Jika dilihat perkembangan di dunia Islam dan bukan
Islam isu mengenai tuntutan hak mut’ah ini masih di perjuangkan oleh orang
Islam sebagai undang-undang personal yang perlu di berikan pengiktirafan dalam
undang-undang di negara yang mereka berada/bermukim. Ini kerana tafsiran
Mahkamah di negara-negara tertentu seolah-olah meminggirkan hak ini dan ada
yang langsung meminggirkannya terus. Bahkan jika dilihat ada yang mengatakan
bahawa hak mut’ah ini hanya perlu dilaksanakan oleh orang [suami] yang bertaqwa
sahaja dan jika orang itu tidak bertaqwa maka dia tidak perlu membayar mut’ah –
lihat kes Shah Bano di India. Ini adalah pengataan/kenyataan yang tidak
benar sama sekali.
Sesungguhnya Allah swt ada berfirman dalam surah
Hud ayat 85 yang bermaksud:
‘janganlah
kamu kurangkan manusia apa yang menjadi hak-haknya.’
Berikut ialah suatu artikal ilmiah yang ditulis
oleh Dr. Muḥammad
Ādam El Sheikh, bekas Hakim Mahkamah Syariah di Sudan. Beliau juga mempunyai
pengalaman lebih 25 tahun sebagai imam, penimbangtara dan penilai dalam masyarakat
orang Islam di Amerika Utara. Walaupun tujuan penulisan beliau adalah
disasarkan untuk kalangan ulama/‘jurists’ namun orang awam juga layak untuk
mengambil perhatian dan iktibar. Namun artikal ini bukanlah suatu yang boleh di
jadikan sebagai otoritatif. Bahkan ada juga di bahagian tertentu ianya boleh dipertikaikan
sebagai kurang tepat.
Apapun niat murni penulis itu saya panjangkan dan
kongsikan disini untuk tatapan dan renungan bersama.
*****************************************
Post-Divorce
Financial Support from the Islamic Perspective
(Mut‘at-al-ṭalāq)
By Dr. Muḥammad Ādam El Sheikh
Introduction
The subject of this study is post-divorce financial
support and its affinity to Mut‘at-al-ṭalāq, as we know it in Islamic jurisprudence. The target
audience is Muslim jurists who would appreciate the fairness and justice of
Islamic Sharī‘ah law for its care for women in general and for divorced Muslim
women in particular. The jurist would strongly uphold the right of divorcee
women as illustrated in the Holy Qur’an, applied by the Prophet (pbuh) and
eventually join hands to develop an effective approach for reviving such
Qur’anic and prophetic injunctions pertaining to post-divorce financial
support, for the protection of contemporary divorced Muslim women in general,
and in the Western hemisphere in particular.
The predominant scholastic understanding and
prevailing judicial applications in the Muslim world of today indicate that
women are not entitled to any post-divorce financial support (Mut‘at-al-ṭalāq ) and property settlement, or any wealth of their
household that accumulated during the marital course, under the pretext that
these women have already exhausted their shares by being sheltered, clothed,
and fed by their husbands during the period of their marital life. They
conclude by saying that those women are only entitled to three months of
spousal support during their religiously prescribed waiting period, known as
‘iddat al-ṭalāq.
As a former judge of Sharī‘ah courts in Sudan, as a
former resident imam of one of the largest Islamic centers in the U.S., as an
Islamic adjudicator and arbitrator for the Muslim community for more than
twenty years in North America, I have encountered and entertained numerous
cases of this nature. In addition, I have seen the injustices imposed against
divorced women and their suffering due to neglect of the Islamic rules of
post-divorce financial support (Mut‘at-al-ṭalāq). This un-Islamic and inhumane treatment of divorcee Muslim women
triggered my attention and motivated my conscience to address this topic.
Although the Qur’an has addressed this topic in its
several verses and the practical Sunnah confirmed its application during the
lifetime of the Prophet, his companions, and the successors, this subject
matter has become one of the most marginalized and neglected parts of our
Islamic transactional jurisprudence. [1]
Mut’ah is an Arabic term that linguistically, means
enjoyment and happiness as opposed to gloominess, depression, and grief.
Idiomatically, it is the post-divorce financial support, or post-divorce
payment to be made by the divorcer to his divorcee, in an attempt to uplift her
self-esteem and tone down the negative impact of the social humiliation
associated with the term “divorced woman.”
Although this definition reflects the psychological
component of the aftermath of the divorce, it does not inclusively cover the
fact that Mut‘at-al-ṭalāq is first the right of
the divorcee from the accumulated wealth of the household whereof she was part
and a full partner in ownership. In accordance with Islamic Shari’ah,
Mut‘at-al-ṭalāq is one of the three
fixed rights that are due to women beside their owed shares of inheritance: the
dowry at the time of the marriage performance; the maintenance throughout the
course of the marriage; the Mut‘at-al-ṭalāq after the occurrence of the irrevocable divorce [2]; and
their allocated shares of inheritance upon the death of the husband.
Post-Divorce Support (Mut‘at-al-ṭalāq ) in the Holy Qur’an
Mut‘at-al-ṭalāq is profoundly rooted in the divine scripture as clearly illustrated
in the following Qur’anic verses:
There
is no blame on you if you divorce women before consummation or the fixation of
their dowry; but bestow on them Mut‘at-al-ṭalāq , the wealthy according to his means and the poor
according to his means; (such Mut‘at of a reasonable amount is due from those
who wish to do the right thing (i.e.Mut‘at-al-ṭalāq ).
[3]
“And
for divorced women is a suitable Mut‘at. This is a duty on the righteous.” [4]
O,
Prophet, say to your wives: if you desire the life of this world and its
glitter, then come! I will make a provision for you and set you free in a
handsome manner (i.e. divorce you all). [5]
O you
who believe! When you marry believing women and then divorce them before you
touched them, no prescribed waiting period should be imposed on them, but grant
them the Mut‘at and set them free in a handsome manner. [6]
The Commentaries of the Qur’an on Mut‘at-al-ṭalāq
It is remarkable that most of the existing
commentaries of the Qur’an are mostly identical, not only in terms of meaning
and concepts but also on many occasions in the words they use.
Tafsīr of al-Ṭabarī [7]
Al-Imam al-Ṭabarī is among the oldest Qur’anic commentators. In his commentary on
the foregoing Qur’anic verses, he strongly advocated for women’s rights in the
Mut‘at. He sturdily defended his belief that payment of Mut‘at-al-ṭalāq to a divorced woman is an obligation on the
husband by the virtue of the aforementioned Qur’anic verses. And after
reporting different opinions of the jurists on this matter, he said, “I believe
what represents the truth among all of the above jurists’ arguments is the
argument of those who say that post-divorce Mut‘at is mandatory for all
divorced women, because Allah has said: ‘For all divorced women Mut‘at as a
duty on the muttaqīn.”
Al-Ṭabarī was an authoritative jurist, and not passive like many other
jurists who just reiterated what had been reported by others. As an independent
jurist he expressed his viewpoints intellectually, honestly, rationally, and
even sometimes aggressively, refuting the faulty arguments of his opponents. He
was quoted in his Tafsīr as saying:
It is my conviction that post-divorce Mut‘at is an
obligatory payment on the husband who divorced his wife, and he is liable to
pay her Mut‘at-al-ṭalāq just like he is
liable to pay her due dowry, and he will never be exonerated from such
obligation until he pays her or her proxies or heirs, and that Mut‘at-al-ṭalāq is like other debts that are due to her, and the
husband is subject to incarceration and his property can be sold for not paying
his divorced wife her post-divorce due Mut‘at. [8]
Tafsīr al-Qurṭubī
Mohammad b Ahmed al-Ansārī [9] al-Qurṭubī is a well-known commentator of the Holy Qur’an.
His commentary on the Quranic verses in question is among the more instructive
and demonstrates his independent opinion regarding the post-divorce Mut‘at.
Although a Maliki School of Jurisprudence disciple, like other North West
African jurists, his independent conscience enabled him to depart from
prevailing fetters of the Mālikī School with regard to women’s post-divorce
right to Mut‘at. According to Imam Malik, the post-divorce Mut‘at is not
mandatory but rather is just recommendable. Al Qurṭubī did not endorse Imām Mālik in this particular
matter and audaciously declared his dissatisfaction on the point made by Mālik
and other jurists of the Mālikī School.
Al-Qurṭubī quoted Abdullah ibn Omar, ‘Alī ibn Abi Ṭālib, Sa‘īd ibn Jubair’, and other prominent scholars
of the successors who hold that the rule of Mut‘at-al-ṭalāq came in the form of a command and therefore is a
binding rule (wājib), although Mālik, Judge Shuraih, and other
jurists hold it as a non-binding Islamic rule, saying it is just a
recommendable rule. Al-Qurtubī continued to say that the supporters’ argument
is based on the wording of Qur’anic verse as an imperative and binding command
from Allah, while the second party did not deny that the word is a command, but
based its understanding on the recipient of the said command, claiming the
verse addresses the muhsinīn and the muttaqīn only, so it is binding only upon
the muhsinīn (righteous people) and the muttaqīn (pious people of means).
Further, they said that if Mut‘at-al-ṭalāq were a binding Islamic rule, it would have been
imposed on all people, not only on righteous and pious people.
After discussing the above conflicting opinions,
al-Qurṭubī strongly endorsed the
first party’s opinion and determination. He added that the second party’s
argument is indefensible, because the contextual indication and the
understanding thereof show the command of Mut‘at al-ṭalāq referred to the divorcees, and the preposition
letter (lām) in the word (للمطلقات ) is a possessive letter and an indicative element that gives
divorced women an undeniable right to their post-divorce financial shares.
Furthermore, al-Qurṭubī pointed out that muḥsinīn and muttaqīn emphasize and further assure the right of divorced
women to post-divorce Mut‘at, because being a muḥsin and a muttaqī is a duty on all Muslims. He then addressed jurist
opinions on the eligibility of divorced women. He stated that in accordance
with Ibn Abbās, Ibn Omar, Jābir b Zaid, al-Ḥasan, ‘Atā’ ibn Rabāḥ, Ishāq, Imām al-Shāfi‘ī, Imam Ahmed, and opinion adherent jurists,
Mut‘at-al-ṭalāq is mandatory only for
the divorced woman who has been divorced before the consummation of the
marriage and whose dowry was not fixed, and that it is only recommendable for
all other divorcees.[10]
Tafsīr ibn Kathīr
Abū al-Fidā’ Ismail ibn Kathīr, [11] in
addition to what he shares with other commentators, added some considerable
points in his famous Tafsīr. First, he defined Mut‘at-al-talāq by saying that
Mut‘at is something paid by the husband to his divorced wife, according to the
husband’s means, so as to compensate the divorced woman for what she lost
because of the divorce. Then, he quoted Abdullah ibn ‘Abbās who determined the
amount of Mut‘at-al-talāq, saying,
“…If
the husband is wealthy, he should compensate his divorced wife by providing her
with a servant or the like, but if he is of limited resources then he should
provide her with four pieces of clothing.”
He defined the clothing by quoting al-Shābī, one of
the successor jurists, who determined the amount of Mut‘at al-talaaq as “a
vest, a head scarf, a blanket, and a dress.” Note that he made no mention of a
pair of shoes and underwear, which would raise the number of pieces to seven or
eight items. Keep in mind that in our present time women need at least two sets
of each item.
Tafsīr al-Fakhr al-Rāzī
Imām al-Fakhr al-Rāzī [12] is one of the
prominent jurists of his time and he was obviously not in favor of the opinion
of the jurists who believe that the Mut‘at-al-talāq is not an optional matter
but is fittingly mandatory. According to his understanding, both Imām Abū Ḥanīfa and Imam al-Shāfi‘ī support the opinion that
Mut‘at-al-talāq is obligatory on the husband. His comments on verse 2:236 could
summarize his inclination to consider divorced women of three categories:
i.
Women
who are divorced before the fixation of their dowry and before the consummation
of their marriages. For them the Mut‘at is mandatory on their divorcing
husbands.
ii.
Women
who are divorced after the fixation of their dowry and before the consummation
of their marriages. For them there will be no Mut‘at, but they are entitled to
50 percent of the fixed dowry.
iii.
Women
who are divorced after the fixation of their dowries and consummation of their
marriages. For them Mut‘at-al-talāq is mandatory.
Imām al-Rāzī quoted Abdullah ibn Omar as saying that
Mut‘at-al-talāqis prescribed for all divorced women. Al-Rāzī did not hesitate
to support his argument by the same points made by al-Qurtubī, as mentioned
above, then added that the preposition letter ‘Alā in Arabic indicates that the
matter in question is neither optional nor recommendable, but rather is
obligatory. [13]
Tafsīr al-Zamakhsharī
Al-Zamakhsharī [14] is also among the
famous jurists and well-known among Muslim scholars. In his well-accepted book
of Tafsīr known as al-kashāf, he commented on the foregoing Qur’anic verses and
quoted the opinion of Sa‘īd bin Jubair, Abū al-‘Āliyah, and al-Zuhrī, who are
among the jurists who believe that Mut‘at is a mandatory duty to all divorced
women. Al-Zamakhsharī did not endorse their opinion. He, like other commentators,
supports Mālik, who believes that post-divorce support is mandatory only for
women who are divorced before the consummation of the marriage, and is only
recommendable for other divorcees. [15]
Tafsīr al-Manār
Tafsīr al-Manār by al-Shaikh Rashīd Ridā [16]
of the twentieth century discussed and impressively defended the enforcement of
post-divorce support. He supports the scholars who endorsed the eligibility and
the right of divorced women for post-divorce support as a mandatory duty on the
divorcing husband. [17]
The Role of Translation of the Holy Qur’an
There is no doubt that translators of Qur’anic
language have done a tremendous service for people in their understanding of
the meaning of the Qur’an. The translators’ role is to help those who cannot
understand the original language of the Qur’an through which it was revealed.
Translation alone would not convey the exact meaning
of some Qur’anic terms. Therefore, speakers of the Qur'anic language, the
translators of Qur’an, and the end users of the translations should join hands
in helping each other to understand the exact intended meaning of certain
Qur’anic terms and terminologies. This should occur preferably before the final
stage and before the publication of the translation, in order to avoid some
vital terminological mistakes, particularly when the meaning of the word
determines the rights of a human being, in which case the accuracy of the
translation becomes crucially imperative.
For instance, most Qur’anic translators translated the
term Mut‘at as a gift. Some translators have taken this erroneous translation
from the earlier translators and the latter translators continued to quote
them, apparently, out of respect and good faith.
We know there are Five Rules of Islamic Law: halāl
(lawful or permitted); harām (unlawful or not permitted); mundūb (Sunnah) and
makrūh (disapproved but lawful); and mubāh (permissible). According to Islamic
law, “gift” does not fit in the first or the third category. Rather, it is
classified under the last category, mubāḥ. However, Muslim jurists have determined that a gift is not a mandatory
transaction, but rather a social non-binding transaction, unless and until it
is fully acquired by the recipient, when it would take another form of rules.
Moreover, in accordance with the Islamic Sharī’ah Law, a gift has its own
jurisprudential rules that are completely different from that of post-divorce
financial support. [18]
Post-Divorce Financial Support from the Sunnah
Perspective
In accordance with the Prophetic Sunnah, the Prophet
(pbuh) was married to a woman known asUmrah, daughter of Yazīd, son of John,
from the tribe of Kilāb, but due to an uncertain reason the marriage was not
consummated. Upon divorcing her, the Prophet paid her what was due according to
her post-divorce right and sent her back to her family. In this Prophetic
practice, we learn that despite the short time she spent in the Prophet house,
when he pronounced an irrevocable divorce on her, he granted her post-divorce
mut`ah. [19] In another Prophetic narrative, a man from al-Ansār
married a woman from the tribe of Ḥanīf, but divorced her before the consummation of the marriage. The
Prophet commanded him to pay her post-divorce financial support (Mut‘at). [20]
Many of the Prophet’s Companions, including Uthmān ibn ‘Affān, Abdu Rahmān ibn
‘Auf, the judge Shuraiḥ, and Ḥasan ibn ‘Alī ibn Abī Tālib gave mut`ah to their
divorced wives. [21]
Post-Divorce Financial Support from the Perspective of
Muslim Jurists Prelusion
Muslim jurists have two different opinions on
post-divorce financial support. Some jurists say it is mandatory (wājib), in
the first category of Islamic rulings. Some say it is mundūb (recommendable),
in the second category of rulings. However, in terms of practicality, Muslim
jurists did not hold post-divorce support as obligatory. Even those who believe
it is a mandatory command from Allah do not advocate it, much less apply it.
The principle is almost totally ignored, and buried under the prevailing
rubbles of custom.
Ninety percent or more of our revered jurisprudential
resources are either written down or traced back to the second century after
the Hijrah -- more than twelve hundred years ago -- during the time of Imam Abū Ḥanīfah, [22] Imām Mālik, and Imam
al-Shāfi‘ī. [23] Until now in some Muslim countries or in remote
isolated villages, it has been customary that the divorced woman, along with
her children, are returned back to her family home, where they would be
accommodated and financially supported by her extended family.
Imām Abū Ḥanīfah [24]
The Ḥanafī Jurisprudential School is the oldest Sunnī school of fiqh. The
prevailing opinions of its jurists endorse post-divorce support as a mandatory
(wājib) in two cases.
The first was in the case of al-mufāwadah, [25]
when a woman married without fixation of dowry and divorced before the
consummation of the marriage. For her, post-divorce financial support is
mandatory, because it is a substitute of her right to 50 percent of the dower
(mahr). The Qur’an states there is no blame if a man divorces a woman before
consummation or fixation of the dower and bestows on them a suitable gift, the
wealthy according to his means and the poor according to his means. [26]
In the second case of a divorced woman whose mahr was
fixed but who was divorced before the marriage was consummated is stated in the
Qur’an,
“O, you
who believe when you marry believing women and then divorce them before you
have touched them, [there is] no (prescribed) waiting period (‘iddah) upon
them, so bestow on them the post-divorce support and release them in a handsome
manner.” [27]
The Hanafī position is not precisely clear with regard
to divorcee women in other situations. According to the majority of Hanafī
jurists, post-divorce support is just recommendable. [28] This
position drives many Muslim jurists, judges, and common people to treat
post-divorce support as an optional matter.
Imām Mālik ibn Anass
Imam Mālik [29] and the majority of his
disciples say that post-divorce support is not mandatory at all but is instead
recommendable for all divorced women except the ones with fixed dowries and who
were divorced before the consummation of the marriage. Women with a fixed dowry
are not entitled to Mut‘at-al-ṭalāq. [30]
The argument provided by the Mālikī school to justify
the dispensability of post-divorce support is based on the words muhsinīn and
muttaqīn, which say Mut‘at is mandatory only for these two categories of
people.
The best repudiation of the Maliki school position is
that of Imām al-Qurtubī, a Mālikī jurist, who truly represented the Mālikī
school in his reply as we have advanced in this study. However, al-Qurṭubī’s denial of the Mālikī school position faced a
defense in favor of the said position by Imām Shams al-Dīn al-Dusūqī, in his
book Ḥāshyat al-Dusūqī on the
commentary of al-Shaikh Aḥmed al-Dardīr, with
commentary of al-Shaikh ‘Olaish. [31]
Imām al-Shāfi‘ī
Al-Shāfi‘ī’s recent and most publicly publicized
opinion holds that any divorced woman who is not the direct reason for the
divorce is entitled to post-divorce support. [32] Although
al-Shāfi‘ī’s opinion on this matter has been reputed as the most balanced among
the Islamic jurisprudential schools, he did not offer a blank check to all
divorcee women.
He found that divorcee women fall into two categories.
Those who are eligible for post-divorce financial support fall under list A,
below, as opposed to list B.
List A:
-
A woman
divorced without any fault on her part;
-
A woman
whose divorce occurred before fixing her mahr and before the consummation of
the marriage;
-
A woman
divorced via a competent court due to the husband impotence;
-
A woman
divorced due to her husband’s bad attitude or his physical and mental cruelty;
-
A woman
divorced due to husband’s desertion;
-
A woman
divorced due to her husband’s failure to secure the necessary maintenance for
her;
-
A woman
divorced due to `īllāh (that is chronic sickness) or zihār (an ancient Arab
custom, where the husband foreswears any marital relations with his wife,
declaring her to be “like the back of his mother” undertaken against her by her
husband;
List B:
-
A
divorced woman whose dowry was fixed but whose marriage was not consummated;
-
A woman
who demanded a khul‘ a divorce (divorce sought by the wife through a Muslim
judge);
-
A woman
whose marriage was revoked by a competent court due to being accused by her
husband of having an extramarital affair to mulā‘anah;
-
A woman
whose divorce was based on a defect attributed to her
-
A woman
who chose to divorce her husband over maintaining her marriage with him; [33]
Furthermore, like all other human life paradigms,
mutual benefit is the central point of human interactions, which is true even
in the relations between parents and their children as suggested in the Qur’an:
“You know not whether your parents or your children are nearest to you
in benefit.” [34]
As such, marriage in Islam is based on benefit
reciprocity. Spouses should know that a useless person in the family and in the
community could be tolerated only for a limited period before people start to
feel that his very existence has turned burdensome.
However, the husband desires to have children and
enjoy a physical and personal life, but due to chronic illness or the like, the
wife cannot bear children or falls short physically, husbands should not
divorce such wives for this reason. Divorcing a wife due to what is out of her
control is a gross betrayal of the matrimonial bond. For the best interest of
the children and extended family, husbands should remain married.
At the same time, women with such chronic health
disorders should not deprive their husbands of taking another wife. Not doing
so would otherwise furnish a ground for losing their post-divorce financial
support.
Husbands and wives who are undergoing this kind of
trial should apply the wisdom of Sowdah bint Zamah, the wife of the Prophet.
When she grew old she lost her fitness and beauty, and recognized the norm that
Allah created in the nature of men, so she entered into a deal with her husband
to maintain their marriage, and in exchange, she handed over her spousal rights
to ‘Āishah, the youngest wife of the Prophet. Ibn Ḥajar al-‘askalānī said that a Qur’anic verse [35]
was revealed to address such type of family disputes.
“If a
wife fears cruelty or desertion on her husband’s part, there is no blame on
them if they arrange an amicable settlement between themselves, and such
settlement is best, even though men’s’ souls are swayed by greed, but if you do
good and practice self-restraint, Allah is well-acquainted with all that you
do.” [36]
Aḥmed ibn Ḥambal [37]
The Ḥambalī jurisprudential position towards post-divorce support is almost
the same as those of the Ḥanafī and Shafi‘ī schools.
[38] Highlighted the consensus between the three major Islamic
jurisprudential schools as he pointed out the similarities among them. [39]
In his famous Majmū’ Fatawā, Shaikh-ul-Islām Imām ibn Taymyah said that
Abdullah ibn Omar, Imam al-Shāfi‘ī, and Imām Aḥmad ibn Ḥambal all consider
post-divorce support (Mut‘at) to be mandatory for every divorced woman, except
those who were divorced after the fixation of dowry but before consummation of
the marriage. For such divorcees with a fixed dower, no post-divorce support is
required. Abdu-Rahmān al-‘āṣimī al-Najdī al-Ḥambalī.
In contrast, Imam ibn Taymiyah inserted an excellent
point that as the Islamic Sharī’ah considers a marriage contract the reason for
the prerogative of acquiring bridal dowry mahr al nikāh, likewise divorce is
the reason for the prerogative of acquiring post-divorce support Mut‘at-al-ṭalāq. He said that married women whose dower was not
fixed are entitled to a mahr similar to that of her peers based on the marriage
contract, and such prerogative is to be delivered even after the death of the
husband. Then he quoted the case of Brou’ bint Wāshiq, whose husband died
before her dower was fixed, and the Prophet awarded her the mahr of her peers. [40]
After discussing the opponents’ arguments against post-divorce support
(Mut‘at), he reported the other opinion of Imam Ahmad Ibn Hanbal and said that
the accurate opinion reported from Imam Ahmad is what was previously quoted,
which described post-divorce support as mandatory for each divorced woman. [41]
During Ibn Taymiyah’s time, the need for imposing post-divorce
support was less pressing than in our present time. In his time, social
consolidation and extended family accommodations were in full operation. Today,
in many cases, the divorced woman has no place of resort and no financial means
to support herself and her children.
Assessment of Post-Divorce Financial Support
Regrettably, our predecessor jurists left us with a
very limited legacy on the subject of assessment for post-divorce financial
support, and almost nothing on property settlement. Most assessments were
reported from either the Companions of the Prophet, such as Abdullah ibn ‘Abbās
and al-Ḥasan ibn ‘Alī.
Abdullāh ibn ‘Abbās was reported to have assessed the
post-divorce financial support for a woman who was married to a wealthy man,
stating that she is entitled to a slave man or woman, and that a woman who was
married to a man of limited income is entitled to three or four pieces of
clothing.
Dr. Wahbah al-Zuhaylī, a prominent contemporary Muslim
jurist, reported all the opinions of highly regarded Muslim jurists on the
matter of post-divorce financial support, in his famous book al-fiqh al Islāmī
wa adillatuhu.
According to Dr. al-Zuḥaylī, post-divorce financial support is based on financial and social
status of the couple, as in the prevailing jurist opinion (fatwa) on this
matter that purports if the couple is from a wealthy and highly regarded class,
the divorcee shall be entitled to more than clothing; i.e. she shall be granted
a servant (slave), but if the couple is of low social class and limited income,
then the divorcee shall be entitled to three to four pieces of clothing, and if
the couple is from different social backgrounds, the divorcee shall be granted
the average between the two.
In his conclusion, Dr. Zuhaylī seems to support the
opinion of Imam Abū Ḥanīfa, Imam Mālik, and
Imām Shāfi‘ī with regard to the assessment of post-divorce financial support.
He states that the assessment of the financial support should depend on the
discretion of the trial judge. He also hinted that there should be no ceiling
for post-divorce financial support because of the absoluteness in the Qur’an. [42]
The strongest evidence on the assessment of
post-divorce financial support is the hadīth of Abdullah ibn ‘Abbās, which
determines that the highest type of post-divorce support is to give the
divorcee a servant, the second to provide her with sustenance, and the lowest
to clothe her. [43]
Assessment of post-divorce financial support made
during the time of Ibn Abbas in cash or in kind would not necessarily suit our
present time because we do not own slaves or process our transactions in
dirhams and dinārs as during the lifetime of the Prophet, his companions, and
successors. However, comparing the living costs in both eras would provide us
with a standardized criterion on which we could process the assessment, which
would enable us to determine the satisfactory amount of post-divorce financial
support that should be paid by the economically more fortunate husband
vis-à-vis the less fortunate one.
In addition to using Ibn Abbās hadīth as supportive
evidence, Ibn Kathīr made two important points that represent an important
breakthrough in determining post-divorce financial support in kind and in cash,
taking into consideration that Ibn Kathīr lived in the seventh century after
the Hijrah -- 656 years ago -- when owning a servant was tantamount to owning a
house in our time. Therefore, if Ibn Kathīr believes that a divorced woman
whose husband is wealthy is entitled to a servant who would serve her and her
dependents for the rest of her life and be inherited by her children after her
death, then we can easily deduce that in our modern time a divorced woman whose
husband is wealthy should be entitled to no less than a house to shelter her
and her dependents for the rest of her life and be inherited by her children
after her death. [44]
In the process of determining the financial support,
one should not ignore the financial contribution of the divorced woman to the
household and her contribution into the accumulated assets during the marital
course. Women’s financial contributions to the household expenditures should be
taken into consideration, besides their help in the husband's business, their
care for the husband and the parties’ children, household work such as
cleaning, cooking, laundry, and dish washing, et cetera.
The prevailing western socio-economical life style,
which includes Muslim communities as part of the American structural fabric, is
based on family cooperation among the adult members in the household. Often,
both husband and wife work from nine to five. In some cases, one or both of
them may have more than one job and usually a joint bank account. Therefore,
they share the expenses of life and equally enjoy the surplus of their
earnings. If their marital life ends for any reason, all the real and personal
assets, in principle, shall be subjected to a communal division.
This status quo, in principle, disturbs some Islamic
Sharī‘ah rules, including, but not limited to, the principles of financial
independence of the spouses, the Islamic rules of inheritance (whereas the
share of the wife is only one fourth or one eighth in case of the presence of a
child), the rules of guardianship (al-qiwāmah), and eventually, the rule of
one-sided spousal support.
Post-Divorce Financial Support: Reflections through
Case Study
We will now present some case study samples on issues
related to post-divorce financial support and property settlement in Muslim
communities in North America to illustrate the serious problems facing Muslim
families in the West, and to support the most viable solution based on the
Qur’an and Sunnah, both of which call for adherence to fairness and justice.
The following two cases have been widely publicized among Muslims in America
and in American media: a Muslim family case in Detroit, Michigan, adjudicated by
the Sharī’ah Scholar Association of North America (SSANA), and a Muslim family
case in Bethesda, Maryland, adjudicated by a courthouse in the State of
Maryland.
Case Study #1
The couple was married overseas and then migrated to
the United States, where they lived and raised their children. Both husband and
wife were medical doctors. They accumulated large wealth in cash and real
estate, worth millions.
After some time, the husband proposed that his wife
should quit practicing as a physician and stay home, to care for him and their
children. She accepted the proposal and quit. Some years later, the husband
wanted to divorce her for personal reasons. Once she learned his intention, she
was disturbed but wanted to secure physical custody of the parties’ minor
children and some post-divorce financial support. She thought about hiring a
lawyer to help her in court, but the husband convinced her that resorting to
American courts is against the Islamic Sharī’ah. He told her that an
alternative to the court would adjudicate the matter in accordance with the
Islamic Sharī‘ah in a way that would satisfy both of them. The parties
willingly appeared before the Sharī‘ah Scholars Association of North America
(SSANA) for an Islamic arbitration. The couple signed a prepared binding
arbitration agreement.
The arbitration panel conducted all prerequisite legal
procedures, including family history, the husband’s abusive attitude, annual
business income, the best interest of the children, and so forth. The panel
found the husband guilty of the following:
-
Being
an abusive husband to his wife and children;
-
Planning
to inflect a despotic divorce against the wife for no justification other than
her age;
-
Deceiving
his wife to accept an Islamic Sharī‘ah law that would entitle her to three
months of post-divorce support, known as the ‘iddah period.
The panel rendered its judgment as follows:
-
The
wife will be granted an Islamic divorce effective the date of the judgment;
-
The
wife will be granted one million dollars in cash from the husband’s accumulated
assets for her post-divorce financial support, including her ‘iddah period
expenses;
-
The
wife will be granted one of the two mansions with all furniture therein;
-
The
wife will be granted the physical custody of the minor children;
-
The
wife will be granted child support on a monthly basis.
Upon reading the verdict, the husband crumpled the
paper before the panel, saying, “This is trash, this is not Islam.” He
immediately called me and asked for my intervention, as I was the chairman of
the Islamic Judiciary Council of SSANA. I advised him to settle the case with
his wife outside the court through reconciliation, to facilitate my
intervention. He rejected the idea and hired two lawyers to fight the case
before the state court. He lost the case in Detroit and he asked his lawyers to
appeal the verdict. While his lawyers pursued a lawsuit against SSANA’s
judgment and against his wife, he went to Al-Azhar in Egypt and to Saudi Arabia
to get a fatwa against the verdict, but failed.
I do not know what answers he got from Muslim scholars
in Egypt and Saudi Arabia, but he lost the case before the state courts, as the
trial court upheld our arbitrational judgment. The plaintiff’s lawyers filed at
the special Appellate Court of Michigan, but I assume the lawyers advised him
of the likelihood that the Appellate Court will uphold the Islamic arbitration
ruling.
Therefore, before the appellate court decided on the
case, the plaintiff called me again requesting review of the verdict. I just
reiterated the same recommendation as before. He did accept it this time, and
it did work for him.
Case Study #2
This case was widely publicized by the American media
in June 2008. It is a family law case where both parties are Muslims from
Pakistan. The case is one example out of an increasing number of cases of the
same prototype in the Muslim community across the United States. I entertained
some cases of this nature while I was a Sharī’ah court judge in Sudan, as well
as here in the United States, as an Islamic arbitrator, and have similar
despotic divorce cases pending on my desk.
The players in these cases are Muslim immigrants from
various Muslim countries and they are of different socio-economic levels and
cultural backgrounds. The common factors among them are the following:
-
Evasion
of post-divorce financial support and property settlement prescribed by the
Qur’an and Sunnah in favor of their divorced wives;
-
Invocation
of family law from back home, erroneously labeling it Sharī‘ah law, while
everybody knows the motive behind their attempts to revoke the marriage at home
– rather than here in the US - is to save them money, satisfy their self-image
and to deprive their divorcees their due rights unjustly;
-
Revengeful
husbands against their wives and minor children who are the most vulnerable
victims of these despotic divorces, where we find husbands divorcing their
wives at their country’s consulate office, or by sending them home to the
country of their origin via a one way ticket, then a few weeks later sending
them a letter of divorce, after blocking their access to visas so as not to
find a way back to the U.S. anymore.
The parties married in 1980 in the city of Karachi,
Pakistan. Shortly after their marriage, the husband moved to England. The wife
joined him later. They resided there for four years while he completed his
studies. They then moved to the United States and began to reside in Maryland
while the husband worked at the World Bank. They maintained a residence here
for twenty years. The wife filed for divorce here and the husband went to the
Pakistan Embassy and performed ṭalāq. The parties have two children, both of whom were born in this
country and reside in this country. The wife is now a resident of Maryland, and
holds a green card status.
According to the Washington Post, the court of
Maryland declined to “afford comity” to the Pakistani divorce. The alleged
Pakistani marriage contract and the Pakistani statutes addressing the division
of property upon divorce conflicted with Maryland’s public policy and the
Maryland courts will not afford comity to such contracts and foreign statutes.
From the Post:
Faraḥ ‘Alīm filed case suit for a limited divorce from her husband, Irfān
‘Alīm in the Circuit Court for Montgomery County. The husband thereafter filed
an answer and counterclaim, raising no jurisdictional objections. Without,
however, any advance notification to the wife, and while the Montgomery County
action was pending (between the filing of the action for a limited divorce and
the filing of the amended complaint for an absolute divorce), the husband, a
Muslim and a national of Pakistan, went to the Pakistan Embassy in Washington,
D.C., and performed divorce (ṭalāq) by executing a written document that stated:
“Now
this deed witnesses that I the said Irfān ‘Alīm, do hereby divorce Faraḥ ‘Alīm,
daughter of Mahmūd Mirza, by pronouncing upon her divorce/ṭalāq
three times irrevocably and by severing all connection of husband and wife with
her forever and for good.”
The petitioner posited that the performance by him of ṭalāq under Islamic religious law and under secular
Pakistan law, and the existence of a “marriage contract” deprived the Circuit
Court for Montgomery County of jurisdiction to litigate the division of the
parties’ marital property situation in this country. The trial court found that
the marriage contract entered into on the day of the parties’ marriage in
Pakistan specifically did not provide for the division of marital property and
thus, for that reason alone, the agreement did not prohibit the Circuit Court
for Montgomery County from dividing the parties’ marital property under
Maryland law.
The court of Special Appeals agreed “thus, the
Pakistani marriage contract in the instant matter is not to be equated with a
premarital or post-marital agreement that validly relinquished, under Maryland
law, rights in marital property” (‘Alīm v ‘Alīm, 175 Md. App. 663,
681,.931 A.2d 1123, 1134 (2007).
The court of Special Appeals further stated:
If the Pakistani marriage contract is silent, Pakistani law does not
recognize marital property. If a premarital or post-marital agreement in
Maryland is silent with respect to marital property, those rights are
recognized by Maryland law. . . . In other words, the ‘default’ under Pakistani
law is that Wife has no rights to property titled in Husband’s name, while the
‘default’ under Maryland law is that the wife has marital property rights in
property titled in the husband’s name. We hold that this conflict is so
substantial that applying Pakistani law in the instant matter would be contrary
to Maryland public policy (Id.At 681, 931 A.2d at 1134).
The “marital property” as it would be defined under
Maryland law included the husband’s pension from World Bank valued at
approximately 1,000,000, real property valued at $850,000, personal property
valued at approximately $80,000, and two or more vehicles. The primary property
focus in the present case is the petitioner’s pension, which is titled only in
the husband’s name. This stark discrepancy highlights the difference in the
public policies of this state and the public policies of Islamic law, in the
form adopted as the civil and secular law of countries such as Pakistan.
Under Pakistani law, unless the agreement provides
otherwise, upon divorce all property owned by the husband on the date of the
divorce remains his property and “the wife has [no] claim thereto.” The
opposite is also applicable. The husband has no claim on the property of the
wife. In other words, upon the dissolution of the marriage, the property
follows the possessor of its title.
The central issue in the present case concerns the
wife’s attempt to have the husband’s pension from the World Bank, which relates
primarily to his work performed while he was a resident of this country,
declared to be “marital property”, and to have other property declared marital
property and thus be entitled to half of that pension and property under
Maryland law.
“Comity,” in the legal sense, is neither a matter of
absolute obligation nor of mere courtesy and good will, but is the recognition
one nation allows within its territory to the legislative, executive, or
judicial acts of another nation, due both to international duty and
convenience, and to the rights of its own citizens, or of other persons who are
under the protection of its laws. A judgment affecting the status of persons,
such as a decree confirming or dissolving a marriage, is recognized as valid in
every country, unless contrary to the policy of its own law.
The court found the ṭalāq divorce of countries applying Islamic law, unless substantially
modified, was contrary to the state’s public policy. The court declined to give
ṭalāq, as presented in this
case, any comity. The court found further that Pakistani statutes providing
that property owned by the parties to a marriage follows title upon the
dissolution of the marriage unless there are agreements otherwise, conflicted
with state laws where, in the absence of valid agreements otherwise or in the
absence of waiver, marital property is subject to fair and equitable division.
Thus, the Pakistani statutes were found wholly in conflict with state public
policy as expressed in its statutes, and the court afforded no comity to those
Pakistani statutes.
Additionally, the husband was found to confer
insufficient due process to his wife, by evading a divorce action begun in the
state by rushing to the embassy of a country recognizing ṭalāq and, without prior notice to the wife, performing
“I divorce thee…” three times and thus summarily terminating the marriage and
depriving his wife of marital property. Accordingly, for this additional
reason, the courts of Maryland did not recognize the ṭalāq divorce performed.
Conclusion: Urgent Call to Muslim Jurists
Muslim jurists should take a proactive role in
reviving the application of post-divorce support (Mut‘at-al-ṭalāq) as it has been clearly decided by the Qur’an and
the Sunnah. There are numerous reasons for reinforcing the application of
post-divorce support, in our modern time. Below are some reasons:
-
It is a
command of Allah as reported in number of verses in the Holy Scripture;
-
It has
been supported and illustrated by the prophetic tradition, the companions of the
Prophet, and the successors;
-
It is a
manifestation of the Islamic profoundly rooted principle of justice and
fairness for all in general and towards women in particular;
-
It is
for the best interest of the minor children who are the first victims of many
arbitrary subjective divorces;
-
It
serves as a means to deter harm of all kinds that would befall divorced women
who are now crying out for help, but receiving none;
-
Finally
it is an implementation of the Prophetic recommendation (waṣiyah) to his Ummah on the Day of ‘Arafah during his
Ceremonial Declaration known as the farewell Pilgrimage Sermon. [45]
Beside all of the above, Muslim jurists should
consider the growing trend of the married women who are working full-time
outside the household by the consent of their husbands, while caring for the
household, the parties’ children, and for their husbands. If men are usually
working for eight to ten hours a day, those women work sixteen to twenty hours
a day.
According to ongoing practices in Muslim communities,
in case of the occurrence of divorce all properties and accumulated assist go
to the husband. Is it fair to deprive these women from their Islamically - prescribed
post-divorce support and financial settlement?
In another episode when a Muslim woman gives up her
schooling or her secured profession and career in order to get married and
serve the husband and the household and raise the parties’ children, or if a
woman worked years and years in her husband’s business then eventually got
divorced, is it an equitable act to kick her out of the house and the business
and leave her with no post-divorce financial support and property settlement?
Due to the need to answer the above questions and
more, Muslim jurists are called upon to heed this eminent emerging challenge to
the fundamental principles of the Sharī’ah law on one hand and the application
of justice and fairness on the other.
Bibliography
· Abdel Karīm
Shabūn, Sharḥ Mudawwanah al-Ahwāl al-Shakhsyah al-Maghribiyah,
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Muḥammad b. Jarīr , Jāmi‘ al-bayān ‘an ta’wīl āy al-Qur’ān , taḥqīq Aḥmad
shākir, vol.2 (Mu’assassat al-Risālah:2000)
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al-jāmi‘ li aḥkām al-Qur’ān,
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al-Rāzī, Tafsīr al-Kabīr ,vol.5 (Dar-al-Fikr: 1995)
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· Sahīh al
Bukhārī, Book of Marriage, vol.9
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Qāsim al-‘Asimī, Ḥāshyat al-Rawdh al-Murbi‘, Sharḥ Zād
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Abū al-Fidā’, Tafsīr al-Qur’ān al-‘aẓīm 2nd edition (Dār Ṭaibah: 1999)
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al-dīn Abī Zakariyah Yaḥya ibn
Sharaf al-Nawawī Al-Dimashqī Minhāj al–Ṭālibīn: A Manual of Muḥammadan
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Footnotes
[1] In a brief research paper, in the year
2003, I partially discussed this matter with one of our contemporary scholars
of jurisprudence. Some of those scholars do agree with me, but nonetheless were
hesitant to speak out against what they called the common understanding of the
Muslim jurists for centuries, so they opted to distance themselves from such an
audacious pace, while other scholar friends manipulated to attribute the
initiative for themselves.
[2] Abdel Karīm Shabūn, Sharh Mudawwanah
al-Ahwāl al-Shakhsyah al-Maghribiyah, vol.1. (Rabat, Morocco: Maktabat
al-Ma’ārif: nd)
[3] (2:236).
[4] (2:241).
[5] (33:28).
[6] (33:49).
[7] Abū
Ja’far Mohammad b. Jarīr al-Ṭabarī, d. 310 H.
[8] Al-Ṭabarī
Mohammad b. Jarīr, Jāmi‘ al-bayān ‘an ta’wīl āy al-Qur’an, Taḥqīq Aḥmad
Shākir, vol.2 (Mu’assassat al-Risālah:2000), pp.80-82.
[9] Muḥammad. b. Aḥmed al-Ansārī al-Qurṭubī, d.
671 AH.
[10] Al-Qurṭubī,
al-jāmi ‘ li aḥkām al-Qur’an,
vol.3, 3rd ed. (Dār-al-Kitāb al-‘Arabī: 1999), pp.200-201.
[11] Abū al Fidā’ Ismā‘īl ibn Kathīr, d. 774 AH.
[12] Al-Fakhr al-Rāzī 544-604 AH.
[13]
Al-Rāzī, Tafsīr al-Kabīr ,vol.5 (Dar-al-Fikr: 1995), pp.150-151.
[14] Al-Zamakhsharī 467-538 AH.
[15] Al-Zamakhsharī, Al-Kashāf ‘an haqā’iq
al-tanzīl wa ‘uyūn al-aqāwīl fī wujūh al-ta’wīl , vol.1 (Dar-al-fikr: nd),
p.337.
[16] Rashīd Ridhā was a Syrian-Egyptian jurist
(1865-1935).
[17] Ridhā Tafsīr al-Manār, ,vol.2 (Dar
ul-Fikr:1947), pp.430-431.
[18] See translation of (2:236) in Abdullah
Yūsuf Ali’s and King Fahad’s translations, among others.
[19] Ibn Seyyed al Nāss, ‘Uyūn al-āthār fī funūn
al-maghāzī wa al-shām’il wa al-ssiyar , vol.1, p.389.
[20] Ibid.
[21] See al-Qurṭubī,
al-Jāmi‘ li ahkām al-Qur’an, vol.3,
pp.201-203.
[22] Imām Abū Ḥanīfah, d. 150 AH.
[23] Imām al-Shāfi ‘ī, born inthe day Imām Abū Ḥanīfah
passed away.
[24] Imām Abū Ḥanīfah (al-N’umān ibn Thābit), 80--148 or 150 AH.
[25] See al-mausū‘ah al-Fiqhyah, (Kuwaiti
Ministry of Endowment: nd), vol.36, pp.94-95.
[26] (2:236).
[27] (33:49).
[28] Shams al-Din al-Sarkhasī, al Mabsūt, vol.5
(Beirut: Dar al-Ma’arif: 1331 H), p.62.
[29] Imām Mālik ibn Anās, 93-179 AH.
[30] Al-Qurṭubī, al-Jāmi‘
li Ahkām al-Qur’an, vol.3, p.200.
[31] Ḥāshyat al-Dusūqī ‘Alā al Sharḥ
al-Kabīr, vol 2. (Dar Ihyā al-kutub al-Arabiyah), , p.425.
[32] His position onpost-divorce financial
support was summarized in Mudawwanah al Aḥwaal al-Shakhsiyah al Maghribiyah.
[33] See Abdel Karīm Shahbūn, Mudwwanat al-Ahwaal
al-Shukhsyah, vol.1, pp.249-250.
[34] (4:11).
[35] See (4:128).
[36] See Sahīh al Bukhārī, Book of Marriage, vol.9,
p.312.
[37] Imam Ahmed, 164--241 AH.
[38] See al-Mausou ‘ah al-Fiqhiyyah, vol.36, p.94 .
[39] Abd al-Raḥmān bin Qāsim al-‘Asimī, Ḥāshyat
al-Rawdh al-Murbi’, Sharh Zād al-Mustaqni’, vol.6, 4th printing, p.393.
[40] See the collection of Ibn Taymyah, Fatāwā,
vol.32, p.27; and Shams-al-Dīn al-Sarkhasī, Al-Mabsūt, vol.5 (Beirut: Dar
al-M’arifah), p.61-63.
[41] See the above reference, and for Imam
Aḥmad’s other opinion see Nashwah al-Waany, Mausou’at Ahkam al-Marah
al-Muslimah, vol.2 (Damascus, Syria: Dar-al-Maktaby, 2002), p.837.
[42] See Wahbah al Zuḥaylī,
al-Fiqh al-Islāmī wa Adillatuhu, vol.7 (Damascus, Syria: Dar-al-Fikr: nd),
pp.320-321.
[43] Ibid, p.321.
[44] Ibn Kathīr Abū al-Fidā’, tafsīr
al-Qur’ān al-‘aẓīm vol.1 (Dar al-Faiḥā’ Library), p.387.
[45] Imām Muḥyi
al-dīn Abī Zakariyah Yaḥya ibn
Sharaf al-Nawawī Al-Dimashqī Minhāj al–Ṭālibīn: A Manual of Muḥammadan
Law According to the School of Shāfi'ī., Translated by E. C. Howard from the
French translation of L. W. C. Van Den Berg. London: W. Thacker & Co., 1914
