MKBA v SFMS [2019] 1 ShLR 71

Syariah Court of Appeal (Selangor)

Admissibility of the documents for Mutaah Entitlement- Judicial Review

2.     On 11 June 2013, the Applicant and the Respondent were divorced outside the Court.  Eventually, the said divorce was affirmed by the Syariah Subordinate Court on 15 July 2013.

3.     On 2 July 2014, the Respondent filed a mutaah claim of RM 500,000.00.

4.     The Applicant prayed to include several documents (the said documents) as follows:

(a)  a copy of the police report dated 9 December 2013

(b)  a copy of the police report dated 10 December 2013,

(c)  a copy of Affin Bank’s verification letter dated 7 July 2015

5.     However, the application was dismissed by the trial judge.

6.     Hence, the Applicant filed the present application to obtain the following orders including:

(a)  that the Applicant be granted leave according to Section 68(1) and 68(2) of the 2003 Enactment to exercise the power to review of the decision at the Syariah High Court in Shah Alam that dismissed the admissibility said documents on the grounds that the dates on the document were after the divorce;

(b)  all the documents attached by the Applicant in the bundle of documents are admissible by the Court to be tendered as evidence during court proceedings;

(c)  the Court suspend the proceedings of mutaah claim filed by the Respondent pending the decision of the Syariah Appeal Court on the judicial review proceedings

(d)  the Respondent bear the cost for the judicial review application; and

(e)  any order(s) as the Court deems fit and reasonable.

7.     On 27 December 2016 and 8 February 2017, the Applicant provided his testimony to the Court.

8.     On 8 February 2017 also, the Applicant submitted a number of supplementary affidavits and tendered a few documents to the Court. However, the Court rejected the application for tendering those documents.

9.     The Applicant was dissatisfied with the Court’s decision and applied for judicial review application against the decision of the Syariah Court of Appeal Selangor.

(a)  Section 125 of the Syariah Court Civil Procedure (Federal Territories) Act 1998 (Act 585) provides that-

“Section 125. Documents or exhibits.

(1) Documents or other exhibits put in evidence and accepted shall be marked and, unless the Court otherwise orders, such documents or exhibits or copies of the documents or exhibits shall be retained in Court during the pendency of the proceedings and until the time for appeal has expired.

(2) For the purpose of identification, documents or other exhibits tendered in evidence but rejected, shall also be marked.”

(b)  Section 125 of Act 585 explained that the documents tendered to the Court as the evidence must be marked whether the evidence given is accepted or rejected by the Court.

(c)  The Applicant did not specify what documents have been rejected by the Syariah High Court in the notice of the review application and the affidavit used to support the application.

(d)  However, the Applicant only stated ‘the document attached by the Applicant in relation to the mutaah case’.

(e)  In fact, the Applicant had claimed that the trial judge had rejected such documents on the grounds that the date of the documents was after the divorce occurred between the Applicant and the Respondent.

(f)    The Court also examined the Applicant’s documents referred to in the affidavit of the Applicant dated 8 February 2017.

(g)  The Court found that some of the documents have already been marked by the trial judge as follows

(i) copies of the Police Report dated 9 December 2013 and 10 December 2013 were rejected by the Syariah High Court;

(ii) a copy of the Police Report dated 16 December 2013 rejected by the Syariah High Court; and

(iii) a copy of the Affin’s Bank confirmation letter and a copy of the cheque were rejected by the Syariah High Court

(h)  Having reviewed all the documents, the Court found that the documents were rejected by the trial judge was because the same were unrelated to the mutaah case.

(i)   In examining the relevancy of the documents with regards the present application, the Court found that the Applicant had claimed that the Respondent stole the Applicant’s Affin Bank chequebook and forged the Applicant’s signature when signing the cheque for donations to Make A Wish Malaysia, Ronald McDonald House Charities, MAKNA and National Cancer Society Malaysia.

(j)   By applying the principles of Section 125 of Act 585, the Court decided that any documents tendered as evidence which pleaded certain facts can be raised or used in a trial.  However, it depends on the relevancy and the admissibility of the evidence. Hence, the evidence in the form of a document must be marked whether it is accepted as a document or not by the Court.

(k)   As a matter of fact, the Applicant had used the rejected documents presented as evidence in the trial court as the grounds to show that the Respondents are not eligible for mutaah.

(l)  However, the Court of Appeal decided that the rejected documents by the trial Court are irrelevant to disprove the Respondent’s eligibility to claim mutaah.

(m)    In addition, the Court also referred to Section 58 of the 2003 Enactment which provides that-

“Section 58. 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 Syarak.”

(n)  By applying the provision above, the Court found that the determination of mutaah is largely relying on the reason of the extent of the divorce in which becomes applicable for a woman whom her husband has divorced without a reasonable course

(o)  Therefore, any matters or facts occurred after a divorce are irrelevant in determining the ineligibility or disqualification of a divorced woman to claim for the mutaah.

(p)  In the present case, the Court is of the view that the documents were all related to matters which occurred after the divorce had taken place. Hence, the trial judge’s decision that the said documents were inadmissible was correct.

2.   Mutaah is a consolatory gift a husband gives to his divorced wife intended as compensation for her efforts and services to the husband and family during the marriage.