ISLAMIC FAMILY LAW [LLB 01503]

TITLE: ALLOCATION OF MUTA’AH TOWARDS

DIVORCED WOMAN & EX-PARTE JUDGMENT
(QUESTION 2)

LECTURER: MADAM NOOR 'ASHIKIN BINTI HAMID

NAME MATRIC NO.

AHMAD IHSAN BIN JALALLUDIN 051105

AHMAD IZZAT BIN ROESLAN 051723

MOHAMAD ZAHIRUL AZMEER BIN

050594
MOHD ROSZAIMI
051743
SYAHMI SYAHIRAN BIN SAIFUL KAHHAR
 Table of Contents
Abstract & Keywords ........................................................................................4

Introduction ......................................................................................................4

1st Issue? ..........................................................................................................5

Obligation to Pay Muta’ah in the Al-Quran ................................................... 5-6

Definition of Muta’ah.........................................................................................6

Rights of the Divorced Woman to Claim Muta’ah .............................................6

Muslim Scholars’ Opinion on the Payment of Muta’ah .....................................7

The Effect of Nusyuz to a Woman’s Right to Muta’ah ......................................7

Application on the Present Case ......................................................................8

Conclusion for the 1st Issue ..............................................................................9

2nd Issue ...........................................................................................................9

Determining the Appropriate Sum of Muta’ah ............................................ 9-10

Muta’ah Cases & its Application to the Present Case .............................. 10-14

Conclusion for the 2nd Issue ...........................................................................14

3rd Issue .........................................................................................................14

General Rule on Appearance of Parties in Syariah Court ....................... 14-16

Absence of Parties According to Syariah Civil Procedure Code (Federal Territories)

Act 1998 ................................................................................................... 16-17

Absence of the Parties According to I'anah Al-Thalibin ............................ 17-18

Absence of the Parties According to Syariah Courts in Malaysia & the Development
of Islamic Jurisprudence........................................................................... 18-19

Application to the Present Case ............................................................... 19-20

Conclusion for the 3rd Issue............................................................................20

Suggestion & Conclusion ...............................................................................21

References ............................................................................................... 22-23

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ABSTRACT
First and foremost, muta’ah can be considered as one of the ancillary claims that can

be obtained by the wife after she had been divorced. In this paperwork, the issue of muta’ah

is highlighted when the wife or the plaintiff had asked for muta’ah against her husband. In

the present case, what needs to be noted is that the defendant was formerly an ex-army

officer when the divorce happens. Furthermore, the issue propounded by the present case

also mentions on how the court via its jurisdiction and power have the capability to decide on

the amount of muta’ah that needs to be given to the wife if it can be successfully proven that

the husband or the defendant is obligated to pay the muta’ah towards the wife or plaintiff in

the current case. Last but not least, in the event of the absence of the parties when the

appearance is obligatory before the court, it is of utter importance that we need to find the

basis of the jurisdiction based on the law that governs Muslim community in Malaysia as a

whole which is enshrined under the Syariah Civil Procedure Code (Federal Territories) Act

1998 and also based on the opinions of Muslim jurists that will be explained further below.

KEYWORDS
Muta’ah - Islamic Family Law (Federal Territories) Act 1984 - Syariah Civil Procedure Code
(Federal Territories) Act 1998 - entitlement of muta’ah to the divorced wife - rate of muta’ah -
court proceeding in the absence of the parties

INTRODUCTION
The issue that is presented in this paperwork consisted of three issues. First of all,
the issue is whether the defendant is required to pay muta’ah towards the plaintiff as a post-
divorce gift to amuse her. Secondly, If it can be proven that the plaintiff entitled for the rights
to claim muta’ ah, what is the appropriate sum of muta’ah is adequate to be awarded to the
plaintiff. Last but not least, the issue arise whether Syariah Court has power to continue the
proceeding despite the absence of the husband and his testimony on the matter pertaining
to the entitlement of muta’ah on the part of the plaintiff.

4
1ST ISSUE: WHETHER THE DEFENDANT IS REQUIRED TO PAY MUTA’AH
TOWARDS THE PLAINTIFF AS A POST-DIVORCE GIFT TO AMUSE HER.

OBLIGATION TO PAY MUTA’AH IN THE AL-QURAN

The primary source for which the muta’ah is prescribed to be given is based on
Surah al-Baqarah, verse 241 which reads as:

(al-Baqarah, verse 241)

Meaning: For divorced women muta’ah should be provided on a reasonable scale. This is a
duty on the righteous.

Another verse that elucidates the obligation of muta’ah is based on a verse from
Surah Al-Baqarah which writes as:

“ ‫ضوا لَ ُه ان‬ُ ‫ت َ ْف ِر‬ ‫سو ُه ان أ َ ْو‬

ُّ ‫سا َء َما لَ ْم ت َ َم‬ ِ ‫طلا ْقت ُ ُم‬
َ ‫الن‬ َ ‫علَ ْي ُك ْم ِإن‬
َ ‫اَّل ُجنَا َح‬
ً ‫ْال ُم ْقتِ ِر قَ َد ُرهُ َمت َا‬
‫عا‬ ‫علَى‬ َ ‫علَى ْال ُمو ِس ِع َق َد ُرهُ َو‬ َ ‫َو َمتِعُو ُه ان‬ ۚ ً‫ضة‬َ ‫فَ ِري‬
‫علَى ْال ُمحْ ِسنِين‬ ِ ‫بِ ْال َم ْع ُر‬
َ ‫وف ۖ َحقًّا‬

Meaning: “here 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”

5
Another verse from Surah Al-Ahzab also stated the need for muta’ah:

“ ‫طلا ْقت ُ ُمو ُه ان ِمن قَ ْب ِل أَن‬

َ ‫ت ث ُ ام‬ِ ‫يَا أَيُّ َها الاذِينَ آ َمنُوا ِإ َذا نَ َكحْ ت ُ ُم ْال ُمؤْ ِمنَا‬
َ ‫س ِر ُحو ُه ان‬
‫س َرا ًحا‬ َ ‫علَ ْي ِه ان ِم ْن ِع ادةٍ ت َ ْعتَدُّونَ َها ۖ فَ َم ِتعُو ُه ان َو‬َ ‫سو ُه ان فَ َما لَ ُك ْم‬ُّ ‫ت َ َم‬
ً ‫َج ِم‬
‫يًل‬

Meaning: “O You who have believed, when you marry believing women and then divorce
them before you have touched them, then there is not for you any waiting period to count
concerning them. So, provide for them and give them a gracious release.”

DEFINITION OF MUTA’AH
Muta’ah is enshrined in Islamic Family Law (Federal Territories) Act 1984, which
reads ‘muta'ah" as a consolatory gift that is reasonable according to Hukum Syara', given to
a divorced wife’. In the words of Haji Harussani Haji Zakaria, Chief Kadhi of Pulau Pinang
(as he then) in the course of his judgment in the case of Piah Said v Che Lah Awang, he
opined that: “Muta’ah is a gift liable to be paid by the husband that divorces his wife. The
order of muta’ah is not to be set aside on every cases of divorces except in the matter of
shame on the part of the wife towards her husband or the divorce is caused by natural cause
like death.”

RIGHT OF THE DIVORCED WOMAN TO CLAIM MUTA’AH

The provisions of the Islamic Family Law (Federal Territories) Act 1984 stated about
a right of a woman to claim her muta’ah rights : “ In addition to her right to apply for
maintenance, a woman who has been divorced without just cause by her husband may
apply to the Court for mut'ah or a consolatory gift, and the Court may, after hearing the
parties and upon being satisfied that the woman has been divorced without just cause, order
the husband to pay such sum as may be fair and just according to Hukum Syara’”.
Pursuance to the provision, a woman who are divorced with just cause can plead to the
court to give order on her ex-husband to pay a reasonable sum for the purposes of this Act.
In the case of Jaliah bte Hassan v Abu Bakar bin Wan Abdullah, Haji Mutalib bin Haji
Mohamed Ali commented that according to Islam, the gift of muta’ah is one kind of
consolatory gift is one good thing that should be widely practised because the existence of
muta’ah can lighten the detriment felt upon the wife that will start a new life after been
divorced.

6
MUSLIM SCHOLARS’ OPINION ON THE PAYMENT OF MUTA’AH
Contemporary Muslim scholars like Zakiy al-Din Sha’aban and al-Zuhaily preferred
the first view of Shafi’e that muta’ah is compulsory to be paid due to its strong argument and
authorities. Furthermore, payment of muta’ah may reduce hardship and pain faced by the
wife upon the divorce. In the event that the divorce is a revocable or minor irrevocable
divorce, it may also encourage the parties reconcile again. In the book I’aa’nah at-Tolibin, it
was stated that :- “A husband needs to give muta’ah to his wife that he had consummated a
marriage with even though she is a slave, if the divorce was not of the wife’s fault and not
the reason of the death of the husband.

THE EFFECT OF NUSYUZ TO A WOMAN’S RIGHT TO MUTA’AH

As regards to the entitlement of muta’ah on the effect of nusyuz, there is a leading
case that always been referred to which is Rokiah Hj Abdul Jalil v Mohamed Idris
Syamsuddin, the appeal panel in its judgment said:
“In this case it was clear that the husband had pronounced talaq in response to the
signs of nusyuz from her wife, but this did not affect the right of muta’ah if this happened.”
In another related case of Norsiah Arshad v Marsum Paing, Dato’ Hj Zohdi bin Hj
Toha, KHS in his judgment where he said that “I opine that muta’ah can be meant as the
monies paid over the service of a wife towards her husband and their relationship that
includes the education of their children during the marriage and it was immaterial that it was
did expressly or impliedly after the divorce is officialised”.
YA Tuan Abu Bakar bin Ahmad in the case of Faridah Binti Sulaiman v. Mohd.
Noh Bin Othman referred to the principles that was put upon by the case of Noorbee v
Ahmad Sanusi and stated: “Muta’ah is a gift that is required in syara’ for the reason that the
divorce is not initiated by the wife because of her defect or fasakh on the part of the wife on
the iksar of the husband (such as the husband could not provide for her) or any of her
husband defects…. Muta’ah is also applied to enclose the feeling of shame felt by the wife
and to prevent fitnah and as a starting point to begin a solitary life… to make unavailable the
bad assumption that a wife is divorced because of her defect then usually muta’ah will be
prescribed to the husband.”.

7
APPLICATION OF THE AUTHORITIES IN THE PRESENT CASE
Based upon the cases that have been stated above, applying it to the current case
and with reference to the Islamic Family Law (Federal Territories) Act 1984 as the
substantive law based on the requirement of the assignment, it is to be assumed that the
current case is within the vicinity and jurisdiction of the of the said law. In comparison with
Piah Said’s case, the plaintiff will not be excluded from claiming her right to muta’ah as
there are no matter of shame on the part of the wife to her husband or the divorce happened
because of natural cause like death. Furthermore, by following the opinion of Haji Mutalib bin
Haji Mohamed Ali in Jaliah bte Hassan’s case, the gift of muta’ah should be given to the
plaintiff as it can lessen the burden of the wife (plaintiff) to start a new life after been
divorced. There is no evidence of any nusyuz acts based on the facts of the case but if
indeed the court can prove that there is element of nusyuz committed on the part of the
plaintiff, it still did not prevent and absolved the right of the plaintiff to claim her right to
muta’ah based on Rokiah Hj Abdul Jalil’s case.
Based on the facts of the current case, it stated that both plaintiff and the defendant
had tied on a marriage relationship for quite a long period which is 22 years and they already
had 3 children as a result of their marriage. Applying Norsiah Arshad’s case, muta’ah can
also be referred as the monies given to the wife as a compensation to the service of the wife
to her husband that includes the education of their children. It can be safely presumed that
during the period of marriage, the plaintiff must participate in the education of their children
together with the defendant and therefore she is entitled to claim for muta’ah if we are to
follow the judgement in Norsiah Arshad.
The learned judge in the case of Faridah Binti Sulaiman referred to underlying
principles in Noorbee v Ahmad Sanusi and stated that a wife is not prevented from claiming
muta’ah as long as the marriage is not dissolved through shame on her part or fasakh on the
request of the wife out of iksar (for example, the husband could not provide for her) or the
divorce is out of the shame on her husband’s part. The facts of the case are silent on how
the marriage between the plaintiff and the defendant was dissolved either mutually or
whether the marriage is out of the plaintiff’s application for fasakh. It is also presumed that
the marriage was dissolved out of neither the reason of shame on the part of the plaintiff or
the husband and therefore by relying on Faridah it can be said that the plaintiff is not
prevented from claiming her right to muta’ah. Faridah Binti Sulaiman also illustrates that the
muta’ah is obligatory to the husband to avoid the negative assumption that the wife is
divorced because of her shame. The plaintiff can also use the principles lied in Faridah’s
case to strengthen her argument on rights to claim for muta’ah by saying that she needs to
throw away the negative perception of people around her by the gift of muta’ah as sign the
divorce was not out of her shame.

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CONCLUSION FOR THE 1ST ISSUE
As a conclusion, based on the arguments above, it can be said that the defendant is
obligated to pay muta’ah towards the plaintiff based on the evidence found in the Quran,
work of Islamic scholars regarding muta’ah, and support of provisions and numerous cases
endorsing muta’ah as obligatory on the husband as long as it did not involves certain
conditions which are explained earlier in the supporting authorities.

2ND ISSUE: THE APPROPRIATE SUM OF MUTA’AH IS ADEQUATE TO BE

AWARDED TO THE PLAINTIFF.
As been mentioned above, woman who has been divorced without a just cause by
her husband may apply to the court for mut’ah or a consolatory gift. After hearing the
arguments put forward by the parties and upon being satisfied with the fact that the woman
has been divorced without any just cause, the court then may order the husband to pay the
wife such sum as may be fair and just in accordance with Hukum Syara’. In Malaysia, since
the rate of muta'ah is not absolute in terms of its minimum and maximum, it depends on the
husband and wife to fix how much the amount that the husband capable to pay and the wife
can benefit from it. If no agreement can be reached, the Kadhi itself should use whatever
measure that is suitable such as the financial position of the parties and the status and
circumstances of the wife itself to determine the amount of muta'ah that is sufficient for the
divorced wife. He also may take the family background of the particular wife into his
consideration in allocating the sum of muta’ah to her.

DETERMINING THE APPROPRIATE SUM OF MUTA’AH

In order to solve the dispute regarding the appropriate sum of Muta’ah, the learned
Kadhi need to consider the facts of each case and the position of each involving parties. The
appropriate sum of muta’ah can be divided into two which are circumcision and compulsory.

i. Circumcision Muta’ah
Basically, there is no provision mentioned in al-Quran and Hadith regarding the
minimum and maximum sum of muta’ah. However, according to an-Nawawi the minimum for
circumcision muta’ah is not more than 30 Dirham but according to ash-Shafi’I the minimum
for circumcision muta’ah is 30 Dirham. In addition, Ibnu Umar once determined the amount
of the muta’ah for wife is 30 Dirham. Other than that, Ibn Abbas also has given his opinion
regarding this matter which is the maximum sum of muta’ah is a male slave, the average
sum of muta’ah is money and the minimum sum of muta’ah is clothes.

9
ii. Compulsory Muta’ah
Compulsory muta’ah are determinations based on specific circumstances. First, if the
wife has been divorced after her dowry has been established in the aqad and there is no
sexual intercourse between them, then she is entitled to a muta'ah. Muta'ah in question is
his dowry, which is half of his dowry. Second, the determination made by learned Kadhi is
based on his ijtihad. In this case the Kadhi must look at the ability of the husband as well as
the circumstances and the traits of the wife.

MUTA’AH CASES AND ITS APPLICATION TO THE PRESENT CASE

In the case of Rohaniah v Haji Ujang (1983) 4 J.H. 270, the wife who had been
divorced claimed muta’ah in addition to ‘iddah maintenance. She claimed RM10000 as
muta’ah but the husband only offered her RM1000. The learned Chief Kadhi referred to
Mughni al-Muhtaj that states:

“Where there is a dispute as to the amount of the muta’ah, the Kadhi should make a decision
according to his prudence and take into consideration what is fair according to the position of
the parties as well as the financial position of the husband and the position and quality of the
wife.”

He also made a reference to the Holy Quran, Surah al-Baqarah verse 236:

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.

10
 That verse indicates that muta’ah should be paid in accordance with the husband’s
means both rich and poor. In the view of the facts of the case, he assessed the amount of
muta’ah at RM2000.

Application:
Based upon the premise that has been explicitly mentioned above, there are a few
similarities between Rohaniah’s case with the present case. First of all, both of the plaintiffs
claimed for muta’ah exceeding the defendants’s means. The plaintiff in the present case
claimed RM150,000 from the defendant (her husband), an amount, according to the plaintiff,
was based on the defendant’s means, emotional stress suffered by her which had caused
her to suffer from a type of skin disorder (psoriasis), as well as the long period of the
marriage between the parties.
The learned Chief Kadhi should refer to Mughni al-Muhtaj that states:

“Where there is a dispute as to the amount of the muta’ah, the Kadhi should make a decision
according to his prudence and take into consideration what is fair according to the position of
the parties as well as the financial position of the husband and the position and quality of the
wife.”

In this case, defendant did not deny the plaintiff’s right to muta’ah and had offered
RM2,500. Assuming he is not a rich person as a retired army officer, it is a burden to him to
pay such a big amount which is RM150,000. The exact amount of muta’ah that the learned
Chief Kadhi should ordered the defendant to pay to the plaintiff should amounting over
RM2,500 after considering the plaintiff suffer and the husband capability.

Next, in one of the Selangor’s cases of Tengku Anun Zahrah v Dato Dr Hussein
(1980) 3 J.H. 125, explicates the action of the divorced wife claiming muta’ah. The learned
Chief Kadhi indicated that it was the husband who had affected the divorce. The husband
had failed to tender evidence demonstrating that the wife had been guilty of nusyuz or any
matrimonial offence. The learned Chief Kadhi held the wife was entitled to muta’ah. This was
based on Surah al-Ahzab verse 49:

11
Meaning: You who have believed, when you marry believing women and then divorce them
before you have touched them, then there is not for you any waiting period to count
concerning them. So, provide for them and give them a gracious release.

In this case, the parties were rich so the learned Chief Kadhi ordered the husband to
pay the wife muta’ah amounting to RM25,000.

Application:
Comparing Tengku Anun Zahrah’s case with instant case, the plaintiff in this case
also did not guilty of nusyuz or any matrimonial offence. Hence, she may be entitled to
muta’ah. The only different in learned Kadhi’s judgement is regarding the amount of muta’ah
that the defendant should pay. If defendant were rich and have capability, the amount of
muta’ah should be high compare with instant case where the husband is not a rich person
and do not
have the capability to pay a higher amount of muta’ah. The plaintiff claimed
RM150,000 as muta’ah towards the defendant who is a retired army officer is unreasonable.

Then, in Jaliah v Abubakar (1987) 7 J.H. 72, the wife who had been divorced claimed
muta’ah. The learned Chief Kadhi held that the wife was entitled to muta’ah as claimed. This
was due to the fact that there was no evidence indicating that she had been found guilty of
the offence of nusyuz prior to the divorce. He made the judgment by referring to the Kifayah
al-Akhyar explicating that:

‘’In respect of each divorce, which is asked by the wife or for reasons on her part, the wife
cannot obtain muta’ah”.

12
He also refers verse 236 from Surah al-Baqarah:

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 learned Kadhi elucidated that in Islamic Law, the payment of muta’ah is legalised
as it assists the woman in lessening her burden, as she now has to live a new life after
obtaining the divorce. Muta’ah is remuneration and an appreciation of the benefits felt by the
husband through love and attention given by the wife during the subsistence of the marriage.
The learned Chief Kadhi assessed the amount of muta’ah at the rate of RM50 a month for
the period of the marriage that lasted for 15 years. He allowed the plea to put forward by the
husband that the assessment of the amount of muta’ah must be calculated for only eight
years. Thus, the total amount of muta’ah allocated to the wife was RM4800.

Application:
In present case, assuming from the facts that the plaintiff is not the one who asked
for divorce from defendant the plaintiff can be entitled to muta’ah as claimed. This is
because there was no evidence indicating that she had been found guilty of the offence of
nusyuz prior to the divorce. There are a lot of common with Jaliah’s case so the judge could
make the judgment by referring to the Kifayah al-Akhyar explicating that:

‘’In respect of each divorce, which is asked by the wife or for reasons on her part, the wife
cannot obtain muta’ah”.

So, there is no issue regarding the plaintiff’s right to claim muta’ah.

13
 In addition, based on the facts of the case, the defendant did not deny the plaintiff’s
right to muta’ah and had offered RM2,500. Assuming he is not a rich person as a retired
army office, it is a burden to him to pay such a big amount which is RM150,000. Other than
that, the fact that there were no evidences indicating that she had been nusyuz prior to the
divorce.

CONCLUSION FOR THE 2ND ISSUE

Finally, the appropriate sum of muta’ah to be awarded towards the plaintiff by the
court may not exceed RM2,500 after considering the facts that the plaintiff suffered psoriasis
resulted from the emotional stress, the long period of marriage and the husband capability to
pay the amount.

3RD ISSUE: WHETHER SYARIAH COURT HAS POWER TO CONTINUE THE

PROCEEDING DESPITE THE ABSENCE OF THE HUSBAND AND HIS
TESTIMONY ON THE MATTER PERTAINING TO THE ENTITLEMENT OF
MUTA’AH ON THE PART OF THE PLAINTIFF.
In order to distinguish the fact that the court can continue to hear the hearing without
the presence and testimony of the defendant, it is of utter importance that we need to find
the basis of the jurisdiction based on the law that governs Muslim community in Malaysia as
a whole which is enshrined under the Syariah Civil Procedure Code (Federal Territories) Act
1998 and also based on the opinions of Muslim jurist, Abu Bakr Utsman bin Muhammad
Syata al-Dimyathi al-Bakri (1226-1310H) in his book, I'anah al-Thalibin and also Mohd Hafiz
Jamaludin in his article, Syariah Courts in Malaysia And the Development of Islamic
Jurisprudence: The Study of Istihsan.

GENERAL RULE ON THE APPEARANCE OF PARTIES IN SYARIAH COURT

CIVIL PROCEEDING
Generally, Section 120(1) of the Syariah Court Civil Procedure (Federal Territories)
Act 1998 provides that the presence and appearance of the parties to the hearing either in
personam or through their Peguam Syarie is mandatory except permitted by the court to do
so. This provision is in line with the obligation to do justice as been stressed in the Holy
Quran, Surah An- Nisa’ verse 58:

14
Meaning: Allah commands you to render back your trusts to those to whom they are due
and when you judge between mankind that you judge with justice. Verily how excellent is the
teaching which He gives you! For Allah is He Who hears and sees all things.

It is further mentioned in the same Surah verse 135 which ordered to stand firmly for
justice as the witnesses to Allah even those witnessing was against our own parents and kin.

(Surah an- Nisa’, 4:135)

Thus, any judgment made by the court shall be in full presence of both parties to the
proceeding. This statement can be further supported in the Hadith narrated from Ali bin Abi
Talib where the Prophet Muhammad S.A.W had stressed that a Muslim Judge shall hear
arguments from both parties to the dispute before came out with any verdict as to uphold
justice.
In addition, there is a reported Hadith saying that it is allowed for the Muslim Judge to
continue and give judgment in the event of the absence of one of the parties to the hearing.

15
 ‫ت ِللنابِي ِ صلى هللا عليه وسلم إِ ان‬ ْ َ‫ قَال‬،‫شةَ ـ رضى هللا عنها ـ أَ ان ِه ْن َد‬ َ ِ‫َع ْن َعائ‬
‫ قَا َل " ُخذِي َما َي ْك ِفي ِك َو َولَ َد ِك‬.‫ فَأَحْ تَا ُج أَ ْن آ ُخذَ ِم ْن َما ِل ِه‬،‫س ْف َيانَ َر ُج ٌل ش َِحي ٌح‬
ُ ‫أَ َبا‬
ِ ‫ِب ْال َم ْع ُر‬
" ‫وف‬

Hadith narrated by Aishah:

Hind (bint `Utba) said to the Prophet (‫" )ﷺ‬Abu Sufyan is a miserly man and I need to take
some money of his wealth." The Prophet (‫ )ﷺ‬said, "Take reasonably what is sufficient for you
and your children"

By referring to the Hadith above, it is a settled law that the judge itself is allowed to
continue and make their verdict on any cases where there is an absence on the part of the
parties to the proceeding. If the judge is did not have power to do so while the plaintiff had
present all the related evidences to support their case, it can be deemed as the court itself
had deny the plaintiff’s rights and it is not unfair to do so.

ABSENCE OF PARTIES ACCORDING TO SYARIAH CIVIL PROCEDURE CODE

(FEDERAL TERRITORIES) ACT 1998
Having established the general rule of the matter, it must be noted that there also
exist an exception to that general rule. According to Section 121 of the Syariah Civil
Procedure Code (Federal Territories) Act 1998,
(1) If, when any action is called on for hearing -
(a) neither party appears, the Court may dismiss the action;

(b) the defendant does not appear, the Court may, subject to proof of due service,
hear and determine the action in his absence; or

(c) the plaintiff does not appear; the Court may dismiss the action and hear and
determine any counterclaim.

(2) The Court shall, before making any judgment on the plaintiff's claim under paragraph
(1)(b) or the defendant's counterclaim under paragraph (1)(c), order the plaintiff or the
defendant, as the case may be, to take an oath of Istizhar.

16
(3) Where there are more than one plaintiff or defendant and only one of them is present, the
Court may hear the action against the one present and determine the action against the
parties absent in accordance with subsection (1) or (2).

(4) The Court may in its discretion in any of the cases specified in subsection (1) or (3) order
an adjournment.

In other words, in accordance with the provisions that has been provided by the law,
the Syariah courts does have the power to either continue or dismiss with the proceedings of
the court subject to the absence of the plaintiff or the defendant.

ABSENCE OF THE PARTIES ACCORDING TO I'ANAH AL-THALIBIN.

A trial without the presence of the other party is required if the other party deliberately
refuses to attend. This is explained by Abu Bakr Utsman bin Muhammad Syata al-Dimyathi
al-Bakri (1226-1310H) in the book of I'aanah al-Talibin, page 392 which states: -

Meaning: "That side-by-side trial is harus if the opponent is not present intentionally or hides
himself"
Based upon the premise, it can be stipulated that the court has the prerequisite
jurisdiction to entertain a case in a proceeding where a party is absent before the court.
Furthermore, according to Tuan Mohamad Shakir Bin Abdul Hamid in his judgment in
the case of Sri Utama Dewi Kasman Lwn. Abu Bakar Abdullah [2010] 3 LNS 16, it is indeed
a principle of Islamic jurisprudence:

Meaning: "affidavit of affidavit and oath of affidavit"

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 According to this principle, the burden of proving this claim rests with the Appellant
whether the Respondent is present or refuses to attend. If the Respondent is present at all,
then the Appellant must prove his claim. Thus, especially if the Respondent is not present
then this principle is still relevant. Therefore, this principle coincides Section 121 of the
Syariah Civil Procedure Code (Federal Territories) Act 1998 on the matter of providing
jurisdiction to the court to entertain cases on the event that there are absences of parties.
This principle would be seen to be in use in the case of Yunus Mohamed lwn.
Rolbijah Ahmad [2009] 1 CLJ (SYA) 341 whereby in this case, the court dismissed the
appeal of the Appellant to entertain a retrial due to his absence on the grounds that upon the
words of Section 120 of the Act, the appellant's attendance in court is mandatory unless
otherwise excused by the court. In this case, notwithstanding that the appellant's counsel
had written and applied to the court for an adjournment, the reason given by him did not
constitute a reasonable ground for the court to grant adjournment. Since the appellant and
his counsel had failed to attend court without any reasonable excuse, and upon the purport
of Section 121(1)(c) of the Act, the court would not adjourn the hearing and would instead
proceed to hear the appeal in their absence. Upon reading, hearing and perusing the
chronology of events, and having heard the respondent's written submission, the court
dismissed the appeal and affirmed the decision of the learned Syariah High Court judge in its
entirety.

ABSENCE OF THE PARTIES ACCORDING TO SYARIAH COURTS IN

MALAYSIA AND THE DEVELOPMENT OF ISLAMIC JURISPRUDENCE
In Malaysia, the permission to declare judgment in absentia is provided under the
Syariah Civil Procedure Code as stated above (Mohd Hafiz Jamaludin, 2013). Nevertheless,
it is quite interesting to see grounds made by the court to permit such a judgment. Thus, in
the case of Zarina Bt Hashim versus Jamaluddin Bin Saidon (2007) involving the claims of
child custody, child maintenance and jointly acquired property, the defendant failed to
appear in all of the proceedings. The court decided to proceed with the trial in accordance
with section 121 (1) (b) Penang Syariah Court Civil Procedure Enactment No.6/2004. In
addition to this provision of the law, the court was of the view that if the summon was fully
served to the defendant and by refusing to attend or answer the claims shall indicate that the
defendant had admitted to the allegations against him. This is based in accordance of the
Islamic maxim jurisprudence that silence in the matter that a person must speak is a
confession (Ahmad bin Muhammad, 1989).

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 The similar contention was also propounded in the case of Maryam Binti Abdullah
versus Hithir bin Rashid (2005) 19(II) JH 242 involving application to change previous court
order on child custody and maintenance. However, in contrast to the previous case, the
defendant was not present in the early stage of the proceedings. The judge initially
postponed the case due to incomplete process of serving the summon to the defendant.
After this had been satisfied the Court proceeded with the trial without the presence of the
defendant by virtue of section 121 (1) (b) of the Selangor Syariah Court Civil Procedure
Enactment No.4/2003.
Last but not least, a similar position is also mentioned and illustrated in the case of
Radziah binti Ibrahim versus Peter R. Gottschalk@Yusuff bin Abdullah (2009) 27 JH (2) 276.
In this case, the applicant applied from court an ex-parte order for temporary custody of a
child. The applicant requested that this case must be heard as soon as possible as she was
in fear that the respondent might take her daughter from her based on the intimidations and
threats made by the respondent. When judgment was made, the judge has stated in
advance that any dispute shall be heard from both sides, so that, each party can give their
evidence to ensure fairness to all. However, there are exceptions from this principle if there
is element of hardship (masyaqqah) or harm (darar) that may occur if the original law was
to be followed. The judge in this case allowed the ex-parte injunction to be applied based on
two principles of masyaqqah and darar which allowed the obligation to be exempted (Salih
bin Ghanim, 1996). Based on these principles, the original rule of law was set aside to
remove the hardship or harm to human being. In this case, it was further reasoned by judge
that there exist element fears for the safety of child, as there were threats from the
respondent to bring back his daughter overseas at any time and addition to the allegation by
the applicant that the respondent is not a practicing Muslim.

APPLICATION IN THE PRESENT CASE

It can be applied in this case that by virtue of Section 121(1)(b) of the Act, the grant
of muta’ah amounted to RM2,500 towards the plaintiff is a valid judgment as court may
continue the proceedings even there was absence of the defendant and his testimony. It is
because based on the facts of the present case, it showed that the defendant only attends to
the court at the first hearing only and not on the other continuing proceedings. Thus, it may
be assumed that if the court did not continue and gave the judgment on behalf of the
plaintiff, it could deprive plaintiff’s rights as the one who seek for the legal aid. It also can be
said that when a person waived his rights by not attending the court’s proceeding, it is just
for the court to give judgment against him so, the plaintiff is truly entitled for the sum of
Rm2,500 as the muta’ah.

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 By applying Zarina Bt Hashim’s case, it also may be assumed that the defendant
itself could had realised his mistake and had admitted that he is the cause of the divorce
from occurring so, he decided not to attend the proceedings so that the court could grant
verdict towards his wife, the plaintiff.
Next, by referring to the case of Radziah binti Ibrahim’s case, the court take into
account the elements of hardship and harm which in this case, it can be assumed that if the
court did not continue the proceeding, it could give hardship towards the plaintiff who always
need to go to the court to present the evidences in supporting his claim until the judgment
given by the court. Then, it also subsequently affected the financial of the plaintiff who use
money in order to go the court until the judgment given. Hence, it is justified that the court
shall continue the proceeding even without the presence of the defendant.

CONCLUSION FOR THE 3RD ISSUE

Finally, Syariah Court may continue the proceeding despite the absence of the
husband and his testimony on the matter pertaining to the entitlement of muta’ah on the part
of the plaintiff.

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SUGGESTION & CONCLUSION
The implementation of muta’ah in Malaysia needs to be understood from two
aspects. The first aspect relates to the handling of cases in the Shariah court. The second
aspect is the understanding on the concept of Muta’ah in our Muslim community. Based on
our findings, nowadays, there are not so many cases relating to muta'ah brought to Shariah
court compared to the demands of alimony and others. This is because majority of the
women in our country specifically do not know or do not understand of their rights after they
had been divorced. Since the muta'ah has been described as "the consolation for the
divorce", the women also do not consider the grant of muta’ah as a big relief to her as they
opined that there are many more properties such as “harta sepencarian” and as mentioned
above. The wives rather choose to quarrel with their ex-husbands despite of discussing
about the post-divorce maintenances in peace so that they could build their new live with a
good kick start.
Hence, we suggest that the relating statutory body such as Malaysian Social
Welfare Department (JKMM), State Islamic Religious Council and Jabatan Kehakiman
Syariah Malaysia (JKSM) may had an initiative to organise any talk on the rights of
maintenances for the divorced wife and spread any e-flyers on awareness on the rights of
the divorced woman especially on Muta’ah in their official website or social media such as
Instagram, Twitter and Facebook. Furthermore, the Syarie lawyer also may advice and
stress on this matter when the divorced wife itself have some consultation session prior to
the filing of the case to the court.

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