Maintenance Of Wives In Islam

maintenance

Maintenance Of Wives In Islam

At the risk of sounding like a “conformist”, a “conservative” and maybe “recessive”, I wonder if we as a generation have failed in translating the values and impersonating the same mores that our preceding generations passed onto us. The men used to live up to the task of being “bread-winners” and the women took pride in their roles as “home-makers”. Interestingly enough Islam, which is not just a religion and more a code of life, through Surah Nisa, Verse 34, prescribes similar roles:

nisa

Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband’s] absence what Allah would have them guard (4:34).

The Quran uses the word qawwamun for men, which means “protector/guardian/ maintainers”. The term is often distorted to present that Quran preaches that men are superior to women. The truth is far from it; the verse only sets the dynamics between husband and wife. The first reason why men are qawwamun over women is their physical ability to protect women. The second is that “they (i.e. men) spend out of their wealth.” Although the Quran permits women to earn (Surah 4:32) and own wealth, it expects that men will generally be able to earn more than women because of the natural differences between them. This means that they will generally be responsible for the economic needs of women. Being qawwamun is not a badge to be worn on puffy chests and an authority to dictate – it is a responsibility.

The right to maintenance – that is expenses, food, clothing, lodging (which is to be free of other wives) – exists irrespective of her own means. The Shafis state that the scale of such maintenance shall be according to the means of the husband alone. The Shia schools state that such scale is to be determined by the standard of living of the wife before marriage. The Hanafis, Malikis and Hanbalis take a more utilitarian stance by calling for the average of the husband’s means and the standard provided by the wife’s father before marriage.

Such right to maintenance, as per the Islamic Law, however, is subject to the obedience of the wife (first to Allah) and then to her husband. The jurists have not reached consensus as to the accepted legal definition, interpretation and application of “disobedience”. Generally it is accepted that when a wife leaves the home without consent or lawful excuse may amount to disobedience. Non Hanafi schools have argued that a healthy wife who denies her bed to her husband is disobedient and therefore loses her right to maintenance. In Resham Bibi vs. Muhammad Shafi the Pakistani courts defined “obedience” to be submission to reasonable authority. The courts often avoid adjudicating over matters of covert disobedience – expressed generally in the intimate details of the married life of the couple – and leave for such matters to be sorted out personally. Overt disobedience – involving some public action – is more easily determined and in such instances the wife can lose her right to maintenance.

The duty to maintain lasts during the life of the marriage. In case of death of the husband the duty ceases and does not pass onto any relatives of the husband.

In case of a revocable[i] divorce pronounced by the husband all schools of thought are agreed upon the fact that the duty to maintain lasts during the period of iddat[ii]; and if the wife is pregnant at the time of the divorce or she announces pregnancy during iddat, the duty to maintain lasts up till the delivery of the child. This view has been accepted by the Pakistani judiciary (Maqsood Ahmed vs. Abida Hanif).

A major concern in the law remains that there has been little comment on the position of divorced Muslim wives after the iddat period in classical Muslim law, probably because the traditional expectation is that a woman in that situation would return to her natal family, or would remarry. The primal focus of this article is to shed light on how the Pakistani legal system has been passive through a period when most of the Muslim world, despite the silence of the jurists, has legislated much needed relief for abandoned divorce women.

India, emboldened perhaps due to the secular nature of its state affairs, took a proactive stance and attempted a major reform in this area in light of conditions where many millions lived in abject poverty and where the desertion of wives (either through unfettered exercise of unilateral pronunciation of divorce or through autonomous exercise of polygamy) was a major social dilemma against which Islamic injunctions offered little help.

Section 125 of the Code of Criminal Procedure, 1973 opened the way for maintenance payment to be made by the husband to a divorced wife until her death or remarriage, irrespective of her religion, if she was unable to maintain herself. Attempts were made by the aggrieved husbands to circumvent the provisions by alleging (1) that the general law of India was in clash with Muslim personal law as Islam limited the maintenance of divorced wives for the duration of iddat, and (2) that the provision of mahr (dower) in Islam was meant to provide security to women after divorce.

However, following an era of endless litigation, the landmark Indian Supreme Court judgment of Mohammed Ahmed Khan vs. Shah Bano laid rest to any such attempts. The Indian Supreme Court argued that the silence of Muslim personal law on the matter of post-iddat maintenance was not to be taken as a limitation. Nothing in Islam expressly prohibited post-iddat maintenance; therefore, the situation envisaged under Section 125 was not in clash with any Muslim personal law. In fact, the bench of five Hindu judges placed a liberal reliance on Surah Baqarah, verse 241, alleging that the Quran imposes an obligation on the Muslim husband to make provision for the maintenance of a divorced wife:

And for divorced women is a provision according to what is acceptable – a duty upon the righteous (2:241).

Turning to the issue of mahr, the Indian Supreme Court held that mahr was an amount that the wife was entitled to receive from the husband in consideration of the marriage, which was very opposite to the amount payable in considering of divorce – as envisaged by Section 125.

Additionally, through the Muslim Women (Protection of Rights on Divorce) Act, 1986 responsibility was added upon the relatives of the divorced wife to maintain her in the event that she is not able to maintain herself after the iddat period – and in the absence of such financial support from the family, the State Wakf Board may be directed by a magistrate to support such a woman. The 1986 Act has not taken away the divorced Muslim’s right to claim maintenance from the former husband (Section 3 of the 1986 Act makes it clear) but has in fact strengthened it.

The true irony of the matter is observed when light is shed on the hesitance of the Pakistani legal system, despite facing identical social problems, to mimic the proactive reform by India on the matter. The issue itself was clearly identified by the Commission on Marriage and Family Laws in the 1950s. The Commission agreed that the matter of post-iddat maintenance needed reform and that it should be left for the Matrimonial Courts to deal with on a case-to-case basis. However, the lone dissenting member of the Commission, Maulana Ehtisham Thanvi insisted that divorce severs all ties between a couple and that any rights of maintenance that exist are that of the new wife (if any). Paradoxically enough, he went further to say that “the continued payment of maintenance to the divorced woman would keep the mind of the present wife constantly vexed with suspicion”. It seems that Pakistani law has purposely avoided discussion of this important issue and it is remarkable that Pakistani law on this subject seems to be entirely unaffected by the recent developments in Indian Muslim law in the same field. Apart from reluctance to copy trans-border laws (in turn, accepting the interpretation of the Quran made by Hindu judges), there are other reasons for this. It seems certain that the approach to continued parental liability for married daughters appears to dominate in Pakistani society. The Women’s Rights Committee of 1976 and the 1983 Pakistan Commission on Status of Women, keeping in mind the developments in India and the relevant Quranic verses, had both recommended reform, yet, the status quo in the Pakistani Muslim law on maintenance has been retained, continuing to disadvantage divorced women and to expose many of them to the kinds of moral dangers that Islam seems to control.

Interestingly enough, the Bangladeshi judiciary in a suo moto action (Md. Hefzur Rahman vs. Shamsun Nahar Begum), without complicating itself into making any reference to any law or judgment of India nor troubling to address any social rationale, took to a liberal interpretation of Surah Baqarah, verse 241 and accepted that the right of maintenance of a wife extends beyond iddat.

Notably enough, similar reforms, albeit for different reasons, have been observed in Egypt and Algeria.

I entirely reserve comments on what dynamics are best suited to a marriage. Yet I admit that my generation marked the era of insecure and antagonizing men, women that amplify feminism without fully understanding it, marriages that are reduced to ceremonies, increased divorce rates and social anthropology dictated and distorted by media. I, therefore, suggest that that we set our priorities right and achieve a balance between the roles that we have adopted and the roles that God has allotted. I encourage much needed debate on the matter; it would be a bonus if someone is inspired to trigger reform in Pakistan. And, I would be honoured if I end up reaching a distressed married girl/woman who was not clear as to her rights to maintenance.

I leave you with this thought – the duty to maintain a wife during marriage may be viewed as a “moral obligation” carved “in law”, however, would it (also) not be a “moral obligation” to oblige stigmatized divorced women that find it difficult to provide for themselves in this male oriented society – would it not be the gentle thing to do – so does it really have to be etched “in law” for us to realise, or for it to be clearly worded in the Quran for us to recognise.

_____

References:

[i] In the event where the divorce pronounced is an irrevocable one, the extent of the wife’s entitlement depends to some extent on whether she is pregnant or not. Surah Talaq, verse 1 (65:1) has been approached differently by Islamic schools of thought. In Hanafi law, which appears to have been widely accepted in modern legal systems, a woman is entitled to full maintenance during iddat period for as long as she does not leave the matrimonial home.

[ii] Iddat : In Islam, iddah or iddat is the period (normally three months) a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of a nikah (marriage) would be known.

 

Image: TimesOfIndia

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Fayez Qamar

The writer is a litigator and corporate lawyer who completed his LL.M from the prestigious University College London. He is also a part-time lecturer at Pakistan College of Law.



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14 Comments

  1. Zahra said:

    Excellent read! Very informative and to the point.
    I too wish that men would stick to their roles and women to their – but media has ruined (and is constantly continuing to do so) the real purpose behind marriage.
    Thank you for penning this article down.
    Z

  2. Corien waheed said:

    Thank you for this informative read. There are a couple of points I like to react upon.
    1. Men are able to earn more then women? How? In this day and age management jobs are not taking physical strength. Women bear children and to raise them is physically hard work. Many women earn more then men.

    2. What happens when parent force a girl to marry somebody against her will, or when a woman is too tired to have sex and is forced by her husband? In other words where is the line between caring for your wifes and children and abuse. It is very easy to use the word disobedience for something that is actually abuse. And a fine line between a women’s wishes and needs and abuse when they are ignored.

    The right to maintenance means no equality and means that the man is superior because she needs to be maintained not to be seen as an equal person that can make own decisions. Through maintenance man decide the place of women and ar thus superior. In this is no respect for women because they are still seen as women who are not given the right to decide or use their talents.

    • Islam Habib said:

      Now people like you will ask if women would like to have sex with his ex boy friend? Marriage is not only about sex . Think beyond sex. Marriage is an agreement between husband and wife in Islam. Any one cannot force a girl to marry its wrong. Islam allowed men to marry with 4 wives due to the reason as u asked( when a woman is too tired to have sex and is forced by her husband?). Equality mans u cannot make women a man and u can’t make men a women. Men can’t act like mother for children. And women can’t act like father. Equality in gender .You can’t make men and women one gender. You need to understand it.Every one has its own role. An example women and make are like 2 wheels of car if both are fixed at their own place then u can drive else not. So Women and Men are like wheels of Life.

  3. Fatima said:

    Thanks God I live in the UK now. I am allowed to work and support myself. I don’t have to worry at all whether my husband is going to “maintain” me. I can maintain myself. The system in Pakistan where I will never return keeps women disempowered, only kept for sex, childbearing, and servitude. I am more than that. My husband is also Pakistani living in UK. He is not bank account. He is not slave owner. Never will he return to such system that dehumanises both the man and the woman.

    • Fayez Qamar said:

      I sincerely hope that I do not offend you with what I have to say.
      I am sure you faced hardships in Pakistan and maybe have plausible reasons to have moved for a better living.
      With due respect, is running away from the problem – a solution? Does that give you the right to move to a safe distance and hate on the system?
      I was born in the UK and I was 3 yrs into a Canadian Immigration…I abandoned such pursuit to stay here and work around the problems or maybe look for a solution. I think I have walked the talk to earn the right to request you to kindly not trash the Pakistani system…because in turn you trash Pakistan. Such negativity sets us back ages and immigrants need to realise that they will always remain “Pakistani”. That wont change no matter what color their passport becomes.

      So yes the system has disappointed you – but women here work and they support families and the ones that make the effort are empowered. I am proud of my mother, my wife and my two sisters – they are the true liberated ones – not the ones who found prosperity in a system that already made it easy for them.

    • Sana saeed said:

      Kindly before blaming Pakistan, be aware what is pakistan….if the point comes to women empowernent by earning, alot of women are working here in pakistan, pakistan had female prime minister twice, you need to vist her and have an unbiased look over here… Islam lays principles about gender equality not identity….man and women have their own role in the society..for a women her guardian man either her husband, father or brother is responsible for fulfilling her basic needs of life and is iblidge to provied her luxuries according to his income…what a women earn belongs to her none of his gurdain man has any right to question her…please dont ruine the image of Pakistan…if you faced any problem her then please learn Islam in its true sprit and spread it in the environment where you faced such situation…

    • Adidi said:

      You might want to take a course or 2 of the English Language while you are in UK.
      Thanks God is not grammatically correct.
      Its either Thank God or Thanks to God.
      To maintain your self properly in UK, you might want to use correct english

    • Muhammad Arif Adv said:

      Completely wrong….my dear… You need to have legal as well as Islamic teachings thorough study to have such comment…sorry

    • Muhammad Arif Adv said:

      It’s a mark of respect for women and to free the mother from financial obligations as to give proper time for the character building of her children that’s why heaven lies under the feet of mothers.For a woman I think the most important task is to prepare young one for the role he has to perform towards the society rather, to earn money……

  4. Alizeh said:

    Wow! Self rightousness, judgment of others’ struggles, sexist interpretations of the Quran and a complete lack of proof reading make for a great article.

    Well done to reducing men to an atm and women to a sex object. Well done for reducing the relationship between two partners to one of such superficial and worldly standards. Well done to purporting the idea that if a woman chooses to have a career she is not taking pride in her home life or somehow shirking responsibilities because after all women belong in the home, always preparing for the man’s arrival and the payment she has earned through asking for permission and not refusing sexual advances. And that if a man is unable to provide (monetarily) he is a lesser man whether his inability to provide is due to illness, lack of opportunity or even just choice (that he maintains/provides the home while his partner provides monitarily).

    And hats off to you for rejecting (what seems to be your biggest achievement) the Canadian citizenship. While you may live a privileged life in Pakistan and have the choice of rejecting the coveted passports of a developed country, for many it is the only opportunity they have for a better life and economic stability for themselves and their children or to escape violent and abusive circumstance!

    Most importantly, well done for walking the talk (whatever that is!)

    • Adidi said:

      Wow sarcasm much ??
      Punctuation is free, try using it here and there.
      Your first sentence is an angry piece of bile that is hard to understand.
      Please rephrase with punctuation, so that we know what you are angry about.
      I feel sorry for your husband :-(

      • Alizeh said:

        Hahaha I think you’re a little bit blind to commas and exclamation marks! some lessons in sarcasm and comprehension may be due.
        Personal attacks make for a very intellectual discussion (that’s sarcasm btw).

        • Adidi said:

          Where is the intellectual conversation in your response. You did not even read the article Fayez wrote. You have preconceived notions that you cut and paste from elsewhere. You attacked Fayez for no reason, and got surprised when you got a taste of your own medicine.
          I really hope you fine peace with yourself.

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