SHAHNAZ BT MAJID v DATO’ SRI MAHMUD ABU BEKIR TAIB [2018] 3 ShLR

 

Shahnaz bt Majid v Dato’ Sri Mahmud Abu Bekir Taib [2018] 3 ShLR

Syariah High Court (Kuala Lumpur)

Mut’ah

Facts of the case

1.    The Plaintiff and the Defendant were married on 9 January 1992 in Kuala Lumpur.  They were later divorced on 11 May 2011 based on talak raj’ie at the Syariah High Court of Kuala Lumpur.

2.    On 9 June 2011, the Plaintiff formally filed a claim for the entitlement of mut’ah of One Hundred Million Ringgit Malaysia.

3.    But, the Syariah Court of Appeal in Wilayah Persekutuan on 14 November 2012 had reviewed the proceeding at Syariah High Court and ordered the case to be heard before a different trial judge.

Issue 1.    Whether it is compulsory for the husband to pay the mut’ah to the wife after divorce?

2.    What was the reasonable amount of mut’ah?

Ratios

1.    Whether it is compulsory for the husband to pay the mutaah to the wife after divorce?

(a) Section 2 of Islamic Family Law (Federal Territories) Act 1984, (Act 303) provides that-

“Mut’ah’ means a consolatory gift that is reasonable, according to Hukum Syarak, given to a divorced wife.”

(b) In the book of Badai’ al Manan fi Jamie Wa tartib Musnad As Syafie wa Al Sunan, Juz 2 page 381 explains that-

“Imam As-Syafie has told Imam Malik that every husband is imposed with an obligation upon them to pay mut’ah to his divorced wife.”

(c)  In the case Piah bt Said v Che Lah bin Awang [1983] (ii) 3 JH 220

“Mut’ah is a gift borne over to a husband divorcing his wife. The payment of mut’ah does not fall in any circumstances unless the divorce is due to a loss on the part of the wife or due to the husband’s death.”

(d) The Court in this case also referred to the case of Zawiyah binti Ruslan [1980] 1 (ii) JH 102, where the Court is of the view-

“It is stated that mut’ah is payable when divorce is done voluntarily by the husband and not by the wife such as fasakh.”

(e)   Furthermore, the Court asserted that it relied on the Syafie School, where the requirement for the Defendant to provide mut’ah as a gift to the Plaintiff is mandatory post-divorce.  The Court was convinced of the Plaintiff’s entitlement to mut’ah, making it the Defendant’s duty to fulfil the obligation and pay the mut’ah to the Plaintiff.

(f)     Hence, the Court in this case held that the Defendant is legally bound to provide mut’ah to the Plaintiff, and this obligation persists even if the Plaintiff is divorced without valid justification.

2.          What was the reasonable amount of mut’ah?

(g)   The Court referred to the book of Hasyiah I’anah Talibin Juz 3, page 596, where it is illustrated that –

“mut’ah rates are the rates agreed upon by both parties or another opinion is the rate at which to be married (mas kahwin);”

(h)   In the case of Ida Hidayati binti Taufik lwn Ahmad Shukri bin Kassim [2004] 18 (ii) JH 259, the Court found that there hasn’t been a determination of the specific amount of money to be paid to the divorced wife. According to Shafie Scholar, when the Court approves mut’ah, it should not be less than 30 dirhams or an equivalent substitute.

(i)     The Court referred to the book of Hasyiah I’anah Talibin Juz 3, page 596, where it is illustrated –

“In the event of a discrepancy concerning the mut’ah amount between the involved parties, the adjudicator will ascertain the appropriate sum by considering both parties’ individual capacities, lineage, and attributes, with specific attention to the husband’s circumstances.”

(j)     In this case the Court decided that the Defendant, widely recognized, as the son of a former Chief Minister of Sarawak. The Plaintiff, likewise, hails from an esteemed and renowned family.  The Defendant also possesses capabilities, as demonstrated by the appointment of his Public Relations Consultant.  The company’s appointment was aimed at disseminating information related to this case. The Court is informed that the consulting company’s appointment incurred expenses totalling RM890,400.00 and the contract with the company was for two years, commencing from 1 June 2014 to 31 May 2016.

(k)    While there is no specific criterion in determining the appropriate mut’ah rate to be accepted by the Plaintiff, the Court tended to rely on the ruling made in the case of Suraiya bt M Shafie lwn Abd Shukor bin Mohd Hashim JH 27 Bhg I-

“As decided by the judge, the primary determinant in mut’ah is the husband’s capacity, the status of both the husband and wife, and consideration of other relevant factors such as the wife’s sacrifices, preservation of dignity, and emotional well-being. This implies that financial capability should be bolstered by additional factors such as one’s occupation, social standing, and the status of one’s spouse, among others. Merely relying on one’s ability will inevitably lead to unfairness, resulting in the imposition of unjustifiable fees.”

(l)     In this case, the Plaintiff holds a degree in economics from George Mason University in Virginia and a master’s degree in business management (finance) from DC American University in Washington, DC.  Following their marriage, the Plaintiff significantly contributed to the growth and success of the Defendant’s Sarawak securities company. The Plaintiff has chosen to cease employment and dedicated her life for the family.

 

 

Decision

1.    The Syariah High Court of Kuala Lumpur allowed the application, and the mut’ah was granted for RM30 million.

2.    The amount must be paid in three instalments by March 31, June 30, and September 30, 2016. Each payment shall be RM10 million. The mut’ah payment is considered complete if made in a lump sum on March 31, 2016, and no further payments are required in June and September 2016.

3.    The mut’ah payment is deemed settled if RM10 million is paid in the initial month of March 2016 and RM20 million is paid in the second month of June 2016. The mut’ah payment is likewise deemed finalized when the initial payment of RM30 million is rendered.

 

Key Take Away

1.    Mut’ah, also referred to as indemnity or remuneration, is a financial contribution provided by a husband to his ex-wife following the dissolution of their marriage.

2.   Mut’ah serves as a form of monetary support for the wife to help her navigates the complexities of her life following a divorce.  Mut’ah is a requirement under Hukum Syarak, among other reasons, that alleviates the wife’s shame, prevents slander, and enables a new life for the wife. It is imperative to support highlight that mut’ah is an obligatory provision following Hukum Syarak, as it is intended to address divorces that are not a result of the wife’s misconduct.

 

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