MUTAAH (A GIFT FOR EX-WIFE AFTER DIVORCE)

1. DEFINITION OF MUTAAH Mutaah 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 conditions. According to the definition by the Islamic Family Laws Act (Wilayah Persekutuan) 1984, mutaah 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 mutaah as a husbands gift (not compulsory [wajib] be given to a wife after a divorce, while mutaah 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 mutaah from the aspect of a gift or consolation payment from a husband to his wife after a divorce to help lessen the divorced wifes emotional stress and as a replacement payment for the wifes loneliness caused by the divorce. The evidence which suggests that mutaah is compulsory (wajib) is contained in Allahs commandment in Al-Baqarah (surah 1: verse 236): . It means granting of a husbands

assets which is compulsory (wajib) to the wife after divorce under certain terms and

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 Mutaah 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 melian / 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).

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 mutaah. 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 mutaah in full. 3. THE GIFT OF MUTAAH ACCORDING TO ISLAMIC FAMILY ENACTMENT According to Islamic Family Laws Act (Wilayah Persekutuan) 1984 (Act 303), under Section 56 under the topic mutaah 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 mutaah 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 mutaah must be made by the wife to the Court together with the divorce process, claim for iddah (waiting period) and the childrens provision (nafkah). The gift of mutaah 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. MUTAAH RATE The deciding factor to determine the rate of mutaah 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. Mutaah 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 mutaah based on the couples conditions, the
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husbands financial standings, the wifes 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 mutaah 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 wifes 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 mutaah 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 mutaah at less than 30 dirham and more than half of the dowry.

6. CONCLUSION: In conclusion, we are able to understand that mutaah 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 mutaah 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 Ministers 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