World Class Higher Education in Malaysia: USIM LAW Undergraduate 5

World Class Higher Education: USIM LAW Undergraduate

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 1050643

The fact of this case Zarina and her husband, Zarul and both of them are Syafie sect. Zarina at the period of marriage was uncooperative and left her matrimonial home. The issue here, whether Zarina has the right to claimed for Mutaah.

According to section 2 of interpretation Islamic Family Law Act 1984, “mutaah” refer to consolatory gift that is reasonable according to hukum Syara’, given to a divorced wife.

Refer to the case Haji Ali v Aishah where the wife had claimed for mutaat after left the matrimonial home by the reason diffirnt opinion with the first wife. On the defence, the husband claimed that the wife refuse to comeback when he applied for it. The learned Judge on this case had made an issues, whether the nusyuz had been applied upon the wife and whether the husband had capability for the mutaah, where at that time he was ill and jobless. Then, the Judge had made the decision by stated eventhough the wife had nusyuz upon the husband, she still have the right on claiming the mutaah.

According to Section 56 of the same act, a woman who had been divorced without just may apply for the court to mutaah.

On the reported cases, the court was held that mutaah is a consolatory gift from the husband to the wife. The wife may claim for mutaah on the divorced which not defect on the part of her, or divorced injustly. The payment of mutaah also is to help the wife on the living after she had been divorced by the husband.

In the other reported cases, the wife had claimed for mutaah after she had been divorced by the husband. On the defence, the husband stated he had been forced to married with the wife as the displinary action on him. The husband also mention that the wife on the period of marriage failed to do the house duty where she can’t cook and washing his clothes. The court held, even though the wife had failed on her duty, she still has the right for mutaah as a consolatory gift.

Furthermore, on the reported cases, the wife had made a claimed to the husband. On the defence, the husband mention that the wife also failed to the duty of household where he will keeping his bed room by his own and also the wife had failed for cooking meals on him. By the cause of that, he had refuses to paying the mutaah. But, the court held that, the mutaah is a gift to the divorced wife and she has the right for the claiming.

 For the conclusion, by refering those cases and Zarul’s case, as a wife, Zarina has the right for the claimed of mutaah upon Zarul where they had living together for a certain period of time. As a husband, Zarul must giving or on his duty to give the mutaah or a consolatory gift to Zarina even though the amount is not too much.

[Marks earned: One (1) out of Twenty (20)]

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