Q592 :After a marriage lasting only four months, a
man was separated from his wife for one year, during which she gave
birth to a baby girl. A year later, she wrote to him saying “According
to the Shaf’ie law, a separation of husband and wife for one year means
that the marriage is held void. Since we followed the Shaf’ie law, we
are no longer man and wife.” She claimed her dower through a court of
law and she is now receiving monthly maintenance for the child. A
lawyer has advised the man not to divorce his wife, because under
Indian law, the man will have to pay monthly maintenance which will be
very expensive. The woman is employed in a bank in India. Could you
please explain that under the Shaf’ie law, the marriage is held void as
a result of separation for one year or longer. Is it necessary that the
man divorces his wife? If he does, is she eligible to receive monthly
maintenance, even if she is employed? Will the man need to pay the
marriage expenses of the girl when she is of marriageable age? If so,
how much? Can a country enforce any law on Muslims which is against
Islam?
A592 : I admit that this is the first time I hear
that in any Islamic school of thought a separation of man and wife for
any length of time could render the marriage void. Your letter,
however, made me rush to the highly valuable book entitled Al Umm
written by Imam Al-Shaf’ie and in which he discusses all aspects of
Islamic Law, whether it pertains to faith, worship or family matters as
well as other transactions within the Muslim netmunity. It may nete as
a surprise to that woman that no such ruling as she has claimed is
entered by Imam Al-Shaf’ie. How could it be when it has no basis
whatsoever in the Qur’an or the Sunnah? What I can tell this woman is
that she is still married to her husband despite the fact of their
separation, and this is according to the Shaf’ie school of thought as
well as all other Islamic schools of thought. It is true that she may
have claimed her dower through a court of law. The court will
definitely rule in her favor because a Muslim’s wife is entitled to
receive a dower at the moment the marriage contract is made. If it is
not paid, then it remains a debt which is owed to her by her husband.
She can claim it at any time. When she does, he cannot refuse to pay
it. Again, a judgment which forces the husband to pay maintenance for
his child is perfectly in order. He is responsible for the upbringing
of the child, even though his wife may be working and may receive a
higher salary than his own. It is indeed his responsibility to look
after the child. Even though a divorce may take place, the upbringing
of the child remains his responsibility and he will have to pay
maintenance money for the child as long as the child is with her
mother. In normal situations, a girl may stay with her divorced mother
until she is nine, when the father may claim her custody. You ask
whether it is necessary for the man to divorce his wife. In the
circumstances, it seems the proper solution. What is the point in
keeping such a marriage going when matters have been so aggravated as
to make the woman apply for judgment against her husband? You mentioned
the lawyer’s advice to the man against divorce in order to escape the
burden of maintenance. This is an intricate problem in the particular
case of India. In Islam, a man is required to maintain his divorcee,
during her waiting period, which normally extends to approximately
three months, unless the woman is pregnant at the time of divorce when
her waiting period lasts until her delivery. This does not seem to
apply in this case. During her waiting period, a divorcee stays in her
husband’s home although they must sleep in separate bedrooms and she is
not required to do any house work. It may be that the lawyer has given
his advice on the basis of the famous ruling which an Indian court
passed, requiring a Muslim husband to maintain his divorcee, who was
very old, as long as she lived. There was an outcry among the Muslim
netmunity in India against this ruling. I am not sure what the exact
legal position is now in India in such cases, but Islam does not
require a man to support a woman who is no longer his wife. In the
Islamic family system, the woman should be supported by her own people,
i.e. her father or her brothers, or uncles, etc. The point is that
marriage is a legal contract. When it is broken, then all rights that
have been established by such a contract nete to an end. Maintenance is
one such right. Your question is whether it is necessary that the
couple should get divorced. The answer is that they know better. I
cannot tell them whether it is necessary or not. However, in such
cases, the Islamic view is that if the man and the woman want an
amicable solution to their problem, then two arbiters, one from her
family and one from his family, should meet to discuss matters. If an
agreement is reached, well and good. If, on the other hand, they find
that a proper acnetmodation is difficult or impossible then the two
parties may agree on the proper procedure for divorce. If this is
agreed, then the man may divorce his wife and give her all her dues. If
she still has any dower outstanding, it is payable. She is also
entitled to maintenance during her waiting period, as I have already
explained. After that, she is not entitled to any maintenance. Her own
family should support her. Since she is working in a bank, she is
presumably able to earn her own living. However, maintenance is payable
to the child as long as she needs to be supported. Perhaps all these
matters including maintenance of the wife during her waiting period,
payment of outstanding dower, if any, and maintenance and custody of
the daughter should be sorted out by the two arbiters or by the man and
his wife themselves. They may wish to put it down in a legal document,
duly witnessed, which outlines their agreement in order to prevent any
subsequent animosity or distress. You ask about the expenses of the
marriage of the daughter, and whether the father is liable to pay
these. This seems to be a question which anticipates events that will
not take place for many years. Any way, the girl is the man’s daughter
and he is responsible for her upbringing in the same way as every
father is responsible for the upbringing of his daughter. Whatever
expenses are incurred in connection with her living, education,
marriage and illness are borne by her father. This is his
responsibility from the Islamic point of view. How things develop in
future is something which no one can predict. It seems to me, however,
that this father does not want to know anything about his daughter or
her mother. If he is going to leave the upbringing of his daughter to
her mother, he does not only relinquish his responsibility but he
relinquishes his right. In Islam, rights are always related to duties.
When someone does not fulfill an incumbent duty, he forfeits the right
to which he may be entitled as a result of fulfilling his
responsibility. It may be agreeable to both himself and his wife that
their daughter should continue to live with her mother, permanently. If
they enter that into the agreement, they are free to do so. However,
this does not relieve the father from his duty to support his daughter.
Your last point is whether a country can enforce on Muslims a law
different from that of Islam. The answer is that the government in
power can enforce any law. Most countries, however, do not like to have
problems with their people or with minorities. Therefore, they try to
take the beliefs of minorities into account and provide for the
implementation of the family law of religious netmunities. But
sometimes, a person may apply to the civil authorities to arbitrate in
his or her particular dispute according to the civil law of the
country, rather than the religious law of his or her netmunity. When
this takes place, the authorities will grant the request of the
applicant and judge that dispute in accordance with the provisions of
the civil law. Therefore, if this man’s wife has found out that the
civil law will give her more than that to which she is entitled under
Islam, she may resort to the law in order to get that. However, that
does not make what she gets through the law lawful to her. No
authority supersedes that of Allah. Since Allah has ruled in matters of
marriage and divorce, then His law should be implemented. If one
resorts to any other authority or law-enforcing agency in order to get
something which is more advantageous to him than what Islam gives him,
this does not make that extra thing lawful to him. Muslims must always
abide by the law Allah has promulgated and explained in the Qur’an and
in the sunnah of the Prophet (peace be upon him).
Our Dialogue ( Source : Arab News – Jeddah )