• NAFAQAH - THE RIGHT OF A WIFE, THE DARAR OF ITS NON-CONFERMENT, A GROUND FOR MARRIAGE DISSOLUTION & THE IMPLICATION ON A WORKING WIFE

    NAFAQAH: THE RIGHT OF A WIFE, THE DARAR OF ITS NON-CONFERMENT, A GROUND FOR MARRIAGE DISSOLUTION & THE IMPLICATION ON A WORKING WIFE

    NAFAQAH: As we have discussed in the previous two makalah, a valid marital tie brings about duties and obligations, alongside rights. One of the obligations imposed by our religion upon a husband to confer to his wife is the duty to provide nafaqah or maintenance. The guarantee to provide comfort and luxury, as convincingly promulgated when love was in full bloom, becomes an unfulfilled promise as marriage turns sour and bitter over time. This obligatory duty to provide maintenance to the wife by a husband is prone to be neglected by the latter, especially when cracking signs start to make themselves apparent in one’s marriage.

     

    In the Malaysian Muslim Family Law, the failure or neglect on the part of a husband to provide maintenance for his wife for a period of three months is one of the grounds for a dissolution of marriage via fasakh as explicitly spelled out under section 52(1)(b) of the Islamic Family Law (Federal Territory) Act 1984 (hereinafter referred to as “IFLA”). Thus, some husbands who might have thought that they are exclusively honoured with a veto power to pronounce divorce, should take heed that wives are entitled to seek for divorce via fasakh if the husbands have failed to discharge their duty to provide nafaqah. Likewise, wives should have the awareness and consciousness of what they are rightfully and legally entitled and to take prompt action(s) in enforcing their due rights whenever necessary.

     

    In this present makalah, we will soon know that the duty to provide maintenance for the wife by a husband is not merely customarily practised and acknowledged in our country. It is in fact, recognised and spelled out in the Qur’an, the Sunnah of the Prophet s.a.w., and unanimously agreed by the fuqaha’. We will also explore how its non-fulfilment will eventually lead to darar or harm to the wife, which might entitle her to seek for a judicial dissolution of marriage. Lastly, we will discover whether the state of working or getting employed has implication(s) on a wife to receive maintenance from her husband.

     

    DEFINITIONS AND LEGAL BASIS

     

    DEFINITIONS

    Before we delve further into the article, it would be necessary to have a clear understanding on the definition of nafaqah or maintenance in the Islamic context as provided by the Muslim scholars.

     

    In an article entitled “Muslim Wife’s Rights to Maintenance: Husband’s Duty to Maintain a Working Wife in Islamic Law and the Law in Malaysia”, co-authored by Azizah Mohd and Badruddin Hj Ibrahim from International Islamic University Malaysia, the definition of maintenance (nafaqah) is provided. The word nafaqah is derived from the Arabic root word infaq which means “to spend for a good purpose”. And it literally means “what a person spends for his family members”, as stated in Radd al-Mukhtar ‘ala al-Dur al-Mukhtar al-Ma’ruf bi Hashiyat Ibn ‘Abidin, as cited in the aforementioned article.

     

    Various definitions of maintenance are given by the Muslim jurists. According to a book entitled al-Bahr al-Ra’iq Sharh Kanz al-Daqa’iq, the Hanafi jurists regard nafaqah to connote “food, clothing and accommodation”. The Hanbali jurists provide a similar definition by stating that nafaqah is “what is sufficient for maintaining a family with food, clothing and accommodation and their supplements”, as written in Kashshaf al-Qina’, Volume 5, pages 459-460. Meanwhile, the jurists from our madzhab i.e. the Shafi’ie jurists have widen the scope of nafaqah by including “whatever is eaten as food (al-‘adam), clothing, cleaning tools, house appliances like cooking equipment, accommodation and servant in the case where the wife has ever used the service of a servant before her marriage “, as per stated in Mughni al-Muhtaj. All these definitions can be found cited in the above article.

     

    Based on the definitions provided above, we can now understand that maintenance or nafaqah generally constitutes basic necessities in our daily life. What is interesting to note in the article is that, there are contemporary Muslim scholars such as Zaki al-Din Sha’ban (See: Ahkam al-Syar’iyyah li Ahwal al-Syakhsiyyah) and Muhammad Mustafa Shalabi (See: Ahkam al-Usrah fi al-Islam) who include “necessary service” which is recognised by the custom of a particular society to constitute nafaqah or maintenance. Thus, according to the authors of the article, in taking into account the view of the aforementioned contemporary Muslim jurists, applying in the Malaysian context, “medical expenses and other basic needs of a family” would fall under the umbrella of nafaqah.

     

    To provide an exhaustive list of what amounts to maintenance would not be possible and might differ from one household to another. It is for the husband as the breadwinner of the family to take cognizance of the basic necessities of his very own family and to duly provide such maintenance, as commanded by the deen.

     

    LEGAL BASIS

    The authorities on the obligation upon a husband to provide nafaqah or maintenance to his wife are aplenty. In this article, we will explore on the authorities contained in the Qur’an and hadeeth as cited by the co-authors of the above referred article.

     

    Qur’an:

    In Surah At-Talaq, verse 7, Allah says to the effect:

    Let the rich man spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him. Allah will grant after hardship, ease.

    (Translation by Muhsin Khan. See: https://quran.com/65/7 )

     

    Meanwhile, in Surah An-Nisaa’ verse 34, Allah says:

    Men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend (to support them) from their means.

    (Translation by Muhsin Khan. See: https://quran.com/4/34 )

     

    According to the writers of the above cited article, the Quranic verses laid down above, signify the duty of a husband to provide maintenance for his wife according to his financial standing. Although a husband is not to be burdened to provide his wife more than what he can bear, providing maintenance remains a husband’s obligation and responsibility.

     

    There are also narrations contained in the hadeeth of the Prophet which highlight the duty of a husband to provide maintenance. One of the oft-quoted hadeeth pertaining to maintenance is the hadeeth pertaining to Hindun binti ‘Utbah, i.e. the wife of Abu Sufyan. In the Sahih Al-Bukhari, as translated by Muhsin Khan, Chapter al-Nafaqah, Vol VII, 6th Edition, page 212, it is narrated by ‘A’isyah that Abu Sufyan’s wife said:

    O Rasulullah, Abu Sufyan is a miser and does not give me what is sufficient for me and my children, can I take his property without his knowledge?” Rasulullah (saw) said, “Take what is sufficient for you and your children, and the amount should be just and reasonable

     

    In interpreting the hadeeth, in al-Zuhayli, Volume 7, page 787, as cited in the above-referred article, it is explained that a husband is obligated to provide maintenance for his wife. Thus, it is permitted for a wife to take what is sufficient for her from his husband’s possessions, but, in a manner that is good (emphasis needed).

     

    Further, we can also find legal support pertaining to a husband’s duty to maintain his wife based on the unanimous stance of fuqaha’ (ijma’). As contained in Islamic Family Law in Malaysia; a book co-authored by Najibah Mohd Zin and 7 other lecturers from IIUM, at page 89, unless his wife is nusyuz or being disobedient to him, a husband is under an obligatory duty to provide maintenance to his wife.

     

    Besides, despite providing a general connotation, the duty of a husband to provide maintenance for his wife is also prescribed under section 59(1) of the IFLA, whereby it states that:

    The Court may, subject to Hukum Syara’, order a man to pay maintenance to his wife or former wife

     

    According to the writers of the Islamic Family Law in Malaysia, this provision entitles a wife to receive maintenance during a valid subsisting marriage. Whereas, the term “former wife” would entitle a former wife to receive her right of maintenance after divorce, during the period of ‘iddah.

     

    THE DARAR OF THE NON-CONFERMENT OF MAINTENANCE

    In an article entitled Darar or Harm for Failure to Maintain the Wife: A Quranic and Juristic Approach on Marriage Dissolution, co-written by Tengku Fatimah Muliana Tengku Muda from UniSZA, as well as Azizah Mohd and Noraini Md. Hashim from IIUM, it discussed on the wider scope of the term darar, as opposed to its literal meaning, to include the physical, psychological, emotional as well as financial contexts. This is propounded by scholars of Tafseer. Thus, according to the above writers, a husband’s failure to provide his wife maintenance is a form of “emotional abuse” and thus constitutes darar.

     

    The various interpretations of the term darar are based on the definitions given by Muslim scholars. For instance, according to Abu Jayb, darar can also be equated to “dayyiq”, which means “a state of narrowness and difficulties”. Meanwhile, At-Tabari regarded darar as “a state of extreme hardship and affliction”. On the other hand, As-Suyuti considered darar to constitute “emotional disturbance or distress”. Thus, based on the foregoing interpretations given by learned Muslim scholars, the writers were emphasising the point that failure to provide maintenance is a form of darar that should not be taken lightly. Further reading can be made, by referring to the aforementioned article.

     

    FAILURE TO MAINTAIN AS A GROUND FOR MARRIAGE DISSOLUTION

    A review on cases decided by the Malaysian Syariah Courts on this matter would make us understand better the nexus between failure to maintain on the part of the husband with the darar thereby suffered by the wife to justify a fasakh divorce application. In a 2013 case cited as Noor Aisyah binti Ali Akbar v Mohd Shahnaz bin Mohd Amin, the wife was diagnosed with “major depression” by a psychiatrist. The husband’s failure to provide maintenance to the wife had affected the latter’s psychologically. The Court had thereby granted her application for divorce via fasakh.

     

    In another case called Masrifawati binti Humala Marpaung v Mohammad Wazir bin Yeop Mat, a 2011 case, the wife was denied from the right of maintenance for about nine (9) years long, despite the fact being that the husband was in existent. As a consequence, the wife had suffered emotionally. The Court had rightfully granted her fasakh application and had also noted that the husband’s failure to provide maintenance for his wife had resulted in darar to the latter.

     

    The above two cases are discussed in the article cited under the previous heading. Based on the above cases and other quoted cases, the co-authors of the article found that failure of a husband to provide maintenance to his wife has caused darar to the latter, which justifies a dissolution of marriage via fasakh.

     

    MAINTENANCE TO A WORKING WIFE

    Lastly, in the Malaysian context, we can see that a husband has a duty to provide maintenance to his wife as well as his former wife (during ‘iddah period) as enshrined under section 59(1) of IFLA. The law does not isolate a working wife from an equal entitlement of maintenance. A wife would only be disentitled from receiving maintenance in the case of nusyuz, or as the law puts: “unreasonably refuses to obey the lawful wishes or commands of her husband”. The decided cases in the Syariah Courts have also painted a similar connotation, whereby the Court have not taken into account the working status of a wife in deciding for her right to maintenance but have only concerned on whether the wife is nusyuz or otherwise.

     

    For instance, in a 2001 case of Salina binti Mohd. Dahlan v. Mohd Salleh bin Haji Haron, despite the plaintiff’s occupation as a teacher, the Court did not disentitle her from receiving maintenance from her husband who had denied her from such right for more than one year. The Court had granted her fasakh application and had quoted from page 113 of al-Firqatu Baina al-Tazwijaini, which reads:

    “There is no doubt that to hold a wife without any maintenance causes her severe harm (darar) and pain. In this case, the husband is supposed to let the wife go in a kind manner. When the husband did not do that, Qadi can pronounce talaq to avoid cruelty and harm”

     

    The above case is found quoted at page 119 of Muslim Wife’s Right to Maintenance: Husband’s Duty to Maintain a Working Wife in Islamic Law and the Law in Malaysia.

     

    CONCLUSION

    To conclude, providing nafaqah or maintenance to a wife is an obligation upon a husband in Islam. If this right is not duly conferred to the wife would not only cause financial harm (darar) and hardship, instead, the wife might suffer psychologically as well, as discussed above. Despite the fact that ending a marriage by way of pronouncing talaq is, so to speak, a man’s “power”, it is nevertheless not absolute. Decided cases have proven that a wife may “equally” dissolve a marriage by way of fasakh or even ta’liq on the ground of the husband’s failure to maintain. Furthermore, a husband must note that employment does not make a wife any less entitled from receiving maintenance from her husband, as long as the wife’s employment is consented by the husband.

     

    The sacred unity of a man and a woman is not aimed to end with divorce nor does Islam tolerate any form of hardship or difficulty to be suffered by either party to the marriage. However, our religion and the law in our country provide an avenue for a wife who has been neglected from receiving her lawful right, i.e. nafaqah to seek for divorce either through ta’liq or fasakh (by fulfilling certain requirements) when the darar persists and cannot be availed due to the ignorance, cruelty or negligence of the husband. At the end of the day, the option lies on the wife whether to step up and enforce her lawful right or to let herself persistently engulfed in hardship and misery. Wallahu a’lam.