SIRI KETIGA
Keputusan
Mahkamah Agung Bangladesh: makna dan maksud Mut’ah.
Berikut pula
ialah keputusan material YA Mustafa Kamal J
dalam kes Hefzur Rahman (Md) v Shamsun Nahar Begum and another 51 DLR (AD)(1999) 172 Supreme Court Appellate
Division (ivil). Hakim-Hakim yang terlibat dalam memutuskan kes tersebut adalah
terdiri dari: ATM Afzal CJ; Mustafa Kamal J; Latifur Rahman J; Md. Abdur Rouf
J; Bimalendu Bikash Roy Choudhury J. Keputusan di beri pada tarikh 3 December 1998.
Penghakiman Mustafa
Kamal J:
… …
Will a
divorced Muslim woman get maintenance only up to the period of iddat or for an
indefinite period till she loses the status of divorcee by re-marrying another
person, is the central issue in this appeal by leave by the
defendant-appellant, along with some other issues.
… …
78. Then
the learned Judges of the High Court Division suo motu addressed
themselves to a legal query as to whether plaintiff No 1 could have claimed
maintenance beyond the period of iddat. Quoting Sura 4 Ayats 240-242; Hedaya,
Baillie, Sura Yonus (10:47), Sura Al-Qamar (54), Sura Al Imran (3:7) and
observing that like statutes, the Holy Quran prescribes, a literal construction
of its basic and fundamental verses, the learned Judges referred to the dictum
of the Privy Council in the case of Aga Mohammad Jaffer Bindavim vs
Koolsoom Beebee and others, ILR 25 (Cal) 9, namely,
that their Lordships “do not care to speculate on the mode in which the text
quoted from the Koran which is to be found in Sura II, verse 240 is to be
reconciliated with the law as laid down in the Hedaya and by the author of the
passage quoted from Baillie’s Imamea. But it would be wrong for the Court on a
point of this kind to attempt to put their own construction on the Koran in
opposition to the express ruling of commentators of such great antiquity and
high authority” and held that this dictum pronounced a hundred years ago in
1887 cannot be followed on three grounds, first, the learned Judges of the
Privy Council were non-Muslims, secondly, the interpretation is in conflict
with Article 8(1A) of the Constitution of Bangladesh and thirdly, the decision
is in derogation of Sura Al-Baqarah Verse 121. Relying on an observation from
the case of Rashida Begum vs Shahan Din and others, PLD 1960 (Lahore) 1142, the learned Judges agreed
with the view that if the interpretation of the Holy Quran by the Commentators
who lived thirteen or twelve hundred years ago is considered as the last word
on the subject then the whole Islamic society will be shut up in an iron cage
and not allowed to develop along with the time. The learned Judges therefore
came to the conclusion that a Civil Court has the jurisdiction to follow the
law as in the Holy Qur-an disregarding any other law contrary thereto even
though laid down by the earlier jurists or commentators of great antiquity and high
authority and followed for a considerable period. Thereafter the learned Judges
considered the literal meaning of the First Part of Ayat 241 of Sura
Al-Baqarah(2) reproducing word for word the English translation of the said
part of the Ayat from “The Dictionary and Glossary of the Koran” by john
Penrice and immediately held that a person after divorcing his wife is bound to
maintain her on a reasonable scale beyond the period of iddat for an indefinite
period till she loses the status of a divorcee by re-marrying another person.
79. The
learned Judges thereafter restored the judgment and decree of the Family Court
with the modification that plaintiff Nos 1 and 2 shall get maintenance at the
rate of Taka 1,000.00 each per month from the defendant-appellant till
plaintiff No 1 and plaintiff No 2 remarries or attains majority respectively.
… …
91. Since
we have held that the impugned judgment has been passed in excess of
jurisdiction, our judgment could have been concluded here, but we prefer to
continue to deal with the second point on leave has been granted, because to
leave it unattended is to allow a lurking uncertainty in the law of maintenance
and also because elaborate oral and written submissions on this matter have
been made by the parties, the interveners, the invitees and the amicus curiae.
92. We
are thankful to all of them for their able and diligent assistance and for
having reminded us that we cannot travel beyond Shariat on this point. In
particular, our attention has been drawn to section 2 of the Muslim Personal
Law (Shariat Application Act, 1937), which is as follows:
“2. Application of Personal Law to
Muslims—Notwithstanding any custom or usage to the contrary, in all questions
(save questions relating to agricultural land) regarding intestate succession,
special property of females, including personal property inherited or obtained
under contract or gift or any other provision of Personal Law, marriage,
dissolution of marriage, including talaq, ila, zihar, han, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust properties, and vakfs
(other than charities and charitable institutions and charitable and religious
endowments) the rule of decision in cases where the parties are Muslims shall
be the Muslim Personal Law (Shariat).”
93. We
have also been rightly reminded of Article 8(1) of the Constitution which says
that ‘The principles of absolute trust and faith in the Almighty Allah … shall constitute
fundamental principles of state policy” and of Article 8(1A) of Constitution
which says that “Absolute trust and faith in the Almighty Allah shall be the
basis of all actions”.
94. In
our discussion on the second point on which leave was granted, we shall use the
revised and edited English translation of the Holy Quran by Allama Abdullah
Yusuf Ali, published by King Fahd Holy Quran Printing Complex, Medina in 1940
Hijri. The original translation (first edition in 1934) was revised and edited
by the Presidency of Islamic Researchers, IFTA, Call and Guidance and it is
stated in the Preface that as many as four successive Committees have checked
up the revised and edited translation both in respect of adopting the most
accurate expression and in updating the Notes.
95. First
of all, we would like to dispel some of the basic assumptions on which the
learned Judges have proceeded to discuss the topic of maintenance. The learned
Judges stated after quoting Sura All Imran 3: 7,
“Thus according to Qur-an as quoted
above its verses are easy to understand. That is to say Quran prescribes rule
of literal construction of its verses. This rule is a universal one. The first
and elementary rule of construction is that it is to be assumed that the words
and phrases have been used in a statute in their ordinary meaning and that
every word in a statute is to be given a meaning.”
96. It is
true that in several Ayats of several Suras, Allah has revealed that He has
made the Holy Quran easy to understand and remember and that the Holy Quran
makes things clear. But it does not follow from this that the Holy Qur-an
prescribes a rule of literal construction of its Ayats. Easy understanding does
not mean that it is also easy to interpret the Holy Qur-an. Easy to understand
and easy to interpret are not the same thing. If it is easy to interpret why
should there be four Schools of thought in Islam? “Easy understanding” can
never be a rule of construction of a Revealed Book. The Holy Quran is not a
Book of law in the sense Salmond’s Jurisprudence is and one cannot call in aid
the rules of construction of statutes, as propounded by Maxwell, Craies or
Crawford, in the interpretation of the Holy Qur-an. The Holy Qur-ãn has its own
rules of construction, which, for the sake of brevity, we are not elaborating.
We can easily understand Sura Kaferun 109:6—Lakum Deenokum Waliya Deen. (To you
be your Way/And to me mine). But in interpreting it we have to take into
account the meaning of the word ‘Deen’. For example, the first part of Ayat 19
of Sura Al Imran (3) says, Innallazi na Indallahe Al Islam—(The Religion before
Allah is Islam (submission to His Will) and Ayat 85 of the same Sura
says, “If anyone desires a religion other than Islam (submission to Allah)
Never will it be accepted of him; and in the Hereafter He will be in the ranks of
those who have lost. “A “Deen” (way, religion) of unbelievers and of those who
do not submit to His Will is not a “Deen” at all in the Revelation of Allah. A
‘Deen’ of believers submitting to His Will and accepting a c9de of life and
conduct which is true, just and beautiful and which leads to a permanent abode
in the heaven is a ‘Deen’ acceptable to Allah. Literal interpretation of Sura
Ayat 109:6 will result in a wrong interpretation, meaning that the religion of
believers and unbelievers are all to be treated at par by the Muslims.
97. Then
comes the question of competence or incompetence of persons to interpret the
Holy Qur an. There are also several attributes qualifying a person to interpret
the Holy Quran. In Sura Baqarah (2) it has been revealed in Ayat 2 that “This
is the Book; In it is guidance sure, without doubt, to those who fear Allah
(Hodallil Mottaqin).” Those who do not fear Allah will not get any guidance
from the Holy Qur-an and for them it is not possible to interpret the Holy
Qur-an correctly. In the same Sura, in keeping with Ayat 6 thereof, Ayat 7
reveals that in respect of unbelievers Allah hath set a seal on their hearts
and on their hearing And on their eyes is a veil Hence there can be no question
of an unbeliever or a non-Muslim interpreting the Holy Quran so as to make the
interpretation a binding law on Muslims and even if he or she does so it will
not be acceptable to the Muslims. The learned Judges discarded the previously-quoted
dictum of the Privy Council in ILR 25 (Cal) 9 because they decided the issue
before them in accordance with the laws propounded by Muslim jurists ‘rather
than independently”. In other words, the learned Judges recognised the right of
whom they themselves called “non-Muslims” to interpret the Holy Quran
independently of Muslim jurists, which is an absolutely untenable proposition.
98. The
learned Judges of the Privy Council rightly refrained themselves from putting
their own construction on the Holy Quran because they were non-Muslims. They
abstained from opposing the express ruling of commentators of great antiquity
and high authority because they were not qualified to do so. A person who
ventures to interpret the Holy Quran (1) shall be a Muttaqi (2) must have a
wide knowledge of Hadith in connection with the Prophet’s (S) interpretation of
the Holy Qur-an and with the statements of his sahabis (c and their successive
companions (3) have a knowledge about those parts of the Holy Qur-an which have
been repealed or substituted (4) have a knowledge about the significance of
each Ayat (5) have a knowledge about Ilmul Kirat (6) have a profound knowledge
of. the Arabic language, grammar, diction, etc. as the Holy Quran was revealed
in the Arabic language (7) must have a thorough knowledge of all the major
commentaries and works of different schools of thought, (8) must be a faqih and
other qualifications as well, not necessarily limited to and special preserves
of Ulemas. All these qualifications follow either from the Holy Qur-an or from
Hadith and dedicated and knowledgeable Muslim interpreters of the Holy Qur-an.
We do not question the competence of the learned Judges of the High Court
Division or of the learned Advocates who addressed us to interpret the Holy
Quran, but we ourselves are not sure about, our own competence in the matter
and are approaching the subject by force of circumstances with a great deal of
trepidation in our hearts, lest we commit mistakes unknowingly, for which we
beg Almighty Allah’s forgiveness in advance.
99. The
learned Judges have conferred on the Civil Courts “the jurisdiction to follow
the law as in the (Holy) Quran disregarding any other law on the subject, if
contrary thereto even though laid down by the earlier jurists or commentators
may be of great antiquity and high authority and though followed for a
considerable period.” This conferment of jurisdiction in, the manner it has
been done is unacceptable because it gives the believers and non- believers
alike an equal jurisdiction to decide whether a law laid down by earlier
jurists or commentators of great antiquity and followed for a considerable
period is contrary to the Holy Quran an or not It gives a blank cheque to all
Judges of the Civil Court to interpret the Holy Qur an according to their own
individual understanding and make it into a binding law. Section 2 of the
Muslim Personal Law (Shariat) Application Act, 1937 provides that in deciding
certain matters including maintenance “the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law (Shariat).” Shariah’ is an
Arabic word meaning the Path to be followed. Literally it means ‘the way to a
watering place’. The Holy Quran is the first primary source of Shariah. The
second primary source of Shariah is the Sunnah. The Prophet (S) never spoke or
acted from his own imagination but told what Allah had revealed unto him. In
Sura An-Najm (53: 4-5), the Holy Qur-an bears testimony to this statement: “Nor
does he say (aught) Of (his own) Desire. It is no less than inspiration sent
down to him:” In Sura An-Nahl (16:44) the Holy Quran says: “(We sent them) with
Clear Signs/And Scriptures/And we have sent down/Unto thee (also) the Message; That
thou mayest explain clearly to men what is sent for them, and that they may
give thought.” The explanation of the Holy Quran by the Prophet (S) either by
way of elucidation or by way of preaching or practice is a guide to the
interpretation of the Holy Qur-an. The secondary sources are Ijma, Qiyas and
Ijtihad. Ijma owes its origin to the following Ayat of the Holy Quran in Sura
An-Nisaa (4:59): “0 ye who believe! Obey Allah, and obey the Messenger and
those charged with authority among you. If ye differ in anything! Among
yourselves, refer it to Allah and His Messenger, if ye do believe in Allah And
the Last Day: That is best, and most suitable! for final determination.” Qias
is analogical deduction to come to a logical decision on an issue of law. It
must be based on Quran, Sunnah and Ijma. If there is no indication as to the
right answer, it should be sought by Ijtihad which literally means to exert,
and in Islamic Jurisprudence means an exertion with a view forming an
independent judgment on a legal question. The learned Judges’ conferment of
jurisdiction on Civil Courts is in the manner of bestowing an authority upon
all individual Judges to interpret the Holy Qur-an all by themselves without
the aid of Sunnah, Ijma or Qiyas and to ignore Sunnah, Ijma or Qiyas if their
own individual understanding of the Holy Quran is contrary to established
precedents. The Holy Qur-an thus loses security in all its Ayats and Suras. The
Holy Qur-an Ordinance, 1985, the Civil Courts had taken up, has been thrown
into the lap of judge to judge, court to court, to be tossed about freely
according to individual understanding, irrespective of whether they are
competent to interpret the Holy Quran independently or not. This is an
invitation to anarchy, pernicious in effect. We do not approve of this
direction and expressly repudiate it.
100. We
do not subscribe to the opinion that the doors of interpretation of the Holy
Qur-an or re-opening of issues settled by Ijma are closed. In this respect we
agree with the learned Judges of the High Court Division. Revelation is not
opposed to reason. It rather appeals to reason. In Sura An-Nahl (16:125) the
Holy Qur-an says,
“Invite
all to the way of thy Lord with wisdom and argue with them in ways that are
best and most gracious.”
“In re-interpreting the Holy Qur-an or
in re-opening a settled point by Ijma, two conditions, in our opinion, should
be present, viz. (1) a valid reason or reasons for re interpretation (2) it
must be based on the Holy Qur-an and Sunnah by those who are competent to do it.”
101. It
has been argued by some of the learned Advocates of some of the later group of
interveners supporting the respondents that there is no established law at all
that maintenance is limited to the period of iddat only. That this is
well-established law throughout the last 1400 years has been acknowledged by
the learned Judges in the impugned judgment by quoting from Hamilton’s
translation of Hedaya and Baillie’s Digest of Mohammadan Law. Apart from
submitting some tafsirs and some memoranda of some Boards of Ulemas from
Kerala, India and Sri Lanka, the said learned Advocates could not produce a
single piece of judgment from any jurisdiction during the last 1404 years
showing the established law to be different.
102. It
has been argued that for 1400 years women had no forum to put their point of
view on maintenance. This is not true. The prophet (S), the Khalifas (R), later
the kazis and during the colonial days up to the promulgation of the Family
Courts complaints of various nature from women, either appearing personally or
through Counsels. No woman is on record to have claimed maintenance till
re-marriage relying upon Ayat 241 of Sura Al Baqarah (2). Even in the instant
suit plaintiff, No.1 claimed maintenance for 3 months only, commensurate with her
period of iddat.
103.
Relying upon the case of Rashida Begum vs Shahin Din and
others, PLD 1960 (Lahore) 1142, it has
been argued that hadith as a second primary source of Shariah is of
questionable character, because, first, the prophet (S) himself discouraged
‘compilation and writing down of his own sayings during his lifetime and
ordered ‘its destruction, secondly, the subsequent compilation did not start
before the expiry of 100 years after which the question of its authenticity,
trustworthiness and dependability became a legitimate and complex issue and
lastly, even Imam Abu Hanifa (R) (born 80 Hijri and death 150 Hijri) used only
about 17 or 18 traditions in deciding the points raised before him.
104.
Unfortunately, the learned Judges of the Lahore High Court failed to note the
replies thereto, already available at the time of pronouncement of the judgment
on 21-07-60.
First,
the Prophet (S) discouraged the written compilation of his sayings in his
lifetime, lest the Muslims regard it as another holy book, at par with the Holy
Quran. The Prophet (S) was conscious of his rank in the Revelations of Allah as
a Messenger, an Apostle, a Warner, a giver of good news to a people who believe
a mortal and so on.
Secondly,
the compilation started a century after the death of the Prophet (S) because
distortions and fake sayings started to creep in. The learned Judges of the
Lahore High Court should have remembered that no other human being on earth has
been so painstakingly and systematically investigated, researched and
documented as the Prophet (S). To discard the Sunnah is to consign the labour;
patience, sincerity and methodical and systematic exercise of centuries of
compilers to the dustbin of history which will be a delight to those who wish
to wreck the second primary source of Shariah from within.
Thirdly,
the fiction about Imam Abu Hanifa (R) is attributed to Ibn Khaldun who did not
project it as his own view. He has stated it to be the version of some unknown
person. Later the so-called Orientalist picked that fable up and Joseph Schacht
in his book An introduction to Islamic Law propounded his theory thereon that
the ancient schools of Islamic law were independent of the traditions (Sunnah).
Subhi Mahmasani wrote about Imam Abu Hanifa (R) in The Philosophy of Islamic
Jurisprudence at P 43 as follows:
“Abu Hanifa (R) was very careful
regarding the choice of the traditions. He accepted only those traditions which
are narrated through reliable chains. In spite of this his companions and his
students have narrated fifteen Masanid from him. The Chief Qadi Abu Al-mu’ayyad
Khawarzami has compiled all of them in one volume. For this reason we reject
what Abu Ibn Khaldun and some others have stated that only seventeen traditions
have been narrated by Abu Hanifa.”
105. It
has also been argued that for so long there was a conspiracy to interpret the
Holy Qur-an against women and that the patriarchal attitude of the society
precluded women from getting an equitable interpretation of the Holy Qur-an.
The judiciary was and still is male-dominated. It is time now to re-interpret
the Holy Quran keeping in view the interests of women in the context of vastly
changed social milieu.
106. We
are simply astonished to hear this argument. It would be wholly wrong to view
the controversy in this appeal from the viewpoint of women’s rights or male
chauvinism or from the point of view of cut and dried secular statutory laws,
divorced from Allah. The family laws of Islam are not enforceable by statutes
alone. The topmost priority and an a priori condition are that men and women
must have fear of Allah in their hearts (taqwa) and an environment conducive to
the observance of Allah’s laws. Notice what has been stated in the beginning of
Sura An-Nisaa (4) Ayat 1;
“O Mankind! Fear your Guardian Lord Who
created you from a single person, created out of it his mate, and form them
twain scattered (like seeds) countless men and women Fear Allah, through Whom ye
demand your mutual (rights) …”
107.
“Fear Allah your Lord” runs through the threads of Islamic Family law. One has
to purge oneself from alien thoughts and ideas propounded by humans and be
prepared to observe laws revealed by the Almighty Allah spontaneously with fear
of Allah in one’s mind. We should get our perspectives right. Both male and
female are Allah’s creations, Sura Az-Zumar (39) says in Ayat 6, “He created
you (all) From a single Person: Then created, of like nature, his mate; …”
Allah’s creation is in pairs and it is impossible to conceive of the creation
of a man without woman and vice versa. Each woman is either the wife, mother,
sister or other relation of a man and so is a man either a husband or father or
brother or other relation of a woman. A society will be rendered absolutely
unworkable without co-operation between man and woman. According to Ayat 10 of
Sura Al-Hujurat (49), “The Believers are but/A single Brotherhood.” All
believer women therefore are sisters of believer men and all believer men are
brothers of believer women. There is no adversarial relationship or
relationship of hatred and competitiveness between them. As per Ayat 71 of Sura
Al-Tauba (9), “The Believers, men and women, are protectors, one of another …”
Ayat 103 of Sara Al-Imran (3) enjoins upon all believers, men and women, to
hold together, to remain united, “And hold fast, all together, by the Rope which
Allah (Stretches out for you), and be not divided among yourselves.” There can
be no question, therefore, of a male-dominated interpretation of the Holy
Qur-an or a male-dominated judiciary pronouncing against the interests of
women. The Imams, jurists and others kept the Holy Qur-an as their guidebook
while interpreting it. Most of us do not know the real name of Imam Abu Hanifa
(R). His real name is Hazrat No’man ibne Sabet (R). A few women asked him once
a question, if men can keep four women as wives, then why a woman cannot keep
four husbands? The Imam was plunged into a great difficulty. His exalted
daughter Hanifa told him, “Father, I will give a solution to this problem,
provided you agree to be known after by my name”.
The Imam
agreed and then the daughter asked the women to bring the milk of four kinds of
animals like lamb, goat, camel and dumba. When they brought it, she mixed it up
and then asked the women to separate the milk. The women went away by saying
that they got the answer. Abandoning the centuries-old practice of being known
as the son of his father Hazrat No, man ibne Sabet (R) came to be known thereafter
as Abu Hanifa (R), Father of Hanifa. That is also the spirit with which the
Imams, tafsirkars, judges and other exalted persons of high authority decided
issues and to accuse now that they were conspirators and biased against women
is to display a high feat of ignorance. These types of accusations will only
gladden and pamper those who have a global agenda to discredit and disavow the
past heritage of Muslims from within.
108. We
shall go back to the learned Judges’ method of interpretation. They have
isolatedly picked up Ayat 241 of Sura Al-Baqarah (2) and translating each
Arabic word thereof into English with the aid of an Arabic-English dictionary
came to their conclusion. This method of interpretation of a subject matter of
law and legal rights by way of an isolated and literal interpretation of a
single Ayat of a single Sura of the Holy Quran, divorced from its context and
without bringing together all, the Ayats of all the Suras together connected
with the subject for a consolidated consideration, is against the principle of
interpretation of the Holy Qur-an and is prohibited in the Holy Qur-an itself.
In Ayats 90-93 of Sura Al-Hijr (15), thee is a stern warning against such
maneuvering interpretations:
“(90) (Of just such wrath) As we sent down
on those who divided (Scripture into
arbitrary parts), (91) (So also on such) Who have made Qur-an into shreds (as
they please). (92) Therefore, by thy Lord, we will, of a surety, call them to
account (93) For all their deeds.”
109. The
learned Judges ought to have brought together, all the Ayats of all the
connected Suras, discussed the subject “in its various aspects” comprehensively
and then come to a conclusion, keeping in view
(1) the consistency of Allah’s
Revelation, as stated in the Holy Quran in Ayat 23 of Sura Az-Zumar (39):
“Allah has revealed (from time to time) The most beautiful Message in the form
of a Book, consistent with itself, (yet) repeating (its teaching in various
aspects). “.
(2) the absence of any contradiction or
discrepancy in the Holy Qur-an, as stated in the Holy Qur-an in Ayat 82 of Sura
An-Nisaa (4): “Do they not ponder on the Quran? Had it been from other than
Allah, they would surely have found therein much discrepancy.”
110. When
a divorce proceeds from the husband, it is called talaq, when effected by
mutual consent; it is called Khula or Mubara’at, according as the terms are.
The Muslim Family Laws Ordinance, 1961 has given statutory recognition to a
wife’s right of divorce (talaq-i-tafwiz) in exercise of the delegated power to
divorce, as also to dissolution of marriage otherwise than by talaq. There are
different modes of talaq according as the pronouncement of talaq is by the
husband. In the case of Talaq Ahsan (most proper), a single pronouncement is
made during a tuhr (period between menstruations) followed by abstinence from
sexual intercourse up to three following menstruations, at the end of which
talaq becomes absolute. In the case of Talaq Hasan (proper), three
pronouncements are made during successive tuhrs, there being no sexual
intercourse during any of the following three tuhrs. In the case of
Talak-ul-bidaat or Talak-i-badai (which is popularly called Bain talaq in
Bangladesh), either three pronouncements are made during a single tuhr in one
sentence or three separate sentences or a single pronouncement is made during a
tuhr clearly indicating an intention to dissolve the marriage irrevocably. This
form of talaq is not recognised by the Shafi and Shia Schools of thought, but
the Muslim Family Laws Ordinance, 1961 recognises “pronouncement of talaq in
any form whatsoever’, section 7(1).
111. It
has been variously argued by some learned Advocates for some of the latter
group of interveners supporting the respondents that there is no nexus between
iddat and maintenance. Nothing could be further from the truth in this bald
assertion. There is a clear and unambiguous connection in the Holy Qur-an
between talaq and iddat on the one hand and between iddat and maintenance on
the other.
112. Iddat
(a period of waiting, a prescribed period) is a concept distinctive and unique
in Quranic jurisprudence, like of which is not to be found in any other known
system of jurisprudence. The question of iddat for women arises on other
occasions as well, as on the death of husband, on periods of abstinence from
sexual intercourse and on periods of abandonment of prayers and fasting by
women, but it arises also when there is a pronouncement of talaq.
The
purpose of iddat after divorce is four-fold, first, to allow the parties to
recon ciliate and to give the divorce a go by in the cases of Talaq Ahsan or
Talaq Hasan, secondly, to ascertain whether the woman is carrying any offspring
of her husband in the womb or not, so that the legitimacy of the child remains
beyond dispute, thirdly, to prevent re-marriage of the woman during the period
of iddat in order not to forestall reconciliation and to avoid future
controversies on legitimacy and fourthly, to make arrangements for the
maintenance of the woman during the period of iddat.
113. The
relevant Sura and Ayats of the Holy Quran on iddat, reconciliation, maintenance
and mata’a after pronouncement of talaq are to be found in Sura Al-Baqarah
(2:228-237, 241), Sura At-Talaq (65:1-6) Sura Al-Ahzab 33:49 and Sura An-Nisaa
(4:35). The Holy Quran divides divorced women into 6 categories :—(l) those
divorced before consummation of marriage, but without fixation of dower (mahr)
(2) those divorced before consummation of marriage, but after fixation of dower
(3) those divorced after consummation of marriage but not bearing any offspring
in the womb at the time of divorce (4) those bearing an offspring in the womb
at the time of divorce (5) those who, at the option of the father, would give
suck to the child after divorce and (6) those who by mutual consent and after
due consultation with the husband would give the child to a foster-mother.
114.
Separate provisions have been made in the Holy Qur-an for no or separate
periods of iddats and maintenance for each of the above categories of divorced
women. There is no period of iddat and no maintenance is to be provided to the
first category who are divorced before consummation of marriage, but without
fixation of dower. The authority for this proposition is Ayat 236 of Sura Al Baqarah
(2) as follows:
“There is no blame on you if ye divorce women before consummation or
the fixation of their dower, But bestow on them (a suitable gift), The wealthy according
to his means, and the poor according to his means; A gift of a reasonable
amount is due from those who wish to do the right thing.”
115. The
contents of the said Ayat are repeated in Sura Al-Ahzab (33:49) as follows:
“O ye who believe When ye marry
believing women, and then divorce them before ye have touched them, No period
of ‘Iddat have ye to count in respect of them; So give them a present, and
release them in a handsome manner.
116. For
the second category of divorced women, those divorced before consummation of
marriage but after fixation of dower, there is no provision for observing iddat
for any length of time and no provision for maintenance either. They are only
to be paid half of the dower due to them. The authority for this proposition is
contained in Ayat 237 of Sura Al-Baqarah (2), which is as follows:
“And if ye divorce them before
consummation, but after the fixation of a dower for them, then the half of the
dower (is due to them), unless they remit it or (the man’s half) is remitted by
him in whose hands is the marriage tie and the remission/ (Of the man’s half is
the nearest to righteousness. And do not forget liberality between yourselves for
Allah sees well all that ye do.”
117. It
is to be noted that in respect of the above two categories of divorced women
the Holy Quran does not enjoin upon the parties to effect any reconciliation
either. The divorce takes effect immediately after the pronouncement of divorce
and in the case of the first category all that is due to them is a suitable
gift (Mataaum-Bil-Ma’aruf) of a reasonable amount according to the means of the
husband. In the case of the second category of women, the half of the dower is
due to the divorced women, unless remitted.
118. In
the case of the third category of women the period of iddat has been precisely
fixed in Ayat 4 of Sura At-Talaq (65) as follows:
“Such of your women as have passed the
age of monthly courses, for them the prescribed period, if ye have any doubts,
Is Three months, and for those who have no courses it is the same): for those
who are pregnant, their period is until they deliver their burdens: And for
those who fear Allah, He will take things easy for them.”
119. Door
is left open for reconciliation in the case of Talaq Ahsan or Talaq Hasan. Ayat
35 of Sura An-Nisaa (4) says,
“If ye fear a breach between them twain
appoint (two) arbiters, One from his family, and the other from hers they seek
to set things right, Allah will cause their reconciliation For Allah hath full
knowledge, and is acquainted/with all things.”
120.
During the whole period of iddat the divorced women shall remain in their
houses unless they are turned out for being guilty of some open lewdness. The
authority for this proposition is Ayat 1 of Sura At-Talaq (65) as follows
“O Prophet! When ye do divorce women,
Divorce them at their prescribed periods, and count (accurately) their
prescribed periods: And fear Allah your Lord: And turn them not out of their
houses, nor shall they (themselves) leave, except in case they are guilty of
some open lewdness, Those are limits set by Allah: and any who transgresses the
limits/Of Allah, does verily/Wrong his (own) soul: Thou knows not if per chance
Allah will bring ‘about thereafter some new situation.”
121. If
we take a literal construction of Ayat 1 of Sura At-Talaq (65) divorced women
are only entitled to remain in their houses during the period of iddat. There
are no express words in that Ayat providing for their food, clothing and
medical expenses. Assistance has been taken from Ayats 6 and 7 of Sura At-Talaq
(65) to shed light on what is fully meant by providing, for accommodation only
in Ayat 1. Ayats 6 and 7 say.
“6. Let the women live (in ‘iddat’) in
the same style as ye live, according to your means: annoy them not, so as to
restrict them. And if they are pregnant, then spend (your substance) on them
until they deliver their burden: and if they suckle your (offspring) give ‘them
their recompense: and take mutual counsel together, according to what is just
and reasonable and if ye find yourselves in difficulties, let another woman
suckle (the child) on the (father’s)”
“7. (Let the man of means spend
according to his means: and the man whose resources are restricted, let him
spend according to what Allah has given him Allah puts no burden on any person
beyond what He has given him after a difficulty, Allah will soon grant relief.”
122. That
the women would live in iddat in the same style as the husband lives according
to their means led the jurists to come to a consensus that divorced women of
the third category shall live at the expense of the husband during the period
of iddat. The husband will meet all her expenses i.e., he will maintain her.
123. For
the fourth category of divorced women, those who bear an offspring in their
womb at the time of divorce, the period of iddat is extended up to the delivery
as we have seen in Ayat 4 of Sura At-Talaq (65), quoted before, and the husband
is to maintain the divorced women till delivery as is clear from Ayats 1, 6 and
7 of Sura At Talaq (65), quoted before.
124. For
the fifth category of women, i.e., those who, at, the option of the father,
would give suck to, the child the period of iddat is over after delivery, but
the maintenance continues after the period of iddat. There is a clear provision
to bear the cost of food and clothing of both the mother and the child on
equitable terms for two whole years, if the mother should give suck to the
child.
125. For
the sixth category of women who by mutual consent and after due consultation
decide on weaning and give their child to a foster-mother, an obligation has
been cast upon the husband to pay the foster-mother on equitable terms. The
authority for this proposition is contained in Ayat 6 of Sura At Talaq (65),
previously quoted, and more fully in Ayat 233 of Sura Al (2) as follows:
“The mothers shall give suck to their
offspring for two whole years for him who desires to complete the term. But he
shall bear the cost of their food and clothing on equitable terms. No soul,
shall have a burden laid on it greater than it can bear. No mother shall be treated
unfairly on account of his child, an heir shall be chargeable in the same way. If
they both decide on weaning, by mutual consent, and after due consultation there
is no blame on them, if ye decide on a foster-mother for your offspring there
is no blame on you, provided ye pay (the foster’ mother) what ye offered, on
equitable terms, but fear Allah and know that Allah sees well what ye do.”
126. The
same provision is contained in Ayat 6 of Sura At-Talaq (65), quoted before, in
a condensed form. Reading therefore the Quranic texts together it is very
difficult for us to accept the submission that there is no nexus between iddat
and maintenance. This is not what the learned Judges said themselves in the
impugned judgment.
127. Nor
do we find anything in Sura Al Baqarah (2: 228), as held by the learned Judges
in the impugned judgment that “Qur-an directs a woman who is divorced to
undergo a period of iddat elsewhere (Second Sura Baqarah, Verse 228) and herein
(i.e., in Ayat 241) Quran directs a man to give maintenance in case he divorces
his wife.” Ayat 228 of Sura Al-Baqarah (2) is as follows:
“Divorced women shall wait concerning
themselves for three monthly periods. And it is not lawful for them to hide
what Allah hath created in their wombs, if they have faith in Allah and the
Last Day. And their husbands have the better right to take them back in that
period, if they wish for reconciliation. And women shall have rights similar to
the rights against them, according to what is equitable; But men have a degree over
them and Allah is Exalted in Power, Wise.”
128. Ayat
228 is about the period of iddat, non- concealment of pregnancy,
reconciliation, and a degree of men over women and we have not found in that
Ayat what the learned Judges have found. On the contrary, Sura At-Talaq (65:1)
asks men not to turn the divorcee women out of their houses and asks women not
to leave their houses. Only if a woman is guilty of some open lewdness, the
husband can turn her out of their house, in which case she will undergo the
period of iddat elsewhere. The learned Judges have totally misread Ayat 228 of
Sura Al-Baqarah (2).
129. It
has been pointed out by some learned Advocates on behalf of some interveners
supporting the respondents that section 3 of the Muslim Family Laws Ordinance,
1961 provides that the provisions of this Ordinance shall have effect
notwithstanding any law, custom or usage. This means that the provisions of
this Ordinance will prevail over section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937. Section 7 of the Ordinance has been referred to and it
has been argued that this section has done away with the concept of iddat
altogether and consequently; maintenance can no longer be connected with iddat.
130. Upon
perusal of section 7, we find that situation to be the opposite. Section 7(1)
provides that any man who wishes to divorce his wife shall, as soon as may be,
after the pronouncement of talaq in any form whatsoever, give the Chairman
notice in writing of his having done so, and shall supply a copy thereof to the
wife. Section 7(3) says,
“Save as provided in sub-section (5), a
talaq, unless revoked earlier, expressly or otherwise, shall not be operative
until the expiration of ninety days on which notice under sub-section (1) is
delivered to the Chairman.” Section 7(5) provides, “If the wife be pregnant at
the time talaq is pronounced, talaq shall not be effective until the period
mentioned in sub-section (3) or the pregnancy, whichever be later, ends.’ Where
is the throwing away of iddat? The principle of revocation of divorce, finality
of divorce of a non-pregnant woman after three menstrual courses, or of a
pregnant woman till delivery coincide with the periods mentioned in section
7(3) and 7(5). The Muslim Family Laws Ordinance, 1961 when interpreted in the
light of Articles 8 and 8(1A) of the Constitution preserves iddat as laid down
in the Holy Qur-án.
131. Then
comes Ayat 241 of Sura Al-Baqarah (2) where the key words are “Mataaum-Bil-ma’aruf”.
In its original form (first edition in 1934) the said Ayat was translated into
English by Allama Abdullah Yusuf Ali as follows:
“For divorced women maintenance (should
be provided) on a reasonable (scale). This is a duty on the righteous.”
132. For
the learned Judges of the High Court Division and for the learned Advocates
supporting the impugned judgment this translation is the basis, the sheet
anchor and the only authority in support of all their arguments.
133. In
the revised and edited translation, we are using, Ayat 241 of Sura Al-Baqarah
(2) stands translated as follows:
“For divorced women is a suitable Gift, This
is a” duty on the righteous.”
134. It
is to be noticed that in Ayats 236 and 241 of Sura Al-Baqarah (2) the words
Mataaum-Bil Ma’aruf have been used.
Allahma Abdullah Yusuf Ali translated this expression in Ayat 236 in his
original translation as “a suitable gift” which is now ‘a gift of a reasonable
amount” in the revised and edited translation, but while translating the same
words Mataaum-Bil-Ma’aruf in Ayat 241 he translated it in his original
translation as maintenance (should be provided) on a reasonable (scale).” It is
to remove this anomaly that in the revised and edited translation, the words
“Mataaum Bil-Ma’aruf’ have been given a uniform meaning and we are of the
opinion, rightly.
135. The
context in which Ayat 241 was revealed is also important. In Ayat 236 of Sura
Al Baqarah (2), ‘a suitable gift” was made due to those women who have been
divorced before being touched but whose mahr has not been fixed and it would
come from those “who wish to do right thing” (Haqqan A’alal Muhsenin). A group
of Muslims said that they would make the gift if they were kind, otherwise not.
Then Ayat 241 was revealed making the suitable gift “a duty on the righteous”
(Haqqan A’alal Muttaqeen). As the same words Mataaum-Bil-Ma’aruf have been used
in both Ayats 236 and 241 and as Ayat 241 has been revealed in elucidation of
Ayat 236, it cannot be that the same words will carry two different meanings in
two separate Ayats, one a one-off payment of a gift as a duty and the other a
payment of maintenance on a reasonable scale as an obligation. The revised and
edited translation has appropriately done away with this anomaly.
136. The
legal meaning of the word “maintenance” in Anglo-Saxon Jurisprudence is
contained in Black’s Law Dictionary, 6th Edition, as follows
“Sustenance, support, assistance, aid.
The furnishing by one person to another, for his or her support, of the means
of living, or food, clothing, shelter etc. particularly where the legal
relation of the, parties is such that one is bound to support the other, as
between father and child, or husband and wife While term primarily means food,
clothing and shelter, it has also been held to include such items as reasonable
and necessary transportation or automobile expenses, medical and drug expenses,
utilities and household expenses.”
In
Bangla, we use the word ‘maintenance’ as equivalent to “Khorposh mor
bhoronposhon”. In Arabic the root word of the word maintenance is Nafaqatun, a
noun. Its verb is Nafaqa. In past tense, the verb is Anfaqa. The imperative
verb is Anfiq (singular), Anfiqa (double) and Anfequ (plural). The word
‘Anfequ’ has been used in Sura Talaq (65:6), where women have been given the
right to live in the same style in iddat as their husbands live according to
their means. The word “Yonfequ” (present indefinite tense in plural) has been
used in Ayat 7 of Sura At Talaq (65:7) following the verse, on the maintenance
of non-pregnant and pregnant divorced women.
“Let the man of means spend according to
his means: arid the man whose resources are restricted let him spend according
to what Allah has given him …”
137. The
word ‘rizq’ is used in Sura Baqarah (2:233) wherein men have been directed to
bear the cost of food and clothing for two whole years if divorcee mothers have
to give suck to their offspring.
138. The
word ‘Nafaqa’ has other meanings as well as is clear from the meaning given to
it by Huns Wehr in A Dictionary of Modern Written Arabic, edited by J Milton
Cowan (Third Printing, 1974) as “to spend, expend, lay out, disburse, to use
up, consume, spend, exhaust, waste, squander, dissipate support, bear the cost
of maintenance, to provide means of support, bear the cost of SO’s (subject of)
maintenance. “Dr Rohi Baalbaki in his Arabic-English dictionary Al Mawrid, a
standard work of great repute, gives the dictionary meaning of Nafaqa, inter alia, as follows:
“expense, cost, charge, expenditure,
outlay, money spent.” (Tenth Edn., 1997)
139. No
such word denoting cost of maintenance in all its imperativeness like Anfequ or
denoting livelihood as rizq has been used in Ayat 241, as in the Ayats and
Suras providing for maintenance to women during the period of iddat. The words
used in both Ayats 236 and 241 of Sura Al-Baqarah (2) are ‘Mataa’
aum-Bil-Ma’aruf. The learned Judges themselves relied on the dictionary meaning
of the word ‘Mataaun’ from the Dictionary and Glossary of the Koran by John
Penrice as follows:
House-hold stuff, utensils, goods,
chattels, provision, convenience.” To bear the cost of maintenance is far from
‘Mataaun’, even when the learned Judges’ own reliance on John Penrice is
complete.
140. In
Hans Wehr’s afore-quoted dictionary ‘mata’a’ is given the meaning, inter alia, as “to give as compensation to a divorced
woman.” The plural of mataa’s is Amti’a which means in the same dictionary
“enjoyment, pleasure, delight, gratification; object of delight; necessities of
life; chattel, possession, property, goods, wares, commodities, merchandise,
furniture, implements, utensils, household effects, baggage, luggage,
equipment, gear, useful article, article of everyday use, things, objects,
stuff, odds and ends, etc.” Again in Al-Mawrid, Dr Baalbaki gives the meaning
of the word ‘mata’a’ as ‘effects, goods, wares, chattels, (personal) property,
personality, belongings, possessions, equipment, gear, supplies, baggage etc.,
but never maintenance or livelihood as in the case of nafaqa’ or rizq’.
141. The
word ‘Ma’aruf is given the meaning in Hans Wehr’s Dictionary as “known,
well-known, universally accepted, generally recognised, conventional, that
which is good, beneficial or fitting, good, benefit; fairness, equity,
equitableness, kindness, friendliness, amicability, beneficence, favour
rendered, courtesy, mark of friendship etc.” In Al-Mawrid Bil-Ma’aruf is given
the meaning as “amicably, in a friendly manner, with kindness”. John Penrice
gives the meaning as “known, recognised, honourable, good, befitting,
kindness.” Therefore the word ‘Ma’aruf cannot be given the meaning of a
“reasonable scale”. It may be a reasonable amount, but not a reasonable scale.
142. Mataa’um-Bil-Ma’ruf
in its Arabic meaning in the Holy Qur-an cannot mean “maintenance on a
reasonable scale”, If amplified, it means a compensation in the form of a
presentation of some means of enjoyment which is an article of everyday use and
which can take the shape of a dress, money, chattel, property or any other
means of enjoyment according to prevalent practice. That even the Prophet (5)
was not asked to provide maintenance were he to set free from marriage bond any
of his wives is clear in Ayat 28 of Sura Al. Ahzab (33) as follows:
“O Prophet! Say to thy Consorts: If it
be that ye desire the life of this world and its glitter, then come! I will
provide for your enjoyment and set you free in a handsome manner.’
143. As
for Sunnah, the Prophet (S) himself divorced a wife named Zaonia with a parting
gift of a pair of dresses (Bukhari Sharif Bengali translation by Shaikhul Hadis
Maulana Azizul Huq, 6th Volume, p 227, published 1413 Jijri). The Prophet (S)
directed a man named Hafs Ibne Mugira to pay mata’a to his divorced wife
Fatema even though he lamented that he had no means to pay it. The Prophet (S)
said, you have to pay mata’a even’ though it is a quarter to one kilo of dates.
(Assunatul Kubra by Imam Baihaki Vol 7 (Out of 10), p 257) the Sahabis of the
Prophet (S), the Tabeyis, the Imams of all the four schools of thought in
Islam, and the recognised commentators from the 3rd century Hijiri up to the
15th century Hijri have never deviated from the following propositions with
regard to mata’a:
1. Mata’a is a parting gift to
divorced women as a comfort and solace for the trauma they suffer from divorce.
2. As it is a presentation denoting
Godliness, courtesy, equity, handsomeness and reasonableness, no limit has been
fixed in its payment. It has been left to the pleasure and means of the
husband:
3. Since mata’a is a presentation, the
future life of the wife or her post-divorce financial position has not been
made a subject matter of consideration while giving mata’a.
4. Mata’a is a temporary one-off gift and
is not a matter to be given repeatedly or at intervals.
5. Mata’a has never been judicially
enforceable because it is a gift. A valid gift, once made, is judicially
enforceable, but no one can compel another to make a gift through a process of
law. There are however opinions in favour of the view that divorced women
described in Ayat 236 of Sura Al-Baqarah (2) can maintain an action for mata’a
in a court of law, as mata’a is a legal due, not a mere gift, in such cases.
144.
These are in short the established Ijma on mata’a for the last 1400 years and
we do not find any reason from the impugned judgment why this long- established
ijma should be broken. Dr Abdul Karim, a former Professor of Baghdah University
and a famous jurist says in his Al Wajiz from Usulil Fiqh at pp 186-187:
“Among separate opinions if there is a
consensus on a particular matter, then it is not permissible to create such a
third flow of opinion which creates dissension in the consensus for it amounts
to breaking of an established ijma and is not permissible.” (English
translation is ours).
145. We
therefore, find that the learned Judges’ re-opening of an issue which is
established in the Holy Qur-án itself, by the Hadith of the Prophet (S), by the
Shahabis and Tabeyis, by the opinion of the four Imams of four schools of
thought and by commentators during the last 1400 years was unwarranted,
uncalled for, impermissible and without any rhyme or reason. The learned Judges
in the impugned judgment and some of the learned Advocates for some of the
interveners supporting the respondents have taken the original English
translation of Ayat 241 of Sura Al-Baqarah (2) of the Holy Qur-án by Allama
Abdullah Yusuf Ali to be the Holy Qur-an itself and have interpreted the Holy
Qur-án by laying emphasis on and interpreting the English words used in it and
have not cared to interpret the said Ayat by using the Arabic text. A
translation of the Holy Qur-án is not the Holy Quran and by treating a
translation to be so the learned Judges committed the greatest blunder.
146. If
left destitute after divorce, the divorced women, under Islamic dispensation,
is entitled as of right to claim maintenance from their opulent prescribed
relations. If not so available, the State is bound to maintain them. Those who do
not find solution to the problems of destitute women after divorce within
Shariat may usefully explore a compulsory realisation of Zakat by the State and
will soon find that there will be a dearth of recipients of Zakat.
147. The
learned Judges’ conclusion that under Ayat 241 maintenance is to be paid to
divorced women for an indefinite period until remarriage or till they lose
their status as divorcees has taken even some of the learned Advocates of some
of the interveners for the respondents by surprise and they have conceded that
this is an abrupt conclusion without any reason. One of them has however
submitted that maintenance till remarriage is not a novel concept falling down
from nowhere. Several tafsirkars have understood Ayat 241 to be so. We have
also been referred to the Report of the Family Laws Commission of the
Government of Pakistan, presided over by Abdur Rashid, CJ, and published in the
Pakistan Gazette Extraordinary on 20-6-56. The report, recommending that the
proposed matrimonial court shall be empowered to order that a husband has to
pay maintenance to the divorced wife for life or till remarriage, commented
that a large number of middle-aged women, who are being divorced without rhyme
or reason, should not be thrown on the street without a roof over their heads
and without any means of sustaining themselves and their children. That report
is not an interpretation of Ayat 241 and in any case the Muslim Family Laws
Ordinance, 1961 which was enacted to give effect to some of the recommendations
of that Committee, did not enact that recommendation in the Ordinance. The
tafsirkars referred to have given’ their individual opinions, which have never
been crystallized into an Ijma. We may profitably quote from the eminent jurist
Gazi Shamsur Rahman’s (Commentaries on codified Islamic Law) at p 611 as
follows:
(“So it emerges from the above
discussion that a husband divorcing his wife is bound to maintain her only up
to the completion of her iddat period. All faqihs of all ages of all schools of
thought are unanimous on this point.” (English translation is ours).
148.
Maintenance up to re-marriage has been sought to be justified, in the absence
of any reason in the impugned judgment, by some learned Advocates of some of
the interveners supporting the respondents on the ground of (1) a humane, just,
equitable and fair approach as an obligation upon the righteous and (2) on
equitable doctrine.
149. It
has been urged that the word ‘mata’a’ has been used in the Holy Qur-án at least
in 14 places (2:36; 3:14; 24:29; 28:61; 33:53; 40:39; 43:33-35; 57:20;
80:24-32; 33:28; 2:240; 2:241; 33:49 and 2:236), referring to and quoting from
a booklet entitled “A Way to Islam” with a commentary from an undisclosed
source on the cover page of the book describing the book as ‘inspiring and
demanding” written by the author-Judge of the impugned judgment Mr Justice
Mohammad Gholam Rabbani and published during the pendency of this appeal for
free distribution in October, 1998 by two NGOs, namely, Bangladesh Jatiya
Mohila Ainjibi Samity (BJMAS) and Institute of Democratic Rights (IDR), The
BJMAS has entered appearance in this appeal as an intervener to support the
impugned judgment. It has been argued from that book that ‘mata’a’ in those named
Ayats means livelihood, enjoyment, anything connected with wealth, worldly
belongings, gold, silver, adornments, fruits meal; conveniences, goods and
chattels, provisions. Therefore the meaning of the word ‘mata’a’ in Ayat 241 of
Sura Al-Baqarah (2) cannot but be provision or maintenance, as written in the
said book, as also in the argument advanced.
150. The
conclusion reached in the argument is in the nature of a forced conclusion,
because ‘provision’ in the sense of legal, formal and regular supply of necessities
of life and livelihood at intervals, as in the case of maintenance, was never
the meaning of mata’a in any of the named Ayats. Nor mata’a means maintenance,
as we have seen earlier. If this meaning is given it will run counter to Ayats
233, 236 and 237 of Sura Al-Baqarah (2) and Ayats 6 and 7 of Sura At-Talaq
(65). It is plainly inhuman, unjust, inequitable and unfair to impose on a man
the burden of maintaining a divorced woman whom either he has not even touched
or from whom he receives no consideration after divorce. Marriage in Islam is a
contract both religious and social in nature and after the contract ends, the
only consequential benefits are those described earlier and a forced and
laboured interpretation will lead to discrepancies and contradiction with the
aforesaid Suras and Ayats.
151.
Pleading next that no controversy should be created on the meaning of mata’a
and reading Suras and Ayats 2:229, 231 and 232, and 65:2 in the light of Sura
2: 106, it has been argued that while the Holy Qur-án repeats itself, it
betters and makes progressive provisions to meet the challenges of time. “Part
with them on equitable terms” (65:2), set them free’ (2:23 1) and other Suras
and Syats, it is argued, are signs in the Holy Qur-án and are guidelines for
applying the equitable doctrine. Mata’a should be regarded as comparable to
pension and retirement benefit. It can be done by way of making a gift” (we are
quoting from the learned Advocate’s written submission) of a house and
property, agricultural land, fruit bearing trees, etc. which will generate a
continuing income for the hapless divorcee.
152. The
second argument is contradictory to the first. Having asserted first that under
the principle of a humane, just, equitable and fair approach as an obligation
upon the righteous, the word ‘mata’a’ in Ayat 241 cannot but mean provision or
maintenance, it is now argued that controversies apart, ‘mata’a can be a ‘gift’
of an income-generating property. Surely one can make a ‘gift’ to his divorced
wife of a generous amount or a substantial property if he wishes, but still it
will be a ‘gift’ which one cannot compel another to make through a process of
law. Both branches of this particular submission do not therefore lead to the
conclusion that mata’a means maintenance.
153. Some
Muslim countries have enacted laws to provide for compensation to the wife in
the case of arbitrary repudiation by the husband. If Ayat 241, had spoken of
mata’a as a compensation for arbitrary divorce, what was the necessity of enacting
laws to remedy these ills? And where are the words “arbitrary divorce” in Ayat
241? These laws are therefore outside of the scope of Ayat 241. Laws in Muslim
countries like Syria, Jordan and Egypt make an arbitrary divorce on the part of
the husband a condition precedent to payment of compensation to wife, the
amount of compensation varying from country to country, but not exceeding
maintenance for three years, s in the case of Syria. Jordan and Egypt grant
maintenance for 1 year and 2 years respectively. The point to note here is that
in these statutory laws, no liability has been imposed upon men even in a case
of arbitrary divorce, to provide maintenance to divorced women for an
indefinite period till remarriage. Only in Tunisia, if any material or moral
injury is caused to either spouse as a result of divorce (not when the husband
arbitrarily divorces his wife) an injured woman may receive an allowance,
liable to revision upwards or downwards, for her lifetime or until she
remarries. These statutory laws are not sources of Quranic jurisprudence and
will therefore have no effect on the interpretation of Ayat 241.
154.
Under the strict interpretation of the word mata’a all that can be given is
three pieces of cloth sufficient for a divorced woman to pray. The maximum that
can be given is half of the dower money fixed. But, of course, instances have
been provided to us that Hazrat Hasan Bin Ali (R) gave his divorced wife 10,000
Dirhams in those days. It is our understanding that the Holy Qur-án has left
the quantum of mata’a to the Godliness, sense of justice, equity and fairness
on the apart of the husband, since it is a voluntary payment.
155.
Another strict interpretation is that Ayat 241 is related to only those women
who have been described in Ayat 236 of Sura Al-Baqarah (2), because of the
context in which Ayat 241 was revealed, as described earlier. It is argued that
Ayat 241 is an elaboration of Ayat 236 and is therefore limited to those
divorced women who are described in Ayat 236. The liberal view (Tafsir Ibne
Kasir, a disciple of Imam Shafi) is that the presentation of a suitable gift is
obligatory in the case of all divorced women and not merely in the case of
women referred to in Ayat 236 of Sura Al-Baqarah (2). The counter-argument is
that if it is so, then the women who have been divorced before consummation but
whose dower has been fixed will not only get half of the dower but also a
suitable gift which is contrary to the provisions of Ayat 237 of Sura
Al-Baqarah (2). To obviate this difficulty the Moroccan Law provides, “every
husband shall have the obligation to provide mata’a for his divorcee if divorce
proceeded from him, according to his affluence and her means, except the women
for whom a dower was specified and was divorced prior to consummation.” We are
not concerned with this controversy because in any view of the matter mata’a is
a voluntary gift payable by the righteous. A righteous man will please Allah
and if righteous men make a voluntary gift to all kinds of divorced women it is
for Allah to consider whether they have acted righteously or not. Righteousness
and mata’a go hand in hand.
156. We
have been urged by some learned Advocates to view the reinterpretation of the
Holy Qur-an from the angle of social justice. We would humbly suggest them to
re-direct their focus on social justice from the Islamic point of view and
ponder over the following observations made by the eminent jurist Gazi Shamsur
Rahman in his previously-quoted book at p 611, as follows:
(The Islamic law recognises each adult
and intelligent person as separate entities. They will carry and observe
themselves their own responsibilities and duties, whether they be males or
females. Each one is responsible for his/her maintenance. The only exceptions
are the responsibilities of the husband to maintain his wife and those of the
guardians to maintain their wards till they are adults and can maintain
themselves. As in this society parents are not bound to maintain their adult
sons and daughters, so also a man divorcing his wife is not bound to maintain
his ‘I repudiated wife. As a marriage bond converts a pair of man and woman
into husband and wife and creates mutual responsibilities and duties towards
each other, so also a talaq or severance of marriage ties breaks the bond
between husband and wife and takes them back to their pre-marriage situation
and the two turn into two separate persons having no mutual relationship with
each other and there is an end to their mutual responsibilities and duties …”)
157.
After the second hearing of the appeal was concluded on 4-11-98 and we reserved
the appeal for judgment we found in a daily newspaper ‘The Daily Star” on
5-11-98 in the editorial page under “Opinion” column an Article written by the
learned author-Judge of the impugned judgment entitled “Muslim Law: Maintenance
of a Divorced Woman”. The learned author-Judge, knowing full well that his
judgment was sub judice under appeal and that the appeal was being heard in his
Division, thought it fit and proper to justify the impugned judgment and to say
that he understood that these objections were now being raised against it and
after noting those objections he replied to the same. We leave it to the
learned author-Judge himself to ponder whether a comment on a sub judice matter
at a time when the matter was being heard by this Division and was kept
reserved for judgment will not attract the mischief of contempt of Court as a
direct interference with and influencing the judgment of this Court. He will
also ponder whether such conduct is in keeping with judicial propriety. He will
also ponder as to whether his judgment was a self-contained one, or else why
should it n supplementation? The article itself is an admission that the
impugned judgment is an incomplete and inadequate judgment which does not
answer objections to the views expressed in the impugned judgment. Further, if
all the learned Judges of the High Court Division start following the example
of the learned author-Judge, it should be a matter of concern to the learned author-Judge
himself as to what will happen to judicial discipline in future. In our
not-so-short experience as Judges and lawyers, we have not ever found any
learned Judge committing such act of indiscretion. It is our earnest hope that
the learned Judge will desist from committing such an act in future.
158. In
the result, the appeal is allowed without any order as to costs. The impugned
judgment and order of the High Court Division are set aside.
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