Imran Ali

Islamic International University Islamabad

Abstract:

The aim of this assignment is to focus on a study upon one aspect of family law, namely, the

financial rights after divorce. There are certain rights and duties between the husband and wife,

parents and children. When a family is stable, these rights and responsibilities are usually

accepted without any question, the problem is when a marriage has broken down. When a

woman has been divorced, she is entitled to various rights such as muta,h, maintenance and

unpaid mahr or differed mahr. These rights may lessen the burden of a divorced women.

Introduction:

The divorced women are married hoping for happiness, like all other women, and is willing to

form a family expressing its social stability, and when Allah has not blessed her to continue in

marital life, this changed her social situation of married to divorce, and divorce is not defect or

shortcoming aimed at women, divorce was accepted in Islam and her life after divorce may be

better than before. The women's rights after the divorce from her husband have been provided

and established by the Quran and now have become the part of the statutes of the Muslim worlds.

These rights are much helpful for a divorced woman in lessening her burden of divorce. Here is

some of those rights. These are three types of rights of women after divorce such as muta,h,

maintenance and unpaid-dower or differed dower

Muta,h After Divorce

When a woman divorced, she is entitled to Muta-a after her divorce. Muta is the name of the

property that is paid or given by a husband to his ex-wife because of the separation with the wife.

It is payable in all cases of divorce, except where the divorce is at the instance of the wife

because of a defect on the part of the husband or it is a fasakh divorce because of the defect or

fault of either party.

Muta’ah originates from the Arabic word al-muta. From Shari ah point of view, it is a gift from

the husband for the ex-wife and 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 Malaysia 1984,

“Muta-ah” refers to the gift payment which is given to a divorced wife in accordance to Islamic

Laws”1

According to these definitions, muta,h is a gift which is compulsory upon a husband to be given

to his ex-wife in the case of divorce for the purpose of lessening her burden and make her

feelings good after divorce.

Legitimacy of Mutah in Islam:

Muta,h is the exclusive right of a divorced women given by God in the Holy Quran. The Quran

did specify to the effect that Muta should be paid, the rich according to his means and poor

according to his means. Allah Almighty states in Al-Baqarah:

“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.”2

Another verse of Quran states that “And for divorced women is a provision according to what is

acceptable - a duty upon the righteous.”3

Two principle have been derived from these verses of Quran, first is that Muta,h is a gift which is

compulsory on the husband to be paid to his ex-wife after divorced. Second, Mutah is a gift

which is given to divorced, the wealthy according to his capability and the poor according to his

capability.

Conditions for Muta,a in Islam:

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.

1 Islamic Family Laws Act Malaysia 1984,2 Al Quran (surah 2: verse 236)3 Al-Quran, Al-Baqarah, verse 241:

(b) The wife is divorced before a sexual intercourse takes place and the dower (mahar) was not

mentioned during the marriage covenant.

( 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.4

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 khul, 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.

Muta,h in Malaysia

According to Hanafi school, muta is limited to the situations where divorce has been given

before consummation or fixation of her dower. But in Malaysia where the shafi school prevails,

muta is payable in every case of divorced woman who is divorced by her husband when there is

no fault from her part.5 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.

Section 56 of IFL states that 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'.6

4 Kitab Fikah Mahzab Syafie - Bab Undang-Undang Kekeluargaan” by Dr. Musfafaal-Khin, Dr. Mustofa al-Bugho dan Ali asy-Syarbaji, Pustaka Salam SendirianBerhad – First Print, 2002.5 Noor bee vs Ahmed Sanusi 1979 JH 2, 636 section 56, ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT 1984

In malaysia, mutah is obligatory on husband to pay to her ex-wife, there some cases which are

much specific to this statement. There is a case, Piah binti Said v Che lah bin Awang, in this case

it was explained that muta’ah is an obligatory payment by a husband who divorced his wife

without just cause.7

In an earlier case before that, Nor Bee vs Ahmad Shanusi, the same judge explained that the

objective of this consolatory payment was to “hide the shame felt by the wife, avoid false

accusations and help her begin a new life on her own”8

To prevent any false accusations that the wife must have been divorced because of her faults, the

payment of Muta’ah is made obligatory for the husband who had divorced her without just

cause.9

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.

In Malaysia there are many cases related to muta and sometimes courts have decided a large

amount of muta to be paid to the divorced women. The parties may agrees to the amount to be

paid but if they not, then court may assess the amount, taking into account the financial position

of the husband and the needs of the wife.

Muta,h 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’a is valid based on whatever amount is agreed upon. If there should

be any conflict in deciding the rate, the judge has the rights to determine the rate of muta’ah

based on the couple’s conditions, the husband’s financial standings, the wife’s line of heritage

and behaviours. This is based on a verse in Al-Quran:

7 JH (1983) Jld 3, 3208 JH (1978) Jld 1, 639 JH (1978) Jld 1, 63

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

according to his capability”.10

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 Shafie’ 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 practice. If not, the rate should be decided by

a Qadhi (Court) according to both parties’ situations. It is favourable (sunaat) not to rate the

Mata at less than 30 dirham and more than half of the dowry.11

But the problem is that sometimes there is a great amount of Mata decided by the court for a gift

from ex-husband in Malaysia, which does not encourage the Islamic point of view, now I quote

one case related to the large amount of Mata decided by the shariah court.

Recently, the Kuala Lumpur Syariah High Court delivered its decision in a suit filed by Datin

Seri Shahnaz Abdul Majid (plaintiff), against her former husband, Datuk Seri Mahmud Abu

Bekir Abdul Taib (defendant), a businessman and son of Sarawak Governor Tun Abdul Taib

Mahmud. The case had dragged on for four years. What set this latest case apart is the amount

claimed by the plaintiff. In her civil suit against the defendant, the plaintiff had claimed RM100

million as muta’ah, RM121 million for child support and RM300 million as harta sepencarian

(share of the matrimonial assets). At the end of a protracted hearing, the court ordered the

defendant to pay the plaintiff RM30 million as muta’ah.

Another case, Tengku anun Zaharah v dato dr hussain, the parties had been married for almost

six years, the wife belonged to the Pahang royal family and with her support the husband became

successful in business and was accepted by respectable society. She had applied for Mata

amounting to RM 25200and this amount was approved by the court.12 So in the end, a divorced

woman is entitled to mutah from her ex-husband, which is bound on him by Allah Almighty and

10 Al-Quran, surah Al-Baqarah: verse 236:11 “Kitab Fikah Mahzab Syafie - Bab Undang-Undang Kekeluargaan” by Dr. Musfafaal-Khin, Dr. Mustofa al-Bugho dan Ali asy-Syarbaji, Pustaka Salam SendirianBerhad – First Print, 2002.12 1980 3 JH 125

mutah is applicable in Malaysia and some other countries such as Egypt but the problem is that

sometimes courts in Malaysia decided a lot of amount of gift which is against the virtues and

feeling of Islam.

  2-Maintenance After Divorce

The divorced woman is entitled to maintenance after divorce during her ‘iddah. After divorce

usually the period of iddah is three month but in case of death of the husband, four month and ten

days and in the case of pregnancy, until the delivery of the child. There is no iddah if the

marriage is dissolved before consummation. What is meant by maintenance firstly look at its

definition.

Under Islamic law, maintenance is defined in the hedaya as “all those things which are necessary

to the support of life such as food, clothing and lodging”13 is called maintenance.

A divorced woman is entitled to maintain and to live in the house of her husband during the

period of iddah. The Quran says that a husband who divorced his wife is bound to maintain her

in the period of iddah. Allah Almighty states in the Quran:

“And turn them not out of their (husband’s) homes nor shall they (themselves) leave, except in

case they are guilty of some open illegal sexual intercourse. And those are the set limits of

Allah. And whosoever transgresses the set limits of Allah, then indeed he has wronged himself.

You (the one who divorces his wife) know not it may be that Allah will afterward bring some

new thing to pass (i.e. to return her back to you if that was the first or second divorce)”14

Based on this, a divorced women are entitled to request the maintenance during their ‘iddah, if

what their husband gave them was not enough, and they can refer the matter to the Shari-ah court

and make a claim there. If there is no Shari-ah court, and it is not possible to take their rights by

advising their husband or through the intervention of good people, it is permissible to refer the

matter to the civil courts, even though it is not proper to refer for judgment to man-made laws,

but do not take more than they are entitled to, even if that is awarded to you by the courts.

13 A commentary on the muslim laws 1975. Translated by Charles Hamilton. Lahore Pakistan.14 [al-Talaaq 65:1].

The question wither a divorced women is entitled to maintenance after the expiry of the period of

iddah is controversial. Quran states that;

“For divorced women maintenance should be provided on a reasonable scale. This is the duty on

the righteous.”15

The majority of the Muslims jurists are agreed that this duty is completed on the expiration of the

period of iddah. After iddah, a women is relied on her own resources or on her parents. A huge

controversy raised on this matter in India in 1985 in the case of Shah Bano, when the Indian

supreme court has awarded maintenance to an elderly woman after the period of iddah.

Shah Bano V Ahmad Khan, Case

Shah Bano, a 62 year old Muslim woman and mother of five children from Indore, Madhya

Pradesh, was divorced by her husband in 1978. The Muslim personal law allows the husband to

do this without his wife’s agreement. She later recalled, “I felt enormous relief, but I also hated

him”16 She tried to get maintenance (similar to alimony) through the Indian court system, and

seven years later her case reached the Supreme Court. Maintenance is an area of the law that falls

under the personal codes, and Muslim law does not entitle women to ongoing maintenance. A

divorced Muslim woman is entitled to her mehr, which is a payment to her from her husband at

the time of marriage, and three months of maintenance. Following that, her family and

community may help to support her.17

When Shah Bano’s case reached the Supreme Court in 1985, the court turned to the criminal

code, which applies to everyone, specifically Article 125. This article was from the British

colonial criminal procedure code of 1898 as revised in 1973. This criminal code entitles

divorced, destitute women to some maintenance. The Supreme Court used this article to grant

ongoing maintenance to Shah Bano, in spite of Muslim personal law. Moreover, the court went

on to argue in their decision that “a common civil code will help the cause of national integration

by removing disparate loyalties in laws which have conflicting ideologies”18. While many

Hindus and women welcomed this ruling, the decision and the judges’ talk of “national

integration” and questioning of citizens’ “loyalties” was deeply troubling for India’s Muslim 15 Al-Quran, Al-Baqarah, verse 241:16 (Bumiller, 1990, PP 166)17 (1985 SCR (3) 844),18 (Hasan 1999, pp 126)

minority, particularly given the political context of rising anti minority agitations and violence.

The controversy over this decision was further deepened because both the court and its critics

could find grounds for their positions in the somewhat contradictory Indian Constitution, which

both protects religious rights and advocates equality before the law.

Where the woman is widowed, the Quran states that:

“Those of you who dies and leaves widows should bequeath for their widows a year’s

maintenance and residence.”19

According to malki-school, widow is not entitled to maintenance in the period of iddah, although

she is entitled to accommodation in her husband’s house. This is said because the right of

inheritance supervenes. However the hanfi school of thought allowed the maintenance in the

period of iddah. 20

Maintenance after divorce in Pakistan:

In Pakistan, section 9 of Muslim family laws deals with the maintenance .Section 9 states that a

wife is entitled to claim maintenance for the period of iddah and past maintenance for the period

during the subsistence of marriage when wife was not maintained, so in Pakistan under section

nine the husband is bound by the law to maintain his ex-wife and if does not do so without legal

cause, then the wife may sue him for her maintenance.21 She may also apply for a court order as

to payment of her maintenance under the criminal procedure code of Pakistan, the period for

filing of a suit for maintenance is six year. It is necessary to mention here that the issue of post -

divorce maintenance has once again been reviewed by the law and justice commission of

Pakistan. It has put forward a proposal for post-divorce mutat for wives as ordained in the Quran

by revisiting the half century old muslin family law ordinance and the west Pakistan family

courts act keeping in view the changing needs of the society.22

The question of post-divorce maintenance whether maintenance is obligatory or optional. The

view expressed in this respect by the members of the commission as well as by hundreds of

Muslims was that a large number of middle age women who are being divorced without reason

19 Quran Chapter Al-Baqra(2), VerseNo. (240) -20 Women in shariah 1992 pp 6021 Nasir, jamal J Ahmad, the status of women under Islamic law and modern Islamic legislation, Volume 1, 3 rd ed22 Article 120, limitation act of pakistan, 1908

should not be thrown on the street without a roof over their heads and without any means of

sustaining themselves and their children. So it is compulsory on husband to maintain his wife

during the period of iddah.23 Therefore, the commission recommended that courts should have

the jurisdiction to order a husband to pay maintenance to his divorced wife for her life or till she

remarried. The Muslim family laws ordinance of 1961 dealt with the question and found in favor

of women’s claim. But it only awarded maintenance for married women despite the

recommendation from the 1956 commission. A judicial development, however, invokes that it is

permissible to follow a non Hanafi school when Hanafi law does not provide relief. This

principle was applied in the case of Gul bibi v Muhammad Saleem24 the court held according to

Shafi law the wife is entitled to maintenance notwithstanding the fact that she was allowed to get

into arrears without having the amount fixed by the court. Or by agreement with the husband, in

the instant case the parties admitted the follower of Hanafi school of thought. However, as some

thinkers of Islam do favour the positive view and such view is also consistent with reason, logic

and common sense, its adoption as a rule in case of such sects which do not strictly follow that

school of thought, would not be unjustified.

Muslim family laws ordinance 1961, Pakistan states:

Maintenance. (1) If any husband fails to maintain his wife adequately, or where there are more

wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in

addition to seeking any other legal remedy available apply to the Chairman who shall constitute

an Arbitration Council to determine the matter, and the Arbitration Council may issue a

certificate specifying the amount which shall be paid as maintenance by the husband. (2) A

husband or wife may, in the prescribed manner, within the prescribed period, and on payment of

the prescribed fee, prefer an application for revision of the certificate, to the Collector concerned

and his decision shall be final and shall not be called in question in any Court. (3) Any amount

payable under Sub-section (1) or, (2) if, not paid in the due time, shall be recoverable as arrears

of land revenue.25

23 Mentioned in Gazette of Pakistan, extraordinary, 20 june 1956,p.121524 ILR 5 Cal 558,562(1879)25 Section 9, muslim family laws ordinane, Pakistan 1961

Therefore the right of the wife can be enforced without intervention of the court or through

courts. Section 9 of the MFLO lays down provisions for claiming maintenance extra-judicially

but does not provide for a divorced wife to claim iddat maintenance.

Huq suggests that a clause be inserted in section 9 of the ordinance by way of amendment

entitling a woman to claim iddat maintenance before the arbitration council.26

There are two questions wether a women has entitled to the past maintenance, this question has

been decided in the case of Jamila khatun vs rustom ali27. Where it was decided that the wife is

entitled to past divorce maintenance even in the absence of any specific agreement. Recognizing

the right to past maintenance, the appellate division handed down a progressive judgment by

overruling an old text based judgment by the high court division of the Supreme Court in Rustom

Ali vs Jamila khatun, to the effect that the claimant wife was not entitled to past maintenance. In

deciding the fate of Jamila khatun the appellate division of the Supreme Court relied on the

Pakistani leading case of Sardar Muhammad vs Nasima bibi,28that positively settled the issue of

past maintenance in Pakistan as early as in 1964. Supporting the deviation from the age old texts

on the subject, the appellete division of the Supreme Court noted that the judicial ijtihad in this

area of law made by the Pakistani courts was in the right direction. Thus the Bangladeshi judges

of the highest level of judiciary have only recently made the celebrated judgment in the case of

Jamila khutan vs rustom ali. But how far this decision is being implemented in reality is yet to be

analysed.

The second question is that whether a woman is entitled to post divorce maintenance beyond the

period of iddat. This question was settled in the case of hefzur Rahman vs shamsun

naharbegum29. In this case high court division of the supreme court of Bangladesh addressed

themselves sou motu to the question as to whether the divorced wife would claim maintenance

beyond the iddat period. After considering various verses of the quran and precedent, the court

held that the person after divorcing wife is bound to maintain her on a reasonable scale beyond

the period of iddat for an indefinite period, that is to say, till she losses the status of a divorce by

remarrying another person.

26 Huq, Naima, Post Divorce Maintenance: Legal and social Appraisal in Gender in Law, pp.62, 6927 16 BLD (AD) 6128 PLD 1966 W.P Lahore 70329 47 DLR 1995, 54

The appellate division of the supreme court overruled this decision in shamsun nahar vs hefzur

Rahman the ground that in muslum law there is no such obligation on the husband to maintain

his divorced wife after the iddat period, and that the high court division of the supreme court’s

ruling was against the principles set by Muslim jurists of the last fourteen hundred years.30

In Tunisia:

Tunisian family code as amended in 1981, both men and women are entitled to compensation for

the emotional and material damages inflicted on them by a divorce without grounds, or a divorce

at their petition for injury. This amendment further favours women who may opt to have the

material part of the Damages paid not as lump sum but in monthly ongoing instalments. The

amount paid to a woman may be determined by the standard of lining the wife was accustomed

to. These instalments would continue until the woman. Death or if her circumstances change

such as if she is enabled to do without compensation or by way of a new marriage.31

Welchman argues that the objectives of such legislation includes deterring the husband from

arbitrary exercise of pronouncing unilateral divorce, compensating the wife for the injury she has

sustained and to increase the financial obligations on the husband towards his divorce wife

beyond the payment of dower and maintenance during iddat. Therefore, in Tunisia husband must

provide maintenance during iddat period and if divorce wrongfully, she may be awarded

maintenance in the form of a lump sum to be determined by the women’s standard of living.32

In Malaysia:

The Malaysian Islamic family law as regarding to post-divorce maintenance is established on the

basis of the verse 241of Quran. Furthermore, the Shari-ah courts in Malaysia have highlighted

the distinction between the iddat maintenance and muta or post-divorce maintenance. The courts

are of the view that a dicorced woman is entitled to maintenance during the period of iddah.

According to section 59 of the Islamic family law federal territories act 1984 the court may order

a man to pay maintenance to his wife or former wife. A wife shall not be entitled to maintenance

30 51 DLR 1999 AD pp.17231 Article 23, Tunisian family code32 Lynn Welchman, Women and muslum family laws in arab states- A comparative overview of Textual Development and advocacy, pp. 93

when she is nusyuz or unreasonably refuses to obey the lawful wishes or commands of her

husband, such as when she withholds her association with her husband, when she leaves her

husband’s home against his will or when she refuses to move with him to another home or palace

without any valid reason according to Shari-ah.33

Case law:

In the kedah case of salma vs mat akhir, the divorced wife claimed payment of maintenance

during the period of iddah. The court held that it was obligatory for the defendant-husband to pay

the maintenance unless there were valid reasons according to the Islamic law for its non-

payment. The defendant was asked to pay 500 dollars for the maintenance during iddah.

A divorced woman has the right of maintenance just in the period of iddah, when iddah expires,

the rights of maintenance comes to an end. Section 65 of Islamic family laws states that the right

of a divorced wife to receive maintenance from her former husband under any order of Court

shall cease on the expiry of the period of 'iddah or on the wife being nusyuz.

When a man divorces his wife, then he is bound to maintain not only his ex-wife but also his

children. Section 73 of Islamic family laws states that (1) The Court may at any time order a man

to pay maintenance for the benefit of any child of his (a) if he has refused or neglected to provide

reasonably for his child; (b) if he has deserted his wife and the child is in her charge c) during the

pendency of any matrimonial proceedings; (d) when making or subsequent to the making of an

order placing the child in the custody of any other person. 

(2) The Court shall have the corresponding power to order a person liable under Hukum Syara',

to pay or contribute towards the maintenance of a child where it is satisfied that having regard to

his means it is reasonable so to order.

(3) An order under subsection (1) or (2) may direct payment to the person having custody or care

and control of the child or to the trustee for the child.34

Case law:

In the case of johore zarah vs idris the divorced wife also claimed maintenance for the two

children age 6 years and 3 years in her custody. The court ordered the husband-defendant to pay 33 section 59, Islamic family law federal territories act 198434 Section 73, ISLAMIC FAMILY LAW (FEDERAL TERRITORY) ACT 1984

100 dollars as maintenance for them and also 50 dollars a month to the plaintiff for looking after

the children.

3-Unpaid or Differed Dower

The third right of women after divorce is dower if not paid already. If the Muslim wife is

conceptually required to be obedient, the corresponding duty of the husband is to provide a

dower to wife. Maher or Dower is a sum of money or other property which the wife is entitled to

receive from husband in consideration of the marriage.

If the amount of dower is not fixed, the wife is entitled to “proper” dower (Maher e misl), even

if the marriage was contracted on the express condition as she should not claim any dower. In

determining what is proper dower regard is to be had to the amount of dower settled upon other

female members of her father’s family such as her father’s sisters. A dower may be specified or

proper. However, dower rights become payable on divorce or death of husband if not paid

immediately after marriage. No Muslim is allowed to take back the dower amount whether

specified or proper in any condition. Quran protects the rights of women as:

“And give the women (on marriage) their dower as a free gift”35

“If ye had given the latter (wife) a whole treasure for dower, take not the least bit of it back:

Would ye take it by slander and manifest wrong?”36

When Dower Rights become due:

The dower rights become due in any of the following conditions:

1- When a valid Muslim marriage is dissolved after consummation.

2- When marriage is not consumed, only half of the specified dower is payable on dissolution.

3- When dower is not specified and marriage gets dissolve, a present from husband may suffice

for full dower.

35 (Quran 4:4)

36 (Quran 4:20 )

Whole dower is not payable immediately in a Muslim Marriage. The Muslim marriage laws

allow a division of the dower in two parts; prompt and deferred. When the parties agree to make

a part of dower prompt and other part as deferred, the dower shall be paid as per division.

Case law in Pakistan:

Mst. SALMA BIBI Versus MUHAMMAD IQBAL

Dower was fifteen tolas of gold out of which four tolas was prompt, while remaining was

deferred-Plaintiff had acknowledged receipt of three tolas of gold but she was entitled for twelve

tolas of gold as dower. It was held in this case that that plaintiff is entitled to dower of Rs.53,000

in cash, twelve tolas of gold, five marlas house in Peshawar that 4th portion of the dower is

'prompt', while the 11th portion thereof is 'deferred', except in case of twelve tolas of gold, of

which one tola of gold is 'prompt' and the remaining eleven tolas is `deferred' dower;37

In Pakistan, The bridal gifts given to wife in dowry/Jahaiz are the exclusive property of wife

during or after the marriage. Upon dissolution of marriage wife is also entitled to claim deferred

dower and maintenance during the period of Iddah. section 638 states that: All property given as

dowry or bridal gifts and all property given to the bride as a present shall vest absolutely in the

bride and her interest in property however derived shall hereafter not be restrictive, conditional

or limited.

Case law in Malaysia:

In the case of salma v mat akhir the divorced wife also claimed payment of the masahwin of 600

dollar which had not been paid. The defendant husband in his defence said that the plaintiff had

waived her claim to the maskahwin or mahr and had agreed that the defendant need not pay it.

The plaintiff denied this and took an oath to support her deniel. The court ordered the defendant

to pay the sum of 600 dollars owing for mahr.

So if mahr has not been paid by the husband to the wife and the wife has been divorced, then she

has a right to get her unpaid mahr from her ex-husband. This is the statute and practice in

Pakistan and Malaysia, and has been proven from different cases.

37 P L D 2014 Peshawar 6038 Restriction Act 1976, Pakistan, article 6

Conclusion:

We are able to understand that when a woman has been divorced, she is entitled many rights

such as mutah, maintenance during the period of iddah and unpaid mahr or differed mahr. These

are those rights of a divorced woman which are provided by Allah Almighty in the Quran and

now have become the statute of Muslim world. 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 and maintenance during the period of iddah should be best done according to

the affordability and willingness of both parties and agreed by the Court. But there are many

cases related to muta and maintenance where sometimes courts have decided a large amount of

muta and maintenance to be paid to the divorced women. It is the violation of Islamic rules and

fealings because islam has given these rights to divorced woman to lessen her burden due to

divorce but but a lot of amount of gift and maintenance creates problem for husband and society.

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

2-Mimi Kamariah Majid, Family Law in Malaysia

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- Islamic family law (Federal Territory), Act 1984

6-Muslaim family laws ordinance 1961, Pakistan

7-Lynn Welchman, Women and Muslum Family Laws in Arab States- A comparative

overview of Textual Development and advocacy

8-A commentary on the Muslim Laws 1975. Translated by Charles Hamilton. Lahore

Pakistan

9-Nasir, jamal J Ahmad, the status of women under Islamic law and modern Islamic

legislation, Volume 1, 3rd ed

10-Huq, Naima, Post Divorce Maintenance: Legal and social Appraisal in Gender in

Law, pp.62, 69

11-Restriction Act 1976, Pakistan