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MUTA'AH _A GIFT FOR EX- WIFE AFTER DIVORCE_

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					          MUTA’AH (A GIFT FOR EX-WIFE AFTER DIVORCE)



1. DEFINITION OF MUTA’AH

      Muta’ah originates from the Arabic word al-Mataa’ (          ) meaning things
which may delight the heart and can be put to good use. From Syarak point of view it

is                                             . It means granting of a husband’s
assets which is compulsory (wajib) to the wife after divorce under certain terms and
conditions.


      According to the definition by the Islamic Family Laws Act (Wilayah
Persekutuan) 1984, “muta’ah” refers to the gift payment which is given to a divorced
wife in accordance to Islamic Laws”.


      Kamus Dewan, third edition, published by Dewan Bahasa dan Pustaka, year
2002 issue, page 913, defined the meaning of muta’ah as a husband’s gift (not
compulsory [wajib] be given to a wife after a divorce, while “muta’ah marriage” is
defined as a contractual or temporary marriage (one which is allowed during the
early development stage of Islam but later prohibited [haram]).


      The issue to discuss here is not the contractual marriage but muta’ah from the
aspect of a gift or consolation payment from a husband to his wife after a divorce to
help lessen the divorced wife’s emotional stress and as a ‘replacement payment’ for
the wife’s loneliness caused by the divorce.


      The evidence which suggests that muta’ah is compulsory (wajib) is contained
in Allah’s commandment in Al-Baqarah (surah 1: verse 236):




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Meaning:
       “There is no blame upon you if you divorce women you have not
       touched nor specified for them an obligation. But give them [a gift of]
       compensation - the wealthy according to his capability and the poor
       according to his capability - a provision according to what is acceptable,
       a duty upon the doers of good.”


       The second evidence can be found in Al-Quran, Al-Baqarah, verse 241:




Meaning:
       “And for divorced women is a provision according to what is acceptable
       - a duty upon the righteous.”


2. THE RIGHTFUL GROUP
       Muta’ah is compulsory (wajib) to be given by the husband to the ex-wife under
the following conditions:
   a) The wife is divorced after a sexual intercourse has taken place.
   b) The wife is divorced before a sexual intercourse takes place and the dowry
       (mahar) was not mentioned during the marriage covenant (akad nikah).
   c) The wife is decreed to be separated from the husband (separation because
       the husband becomes murtad or meli’an / accusing the wife of adultery. The
       divorce happens after or before a sexual intercourse takes place with the
       condition that the dowry was not mentioned in the marriage covenant (akad
       nikah).



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      If the wife is divorced before any sexual intercourse and the dowry was
      mentioned in the marriage covenant, the wife does not have the rights to
      receive muta’ah. This is because she has not received half of the dowry and
      she has not given any service to her husband. If the divorce transpires
      because the wife becomes murtad, divorce by khuluk or nusyuz, the wife does
      not have the rights to receive anything from the husband. However, for cases
      whereby the wife has had sexual intercourse, even if the divorce is originates
      from the wife, she still has the rights to receive muta’ah in full.


3. THE GIFT OF MUTA’AH ACCORDING TO ISLAMIC FAMILY ENACTMENT
      According to Islamic Family Laws Act (Wilayah Persekutuan) 1984 (Act 303),
under Section 56 under the topic muta’ah or the give of gift to a divorced woman
without any justifiable cause reads out as such: “other than her rights to request for
nafkah, a woman who has been divorced without any justifiable cause may request
for muta’ah or a compensation from the Court and the Court may, after hearing the
reasons from all parties and is satisfied that the woman has been duly divorced
without any justifiable cause, order the husband pay a just and reasonable amount of
money to the divorced wife according to the Syarak Law”.


      The request for muta’ah must be made by the wife to the Court together with
the divorce process, claim for ‘iddah (waiting period) and the children’s provision
(nafkah). The gift of muta’ah may be done one time only, compared to the payment
for ‘iddah provision which must be paid out throughout the ‘iddah period. The
provision (nafkah) for the children must be made continuously until the children
reach puberty.


4. MUTA’AH RATE
      The deciding factor to determine the rate of muta’ah may be reached through
a consensus by both husband and wife at a certain rate or otherwise. The wife will
receive the amount of asset as agreed by both parties. Muta’ah is valid based on
whatever amount is agreed upon.


      Should there be any conflict in deciding the rate, the kadhi (judge) has the
rights to determine the rate of muta’ah based on the couple’s conditions, the
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husband’s financial standings, the wife’s line of heritage and behaviours. This is
based on a verse in Al-Quran, surah Al-Baqarah: verse 236:




Meaning:
       “But give them [a gift of] compensation - the wealthy according to his
       capability and the poor according to his capability”.


       The suggested muta’ah rate is no less than 30 dirham or equivalent to it, and
not more than half of the acceptable dowry (mahar misil). Acceptable dowry is
normally rated according to the dowry of the other female siblings of the wife’s
kinship who share the same parents, or the same father or an aunt. Other factors to
consider in determining the acceptable dowry include beauty, wealth and
geographical location – because dowries are rated differently in different states.
Each state has its own customs and traditions. Similarly to the status of a woman,
normally a virgin is more favoured or desired than a divorcee. The same favouritism
is applicable on the aspects of maturity of thinking, piousness, morality, knowledge,
gracefulness and so on.


       The comparison may not be exact between two women regarded as
comparable in every aspect – sufficient with some similarities with no apparent gap.
It rests on the level of diplomacy of the parties involved within a particular family and
society.


       According to the Syafie’ Sect, there is no fixed muta’ah rate. At the very least
is whatever available of a certain value and without any fixed maximum rate. Should
both husband and wife agree on a certain rate, hence that would be the best
practise. If not, the rate should be decided by a kadhi (Court) according to both
parties’ situations. It is favourable (sunaat) not to rate the muta’ah at less than 30
dirham and more than half of the dowry.




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6. CONCLUSION:
       In conclusion, we are able to understand that muta’ah is a compassionate gift
to a wife after a divorce has taken place, for the purpose of lessening the burden and
difficulties caused by the divorce as well as to alleviate the suffering and hatred
which may have been caused by the divorce.


       The gift of muta’ah should be best done according to the affordability and
willingness of both parties and agreed by the Court. It must be understood that the
Court is not a place to disclose the weaknesses of the husband or the wife, but
merely the place to achieve justice for all.


References
1. Al-Quran al-Karim (surah Al-Baqarah, verse 236).
2. “Tafsir Pimpinan ar-Rahman Kepada Pengertian al-Quran” (Rumi Edition),
   Islamic Affairs Division, Prime Minister’s Department, Fifth Print 1992.
3. Kamus Dewan, Dewan Bahasa dan Pustaka, Kuala Lumpur, Third Edition 2002.
4. “Kitab Fikah Mahzab Syafie - Bab Undang-Undang Kekeluargaan” by Dr. Musfafa
   al-Khin, Dr. Mustofa al-Bugho dan Ali asy-Syarbaji, Pustaka Salam Sendirian
   Berhad – First Print, 2002.
5. “Asas Kefahaman Islam” (Bahasan Empat Mahzab: Syafie, Hanafi, Maliki dan
   Hambali) by Hassan Salleh, Dewan Bahasa dan Pustaka, Kuala Lumpur, 1992.
6. “Akta Undang-Undang Keluarga Islam Wilayah Persekutuan 1984” (Act 303)
   International Law Book Services, 1995.




Mahayudin bin Abu Bakar
Assistant Director
NCR Management Unit
KESUMA Division, JAKIM




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