Dossier 22: Post Divorce Maintenance for Muslim Women and the Islamist Discourse

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Introduction

We live in an era where relativism and humanism affect almost every facet of our lives. Not least among these facets is the discourse of Islam vis a vis women’s human rights. The importance of such factors as relativism, humanism and gender sensitivity has not come about in a vacuum. It is fairly easy to find in the history of the evolution of the Shari’a, both ancient and recent (despite what the champions of the theory of the “closed doors of ijtihad” propound), many useful examples where many welcome and significant interpretation and interventions have taken place. Unfortunately, however, only a handful of women interpreters have been active participants in this evolutionary process. The dearth of women Islamists up until today point out that women are the subject of the Shari’a but not its legislators.[1]

Bangladesh, through some of its progressive judicial decisions has come on and off into the limelight of the discourse on Islam and women’s human rights.[2] I would take the liberty to term “progressive” decisions as those which add to and complement, rather than take away, rights of women in order for them to live as complete, independent individuals as understood by the Constitution of Bangladesh and various international human rights instruments, particularly the Universal Declaration of Human Rights and the CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women). Within the judicial arena a Matter of crucial importance today for Muslim women around the world and in Bangladesh is the question of Muslim women’s entitlement to maintenance from their husbands after their divorce.

Maintenance Under Muslim Law and the Divorced Woman

It is unanimously agreed among Muslim scholars and jurists that the woman’s right to maintenance arises upon marriage and that the wife is first in order of priority to this entitlement, even before the children, parents and relatives. What is not so readily agreed upon however, is whether this right is extendable after the marriage ends. It is the contention of a good number of exponents of Islamic law that it is.[3]

A constructive meshing of the several views that exist on this point would help lawyers, jurists and scholars to arrive at an agreeable plateau on the concept of post-divorce maintenance for divorced Muslim women. A common point of departure for some experts on this issue is the meaning of the term “mataa” or “mut`ah.”

Mataa/Mut'a, The Qur’an and the Principles of Justice and Reason

Literally taken, the word “mut’a” is “gratification” or “a gift.”[4] It has two distinct senses, one being a form of temporary marriage, the other, in referring to mut’at al-talaq or nafaqat al mut’a, is a payment by a husband to his wife upon divorcing her.[5] Whether this “gratification,” “gift” or “payment” has been intended as real compensation or simply a consolation to a divorced wife, and if so, whether such compensation and or consolation is compulsory, has been a matter of contention in classical and contemporary jurisprudence.

The Qur’an makes specific reference to provision for divorced women by way of maintenance. This is in Sura II (Baqara), Verse 241.[6] However, in order to fully appreciate this provision, we need to read the preceding and following verses along with this verse, and not in isolation from them, as is the practice among some scholars. Verse 240 lays down the provisions for widows (a year’s maintenance and residence), and then mentions women who leave the matrimonial residence on their own. After this comes the provision for women who have not left on their own, that is, those who have been divorced. The verse immediately after this provision, (242), begins “Thus doth God make clear his signs...” making it clear that it is a continuation of the theme of the previous verse (which specifies maintenance for divorced women). Therefore, on the one hand, the Qur’an is making a specific provision, on the other hand is also reminding us that God continuous to provide us signs for guidance so that we may comprehend and behave accordingly. A simple reading of the Qur’an shows that the various stages a divorce takes place have been covered. Dissolution of marriage, according to Muslim law, comes about in two ways: death or divorce. A simple reading of Verses 240 and 241 show that the Qur’an has made provision for women who suffer either widowhood or divorce. Whatever discussion takes place as to the nature of this provision, it cannot discard the simple meaning of these two verses. The Qur’an, by reminding us that God provides us signs to understand, also helps us to conduct our journey of interpretation and contextualisation. Surely this understanding ought be based on the precepts of justice, reason and sustenance of the spirit of the Qur’an. Here we may want to remind ourselves of the observations made in the Report of the Commission on Marriage and Family Laws,[7] “Islam very justly claims to be a simple and liberal creed... . The Quran says that previous societies perished because they were burdened with too much inflexible law and too much unnecessary ritual... . No progressive legislation is possible if Muslim assemblies remain only interpreters and blind adherents of ancient schools of law.”[8]

Despite what this Commission had to say in 1956, and before that prior to the Dissolution of Muslim Marriages Act in 1939 (where the Maliki School, rather than the Hanafi School of law was adopted), today most of the discussion on post divorce maintenance, which should have been fairly easy to garner from the Qur’an in the first place, has been filtered to whether mataa is optional or obligatory, whether it is a gift or a compensation. The 1956 Commission, on questioning its members and hundreds of Muslims, whether husbands should pay maintenance to the divorced wife for life or till her remarriage, part of the answer reads, “ a large number of middle aged women who are being divorced without rhyme or reason should not be thrown on the street without a roof over their heads and without any means of sustaining themselves and their children.”[9]

South Asia, Mataa and Judicial Decisions

The discourse on mataa and its import on maintenance and women’s rights under family law, is not new in our sub-continent. Only recently in Pakistan a case1[10] raised the question whether the wife’s maintenance is a gratuity. I have already stated above that the 1956 Commission on Marriage and Family Law took into consideration the plight of women arbitrarily divorced and rendered destitute, and recommended that Courts should have the jurisdiction to order a husband to pay maintenance to his divorced wife for her life or till she remarried.

Looking back into our history, it is clear to see that there was never really a forum in which these questions could be argued. More than a century ago, the Calcutta High Court, in the case of Abdur Rohoman vs. Sakhina,[11] finding itself unable to sanction enforcement of a maintenance order issued in favour of a Muslim divorced wife, observed, “The fact that the power of divorce, given by the Muhammadan law, may be so exercised as to defeat the intention of the legislature as expressed in... [The Presidency Magistrates Act] and other similar enactments, may go to show that further legislation is required, but it cannot affect the [secular, statutory] law as it stands.” It is clear to see that the magistrate’s court did not have the authority to decide cases according to Muslim law. It may be argued that these issues could be raised in ordinary civil courts. But civil suits do not help the poor, divorced women who desperately need monetary sustenance for themselves and their children, instead of complicated, expensive and time consuming proceedings.

Prior to the Muslim Family Laws Ordinance on 1961, Hanafi Muslim women had no forum to raise the question of recovery of arrears of maintenance. Under this Ordinance, the Arbitration Council formed could and did deal with the question and found in favour of women’s claims. However, we must note that the Ordinance, despite what was recommended by the 1956 Commission, only comprehended maintenance for married women, and not mataa for divorced women. It has already been pointed out that jurists are in agreement that it is permissible to follow a non-Hanafi school when Hanafi law does not provide relief. This is how our 1961 Ordinance came to be based on Maliki law. Thus today cases coming before Bangladeshi courts should not have a difficulty in finding a forum to provide relief to divorced women. For example, in Gul Bibi v. Muhammad Saleem[12] the argument was based on justice and common sense and the position that it is possible to borrow from another school of Muslim law when one school does not provide relief. Thus the Court held “According to Shiah and Shafi law the wife is entitled to maintenance notwithstanding the fact that she was allowed to get into arrears without having the amount fixed by the Court, or by agreement with the husband...

In the instant case the parties admittedly follow Hanafi school of thought... However, as some thinkers of Islam do favour the positive view and such view is also consistent with reason, logic and common sense, its adoption as a rule in case of such sects which do not strictly follow that school of thought, would not be unjustified.”

Today we have the Family Courts Ordinance of 1985, which not only has a streamlined procedure but also under which women have to pay only their minimal fees. Now that the question of mataa - post divorce maintenance, has been raised before the Appellate Division of Bangladesh, we can be hope that the question has at last found an appropriate forum for decision.

Some Muslim Majority Countries Where Women Enjoy Mataa Prior to codification, Egyptian personal law had been primarily based on the Hanafi School. Judges found themselves being forced to apply manifestly unjust rulings in cases of maintenance and divorce.[13] Thus Egypt adopted some of the principles of Maliki and Shafi Schools in cases of maintenance and some other matters. Jordanian Courts consider compensation for divorce a financial right of the divorced wife which is not forfeit in the case of death of the husband.[14] The Egyptian and Jordanian laws determine cases where divorce is by the unilateral will of the husband and not by mutual agreement. Both laws stipulate mataa or mut’a, in addition to maintenance for a divorced women after consummation.

The Malaysian Islamic Family Law as regards post divorce maintenance is established on the Sura II Verse 241.The Islamic Family Law (Federal Territory) Act 1984 provides, in addition to the woman’s right to maintenance, that a woman who has been divorced without just cause by her husband may apply to the Shari’a Court for mut’a and the Court may, after hearing the parties and after being satisfied that the woman has been divorced without just cause, order the husband to pay such sum as may be fair according to the hukum syara, which is based on Sura II Verse 241 of the Qur’an.

The Shari’a Courts in Malaysia have rightly highlighted the distinction between the iddah maintenance and mut’a or post divorce maintenance. Many scholars confuse iddah with divorce. In fact, iddah is a continuation of the marriage, being a waiting period during which a divorce pronouncement may be revoked. Thus during this time the husband and wife continue to be within a legally married state and therefore the question of mut’a at this stage does not arise. During the iddah the woman is entitled to maintenance as a wife. It is after the completion of the idda period that the divorce becomes effective and thus the question of post divorce maintenance where the divorce was arbitrarily brought by the husband.

Moreover, although not spelled out, a very logical distinction arises from the Malaysian, Jordanian and Egyptian situation. If the Qur’an has recognized two forms of dissolution (divorce and death) and has provided very important rights (inheritance etc.) to the woman divorced by death, would not it be logical to think that the Qur’an had manifestly intended that the woman divorced during the life time of the husband would also be entitled to some form of compensation? In both cases we are talking about a right which arises upon dissolution. It is therefore redundant whether the spouse divorcing is dead or alive.

Concluding Observations

We must remember that the main reason issues such as maintenance rights for divorced women in particular and reform proposals in personal laws in general, is taking place because Bangladesh, along with several other countries, Muslim and non-Muslim alike, is creating various forums in which these issues beg dealing with. It would be frivolous to say, as some sections of society do, that these issues are now coming up because of western/feminist/un-Islamic influences on our society. Significant sections of the Hanafi ummah have adopted non-Hanafi interpretation of mataa as well as important questions of Muslim women’s rights. Bangladesh, which has a predominance of Hanafi adherents, implements Maliki based Muslim laws too. This by itself should be enough for us to realise that where borrowing from one school would be more consonant with principles of justice, fairness and equity, it would be erroneous not to do so.

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FOOTNOTES

[1]The Muted Voices of Women Interpreters, in Faith and Freedom - Women’s Human Rights in the Muslim World 61-77 ( Mahnaz Afkhami, ed., 1995).

[2] See, for example, Nelly Zaman v. Ghiyasuddin, 34 DLR (1982), Jamila Khatun v. Rustom Ali, 48 DLR (1996), Jesmin v. Muhammad Elias, 17 BLD (1997), Muhammad Hefzur Rahman v. Shamsun Nahar Begum, 15 BLD (1995), Muhammad Serajul Islam v. Musammat Helana Begum, 48 DLR.

[3] See, for example, the works on this subject of Dawoud El-Alami, Abdullahi Ahmed An-Na’im, Lucy Carroll, Asghar Ali Engineer, Ahmad Ibrahim, Daniyal Latifi, et al.

[4] Dawoud El-Alami, Mut’at al-Talaq under Egyptian and Jordanian Law, in 2 Yearbook of Islamic and Middle Eastern Law 54 (Cotran and Mallat, eds. 1995).

[5] Ibid.

[6] The Holy Quran, English translation by A. Abdullah Yusuf Ali. Sura II, Verse 240: “Those of you who die and leave widows should bequeath for their widows a year’s maintenance; But if they leave (the residence) there is no blame on you for what they do with themselves, provided it is reasonable. And God is exalted in Power, Wise.” Sura II Verse 241: “For divorced women maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous.” Sura II Verse 242 : “Thus doth God make clear His signs to you: in order that ye may understand.

[7] Gazette of Pakistan, Extraordinary, 20 June, 1956.

[8] Ibid., at 1231.

[9] Ibid., at 1215.

[10] Iqbal Hussain v. Deputy Collector, PLD 1995 Lah 381.

[11] ILR 5 Cal 558, 562 (1879).

[12] PLD 1978 Quetta 117.

[13] Supra note ... at 55.

[14] Supra note ... at 58.