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Injunctions of the Qur'an
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Ahadith of the Holy Prophet
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Rights in the Light of Qur'an and Hadith
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Islamic Law and
Figh
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Law in Pakistan
I ‑ INJUNCTIONS OF THE QUR'AN
Injunctions
of the Holy Qur'an regarding the rights of woman in respect of
maintenance are contained in the following verses:‑
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The
mothers shall give suck to their offspring for two whole years, if the
father desires, to complete the term. But he shall bear the cost of
their food and clothing on equitable terms. (2:233)
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There is
no blame on you if ye divorce women before consummation or the
fixation of their dower; but bestow on them (a suitable gift) the
wealthy according to his means, and the poor according to his means,‑
a gift of a reasonable amount is due from those who wish to do the
right things. (2:236)
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For
divorced women maintenance (should be provided) on a reasonable
(scale). This is a duty on the righteous. (2:241)
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Men are
the protectors and maintainers of women, because Allah has given the
one more (strength) than the other, and because they support them from
their means. (4:34)
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O
Prophet! When ire do divorce women, divorce them at their prescribed
periods, and count (accurately) their prescribed periods: And fear
Allah your Lord: and turn them not out of their houses, nor shall they
(themselves) leave, except in case they are guilty of some open
lewdness. Those are limits set by Allah: and any who transgresses the
limits of Allah, does verily wrong his (own) soul: Thou knowest not if
perchance Allah will bring about thereafter some new situation. (65:1)
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Let the
women live (In `Iddat,) in the same style as ye live, according to
your means; annoy them not, so as to restrict them. And if they carry
(life in their wombs), then spend (your. substance) on them until they
deliver their burden: and if they. suckle your (offspring), give them
their recompense; and take mutual counsel together, according to what
is just and reasonable. And if ye find yourselves in difficulties, let
another woman suckle (the child) on the (father's) behalf. (65:6)
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Let the
man of means spend according to his means: and the man whose resources
are restricted, let him spend according to what Allah has given him.
Allah puts no burden on any person beyond what he has given him. After
a difficulty, Allah will soon grant relief. (65:7)
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II ‑ AHADITH OF THE PROPHET
The
Traditions of the Holy Prophet about the rights of woman for maintenance
are:
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Jaber‑b‑Abdullah
reported that the Messenger of Allah said: Fear Allah regarding women.
Verily you have married them with trust of Allah and made their
private parts lawful with the word of Allah .... They have got rights
over you in respect of their food and clothing according to means.
(Bukhari, Muslim)
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Jaber‑b‑Abdullah
reported: The Apostle of Allah addressed the people at Arafat during
his farewell pilgrimage.... Fear Allah about women, because you have
taken them with the trust of Allah and made their private parts lawful
with the word of Allah. You have got rights over them that they shall
not entertain anybody on your bed which you dislike. If they do that,
scourge them without being oppressive. And they have got rights over
you that you shall clothe them and feed them in a just manner.
(Muslim)
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Hakim‑ b‑Muawiyah
from his father reported: I asked: O Messenger of Allah! what right
has the wife of one among us got over him? He said: It is that you
shall give her food when you have taken your food, that you shall
clothe her when you have clothed yourself .... (Ahmad, Abu Daud, Ibn
Majah)
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Abu
Hurairah reported that the Messenger of Allah said:(As for) a dinar
you have spent in the way of Allah, and a dinar you have spent in
emancipating a slave and a dinar you have given to a poor man in
charity, and a dinar you have spent for your family, the greatest of
them in reward is that which you have spent for your family. (Muslim)
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Ayesha
reported that Hind, daughter of Utbah, asked: O Messenger of Allah!
Abu Sufiyan is a miserly fellow. He does not give what may be
sufficient for me and my children, unless I take it from him without
his knowledge. He said: Take what suffice you and your children
according to means. (Bukhari, Muslim)
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III ‑ RIGHTS IN THE LIGHT OF QUR'AN AND HADITH
Principles
regarding woman's right of maintenance as enunciated by the Qur'an and
Sunnah are:
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According
to some well known Traditions reported in authentic books of Hadith,
the Prophet (may Allah's peace be upon him) required his followers to
accord their wives the best possible treatment. He impressed upon the
men the rights of women regarding the food, clothing and lodging. Even
in his famous Farewell Address at Arafat, the Apostle of Allah did not
forget to exhort the believers to fulfil their obligations regarding
the proper maintenance of their women. The Qur'an says: "Lodge them
where ye dwell, according to your wealth, and harass' them not so as
to straiten life. for them"‑ (65:6) The Qur'an makes the men Qawwam
(caretaker) of women and places the responsibility of earning
livelihood of the family primarily on the shoulders of men when it
says:"... and because they support them from their means." (4:34)
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Duty of
providing maintenance to the women is so important that the Qur'an
makes even the divorced women entitled to it during the period of
Iddah when the husband would provide her food, clothing and
lodging and cannot expel her from his house (Al‑Qur'an 65:1 and 65:6)
If she is expecting, the husband is bound to maintain her till
delivery and in case she suckles the child she would be entitled to
receive the due payment for this service (Al‑Qur'an 65:6). Again the
Qur'an says: "The duty of feeding and clothing nursing mothers in
seemly manner is upon the father of the child" (Al‑Qur'an 2:233). In
case the father of the child is dead, the obligation of providing
maintenance to the nursing mother would be on the heir of the
deceased, as the Qur'an says: "And on the (father's) heir is incumbent
the like of that (which was incumbent on the father)"‑ (Al‑Qur'an
2:233)
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The
Qur'an makes it a duty for the pious and God-fearing persons to make
some provision even for those women who have been divorced by them
(2:241) Muhammad Asad explains this verse (2:241) of the Holy Qur'an
in these words: "This obviously relates to women who are divorced
without any legal fault on their part. The amount of alimony ‑payable
unless and until they remarry ‑ has been left unspecified since it
must depend on the husband's financial circumstances and on special
conditions of the time."
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No scale
or standard has been fixed for maintenance by the Qur'an or by the
Sunnah. However a lot of guidance has been provided to determine it in
the given circumstances. The Qur'an says: "No one should be charged
beyond one's capacity" (2:233). At another place, the Qur'an directs:
"Provide for them; the rich according to his means and the straitened
according to his means, a fair provision"‑ (2:236). The same principle
has been further elaborated when the Qur'an says:" Let the man of
means spend according to his means; and the man whose resources are
restricted, let him spend according to what Allah has given him"‑
(65:7) These are some of the verses which highlight the guiding
principles regarding the determination of the quantum of
maintenance.,. The rich according to his means and the poor according
to his means and nobody to be charged beyond his capacity ‑ this is
the golden rule.
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IV ‑ ISLAMIC LAW AND FIQH
Islamic law
and Fiqh regarding maintenance of the women lay down the following
principles:‑
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The
meaning of "Nafqah", which is the Arabic equivalent of
"maintenance", is what a person spends on his family. Maintenance
includes food, clothing and lodging.
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The
husband is bound to maintain his wife. Her right to receive
maintenance is absolute even if she is very rich and owns a lot of
property. According to Mulla: "The husband is bound to maintain his
wife (unless she is too young for matrimonial intercourse), so long as
she is faithful to him and obeys his reasonable orders. But he is not
bound to maintain a wife who refuses herself to him or is otherwise
disobedient, unless the refusal or disobedience is justified by non
‑payment of prompt dower or she leaves the husband's house on account
of his cruelty." In Fatawa‑i‑Kazi Khan, it is written: "It is
incumbent on the man to provide maintenance to his wife, whether she
is Muslim or non‑Muslim, rich or poor, adult or minor provided
intercourse with her is possible." If the husband is poor and the wife
supports the family, she is entitled to recover the amount expended by
her from the husband when he is in easy circumstances. Dr. Hamidullah
writes: The notion of the maintenance goes so far in Islam that,
according to the law, a wife is not obliged even to give her breast to
her suckling; it is the duty of the father of the child to procure for
it a foster mother at his own expense, if the mother does not want to
suckle it.
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If the
husband neglects or refuses to maintain his wife without any lawful
cause, the wife may sue him for maintenance. The Muslim Family Laws
Ordinance, 1961 permits the wife to apply to the chairman who will
constitute an Arbitration Council to determine the matter. She can
also apply for an order of maintenance under section 488 of Code of
Criminal Procedure, 1908.
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After
divorce, the woman is entitled to maintenance from her husband during
the period of Iddah. However, a widow is not entitled to
maintenance during the period of Iddah. If the divorcee is
pregnant she is entitled to maintenance till delivery and if she
suckles the child, her entitlement would be up to the expiry of
suckling period. In case the custody of the children is with her, the
husband would be bound to provide maintenance for the children.
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About the
scale of maintenance, there has always been difference of opinion
among the jurists. Hanafi Law prescribes that the maintenance should
be determined with reference to the social position of both the
spouses, husband and wife. But the Shafis say that the position of the
husband alone should be considered. According to Hedaya, when
one of them ‑ the husband and the wife ‑ is rich and other poor, a
proper mean should be adopted between the two. If both the parties are
rich, maintenance should be provided at the high scale, but if both
are poor, husband may provide accordingly. Scale of maintenance,
according to the Shia Law, should be determined with reference to the
requirements of the wife regarding condiments, food, clothing,
residence, servants and articles for adornment subject to the custom
of her equals among her own people living in the same town.
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V ‑ LAW IN PAKISTAN
The Muslim
Family Laws Ordinance, 1961 provides law regarding maintenance in its
section 9. The relevant section reads:
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If any
husband fails to maintain his wife adequately, ‑or where there are
more wives than one, fails to maintain them equitably, the wife, or
all or any of the wives, may, in addition to seeking any other legal
remedy available, apply to the Chairman who shall constitute an
Arbitration Council to determine the matter and the Arbitration
Council may issue a certificate specifying the amount which shall be
paid w maintenance by the husband.
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A husband
or wife may, in the prescribed manner, within the prescribed period,
and on payment of the prescribed fee, prefer an application for
revision of the certificate, in the case of West Pakistan, to the
Collector and, in the case of East Pakistan, to the Sub‑Divisional
Officer concerned and his decision shall be final and shall not be
called in question in any Court.
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Any
amount payable under subsection (1) or (2), if not paid in due time,
shall be recoverable as arrears of land revenue:
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