MASKAHWIN & MAHR

Family Law 1 (Law605)

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🞂 1) Mas kahwin (Mahr) and
pemberian

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 Definition

🞂 1. Word used in al-Quran for Mahr ajr, sadaqa or

faridhah.

🞂 2. Meaning of Mahr
◦ Generally means a free gift by the Husband to the Wife at the
time of marriage.
◦ It can be in money or other valuable things
◦ It becomes the property of the wife.

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 Authority

🞂 i) An Nisa 4: 4
🞂 ‘And give the women (on marriage) their dower as a free
gift; but if they, of their own good pleasure, remit any part of
it to you, take it and enjoy it without fear of any harm.’

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🞂 ii. An Nisa 4:24
🞂 ‘..that you seek them with your property, taking them in
marriage…give them their dowries as appointed.

◦ Mahr becomes obligatory.

🞂 iii. even if a man marries a slave, he must give her

mahr (An Nisa 4:25)

◦ and if a man marries Kitabiyyah, he must give her mahr (al

Maidah:5)

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🞂 Hadith:

🞂 “there is no marriage except with the permission

of a wali, payment of dower and two reliable
witnesses”

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 Conditions for Mahr

🞂 1. Generally, the Husband must pay Mahr at the time of

marriage even it’s small in amount.

◦ However, in certain occasions marriage is valid even though the

time of payment of mahr is not stipulated.

🞂 2. Mahr is an absolute right of a woman even when the

marriage ends with a divorce. She is still entitled to claim
through court by means of debt.

🞂 3. if divorce by Khulu’ at the request of Wife in

consideration that she will give back mahr
(whole or part), then the Husband is entitled to it.

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🞂 4. if marriage is dissolved before consummation, then
the wife is entitled for ½ mahr (al Baqarah 2:237) &
An-Nisa’ : 19-21

◦ but if amount of mahr is not stipulated and the divorce takes

place before consummation- suitable mahr is according to
Husband’s economic situations.

🞂 5. if time for payment of mahr is not stipulated, then

wife can refuse consummation of marriage.

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🞂 Hadith:
◦ when Fatimah was married to Ali and Ali wanted to
consummate the marriage, Prophet advised Ali not to do so
until he has given something as mahr to Fatimah (armour)

🞂 6. if mahr is promised to be paid at certain

stipulated time then wife cannot refuse
consummation of marriage.

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 Types of Mahr

🞂 1. Mahr Musamma
◦ fixed mahr during aqad (can be increased or decreased with
consent of parties).

🞂 2. Mahr Mithil
◦ unfixed amount during aqad.
◦ (usually refer the amount received by bride’s sister, maternal
side or paternal side)

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 Amount of Mahr

🞂 Mahr must be of valuable things which are lawful

according to Hukum Syarak.

🞂 Mahar is determined by social status, wealth and

condition in society.

🞂 However, the Prophet s.a.w advised:

🞂 “The best mahr is the lesser amount.”

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🞂 Hadith: that a Sahabi wanted to marry a woman but he
could not pay mahr. The Prophet asked him to teach
her verses of Quran which he memorized.

🞂 However, according to Ibn Qayyim, this Hadith

cannot be taken in literal meaning. Mahr is the right
of a woman. In the above incident she was satisfied
with the man who was willing to teach her Qur`an and
she preferred it to be her property.

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 Jurists Opinion on Mahr

🞂 1. Hanafi:
◦ Minimum 10 dirham

🞂 2. Maliki:
◦ Minimum 3 dirham

🞂 3. Syafie/Hanbali:
◦ no minimum or maximum amount.

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Mahr as Practised in Malaysia
🞂 Under the Malay custom, the amount of mahr is fixed
and normally depends on the rank of the father of the
woman.
🞂 The amount differs between a virgin or unmarried
woman and a previously married woman.
🞂 In some states the amount of mahr is not fixed by the
States and it depends on a mutual agreement between
the parties involved.

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 SECTION 2 OF IFLA (FT)
🞂 “mas kahwin” means the obligatory marriage payment
due under Hukum Syarak by the husband to the wife
at the time the marriage is solemnized,
🞂 whether in the form of money actually paid or
acknowledged as a debt with or without security, or
🞂 in the form of something that, according to Hukum
Syarak, is capable of being valued in terms of money;

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 IFLA (FT)

🞂 S. 21(1) The mas kahwin shall ordinary be paid by man or

his representative to the woman or her representative in
the presence of the person solemnizing the marriage and at
least 2 other witnesses.

🞂 S. 21(2) The Registrar shall, in respect of every marriage

to be registered by him, ascertain and record-

◦ Value of mas kahwin

◦ Value of any pemberian
◦ deferred mas kahwin/pemberian
◦ particulars of security given for payment of mas kahwin or
pemberian.

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🞂 s. 23 (7)-if Husband contracts a polygamous marrieg then
he shall pay immediately the entire amount of the mas
kahwin and the pemberian due to the existing wife or wives,
which amount, if not paid, shall be recoverable as a debt.

🞂 s. 57 nothing in this Act will affect any right that a

married woman may have under Hukum Syarak to her mas
kahwin/pemberian or any part thereof on the dissolution of
her marriage.

🞂 (Right of a woman to claim mas kahwin and pemberian)

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 PEMBERIAN
🞂 s. 2 IFLA (FT) defines
◦ ‘a gift whether in the form of money or things given by a
husband to a wife at the time of the marriage’

🞂 Pemberian is normally not fixed by states. Usually it is the

parties’ agreement to pay.

🞂 If the Husband fails to give pemberian, the Wife can claim.

🞂 The right of a divorced wife to receive a pemberian from her

former husband under an agreement shall cease on her
remarriage. (sec 65(2) IFLA.

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Siti Zamrah v Majid (1986) 6 JH 130
🞂 The Wife claimed for mas kahwin and pemberian from the
H after divorce. Defence by H that W had agreed to give
all mas kahwin and pemberian to facilitate the divorce.
🞂 He called one witness. W was asked to take oath to deny
such agreement. The court referred to an Nisa:19-21 and
secs. 9, 11 and 45 of Kelantan Enactment.
🞂 After W had taken an oath, court ruled in her favour i.e. H
must pay RM770.

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Salma v Mat Akhir (1983) 5 JH 161
🞂 W claimed for mas kahwin of RM600. H claimed W
had remitted the payment. W denied and she called 2
witnesses but only evidence of 1 witness was accepted
by the court, whereas the other witness was her father.
She was asked to take oath to deny that she had
remitted. Then court ordered H to pay RM600 as mas
kahwin.
🞂

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Janat v Shaikh Khuda Bukhs (1911)
2 FMSLR 61
🞂 The Principle in this case:

🞂 H has to pay mas kahwin in term of money and only

with the wife’s consent that it may be substituted with
other article.

🞂 If other article is given, it cannot be regarded as mas

kahwin unless H can prove that W consents to it and
the burden is on H to prove.

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 Rosnah v Ibrahim(1979) 1JH 92

🞂 Divorced W claimed mas kahwin of RM58.00 and the

balance of the marriage expenses of RM300. After
enquiry, Kadi found that mas kahwin had been paid but
ordered H to pay the balance of the marriage expenses
of RM300.

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