A (pro-feminist) sister asked me about this, and stated that it seemed very unfair to the ex-wife. While married, she does not have time to study as she is rearing the children nor does she earn any of her own income, and therefore is left with very few possessions and no skills to earn a living at the time of divorce. Please explain the wisdom behind this law from Allah.
Maintenance for Divorced Women:
Shah Banu Case
The Supreme Court of India recently ruled in the SHAH BANU case that a
divorced woman is entitled under Islamic Law to maintenance beyond die
period of iddat and until her remarriage. The case has caused a furore in
India as die judgement is contrary to Islamic Law.
Simply put, the Islamic Law position is that a divorced woman is not
entitled to maintenance beyond the period of iddat. Let us examine this
briefly in the light of the Qur’an and Hadis.
Verse 6 of SURAH TALAAQ provides that:
“If the (DIVORCED) women are pregnant, then maintain them UNTIL delivery of
their child.”
Verse 4 of the surah has already provided that the iddat (mandatory waiting
period) for pregnant divorced women is until delivery of child. This verse
(verse 6) clearly by the use of the word “UNTIL” limits the period of
maintenance to the time of delivery. It follows that if pregnant women are
to be maintained until expiry of their iddat (at delivery), then others are
likewise to be maintained until expiry of their iddat. The periods of iddat
for menstruating or non-menstruating women have been specified in the
Qur’an. (S 2 : V 228; S 65 : V 4; S 65 : V 4)
The absence of an obligation to maintain after the expiry of iddat is
supported by authentic HADIS, notably that of FATIMA BINT QAIS. The latter
was divorced by her husband, and the Holy Prophet (SAW) ruled that she was
not entitled to maintenance. (SAHIH MUSLIM: KITABUT TALAAQ).
In the result, no jurist has ever held that, a divorced woman is entitled to
maintenance after expiry of iddat. On the contrary, and in the case of
divorce of the category BAAIN, many jurists have held that only pregnant
women are entitled to maintenance for the iddat period: non-pregnant women
are excluded.
The Supreme Court judgement according to press reports relied on verse 241
of SURAH BAQARAH, which was translated as follows: “FOR DIVORCED WOMEN,
MAINTENANCE SHOULD BE PROVIDED ON REASONABLE SCALE. THIS IS A DUTY TO THE
RIGHTEOUS.”
The word MATA in the verse means “BENEFIT” which includes maintenance within
its meaning. (See MAARIFUL QUR’AN) The verse therefore lays down a general
principle relating to the benefit due to all divorced women in the different
circumstances as a consequence of divorce. Hence, the use of the wider word
“benefit” (MATA) and not the specific word NAFAQA (maintenance). The benefit
due to divorced women in the different circumstances is as follows:
1. If no dowry has been fixed and no sexual intercourse has taken place
prior to divorce, then the husband is only obliged to give some benefit or
gifts to the wife. (S2:V236).
2. If a dowry has been fixed and no sexual intercourse has taken place prior
to divorce, then the husband is only obliged to give the wife half the
amount of the dowry. (S 2 : V 237)
3. If both a dowry has been fixed and sexual intercourse took place prior to
divorce, then the full dowry must be given to the wife. (S 4 : V 4)
4. If no dowry has been fixed, but sexual intercourse took place prior to
divorce, then the dowry customarily fixed in the family of the wife (MEHR
MITHL) must be given to the wife.
5. In the cases of 3 and 4, the wife is obliged to undergo IDDAT and is
therefore entitled to maintenance until expiry of the iddat There is
obviously no iddat (and hence, no maintenance) in cases 1 and 2.
It follows that the judgement of the Indian Supreme Court is wrong. The
Court ought to have heard expert evidence on the issue from qualified Muslim
jurists. It is not clear why this was not done. Instead, the judges
endeavored to give judgement on an issue in which they have no expertise.
The result was a misinterpretation of Islamic Law.
Now, what are the rational imperatives? Divorce terminates a marriage
whereupon the parties have no relationship whatsoever with each other. There
is therefore no reason in logic as to why the husband must continue
maintaining the wife after divorce. Reason demands that a person must be
free of obligations. For an obligation to arise, there must be valid cause.
What cause exists in such a case?
In Islamic law, the obligation to maintain the divorced woman after the
expiry of the iddat would in the absence of her remarriage vest in her near
relatives based on the priorities fixed in inheritance. In any event, and if
she is unable to maintain herself, the Islamic State is obliged to do so.
Some argue that the divorced woman suffers for want of maintenance, as her
near relatives invariably fail to maintain her. The answer is why must the
husband be penalized in such event contrary to Quranic Law. Cases of
hardship do arise, one undoubtedly appreciates, in a non-Muslim country
where Islamic Law is not applied. However, if Muslims implement Islamic Law
sincerely and honestly, all problems would be resolved. To do this, a strong
and deep sense of Accountability is required. Unfortunately, this to a large
extent is absent.