Keputusan Mahkamah Agung Bangladesh: makna dan maksud Mut’ah.
Keputusan Mahkamah Agung Bangladesh dalam kes Hefzur Rahman telah memberikan ulasan akan: makna dan maksud Mut’ah serta perbezaannya dengan makna / maksud nafkah.
Keputusan Mahkamah Bangladesh ini juga menafikan pandangan bahawa pandangan para ulama’ fiqh terdahulu terjejas dengan pandangan baru masakini. Dengan lain perkataan pandangan para ulama’ terdahulu masih relevan dan diterima pakai di Bangladesh sehingga kini.
Anisur Rahman seorang Pensyarah Jabatan Undang-Undang di Stamford University Bangladesh, Dhaka dalam artikalnya yang bertajuk ‘DEVELOPMENT OF MUSLIM FAMILY LAW IN BANGLADESH: EMPOWERMENT OR STREAMLINING OF WOMEN?’ membuat rumusan berikut:
Is reform possible within Islamic law? It appears from the above discussion that though our (Bangladesh) judiciary has put forward a host of new principles at different times, traditional principles of classical Muslim law remain somewhat untouched. It is praiseworthy that our judiciary has explored traditional Muslim law significantly. Sometimes they have come up with the social welfare doctrine or the doctrine of equality before law to enrich Muslim family law. But this initiative from the judiciary has been noticed only where there is no theological interpretation of the Quran or Sunnah or where there is no consensus among the traditional Muslim jurists.
Interestingly, though our courts have come up with new principles in order to foster empowerment of women, they have hardly been sympathetic towards the economic empowerment of women. Where economic empowerment is the fundamental issue i.e. maintenance, guardianship, etc., our courts have taken recourse to the orthodox approach of interpretation of Muslim law. Though there have been a few efforts to rule out the orthodox interpretation of Muslim law, all efforts have gone in vain.
The classic example would be Hefzur Rahman’s case. In this case in view of the social reality of Bangladesh it was held by the High Court Division that a husband is responsible to pay maintenance, after divorce, until the re-marriage or death of the wife.
The Court took recourse to a decision of the Lahore High Court to argue that ‘if the interpretation of the Holy Quran by the commentators who lived thirteen or twelve hundred years ago is considered as the last word on the subject, then the whole Islamic society will be shut up in an iron cage.’
However, this bold decision of the High Court Division was overruled by the Appellate Division later. The Appellate Division is of the opinion that “Quran should not be interrelated with manmade techniques. The verse should not be understood in isolation and with little knowledge (emphasis mine). Rather it should be interpreted or understood with the teaching and practices of the Prophet and subsequently by enunciation of the Islamic jurists and scholars.”
Finally, the orthodox interpretation triumphs over the modern understanding of Muslim law.
 Hefzur Rahman v Shamsun Nahar and another, 51 DLR, HCD, p. 172.
 Mst. Rashida Begum v Shan Din and others, PLD (1960), Lah, p. 1142.
 Hefzur Rahman v Shamsun Nahar and another, 51 DLR, HCD, pp. 182, 193 & 199.
Mahkamah Agung Bangladesh dalam kes Hefzur Rahman v Shamsun Nahar and another yang dirujuk diatas telah membuat keputusan secara panjang lebar mengenai makna dan maksud Mut’ah. Kelima-lima Hakim dalam kes tersebut sebulat suara telah menerima rayuan Perayu.
Berikut ialah petikan kata Hakim-Hakim Mahkamah Agung Bangladesh dalam kes Hefzur Rahman v Shamsun Nahar and another yang tersebut mengenai makna Mut’ah:
(i) Muslim Law - Divorce and Maintenance - Meaning of ‘Mataa’
Per A.T.M. Afzal CJ:
Mataa is something to which a divorced woman is entitled and which the former husband is under an obligation to pay seems to follow naturally from the Ayat (241, Sura Bakara) itself. But the whole question is whether Mataa can be equated with maintenance as has been done by the High Court Division. We shall see whatever be the meaning of Mataa it is certainly not maintenance as can be claimed within the meaning of the Family Court Ordinance. It is clear that the interpretation given by the learned Judges is not and cannot be acceptable because it brings conflict and even on the general criterion of interpretation as they also would not deny that a document should be read as a whole, interpretation of the learned Judge should be rejected ……………………. (35 & 48)
Per Mustafa Kamal J:
Under the strict interpretation of the word Mata’a all that can be given is three pieces of cloth sufficient for a divorced woman to pray. The maximum that can be given is half of the dower money fixed. But, of course, instances have been provided to us that Hazrat Hasan Bin Ali (R) gave his divorced wife 10,000 Dirhams in those days. It is our understanding that the Holy Quran has left the quantum of mata’a to the Godliness, sense of justice, equity and fairness on the part of the husband, since it is a voluntary payment. The liberal view (Tafsir Ibne Kasir, a disciple of Imam Shafi) is that the presentation of a suitable gift is obligatory in the case of all divorced women and not merely in the case of women referred to in Ayat 236 of Sura Al-Baqarah (2). In any view of the matter mata’a is a voluntary gift payable by the righteous. A righteous man will please Allah and if righteous men give voluntary gift to all kinds of divorced women it is for Allah to consider whether they have acted righteously or not. Righteousness and mata’a go hand in hand ……………………………… (154 & 155)
Per Latifur Rahman J:
Inner meaning of “Mattaa” has not been correctly derived from any Arabic dictionary and rightly appreciated by the learned Judges who wrongly arrived at the conclusion that in the context of Verse No. 241 of Surah Baquara it means maintenance. Whereas it is not maintenance at all in Arabic meaning. The learned Judges of the High Court Division did not give any attention to the real translation of the two Arabic words “Mattaa” and “Nafaqa” and wrongly held that a divorced woman is entitled to maintenance till she remarries. The term ‘Mattaa’ means certain benefits, privileges and gifts in any form by whatsoever name you call it, is incumbent on the ‘righteous’ as enjoined by Allah in the Holy Quran. ‘Mattaa’ is given once at a time at the time of divorce ……………………………… (163 & 164)
Berikut pula ialah keputusan material kesemua Hakim kes tersebut.
Di maklumkan disini bahawa oleh kerana keputusan YAA ATM Afzal CJ adalah panjang maka alasan keputusan beliau (setakat yang berkenaan dengan isu Mut’ah) saya akan berikan didalam siri kedua (2) pula.
Sehubungan dengan itu juga keputusan dan alasan penghakiman YA Mustafa Kamal J pula akan berada di dalam siri ketiga (3) pula.
Dalam siri satu (1) ini keputusan dan alasan keputusan YA Hakim-Hakim
Judgment of Latifur Rahman J:
I am adding few lines in support of the main Judgment. The judgment of the High Court Division is devoid of any justifiable reasons, based on no sources of Islamic Law, such as, the Holy Qur-án, Sunnah, Ijma and Qiyas and is also against the pronounced opinion propounded by the Muslim jurists of great antiquity and high authority for the last fourteen hundred years.
160. The broad question that comes up for consideration in this appeal preferred by the former husband-appellant is, whether a person after divorcing his wife in bound to maintain her on a reasonable scale beyond the period of Iddat for an indefinite period, namely, till she loses the status of a divorcee by remarrying another person.
161. The family court granted maintenance to the divorced wife for the period of Iddat, namely, three months at the rate of Taka 1000.00 per month. On appeal, the maintenance during the period of iddat of three months was maintained. In revision, the sigh Court Division, of course, awarded maintenance to the divorced wife till remarriage.
162. Before the High Court Division no one appeared on behalf of the present appellant to support the Rule. Even the divorced-respondent accepted the maintenance during the period of Iddat. After hearing the learned Advocate of the respondent, the learned Judge suo-moto took up the question whether the divorced wife could claim maintenance beyond the period of Iddat. At the first place, this exercise of such an important matter should not have been made at all by the Judges, as there was no argument on this point by any of the parties. Secondly, such an important matter should not have been considered by the learned Judges themselves to the prejudice of a party without any notice to the parties and being unaided by any help from any or from any authority on Islamic law. It seems that the learned Judges of the High Court Division primarily accepted the English version of the translation of verse No.241 of Surah Baquara of Abdullah Yusuf Ali. Abdullah Yousuf Ali translated the meaning of “Mataaon bil-maroff” in verse No. 241 of Surah Baquara as ‘maintenance should be provided on a reasonable scale”. It appears that for arriving at a conclusion that a divorced woman is entitled to maintenance beyond the period of Iddat for an indefinite period till she remarries neither any Quranic injunction nor any guidance from the last fourteen hundred years by Muslim Jurists was sought for other than adopting the English translation of Abdullah Yousuf Ali. This exercise of such an important matter which touches at the fundamentals of Islamic law ought to have been considered in the light of Quranic injunctions and other sources of Islamic law.
163. The basic source of Islamic law is the Holy Qur-án, the divine book revealed to the Holy Prophet. The other sources are “Sunnah” which means the practice and the precedents of the Holy Prophet. As a source of law hadis is as binding as the principles of the Holy Qur-an. Ijma as a source of law has been established by agreement and consensus amongst highly qualified Muslim Scholars of antiquity. Qiyas is the last source of Islamic Law. This is reasoning by analogy. In comparison with other three sources of Islamic Law it is less important. If there is no guideline from the Holy Qur-an then one depends upon the usage of the Prophet. If that also fails, then one should follow Ijma and finally his own reasons. It is very surprising that in the judgment of the High Court Division none of the sources of Islamic Law was taken note of, but a literal translation was adopted of verse No 241 of Surah Baqara only and on that basis such a great issue of Islamic Law which governed the field for the last fourteen hundred years was discarded. It is really strange that the learned Judges even did not care to take note of correct translation of the Arabic phraseology from any recognized Arabic dictionary. Abdullah Yousuf Au translated the word “Mattaa” which appears in the Holy Qur-án, Verse 241 as “Maintenance”, whereas the usual word for maintenance is “Nafaqa”. Famous Arabic dictionary such as, ‘Al Manjid’ and ‘Al-Magrib’ had translated “Mattaa” as wearing clothes (minimum one set) house-hold stuffs, small capital and ordinary goods given to women after divorce. Thus, it appears that inner meaning of “Mattaa” has not been correctly derived from any Arabic dictionary and rightly appreciated by the learned Judges who wrongly arrived at the conclusion that in the context of Verse No 241 of Surah Baquara it means maintenance. Whereas it is not maintenance at all in Arabic meaning. The learned Judges of the High Court Division did not give any attention to the real translation of the two Arabic words “Mattaa” and “Nafaqa” and wrongly held that a divorced woman is entitled to maintenance till she remarries. The Bengali translation of verse Nos 241 and 242 of Surah Baquara and translated by King Fahad Quranic Publishing Project, Medina, reads as follows:
“Aar talakprapto narider jonno procholito niom onujai khoroch deya pohezgarder upor kortobbo. Eibhabei Allahta’la tomader jonno shio nirdesh bornona koren jehetu tomra ta bujhte paro.”
These verses as quoted above only reflect that Allah has given direction to righteous people and this has nothing to do with the maintenance of a divorced wife during the period of Iddat.
164. In verse No.241 of Surah Baquara, the word ‘mutakkalat’ is very significant which indicates “soddo talakprapta mohilara”. Reading Verse 241 along with the preceding Verses of Surah Baquara, I understand of giving “Mattaa” to a divorced woman who has been divorced immediately/recently and this has got nothing to do with the divorced woman whose period of Iddat has not yet been over. As I understand the term ‘Mattaa’ from Arabic translation, it means certain benefits, privileges and gifts in any form by whatsoever name you call it incumbent on the ‘righteous’ as enjoined by Allah in the Holy Qur-án. ‘Mattaa’ is given once at a time at the time of divorce.
165. The learned Judges of the High Court Division who are Muslims discarded the decision of the Privy Council in the case of Aga Mohammed Jaffar Bindanim vs Koolsoom Beebee, ILR 25 Calcutta-449 on the ground, inter alia, that the learned Judges were non-Muslims; that Article 8(1A) of the Constitution of Bangladesh speaks of absolute trust and faith in Almighty Allah which shall be the basis of all actions and that Second Surah Baquara, Verse 121 indicates continuous study of the Qur-an which is in conformity with the dynamic, progressive and universal character of Islam. It is indeed surprising and shocking to note that the Muslim Judges of today deviated and in reality failed to understand and locate the sources of Muslim Law and gave a wrong interpretation of maintenance of a divorced woman according to their whims and caprice without following any pronouncements of Muslim scholars of the past. As a matter of fact, in the Privy Council decision the British Judges decided the law on the basis of the pronouncements made by the Muslim Jurists whereas the Muslim Judges of today gave their independent opinion by disregarding the Muslim Jurists of the past. This judgment i wholly untenable in accordance with the established principles of Muslim law. Thus, it appears that the reasonings on which the dictum of the Privy Council was discarded are fallacious. The Judgment of the High Court Division is full of contradictions and anomalies as the learned Judges in one breath said that no one knows the hidden meaning of the revealed book except Allah and at the same time they understood the inner meaning and only accepted the English translation of the verse of the Holy Qur-án by “Abdullah Yousuf Ali and gave their own interpretations by ignoring the interpretation given by the recognised Islamic scholars of the past. As a matter of fact I do not find any basis of the learned Judges’ interpretation, other than the only English translation of Abdullah Yousuf Ali. Can it be the basis of such an important interpretation of a verse of the Holy Quran?
166. Under the Mohammadan Law marriage is a civil contract and not a sacrament. The rights and obligations are created immediately on the contract of marriage. Even after divorce, namely, cessation of marriage it is incumbent for the woman whose marriage is dissolved by divorce to wait for a certain period which is called “Iddat” a period of waiting during which they will abstain from marrying another person. This abstinence is imposed to ascertain as to whether she is pregnant by the former husband so as to avoid confusion to parentage after divorce. The during of Iddat of the woman is subject to menstruation in three courses. When marriage is dissolved by death, the duration of Iddat is 4 months and 10 days. The waiting period for a pregnant woman is 4 months and 10 days or until delivery, which ever period is longer. Thus during this period of Iddat under the law, a divorced woman is entitled to maintenance as she is precluded from taking a second husband.
167. In the Holy Qur-an there is no clear direction for payment of maintenance to a divorced woman. Verse 228 of Surah Baquara translated in Bengali reads as follows
“Ebong talakpraptogon nijeder jonno tin ritu porjonto opekhkha korbe”
This is a direction of Allah as contained in the Holy Qur-án. Iddat is a period of waiting. After divorce the marriage tie between the husband and wife is dissolved and after the dissolution of marriage there remains no obligation between the parties outside the contract of marriage, but due to the period of Iddat outside the contract of marriage an obligation for payment of maintenance has been created according to Muslim Law. I have already reiterated earlier that in verse 241 of Surah Baquara the word “ Muttallaka” means a woman who got immediate divorce and this has no reference to the period of ‘Iddat’. The learned Judges of the High Court Division, of course, took note of verse 228 of Surah Baquara but did not consider verse 228 along with verse 241 of Surah Baquara. Verse “Al Talaque” has been revealed by Allah 2/3 years after verse Baquara. This verse was also not taken note of by the High Court Division. The learned Judges did not care to read other verses in the Holy Qur-án to arrive at a correct interpretation of giving maintenance to a divorced woman after the expiry of the period of “Iddat”.
168. It is not proper and advisable to interpret one verse in a disjointed manner and to ascertain the real meaning of one verse only without reference to other verses on the same subject.
169. There are several judicial pronouncements that after divorce the wife is entitled to maintenance during the period of Iddat. In the case of a learned Single Judge of the High Court of Dhaka held “in this case she is only entitled to three months maintenance under the Mohammadan Law for the ‘Iddat’ period”. In the case of Stuart, Chief Justice held that “Marium is entitled to maintenance during the period of Iddat and not after that period was expired. She is thus entitled to the maintenance for three months.” In that, decision the English Judge took note of several decisions of British-India wherein it was held that a divorced wife is entitled to maintenance during the period of Iddat. Reference may be made to the decision, the petition of wherein Mahmood, J. has quoted from Hedaya where Iddat has been defined as “the term of probation incumbent upon a woman in consequence of the dissolution of marriage after carnal connection, the most approved definition of iddat is the term by the completion of which a new marriage is rendered lawful”
170. The learned and illustrious Judge had also quoted Hedaya wherein it has been clearly stated as follows:
“Where a man divorces his wife, her, subsistence and lodging are incumbent upon him during the term of her iddat, whether the divorce be of the reversible or irreversible kind. The argument of our doctors is, that maintenance is a return for custody, and custody still continues on account of that which is the chief end of marriage, namely, offspring (as the intent of iddat is to ascertain whether the woman be pregnant or not), wherefore subsistence is due to her, as well as lodging, which last is admitted by all to be her right.”
171. The above decisions are very illuminating which truly reflected the true principles of Islamic law on the question of maintenance of a divorced woman during the period of Iddat. It is very strange that in spite of such decisions the learned Judges of the High Court Division did not at all care to look into those decisions and gave an interpretation of their own imagination from a mere English translation of Abdullah Yousuf Ali.
172. There being no direction of payment of maintenance during the period of ‘Iddat’ in the Holy Qur-án, one is bound to follow the other sources of Islamic law for a guidance on the question of granting of maintenance to a divorced woman. The judgment is based on no sound reasonings and it is against the principles set up by Muslim jurists of the last fourteen hundred years.
173. Mowlana Obaidul Hoque, Khatib Baitul Mokkaram National Mosque, Dhaka, whom we summoned to appear before us and make submission on this vital matter not only appeared and made submissions before us but also submitted a written note. In his written note he has referred to Hadis, ‘Ijma and Qiyas. From these three sources of Islamic law, he has opined that a divorced woman is entitled to ‘Nafaqa (Maintenance) upto the period of iddat only. He has stated that Hazrat Omar (R) had said that he heard from the Holy Prophet that a divorced woman was entitled to Nafaqq during the period of Iddat. He has quoted this Hadith. He has also quoted that all Muslim Scholars, Jurists and Shahabis were unanimous on this point that a divorced woman is entitled to maintenance during the period of Iddat only. If any one gives a contrary opinion today, that would be against Ijma and would not be accepted in accordance with Muslim law and Shariat. He has further quoted that Imam Abu Hanifa, Imam Abu Yousuf and Imam Mohammad were of the view that a pregnant woman is entitled to maintenance till she delivers that child and a divorced woman is only entitled to maintenance during the period of “Iddat”.
174. Mrs. Rabeya Bhuiyan, learned Advocate appearing for the appellant, placed before us some changes in Islamic law in Malaysia, Egypt and other Muslim countries. In Malaysia, where Shafi law is followed, a divorced wife is entitled to “mataa” in addition to maintenance and mahr. The amount awarded under this head are not large, but the Malaysian wife in also entitled to a division of matrimonial property on divorce. The latter derives this benefit from Malaysian customary law which has been incorporated into Malaysian Muslim Law.
175. Mrs. Rabeya Bhuiyan has also pointed out before us the legislations on this point in other Muslim countries such as Morocco, Iraq, Turkey, Libya, Tunisia, Syria and Algeria. Through rational and progressive interpretation of Islamic principles, maintenance has been awarded to poor Muslim women who are divorced and deserted. Under Mohammadan Law, maintenance during the period of Iddat is incumbent upon a former husband. A divorced wife can legally and lawfully realise maintenance for the period of Iddat. But the right to “Mattaa” loosely used as maintenance beyond the period of Iddat may be statutorily provided for the poorer women who are destitute and are suffering in the hand of unjust and cruel husbands. It can be argued that for giving benefits to Muslim women laws may be made as has been made in several Muslim countries and the beneficial legislation will not be against Muslim personal law and will be in consonance with the ideas of justice, tolerance and compassion that the Holy Qur-án enjoins upon all righteous and true Muslims.
176. In her written submission, Mrs. Rabeya Bhuiyan has frankly admitted that the decision of the High Court Division appears to be too wide, but as in our country many women are divorced by their husbands without any fault on their part some legislation may be made for the good of Muslim women community in Bangladesh. According to her, many divorced women in our country suffer as they have no economic and educational background to support them. She urges this Division to make observation to provide for a fair, just and reasonable legislation to remove the extreme hardship of divorced women in our society. Such statutory recognition of benefits and privileges for a divorced woman will not be in conflict with Muslim Law.
Judgment of Mohammad Abdur Rouf J.-
I have had the privilege of going through the judgment proposed to have been delivered by my learned brothers. I fully agree with the reasonings and the conclusion drawn by them in allowing the appeal. I do not propose to add anything more.
Judgment of Bimalendu Bikash Roy Chowdhury J.-
I have had the advantage of reading the erudite judgments of my learned brothers. I entirely agree with their reasoning and with their conclusions on the general or secular aspects of the case but would like to add a further ground in support. Plaintiff No.1 Shamsun Nahar Begum never appealed against the decree of the original court nor did she take any appeal therefrom. She did not also prefer any revision. In such circumstances the learned Judges of the High Court Division had no jurisdiction to give her any further relief beyond what was granted by the first two courts below.
179. The question of entitlement of a divorcee to maintenance till her remarriage or death under Verse 241 of Sura Al-Baqarah is novel and to my mind difficult. It is not essentially necessary to decide it in this appeal. I would therefore refrain from expressing any opinion thereon.
Accordingly, I too would allow the appeal.