Incidents of Marriage I- Maintenance (Nafaqah) – Including Post-Divorce PDF

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School of Law SOAS, University of London

15. 

ISLAMIC LAW LLB/BA; LLM/MA

Incidents of Marriage I: Maintenance (Nafaqah) – Including Post-Divorce

Terminology and Concept

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Nafaqah (Spending, Alimony, Maintenance, Expense,)

o General traditional grounds: ~ Marriage ~

Consanguinity

~ Mastership/Commitment

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Moroccan Family Code 2004 Art. 187: “Financial maintenance for others is due for reasons of marriage, kinship, and commitment”.

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Tunisian Family Code 1957 (1993 amendment). Art. 37: “The causes of maintenance are Marriage, Consanguinity and Commitment”.

Rationale for wife’s maintenance “Because the Qur’an and the Sunnah ... have commanded kindness to women [e.g. Q4:19 – “And live with them in kindness and equity], it is the husband’s duty to consort with his wife in an equitable and kind manner. A specific consequence of this divine command is that the husband is responsible for the maintenance of the wife, a duty which he is enjoined to discharge cheerfully without “reproach” or “injury”. The wife’s right to maintenance is established by authority of the Qur’an, the Sunnah, and unanimous agreement of jurists [ijmā‘], and reason or common sense. It is inconsequential whether the wife is a Muslim or non-Muslim, rich or poor, and, according to many authorities, minor or adult, healthy or sick. She is entitled to this right by virtue of the fact that she is devoted to the husband’s companionship and is confined to his household, or by the very reason of marriage, i.e. being his wife and “trust” - (Abd al Ati, The Family Structure in Islam, p. 148).

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Authority Qur’an:  Q4:34 - “Men are qawwāmūn upon women because God has faddala the one above the other and because of what they spend [ bimā anfaqū] of their wealth; Therefore the righteous women are pious [qānitāt] and guard in the absence [of the husband] what God has [decreed to be] guarded ...”. 

Q2:233 – “Mothers shall suckle their offspring for two whole years for those who desire to complete the suckling term; and the father of the child shall bear provisions for their feeding and clothing equitably. No soul shall have a burden laid on it greater than it can bear. No mother shall be harmed on account of her child and no father [shall be harmed] on account of his child; And upon the [father’s] heir is a similar duty...”

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Q65:6-7 – “And accommodate them (during iddah) in your own accommodation according to your means, and do not cause them any suffering in order to restrict them. And if they are pregnant then spend [ anfiqū] on them until they deliver their pregnancy; and if they suckle [your offspring] for you, then give them their reward and take mutual counsel together equitably... Let the wealthy spend [ yunfiq] according to his means; and for him whose resources are restricted, let him spend

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ISLAMIC LAW LLB/BA; LLM/MA

[yunfiq ] according to what God has given him . God does not burden any soul beyond what He has given it. After difficulty God will soon grant relief”. Hadith:  “The most rewarded expenditure is what a man spends to support his family ...” (alBukhāri).

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“Everything you spend for the sake of God gets you a reward, even when you feed your wife with your hand” (al-Bukhāri).

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“They [your wives] have a right over you for their food and clothing according to what is customary” (Muslim).

Juristic status (hukm) and nature of nafaqah “It is obligatory for the husband to provide maintenance to his wife whether she is Muslim or non-Muslim, when she is ready to stay at the residence (to be provided), in which case he is under an obligation to provide maintenance, clothing and residence. The basis for this are the words of God: “Let the man of means spend according to his means and the man whose resources are restricted, let him spend according to what God has given him” [Q65:7] and His words: “But he (the father of the child) shall bear the cost of their food and clothing on equitable terms” [Q2:233]. In addition there is the saying of the Prophet ... “They have a right over you for their food and clothing according to what is customary”. (Al-Marghīnānī, Al-Hidāyah: The Guidance, Trans: Nyazee, 2006, Vol.2, p.85).

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Jordan Personal Status Law 2010 Art. 59: “Every person shall maintain himself from his own resources except the wife; her maintenance is upon her husband even if she is wealthy”.

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Civil Code of the Islamic Republic of Iran Art. 1106 – “The cost of maintenance of the wife is at the charge of the husband in permanent marriages”.

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Art. 194: Moroccan Family Code 2004

Conditions for wife’s entitlement to nafaqah i.

ii. iii.

Valid marriage Wife is physically mature for marriage consummation Wife allows the husband lawful access to her (Tamkīn - “Enablement”) and loyalty (Tā‘ah) to the husband.

“A Muslim wife retains her right to maintenance from her husband as long as the marriage is sound and she continues to cohabit with him without demonstrating any aversion to him. However, the jurists agree that displays of aversion or abandonment by the wife toward the husband constitute recalcitrance or disobedience and place the wife in a state of being nāshiz legally recalcitrant, which denies the wife the right to further maintenance. The jurists have not reached consensus as to the accepted legal definition, interpretation and application of recalcitrance... Recalcitrance or disobedience has been differentiated as to both covert and overt types. Covert disobedience would be of the type expressed generally in the intimate details of the married life of the couple, while overt disobedience would involve some public action, such as leaving the conjugal home”. (Fluehr-Lobban & Bardsley-Siros, “Obedience (Ta’a) in Muslim Marriage: Religious Interpretation and Applied Law in Egypt (1990) 21 Journal of Comparative Family Studies, Issue 1, pp.39-53 at 40.

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S. 59(2): Malaysian Family Act 1984

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Civil Code of the Islamic Republic of Iran Art. 1105- In relations between husband and wife; the position of the head of the family is the exclusive right of the husband.

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However, see revised position under Tunisia, Libya, Algeria and Morocco Family Codes.

Scope or components of nafaqah “The wife’s maintenance entails her incontestable right to lodging, clothing, food and general care ... The wife has the right to be clothed, fed, and cared for by the husband, in accordance with his means and her style of life. This right is to be exercised without extravagance or miserliness. For instance, if the wife has been used to having a maid or if she is unable to attend to her domestic affairs, it is the husband’s duty to provide her with at least one maid if he can afford it (Abd al Ati, The Family Structure in Islam, p. 148). ~ Feeding (Q2:233) ~ Clothing (Q2:233) ~ Lodging (Q65:6) “It is the liability of the husband to make her reside in an independent house in which there is no one else who belongs to his family, unless she chooses that herself”. - (Al-Marghīnānī, Al-Hidāyah: The Guidance, Trans: Nyazee, 2006, Vol.2, p.91). ~

Items for general care,

~ House helper based on wife’s status or need.

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Jordan Personal Status Law 2010 Art. 59(b): “The wife’s maintenance shall consist of feeding, clothing, lodging, medical care on equitable terms, and a servant for a wife of such a status of being served.”

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Art. 189: Moroccan Family Code 2004

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Civil Code of the Islamic Republic of Iran Art. 1107: “Cost of maintenance includes dwelling, clothing, food, furniture in proportion to the situation of the wife, on a reasonable basis, and provision of a servant if the wife is accustomed to have servants or if she needs one because of illness or defects of limbs.

Assessment of nafaqah o

There are juristic differences on how to assess the amount of maintenance. There are three main positions:

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Based on status and capacity of the husband ii. Based on status of wife iii. Based on status of both husband and wife  

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Art. 189: Moroccan Family Code 2004 Art. 61: Malaysian Family Code 1984

Can the wife reclaim unpaid nafaqah as a debt? o

There are 3 possible scenarios:

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ISLAMIC LAW LLB/BA; LLM/MA

Where the husband is poor and cannot meet his duty of maintenance. Where the husband has been absent and did not make maintenance arrangements for his wife while he was away. Where the husband defaults or neglects his duty of maintenance.

Civil Code of the Islamic Republic of Iran Art. 1111: “The wife can refer to the court if her husband refuses to provide for her maintenance. In such a case the court will fix the amount and will compel the husband to pay it”.

“The volume of maintenance claims submitted by women to the courts, for themselves and/or their children, testifies to the continuing significance of this obligation, both as part of women’s protective strategies and as an economic reality in family life, constituting a primary reason for women’s recourse to the courts. The effective implementation of maintenance rulings for wives and children where husbands are able but unwilling to meet their obligations in this regard is a major preoccupation for poor women ...” (Welchman, L., Women and Muslim Family Laws in Arab States, 2007, p. 93).

 Creation of “Temporary Maintenance Funds” in some Muslim-majority countries

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Forfeiture of nafaqah There are certain different situations that would cause the wife to lose the right to maintenance. Examples of such situations are: 1. 2. 3. 4.

Invalid marriage, Husband’s lack of access to the wife Imprisonment of the wife Wife’s employment outside the home against husband’s valid objection. “Generally, one finds nothing within the Qur’an and Sunnah that specifically excludes women from doing any legitimate work of their choice provided they possess the required skills and expertise and are not expose to any hazards therefrom... Reciprocally, the man is also prevented from choosing any work capable of preventing him from fulfilling his role as father and husband... Ideally it is not a question of consent or permission but mutual agreement between the couple in the best interest of the family. (Baderin, International Human Rights and Islamic Law, 2005, p.180-181) This is based on the analogical application of Q2:228 – “And they [women] shall have rights similar to those against them on equitable terms. 

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Jordan Personal Status Law 2010 Art. 61 (a): “A wife working outside the home shall be entitled to maintenance on two conditions: 1. The work must be lawful; 2. The husband must consent to the work expressly or impliedly. (b) It is not permissible for a husband to reverse his consent for her wife to work except for a lawful reason and without causing the wife any harm thereby”. Civil Code of the Islamic Republic of Iran Art. 1117: “The husband can prevent his wife from occupations or technical work which is incompatible with the family interests or the dignity of himself or his wife”.

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Wife going on pilgrimage without husband’s approval Wife’s recalcitrance (Nushūz) “There is one case where all jurists agree that a wife loses her right to maintenance. This is the case of recalcitrance or nushūz, which is manifested by the wife’s aversion to her husband, hatred toward him, disinterest in his companionship, or attraction to another person. Such a defiant, refractory wife is not entitled to maintenance by her husband. But jurists differ on the details of what exactly constitutes recalcitrance”. - (Abd al Ati, The Family Structure in Islam, p. 148). Q4:34 – “ As to those women on whose part you fear their disloyalty and illconduct [nushūz], Admonish them (first); (next), refuse to share their beds, (lastly) smack them [lightly]; But if they return to obedience, seek not against them means (of annoyance)...” o

In his jurisprudential treatise “al-Umm” al-Shāfi‘ī cites the following Hadīth in explaining Q4:34: “Iyās ibn Abdullah reported that the Prophet said; “Don’t beat the maids of God; then Umar ibn al-Khatab came to him and said: Women have become daring against their husbands; so the Prophet allowed their light smacking. Then many women started loitering around the Prophet’s house complaining against their husbands. The Prophet then said: Many women are loitering around my household complaining against their husbands; those husbands are not the best among you”. (Abu Dawud; Ibn Majjah). Based on this Hadīth, al-Shāfi‘ī states that the Prophet prohibited the smacking of women by saying that “those husbands [who smack their wives] are not the best among you”. He (al-Shāfi‘ī) then said: We follow what the Prophet has chosen and we prefer that a man should not smack his wife but admonish her verbally in case of nushūz. In another Tradition, the Prophet said: “The best of you is he who is best to his family; and I am the best of you to my family”. The Prophet never smack any of his wives. A’isha reported that “The Prophet never beat any of his wives or servants”.

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Many contemporary commentators argue that the tern “wadribūhunna” in the context of Q3:34 means “part with them” or “separate from them.

See e.g.: Dunn, S., and Kellison, R.B., “At the Intersection of Scripture and Law: Qur’an 4:34 and Violence against Women” (2010) 26 Journal of Feminist Studies in Religion, No. 2, pp. 11-36

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See also Q4:128 for Nushūz by the husband. “It is noteworthy that the Qur’an allows for possibility of the husband’s covert recalcitrance. In this case, the wife is instructed to initiate a peace-making process, and the husband is enjoined to reciprocate, so that the two may settle the problem between themselves quietly. But should that course fail, two arbitrators representing both sides are chosen to make peace. - (Abd al Ati, The Family Structure in Islam, p. 159).

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Jordanian Personal Status Law 2010 Art. 62: “When the wife is recalcitrant (nashazat) she loses her right to maintenance as long as she is not pregnant, in which case the maintenance will be for the pregnancy. The recalcitrant woman is she who leaves her matrimonial

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ISLAMIC LAW LLB/BA; LLM/MA

home without valid shar’ī reason or denies the husband entrance into her house, causes harm to her husband and creates bad relationship and lack of trust in respect of herself and her property.”

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Art. 195: Moroccan Family Code 2004 Art. 59(2): Malaysian Family Code 1984

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Civil Code of the Islamic Republic of Iran Art. 1108: “If the wife refuses to fulfil duties of a wife without legitimate excuse, she will not be entitled to the cost of maintenance”.

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Maintenance during illness? “The Qur’an and the Sunnah have enjoined care for and kindness to the wife. Yet the application of this general principle to the case of the sick wife has stimulated curious arguments, differences of opinion, and legal niceties. According to some jurists, a sick wife, who, on account of her failing health, is unable to discharge her marital duties has not legal right to maintenance by the husband... Another group of jurists argue that formally, or analogically, a husband is not responsible for the maintenance of a sick wife because she is actually unable to meet her marital responsibilities. But they realize that, in accordance with the principles of istihsān ... it is his obligation to provide for her because she is still his mate, whose companionship he enjoys... A variant of this doctrine maintains that the raison d’etre of the wife’s right to maintenance is marriage as such or the husband’s trusteeship (qawwāmiyah) over the wife. This right remains inalienable so long as she is his wife and he is the trustee. Her physical condition is inconsequential in this regard; it neither lightens his obligation nore negates her right. The problem of maintenance of a sick wife is provocative, although it seems more apparent than real, that is, more of an academic exercise than a practical issue. It probably indicates that the later in time, the farther some jurists drifted away from the spirit of the law and its ethical foundations. It is curious that neither the Qur’an nor the Sunnah raised the problem in any way that can be likened to the approach of those jurists. Moreover, none of the disputants produces any authoritative evidence in support of his argument against the adversaries”. - (Abd al Ati, The Family Structure in Islam, p. 151-152).

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Coverage of nafaqah in modern Muslim Family Codes 

Afghanistan Civil Code 1977 Article 117: (1) With the conclusion of a true and binding marriage it becomes necessary for the husband to give alimony [maintenance] to his wife even though she might live in the residence of her relatives. If the wife refuses without any reason to reside in the residence of the husband, the husband shall not be liable to give the alimony. (2) The wife has the right to refuse to go to her husband’s residence when a suitable residence, as provided in Articles 115 and 116 of this law, is not provided by the husband, or when her immediate marriage-portion has not been paid by the husband.

Article 118: The alimony of the wife shall consist of food, clothes, residence and medical treatment in proportion to the financial power of the husband. Article 119: Where the husband refuses to give alimony or when his fault is proven in giving it, the authoritative court shall order the husband to give the alimony.

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ISLAMIC LAW LLB/BA; LLM/MA

Article 120: Imprisonment of the husband shall not discharge his responsibility to provide alimony to the wife though he may not afford it. Article 121: If the husband is absent, the alimony of the wife shall be fixed from that property of the husband which could be included in the alimony and be at the disposal. Otherwise, the alimony of the wife shall be given from the property and goods deposited with other person or lent to him.

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Art. 194-196: Moroccan Family Code 2004 Art. 59–71: Malaysian Islamic Family Law Act 1984 Art. 59–79: Jordan Personal Status Law 2010 Art. 1102-1119: Civil Code of the Islamic Republic of Iran

Post-Divorce maintenance “The fact that the waiting period is at least a partial extension of the marital link is probably indicated by the rules of maintenance during the period. The woman whose divorce has been initiated and pronounce by the husband is fully entitled to complete maintenance as long as she is still in the waiting period. She has the right to continue her occupation of the same home as before the divorce, or to be furnished with relatively comfortable lodging facilities. She may not be expelled from her home, nor should she move therefrom, unless she has committed an evident offense of indecency. Along with this right, the man, the repudiator, is fully responsible for her food, clothing, and, if necessary, service, just as if the marria...