CHAPTER-11

Family Laws

Marriage

Please keep in view the following verses of the Qur’an: 2(221, 232, 234); 4(22-25); 5(5); 24(3, 26); 24(32-33).

Law of marriage as evolved from the Qur’an and the Sunnah is briefly discussed as follows:

1. In the Arabic, the Qur’an has used the word “Nikah” or “Aqd” for marriage. It means uniting or union. It is, as its literal meanings go, carnal conjunction of the union of sexes. For facility of discussion in English language we would use the word marriage instead of “Nikah” or “Aqd”

2. Marriage is essential. The Prophet of Islam is reported to have remarked: “Nikah (marriage) is my Sunnah and whosoever rejects my Sunnah is not from me”. The Qur’an says: “Marry those among you who are single” – (24:32). The Arabic word Ayyama means single or solitary. A single person, may be a man or a woman, should be married. He or she may be single on account of having not yet married or on account of dissolution of his or her marriage by divorce or by death of the other spouse. Whatever may be the reason for being single, he or she is supposed to marry or remarry. Even poverty is no excuse or justification to abstain from marriage, as the Qur’an says in this very verse “If they are in poverty, Allah will give them means out of His grace”. Monasticism which is considered to be an ideal way of life in some religions is discouraged by Islam. Similarly, life of celibacy is not encouraged as the Prophet of Islam strongly objected to one of his companions living such life. According to a Hadith, one makes his religion half perfect by marrying and he would meet Allah pure and purified. There is consensus of Muslim jurists that marriage is ‘Sunnat muwakkidah’. Institution of marriage embraces in itself the character of ‘Ibadah’ as well as character of ‘Muamlat. Marriage in Islamic society though essentially civil contract is also devotional act.  

3. Islam permits marriage of widows and divorced women unlike certain other religions which do not allow such women to remarry. However, virgins (unmarried women) may be preferred for the first marriage of a young man since virgins are generally more prolific, more affectionate and are easily satisfied with little means of income of the husband (according to a Hadith).

4. Islam, as the religion of nature, understands human nature thoroughly and, therefore, it allows a man and a woman, who want to marry, to look at each other before marriage. Apparently it may look rather a liberal and progressive approach which is rejected by many creeds and customs, but actually it is the correct approach. Would-be spouses should see each other and should exercise their right of choice. On the contrary if they are herded together forcibly by their parents or guardians, their union is likely to break apart.

5. Islamic law has made it compulsory that a woman’s consent must be obtained before she is married. According to the Ahadith of the Prophet, the consent of the women, whether previously married or virgin, is essential for marriage. A virgin may feel shy and keep quiet. If she remains silent that shall be considered her consent, but if she declines there shall be no compulsion on her. Thus Islamic law provides clearly a right to a woman to exercise her choice for marriage by saying yes or no. This idea of obtaining consent has led to the legal concept that for the completion of a marriage contract there must be proposal from one side and acceptance from other side. No compulsion or coercion can, therefore, be exercised to force a woman into marriage against her will.

6. Marriage contract like anyother civil contract is to be evidenced by two competent witnesses. This has been emphasised by the Prophet of Islam and is established by the common practice among his followers. The verse number 2 of chapter 65 of al-Qur’an also enjoins upon the believers to call to witness two just men from among them at the time of marriage as well as divorce.

7. A minor girl, when given in marriage by her guardian, has the option to repudiate the marriage when she attains puberty. The Prophet of Islam annulled the marriage of a girl who had been given in marriage by her father, since she disliked it. However, repudiation must be made immediately after she attains puberty and before cohabiting with the husband.

8. Females prohibited to a man for marriage have been mentioned in detail by the Qur’an in its verses 22, 23 and 24 of Chapter 4. The following women are forbidden to you as commanded by the Qur’an:

I) Your mothers (real mothers). II) Women whom your father married (step mothers). III) Your daughters. IV) Your sisters. V) Your father’s sisters. VI) Your mother’s sisters. VII) Your brother’s daughters. VIII) Your sister’s daughters. IX) Your foster-mothers. X) Your foster-sisters. XI) Your mother-in-law. XII) Your step-daughters born of your women unto whom you have gone-in. XIII) Wives of your real sons. XIV) Two sisters together. XV) All married women save those captives whom your right hands possess.

Certain unions have also been prohibited specifically by Prophet Muhammad (PBUH). According to Prophet: A woman and her paternal aunt cannot be united, nor a woman and her maternal aunt can be united. Prophet Muhammad (PBUH) also told one of his followers not to marry a prostitute.

9. The Qur’an in its verse number 221 of chapter number 2 has strongly forbidden its followers (Muslim males as well as females) to marry idolatresses and idolaters till they believe. Thus, the marriages of Muslims with non-Muslims have been prohibited. However, there is one exception and that is in the case of a Muslim male who has been permitted by the Qur’an (5:5) to marry a virtuous woman of the people of the Scripture i.e. the Jews and Christians. But a Muslim woman cannot marry a male scripturalist (a kitabi man i.e. a Jew or a Christian).  

10. According to well-reported Ahadith, Prophet Muhammad (PBUH) prohibited Muta marriages (temporary marriages) and Shigar marriages (exchange marriages without fixing dower for the females).

11. Proclamation and publicity of marriage is very important in Islam as it dislikes secret marriage. Hosting of Waleema (marriage feast) is an obligatory Sunnah of the Prophet which should be performed by the bridegrooms to entertain their relatives and friends in order to celebrate their marriages. Even Daf beating and singing is allowed on the occasion of marriage for the purpose of celebration and jubilation.

12. The solemnisation of marriage requires certain formalities and conditions which briefly speaking are:

(i)              Proposal and acceptance (Ijab-o-Kabul)

(ii)    The words conveying proposal and acceptance be uttered in each other’s presence or in the presence of their agents called ‘vakils’.

(iii)   Transaction must be completed in one meeting.

(iv)  The parties to marriage must be competent i.e. they must have capacity to marry. The capacity to marry depends on understanding, puberty, free will and consent. Puberty is presumed in respect marriage at completion of the fifteen years of age. A minor under 15 years can, however, be validly married through guardian. But even in this case he must not be below 7 years because marriage below that age is void in all cases.

(v)    Under sunni law, there must be two witnesses on the occasion of marriage.

(vi)  There must be no legal bar to the union i.e., the couple must not be related to each other within prohibited degrees.

13. Views differ regarding the age of puberty. Abu Hanifa fixes the age of puberty in case of boys at 18 years and in case pf girls at 17 years. According to Abu Yusuf, it is 15 years for both. Hedaya places the earliest period of puberty in respect of a boy at 12 years and in respect of a girl at 9 years. The Child Marriage Restraint Act,1929. has fixed the age of puberty for male at 18 years and for female at 16 years.    

Dower

Please keep in view the following verses of the Qur’an: - 2(236-237); 4(4, 20, 24); 33(50); 60(10);

The Arabic word Mahr is translated into English as dower. It has been defined in various ways. According to a popular definition, dower is a sum of money or other property which a wife is entitled to get from her husband in consideration of marriage in Islam. It is a bridal gift which a Muslim husband is obliged to pay to his bride.

The Qur’an and the Sunnah have laid down the following rules and regulations regarding Haq Mahr or dower:

1. Payment of Haq Mahr (dower) to his wife is obligatory on the husband. It is an essential part of marriage. The Qur’an says: “O Prophet! We have made lawful to you your wives to whom you have paid their dowers” – (33:50). At another place the Qur’an says: …… “And there is no blame on you to marry them when you give them their dower”. – (60:10). However, the marriage is not invalid if dower is not paid or fixed before marriage. It is apparent from verse 236 of chapter 2 of Al-Qur’an which reads: “There is no sin for you if you divorce women when you have not yet touched them nor fixed their dower. But provide for them, the rich according to his means and the poor according to his means, a fair provision. This is a duty for those who do good”.

2. The amount of dower which the bridegroom has to pay to his bride has not been fixed by the Qur’an or the Sunnah. It depends entirely on the agreement of the contracting parties. The Qur’an says: “….The wealthy according to his means and the poor according to his means, a fair provision. This is a duty for those who do the right things.”   (2:236)

There is no minimum or lower limit of dower prescribed by law, though some jurists say that it should not be less than ten dirhams. It may be in the form of cash or in kind. The Prophet (PBUH) did not fix any minimum. According to the well reported Traditions of the prophet of Islam, even a handful of barley or dates or even an iron ring may be sufficient provided the bride agrees to accept it. The Messenger of Allah himself married Hadrat Safiyyah and her emancipation was her dower. Omme Solaim agreed to marry Abu Talha on the condition that he should embrace Islam. Abu Talha fulfilled the condition and his acceptance of Islam was declared to be mahr or dower of Omme Solaim. In another case, the teaching of one or two verses of the Holy Qur’an by the husband to the wife was declared to be an adequate Mahr for the bride.

Similarly no maximum or upper limit of mahr or dower has been fixed by Islam either. The Qur’an says: “But if ye decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back” – (4:20). From this verse it has been deduced that the right of a woman to demand any amount of dower as a condition of her agreeing to marriage is not restricted by the Islamic Law. Hadrat Umar, the second pious caliph of Islam, once thought of fixing the upper limit of dower on the complaint of men that women were demanding huge amounts; but he was dissuaded by a woman who drew his attention to verse of the Holy Qur’an quoted above.

3. If a person divorces his wife before touching her and before appointing any amount of dower for her, he has been directed to make provision for her according to his means. But if he divorces her before touching her and after fixing the amount of dower for her, he is bound to give half of the amount of dower which has been fixed. However, if the woman agrees to forgo her right of accepting this half dower or the man shows generosity in giving her full dower, such an accord is permitted.   (Al-Qur’an 2:237)

4. The men should give to their wives their dower willingly. But if the women of their own accord agree to remit the whole or part of their dower, the husbands must welcome this gesture – (Al-Qur’an 4:4). Hadrat Umar and Qadi Shuraih have decreed that if a wife remits the dower but later on demands it, the husband shall be compelled to pay it because the very fact that she demands it is a clear proof that she did not remit it of her own free will.

5. According to verse 24 of Surah An-Nisa, dower has to be paid as a duty.

6. Dower can consist of either a sum of money or certain property or thing or article of use. But there are certain goods or objects which are not allowed by Fiqh to form the subject of dower. For example

(i)              Things forbidden to a believer, like pork, wine, etc.

(ii)             Things not yet in existence such as fruit crop of next year.

(iii)            Personal service of husband.

Any thing over which the dominion or the right of property can be exercised or anything which comes within the meaning of ‘mal’ and has a value, may according to Hanafi law, form the subject of dower.

7. The object of dower is three-fold. Firstly, it would be a check on the arbitrary exercise of the power of divorce by the husband. Secondly, it would restrain the husband to indulge in polygamy. Thirdly, it would work as an obligation imposed upon the husband as a mark of respect to the wife. It has been rightly observed: “The marriage contract is easily dissoluble, and the freedom of divorce and the rule of polygamy place the power in the hands of the husband which the Law-giver intended to restrain by rendering the rules as to payment of dower stringent on the husband”.

8. Dower according to Jurists is of two types: one is called “prompt dower” (Mahr-i-Mu’ajjal) which is payable on demand and the other is called “deferred dower” (Mahr-i-Mu’wajjal) which is payable on dissolution of marriage by death or divorce. The jurists are unanimous on the point that the wife can refuse to perform her marital obligations unless prompt dower is paid.   

9. If the amount of dower is fixed in the marriage contract, the dower is called specified dower. When the amount is not fixed, the wife is entitled to “proper” or “customary” dower (Mahr-i-Misl), which is determined keeping in regard the amount of dower settled upon other females of her father’s family. Dower is a debt and the widow is entitled alongwith other creditors of her deceased husband, to have it satisfied out of his estate. However, this debt is an unsecured debt and ranks after secured creditors. But it has priority over legacies and rights of heirs.     

Divorce

Please keep in view the following verses of the Qur’an:- 2(226-227); 2(229); 2(230-232); 2(236-237); 2(241); 4(35); 24(6-9); 58(2-4); 65(1-2):

            The Arabic word ‘Talaq’ which is translated into English as divorce means ‘freeing or undoing the knot’ or ‘dismission’ or ‘rejection’. Under Islamic Fiqh it is a release from marriage tie. It is the dissolution of marriage between the husband and the wife by the pronouncement of certain words. Any adult Muslim of sound mind can divorce his wife whenever he desires, without assigning any reason.

            The law regarding divorce as emanating from the Qur’an and the Sunnah and Fiqh is outlined as under:

1. The divorce is the most hated and unpleasant thing in Islam. According to a well reported Tradition, the Messenger of Allah said: “The most detestable of lawful things near Allah is divorce.” Despite that, Islam permits divorce because it becomes inevitable in some extreme situations when it is not possible for the husband and the wife to pull on together. It is allowed normally when all the efforts for reconciliation have proved abortive and there are no chances left for the couple to live together amicably.

2. To resolve the differences between the husband and the wife, resort can be made to arbitration. The Qur’an in its verse 35 of chapter 4 instructs its followers to appoint arbiters, one from husband’s family and one from wife’s family for making reconciliation and rapprochement. If the parties wish for settlement and peace, the efforts of the arbiters shall be successful and Allah would effect harmony between the spouses.

3. The method of divorce as propounded by the Qur’an and the Sunnah is briefly described in these words: If the husband intends to divorce his wife, he can do so by making a single pronouncement of divorce within Tuhr during which he has not had sexual intercourse with her, and then leave her to observe Iddah. After expiry of Iddah (three monthly courses) the divorce would attain finality. The other method is that the husband would pronounce divorce thrice in three successive Tuhrs, and in this way, the divorce would become irrevocable after the third pronouncement. In case of one or two divorces, the husband retains the right of Rajuah or reunion within period of Iddah by resuming sexual intercourse or by verbal retraction. However, after the expiry of Iddah, divorce becomes irrevocable and the husband’s right of Rajuah stands forfeited. Now, the couple has the right to remarry if they desire to live together. But when a husband has given three divorces, he has no right of revocation, neither the couple can remarry. In this situation, the parties can remarry only when the woman marries another husband and the latter dies or divorces her after actual consummation of marriage.

Tuhr is period of purity between two monthly courses and Iddah is the waiting period which a divorcee has to undergo before she can contract a second marriage.

4. The procedure of divorce enunciated by the Qur’an and Sunnah, as stated above, is spread over a period of almost three months, during which the husband has a right to revoke the divorce. It has been done with a view to check hasty, rash or an arbitrary action on the part of the husband and also to leave the door open for the parties to reconcile during the period. During Iddah the wife cannot be expelled from the house and she would be entitled to full maintenance and also to good treatment.

5. Those who pronounce three divorces at a single sitting, they have been condemned by the Holy Prophet. According to an authentic Tradition, the Prophet of Islam, when he heard of a man who had given three divorces to his wife at one time, got up enraged and said: “Are you playing with the Book of Almighty and Glorious Allah, while I am still amongst you?” So, the simultaneous pronouncement of three divorces was treated as a single divorce during the time of the Prophet and of Abu Bakr and even in the early days of the caliphate of Umar. Umar reportedly used to whip such persons who gave three divorces in one sitting. However, later on, Umar changed his mind when he found that people frequently divorced by three pronouncements. He, therefore, ordered to treat three pronouncements as three divorces and made them operative as a matter of punishment upon those who used this sinful method. This form of Talaq is called Talaqul Biddat or irregular divorce and is sinful being against the teachings of the Qur’an and Hadith. However, it dissolves the marriage irrevocably and immediately in the opinion of some jurists. But other jurists take it as single divorce which is not irrevocable. Shafii and Hanfi Law recognize this form of divorce though they consider it as sinful, but the Shias and Malki do not recognize this mode of Talaq. 

6. When a husband has repudiated his wife by making three divorces, the divorce becomes irrevocable. He cannot after that remarry her until after she has married another husband and that other husband has divorced her. This has been further explained by the Prophet in his traditions. According to the Prophet, marriage in such situation with the first husband is lawful only when the wife has consummated her marriage with the second husband, and the second husband has voluntarily divorced her or he has died.

The method of making a woman lawful for her first husband in common parlance is called ‘Halalah’. Prophet of Islam has condemned the man who makes a woman lawful for her first husband intentionally, and the first husband, has also been cursed for whom she was made lawful. Thus, Halalah is abominable and the most unpleasant method. Those who indulge in this practice intentionally are the most cursed persons.  

7. In case of divorce, the husband is not entitled to take back anything out of the dower which he has given to her, however great it may be (Al-Qur’an 4:20). If he has not given her dower already, he is obliged to make the payment of dower immediately at the time of divorce. For the divorced woman, the husband is required to make some provision as the Qur’an (2:241) deems it a duty for the righteous.

8. Al-Qur’an has given the right of obtaining divorce to a wife if she agrees to pay some ransom or compensation. This is called Khula. If the husband and wife are not able to keep the limits of Allah and they agree to dissolve the marriage on the condition that the wife gives some compensation, it is permitted by the law (The Qur’an 2:229). The jurists are generally of the opinion that such compensation should not exceed the dower given by the husband to the wife. Thus Khula is a kind of facility provided to the woman to secure divorce from her husband by returning a part of or full amount of the bridal gift or Mahr. According to a tradition the Apostle of Allah permitted the wife of Sabet-b-Qais to get divorce from her husband by surrendering a garden which had been given to her in Mahr.  

So the Islamic law stipulates that whenever a marriage is dissolved at the instance of the wife and there is no fault of the husband regarding his performance of marital obligations, the wife is the contract-breaking party and must, therefore, return the part or full of dower which she has received from the husband.

9. There was an evil custom in the “Days of Ignorance”, according to which a man would swear that he would not go to his wife for carnal connection. By this means he would put away his wife for indefinite period. He would keep her in suspense by neither divorcing her nor resuming cohabitation. This practice was resorted to as many times as a husband wished and, thus, the life of the wife became miserable. This custom is known as ‘Ieela. The Qur’an abolished this custom by warning such persons to take decision within four months about their course of action. They should either resume their conjugal relations and take back their wives or give them divorce (Al-Qur’an 2:226). In case the husband does not decide, the woman can take her case to a Qadhi who would order the husband to take her back or divorce her.

10. There was yet another evil practice which was abolished by the Qur’an. The man would say to his wife: “Thou are to me as back of my mother,” and thus separate her indefinitely. It was called Zihar. It was held to imply a divorce and freed the husband from any responsibility for maintenance of wife and children and other conjugal duties, but the wife was not allowed to leave the husband’s home or to contract another marriage. So this custom was not only degrading to a woman but also fatal to the lives of the children. Al-Qur’an abolished this custom by saying: “Such of you who put away their wives (by saying they are as their mothers) – they are not their mothers; none are their mothers except those who gave them birth-they indeed utter an absurd word and lie….”--(58:2). Such person who is guilty of Zihar has been commanded by the Qur’an in the subsequent verses to set free a slave or to fast for two consecutive months or to feed sixty needy persons as a mater of expiation. After undergoing this penalty he can touch his wife. But if he does not perform this prescribed penance, his wife has a right to apply to a court of law for judicial divorce.

11. If the husband charges his wife of adultery and has got no witness, the couple has to undergo what is called Lian. The procedure of Lian has been prescribed by the Qur’an in the verses from 6 to 9 of chapter 24. The Prophet of Islam used to separate such spouses who had preformed Lian. It has been held by the jurists that if the charges are false, the wife is entitled to sue for and obtain divorce from a court of law.

The procedure of Lian or imprecation as stated in the Qur’an is briefly described thus: If a husband charges his wife of adultery and has no witnesses, he shall swear by Allah four times saying that he is speaking the truth, and a fifth time he would invoke curse of Allah on him if he is liar. If the wife wants to deny the accusation and save herself from punishment, she would swear by Allah four times saying that her husband is telling lie, and a fifth time she would invoke wrath of Allah on her if the husband speaks the truth.

Lian literally means mutual cursing, while technically it signifies a form of divorce which is performed in the court and after mutual cursing, the Qadi separates the husband and the wife.   

12. From verse 2 of Chapter 65 of the Qur’an, some jurists have made the presence of two witnesses compulsory for divorce, while the others consider it optional. Sunni Law makes the presence of two witnesses essential at the time of marriage but not at the time of divorce. On the other hand, the Shiah doctors hold the presence of two witnesses as necessary at the time of divorce but not at the time of marriage.

There is a difference of opinion among scholars about calling witness to revocation of divorce and taking the wife back. According to Imam Malik and Shafi’i it is essential to call witness to the revocation of divorce. But Imam Abu Hanifa and Shafii (in one of his statements) do not think it necessary to call witness for revocation.

13. Upon divorce, the wife becomes entitled to deferred dower, and prompt dower if not paid. If the marriage was not consummated, she is entitled to only half dower.

14. There is almost a consensus of opinion among the scholars that a divorce pronounced in jest is valid and operative. This unanimous opinion of the learned is based on the tradition of the Prophet who is reported to have said: “There are three things which, whether undertaken seriously or in jest, are treated as serious: marriage, divorce and taking back a wife (after a divorce which is not final).” Thus, if an adult and sane person pronounces divorce in joke, that is valid. It is of no use saying afterwards that he was just joking. This rule is based on the rationale that if such divorce is not taken seriously, people would begin to play with the injunctions of the religion like a sport. However, divorce of the idiot is not lawful whether pronounced in joke or seriously.

15. Divorce under force, compulsion or duress is not valid. Even divorce in anger is unlawful. This is the view of three Sunni Imams – Malik, Shafi and Ibn Hanbal – who quote Hadith reported by Ayesha that the Messenger of Allah said: “There is no divorce and no emancipation by force.” However, Imam Abu Hanifa differs with them and maintains that divorce under force is valid.

16. Islam gives right to a woman to get divorce from her husband by the following means:

(a)   Talaq-i-Tafweez: If a husband has delegated the power of divorce to his wife, she can exercise the delegated power and can pronounce divorce.

(b)   Khula or Redemption: If she agrees to pay some consideration or compensation to her husband for her release from the marriage tie, the divorce would be known as Khula. (Please refer to serial No. 8 above).

(c)   Mubarat or Mutual Release: If the husband and wife, by mutual consent, agree to dissolve marriage conditionally or unconditionally, the woman would be released.

(d)   Lian or Imprecation: If the husband falsely accuses her of adultery, the wife has right to sue him and obtain divorce. (Please see serial No.11)

(e)   Zihar: In case of Zihar, if the husband does not expiate himself from prescribed penance, the wife has a right to apply to court for divorce. (Please see No.10 above).

(f)    Ieela: If in case of Ieela or vow of abstinence the husband does not resume conjugal relations, the wife can apply to the court for divorce. (Please see No.9 above).

(g)   Judicial divorce: A Muslim woman can also obtain judicial divorce from her husband under the Dissolution of Muslim Marriages Act, 1939, on the grounds mentioned in that Act such as absence of husband, imprisonment of husband, impotency or insanity of husband, his cruelty, husband’s failure to maintain her or his failure to perform marital obligations, etc.

(h)  Talaq-e-Taliq: it means contingent divorce. A divorce may be pronounced to take effect on the happening of a future event. For example, a husband agrees to pay his wife maintenance allowance within a specified time and in case of his default the divorce would take place. Thus, the failure to honour the agreement would operate as valid divorce.   

17. Effect of apostasy: Apostasy from Islam of the husband operates as a complete and immediate dissolution of the marriage. If a woman converted to Islam from some other faith, re-embraces her former faith, the marriage would stand dissolved. But mere renunciation of Islam by a married woman or her conversion to any other religion does not, ipso facto dissolve the marriage. However, she may sue for dissolution on any of the grounds mentioned in Section 2 of the Dissolution of Muslim Marriage Act, 1939.

Iddah

            Kindly keep in view the following verses which deal with this subject: 2(228); 2(234); 2(235); 33(49); 65(4); 65(5);

            The rules of law made by the jurists in the light of Qur’an and the Sunnah are discussed as under:             

1. Iddah is the period of waiting or probation during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband, to remain in seclusion and abstain from marrying another man. Syed Ameer Ali calls it ‘interval which a woman is bound to observe between the termination, by death or divorce, of one matrimonial alliance and the commencement of another. Thus, Iddah is the period during which a divorced woman or a widow is not permitted to remarry.

2. Period of Iddah in case of a divorced woman with whom marriage has been consummated and who is still in the age of menstruation is three monthly courses. In case of a divorcee who is past the age of menstruation and in the case of a divorcee who has no menstruation (because it has not yet started), the period is three months. In the case of a pregnant woman the Iddah is up to her delivery. In the case of a widow, the waiting period is 4 months and 10 days. In case of a marriage which has not been consummated, there is no iddah to be observed. In the case of a pregnant widow, if delivery or miscarriage takes place before 4 months and 10 days, the remaining period will have to be observed, according to some jurists. The period of Iddah when husband dies after divorce would run from the day of his death.

3. The primary purpose of the Iddah is two fold: firstly the ascertainment of possible pregnancy and thus preventing the confusion of parentage of the would-be baby; secondly to provide opportunity to the husband and wife to resolve their differences and reconcile if the divorce is revocable.

4. During the period of Iddah, the woman, who has been divorced by less than three pronouncements and is pregnant, shall be entitled to have both dwelling and maintenance. A woman separated by revocable divorce shall also have dwelling and maintenance, even if not pregnant, during the period of Iddah. As for a woman whose husband has died, she will have no maintenance but will have dwelling during the Iddah. In the case of a woman who has been divorced irrevocably but is pregnant, both maintenance and lodging are almost unanimously approved by the jurists.

However, there is some difference of opinion amongst the scholars about maintenance and lodging for a woman who has been divorced irrevocably by three pronouncements but is not pregnant. According to Imam Abu Hanifa, such a woman is entitled to dwelling and maintenance during the period of her Iddah. He and his followers base their opinion on verse 6 of chapter 65 of the Holy Qur’an.

Maintenance

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. Under Islamic law, a person is bound to maintain his wife and children and in certain circumstances his parents. The law regarding maintenance is briefly discussed as below:

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 men the rights of women regarding 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 also enjoins upon the believers to accord proper treatment to their wives.

Duty of providing maintenance to the wife is so important that the Qur’an makes even a divorced wife 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 pregnant, 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)

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)

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)

Please refer to verses 2:215; 2:233; 2:236; 2:241; 4:34; 65:6-7;

Polygamy

Islam permits a male Muslim to have more than one wife at a time although number of wives has been restricted to maximum four. The rights of a woman in case of multiple or plural marriages of her husband have also been protected. The relevant verses of the Qur’an are as follows:

1)     And if you fear that you will not be able to deal fairly with the orphans, then marry the women (having orphan children with them) who seem good to you, two or three or four. But if you consider that you will not be able to do justice with them, then marry only one or (marry) a slave girl who is in your possession. Thus it is more likely that you will not do injustice.   (4:3)

2)     You will not be able to do full justice between your wives even if you earnestly wish to do so. Hence, do not incline towards one of them to the extent that you leave the other hanging (as in suspense). And if you make reconciliation (with them) and keep away from evil, then Allah is ever Forgiving, Merciful.   (4:129)

The relevant Traditions of the Prophet of Islam are as follows:

1)     Ibn Umar reported that Gailan-b-Salamah al-Saqafi accepted Islam while he had ten wives of the Days of Ignorance. They also embraced Islam with him. The Holy Prophet said: Keep four and be separate from the rest.   (Ahmad, Tirmizi and Ibn Majah)

2)     Naufal-b-Mu’wayiah reported: I accepted Islam while there were five wives with me. I asked the Prophet who said: Separate one and keep four.   (Sharhi Sunnat)

3)     Ayesha reported that the Messenger of Allah used to have turns among his wives and do justice. He used to say: O Allah! this is my division in what I can control. So don’t blame me in what Thou dost control and I cannot control.   (Tirmizi, Abu Daud, Ibn Majah)

4)     Abu Hurairah reported from the Holy Prophet who said: When a man has two wives and he does not deal equitably between them, he will come on the Resurrection Day with a side hanging down.   (Tirmizi, Abu Daud, Nisai)

In the light of the above mentioned verses of the Qur’an and the Traditions of Prophet Muhammad (PBUH) the subject of polygamy i.e. the permission to man of having wives upto four at a time is discussed as under:

1. The Qur’an, in its verse 3 of chapter 4 permits polygamy and the following hard and fast rules have been laid down about it:

a.      If you fear that you would not be able to deal fairly and equitably with the orphans, you should marry the women who (have these orphans with them and) seem good to you.

b.      You are permitted to marry even two, three or four women but not more at a time provided you can treat them justly and equitably.

c.      If you have reason to fear that you cannot do justice with as many wives, you should marry only one.

‘Adl or justice has not been defined in this verse. However all the commentators of the Qur’an unanimously hold that justice in this verse means equality of treatment in food, clothing and lodging. Mu’tazilite doctors, however, hold that in addition to food, clothing and lodging there must be equal treatment in love and affection also.

2. The Qur’an in its verse 129 of chapter 4 holds that you cannot deal (in matter of love and affection) equally with all of your wives however much you wish. Therefore, you are directed not to incline towards one so much that you leave the other in suspense. There may be so many factors on account of which it would be difficult for the husband to deal equally between them. For example, difference in temperament, appearance, education, family background, age, ability to look after the household affairs, etc., may cause the husband to prefer one above the other. However, the husband must try his best to keep balance and accord them equal treatment in the things on which he has control like food, clothing and lodging. On the things on which he has no control like love and affection, even there he should not display by his outward behaviour that he loves one wife and hates the other one. The husband should not incline towards his favourite one altogether and neglect the other one completely. On the basis of this verse (4:129) some people try to establish that monogamy is the only form of marriage which is right because polygamy is permitted with the condition of justice and in this verse, Allah has Himself pointed out that maintaining justice between wives is impossible. However this assumption is nor correct when we look at the second sentence of this verse which reads: “But turn not altogether away (from one), leaving her as in suspense.”

3. There is almost consensus of opinion among all the scholars of the Qur’an that verse 3 of chapter 4 of the Qur’an permits polygamy. However, the injunction is in the nature of permission and not in the nature of order or command. The Qur’an simply permits its followers to contract plural marriages but it does not command them to essentially do so. It also restricts the maximum number of wives at four and makes the permission subject to the condition that the husband must do justice with all the wives and deal with them equally. In my view there is another condition or proviso also and that is that the choice of wives for plural marriages must be from among the widows. It is only in this sense that the relevance of the opening sentence of this verse (4:3) is justified which reads: “And if you fear that you will not be able to deal fairly with the orphans…….”. If this sentence of the verse under discussion is read and considered with the preceding verse (4:2), the meanings become more clear. “Give unto orphans their wealth. Exchange not the good for the bad (in your management thereof), nor absorb their wealth into your wealth. Lo! That would be a great sin. And if you fear that you will not deal fairly by the orphans, marry of the women, who seem good to you, two or three or four…..” (4:2 and 4:3). It is clear from this that the Qur’an is exhorting its followers to do justice with the orphans who are under their care. It is against this background that polygamy has been permitted so that they may be able to do justice with the orphans and treat them fairly by marrying the mothers or the sisters of the orphans and thus becoming their close relations. In that way they would feel and develop love, affection and tenderness towards the orphans and would treat them kindly as if the orphans were their own children.

4. The Qur’an did not, in fact, introduce polygamy. That existed in pre-Islamic Arabia and also in the neighbouring communities. Al-Qur’an actually limited the number of wives, which was unrestricted among the pagans, to four and also subjected polygamy to a very strict condition of doing justice between the wives. Traditions of the Prophet of Islam also support this interpretation.

5. The jurists have justified the need of polygamy in the following situations:

a)     In case of war men are generally killed in large numbers. Thus the number of men is decreased while the number of females increases specially of helpless widows and orphans. If polygamy is not permitted to support the widows and the orphans and also to bring the unmarried women into marriage bond, it would lead not only to economic misery of many families but also to immoral practices like prostitution, adultery, sexual anarchy etc. Such a social disintegration can be averted only if a man is permitted by law to have more than one wife.

b)     The wife may be sterile and the natural desire for progeny may lead the husband to contract another marriage, who does not want to divorce the first wife but at the same time wants to have children.

c)     Some men may, by nature, be sexually very strong. So they cannot remain content with one wife. A woman is disabled on account of menses for almost a week in every month and besides that, pregnancy, delivery and weaning of the child is spread over almost a period of more than two years. During these periods, she is unable to meet the husband’s biological needs. Hence the need of the husband for the second wife is necessary. 

d)     The wife may be chronically diseased and unable to satisfy the sexual urge of her husband. In certain cases she may be able to perform marital obligations but her fragile health may not withstand pregnancies and child births. Hence a second marriage in such a situation may become a necessity to keep the husband away from indulging in immorality.

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