Divorce And Child MaintenancePosted by Nadia Faruki on July 9, 2020 at 11:16 am
When a muslim couple divorces in shariah courts around the world, women are barely given a share let alone equal share of accumulated assets and wealth through marriage. Why is that unfair practice a norm? Are there any instructions given in the Quran or by the Prophet to support a divorced mother financially especially if she chooses not to remarry? What are the duties highlighted for the ex husband at the time of divorce for the ex wife and the child/children? If a woman is the one who cares for the child after the divorce, how should the father contribute towards the child after the divorce esp if a woman has comparatively limited resources and cannot have a full time job due to her responsibility towards the upbringing of their child. If a woman has supported the husband’s career during the marriage (the prime of her life) and the marriage ends leaving her with children to raise, what are her fair expectations from her ex husband and father of her children?
July 9, 2020 at 1:38 pm
Following is an excerpt from Ghamidi Sahab’s book (Mizan) regarding your query:
“If a husband decides to part ways with his wife he is directed to do so in a befitting manner. The words used in 2:220 are ‘تَسْرِيْحٌ بِاِحْسَان’. In this regard, the following directives have been given:
Firstly, whatever amount of wealth, property, clothes, jewellery and other items have been gifted to the wife by the husband, they should not be confiscated by him. Here it should be clear that the verse is not referring to the Nafqah (maintenance) and Mahr (dowry), which are the absolute rights of a wife and confiscating them is unthinkable. What is emphasized is that a husband should not take back any gifts he may have given her.
There are two exceptions to the above mentioned directive:
First, if it is no longer possible to keep a marriage intact according to the limits set by Allah, and the family elders and society also supports the annulment, but a husband is unwilling to divorce his wife simply because he is concerned over losing wealth, property or other gifts he has given his wife, then the issue can be resolved in the following manner: the wife can give back part or all of the wealth gifted to her to relieve herself of her marital contract. In such cases, it would be lawful for the husband to accept these returned gifts.
Second, if the wife is guilty of open sexual misconduct. Since such a behavior destroys the very basis of the marital relationship, it is lawful for the husband to take back any gifts or wealth given to her.
The Qur’ān says:
وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَأُوْلَئِكَ هُمْ الظَّالِمُونَ (٢ :٢٢٩)
[If you decide to depart from them, then on this occasion] it is unlawful for you to take back from them anything you have given them unless both the husband and wife fear that they may not be able to keep within the bounds set by Allah. Then if you also feel that they will not be able to remain within the bounds set by Allah, there shall be no offence for either of them [regarding the gifts given by the husband] if the wife seeks divorce [by returning them to him] in ransom . These are the bounds set by Allah; do not transgress them. [And you should know that] those who transgress the bounds of Allah are wrongdoers (2:229)
وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ…. وَإِنْ أَرَدْتُمْ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُبِينًا وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقًا غَلِيظًا (٤: ١٩-٢١)
And do not treat them with harshness that you may take away what you have given them – except where they have been guilty of open lewdness… And if you decide to take one wife in place of another, even if you had given the latter a whole treasure of wealth take not the least bit of it back: Would you take it by slander and usurping [her] rights? And how could you take it when you have lain with each other and [at the time of marriage] they have taken from you a solemn covenant? (4:19-21)
For this second situation, a person has been warned not to dare take back by slander any wealth gifted to his wife. Imām Amīn Ahsan Islāhī writes:
It is absolutely against the decency and integrity of a man to slander and accuse a lady with whom he had pledged to live forever under a firm marriage contract. It was she who had unveiled herself totally to him and both lived intimately and in great harmony with each other. How unseemly it is on the part of the husband that when relations had to be severed with her he should try to extract from her what he so willingly spent on her and should go as far as to malign and accuse her for this base purpose.
Secondly, the husband shall not be responsible to give the dower if the wife is divorced such that the husband has not touched her or her dower had not been fixed. However, if the dower had been fixed but a lady was divorced before having sexual relations with the husband, then the husband is liable to pay half the amount of the dower fixed except if the wife willingly forgoes the total amount or the husband pays the full amount. The Qur’ān says:
لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمْ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً وَإِنْ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ إِلَّا أَنْ يَعْفُونَ أَوْ يَعْفُوَ الَّذِي بِيَدِهِ عُقْدَةُ النِّكَاحِ وَأَنْ تَعْفُوا أَقْرَبُ لِلتَّقْوَى وَلَا تَنسَوْا الْفَضْلَ بَيْنَكُمْ إِنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ (٢ :٢٣٦-٧)
There is no blame on you in the matter of dower if you divorce women before touching them or before fixing their dower and if you divorce them before touching them but after the fixation of a dower for them, then the half of this fixed dower should be given to them, unless they forgo it or he forgoes it in whose hands is the marriage knot; and if you [men] forgo your right, it is nearer to piety. And do not forget your superiority among yourselves. For Allah sees well all that you do. (2:236-7)
While commenting on this verse, Imām Amīn Ahsan Islāhī writes:
Although the fact that the husband has divorced the wife before conjugal contact was made is one motive for her wife to forgo her right, the Qur’ān here has urged the husband with regard to his honour and forbearance and his status as a husband to not desire from his wife to forfeit her share. Instead he should show magnanimity in paying her the full amount. The Qur’ān has appealed to him on three grounds to make this sacrifice: Firstly, the Almighty has given him the right to untie the marital knot just as he had the right to tie it. Secondly, it is more befitting for the stronger sex to show sacrifice and selflessness – the manifestations of true piety. Thirdly, the one degree of superiority a husband has been blessed with by being made the head of the family unit since he was naturally suited for this task requires that he take into account this aspect while dealing with the weaker sex. Its natural requirement is that he should be on the giving end rather than being on the receiving end.
Thirdly, a wife at the time of parting should be given some resources of life. The Qur’ān says that this is an obligation of those who fear God and those who are righteous. If a lady is divorced even without going near her, a husband is exhorted to fulfill this obligation. The Qur’ān says:
وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ (٢ :٢٤١)
And divorced women should in all cases be given some resources according to the norms of the society when they are sent off. This is an obligation on those who are fearful of God. (2:241)
In Sūrah Ahzāb, the words ‘فَمَتِّعُوْهُنَّ وَ سَرِّحُوْهُنَّ سِرَاحاً جَمِيْلَا’ (But give them some resources [of life] and part with them in a befitting manner) are used to convey this meaning. In Sūrah Baqarah, this same directive has been given to husbands for wives whom they divorced without touching them or without fixing their dower. According to the Qur’ān, the amount of these resources should be ascertained keeping in view the norms of the society and the financial status of the husband:
وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ (٢ :٢٣٦)
And bestow on them some resources of life, the wealthy according to his means, and the poor according to his means. This is an obligation on those who are righteous. (2:236)
It is evident from these words that this is an obligation on the husband. If a person does not fulfill it, he might not be liable to any legal action because this is something which pertains to a person’s inner piety and virtue, but he would definitely be held liable in the Hereafter before his Lord, and in the Hereafter the weight and import of his virtuous deeds would suffer.
(Translated from ‘Mīzān’ by Shehzad Saleem)
*(I hope this will answer your question. In case of any ambiguity, please do let me know.)
July 9, 2020 at 9:35 pm
Thank you so much for a prompt response. The above responses give me a basic not a detailed practical solution. Muslim marriages are dissolved in the Shariah court. Therefore if you are Muslim living in a country like Singapore (as a clear example) for 9+ years, your marriage will be dissolved by Shariah court irrespective of your citizenship. My first question should be that why are muslim courts unfair to women by allowing the man to choose what he wants to give to his wife especially if he has not gifted her anything of value during the course of the marriage. Why is there not a clear protocol? Is it assumed that the man will be just or that the woman deserves less? Most marriages conclude because there were unnatural differences so then why are women burdened more then the men as a result of separation as per the Shariah system? Is our choice our punishment? Where is direction given of how to provide maintenance for the child after the marriage is over? Why isn’t the shariah court in alignment with world law of developed nations 50/50 of assets etc and there is no provision of child maintenance. Why create shariah courts when they are not providing justice and are incomplete in their execution? This system leaves a lot of room for exploitation especially by the man if all material assets are in his control (known and unknown to the wife) and the children are being raised by the wife (mother after separation). Pakistan is notorious for leaving women with nothing but their children as the law allows only as far as dissolving the marriage. Sometimes even children are taken from them to exert control and power. How will the above be addressed through law guided by the Quran? If our Shariah courts are flawed in giving justice, how did they even come into existence in the modern world?
Thank you and regards,
I would really appreciate a direct answer from Ghamidi Sahab if possible.
July 13, 2020 at 3:56 am
Ghamidi sahab has discussed all the matters ranging from rights of wife in case of divorce, responsibility of husband, responsibility for maintenance of wife and children in the video below.
He can only talk about Islamic guidelines; that’s all we can do, raise the awareness so that the true interpretation of Islam can be understood by the masses and implemented in it’s letter and spirit, which assures equality for everyone, and makes sure that no one is given room to exploit any vulnerable party. That’s the only way to highlight and make amends to the faults in the current system.
July 13, 2020 at 9:24 pm
This was a very useful clip. We were never educated about our rights, before, during and after marriage even in so called modern, progressive and educated classes. The above can’t undo the past but certainly guides the future, especially in regards to our children. There are misconceptions that a child can be taken away by muslim law at the age of 7 to be given to the father. The Muslim courts are vague and biased towards the man and international courts are not equipped to accommodate Islamic law, which in Ghamidi Sahab’s words is only a moral direction. Even though I don’t live in Pakistan now for many years, I can’t even make an ID card for my child without the consent of the father. Ironic that women as their caretakers don’t have that right. The more consents that are required leave room for exploitation if you are dealing with a difficult person. Men nowadays want to make decisions for their children but do not want to put in the hard work of being a caretaker (which guides them about the temperament of a child). It’s only natural that the caretaker is better equipped for making day to day decisions in regards to the child since she/he spends most time with them. The ‘Sarbara system can be exploited’. Our society is also going through a dilemma amongst women. You are at fault if you chose to not be financially independent while married and focused on raising the children (you couldn’t do both optimally at the same time) especially if the marriage came to an end. Ironically the west is more sympathetic towards a woman’s contribution in the home and our cultures are more exploitative nowadays. The west is better equipped with handling divorce outcomes too. There is a lack of respect and a lot of confusion in general for how women contribute in the home or outside the home as mothers and wives. How do we tackle the above as women?
Thank you again
July 14, 2020 at 5:15 am
Since Islam is a proponent of institution of family. In order to maintain any institution, there needs to be a head of that institute with rights and responsibilities of each party laid down explicitly. This is exactly what Islam did, by making Husband solely responsible for the Kids brought to this world, irrespective of the fact that couple is divorced or living separately. In addition to that, Islam recognizes sacrifices made by a wife-cum-mother, therefore it also puts responsibility on the Husband to give maintenance to the wife in case of divorce and to not take back any property, dowry already given to the wife. Ideally, every God fearing Muslim should follow these instructions of Allah, and if not, it is responsibility of the state to enforce these injunctions by force and give wife her due right.
Sadly, no such state exists which is implementing these Islamic injunctions in their true letter and spirit. Mostly, it’s the fiqh which came into existence in later times and took the form of a proper source of religion (without any basis). That fiqh of earlier times practically failed to rise above the societal influences, customs and norms of that era which was a male dominated society and the same was reflected in the fiqh of that time. The same fiqh got carried forward in later times and hence no reconstruction of religious thought took place after a certain time. That is the main reason, Muslim women living in Islamic countries feel exploited by the law itself which was made in the name of religion.
Nevertheless, true Muslim believers (men & women alike), like other aspects of life, shouldn’t give up on these hardships and must face these challenges like the ones they’re facing in other domains of life. God has given glad tidings to those believers, who understand this test and participate in it with all courage and high ethical values. When God says He is with Sabireen (Patient ones); the word ‘sabr’ in this context means ‘to stick to the right path with all patience and courage and to accept whatever test you’ve been put through by submitting complete trust in Allah’.
Insha Allah the reward will be multiple folds with the level of hardship a single parent (mother) has to go through, provided that she exhibits ‘Sabr’ in this life in exchange for an eternal kingdom.
(For now, we as ordinary Muslims can only raise awareness and educate our people about the true message of Islam and the real rights it gives to women, both in their capacity as wives and as mothers.)
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