THE AMOUNT OF MUT’AH

Character of the Wife

● Sacrifice and devotion

The wife is considered of good character by the court in instances where it could be seen
that she had made sacrifices and shown devotion towards her marital life.
1 2
In ​Noor Bee v Ahmad Sanusi and ​Ahmad Shah bin Ahmad Tabrani v Norhayati bt Yusoff ,
the wife resigned from work to follow her husband to Kuching and to give full commitment
to the family respectively. This factor shows the wife’s good character and was considered
by the courts in assessing the amount of mut’ah to be granted. In ​Norma @ Normek bt
3
Ghazali v Mohd Zain bin Abdullah , the wife had also resigned from work to prioritise her
family. In addition, she had suffered hardship in taking care of her children without any help
from her husband. As such, considering her sacrifice, the court awarded her an amount of
salary for 22-year period as part of mut’ah.
4
In ​Suriah bt Hassan v Hamzah bin Mohd Nor , the wife had to live with her parents and
parents-in-law since her husband did not provide her with a matrimonial home. She had
also remained loyal to her husband even though he had relationships with other women.
The court considered her sacrifice and devotion as the mark of good character.
5
In ​Ramzas bt Daud v Ghani bin Idris , the court opined that the wife’s good character,
fulfilment of her responsibility as a wife and obedience to the husband are some of the
factors that contributed to the wife’s entitlement to mut’ah.

● Nusyuz

Nusyuz will not affect the wife’s entitlement to mut’ah but will affect the amount of
mut’ah that she will receive, provided that the divorce is not as a result from the wife. This
6
principle was established in ​Hazlina bt Hamidin v Muhamad Zaidi bin Majid , whereby the

1
(1980) JH 63
2
(2004) 17 JH 33
3
(2005) 19 JH 278
4
[2007] 3 ShLR 81
5
[2012] 2 ShLR 69
6
[2005] 4 ShLR 155
 7
wife was divorced by talaq. In its judgment, the court referred to the case ​Piah lwn Che Lah .
In this case, the wife had claimed ​iddah​ maintenance, ​mutaa'h​ and jointly acquired property
after she was divorced by ​talaq.​ The Chief ​Qadhi​ had decided that the wife was not eligible
to obtain maintenance because she was ​nusyuz​ but the wife was eligible to obtain ​mutaa'h​.
It is because the divorce was caused by the talaq pronounce by the husband. If the divorce
was caused by the wife by obtaining a fasakh, and not by the talaq pronounced by the
husband, the wife would not be entitled to mut’ah.
8
In ​Aminah bt Mokhtar v Zakaria bin Yahya , the wife claimed for RM200,000 as mut’ah
but her husband argued that she was not entitled for such right as she had a relationship
with another man, treated her husband harshly and did not nicely provide meals and clothes
for him. His argument did not stand because he failed to prove his allegations and it was
held that, since the divorce was not caused by the plaintiff, she was indeed entitled to
mut’ah, of which she was granted RM10,000.
9
In ​Rosnani bt Abdul Rani v Mohamood bin Che Mat , the defendant divorced the
plaintiff, his wife of 26 years, when at the time, he was involved in an illicit relationship with
a woman named Junaidah bt Hamzah. The defendant claimed the plaintiff had no right to
mut’ah because she has disobeyed him throughout their marriage. The court dismissed his
claim and stated that misunderstandings are fraught in marital life, inferring that there was
no nusyuz on the part of the wife.
10
In ​Mariam bt Yaacob v Wahi bin Samah , after she was divorced by her husband, the
plaintiff claimed that she had never received her maintenance during iddah and mut’ah. The
defendant averred that​ t​ he plaintiff was nusyuz when she left the matrimonial home
without his consent and therefore should not be entitled to the mut’ah. The court, however,
dismissed his contention as the defendant brought incompatible witnesses whose testimony
would have a propensity for biasness. Moreover, the nusyuz claim which was made after the
divorce was pronounced was no longer relevant. An amount of RM1,500 was granted by the
court as mut’ah to the plaintiff.

7
[1983] 3 JH 220.
8
(2009) 28(2) JH 181
9
[2012] 4 ShLR 71
10
[2010] 1 ShLR 96
Length of Marriage

Duration of marriage is one of the factors for assessment of mut’ah payment, not a
sole one. Other factors usually considered by the courts are financial standing of the
husband and the wife’s character.
11
In ​Norsiah bt Arshad v Marsum bin Paing , the parties were married for seven years.
The plaintiff sought for RM500,000 as mut’ah from the defendant who was a Class D
Contractor with contracts worth hundreds of thousands of ringgits. The defendant
counter-claimed and stated that he merely receives 10% to 15% profits from the projects
executed. Therefore the court granted mut’ah of RM30,000 based on the duration of
marriage, the wife’s status and her contribution to the felicity of the marriage.

The length of marriage is not the be-all and end-all factor for calculation of mut’ah;
the court does not rely fully on the duration of the marriage to quantify the appropriate
amount of mut’ah to be granted.
12
Rokiah bt Haji Abdul Jalil v Mohamed Idris bin Shamsudin illustrates the above
point whereby the Chief Qadhi directed for payment of mut’ah at the rate of RM1 per day
for 35 years, 3 months and 5 days, which was the duration of the marriage, that amounted
to RM12,650. On appeal, such method for assessing mut’ah payment was rejected.
13
In ​Suraiya bt M Shafie v Abd Shukor bin Mohd Hashim , the defendant earns
RM50,00 to RM70,000 monthly as a bone specialist. The plaintiff claimed RM500,000
mut’ah on the basis that it was the amount of maintenance the defendant should have paid
to her in the 15 years of their marriage, and wages for household management. The judge
considered her claim for wages for household management should be a claim for
maintenance, not mut’ah. In this case, the judge opined that amount of mut’ah should be
assessed on the basis of the defendant’s financial capability and the length of marriage was
irrelevant to the assessment of mut’ah.

Reason to divorce

11
[2009] 3 ShLR 64
12
[1989] 3 MLJ ix
13
(2009) 27(2) JH 331
 The court also looks into the reason the parties got a divorce. In ​Hazlina bt Hamidin v
14
Muhamad Zaidi bin Majid , the wife applied for fasakh and the husband complied and
agreed to pronounce talaq on her. The court took into consideration that it was the wife
who wanted the divorce when assessing the amount of mut’ah.
15
In ​Hasnah bt Omar v Othman bin Ya @ Zakaria , the appellant appealed against the
mut’ah of RM10,000 granted by the Syariah High Court judge, since the amount she claimed
was RM140,000. The Syariah Court of Appeal allowed her appeal since she has a right to
claim due to her divorce which was without any reasonable grounds after 29 years of
marriage with 10 children. The court ordered an additional RM5,000 to be paid and the toal
amount has to be settled in three months’ time.

Other factors
16
In ​Hazlina bt Hamidin v Muhamad Zaidi bin Majid , in assessing the amount of
mut’ah to be granted, the court took into consideration that the ex-husband had to pay the
ex-wife’s substantial amount of credit card debts.
17
In ​Suraiya bt​ ​M Shafie v Abd Shukor bin Mohd Hashim , several factors determining
the amount of mut’ah are listed. Among them are the necessities of the ex-wife, the amount
of mut’ah is lower than her maintenance during marriage, the financial status of the parties,
the standard of living and social status of the ex-wife, the marriage duration, annual salary
of the ex-husband, the ability of the husband, the sacrifices the ex-wife made during the
marriage and not to base the mut;ah on the accumulated properties of the parties.
18
In ​Zainin bt Othman v Wahid bin Ali , the parties were married for 10 years and
blessed with three children. The plaintiff initially claimed mut’ah of RM200,000 but the
defendant offered her RM20,000 instead. The court considered that the plaintiff was a
responsible mother to the children and had the maternal instincts to look after them well.
Hence, the court ordered the defendant to pay RM40,000 in monthly installments of
RM500.

14
ibid
15
(2008) 26(1) JH 43
16
[2005] 4 ShLR 155
17
ibid
18
[2013] 1 ShLR 43