SIRI PERTAMA
Keputusan
Mahkamah Agung Bangladesh: makna dan maksud Mut’ah.
Keputusan Mahkamah
Agung Bangladesh dalam kes Hefzur Rahman telah memberikan ulasan akan: makna dan maksud Mut’ah serta
perbezaannya dengan makna / maksud nafkah.
Keputusan Mahkamah
Bangladesh ini juga menafikan pandangan bahawa pandangan para ulama’ fiqh
terdahulu terjejas dengan pandangan baru masakini. Dengan lain perkataan
pandangan para ulama’ terdahulu masih relevan dan diterima pakai di Bangladesh
sehingga kini.
Anisur Rahman seorang Pensyarah Jabatan Undang-Undang
di Stamford University Bangladesh, Dhaka dalam artikalnya yang bertajuk ‘DEVELOPMENT
OF MUSLIM FAMILY LAW IN BANGLADESH: EMPOWERMENT OR STREAMLINING OF WOMEN?’ membuat
rumusan berikut:
Concluding remarks
Is reform possible within Islamic law? It appears from the above
discussion that though our (Bangladesh) judiciary has put forward a host of new
principles at different times, traditional principles of classical Muslim law
remain somewhat untouched. It is praiseworthy that our judiciary has explored
traditional Muslim law significantly. Sometimes they have come up with the
social welfare doctrine or the doctrine of equality before law to enrich Muslim
family law. But this initiative from the judiciary has been noticed only where
there is no theological interpretation of the Quran or Sunnah or
where there is no consensus among the traditional Muslim jurists.
Interestingly, though our courts have come up with new principles in
order to foster empowerment of women, they have hardly been sympathetic towards
the economic empowerment of women. Where economic empowerment is the
fundamental issue i.e. maintenance, guardianship, etc., our courts have taken
recourse to the orthodox approach of interpretation of Muslim
law. Though there have been a few efforts to rule out the orthodox
interpretation of Muslim law, all efforts have gone in vain.
The classic example would be Hefzur Rahman’s case.[99] In
this case in view of the social reality of Bangladesh it was held by the High
Court Division that a husband is responsible to pay maintenance, after divorce,
until the re-marriage or death of the wife.
The Court took recourse to a decision of the Lahore High Court to argue
that ‘if the interpretation of the Holy Quran by
the commentators who lived thirteen or twelve hundred years ago is considered
as the last word on the subject, then the whole Islamic society will be shut up
in an iron cage.’[100]
However, this bold decision of the High Court Division was overruled by
the Appellate Division later. The Appellate Division is of the opinion that “Quran should
not be interrelated with manmade techniques. The verse should not be understood
in isolation and with little knowledge (emphasis mine). Rather
it should be interpreted or understood with the teaching and practices of the
Prophet and subsequently by enunciation of the Islamic jurists and scholars.”[101]
Finally, the orthodox interpretation triumphs over the modern
understanding of Muslim law.
Footnotes:
Mahkamah Agung
Bangladesh dalam kes Hefzur Rahman v Shamsun
Nahar and another yang dirujuk
diatas telah membuat keputusan secara panjang lebar mengenai makna dan maksud
Mut’ah. Kelima-lima Hakim dalam kes tersebut sebulat suara telah menerima
rayuan Perayu.
Berikut ialah
petikan kata Hakim-Hakim Mahkamah Agung Bangladesh dalam kes Hefzur Rahman v Shamsun Nahar and another yang tersebut mengenai makna Mut’ah:
(i)
Muslim Law - Divorce and Maintenance - Meaning of ‘Mataa’
Per
A.T.M. Afzal CJ:
Mataa is something to which a divorced
woman is entitled and which the former husband is under an obligation to pay
seems to follow naturally from the Ayat (241, Sura Bakara) itself. But the
whole question is whether Mataa can be equated with maintenance as has been
done by the High Court Division. We shall see whatever be the meaning of
Mataa it is certainly not maintenance as can be claimed within the meaning
of the Family Court Ordinance. It is clear that the interpretation given by the
learned Judges is not and cannot be acceptable because it brings conflict and
even on the general criterion of interpretation as they also would not deny
that a document should be read as a whole, interpretation of the learned Judge
should be rejected ……………………. (35 & 48)
Per Mustafa
Kamal J:
Under the strict interpretation of the
word Mata’a all that can be given is three pieces of cloth sufficient for a
divorced woman to pray. The maximum that can be given is half of the dower
money fixed. But, of course, instances have been provided to us that Hazrat
Hasan Bin Ali (R) gave his divorced wife 10,000 Dirhams in those days. It is
our understanding that the Holy Quran has left the quantum of mata’a to the
Godliness, sense of justice, equity and fairness on the part of the husband,
since it is a voluntary payment. The liberal view (Tafsir Ibne Kasir, a
disciple of Imam Shafi) is that the presentation of a suitable gift is
obligatory in the case of all divorced women and not merely in the case of
women referred to in Ayat 236 of Sura Al-Baqarah (2). In any view of the matter
mata’a is a voluntary gift payable by the righteous. A righteous man will
please Allah and if righteous men give voluntary gift to all kinds of divorced
women it is for Allah to consider whether they have acted righteously or not.
Righteousness and mata’a go hand in hand ……………………………… (154 & 155)
Per
Latifur Rahman J:
Inner meaning of “Mattaa” has not been
correctly derived from any Arabic dictionary and rightly appreciated by the
learned Judges who wrongly arrived at the conclusion that in the context of
Verse No. 241 of Surah Baquara it means maintenance. Whereas it is not
maintenance at all in Arabic meaning. The learned Judges of the High Court
Division did not give any attention to the real translation of the two Arabic
words “Mattaa” and “Nafaqa” and wrongly held that a divorced woman is entitled
to maintenance till she remarries. The term ‘Mattaa’ means certain benefits,
privileges and gifts in any form by whatsoever name you call it, is
incumbent on the ‘righteous’ as enjoined by Allah in the Holy Quran. ‘Mattaa’
is given once at a time at the time of divorce ……………………………… (163 & 164)
Berikut pula
ialah keputusan material kesemua Hakim kes tersebut.
Di maklumkan
disini bahawa oleh kerana keputusan YAA ATM Afzal CJ adalah panjang maka
alasan keputusan beliau (setakat yang berkenaan dengan isu Mut’ah) saya akan
berikan didalam siri kedua (2) pula.
Sehubungan
dengan itu juga keputusan dan alasan penghakiman YA Mustafa Kamal J pula
akan berada di dalam siri ketiga (3) pula.
Dalam siri satu
(1) ini keputusan dan alasan keputusan YA Hakim-Hakim Latifur
Rahman J; Md. Abdur
Rouf J; dan Bimalendu Bikash Roy Choudhury J sahaja
yang saya perturunkan [setakat yang berkenaan].
#######################
 |
Hefzur Rahman (Md) v Shamsun
Nahar Begum and another 51 DLR (AD) (1999) 172 Supreme
Court Appellate Division (Civil)
JUSTICES:
ATM Afzal CJ; Mustafa Kamal J; Latifur Rahman J; Md. Abdur Rouf J; Bimalendu
Bikash Roy Choudhury J
Judgment :
December 3, 1998.
Judgment of Latifur Rahman J:
I am
adding few lines in support of the main Judgment. The judgment of the High
Court Division is devoid of any justifiable reasons, based on no sources of
Islamic Law, such as, the Holy Qur-án, Sunnah, Ijma and Qiyas and is also
against the pronounced opinion propounded by the Muslim jurists of great
antiquity and high authority for the last fourteen hundred years.
160. The
broad question that comes up for consideration in this appeal preferred by the
former husband-appellant is, whether a person after divorcing his wife in bound
to maintain her on a reasonable scale beyond the period of Iddat for an
indefinite period, namely, till she loses the status of a divorcee by
remarrying another person.
161. The
family court granted maintenance to the divorced wife for the period of Iddat,
namely, three months at the rate of Taka 1000.00 per month. On appeal, the
maintenance during the period of iddat of three months was maintained. In
revision, the sigh Court Division, of course, awarded maintenance to the
divorced wife till remarriage.
162.
Before the High Court Division no one appeared on behalf of the present
appellant to support the Rule. Even the divorced-respondent accepted the
maintenance during the period of Iddat. After hearing the learned Advocate of
the respondent, the learned Judge suo-moto took up the question whether the
divorced wife could claim maintenance beyond the period of Iddat. At the first
place, this exercise of such an important matter should not have been made at
all by the Judges, as there was no argument on this point by any of the
parties. Secondly, such an important matter should not have been considered by
the learned Judges themselves to the prejudice of a party without any notice to
the parties and being unaided by any help from any amicus curaie or from any authority on Islamic
law. It seems that the learned Judges of the High Court Division primarily
accepted the English version of the translation of verse No.241 of Surah
Baquara of Abdullah Yusuf Ali. Abdullah Yousuf Ali translated the meaning of
“Mataaon bil-maroff” in verse No. 241 of Surah Baquara as ‘maintenance should
be provided on a reasonable scale”. It appears that for arriving at a
conclusion that a divorced woman is entitled to maintenance beyond the period
of Iddat for an indefinite period till she remarries neither any Quranic
injunction nor any guidance from the last fourteen hundred years by Muslim
Jurists was sought for other than adopting the English translation of Abdullah
Yousuf Ali. This exercise of such an important matter which touches at the
fundamentals of Islamic law ought to have been considered in the light of
Quranic injunctions and other sources of Islamic law.
163. The
basic source of Islamic law is the Holy Qur-án, the divine book revealed to the
Holy Prophet. The other sources are “Sunnah” which means the practice and the
precedents of the Holy Prophet. As a source of law hadis is as binding as the
principles of the Holy Qur-an. Ijma as a source of law has been established by
agreement and consensus amongst highly qualified Muslim Scholars of antiquity.
Qiyas is the last source of Islamic Law. This is reasoning by analogy. In
comparison with other three sources of Islamic Law it is less important. If
there is no guideline from the Holy Qur-an then one depends upon the usage of
the Prophet. If that also fails, then one should follow Ijma and finally his
own reasons. It is very surprising that in the judgment of the High Court
Division none of the sources of Islamic Law was taken note of, but a literal
translation was adopted of verse No 241 of Surah Baqara only and on that basis
such a great issue of Islamic Law which governed the field for the last
fourteen hundred years was discarded. It is really strange that the learned
Judges even did not care to take note of correct translation of the Arabic
phraseology from any recognized Arabic dictionary. Abdullah Yousuf Au
translated the word “Mattaa” which appears in the Holy Qur-án, Verse 241 as
“Maintenance”, whereas the usual word for maintenance is “Nafaqa”. Famous
Arabic dictionary such as, ‘Al Manjid’ and ‘Al-Magrib’ had translated “Mattaa”
as wearing clothes (minimum one set) house-hold stuffs, small capital and
ordinary goods given to women after divorce. Thus, it appears that inner meaning
of “Mattaa” has not been correctly derived from any Arabic dictionary and
rightly appreciated by the learned Judges who wrongly arrived at the conclusion
that in the context of Verse No 241 of Surah Baquara it means maintenance.
Whereas it is not maintenance at all in Arabic meaning. The learned Judges of
the High Court Division did not give any attention to the real translation of
the two Arabic words “Mattaa” and “Nafaqa” and wrongly held that a divorced
woman is entitled to maintenance till she remarries. The Bengali translation of
verse Nos 241 and 242 of Surah Baquara and translated by King Fahad Quranic
Publishing Project, Medina, reads as follows:
“Aar talakprapto narider jonno
procholito niom onujai khoroch deya pohezgarder upor kortobbo. Eibhabei
Allahta’la tomader jonno shio nirdesh bornona koren jehetu tomra ta bujhte
paro.”
These
verses as quoted above only reflect that Allah has given direction to righteous
people and this has nothing to do with the maintenance of a divorced wife during
the period of Iddat.
164. In
verse No.241 of Surah Baquara, the word ‘mutakkalat’ is very significant which
indicates “soddo talakprapta mohilara”. Reading Verse 241 along with the
preceding Verses of Surah Baquara, I understand of giving “Mattaa” to a
divorced woman who has been divorced immediately/recently and this has got
nothing to do with the divorced woman whose period of Iddat has not yet been
over. As I understand the term ‘Mattaa’ from Arabic translation, it means
certain benefits, privileges and gifts in any form by whatsoever name you call
it incumbent on the ‘righteous’ as enjoined by Allah in the Holy Qur-án.
‘Mattaa’ is given once at a time at the time of divorce.
165. The
learned Judges of the High Court Division who are Muslims discarded the
decision of the Privy Council in the case of Aga Mohammed Jaffar Bindanim vs
Koolsoom Beebee, ILR 25 Calcutta-449 on the ground, inter alia, that the
learned Judges were non-Muslims; that Article 8(1A) of the Constitution of
Bangladesh speaks of absolute trust and faith in Almighty Allah which shall be
the basis of all actions and that Second Surah Baquara, Verse 121 indicates
continuous study of the Qur-an which is in conformity with the dynamic,
progressive and universal character of Islam. It is indeed surprising and
shocking to note that the Muslim Judges of today deviated and in reality failed
to understand and locate the sources of Muslim Law and gave a wrong
interpretation of maintenance of a divorced woman according to their whims and
caprice without following any pronouncements of Muslim scholars of the past. As
a matter of fact, in the Privy Council decision the British Judges decided the
law on the basis of the pronouncements made by the Muslim Jurists whereas the
Muslim Judges of today gave their independent opinion by disregarding the
Muslim Jurists of the past. This judgment i wholly untenable in accordance with
the established principles of Muslim law. Thus, it appears that the reasonings
on which the dictum of the Privy Council was discarded are fallacious. The
Judgment of the High Court Division is full of contradictions and anomalies as
the learned Judges in one breath said that no one knows the hidden meaning of
the revealed book except Allah and at the same time they understood the inner
meaning and only accepted the English translation of the verse of the Holy
Qur-án by “Abdullah Yousuf Ali and gave their own interpretations by ignoring
the interpretation given by the recognised Islamic scholars of the past. As a
matter of fact I do not find any basis of the learned Judges’ interpretation,
other than the only English translation of Abdullah Yousuf Ali. Can it be the
basis of such an important interpretation of a verse of the Holy Quran?
166.
Under the Mohammadan Law marriage is a civil contract and not a sacrament. The
rights and obligations are created immediately on the contract of marriage.
Even after divorce, namely, cessation of marriage it is incumbent for the woman
whose marriage is dissolved by divorce to wait for a certain period which is
called “Iddat” a period of waiting during which they will abstain from marrying
another person. This abstinence is imposed to ascertain as to whether she is
pregnant by the former husband so as to avoid confusion to parentage after
divorce. The during of Iddat of the woman is subject to menstruation in three
courses. When marriage is dissolved by death, the duration of Iddat is 4 months
and 10 days. The waiting period for a pregnant woman is 4 months and 10 days or
until delivery, which ever period is longer. Thus during this period of Iddat
under the law, a divorced woman is entitled to maintenance as she is precluded
from taking a second husband.
167. In
the Holy Qur-an there is no clear direction for payment of maintenance to a
divorced woman. Verse 228 of Surah Baquara translated in Bengali reads as
follows
“Ebong talakpraptogon nijeder jonno tin
ritu porjonto opekhkha korbe”
This is a
direction of Allah as contained in the Holy Qur-án. Iddat is a period of
waiting. After divorce the marriage tie between the husband and wife is
dissolved and after the dissolution of marriage there remains no obligation
between the parties outside the contract of marriage, but due to the period of
Iddat outside the contract of marriage an obligation for payment of maintenance
has been created according to Muslim Law. I have already reiterated earlier
that in verse 241 of Surah Baquara the word “ Muttallaka” means a woman who got
immediate divorce and this has no reference to the period of ‘Iddat’. The
learned Judges of the High Court Division, of course, took note of verse 228 of
Surah Baquara but did not consider verse 228 along with verse 241 of Surah
Baquara. Verse “Al Talaque” has been revealed by Allah 2/3 years after verse
Baquara. This verse was also not taken note of by the High Court Division. The
learned Judges did not care to read other verses in the Holy Qur-án to arrive
at a correct interpretation of giving maintenance to a divorced woman after the
expiry of the period of “Iddat”.
168. It
is not proper and advisable to interpret one verse in a disjointed manner and
to ascertain the real meaning of one verse only without reference to other
verses on the same subject.
169.
There are several judicial pronouncements that after divorce the wife is
entitled to maintenance during the period of Iddat. In the case of Safura Khatoon vs Osman Gani and others, 9 DLR 455 a learned Single Judge of the High
Court of Dhaka held “in this case she is only entitled to three months
maintenance under the Mohammadan Law for the ‘Iddat’ period”. In the case
of Marium vs Kadir Box, AIR 1929 (Oudh) 527, Stuart,
Chief Justice held that “Marium is entitled to maintenance during the period of
Iddat and not after that period was expired. She is thus entitled to the
maintenance for three months.” In that, decision the English Judge took note of
several decisions of British-India wherein it was held that a divorced wife is
entitled to maintenance during the period of Iddat. Reference may be made to
the decision, the petition of Din Mohammad, ILR, Allahabad Series (1883) Volume V 226 wherein Mahmood, J. has quoted from Hedaya where Iddat
has been defined as “the term of probation incumbent upon a woman in
consequence of the dissolution of marriage after carnal connection, the most
approved definition of iddat is the term by the completion of which a new
marriage is rendered lawful”
170. The
learned and illustrious Judge had also quoted Hedaya wherein it has been
clearly stated as follows:
“Where a man divorces his wife, her,
subsistence and lodging are incumbent upon him during the term of her iddat,
whether the divorce be of the reversible or irreversible kind. The argument of
our doctors is, that maintenance is a return for custody, and custody still
continues on account of that which is the chief end of marriage, namely,
offspring (as the intent of iddat is to ascertain whether the woman be pregnant
or not), wherefore subsistence is due to her, as well as lodging, which last is
admitted by all to be her right.”
171. The
above decisions are very illuminating which truly reflected the true principles
of Islamic law on the question of maintenance of a divorced woman during the
period of Iddat. It is very strange that in spite of such decisions the learned
Judges of the High Court Division did not at all care to look into those
decisions and gave an interpretation of their own imagination from a mere
English translation of Abdullah Yousuf Ali.
172.
There being no direction of payment of maintenance during the period of ‘Iddat’
in the Holy Qur-án, one is bound to follow the other sources of Islamic law for
a guidance on the question of granting of maintenance to a divorced woman. The
judgment is based on no sound reasonings and it is against the principles set
up by Muslim jurists of the last fourteen hundred years.
173.
Mowlana Obaidul Hoque, Khatib Baitul Mokkaram National Mosque, Dhaka, whom we
summoned to appear before us and make submission on this vital matter not only
appeared and made submissions before us but also submitted a written note. In
his written note he has referred to Hadis, ‘Ijma and Qiyas. From these three
sources of Islamic law, he has opined that a divorced woman is entitled to
‘Nafaqa (Maintenance) upto the period of iddat only. He has stated that Hazrat
Omar (R) had said that he heard from the Holy Prophet that a divorced woman was
entitled to Nafaqq during the period of Iddat. He has quoted this Hadith. He
has also quoted that all Muslim Scholars, Jurists and Shahabis were unanimous
on this point that a divorced woman is entitled to maintenance during the
period of Iddat only. If any one gives a contrary opinion today, that would be
against Ijma and would not be accepted in accordance with Muslim law and
Shariat. He has further quoted that Imam Abu Hanifa, Imam Abu Yousuf and Imam
Mohammad were of the view that a pregnant woman is entitled to maintenance till
she delivers that child and a divorced woman is only entitled to maintenance
during the period of “Iddat”.
174. Mrs.
Rabeya Bhuiyan, learned Advocate appearing for the appellant, placed before us
some changes in Islamic law in Malaysia, Egypt and other Muslim countries. In
Malaysia, where Shafi law is followed, a divorced wife is entitled to “mataa”
in addition to maintenance and mahr. The amount awarded under this head are not
large, but the Malaysian wife in also entitled to a division of matrimonial
property on divorce. The latter derives this benefit from Malaysian customary
law which has been incorporated into Malaysian Muslim Law.
175. Mrs.
Rabeya Bhuiyan has also pointed out before us the legislations on this point in
other Muslim countries such as Morocco, Iraq, Turkey, Libya, Tunisia, Syria and
Algeria. Through rational and progressive interpretation of Islamic principles,
maintenance has been awarded to poor Muslim women who are divorced and
deserted. Under Mohammadan Law, maintenance during the period of Iddat is
incumbent upon a former husband. A divorced wife can legally and lawfully
realise maintenance for the period of Iddat. But the right to “Mattaa” loosely
used as maintenance beyond the period of Iddat may be statutorily provided for
the poorer women who are destitute and are suffering in the hand of unjust and
cruel husbands. It can be argued that for giving benefits to Muslim women laws
may be made as has been made in several Muslim countries and the beneficial
legislation will not be against Muslim personal law and will be in consonance
with the ideas of justice, tolerance and compassion that the Holy Qur-án
enjoins upon all righteous and true Muslims.
176. In
her written submission, Mrs. Rabeya Bhuiyan has frankly admitted that the
decision of the High Court Division appears to be too wide, but as in our
country many women are divorced by their husbands without any fault on their
part some legislation may be made for the good of Muslim women community in
Bangladesh. According to her, many divorced women in our country suffer as they
have no economic and educational background to support them. She urges this
Division to make observation to provide for a fair, just and reasonable
legislation to remove the extreme hardship of divorced women in our society.
Such statutory recognition of benefits and privileges for a divorced woman will
not be in conflict with Muslim Law.
Judgment
of Mohammad Abdur Rouf J.-
I have
had the privilege of going through the judgment proposed to have been delivered
by my learned brothers. I fully agree with the reasonings and the conclusion
drawn by them in allowing the appeal. I do not propose to add anything more.
Judgment
of Bimalendu Bikash Roy Chowdhury J.-
I have
had the advantage of reading the erudite judgments of my learned brothers. I
entirely agree with their reasoning and with their conclusions on the general
or secular aspects of the case but would like to add a further ground in
support. Plaintiff No.1 Shamsun Nahar Begum never appealed against the decree
of the original court nor did she take any appeal therefrom. She did not also
prefer any revision. In such circumstances the learned Judges of the High Court
Division had no jurisdiction to give her any further relief beyond what was
granted by the first two courts below.
179. The
question of entitlement of a divorcee to maintenance till her remarriage or
death under Verse 241 of Sura Al-Baqarah is novel and to my mind difficult. It
is not essentially necessary to decide it in this appeal. I would therefore
refrain from expressing any opinion thereon.
Accordingly,
I too would allow the appeal.
