World Class Higher Education: USIM LAW Undergraduate 6

World Class Higher Education: USIM LAW Undergraduate 7 

 

 

5.         Zarina and her husband, Zarul are of the Shafie Sect (Mazhab). She was uncooperative during the subsistence of her marriage and left her matrimonial home. She applied for divorce and claimed for Muta’ah.

 Zarul seeks your advice regarding Zarina’s claim for Muta’ah. Advise him based on the Shafie Sect and provide the relevant case law (if any).

                                                                                                                        (20 Marks)

 

Answer Scheme

Zarul’s case is on all fours (1 mark)

with the Johore case of Maimunah v Abdullah (2 marks)

The wife applied for divorce (1 mark)

And the learned Syariah court judge found that the divorce was caused by the wife (1 mark)

as she was uncooperative (1 mark)

and had left the matrimonial home (1 mark)

the learned Syariah judge therefore dismissed her claim for Muta’ah (1 mark)

Of RM1750 (1 mark)

Relying on the view of Imam Shafie (1 mark)

As stated in the Majmuk (1 mark)

To the effect that although a wife is entitled to Mu’taah If she has been divorced by her husband (1 mark)

Even after consummation of the marriage (1 mark)

Such payment is not obligatory (1 mark)

If the divorce is caused by the wife (1 mark)

As the purpose of Mu’taah is to lighten the burden of the wife (1 mark)

And to help her after the divorce (1 mark)

If she does not agree to the divorce (1 mark)

And does not want to bear the burden of the divorce. (1 mark)

Based on the case Zarul is advised that Zarina’s claim for Mu’taah Is likely to be dismissed. (1 mark)

 

 

Sample answer by USIM LAW undergraduate 1050845

 

According to the Syafie sect, the husband is incumbent to pay muta’ah to the wife when the divorce was effected. The husband also is incumbent to pay a maintenance to the wife during the eddah or waiting period.

 

According to the case of Che Pah’s, the divorce wife claimed for the muta’ah in addition to maintenance during the eddah period. They have been married for 43 years. The wife claimed that her husband harsh to her and her left the matrimonial home. Then the conciliation committe have been make to reconcile them but have been failed. The wife also did not go to the Kadi to make any report on what have been done by her husband. The learned chief kadi held that, according to the parties and the witnessed, the wife is not entitled to get the maintenance because she was nusyuz or recalcitrant but only entitled to get the muta’ah. The court order to the husband to pay RM 500 muta’ah.

 

In other case, Zahrah v. Saidon, the divorce wife claim for muta’ah in addition of maintenance during the eddah period. The husband in this case was admitted to divorce his wife on the ground that the incompatibility between them and there is no any default. The learned chief kadi held that, the wife is entitled to get muta’ah as the divorce was effected.

 

Likewise in the case Syed Bulat v Intan, the divorce wife claimed for muta’ah. The wife claimed that the husband was compell her to lend the husband money for his own use. The husband was admitted and as the divorce was effected, the wife is entitled to get the muta’ah.

 

Meanwhile in the case Normaidiah v Azhari, the both parties have been marriage to avoid the disciplinary actions between them. After marriage the wife did not fulfill her obligation as The wife including did not perform her household duty such as cooking, and washing clothes. The husband divorce her and pay for muta’ah towards her.

 

While in the case Zawiyah v. Roslan, the divorced wife claimed for muta’ah. The learned chief kadi stated that according to Islamic Law it is an obligation to pay a muta’ah on husband as the divorced was effected. A then the learned chief kadi stated the amount of muta’ah is based on the conditions of husband as he refferred to the Kitab Fathul Muin stated that the poor according to his means and the poor according to his means. The wife was entitled to get the muta’ah.

 

According to the relevant cases, Zarul must pay for the Zarina’s claim for muta’ah only and Zarina was not entitled to get the maintenance for eddah period, according to the ruling in the Che Pah’s case, where when the wife is nusyuz or recalcitrant, she was not entitled to get the muta’ah and she can only entitled to get the muta’ah payment.

 

[Marks earned: Zero Point Four (0.4) out of Twenty (20).

 

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