied that the woman has been divorced
without just cause, order the husband to pay such sum as may be fair and
just according to Hukum Syara'.

13. Highest amount Muta’ah claim
• Mahmud Abu Bekir and Shahnaz were married on Jan 9, 1992. the couple
have an 18-year-old son. They divorced on May 11, 2011.
• Shahnaz is claiming RM100 million in gift and another RM300 million
(amended to RM 500 mil) in jointly acquire property to resolve the dispute.
• Shahnaz gave a teary testimony when she described how she had to
undergo physical and mental abuse by Mahmud Abu Bekir. She also
described how her former husband would often leave home, and had
brought another woman to her sister-in-law’s wedding.
• She also told the Syariah High Court that she had related the matter to her
then father-in-law, Sarawak Chief Minister Abdul Taib, and her husband’s
younger brother, but no action was taken by them.
• Shahnaz stated that she did not lodge a police report or a medical report
over the abuses so as not to affect her former husband’s standing.
• Mahmud Abu Bekir also has another wife, a Russian divorcee.

14. • High Court - Judge Muhamad Abdul Karim granted Shahnaz a
RM30mil mutaah claim after considering Mahmud’s monthly credit
card expenses, which was nearly RM1mil and more than RM1bil in his
assets as revealed during the trial.
• The court also had taken into consideration the status of Shahnaz who
was a chartered accountant and the former director of several
companies, as well as her family background. (Dato Sheila Majid’s
older sister)
• Latter, Defendant appeal on the ground the amount is excessive.
Where as Plaintif in her notice, claimed that she was not satisfied
with the quantum awarded and seeking relief from the court to
increase the quantum from RM30mil to RM100mil.
• In 16 Oct 2018 Syariah Appeals Court - upheld the decision by a
Syariah High Court ordering Datuk Seri Mahmud Abu Bekir Abdul Talib
to pay RM30 mil in three instalments of RM10mil each to his ex-wife
Shahnaz A. Majid.
• Whereas the RM 500 mil claim in jointly acquire property was struck
out on the ground it was incomplete.

15. TENGKU PUTERI ZAINAH BTE TENGKU ESKANDAR LWN
DATO' SERI MOHD NAJIB BIN TUN ABDUL RAZAK
[1999] 5 MLJ 50
• A had married R on 15 Julai 1976 and had 4 kids. They divorced
on 27 April 1987 and make an agreement in regards to
education of the kids and R offered A muta’ah RM 36k.
• However, A disagreed and claimed RM 5 mil.
• R in his defence stated that the amount was excessive and
contrary to Islamic practice.
• Syariah Appeals court rejected the A appeal on the ground that
the claim was insufficient as The A did not provide the details of
R financial standing and assets.

16. Types Husband income Amount of Muta’ah Wife entitled
Poor Under RM1,000 RM500 – RM1,000
Moderate RM1,000 – RM3,000 RM1,000 – RM3,000
Rich RM3,000 – RM10,000 RM3,000 – RM5,000
Luxurious/
Wealthy Above RM10,000 Above RM5,000
Rooseliwati Binti Hussein lwn Syed Farouk Azlan
Bin Syed Abdul Aziz, Feb 2013 JH 36 Bhg 1 hlm
100, Syariah KL High court judge had provided
guideline to determined the muta’ah claim based on
the husband’s income;

17.  BANGLADESH
• Bangladesh adheres to the Hanafi School.
• the issue of post-divorce maintenance was first
raised in Hafiz-ur-Rehman vs Shamun Nehar
Begum (47 DLR 1995 HCD).
• The court elaborately explained the concept of
maa’ta in the light of relevant Quranic verses and
equated it as maintenance after divorce.
• According to Justice Latifur Rahman, maa’ta means
certain benefits, privileges and gifts.
• Held ; that a person, after divorcing his wife, is
bound to maintain her on a reasonable scale
beyond the iddat period for an indefinite period
that is to say till she loses the status of a divorcee
by remarrying another person.

18. • This case was contemplated as a landmark case and regarded as an enlightened
judgement as well as a glaring example of judicial activism.
• However, Islamic conservative groups criticized this decision and blamed those
who supported it as anti-Islamic and therefore, the Appellate Division reversed
the decision of the High Court Division.
• The question arose was whether maa’ta could be equated with maintenance as
had been done by the High Court Division.
• The Court, relying on the commentaries of Hedaya and Fatawa-i-Alamgiri,
reasoned that the word maa’ta as used in the Quranic verse was never
understood as maintenance or provision in the sense of legal, formal and
regular supply of necessaries of life and livelihood to the wife.
• It is a consolatory offering or parting gift to a divorced woman as a comfort and
solace for the trauma she suffers from divorce.
• The court viewed that maa’ta can be referred as maintenance beyond the
period of iddat and statutorily provided in the case of poorer women who are
destitute and suffering in the hand of unjust and cruel husbands.
# why this issue arise? Because Section 9 of Muslim Family Laws Ordinance of
1961 is silent on the issue of post-divorce maintenance. In the absence of such
legal provision, Bangladeshi divorced woman suffers from lack of financial support
as during the post-divorce period.

19. In the case of Ahmed Ali Khan vs. Sabha Khatun Bibi (PLD
1952 Dacca), the court adjudged that when the wife works
against the husband’s wishes, she becomes a rebellion or
disobedient. Thus she was not entitled to post divorce
maintenance (maa’ta) from her husband.
A wife is considered to be disobedient to his husband in the
following circumstances:
i. if without a valid excuse she disobeys his reasonable
orders;
ii. if she refuses to perform marital obligations without
valid reasons;
iii. refuses to cohabit in the house he has chosen;
iv. goes on Hajj without his consent unless it is obligatory
for her to go;
v. takes employment outside the house without his
consent

20.  INDONESIA
• In the book “Kompilasi Hukum Islam di Indonesia” by
the Direktorat Pembinaan Peradilan Agama Islam
Ditjen Pembinaan Kelembagaan Islam Departemen
Agama [2001] defined Muta’ah is as a gift.
“yang dimaksud dengan Mut’ah adalah pemberian
bekas suami kepada isteri, yang dijatuhi talak berupa
benda atau uang dan lainnya”
• Pasal 149 - Bilamana perkawinan putus karena talak,
maka bekas suami wajib:
a. memberikan mut`ah yang layak kepada bekas
isterinya, baik berupa uang atau benda, kecuali bekas
isteri tersebut qobla al dukhul

21. • Pasal 158 - Mut`ah wajib (compulsory)
diberikan oleh bekas suami dengan syarat :
a. belum ditetapkan mahar bagi isteri ba`da al
dukhul;
b. perceraian itu atas kehendak suami.
• Pasal 159 - Mut`ah sunnat (commendable)
diberikan oleh bekas suami tanpa syarat tersebut
pada pasal 158.
• Pasal 160 - Besarnya mut`ah disesuaikan
dengan kepatutan dan kemampuan suami.
(amount of muta’ah)

22. Lina lwn Sule
• (20/9/2018) the court Majelis Hakim
Pengadilan Agama Cimahi granted Lina her
divorce claim.
• However Lina claim for muta’ah which is a
house was rejected by the court on the
ground that Lina had an affair with a man
named Teddy.

23. Issues
Rate of Muta’ah - High claims of Mut’ah –
Mut’ah beyond the expiration of iddah period.

24. Conclusion
• Muta’ah is a consolatory gift to a wife after a
divorce has taken place, for the purpose of
lessening the burden and difficulties caused by the
divorce as well as to alleviate the suffering and
hatred which may have been caused by the
divorce.
• The gift of muta’ah should be best done according
to the affordability of the husband and willingness
of both parties and agreed by the Court.
• This is to avoid muta’ah claim seems like a
compensation rather than consolatory.