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:
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.
[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.
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