Selasa, 28 Mei 2013

komentar: Kes Shah Bano -

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’.

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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