Back
2011 MarsdenLR 3318
SYARIAH APPEAL BOARD SINGAPORE
SURINAH SAPAR – Appellant
Versus
ABDUL MUTALIB ABDUL MAJEED – Respondent
[Appeal No: 24 Of 2010]
The court upheld that mutaah is payable despite allegations of nusyuz if divorce is by talak wajib, emphasizing equitable distribution of marital property and financial responsibilities.
Headnote:(A) Administration of Muslim Law Act (Cap 3, 2009 Rev Edn) - Sections 35(2)(e), 35(3), 50(1), 50(3), 50(6), 52(3)(c), 52(4), 52(10) - This case involves the dissolution of marriage and the awarding of mutaah - Consent order for hakam appointment was respected; divorce was decreed; custody granted to Plaintiff along with care of the adopted child. (Paras 1-9)
(B) Mutaah entitlement - Court confirmed that despite allegations of nusyuz against the Plaintiff, mutaah was still payable as the divorce was not initiated by the Plaintiff; potential entitlements must consider circumstances surrounding the divorce. (Paras 12-19)
(C) Division of matrimonial property - The court considered both parties’ financial contributions and obligations regarding the matrimonial flat and CPF moneys and ordered a proportionate division of proceeds from the flat sale, indicating wealth disparity. (Paras 27-45)
(D) The parties were married on 1 January 1994, resulting in a divorce order on recommendation from a hakam after 16 years of marriage. The Defendant appeals against the decisions made on divorce registration fees, custody, and mutaah. (Paras 1-3, 8-9). Findings included the assessment of Defendant’s financial situation for determining mutaah amount and fair division of property.
Result: Defendant directed to pay mutaah amounting to $24,500 and to divide flat sale proceeds at a ratio of 75% to Plaintiff and 25% to Defendant.
[1] The parties in this case married on 1 January 1994. The Court, on 15 June 2010, issued a consent order for parties to appear before hakam.
[2] On 29 July 2010, the Court heard the hakam report which recommended that the marriage be dissolved by the pronouncement of talak wajib by the Defendant's hakam. The Court accepted the report. It was a marriage that lasted about 16 years and 7 months.
[3] The Defendant intends to appeal against the whole of the Court's decision.
Talak Wajib
[4] Classical Muslim jurists opined that practice of appointing hakam is derived from the Qur'an (Surah 4, An Nisa, verse 35). However, the jurists differed over the practice. (See Ahmad Ibrahim, Undang-Undang Keluarga Islam di Malaysia (Kuala Lumpur: Malayan Law Journal, 1999) at pp 112-115; Peunoh Daly, Hukum Perkahwinan Islam (Selangor: Thinker's Library, 1994) at pp 240-243.)
[5] In Singapore, the Syariah Court is governed by the Administration of Muslim Law Act (Cap 3, 2009 Rev Edn) ("AMLA"). As such, the Court refers to the following provisions in AMLA:
(a) Section 35(2)(e) allows the Syariah Court to exercise jurisdiction to determine disputes relating to "divorces known in the Muslim law as... talak".
(b) Section 35(3) directs the Court that "[i]n all questions regarding... dissolution of marriage [and] the appointment of hakam, the rule of decision shall... be the Muslim law, as varied where applicable by Malay custom".
(c) Section 50(1) allows the Court to appoint "in accordance with the Muslim law 2 arbitrators, or hakam, to act for the husband and wife respectively".
(d) Section 50(3) allows the Court to "give directions to the hakam as to the conduct of the arbitration".
[6] In the present case, both parties were represented by counsel. Both parties also consented to allow their hakam to decree a divorce. The power of hakam to decree a divorce is found in s 50(6) AMLA. (See Sarina Jamal Mohamed v. Mohd Zulfikar Abdul Rahman Originating Summons No 32680 of 2007, where the Court quoted with approval the fatwa of Imam Nawawi regarding the pronouncement of talak wajib.) Section 50(6) states:
The hakam shall endeavour to obtain from their respective principals full authority, and may,if their authority extends so far, decree a divorce, and shall in such event report the same to the Court for registration.
[7] I was satisfied that the hakam had the full authority to decree a divorce. Accordingly, I confirmed the pronouncement by the Defendant's hakam and ordered that the divorce be registered.
Divorce Registration Fee
[8] As I had ordered the Plaintiff to pay the divorce registration fees, I am unsure why the Defendant wishes to appeal against this particular order. Rule 45(1) of the Muslim Marriage and Divorce Rules (Cap 3, R 1, 2001 Rev Edn) ("MMDR") directs that the divorce registration fee "shall be payable". It is reasonable to expect that the one applying for the divorce is the one who will bear the divorce registration fee.
Custody, Care And Control
[9] The parties have an adopted child. Upon hearing the submissionsof counsels, I recorded a consent order regarding the custody, care and control of the child. As both parties consented to this, I am unsure why the Defendant wishes to appeal against this particular order.
Adoption Papers
[10] Since the parties already agreed that the Plaintiff have custody, care and control of the child, I decided that it was reasonable that the Defendant hand over to the Plaintiff the child's adoption papers. In doing so, I referred to s 52(3)(c) AMLA which allows the Court to "make such orders as it thinks fit with respect to... the custody, maintenance and education of the minor children of the parties" [emphasis added] and s 52(4) AMLA also allows the Court "to make all such other orders and give such directions as may be necessary and expedient" to give effect to any order made under s 52.
Nafkah Iddah
[11] I decided that I would not make any orders on nafkah iddah as this was a divorc
