Maintenance at divorce

Maintenance and divorce

(Consider the similar story of Shah Bano in India. A rich husband divorced a 70-year-old woman and gave her a very minimal settlement–like a hundred dollars. (That was also the case in Virginia, where the judge said that the Islamic law of marriage was against public policy. Had he said otherwise, and enforced the contract, this older woman who was in her late forties, would have been given about $300 and sent into the streets of India with no means of support.) In the Shah Bano case, the woman went to court and asked the husband, "Is this all you're going to give me? After all my life with you? At aged 70, you're rich and I'm going to get pennies?" The non-Muslim Indian court intervened and tried to interpret Islamic law so as to give her maintenance. The act of a non-Muslim court trying to interpret Islamic law was unforgivable. There were riots in the streets. Finally, Shah Bano dropped her case under pressure from the Muslims community who did not want to give the Indian government further opportunity to interfere.) Taken by Ahmed Fazel Ebrahim from (internet Article) Muslim Marriage Contract in American Courts by Azizah Y. al-Hibri, T. C. Williams School of Law, University of Richmond, <aalhibri@richmond.edu> , Minaret of Freedom Banquet, May 20, 2000.

Maintenance during physical separation (not Faskh -annulment) due to the husband's fault

A brother had been taking drugs. He admitted to have taken drugs like ecstasy and has drugged his second wife. The parents of his first wife also confirm that they took their daughter away from him because he drugged their daughter as well. The father of the second wife is keeping his daughter away from the husband because he fears that she will be drugged further. The parents of the second wife suffered intensively to bring their daughter back to normal after the influences of the drugs. Since the crime was from the husband, is the second wife entitled to maintenance in the period that her father keeps her away from her husband in order for the conduct of the husband to be rectified?

The wife will be entitled to maintenance in the period she is kept away from the husband in order for him to be rectified as her life is endangered by being drugged by him. (Raddul Muhtaar, Vol. 2, Page 702). Mufti Azizur Rahman (R.A.A.) replies to a similar question in “Fataawaa Darul Uloom Mudallal Mukammal” that the wife will be entitled to maintenance sitting at her parent’s house if her life is at stake and she will not be termed as Naashizah (who is deprived of maintenance due to her disobedience) in this case. (Fataawaa Darul Uloom Mudallal Mukammal, Vol. 11, Page 128). Similarly, it is stated in Al-Bahrur Raaiq that the wife is permitted to leave the husband’s house without his permission in certain circumstances and she will not be termed as Naashizah, hence entitled to maintenance. These circumstances are listed further in the book and amongst them are the wife’s leaving the husband’s house without his permission if she fears that the house will collapse on her. (Al-Bahrur Raaiq, Vol. 4, Page 180 and 195). Moulana Ashraf Ali Thanwi (R.A.A.) states that the wife will be entitled to maintenance if she has left the husband’s house due to his oppressing her. (Imdaadul Fataawaa, Vol. 2, Page 526)

And Allah Ta’ala knows best, Qasim bin Hashim Limbada. Attested to as correct by: Mufti Muhammad Ashraf - Darul Iftaa, Jameah Mahmoodiyah, Springs -14 January 2004, 21 Thil Qa’dah 1424 Fatwaa no. 009/04 (download copy)

The husband's duty to provide Nafaqah (maintenance of wife and family)

(First, a married Muslim woman is legally entitled to her financial independence. Her husband may not touch any of her assets. Second, the husband is obligated to support his wife, even if she is wealthier than he is. She has no obligation to support her husband. Any money she gives him is regarded as charity or gift or a loan.

These legal facts are part of a larger framework of Muslim women's rights. In this larger framework, a Muslim woman retains her maiden name upon marriage and is not obligated to perform housework. If she chooses not to cook, her husband is obligated to bring her prepared food. Understand that all of the major imams take this position. This is not a "women's lib" position. These facts rest on the recognition by Muslim jurists that the marriage contract is not a service contract. The recognition is based on the Qur'anic view of the marriage contract: it is not for service, but for muwaddah wa rahma, for sakînah, for human companionship. It is not entered into so that the husband can find somebody to cook and iron his clothes.) Muslim Marriage Contract in American Courts, p8 by Azizah Y. al-Hibri, T. C. Williams School of Law, University of Richmond, <aalhibri@richmond.edu> , Minaret of Freedom Banquet, May 20, 2000.

Hanafi details relating to the Nafaqah of a female during her stay at her parent's home while an annulment of the marriage by Faskh (islamic judicial annulment without the pronunciation of a divorce) is elaborated in another article on this site. (Ustaaz, A F Ebrahim)

Maintenance claims during separation prior to a divorce