Apakah
mut’ah itu adalah sama dengan maksud ‘nafkah’? Jawapannya sepertimana dalam
posting-posting yang lalu adalah bahawa konsep mut’ah itu sahaja yang hampir
kepada prinsip nafkah tetapi ia sebenarnya bukannya. Mut’ah lain manakala
nafkah juga lain dan berbeza konsepnya.
Mahkamah
Agung di India dalam kes Mohd. Ahmad Khan v Shah Bano Begum and Others
(AIR 1985 SC 945) telah menfsirkan bahawa konsep mut’ah itu adalah merujuk
kepada nafkah.
Bagaimana
ini terjadi ada di ulaskan serta di teliti oleh Athar Husain. Berikut ialah
ulasan beliau dalam rencana beliau yang bertajuk MUSLIM PERSONAL LAW --
AN EXPOSITION sebagaimana yang dilapurkan di dalam Jurnal keluaran ‘The
Canadian Society of Muslim’.
^^^^^^^^^^^^^^^^^^^
MUSLIM PERSONAL LAW -- AN EXPOSITION
By ATHAR HUSAIN
Published by: the All India Personal Law Board,
Camp Office, Nawatu Ulama, Lucknow, India
Maintenance (1)
A
husband is legally bound to maintain his wife during the subsistence of the
marriage in accordance with his means and position in life. The right of the
wife to maintenance is subject to the condition that she is not refractory or
does not refuse to live with her husband without a lawful cause such as
non-payment of dower.
If
the wife is a minor so that the marriage cannot be consummated, there is no
legal obligation on the husband's part, according to the Hanafis, to maintain
her. Desertion without leaving any means of support to the wife or family
entitles the wife to a separation.
A
divorced wife is entitled to maintenance during her period of probation (iddat).
In [the] case of divorce, the wife cannot re-marry a second time for three
months and in the case of death of the husband for four months and ten days.
This period is called iddat. Because of this condition, she is
entitled to get maintenance for this period.
If
the husband fails to pay prompt Mehr on the demand of his wife
or [if] due to his cruel treatment, the wife leaves his society, she is
entitled to maintenance.
The
wife may sue for maintenance either in the civil court or apply (in the absence
of a special contract) to the Criminal Court.
An
order of maintenance in the case of divorce ceases to be operative after the
expiry of the woman's period of iddat.
Nafqa (maintenance), in the language of the law signifies
all these things which are necessary to the support of life such as food,
clothes and lodging. The subsistence of wife is incumbent upon the husband
irrespective of her religion.
In
determining the quantum of maintenance, regard is to be given to the status and
condition of both the parties. If the parties [are] both wealthy, he must
support her in an opulent manner; if both be poor, the husband is required to
provide for her accordingly; if he be rich and she poor, he is to afford her a
moderate subsistence such as is below the former and above the latter.
If
a woman refuses to surrender herself to her husband on account of non-payment
of dower, her maintenance does not drop and [it] is still incumbent upon the
husband
If
a wife is disobedient or refractory and goes abroad without her husband's
consent, she is not entitled to any support from him until she returns and
makes submission.
The
maintenance of the wife's servants is also incumbent upon her husband, provided
he is in opulent circumstances.
If
the maintenance of a wife is decreed by a Qazi or Court at a time when the
husband was poor but afterwards [he] becomes rich, she can sue for a
proportionate addition to her maintenance, and a decree must be given in her
favour.
Mohammadan
Law also provides that if a man gives to his wife one year's maintenance in
advance, and then dies before the expiration of the year, no claim lies
against the woman for restitution of any part of it.
Maintenance (2)
If
a husband absents himself, leaving his effects in the hands of another, his
wife is entitled to get maintenance out of the husband's effects. In fact,
children and parents of the absentee [husband] will also get maintenance out of
the assets.
If
the separation originates with the wife from anything grave [and] imputable to
her like apostasy or [an] illicit connection or dalliance with another person,
she has no claim to maintenance during the iddat. But if the
separation originates from something which cannot be imputed to her as a crime,
as in the case of the separation demanded by her on account of iniquity, she
remains entitled to maintenance during the iddat.
In
a recent case of Criminal Appeal, Mohd Ahmad Khan v Shah Bano Begum and
Others (AIR 1985 SC 945), the Supreme Court held that the Quran stipulates
maintenance of a wife beyond the period of iddat and
indirectly till she marries, if she is unable to maintain herself. She is
entitled to maintenance after the expiration of the period of iddat under
Section 125 of the Code of Criminal Procedure and it saw no conflict between
the Muslim Personal Law and provisions of Section 125 Cr. P. C.
The
whole judgment is based on an averment of D. F. Mulla in his Principles of
Mohammaden Law made on page 302.
In
the main para 279 on the subject of Maintenance on divorce, Mr. Mulla says,
"After divorce, the wife is entitled
to maintenance during the period of iddat (q) of S. 257. If
the divorce is not communicated to her until expiry of that period, she is
entitled to maintenance until she is informed of the divorce."
On
page 302 Mr. Mulla says,
"Where an or order is made for the
maintenance of wife under Section 488 of the Cr. P. C. and the wife is
afterwards divorced, the order ceases to operate on the expiration of the
period of iddat."
This
is a statement of fact and interpretation of law, but Mr. Mulla gives his own
views and apprehension when he adds:
"The result is that a Mohammadan may
defeat [an] order made against him under section 488 by divorcing his wife
immediately after the order is made."
He,
however, reiterates the provision of law when he says, “His obligation to
maintain his wife will cease in that case on the completion of her iddat."
The
Quranic text cited is verse 241 of Sarah 2. The Supreme Court cited the
translation of the verse by Abdullah Yusuf Ali "The Holy Quran, Text.
Translation and Commentary" page 96. The Arabic text is "Walil
Mutallaqat-e-Mataum bit Maroof; Haqqan Alai Muttaqeen".
Abdullah
Yusuf Ali translated it as:
"For divorced women, maintenance
(should be provided) on a reasonable scale. This is a duty on the
righteous."
Translation of the word MATA as maintenance
by Abdullah Yusuf Ali is clearly wrong. Almost all other translators have
translated it as 'provision.'
The Supreme Court has itself mentioned the translation of this verse by
Mohammad Zafrallah Khan 'The Meaning of the Quran' Vol, 1, published by
the Board of Islamic Publications, Delhi, the Running Commentary of the Holy
Quran' 1964 Edition by Dr. Allama Khadim Rahmani Nuri, the 'Meaning of the
Glorious Quran. Text and Explanatory Translation by M. Pickthall and the
Quran Interpreted by Arthur, J. Arberry which translate the word MATA as
'provision' and not 'maintenance'.
Why
in the face of as many as five concurrent translations, the Supreme Court chose
to depend upon the solitary translation of Abdullah Yusuf Ali has not been
mentioned. Yusuf Ali was an officer of the Indian Civil Service who did very
useful work in translating the Holy Quran in two volumes in a language almost
akin to Biblical language, but he was not a great Arabic scholar.
Apart
from the translations cited by the Supreme Court, I am citing a few more
translations In the first translation of the Quran in the English language by
George Scale brought out in 1734, he translated the verse 241 as follows:
"And unto those who are divorced,
a reasonable provision is also due; this is a duty incumbent on those
who fear God."
Rev. J. M. Rodwell in his translation entitled 'The Koran Translated'
translates this verse under Chapter: The Cow, page 364. as follows:
“And for the divorced, let there be a
fair provision. This is a duty for those who fear God."
Dr. Syed Abdul Latif in his book 'Al-Quran rendered into English,
which is based on the Tarjumanul Quran of Maulana Abut Kalam
Azad, translates as under,
“And for the divorced women let there
be a fair provision. This is an obligation on those who are mindful of
God."
The Supreme Court saw no distinction in the English words 'maintenance'
and 'provision' and equated one with the other. The Oxford Dictionary
gives the meaning of 'Maintenance' as maintaining or being maintained,
provision of enough to support life and the word ‘maintain' as furnishing with
means of subsistence. It is an action continued over a period of time. The
Chambers Dictionary says that 'maintain' means 'keeping up support' and by
maintenance is meant 'maintaining' or subsistence. The Oxford Dictionary says
that provision means provid[ing] an amount of something and the Chambers
Dictionary says it is providing [an] amount of. One can make provisions for a
day, a week or a month, but maintenance is a long drawn [-out] process
extending over a period of time, maybe [one’s] whole life or several
years.
When
the Holy Quran is to be interpreted, the word Nafaqa' and 'Mata' should
have been examined and for that purpose standard Arabic lexicons should have
been examined and not the English words 'maintenance' and 'provision.' The word
'provision' used for 'Mata' is a very poor translation. Rendering the depth and
shades of meaning of words of one language into another language or finding
[the] equivalent is a difficult task and so many English translators have
confessed that the Quran is not translatable [because of this]. They have
titled their translations as interpretations. For example, there is no word in
the English language for the Arabic and Urdu word Ishq. It can
be understood only by adding an adjective like 'intense' or 'poignant' [to]
'love.' Likewise, there are so many words in Urdu like Muhabbat,
Ulfat, Shafqat etc. for the English words 'love' and 'affection,' but they
all have different shades of meaning. Can anyone translate the words 'shades of
meaning' adequately into Urdu or Hindi?
In
his Commentary entitled Tafsir-e-Qadri, Maulana Fakhruddin has
translated Mataum as 'to bestow something which may profit her" and the
word ‘Bilmaroof ‘ on an average scale neither less nor
excessive." (pages 65, Vol. I.)
Maulana
Ashraf Ali Thanawi in his Translation of the Holy Quran has translated the
verse as to extend some benefit on the usual scale to divorced women." In
the Translation of the Quran by Muhammad Ali (p. 66). It has been said,
"Give the divorced wives something in accordance with usage. In the Hindi
Translation brought out by Maktabah Al-Hasanat, Rampur it has been said “give
them something of use in the approved way" (page 68).
Analysis
of the translation made by Yusuf Ali will also reveal its incorrectness. In the
verse prior to 241 in verse 240 the word 'Mats' has been used. Yusuf Ali has
translated the verse as follows “Those of you who die and leave
widows should bequeath for their widows a year's maintenance and residence."
Firstly,
the language used is incorrect for how can anyone who dies, make any bequest.
It can be done before death overtakes him. Then he has used the word
residence when the text says ghaira Ikhraj which means without
asking them to quit the residence. The result may be the same, but the
translation is patently incorrect.
In
the verse 241 the word Mata is qualified by bil-maroof which
means 'well-known' or 'customary.' How can maintenance for a divorced woman be
bil maroof, i.e. well known and customary when maintenance differs
from family to family, depending upon the financial position and means of the
husband and the way of living of the family. In verse 7 of Surah At-Talaq,
the Quran directs:
"Let him who hath abundance spend
out of his abundance, and let him who hath his resources straitened, spend
according to what hath been given him."
In
verse 241 the word Mata has a different connotation and in
Arabic, as in some other languages, a word can have several connotations.
According
to the ruling of the Supreme Court, if a divorced woman decides not to marry at
all, she will have to be maintained for life by her erstwhile husband who might
have re-married and have a full family of his own. If the divorced woman
marries after several years of the divorce, she will have to be maintained, but
this is clearly against the command of God. Says the Quran :
“And for such of your women as have no
recurrence of menstruation, if they have led you so to presume, the prescribed
time of waiting is three months, as also for those who have not had their
courses. For the pregnant woman, the prescribed time will be till they lay down
their burden. This is the command of God which He hath sent down to you. Lodge
them (in the period of waiting) where you yourselves live and harass them not
in any manner. And if they are pregnant, meet their incidental expenses
till they are delivered of their burden." (Q. 65: 4-6).
The
ruling makes maintenance incumbent upon the husband for life or till she
remarries, but the Quran fixes it for three months for a woman who is not
pregnant and till the delivery of the child if she is pregnant.
The
direction given in the first verse of the Quran and the fact that the divorced
woman should not be expelled from the house and they should not themselves
depart relates to revocable divorce. In the case of irrevocable divorce, the
wife is entitled to get maintenance and residence till the expiry of the period
of waiting (iddat) according to the Hanafi doctrine. All the four
schools of Muslim law are agreed that there is no question of maintenance after
the period of iddat. In the whole history of Islamic
Jurisprudence not one Mujtahid said that maintenance would be
payable after the iddat.
Maintenance
during the iddat is provided for there is [the] possibility of
pregnancy and the woman is not free to re-marry. But after the expiration of
the period, the erstwhile husband and wife have become complete strangers to
each other and they are free to marry anyone that they like. It is
illogical to insist that the husband should go on maintaining a stranger. In
discussing such points, it is presumed that the woman is the wronged party
while in fact the cause of divorce may be wholly imputable to her, examples of
which have been given before.
In
all important Arabic lexicons the word Mata means 'temporary
gain' or 'benefit.' The Qamus-al-Quran al Wajuh wa an-Nazair published
in Beirut, gives the meaning of the word Mata as Munafah' or
profit or gain.
Mufradat of
Imam Raghib Asfahani defines the word more precisely as something given to a
divorced woman from which she can derive benefit. Nafaqa, according
to it, means living expenses.
Tartibul Qamus Vol. IV published in Egypt says that Maintenance
is something given to a woman after divorce during iddat. AI-Qamus-ul
Asri i. e. Modern Dictionary from Arabic to English defines Nafaqa as
expenses, but cost or expenditure on living and Mata as
effects or goods.
[The] Advanced
20th Century Dictionary by Dr. Abdul Haq gives the meaning of
'maintenance' as what is overdue to support life i.e. nan nafaqa.
Guzarah, and his Standard Urdu-English Dictionary gives the meaning of Mata as
goods, valuables, effects, chattels which can be any article.
In
no period of lslam right from the period of the Prophet, his Companions and
their successors till [this] date, Mata has been taken to mean
maintenance. It is only in the nature of a parting gift given to the erstwhile
wife. Imam Razi writes in Tafsir Kabir that Mata covers
only articles of temporary benefit given as [a] parting or [a] consolation
gift. There are several precepts of the Prophet that Mata should
be given even by those in straightened circumstances and it may be a few seer
dates, some clothes or grain if they cannot give anything better.
The
word ‘Mata' has been used in four verses of the Quran and in three
of them husbands have been directed to give Mata to their divorced
wives, or it has been declared a right of the divorced woman.
The
first one is verse 236 of Surah al Baqarah. Even Abdullah
Yusuf Ali has translated the word Mata as gift. His
translation reads:
"There is no blame on you if you
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." (Q 2: 236)
The second verse is versa 49 of Surah 33. It has been translated by
Yusuf All as follows:
O ye who believe! When ye marry believing
woman and then divorce them before you have touched them, no period of iddat
have ye to count in respect of them. So give them a present and set them free
in a handsome manner.
Dr. Syed Abdul Latif's translation runs as under:
"O ye who believe. when ye marry
believing woman and divorce them before consummation, ye have not to wait the
full term of normal waiting, but give them some gift and release them (from the
marriage contract) in an honourable manner."
Maulana Abdul Majid Daryabadi in his Translation and Commentary of the
Holy Quran has translated verse 241 as below:
“And for the divorced women shall be a
reputable present, a duty on the God fearing."
The third verse is 241 of Surah 2 which has already been discussed
above. It is most surprising that Abdullah Yusuf Ali having translated the word
'Mata' as a gift in other verses committed the gross error of
translating the word in this verse as 'maintenance.'
In
[the] case of divorce before consummation [and there is a] fixation of mehr,
even the amount of mehr is reduced to half. But where Mehr ha[s]
not been settled, the divorcee is entitled to get [a] gift and there is no
waiting period [because] no Mehr was fixed, the husband is not liable to pay
any Mehr. In [the] case of divorce given after [the]
consummation of marriage, the husband has to give [the] full Mehr and
is responsible for [her] maintenance as well during the period of waiting.
Verses 4 & 24 of Surah 4 have commanded payment of the dower.
Tafsir
Mazhari (Vol. 1, p. 316) and Ruhul Ma'ani have explained that the divorced
women mentioned in Q. 2 : 241 are those who have been mentioned in verse 236 of
theSurah. The author of Lisan-ul-Arab has also
stated that Mata is semi-obligatory in certain kinds of
divorce but it is only a one-time gift and not like maintenance [which is]
payable over a period of time. To infer otherwise is to import one's own
ideas and wishes into the meaning of the Holy Quran.
It
is unfortunate that the case was not properly conducted on behalf of the
appellant. Thus, it was not brought out that:
(1) Divorce is of several kinds. In some
cases, like apostasy, unfaithfulness etc. of the wife is semi-obligatory. The
legal effects of various kinds of divorce are different. while the ruling makes
no distinction and covers even those types where even Mehr is not payable.
(2) The meaning assigned to the word Mehr by
Abdullah Yusuf Ali in his translation of verse 2: 2 is patently wrong and is
disproved by his own translation of the same word at other places. All other
translators and lexicographers have given it the meaning of one-time present
and it is clearly distinguishable from maintenance which is to be paid
regularly over a period of time. Standard Arabic lexicons should have been
produced to show the meaning of the word Mata.
(3) The plea of [the] All India Muslim
Personal Law Board as mentioned on page 951 of AIR that the exhortation is
to Muttaqueen, that is to the more pious and the more
God-fearing and not to the general run of the [mill type of] Muslim was absurd.
God has commanded that payment of Mahr is an obligation on those who are
mindful of God. Taqwa means fear of God or to
be mindful of God. Piety or righteousness is the result. [The]
clear meaning of the last sentence is that one should obey th[is] command if he
is mindful of or fears God. Those who do not fear God can do anything they
like. It is not that the command is applicable only to good people.
Commentaries
written by Tabari, Baidhawi. Zamakbshari, Ghazah, Jalaluddin and Fakhruddin
Razi and some other standard translations made by fit talented Ulama in Urdu
should also have been produced, The Quran is not an easily translatable book
and one has to be an Arabic scholar of merit fully acquainted with the Quranic
phraseology before he attempt[ing] to make a translation.
^^^^^^^^^^^^^^^
Nota: makna perkataan dalam bahasa Melayu:
Iddat = iddah;
Mehr /Mahr = mahar/mas kahwin;
Nafaqa =
nafkah;
Qazi = qadhi/hakim syariah;
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