Divorce is only valid from a legally competent and willful husband. 1313
لاَ يَصِحُّ الطَّلاَقُ إِلاَّ مِنْ زَوْجٍ، مُكَلَّفٍ، مُخْتَارٍ.
Book of Divorce
Maintenance of Women in 'Iddah
الطَّلاَقِ
Chapters
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
Chapter on Maintenance of Women Observing ‘Iddah
1412
1412. Introduction
In this chapter, Imam Ibn Qudâmah discusses the maintenance due to the woman during her waiting period, which varies depending on the type of separation. The termination of marriage may be by death, divorce, or annulment. Divorce may also be finalized (bâ’in) or unfinalized (raj‘iy).
Note that all divorces are finalized after reaching the end of the waiting period, but the discussion here concerns the maintenance during the waiting period. If the husband does not have the right to take his wife back, the divorce is considered finalized during the waiting period.
Note that all divorces are finalized after reaching the end of the waiting period, but the discussion here concerns the maintenance during the waiting period. If the husband does not have the right to take his wife back, the divorce is considered finalized during the waiting period.
Mut‘ah (Consolation Gift or Alimony)
There is another financial right to which women are entitled upon separation; this is mut‘ah (translated as alimony or a consolation gift). This was addressed briefly in The Book of Ṣadâq.
(A) + (+H): The mut‘ah is obligatory only if the woman was divorced before consummation and before a ṣadâq had been appointed for her. They argued that these women are the only ones who do not get a ṣadâq (or half of it), so the mut‘ah is in place of that, and they cited the saying of Allah:
{There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation – the wealthy according to his capability and the poor according to his capability – a provision according to what is acceptable, a duty upon the doers of good.} (al-Baqarah 2: 236)
لَّا جُنَاحَ عَلَيْكُمْ إِن طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ
(a) + (-Z, -t): Every divorced woman is entitled to mut‘ah. They cited the generality of Allah’s statement:
{And for divorced women is a provision according to what is acceptable – a duty upon the righteous.} (al-Baqarah 2: 241)
وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُوفِ حَقّاً عَلَى الْمُتَّقِينَ.
باَبُ نَفَقَةِ اْلمُعْتَدَّاتِ
They are three categories:
First: The woman whose divorce is unfinalized, so her husband can take her back. She is entitled to maintenance and accommodation.
1413
وهن ثَلاَثَةُ أَقْسَامٍ: أَحَدُهَا: الرَّجْعِيَّةُ، وَهِيَ: مَن يُمْكِنُ زَوْجُهَا إِمْسَاكَهَا، فَلَهَا النَّفَقَةُ وَالسُّكْنَى.
If the husband of an unbeliever becomes Muslim, or the wife of a Muslim apostatizes, the wife is not entitled to maintenance. If the wife of an unbeliever becomes Muslim, or the husband of a Muslim apostatizes after consummation, the wife is entitled to maintenance. 1414
وَإِنْ أَسْلَمَ زَوْجُ اْلكَافِرَةِ أَوِ ارْتَدَّتْ امْرَأَةُ اْلمُسْلِمِ فَلاَ نَفَقَةَ لَهُمَا، وَلَوْ أَسْلَمَتِ امْرَأَةُ اْلكَافِرِ أَوِ ارْتَدَّ زَوْجُ اْلمُسْلِمَةِ بَعْدَ الدُّخُوْلِ فَلَهَا نَفَقَةُ اْلعِدَّةِ.
Second: The one whose separation (during the life of a husband) is finalized, such as through divorce or annulment, is never entitled to accommodation. She is entitled to maintenance only if she is pregnant. 1415
الثَّانِيْ: اْلبَائِنُ فِيْ اْلحَيَاةِ بِطَلاَقٍ أَوْ بِفَسْخٍ، فَلاَ سُكْنَى لَهَا بِحَالٍ، وَلَهَا النَّفَقَةُ إِنْ كَانَتْ حَامِلاً، وَإِلاَّ فَلاَ.
“Divorced women,” Imam Ibn Taymiyah argued, is general in implication, and the obligation is emphasized by the word “duty” (ḥaqq). This is further emphasized by the phrase “upon the righteous”.
(-S): It is granted to all divorced women except those who have a designated ṣadâq and are divorced before consummation (who will only get half of the ṣadâq). Ash-Shâfi‘i’s position was chosen by AMJA’s Family Code.
There is an obvious need to adopt this position in arbitration in the West, since it may spare the Muslim woman the fitnah (test) of pursuing half of the possessions of her husband via the statutory laws. In determining the amount of this alimony, the arbitrators should take into consideration the condition of the husband and wife and the duration of their marriage.
1413. She is treated like a wife in regard to her maintenance and accommodation.
1414. The individual Muslims will have to comply with the statutory laws of their respective jurisdictions.
1415. The Non-Pregnant Woman Whose Divorce Is Finalized (Bâ’in)
(A): She is not entitled to maintenance or accommodation. In general, if the husband is not entitled to take her back, then she is not entitled to maintenance unless she is pregnant.
Fâṭimah bint Qays (RAH) was divorced by her husband for a third time, and she asked the Messenger of Allah (SA) about maintenance for a woman in her situation. He said:
“She is not entitled to accommodation or maintenance.” (M – from Fâṭimah bint Qays)
لَيْسَ لَهَا سُكْنَى وَلاَ نَفَقَةٌ
She is entitled to compensation herself (which amounts to maintenance) if she is the ḥâḍinah (physical custodian) of his children. This is because her caring for the children may prevent her from seeking provisions or getting married; it should not be an undue burden on her when the children’s father is capable of meeting their financial needs.
(-H): She is entitled to maintenance and accommodation. This was also the position of ‘Umar ibn al-Khaṭṭâb. They used the general implication of this verse:
{Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth...} (aṭ-Ṭalâq 65: 6)
أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم مِّن وُجْدِكُمْ وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ وَإِن كُنَّ أُولَاتِ حَمْلٍ فَأَنفِقُوا عَلَيْهِنَّ حَتَّىٰ يَضَعْنَ حَمْلَهُنَّ.
Note that the Ḥanafis do not accept the divergent implication (mafhoom al-mukhâlafah), so according to their principles, the conditional statement in the verse above is not sufficient to indicate the lack of maintenance for the non-pregnant divorced woman during her ‘iddah.
(-M, -S): She is entitled to accommodation only. They argued that this is the meaning of the verse above. They also required her to stay in the marital home during the ‘iddah, but since the divorce is final, the accommodation must be able to be divided so that each one has separate quarters. If that is not possible, then the husband should move out until the end of the ‘iddah.
In al-Mughni, Ibn Qudâmah recommended that the husband allow his ex-wife to stay in the marital home after a final divorce until the end of her ‘iddah. This is to steer away from a conflict with the three other madh-habs, since they require her to stay in the marital home.
Third: The woman whose husband has died is not entitled to maintenance or accommodation. 1416
الثَّالِثُ: الَّتِيْ تُوُفِّيَ زَوْجُهَا عَنْهَا، فَلاَ نَفَقَةَ لَهَا وَلاَ سُكْنَى.
The Pregnant Divorced Woman, Whether Her Divorce Is Finalized or Not
All scholars agreed that she is entitled to maintenance and accommodation, because of the verse above.
1416. The Accommodation for the Widow
(A) + (+H): She is not entitled to accommodation, whether she is pregnant or not, because her husband’s estate will have already been transferred to his heirs. Her maintenance during the pregnancy could then come out of her share.
(A2): She is entitled to accommodation only if she is pregnant. They likened her to the pregnant one after a finalized divorce.
(-M, -S): She is entitled to accommodation in both cases because she is bound to that home by the Sharia.
Summary: If the marital home was owned by her husband, she should be left there to finish her ‘iddah. If it was rented and the husband had paid the rent in advance, the same applies, according to the stronger position. If he had not paid the rent, and she can pay it herself, then (A) will not require her to pay the rent from her own money, but it may be required according to (a) + (-H), whereas (-M, -S) will take the rent out of the husband’s inheritance; if she is unable to pay the rent, they all allow her to move to her family’s home and finish the ‘iddah there.
Chapter on the Waiting Period for Slave Women
1417
باَبُ اسْتِبْرَاءِ اْلإِمَاءِ
وَهُوَ وَاجِبٌ فِيْ ثَلاَثَةِ مَوَاضِعَ: أَحَدُهَا: مَنْ مَلَكَ أَمَةً، لَمْ يُصِبْهَا حَتَّى يَسْتَبْرِئَهَا، الثَّانِيْ: أُمُّ اْلوَلَدِ وَاْلأَمَةُ الَّتِيْ يَطَؤُهَا سَيِّدُهَا، لاَ يَجُوْزُ لَهُ تَزْوِيْجُهُمَا حَتَّى يَسْتَبْرِئَهُمَا. الثَّالِثُ: إِذَا أَعْتَقَهُمَا سَيِّدُهُمَا أَوْ عَتَقَا بِمَوْتِهِ، لَمْ يَنْكِحَا حَتَّى يَسْتَبْرِئَا أَنْفُسَهُمَا، وَاْلاِسْتِبْرَاءُ فِيْ جَمِيْعِ ذٰلِكَ بِوَضْعِ اْلحَمْلِ إِنْ كَانَتْ حَامِلاً، أَوْ حَيْضَةٍ إِنْ كَانَتْ تَحِيْضُ، أَوْ شَهْرٍ إِنْ كَانَتْ آيِسَةً أَوْ مِنَ اللاَّئِيْ لَمْ يَحِضْنَ، أَوْ عَشْرَةِ أَشْهُرٍ إِنِ ارْتَفَعَ حَيْضُهَا لاَ تَدْرِيْ مَا رَفَعَه.
1417. Please refer to the appendix on slavery.
Maintenance of Women in 'Iddah
( Page : no 129)