متعة الطلاق وتقسيم الممتلكات
بعد وقوع الطلاق البائن

BY DR. MOHAMAD ADAM EL SHEIKH
RETIRED JUDGE OF SHARIAH COURTS.

Founder and General Manager of Darul Hikmah
For Islamic Arbitration and conflict resolution.
P.O.Box 1250 Falls Church, VA 22041, USA

E.mail : director@darulhikmah.org, www.darulhikmah.org

Introduction:

All praise due to Allah the Lord of the Universe, and due prayers and blessing be upon the Seal of the Prophets Muhammad, his Family members, his Companions and all those who follow his guidance to the Day of Resurrection.

The subject matter of this Study is the Post divorce Financial Support and its affinity to Mut’at al-Talaaq as we know it in the Islamic jurisprudence .

At the outset and before embarking on the subject of this study, I would like to express my gratitude to IIIT for offering me the opportunity to present this paper before such a distinguished gathering of Muslim jurists and intellectuals.

For a long time, I have been thinking about addressing the subject matter of this paper through Friday sermons, in general lectures to audiences across the continent or during National and International Conferences. However, taking into consideration the sensitivity and the nature of the subject matter on one hand and the intellectual level of the audience on the other, I opted to wait for a more conducive atmosphere with more suitable venue and audiences who are equipped with better understanding of the current complexities engendered by the modern global life system that encountering Muslims women in general and the Minority Muslim women in the West in particular.

The target audiences of this study are the Muslim jurists who would appreciate the fairness, and justice of the Islamic Shari’ah law for its caring for women in general and for the divorcee Muslim women in particular. The jurist would, strongly uphold the right of the divorced women as illustrated in the Holy Qur’an, applied by the Prophet (pbuh) and eventually join hands with me to develop an effective approach for reviving such Qur’anic and prophetic injunctions pertaining to Post Divorce Financial Support, for the protection of the contemporary Divorcee Muslim women in general, and in the Western hemisphere in particular.

The predominant scholastic understanding and prevailing judicial applications in the Muslim world of today indicate that women are not entitled to any Post Divorce Financial Support (Mut’ah al-Talaaq ) and property settlement or any wealth of their household that accumulated during the marital course under the pretext that these women have already exhausted their shares by being sheltered, clothed, and fed by their husbands during the period of their marital life. They conclude by saying that those women are only entitled to a three months spousal support during their religiously prescribed waiting period, known as (Eddat al Talaaq).

As a former Judge of Shariah Courts in Sudan, as a former Resident Imam of one of the largest Islamic Centers in the USA (Dar-al-Hijrah), as an Islamic Adjudicator and Arbitrator for the Muslim Community for more than twenty years in North America, I have encountered and entertained numerous cases of this nature. And I have seen the injustices imposed against divorced women and their suffering due to neglecting the Islamic rules of the Post Divorce Financial Support ( Mut’at al-Talaaq ). These un-Islamic un-humane treatments of divorced Muslim women triggered my attention and motivated my conscience to address this topic.

Although the Qur’an has addressed this topic in its several verses and the practical Sunna has confirmed its application during the lifetime of the Prophet (pbuh), his companions and the successors, yet this subject matter has become one of the most marginalized and neglected parts in our Islamic Transactional Jurisprudence.

In a brief research paper, in the year 2003, I partially, discussed this matter with one of our contemporary scholars of jurisprudence. Some of those scholars do agree with me, nonetheless, were hesitant to speak out against what they called the common understanding of the Muslim jurists for centuries, so they opted to distance themselves from such an audacious pace, while other scholar friends manipulated to attribute the initiative for themselves.

In this study, I will endeavor to address Muslim women’s Post-Divorce Financial Support (Mut’ah al-Talaaq ) as it is traditionally known in the Islamic Jurisprudence, with my personal comments and opinion along with some classic and modern support .

This paper shall be divided into Chapters and Sub-Chapters as follows :

1. Chapter one :
In Chapter one I will cover the following points:
a) Reporting the Qur’anic verses where the Post Divorce Financial Support on behalf of divorced women were manifestly originated.
b) Commentaries and the opinions of the commentators on the quoted verses.

c) Perplexities of the existing English translation on the word ( Mut’ah) in the foregoing Qur’anic verses.

2. Chapter two :
In Chapter two I will cover the available Prophetic statements as well as his practice as an illustration to the said Qur’anic verses and as a paradigm to demonstrate the prophetic tradition with regard to the application of the post divorce \support (Mut’at al-Talaaq).

3. Chapter three :
In Chapter three I will deal with the Jurisprudence and the jurist’s different School of thought and backgrounds on the post divorce financial support (Mut’ah al Talaaq) .

4. Chapter Four :
Chapter four will be dedicated for the assessment of the post divorce support. I will discuss the various arguments pros and cons presented by jurists of different Schools.

5. Chapter five :
Chapter five will demonstrate some samples of case study on issues related to post divorce financial support and property settlement in Muslim community in North America to illustrate the serious problems facing Muslim families in the West and to support what I believe is the most viable solution based on the Qur’an, the Sunna whereas both are calling for adherence to fairness and justice .

Conclusion :
In conclusion I will wrap up this paper by calling upon Muslim Jurists to ponder on the subject matter of this paper and join hands for an effective viable solution.

Definition:

Mut’ah is an Arabic term which, linguistically, means enjoyment and happiness as opposed to gloominess, depression and grief. From the idiomatical term : it means the post-divorce Financial Support, or Post Divorce payment to be made by the divorcer to his divorcee, in an attempt to uplift her self esteem and tone down the negative impact of the social humiliation associated with the term “divorced woman”.

Although this definition reflects the psychological component of the aftermath of the divorce, however, in my judgment, it does not inclusively cover the fact that post divorce settlement(Mut’ah al Talaaq) is first and foremost the right of the divorcee from the accumulated wealth of the household whereof she was part and parcel, as a full partner in ownership.

In accordance with Islamic Shari’ah, post divorce financial support ( Mut’at al-Talaaq) is one of the three fixed rights that are due to women beside their owed shares of inheritance :

a) The Dowry at the time of the marriage performance;
b) The maintenance throughout the course of the marriage;
c) The Post Divorce Financial Support after the occurrence of the irrevocable divorce.
d) And their allocated shares of inheritance upon the death of the husband.

Chapter One
First: Post Divorce Support (Mut’ah al-Talaaq)
in the Holy Qur’an

The Post Divorce Financial Support (Mut’ah al Talaaq) is profoundly rooted in the divine scripture as clearly illustrated in the following Qur’anic verses:
ولا جناح عليكم إن طلقتم النساء ما لم تمسوهن أو تفرضوا لهن فريضة فمتعوهن على الموسع قدره وعلى المقتر قدره متاعا بالمعروف حقا على المحسنين .
“There is no blame on you if you divorce women before consummation or the fixation of their dowry; but bestow on them (Mut’ah al Talaaq), the wealthy according to his means and the poor according to his means; (such Mut’ah of a reasonable amount is due from those who wish to do the right thing ( i.e. Mut’ah al Talaaq)."

وللمطلقات متاع بالمعروف حقا على المتقين .
“And for divorced women is a suitable Mut’ah. This is a duty on the righteous. ”

يا أيها النبى قل لأزواجك إن كنتن تردن الحياة الدنيا وزينتها فتعالين أمتعكن وأسرحكن سراحا جميلا .
“ O, Prophet, say to your wives: if you desire the life of this world and its glitter, then come! I will make a provision for you and set you free in a handsome manner (i.e. divorce you all).”.

يا أيها الذين آمنوا إذا نكحتم المؤمنات ثم طلقتموهن من قبل أن تمسوهن فما لكم عليهن من عدة تعتدونها فمتعوا هن وسرحوا هن سراحا جميلا .
“O you who believe! When you marry believing women and then divorce them before you touched them, no prescribed waiting period should be imposed on them, but grant them the Mut’ah and set them free in a handsome manner.”

( ..... ولهن مثل الذى عليهن بالمعروف وللرجال عليهن درجة ....)
This part of the verse number 228 of Chapter two of the Qur’an, it means that (…. and women shall have rights similar to the rights against them, according to what is equitable ; but men have a degree over them and Allah is exalted in power, wise ). It is so compelling, an argument and supportive evidence for defending women’s rights in Islam should it be put in practice.

Second:موقف مفسرى القرآن الكريم حول متعة الطلاق
The Commentaries of the Qur’an On Post Divorce Financial Support (Mut’at al-Talaaq ).

It is remarkable that most of the existing commentaries of the Qur’an are mostly identical, not only in terms of meaning and concepts but also, on many occasions in the words they use. Hence, I will select commentaries of those commentators who are more famous or those who have some extra additions over the others in his comments on the above verses :

A. Tafseer of Al-Tabary :
Al-Tabary is among the oldest Qur’anic Commentators. In his commentary on the foregoing Qur’anic verses, he strongly advocated for women’s rights in the Post Divorce Mut’ah. He sturdily defended his belief that payment of Mut’ah al Talaaq to a divorced woman is an obligation on the husband by the virtue of the aforementioned Qur’anic verses. And after reporting different opinions of the jurists on this matter, he said : “ I believe what represents the truth among all of the above jurists arguments is the argument of those who say that Post Divorce Mut’ah is mandatory for all divorced women, because Allah has said: For all divorced women Mut’ah as a duty on the Muttaqeen.” His exact wording in Arabic are as follows:

والذى هو أولى بالصواب من القول عندى، قول من قال : (لكل مطلقة متعة ) لأن الله تعالى ذكره قال : (وللمطلقات متاع بالمعروف حقا على المتقين ). فجعل الله تعالى ذكره ذلك لكل مطلقة ، ولم يخصص منهن بعضا دون بعض. فليس لأحد إحالة تنزيل عام، إلى باطن خاص، إلا بحجة يجب التسليم لها .

Al Imam al Tabary was an authoritative Jurist, he was not passive like many other jurists who just reiterate what had been reported by others. As an independent jurist he expressed his viewpoints intellectually, honestly, rationally even sometimes aggressively, refuting the faulty arguments of his opponents. He has been quoted, to have said in his Tafseer that:

“It is my conviction that Post Divorce Mut’ah is an obligatory payment on the husband who divorced his wife, and he is liable to pay her Mut’at al-Talaq just like he is liable to pay her due dowry, and he will never be exonerated from such obligation until he pays her or her proxies or heirs, and that Mut’at al Talaaq is like other debts that are due to her, and the husband is subject to incarceration and his property can be sold for not paying his divorced wife her Post Divorce due Mut’ah.

B. Tafseer Al-Qurtoby:
Mohammad bin Ahmed al Ansary al-Qurtoby is a well-known commentator of the Holy Qur’an, Al-Qurtoby’s commentary on the Quranic verses in question are among the more instructive in comparison to many other commentators. He demonstrated his independent opinion regarding the Post Divorce Mut’ah. Although, he is a Maliki Jurisprudential School disciple, like other North West African Jurists, but his independent conscience enabled him to depart from prevailing fetters of Maliki School with regard to women’s Post Divorce right to Mut’ah. In accordance with Imam Malik, the Post Divorce Mut’ah is not mandatory, rather it is just recommendable . Al Qurtoby did not endorse Imam Malik in this particular matter and audaciously declared his dissatisfaction on the point made by Imam Malik and other jurists of Maliki School of Jurisprudence.

Al-Qurtoby quoted Abdullah ibn Omar, Ali ibn Abi Talib, Saieed ibn Jubair’ and other prominent Scholars of the Successors who hold that the rule of Mut’at al Talaaq came in the form of a command أمر therefore it is a binding rule (wajib), even though Imam Malik, Judge Shuraih and others jurist hold it as a non binding Islamic rule, they say it is just a recommendable rule.

Al-Qurtoby continued to say that: the first party’s argument ( meaning the party of the supporters) is based on the wording of the Qur’anic verse as an imperative and binding command from Allah, while the second party did not deny that the word ( متعوهن ) is a command but they based their understanding on that the recipient of the said command. They claimed that: the verse addresses the Muhsineen and the Muttaqeen only, so it is binding only upon the Muhsineen and the Muttaqeen. ( ... حقا على المحسنين، ... حقا على المتقين.) (Muhsineen means the righteous people and the meaning of the Muttaqeen means the pious people of means. They said that if Mut’at al-Talaaq was a binding Islamic rule, it would have been imposed on all people! Not only on the righteous and pious people.

After discussing the above conflicting opinions, al-Qurtoby strongly endorsed the first party’s opinion and determination. He added that the second party’s argument is indefensible, because the contextual indication and the understanding thereof show that the command of Mut’at al- Talaaq referred to the divorcees and the preposition letter (Laam) in the word (للمطلقات ) is a possessive letter and is an indicative element which gives a divorced women an undeniable right to their post-divorce financial shares.

Further more, al-Qurtoby pointed out that the two descriptive words (Muhsineen) and (Muttaqeen) serve as emphatical factors that further assure the right of divorced women to post divorce Mut’ah, because being a Muhsin and a Muttaqi is a duty on all Muslims.

He then addresses the jurist opinions on the eligibility of the divorced women to whom the pronounced ومتعوهن) ( was referring to. He stated that in accordance with Ibn Abbas, Ibn Omar, Jabir bin Zaid, al-Hassan, Ataa ibn Rabaah, Ishaaq, Imam al-Shafie, Imam Ahmed, and أصحاب الرأى (the opinion adherent jurists), that Mut’ah al-Talaaq is mandatory only for the divorced woman who has been divorced before the consummation of the marriage and whose dowry was not fixed and it is only recommendable for all other divorcees.

C. Tafseer ibn Katheer
Abu al Fidaa Ismail ibn Katheer, in addition to what he shares with other commentators, Ibn Katheer added some considerable points in his famous Tafseer. First, he defined Mut’ah at-Talaaq by saying that Mut’ah is something paid by the husband to his divorced wife, according to the husband’s means, so as to compensate the divorced woman for what she lost because of the divorce. Then he quoted Abdullah ibn Abbass who determined the amount of Mut’ah al-Talaaq: saying “ … If the husband is wealthy, he should compensate his divorced wife by providing her with a servant) (خادم or the like, but if he is of limited resources then he should provide her with four pieces of clothing,” then he defined the said clothing by quoting Al-Shabi, one of the successor jurists, who determined the amount of Mut’at al-Talaaq saying:
“The average of the said clothing should be: ودرع وخمار وملحفة جلباب meaning a vest, a head scarf, a blanket and a dress.” Note that he made no mentioning of pair of shoes and underwear, which would raise the number of pieces to seven or eight items. Keep in mind that in our present time women need at least two sets of each item.!

D. Tafseer al-Fakhr al-Razy :
Imam al-Fakhr al-Razy is one of the prominent jurists of his time and it is obvious that he was in favor of the opinion of the Jurists who believe that the Post-Divorce Support (Mut’ah) is not an optional matter, rather it is fittingly mandatory. According to his understanding both Imam Abu Hanifa and Imam al Shafi support the opinion that says Post Divorce Support (Mut’ah) is obligatory on the husband.
In his comments on the verse 2:236 we could summarize his inclination to consider divorced women are of three categories:

a. Women who are divorced before the fixation of their dowry and before the consummation of their marriages, for them the Mut’ah is mandatory on their divorcing husbands.
b. Women who are divorced after the fixation of their dowry and before the consummation of their marriages, for them there will be no Mut’ah, but they are entitled to 50% of the fixed dowry.
c. Women who are divorced after the fixation of their dowries and consummation of their marriages, for them Mut’ah al Talaaq is mandatory.
Imam al Razy quoted Abdullahi ibn Omar as saying that : Mut’ah al Talaaq is prescribed for all divorced women. Also al-Razy did not hesitate to support his argument by the same points made by al-Qurtoby, as mentioned above.
Then he added a very significant point : that the preposition letter Ala in Arabic Language indicates that the matter in question is neither optional nor recommendable, rather it is obligatory: . ...قوله تعالى (حقا على المحسنين ) فذكره ب(على) وهوللوجوب، ولأنه إذا قيل هذا حق على فلان لم يفهم منه الندب بل الوجوب.
E. Al-Zamakhshary :
Al-Zamakhshary is also among the famous jurists and well known among the Muslim Scholars. In his well accepted book of Tafseer known as al-kashaaf, he commented on the foregoing Qur’anic verses and after briefly quoting the opinion of Saeed bin Jubair, Abul ‘Aliyah and al Zuhry, who are among jurists who believe that Mut’ah is a mandatory duty to all divorced women, al-Zamakhshary did not endorse their opinion. He like other commentators support Imam Malik who believe that post divorce support (Mut’ah al-Talaaq) is mandatory only for women who are divorced before the consummation of the marriage and it is only recommendable for other divorcees.

F. Tafseer al-Manaar :
Tafseer al-Manaar by al-Shaikh Rashid Ridha of the twentieth century discussed and impressively defended the enforcement of Post Divorce Support ( Mut’ah). In his well known Tafseer Book al Manaar he support the scholars who endorsed the eligibility and the right of divorced women for post divorce supports as a mandatory duty on the divorcing husband.

G. The Role of Translation of the Holy Quran:
There is no doubt that translators of the meaning of the Qur’anic words have done a tremendous work. They have and are still assissting so many people to understand the meaning of the Holy the Qur’an. The role of the translators of the Holy Qur’an is to provide the reader a meaning of the Holy Qur’an through the language that would provide him with the intended meaning. It did help those who cannot understand the original language of the Holy Qur’an through which it was revealed. Having said that I strongly believe that translation alone would not convey the exact meaning of some Qur’anic terms.

Therefore, it is extremely essential that the speakers of the Qur'anic Language, the translators of Holy Qur’an and the end users of the translations, all should join hands in helping each others to understand the exact intended meaning of certain Qur’anic terms and terminologies, preferably, before the final stage and before the publication of the translation, in order to avoid some vital terminological mistakes. Particularly when the meaning of the word involves determining the rights of a human being, in which case the accuracy of the translation becomes crucially imperative.

For instance, most of the Qur’anic translators translated the term (Mut’ah) as a ( GIFT ) in some translations they have no name for it so they call it (…something ). It is obvious that some translators have taken this erroneous translation from the earlier translators and the latter translators continued to quote them, apparently, out of respect and good faith.
We know that there are Five Rules of Islamic Law: i.e. Halal; Haram; Mundoob; Makrooh; and Mubaah. According to Islamic law, “GIFT” does not fit under the first or the third category. Rather, it is classified under the last category, Mubah ! Meaning (permissible). However, Muslim jurists have determined that gift is not a mandatory transaction, rather it is a social non-binding transaction, unless and until it is fully acquired by the recipient, then it would take another form of rules. And in accordance with the Islamic Shariah Law, Gift has its own jurisprudential rules which are completely different from that of Post Divorce Financial Support.

Chapter Two
The Post Divorce Financial Support
From
the Sunna perspective :

In accordance with the Prophetic Sunna, it has been reported that the Prophet (pbuh) was married to a woman known as عمرة بنت يزيدبن الجون الكلابية “Umrah daughter of Yazeed son of john from the tribe of Kilaab, but due to an uncertain reason the marriage was not consummated. Upon divorcing her the Prophet paid her, her due Post divorce right and sent her back to her family. In this Prophetic practice, we learn that despite the short time which she spent in the Prophet house, when he pronounced an irrevocable divorce on her, he granted her due post Divorce Mut`ah.

In another Prophetic tradition, it has been narrated that a man from al Ansaar married a woman from the tribe of Hanief, but divorced her before the consummation of the marriage. The Prophet commanded him to pay her the post divorce financial support (Mut’ah) .

Many of the Prophet’s Companions, including Uthman ibn Affan, Abdul Rahman ibn Auf, the judge Shuraih and Hasan ibn Ali ibn Aby Talib gave Mut`ah to their divorced wives.

Chapter Three
The Post Divorce Financial Support from the perspective of Muslim Jurists :
Prelusion:
Muslim Jurists have two different opinions on the post divorce Financial Support . Some jurists say it is mandatory (Wajib) i.e. the first category of the Islamic Rulings. Some say it is Mundoob which means recommendable, i.e. the second category of the Islamic Rulings. However, in terms of practicality, Muslim jurists did not hold the Post Divorce Support as obligatory. Even those who believe that it is a mandatory command from Allah do not advocate it, much less apply it. It is almost, totally ignored, probably it is burired under the prevailing rubbles of custom (`Aurf).

It is an undisputable fact that about 90% or more of our revered jurisprudential resources are either written down or traced back to the second century after Hijrah i.e. more than 12 hundred years ago, during the time of Imam Abu Hanifah, Imam Malik, Imam al-Shafi’e , etc. during their time, and it could be until now in some Muslim countries, or in some remote isolated villages, the customary practices were that the divorced woman, along with her children, was customarily, returned back, to her family home, and she will be welcomed, accommodated and financially supported and cared for by her extended family.

1. Imam Abu Hanifah (raa)

The Hanafi Jurisprudential School is the oldest Sunni School of Fiqh, the prevailing opinions of its jurists endorse the Post Divorce Support (Mut’ah) as a mandatory (wajib) in two cases:

A. In the case of المفوضة al-Mofawadah i.e. the woman who was married without the fixation of the dower and divorced before the consummation of the marriage. For her, the Post Divorce Financial Support is mandatory, because it is a substitute of her right on 50% of the dower as it is stated in the Holy Qur’an :
لاجناح عليكم إن طلقتم النساء ما لم تمسوهن اوتفرضا لهن فريضة فمتوهن على الموسع قدره وعلى المقتر قدره . َالبقرة آية 236
The meaning of this verse says : there is no blame on you if you
divorce women before consummation or fixation of their dower but
bestow on them (a suitable GIFT ), The wealthy according his
means and the poor according to his means … )

B. In the case of a divorced woman whose Mahr was fixed but she was divorced before the marriage was consummated as stated in the Holy Qur’an 49:33.
يا أيها الذين ءأمنوا إذا نكحتم المؤمنات ثم طلقتموهن من قبل أن تمسوهن ، فما لكم عليهن من عدة تعتدونها،فمتعوهن وسرحوهن سراحا جميلا. 33: 49
The meaning of the above verse means : O, you who believe when you marry believing women and then divorce them before you have touch them, no (prescribed) waiting period (eddah) upon them, so bestow on them the post divorce support and release them in a handsome manner. (33:49).

The position of Hanafi School on Post Divorce Support is not precisely clear with regard to the rest of the divorcee women, according to the majority of Hanafi jurists, the Post divorce Support is just recommendable.
This swaying back and forth position drives many Muslim jurists, judges and common people to treat Post Divorce support as an optional matter.
2. Imam Malik ibn Anass :
Imam Malik and the Majority of his disciples say that post divorce support (Mut’at al Talaaq ) is not mandatory at all, rather it is just a recommendable act for all divorced women except the one whose dower was fixed but was divorced before the consummation of the marriage, for her is the fixed Dowry and she is not entitled for Mut’ah al-Talaaq.

The argument provided by the Maliki School of Jurisprudence to justify the dispensability of the Post Divorce Support is based on that the words ( Mohsineen and mottaqeen), as they say Mut’ah is Mandatory only upon these two categories of people. ( the mohsineeen and the Mottaqeen ) that is to say whoever is not one of them, then the Qur’anic verses do not include him ! .

The best repudiation of Maliki school position on Post Divorce financial Support, is what , Imam al-Qurtoby, who is one of Maliki jurists, who truly represented the Maliki School in his reply as we have advanced in Chapter one of this study . But the Qurtoby’s denial of the Maliki School position was encountered by a defense in favor of the said position by Imam Shums el-Deen al-Dusouqy, in his book Hashyat al Dusouqy on his Abridge on the Commentary of al-Shaikh Ahmed al-Derdir, with comment of al-Shaikh ‘Olaish.

3. Imam al Shafi’e :
In accordance with his recent and most publicly publicized opinion that any divorced woman, without her being the reason for the divorce, is entitled to post divorce support (Mut’at al-Talaaq ).

Al-Shafi’e position on post divorce financial support ”Mut’ah-al Talaaq” was summarized by :Mudawwanah al Ahwaal al-Shukhsiyah al
Maghribiyah.مدونة الأحوال الشخصية المغربية . Although Imam al-Shafi’e ‘s opinion on this matter has been chosen as the most balanced among the Islamic jurisprudential Schools, we should notice that he did not offer a blank check to all divorcee women. His finding on the matter is that : Divorcee women are of two categories as follows : Divorced women who are eligible for post divorce financial support are those who are list under the listed (A) as opposed to those are listed under the list (B) as illustrated below :

List A :
1. A divorced woman without any fault from her part.
2. A divorced woman whose divorce occurred before fixing her Mahr and before the consummation of the marriage.
3. A divorce woman by a competent court due to the husband impotency.
4. A divorced woman due to her husband’s bad attitude or due to his physical and mental cruelty.
5. A divorced woman due to husband’s desertion.
6. A divorced women due to her husband’s failure to secure the necessary maintenance for her.
7. A divorced woman due to Eilaa or Zihaar إيلاء أو الظهار undertaken against her by her husband.

List B :
1. A divorced woman whose dowry was fixed but her marriage was not consummated.
2. A woman who demanded a Khulu’a divorce.
3. A woman whose marriage was revoked by a competent court due of being accused by her husband of having extra Marital affair to Mula’anah ملاعنة
4. A woman whose divorce was based on a defect attributed to her.
5. A woman who chooses to divorce her husband over maintaing her marriage with him.

In this respect, I would like to add the following:
like all other human life paradigms, mutual benefit is the central point around which human interactions revolve, this is true even in the relations between parent and their children as it has been hinted to in the holy Qur’an: (You know not whether your parents or your children are nearest to you in benefit.) As such, marriage in Islam is based on benefit reciprocity. Spouses should know that useless person in the family, as well as in the community, could be tolerated only for a limited period of time before people start feeling that his very existence has turned burdensome.

Many wives, specially those who are known as house wives or in some countries known as kitchen wives (ستات التكل), beside their failure to contribute in family financial expenses, they also fall short in providing adequate services to their husbands or providing them with the conducive atmosphere to feel comfortable at home, They also fail to meet the husband’s physical and personal needs, and on the top of all of the above they develop concepts to deprive the husbands from taking another wife so as to live a normal life as a man. They tend to hold their husbands hostage to their whims and egos for the rest of his life. This concept of ( live together or die together) could be acceptable in Catholicism and in some ancient Hindus traditions, but not in Islam.

Therefore, if the husband is desirous to have children and enjoy a. physical and personal life, but due to chronic illness or the like, the wife cannot bear children or because she is totally out of shape or because she is falling short to meet the husband’s physical and personal needs for a reason she has no control over, husbands should not divorce such wife because of that.

I believe that divorcing a wife because of what is not under her control is a gross betrayal to the matrimonial bond and it is a denial to past idealistic tender life . For the best interest of the children and extended family, husbands should keep these type of women in matrimonial bonds, at the same time women with such chronic health disorders should not deprive their husbands from taking another wife, otherwise that could furnish a ground for their losing their post divorce financial support .

Husbands and wives who are passing through this kind of trial should apply the wisdom of Sowdah bit Zamah (raa) the wife of the Prophet (pbuh), when she grew old she lost her fitness and attractive shape, she recognized the norm that Allah created in the nature of men, so she entered into a deal with her husband to keep her married to him and in exchange, she hand over her spousal rights to Aishah (raa) the youngest wife of the prophet (pbuh). Ibn Hajar al ‘Askalani said that the Qur’anic verse of chapter four was revealed to address such kind of family disputes. The verse reads as follows : وإن امرأة خافت من بعلها نشوزا أو إعراضا فلا جناح عليهما أن يصلحا بينهما صلحا ، والصلح خير،وأحضرت الأنفس الشح، وإن تحسنوا وتتقوافإن الله كان بما تعملون خبيرا . The verse means that if a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves, and such settlement is best: even though men’s’ souls are swayed by greed, but if you do good and practice self-restraint, Allah is well acquainted with all that you do. .

1. Ahmed ibn Hambal :
The Hambaly Jurisprudential position towards post divorce support is almost the same of that of Hanafi and Shafi’e Schools of jurisprudence . Abdur-Rahman al-‘Asimy al-Najdy al-Hambaly in his book
حاشية الروض المربع شرح زاد المستقنع he highlighted the consensus between the three major Islamic Jurisprudential Schools as he pointed out the similarities among them.
In his famous Majmou’ Fatawaa, Shaikh-ul-Islam Imam Ibn Taymyah said that Abdullahi ibn Omar, Imam al Shafi’e and Imam ahmad ibn Hambal , all of them consider post divorce support (Mut’ah) as mandatory for every divorced woman, except the one who was divorced after the fixation of her dower but divorced before the consummation of the Marriage, for her is the fixed dower and no post divorce support is required.

Furthermore, Imam Ibn Taymiyah, inserted an excellent point by the way of contrast, that as the Islamic Shari’ah considers Marriage contract as the reason for the prerogative of acquiring bridal dowry Mahr al Nikah, like wise the Divorce is the reason for the prerogative of acquiring post divorce support Mutah al-Talaaq. He said that the married women whose dower was not fixed is entitled to a mahar similar to that of her peers based on the Marriage Contract, and such prerogative is to be delivered even after the death of the husband, then he quoted the case of Brou’ bit Washiq ( بروع بنت واشق ) whose husband died before her dower was fixed, and the Prophet (pbuh) awarded her the Mahr of her peers. After discussing the opponent’s arguments against the Post Divorce support (Mut’ah), he reported the other opinion of Imam Ahmed and said that the accurate opinion reported from Imam Ahmed is what was previously quoted which described the Post divorce support ( Mut’at) as mandatory for each divorced woman.

Imam Ibn Taymiyah has bee gifted to manifest the truth. Although during his time the need for imposing the Post Divorce support was less pressing than it is in our present time. Not like his time where the social consolidation and extended family accommodation were in full operation, in our present time, in many cases, the divorced woman has no place to resort to and has no financial means to support herself and her children.

Chapter Four:
Assessment of the Post Divorce Financial Support:
It is regrettable to say that our predecessor jurists left us with very limited legacy on the subject matter on assessment for the Post Divorce Financial Support, and almost nothing on property settlement. Most of the assessments were reported from either the companions of the prophet like Abdullahi ibn Abass, al-Hassan ibn Ali, May Allah be pleased with them all.

It has been reported that Abdullahi ibn Abbas has assessed the post divorce financial support for a woman who was married to a wealthy man, that she is entitled to a slave man or woman. And for a woman who was married to a man of limited income is entitled to three or four pieces of clothing.

Dr. Wahbah al-Zuhayly, one of our prominent contemporary Muslim Jurists in his famous book Al-fiqh al Islami wa Adillatuh reported all the opinions of the highly regarded Muslim jurists on the matter of post divorce financial support. According to Dr. al-Zuhayly: post divorce financial support is based on financial and social status of the couple, as in the prevailing jurist opinion: (Fatwa) on this matter which purport that if they are from the wealthy and highly regarded class, then the divorcee shall be entitled to more than clothing, i.e. she shall be granted a servant ( a slave ) but if the couple are of low social class and of limited income, then the divorcee shall be entitled to three to four pieces of clothing, and if the couple are from different social backgrounds, the divorcee shall be granted the average, i.e. the average between the two ends.

In his conclusion, Dr. Zuhayly, seems to support the opinion of Imam Abu Hanifa, Imam Malik and Imam Shafi’e with regard to the assessment of post divorce financial support. He pointed out that the assessment of the financial support should depend on the discretion of the trial judge. He also hinted that there should be no ceiling for the post divorce financial support because of the absoluteness in the Qur’anic verse : (ومتعوهن)

The strongest evidence on the assessment of the post divorce financial support is the Hadith of Abdullah ibn Abbas which determine that the highest type of the post divorce support is to give the divorcee a servant, and the average of it is to provide her with sustenance and the lowest of it is to clothe her.

It is needles to say that the assessment of the Post Divorce Financial Support made during the time of the Ibn Abbass in cash or in kind would not necessarily suites our present time, simply, because we do not own slaves nor do we process our transactions in Dirhums and Dinaars as it was the case during the life time of the Prophet a (pbuh), his companions and successors.

However, comparing the living cost in both eras, would provide us with an standardized criterion on which we could process the assessment and that would enable us to determine the satisfactory amount of the post divorce financial support that should be paid by the fortunate husband vis-a-vies the less fortunate one.

In addition to Ibn Abbas Hadith as a supportive evidence, we have seen two substantial points made by Ibn Katheer, which represent a important breakthrough in determining the post divorce financial support (Mut’ah) in kind and in cash. Taking into consideration that Ibn Katheer lived in the seventh century after the Hijrah, i.e. 656 years ago when owning a servant in his time is tantamount to owning a house in our time.

Therefore, if Ibn Katheer believes that a divorced woman whose husband is wealthy, is entitled to a servant who would serve her and her dependents for the rest of her life and be inherited by her children after her death, then we can easily deduce that in our modern time a divorced woman whose husband is wealthy should be entitled to no less than a house to shelter her and her dependents for the rest of her life and be inherited by her children after her life.

In the process of determining the financial support (Mut`ah al-Talaaq) one should not ignore the financial contribution of the divorced women to the household and her contribution into the accumulated assets during the marital course. Women’s financial contributions in the household expenditure should be taken into consideration besides their help in husband's business, their caring for the husbands, caring for the parties children, household work such as cleaning, cooking, clothing and dish washing etc..

The prevailing western socio-economical life style, including Muslim communities as part and parcel of the American structural fabric, is based on family cooperation among the adult members in the household, both husband and wife work from 9 to 5, in some case one or both of them may have more than one job and they usually have a join bank account, they share the expenses of the life and equally enjoy the surplus of their earning. If their marital life comes to an end for any reason, all the real and personal assets -in principle- shall be subjected to a communal division.

This status quo,-in- principle- disturbs some Islamic Shariah rules , including, but not limited to the principles of financial independency of the spouses, the Islamic rules of the inheritance, whereas the share of the wife is only one fourth ¼ or one eighth 1/8 in case of the presence of a child, the rules of Guardianship known as (Al-Qwamah) and eventually, the rule of one sided spousal support.

Chapter Five:
Post Divorce Financial Support,
Reflections through Case Study.

In this chapter, I will focus on case study. I will limit this part into the following two cases which have been widely publicized among the Muslim Community in America and American media:
1. A Muslim family case study from Detroit, MI– adjudicated by the
Shari’ah Scholar Association of North America ( SSANA ).
2. A Muslim family case study from Bethesda, MD adjudicated by
American Court house, State of Maryland.

Case Study #1
The couple was married overseas and then migrated to the United States where they lived and raised their children. Both husband and wife were medical Doctors. They accumulated large wealth in cash and real estate worth millions.

After some time, the husband proposed that his wife should quit practicing as physician and stay home, so as to care for him and their children. She accepted the proposal and quit . Some years later, the husband wanted to divorce her for personal reasons. Upon informing her about his intention she was disturbed but wanted to secure the physical custody of the parties minor children and some post divorce financial support. She thought about hiring a lawyer to help her before the American Court house, but the husband was able to convince her that resorting to American Courts is against the Islamic Shariah. He told her that there is an alternative to the American Court that would adjudicate the matter in accordance with the Islamic Shari’ah and that shall satisfy both of them. The parties willingly, appeared before the Shariah Scholars Association of North America, ( SSANA ) for an Islamic arbitration. The couple signed the prepared Binding Arbitration Agreement.

The Arbitration panel conducted all of the prerequisite legal procedures including the family history, the husband abusive attitude, the annual business income, the best interest of the children etc..

The arbitration panel found the husband guilty of the following:

1. Guilty of being an abusive husband against his wife and children.
2. Guilty of planning to inflect a despotic divorce against wife for no justification other than her age. (الطلاق التعسفى)
3. Guilty of deceiving his wife to accept an Islamic Shari’ah Law as such she shall be entitled of three month post divorce support ( known as eddah period).

The panel rendered it judgment as follows :
a. The wife be granted an Islamic divorce effective the date of
the judgment.
b. The wife be granted one million dollars in cash from the husband’s accumulated assets for her post divorce financial support including her eddah period expenses.
c. The wife be granted one of the two mansions with all furniture therein.
d. The wife be granted the physical custody of the minor children.
e. The wife be granted the child support on a Monthly basis.

Upon reading the verdict, the husband smashed the paper before the panel saying ” this is a trash, this is not Islam” . He immediately called me and asked for my intervention as I was the chairman of the Islamic Judiciary Council of (SSANA). I advised him to settle the case with his wife out side the Court through reconciliation, so as to facilitate my intervention. He didn’t like the idea, so he hired two Lawyers to fight the case before the American Courts. He lost the case before the American court for Detroit, MI and he asked his Lawyers to Appeal the verdict .

While his lawyers were pursuing a lawsuit against SSANA’s judgment and against his wife, he went to Al Azhar in Egypt and to Saudi Arabia’s Scholars in order to get hold of a Fatwa against the verdict, but he failed.

I do not know what answers he got from Muslim scholars in Egypt and Saudi Arabia. However, he lost the case before the American Courts, as the trial Court upheld our arbitrational judgment. The plaintiff’s lawyers filed for special the Appellate Court of Michigan, but I assume that thee lawyers advised him the likelihood that the Appellate Court will uphold the Islamic Arbitration ruling. So before the special Appellate Court Decided on the case the plaintiff called me again requesting reviewing the verdict, I just reiterated the same recommendation before, and he did accept it this time, and it did work for him.

Case Study # 2
Irfan Aleem v. Farah Aleem, No. 108, September Term 2007

Prelude:
The case you are about to read was widely publicized by the American media. It is a family law case whereas both parties are Muslims from Pakistan. Below is just a summery of what was published by Washington Post a prime News paper of Washington DC, in June of 2008.

The case in point is one example out of the growing cases of the same prototype in the Muslim Community across the United States of America. I have entertained some cases of this nature while I was a Shariah Court Judge in Sudan as well as here in the US as an Islamic arbitrator. And as I am addressing this matter in this paper, I have similar despotic divorce cases pending on my desk.

The role players in these cases are from different Muslim immigrants, from various Muslim countries and they are of different socio-economic levels and cultural backgrounds. The common factors among them are the following factors:

a) Evasion from Post Divorce Financial Support and Property Settlement prescribed by the Holy Qur’an and Sunna in favor to their divorced wives.

b) Invocation of the family law ( Back home) erroneously labeled as (Shariah Law), while everybody knows the motive behind their attempts to revoke the marriage at home – rather than here in the US - is to save them money, satisfy their self-image and to deprive their divorcees their due rights unjustly.

c) Revengeful against their wives and minor children who are the most vulnerable victims of these despotic divorces, where we find as in husbands divorcing their wives at the Consulate office of their country’s Embassies, or by sending them home
to the country of their origin (one way ticket), then few weeks
later send them a letter of divorce, after blocking their access
to visas so as not to find a way back to the States any more .

Historical background:
Parties was married on July 16, 1980 in the city of Karachi, Pakistan.
Shortly after their marriage, the husband moved to England. The wife joined him later. And they resided there for four years while he completed his studies. They then moved to the United States and began to reside in Maryland while the husband worked at the World Bank. They maintained a residence in this State for 20 years and resided here at the time the wife filed for divorce and the husband went to the Pakistan Embassy and performed talaq. The parties have two children, both of whom were born in this country, are United States citizens, and reside in this country. The wife is now a resident of Maryland, and holds a green card status

The Central point in this case according to Washington Post, the Petitioner is Mr. Irfan Aleem, who was married to the respondent Farah Aleem in Pakistan. The Court of Maryland, USA declines to “ afford comity” to the Pakistani divorce. The alleged Pakistani marriage contract and the Pakistani statutes addressing the division of property upon divorce conflict with the public policy of Maryland and the Maryland courts will not afford comity to such contracts and foreign statutes.

Abridged details on the case from Wash. Post :

Farah Aleem filed case suit for a limited divorce from her husband, Irfan Aleem in the Circuit Court for Montgomery County. The husband thereafter filed an Answer and Counterclaim. He raised no jurisdictional objections. Without, however, any advance notification to the wife, and while the Montgomery County action was pending (between the filing of the action for a limited divorce and the filing of the amended complaint for an absolute divorce), the husband, a Muslim and a national of Pakistan, went to the Pakistan Embassy in Washington, D.C., and performed divorce (talaq) by executing a written document that stated:

“Now this deed witnesses that I the said Irfan Aleem, do hereby divorce Farah Aleem, daughter of Mahmood Mirza, by pronouncing upon her Divorce/Talaq three times irrevocably and by severing all connection of husband and wife with her forever and for good.

“1. I divorce thee Farah Aleem “
“2. I divorce thee Farah Aleem “
“3. I divorce thee Farah Aleem “

Petitioner posits that the performance by him of talaq under Islamic religious under secular Pakistan law, and the existence of a “Marriage contract,” deprived the Circuit Court for Montgomery County of jurisdiction to litigate the division of the parties’ marital property situate in this country.

The trial court found that the marriage contract entered into on the day of the parties marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law.

The court of Special Appeals agreed stated “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.” Aleem v. Aleem, 175 Md. App. 663, 681,.931 A.2d 1123, 1134 (2007). The court of Special Appeals further stated:

“If the Pakistani marriage contract is silent, Pakistani law does not recognize marital property. If a premarital or post-marital agreement in Maryland is silent with respect to marital property, those rights are recognized by Maryland law. . . . In other words, the ‘default’ under Pakistani law is that Wife has no rights to property titled in Husband’s name, while the ‘default’ under Maryland law is that the wife has marital property rights in property titled in the husband’s name. We hold that this conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy. ”Id. At 681, 931 A.2d at 1134.

The “marital property” as it would be defined under Maryland law included the husband’s pension from World Bank valued at $1,000,000.00 (approximately), real property valued at $850,000, personal property valued at approximately $80,000, and two or more vehicles.

The primary property focus in the present case is the petitioner’s pension-which is titled only in the husband’s name. This stark discrepancy highlights the difference in the public policies of this State and the public policies of Islamic law, in the form adopted as the civil, secular law of countries such as Pakistan.

Under Pakistani law, unless the agreement provides otherwise, upon divorce all property owned by the husband on the date of the divorce remains his property and “the wife has [no] claim thereto.” The opposite is also applicable. The husband has no claim on the property of the wife. In other words, upon the dissolution of the marriage, the property follows the possessor of its title.

The central issue in the present case concerns the wife’s attempt to have the husband’s pension from the World Bank, which relates primarily to his work performed while he was a resident of this country, declared to be “marital property” and to have other property declared marital property and thus be entitled to half of that pension and property under Maryland law.

Due to the requirements of the World Bank’s pension program, claims for a division of pension benefits based upon “marital property” status, are to be couched in terms of “alimony.” The requirements of the World Bank in that regard are not crucial to our decision.

“No law has any effect, of its own force, beyond the limits of the sovereignty form which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the domination of another nation, depends upon what our greatest jurists have been content to call’ the comity of nations.’ Although the phrase has been often criticized, no satisfactory substitute has been suggested.

“‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due both to international duty and convenience, and to the rights of its own citizens, or of other person who are under the protection of its laws.

“A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law.

Summary of the judgment:
The talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state and we decline to give talaq, as it is presented in this case, any comity. The Pakistani statutes providing that property owned by the parties to a marriage, follows title upon the dissolution of the marriage unless there are agreements otherwise, conflicts with the laws of this State where, in the absence of valid agreements otherwise or in the absence of waiver, marital property is subject to fair and equitable division. Thus the Pakistani statutes are wholly in conflict with the public policy for this State as expressed in our statues and we shall afford no comity to those Pakistani statues.
Additionally, procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife, perform “I divorce thee…” three time and thus summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here. We answer no to each of petitioner’s questions.

Conclusion :

Urgent call upon Muslim Jurists :

Muslim Jurists are urgently called upon to take a proactive role in reviving the application of the post Divorce support (Mut’ah) as it has been clearly decided by the Qur’an and the Sunnah. There are numerous reasons for reinforcing the application of post divorce support, in our modern time, below are some these reasons:

a. It is a command of Allah as reported in number of verses in the holy scripture.

b. It has been supported and illustrated by the prophetic tradition, the companions of the Prophet and the successors.

c. It is a manifestation of the Islamic profoundly rooted principle of justice and fairness for all in general and towards women in particular.

d. It is for the best interest of the minor children who are the first victim of many arbitrary subjective divorces.

e. It serves as a means to deterring harm of all kinds that would befall divorced women who are now crying out for help, but receiving none.

f. And finally it is an implementation of the Prophetic recommendation (Wasyah) to his Ummah on the Day of Arafa during his Ceremonial Declaration known as the farewell Pilgrimage Sermon: ( إستوصوا بالنساء خيرا فإنهن عوان عندكم ).
Beside all of the above, Muslim Jurists should take into consideration the growing trend of the married women who are working full time outside the household by the consent of their husbands, while caring for the household, the parties children and for their husbands.. If men are usually working for eight to ten hours a day, those women work sixteen to twenty hours a day.

According to the ongoing practices in the Muslim Communities that in case of the occurrence of divorce all properties and accumulated assist go to the husband. Is it fair to deprive these women from their Islamically prescribed post divorce support and financial settlement ?

In another episode when a Muslim woman gives up her schoolings or her secured profession and career in order to get married and serve the husband, the household and raise the parties children, or if a woman worked years and years in her husband’s business then eventually got divorced, is it an equitable act to kick her out of the house and the business and leave her with no post divorce financial support and property settlement ?!

Due to the imperativeness of answering the above questions and more, Muslim Jurists are called upon to heed to this eminent emerging challenge to the fundamental principles of the Sharia Law on one hand and the application of justice and fairness on the other.

Dr. Mohamad Adam El Sheikh
July 2011