T v R [2016] 4 SHLR 34

Syariah Court Of Appeal (Shah Alam)

Mut’ah and Iddah Maintenance

1.    The Appellant and Respondent were married on 19 March 1961 and were blessed with four children.  However, on 4 August 1998, their marriage was dissolved by the Syariah Subordinate Court, Gombak/Hulu Selangor.

2.    Along with the divorce order, the Syariah Subordinate Court of Gombak/ Hulu Selangor (SSC) issued the following orders against both parties (SSC’s Order):

(a) Two houses to be handed over to the Plaintiff;

(b) All monthly rental income from these houses, totaling   RM2200.00 per month, to be given to the Plaintiff; and

(c) The Defendant agrees to add RM500.00 monthly to the monthly allowance for a period of 30 months.

3.    The order was issued by the Court with the agreement of both parties.

4.    The Respondent filed a claim for mut’ah and iddah on 29 January 2001, at the Syariah High Court of Shah Alam, Selangor (SHC), with an iddah maintenance claim of RM5,000.00 per month, totaling RM15,000.00 throughout the iddah period and a mut’ah claim of RM408,000.00 against the Appellant through Case Mal No. 10XXXXXX of the Year 2001.

5.     On 23 May 2013, the SHC upheld the Respondent’s claim and ordered the Appellant as follows:

(a) The Defendant to pay iddah maintenance to the Plaintiff amounting to Ringgit Malaysia Four Thousand Five Hundred only (RM4,500.00);

(b) The Defendant to pay mut’ah to the Plaintiff amounting to Ringgit Malaysia Fifty Thousand only (RM50,000.00); and

(c) Cost to be borne by each party.

6.    The Appellant was dissatisfied with the decision and submitted an appeal through an Appeal Notice dated 5 June 2013.

7.    Based on the Appellant’s grounds of appeal and after reviewing the trial notes and appeal records, the Court found there are three main issues.

2.    Whether the mut’ah and maintenance for iddah has been paid by the Appellant to the Respondent?

3.    Whether there was a surplus of payment claimable by the Appellant?

1.    Whether the SSC’s Order on 4 August 1998 includes orders regarding mut’ah and iddah maintenance

(a) The Appellant claims that SSC’s Order was a final settlement for all post-divorce matters, including iddah maintenance, mut’ah, and matrimonial property, even though these were not specifically mentioned in the order.

(b) The Respondent disagrees with the Appellant’s testimony. In her testimony, the Respondent states that she was not given any payment for iddah maintenance and mut’ah by the Appellant since their divorce.

(c) Section 78 of Syariah Court Evidence (State of Selangor) (Enactment No. 5 of 2003) provides that –

“Section 78 – Burden of proving fact especially within knowledge

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

(d) In the Appellant’s primary testimony at the SHC dated 25 August 2011, the Appellant clearly stated that the order was meant to include mut’ah and iddah maintenance.

(e) Based on the evidence presented, SHC are satisfied that the payment in the SSC’s Order includes the payment for mut’ah and iddah maintenance.

2.    Whether the mut’ah and maintenance for iddah has been paid by the Appellant to the Respondent

(a) The Appellant argues that he had made a payment of RM31,000.00 to the Respondent after the divorce, which included payment for iddah maintenance and mut’ah amounting to only RM15,000.00.

(b) The Respondent raised a defense that the RM31,000.00 was not payment for mut’ah and iddah maintenance but rather her salary and allowance as a shareholder in Syarikat R managed by the Appellant.

(c) However, the SHC cannot accept this defense because there is no evidence regarding the RM31,000.00 being paid as salary or allowance by the company to the Respondent.

(d) The Court accepted the Appellant’s argument that the amount of RM15,000.00 (RM500.00×30 months) ordered by the SSC has been fulfilled with the payment of a RM31,000.00 cheque by the Respondent for nafkah and mut’ah.  Therefore, the question of the Appellant’s ability to pay RM50,000.00 in relation to the SHC order is no longer relevant.

3.    Whether there was a surplus of payment claimable by the Appellant

(a) The issue concerns the remaining RM16,000 after deducting RM15,000 from the RM31,000 cheque cashed by the Respondent.  The amount was given by the Appellant to the Respondent without a Court’s order, making it a gift.  The question is whether it qualifies as hibah (Islamic gift), sadaqah (charity), or hadiah (gift).

(b) Regarding the difference between hibah, sadaqah and hadiah, their definitions was mentioned in the book I’anat al-Talibin, volume 3, page 171, which contain the following:

“Indeed, if something is given by one person to another who needs it for hope or a reward from Allah with the presence of a sighah (statement of intent), then it is both Hibah and Sadaqah.  If the ownership is given with the intention of honoring someone with a sighah, then it is both Hibah and a gift (Hadiah).  If the ownership is given without the intention of seeking reward and without honoring the recipient through a sighah, then it is solely Hibah.   If something is given by one person to another who needs it or hopes for a reward from Allah without the presence of a sighah, then it is solely Sadaqah. If the ownership is given with the intention of honoring someone without a sighah, then it is solely a gift (Hadiah).”

(c) Based on the legal definition, a hibah (gift) requires a sighah (formal declaration of intent). In this case, since there was no proven sighah, the transaction cannot be classified as a hibah. Instead, it would be considered either sadaqah (charity) or hadiah (gift). However, the legal effect remains the same – there was still a valid transfer of ownership from the Appellant to the Respondent.

(d) The Appellant’s statement dated 27 October 2011 stated the following:

“During the divorce trial, regarding the payment of RM5000.00, this order recorded the terms.  It was written differently from what I agreed to.  I agreed to pay RM5,000 ringgit per month for the iddah period, totaling RM15,000.00.  What was recorded in the order was that the Plaintiff agreed to add RM500 to the monthly allowance for 30 months. This does not change my agreement; the additional payment was because the Plaintiff always asked me for money, so I agreed to give her an additional RM16,000 as a gesture of goodwill.  This RM16,000 is not iddah maintenance.  It was not recorded as iddah maintenance or mut’ah…..”

(e) Based on the statement, the SHC was satisfied that the RM16,000.00 from the cheque balance is a goodwill gift from the Appellant to the Respondent.

(f) SHC also referred to Sahih Bukhari by Imam al-Bukhari, and cited the following:

“The one who takes back his gift is like a dog that vomits and then licks its vomit.”

(g) Hence, the Court found that the transfer of ownership has occurred thus making it inappropriate for the Appellant to reclaim the gift.

1.    The Appellant’s appeal was granted.

2.   The Syariah High Court order dated 23 May 2013 in case Mal No.  10XXXXXX Year 2001 is dismissed.

1.    The intention and acknowledgment of the giver are crucial elements in determining the status of a gift.  In this case, the Appellant’s own admission that the money was a ‘goodwill’ gesture serves as strong evidence that it was a voluntary gift.

2.   The Islamic principle regarding gifts is clear; once a valid transfer of ownership has occurred, the gift cannot be reclaimed. This is reinforced by the hadith, which likens the act of taking back a gift to a dog licking back its own vomit.

3.    This case establishes an important precedent in matrimonial property disputes that a voluntary gift, once completed, cannot be revoked, even in the context of post-divorce disputes.