Marriage Maintenance General Essay

Prepared for MJ 2023

Introduction:
Islamic Marriage bestows several rights on both the male and female when they marry such as the
right to dower, divorce, On the other hand another right which is going to be discussed in this essay
is the right provided of Maintenance. This is a right which if afforded to a muslim wife, however
there are certain pre-conditions attached to it order to successfully claim this right and there are
certain efforts which the wife must to in order to claim this right, which in comparison to dower is
different as it is considered a gift which is given to bride which has no conditions attached to it
and thus Maintenance shares common stance with that of consideration which is one of the basic
element of contract law in English legal system.
Detail:
As far as the right of maintenance is concerned then one of the duty of wife is that she must be
obedient and faithful towards her husband in catering his needs and wants, and in Islam this right
is automatically attached to the start of valid Islamic marriage till the period of iddat. Further the
Hanafi School explains that the right of maintenance is given to the wife in return for her
surrendering control over her to the husband. Whereas in the Holy Quran the right of maintenance
is described by Allah (S.W.T) as protection of each other’s garments as men are the protectors of
their Wives and to support them financially, whereas for Women the order is to be Obedient and
devoted towards their husbands.
In the modern era and the growing influence of feminism in the world it has been seen that these
activists argue for the equal rights for women, however it is noteworthy the Islam is the religion
which provides females with the most rights in form of protection and for their welfare, because
Islam discourages male supremacy.
One of the conditions of Maintenance is to be loyal towards their husband and should have love
and affectionate relationship with them. However according surah 4 verse 34 of Holy Quran if “
you sense ill-conduct from your women, advise them ˹first˺, ˹if they persist,˺ do not share their
beds, ˹but if they still persist,˺ then discipline them ˹gently˺. But if they change their ways, do not
be unjust to them”. According to Doi this is just an expression and is not encouraging anyway for
men to beat their wife and in support of this he quoted the Hadith by Holy Prophet (PBUH) in
which he stated that if your women are disobedient to the extent that they are in needed to be
disciplined then use Miswak (tootbrush). This means that is not advisable to use force or coercive
methods in order to reform the behavior of wife, because at the end harming one’s wife is not the
purpose, its reformation.
With respect to the right of maintenance it also consists of providing necessaries such as food,
cloth and shelter as well as other necessary things (M Jasab v Haji Adnan), however they can be
fine-tuned in accordance with the changes that takes place and requires in the modern world
(Ahmadullah v Haffizudin), For instance in the modern times rights which could be termed as
necessities for the purpose of maintenance could include property, electronic gadgets etc. However
this right of maintenance could be lost if the wife becomes disobedient and does not fulfil her
duties. For Example in the countries such as Jordan and Syria, A Muslim wife cannot adopt a
working culture or leave the house without her husband’s permission considering its unlawful
nature. But her right to maintenance cannot be revoked in exceptions such as dower not being paid
to her, or her husband being violent and subjecting her to domestic abuse or in engaged in a
polygamous relationship without her express permission, these could serve as exceptions to the
revocation of the right of maintenance and would not be attributed to disobedience by wife, as
there needs to be a balance of power between both the right of husband and wife.
One of the important issue which is faced with respect to the right of maintenance is its calculation
and what to award a wife in terms of maintenance. It depends upon various factors such as
financial, sociological, emotional etc. which is the subjective assessment of the circumstance.
Standards of both the spouses are taken into consideration by the courts. Whereas the Hanafi
School shares the view that if the husband is wealthier than his wife, there should be an average
value for the right of maintenance, likewise if this is not the case then it will be judged upon past
living standard of the husband. According to Malaki and Hanbali’s the positon taken by Hanafi in
this context is more favorable to men compared to the women because regardless of which spouse
is wealthier, it should mean for either rich or poor for both the spouses. On the other hand Shia
school is more catered towards women because for them regardless of the status of husband being
rich or poor. As far as Ithna Shari school they take into consideration the standard of wife only.
Article:
For Smith Michael D the conditions for maintenance such as demanding loyalty, obedience and
reliance are all patriarchal driven and for him feminists see this as a failure as it leads to domestic
violence. However according to him those men who have non-patriarchal attitude treat their wives
with respect.
Legal Situation in Different Countries:
With respect to the right of maintenance being valid till the iddat period there has been many
reform done on this view and there has been certain deviation from the classical view of for the
right of maintenance in many jurisdictions.
India: With India, it has been set that husbands are required to support their wife post-iddat period
in order to not become burden on the state resources, because otherwise the state has to fulfil the
needs of a divorced women. Which arguably is not a valid justification rather the reform should to
provide them with essential resources so that they can be become financially independent for
instance entrepreneurship platforms, freelancing opportunities etc. It has also been stated that a
women who if deprived of her right of maintenance is eligible to divorce. According to s.125 a
man has the duty to maintain his wife even after divorce and till she gets married to another,
Likewise s.127 (3)(b) states if a wife asks herself for divorce then she is not eligible for post-iddat
maintenance. In the case of Shahbano Begum the court upheld that a divorced women is eligible
to receive sum of money if she is not capable of financing herself from the husband.
Pakistan: With respect to Pakistan there is no explicit statute available in relation to post-iddat
maintenance unlike india, However the commission of marriage and the family courts can grant
post-iddat maintenance to wife is she was divorced on a non-justifiable basis. Moreover Maulana
Eihtasham Janvi was in negative of this and for him divorce (talaw) lead to end of marital rihjts
and there is no need for post-iddat maintenance. On the other hand Mensky Pakistan states there
are no reforms taken in pakistan in relation to divorce and maintenance and this lead to women
being treated unfairly and had to go live with their parents post-divorce (M.Sabir v Uzma). As far
as the situation of pakistan legal jurisdiction is concerned then it is not much favorable to women
to due to the type of values in its society and the pressure from tribal and old valued customs.
Bangladesh: Bangladesh follows the footsteps of india in relation to its approach toward right of
maintenance of muslim women and that women should be award post iddat maintenance till they
engage in a new martial relation (Shamsun Nahar v Begum).
UK: Spousal maintenance is an amount awarded by the Courts to be paid by the spouse with the
higher income to the spouse with the lower income when a couple divorces. It is only awarded if
one party cannot support themselves without payments from the other. It can be awarded for a
specified term or for life in some cases. Where the couple have pensions, it often ends on
retirement. The recipient will lose their right to receive the maintenance if they re-marry, however
it does not end automatically if they simply cohabit. Consideration will be given by the court as to
how much of the recipient’s reasonable needs can be met by their own resources. These will
include not only any earned income but also child support, tax credits and child benefit and any
other income, whether from investments/capital, which could be used to generate an income.
(ParaP Needed)
For Zoya Hassan in her article she expressed the views that religion is being used a tool to bend it
according to political wills and thus it considered a threat to society and the religion itself when
rights of women are concerned.
Conclusion: “Adjust according to exam statement”
Feedback Received By Sir M: “Good Attempt”