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Article in International Journal of Law Policy and the Family June 2013
DOI: 10.1093/lawfam/ebt004
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Ayesha Shahid
Brunel University London
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International Journal of Law, Policy and the Family 27(2), (2013), 197215
doi:10.1093/lawfam/ebt004
Advance Access publication 2 May 2013
Islamic family law, more often referred to as Muslim personal law in the South
Asian context, is influenced by formal and informal plural normative orders, as
secular, religious, customary, and patriarchal norms (Menski, 1998; Ali, 2002;
Mehdi, 2005; Shah, 2005).The presence of such plural normative orders has
given rise to tensions and conflict between these norms, including various
publicly stated commitments and goals of the states to promote gender equal-
ity. Islamic family law has thus become a highly contested and politicized issue
making change in this area of law difficult. Post-divorce maintenance (Mataa)
for women is one such area where classical interpretation of Islamic law,
restricting such maintenance to the Iddat only, continues to apply. Engaging
with plural sources of the Islamic legal tradition, this article discusses the po-
tential of employing these to make the case for awarding post-divorce main-
tenance to Muslim women.
INTRODUCTION
Marriage in Islamic law is a civil contract that gives rise to certain rights
and obligations between husband and wife (Coulson, 1964; Esposito,
1982; Pearl and Menski, 1998; Tucker, 2007). In Islamic law it partakes
both the nature of Ibadat, or devotional acts, as well as Muamalaat, or
dealings among men (Rahim, 1972). As Ibadat, marriage is the fulfill-
ment of a moral imperative for leading a good Muslim life, and as
Muamalaat, it is the binding legal contractual nature of marriage that
requires the fulfillment of certain obligations including Nafaqah, or
maintenance, which the husband is bound to provide to his wife and
I am highly indebted to Professor Shaheen Sardar Ali, School of Law, University of Warwick for her
generous comments and thoughtful reflections on this article. I would also like to express my
gratitude to Martin Parry, Law School, University of Hull and Nick Foster, School of Oriental and
African Studies for giving me constructive feedback that has helped in shaping this article. I would
also like to gratefully acknowledge the editorial guidance given by Professor John Eekelaar.
The Author 2013. Published by Oxford University Press. All rights reserved. For permissions,
please email: journals.permissions@oup.com
198 POST-DIVORCE MAINTENANCE FOR MUSLIM WOMEN
various legal systems within it. This new process focuses on combining
pluralist theory and methodology which will assist any jurisdictions
justice system to become one and will also allow the legal systems to
work together in a more supportive and mutually accountable manner.
By drawing upon insights provided by these scholars, I will use the
notion of plurality of norms to assess whether by moving away from
rigid interpretations of Islamic law and engaging with plural norms,
the courts in Pakistan and Bangladesh protect the right of the divorced
Muslim women to receive Mataa.
South Asia has a richly documented ancient experience of complex
systems of plural normative orders, to which centuries of Muslim rule
As a result, the egalitarianism once associated with the Quran lost its
revolutionary voice (Coulson, 1964).
In the context of South Asia, Al-Hidayah (11521197) and Fatawa-i-
Alamgiri (1890), the two authoritative texts based on the Hanafi school,
state that maintenance to the wife should be determined only on the
basis of the husbands social and financial circumstances. The two texts
do not allow the payment of maintenance after the Iddat.
Compared to South Asian Muslim scholars, scholars from the Middle
East have challenged these centuries old and narrow interpretations.
They have interpreted verses dealing with post-divorce maintenance
more liberally. Abu al Fidaa Ismail-ibn-Kathir is of the view that
sue her husband for maintenance and that the order of the court
should be executable in a summary manner as arrears of land revenue.
It also recommended that a wife could claim past maintenance for at
least 3 years before the institution of the suit for maintenance. On the
issue of post-divorce maintenance, the question put to the Commission
was:
Should it be open to a Matrimonial and Family Laws Court, when approached
to lay down that a husband shall pay maintenance to the divorced wife for life
or till her remarriage? (Report of the Commission, 1956: 121920)
The Commission recommended that in such cases the Matrimonial
rates, there are also women who do not want divorce and continue to
live in abusive and failed marriages.25 In 2010 out of 8,000 reported
cases of domestic violence 4,545 involved married women.26 One of the
main reasons why women continue living in such violent relationships is
their weak financial position. They are aware of the fact that if divorced,
they have no prospects of receiving post-divorce maintenance. Judges,
legislators, and scholars have failed to consider that very few women
have independent means of income or financial assets to support them-
selves. Besides, women are denied the right to inherit. Due to the cus-
tomary practice of giving inheritance rights to male heirs only, women
are not given their share in ancestral property (Ali, 2006; Mehdi, 2007).
Fatawa-i-Alamgiri and the judges held that the word Mataa, as used in
the Quranic Verse 2:241, was never understood as regular maintenance.
Rather, it was deemed to be a parting gift to a divorced woman. It was a
gesture of comfort for the trauma she had suffered on account of the
divorce. Justice Mustafa Kamal further held that on the basis of section
2 of the Muslim Personal Law (Shariat) Application Act, 1937, no
change could be made to Muslim Personal law, and the husband was
liable to pay maintenance only during the Iddat.31 He further stated
that the provision of the 1937 Act is supported by Article 8 (1A) of the
Constitution, which says that, [t]he principles of absolute trust and
CONCLUSION
NOTES
1
A waiting period, observed by a woman after the death of her spouse or after a divorce. During
this period she cannot remarry. The waiting period is 3 months after a divorce and 4 months and
10 days after the death of a spouse. The Iddat of a pregnant woman is up to the time of delivery,
irrespective of the fact whether the marriage was ended by divorce or death of the husband. The
primary object of Iddat is to find out if the woman is pregnant so that the paternity of the child can
be ascertained.
2
The Quran 65:6.
3
Post-divorce maintenance beyond Iddat is also referred as Mutat-al-Talaq or Nafaqat-al-Muta, ie
a payment by the former husband to his ex-wife after the expiry of the Iddat period. The word
Mataa has been used in the Quran at least in 14 places. As there is no standard method of
transliteration from Arabic to English, there are numerous ways to spell certain key words. For
consistency, in this article the word is herein spelt as Mataa.
AYESHA SHAHID 213
4
Verse 236 refers to a suitable gift according to the means of the husband to the wife at the time
of divorce. Verse 240 deals with the provision of maintenance for widows, and requires Muslim
men to make a bequest for 1 years maintenance and residence for the wife after their death. Verse
240 states that maintenance can be provided for up to 1 year, if the marriage has ended not because
of any fault on part of the wife. Whereas verse 49 states that if a marriage ends before consumma-
tion, men should make provision for women and release them in an honourable manner.
5
For the purpose of this article, I looked into the aannual reports of two major organizations,
the Human Rights Commission of Pakistan and Aurat Foundation and post-divorce maintenance
has not been addressed in their reports.
6
Some of the literature on this new form of legal pluralism includes; Green House, C. and
Strijbosch, F. (1998) Legal pluralism in industrialized societies, Journal of Legal Pluralism 33, 19.
7
Jirgahs, Panchayats, and Salish are informal alternate dispute resolution forums established at
the community level. Usually the head of the tribe or community or any other respectable male
member sits as the leader of the forum and decides matters along with other male members of the
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