2013 Winter Session (January 13 to March 17 2013)
Class taught by Shaikh Jamaal Zarabozo
Nafaqa, non-financial rights of the wife, rights that are common between the husband and wife.
Recommended Textbook / Required or Recommended Reading:
There is actually a great deal of literature available on this topic in English. However, there will be no text that we will be using as the textbook for this class.
Some books that I may refer you to include:
Closer than a Garment: Marriage Intimacy According to the Pure Sunnah by Muhammad al-Jibaly
The Fragile Vessels: Rights and Obligations between the Spouses in Islam by Muhammad al-Jibaly
Dwell in Tranquility: An Islamic Roadmap to the Vibrant Marriage by Kamal Shaarawy
Blissful Marriage: A Practical Islamic Guide by Ekram and M. Rida Beshir
The Status of Women Under Islamic Law by Jamal Nasir
The Marriage Contract in Islamic Law by Dawoud El Alami
Topics: Nafaqa, Non-financial rights of the wife, rights that are common between the husband and wife.
The books of fiqh and the details and aspects speak about the obligations of nafaqah or that the husband must provide for the wife and how much clothing he has to provide for winter, summer, etc. These are laws and rules that are developed because people bring up this issues and ask questions. Sheikh Jamaal was reminded of this as there was a law passed in China which gives the parents the right to sue children for not visiting their parents. This is quite a shift from one generation to the next; the new generation has a tendency to neglect their parents. This is an example of cultures changing very quickly. Such laws are a response to need or to questions.
With respect to nafaqah, they are ordering what the minimum is and what is necessary. It gives the judge a clear idea of what the minimum is for the wife and for the husband when judging disputes, etc.
Last time, we spoke about nafaqah, which has to do with the obligation of the husband to maintain the wife. The best way to approach it is you can divide the needs of the wife into three categories
- the necessities of life. The things you really need to exist and to exist in an acceptable manner.
the husband must provide for her under all circumstances whether she is rich or poor. These necessities can change from time, place and culture. The main ones that have been discussed are housing, food, clothing. Sheikh Jamaal would also include medical care whereas the majority of the madahab would not have included this under nafaqah.
Beyond necessities, you also have needs. Needs make life easier for you (one level below necessity). This will depend on the ‘urf or customs of the people. It also depends on what the local situation is. This will change from time and place.
Necessities and needs both fall under the wings of nafaqah.
Beyond that, there are amenities and luxuries. Obviously, extravagance is haram under all circumstances. Amenities are things that make life easier as well and provide more comfort. These don’t fall under the nafaqah but are more part of being kind to your wife if the husband has the means to spend on her beyond the nafaqah. These don’t fall under the obligations of nafaqah.
Hajj is also not subject to nafaqah because one of the conditions of hajj is having the financial capability.
There is a big question that needs to be addressed: if the wife is working, does this fact that she is working affect the husband’s obligation to provide for his wife? Does it affect the marriage relationship at all? Does this affect her entitlement to nafaqah?
Before we state hte dilemma, many things have changed in the West. Capitalism put a lot of value on people being in the market place, where you are valued based on the value you made in the market. The biggest moment was WWII, which led to women doing a number of the jobs that men used to do (as the men were off fighting in the war). In the 60’s this led to a very strong feminist movement. There is an emphasis in this society that places the value of an individual on the fact that they are working and earning an income. Many times, Muslim sisters staying at home feel pressure to work from other Muslim sisters.
What are some reasons why Muslim sisters work in society?
(work is defined here as time consuming and a source of financial income)
1. Provide family income in families that have no other source of income
2. Supplement family income.
3. They have a degree and then they sit at home, then it’s a waste.
4. Competition with other women.
6. Contributing to society.
7. Give wife financial independence.
Even sisters dedicated to Islam are career oriented. The problem is that the dilemma we’re facing is that many of the brothers have in their mind have a picture of a wife who is not working. So this can be a deal-breaker -- brothers want a stay-at-home wife, and wife wants to work.
They do not believe that the wife working is the proper Islamic setup for the family. But women feel it is important and permissible for them to do this work.
Wife and husband need to have an open discussion about work. It’s very much a problem when you find the dedicated brothers looking for something different from the brother.
There are actually seven different opinions related to nafaqah when the women are working. These all go back to the reasons why a wife is entitled to maintenance. There is a difference of opinion as to why she is entitled to this nafaqah and then from that why does this change when she is working>
For example, in the hanafi school, the reason why she is deserving of nafaqah is ihtibaas (احتباس) that she is saving herself and confining herself in the house to meet the needs of the husband.
If she is working 40 hours a week, she is not actually preserving or confining herself for the husband to benefit from in any way or at any time. If the cause is considered al ihtibaas, this means she is not deserving of nafaqah if she is outside the house and working on a regular basis.
A second opinion as to what the subab or the legal cause for nafaqah is tasleem wal tamkeen (التسليم والتمكين) (the woman is available to the husband). In the books of fiqh, they emphasize sexual relations here or they make it more general where he can enjoy her in any way.
This is the majorty view amongst the Shafi’s, Malikis and Hanbalis.
These two views that were discussed often amongst the scholars were in the light where the wife leaves the house and refuses to come back to her husband. In this case, she isn’t giving herself to her husband or submitting herself and therefore is not deserving of maintenance.
The third opinion is the ‘aqd itself obligates the husband to provide for the wife regardless of whether she has submitted herself or confines herself to the house. This is the opinion of Ibn Hazm.
A fourth opinion, slightly different but the sheikh feels it’s better as there is quasi-evidence to support it, is the ‘aqd and the consummation. This is the reason why the husband must provide nafaqah.
We have no evidence that the Prophet صلى الله عليه وسلم provided for A’isha after the ‘aqd but before the consummation.
The four causes then branch out into the differences in opinions regarding nafaqah when the wife is working.
One opinion is that she loses her right to nafaqah even if she is working by the permission of the husband. The way they reach this conclusion is that the subab of the nafaqah is al ihtibaas, that she is confining herself into the husband’s house and taking care of the house. This is one of the opinions amongst the Hanafis. Ibn Abideen for example, famous for Hashiat ibn Abideen, can be described as the last great hanafi scholar within the school. He said that if the woman only gave herself to her husband only during the day or the night, she gets no maintenance as giving herself to the husband is incomplete. This is the case when the husband marries a wife that works during the day and stays with her husband during the night. This is also one of the opinions in the Shafi’ school. This is also the opinion of ‘Umar al Ashkar.
Even if she has the permission of her husband, it doesn’t matter, as her ihtibaas is gone.
The cause for nafaqah is al ihtibaas again but the nafaqah is not dropped if the husband gives her permission to work. This is the opinion of a number of Shafi and Hanbali scholars. In one of the Hanbali books of fiqh, if a wife contracts herself out for suckling, the work contract is valid and she is deserving of nafaqah.
Another opinion says that al ihtibaas is the right of the husband and he can give up this right. If he gives it up, she still is deserving of maintenance. This is the opinion of the majority of contemporary scholars and this is the law of the majority of Muslim lands as the personal status laws which have some relationship to the Shariah.
The third opinion is that nafaqah is based on the ‘aqd and therefore she is deserving of the maintenance even if she is working (with or without her husband’s permission).
This one is the opinion held by some Hanafis. There are also some contemporary scholars that have this view.
The fourth opinion is that this question of her deserving nafaqah depends on if she was working before hand and he accepted her as such. However, if he was not aware that she was working and if she tries to continue working, he can prevent her from doing so and if she works against the husband’s feelings then she is not deserving of nafaqah. This is the opinion of one Hanbali scholar (al Mawardi -- الماوردي) and some Shafi scholars.
The fifth opinion goes back to whether this was something that was agreed upon via the ‘aqd either explicitly, by ‘urf or if it was not agreed upon. What is meant by this, before you get married, the woman could say that she is going to work. This could be implied or be explicit. Or maybe the ‘urf is such that the women are known to work. In any of those cases, teh default case is that the wife is deserving of nafaqah. If on top of that by contract or ‘urf she will be working, she still gets her nafaqah. However, if they agreed upon that she wouldn’t work or if the ‘urf is that she won’t work, in that case she is not deserving of nafaqah. This goes back to the question regarding how they entered the contract and what agreement they had in the contract.
For example, Sheikh Bin Baaz was asked about a woman who before marriage made the condition that the husband not prevent her from working as a teacher. They agreed to this and she agreed to the marriage proposal after this understanding. Then the dispute arose that the man did not want to provide for her as long as she was working. Sheikh Bin Baaz said that he is obliged to observe the condition that they agreed upon, especially after consummation. This is based on a hadith of the Prophet صلى الله عليه وسلم related to the marriage contract and sexual relations. If the husband prevents her from working, she has the right to remove herself from him or seek a way of leaving the contract. The Hanbali school (which Bin Baaz mostly adheres to) accepts pre-nuptual agreements. Other schools don’t accept pre-nuptual agreements.
The sixth opinion is that she gets nafaqah but she gets less of the nafaqah, some percentage depending on ‘urf or if they have some agreement, etc.
The seventh opinion is that if the woman is going to be working or earning an income, she has to share in the expenses of the household.
These last two are close to each other. one is held by a contemporary scholar who says she has to pay for part of the expenses as the two clashes. If the two parties disagrees, she …
Another contemporary scholar, Abu Haleem, says that the husband gets some compensation for the physical and psychological effects of working on the wife. Either she gets less nafaqah or she participates in the household opinions.
Clarification on one thing mentioned last week, to avoid any misunderstanding:
The question regarding sisters who are dedicated to Islam and are religious but they feel under the circumstances here it’s necessary for them to work. We have brothers here looking for wives who are religious and don’t want to them to work while we have sisters here that meet the former condition but not the later.
The clarification is that we are not trying to say every Muslim woman should be working; what was meant was that if a woman sees some of the asbaab and the situation here in the west and she may see in her case (or even important) to work or even continue to work while here. She doesn’t have to be driven by a feminist ideology and that a motherly position isn’t to be held. She wants a means to fall back on in case of emergency.
She will put her trust in Allah swt and being a housewife is more important than having a career. Even if you have a career, you might be tried with trials and tribulations and must address these as a Muslim.
There are situations where a sister is serious and religious but feels she needs to work for various reasons. This doesn’t mean that she isn’t devoted to Islam and that she is following feminist ideologies as said before. Many brothers take this as a negative sign that she isn’t serious about Islam.
The point is that the issue needs to be looked at from both sides. If a muslim brother and sister are dedicated to Islam, these are the best that will lead to a good Muslim family.
Open Question from last class about whether a wife who is working is deserving of nafaqah?
We reviewed seven opinions regarding a woman that works and whether she was still deserving of nafaqah.
If the woman is working and that entails a new financial burden on the husband, to pay for the childcare, then it should be okay for the husband to ask the wife to pay for those expenses? Is Urf to be considered in matters of nafaqah?
We are discussing the case of a wife who is working, can the husband consider her earnings for the household?
The asal (default case) is that maintenance is the burden of the husband. This is true, regardless of whether the wife is rich or poor.
You have to start with this default case that the nafaqah is a financial burden on the husband only, it’s part of the reason why the husband has been put into a position of qawamah in the household.
In general, the only time, by virtue of the ‘aqd and consummation of the marriage, this is what makes the nafaqah obligatory on the husband. The only time that this obligation of nafaqah would be dropped (actually two cases), the most important one is if the wife is committing nushooz, where she is not accepting the authority of the husband, refusing relations with the husband. In the shariah, in this case the wife doesn’t have a right to nafaqah.
Is the case of a wife working a type of nushooz?
If it is by permission of the husband, it cannot be considered nushooz. This means either the permission is implicit or explicit. If it is in the marriage contract and the husband approved of it or later the husband approves of her working outside of the house, then this cannot be considered a type of nushooz.
‘Urf also plays a part here in determining whether it’s accepted that a wife can work or not.
The question of whether the wife works for an employer inside the household or outside the household is not that important, because in either cases her time and her energy is spent on her employer.
This brings up another question: does the husband then have the right not to permit her wife to work? If there was no standard ‘urf that she will work and there was no agreement in the ‘aqd to not let her work, does the husband have the right to prevent her from working?
If she’s working and there are kids, it places a greater burden on the husband to now provide for child care during the day.
If both husband and wife are working full time 8-10 hours a day, don’t you think it is going to affect the household? This will definitely affect the relationship. If they have to use day care to look after their children, most probably it will be a non Muslim who is looking after the children.
That’s why we have to ask this question; it’s very relevant.
If it’s the case that she can work without affecting the household very much, let’s say they don’t have children, this may be a case where you can argue that he doesn’t have the right to deny her since he’s not losing any of his rights.
This is of course assuming that she is working in a “halaal” environment.
What if she’s working to support her parents?
This isn’t the husband’s first responsibility. We’ll get to this.
Let’s say she’s just working because she wants to work and maybe she feels one day it’s important for her to be able to work. They don’t need the second income but she feels it’s a good idea.
Again we are saying here that his rights are being impacted.
The scholars seem to agree that the wife cannot work without the permission of the husband if it’s affecting his rights in any way. By the way, the reverse is also taken into consideration and needs to be avoided.
We will discuss some special cases about a wife working to support her parents or something similar, later on. We will discuss the rights of the husband later on, but it is sufficient to note that a wife when she works is infringing on the rights of the husband.
At Ta’asaf التعسّف- Abusing one’s rights
This is a very important concept in the shariah that won’t be discussed today but rather after we are done with discussing this particular issue of a working wife.
If the woman is working 60 hours a week and when the husband comes home, he finds out that she does not have enough energy towards the household, and he is feeling that he is not getting enough from her. He feels that her working is harming the household and he can definitely say that since he is providing for her, he can ask her not to work.
Let us say that the husband and wife do not have any children and when the wife goes to work, the husband does not feel her absence. Some scholars quote that he can demand that the wife cannot leave the house as there is some psychological impact on the husband by the fact that she is leaving teh household.
The wife working goes against the default setup of the household and the husband at the very least has the right to bring it up for discussion.
If she put it as a condition in the prenuptial agreement, it has already been defined and he has to figure out how to deal with it.
Can a husband force his wife to work? Will he be infringing on her rights? Under what circumstances can he force her to work? Does he have the right to do so?
The nafaqa is completely the burden of the husband, it is obligatory upon him and he cannot force her to work. The wife can complain and say that he does not have the right to force her to work.
Now suppose that the wife is working, can the husband force her to contribute to the household expenses?
Let us assume that they agreed in a pre-nuptial agreement or due to Urf, and she is working with the approval of the husband. Let us say that there is some detriment to his rights and yet he has accepted her decision to work. Can he force her to contribute then?
No he cannot do so. He cannot force her to contribute.
Suppose the husband is not providing enough to maintain the household according to the urf, can she work without his permission to provide for the household according to the norms or Urf? Would this consider acceptable or would it be considered a type of nushooz.
Yes, she has the right to live according to the norms and go and earn money.
Footnote: When you are in a position of authority in the US, you will be faced with these kind of issues. A lot of people get married without considering these type of questions.
In the books of fiqh, all of the madhab say she has the right to leave the house to work if the husband is not providing for them for whatever reason (laziness is emphasized). Working, trading, begging (this was surprising); under those circumstances, as some Hanbalis mentioned, she can ask for separation from the husband or she can stay with him while trying to do the best to fulfill her needs. In general, what we find is that the wife has the right to do this without any problem.
One has to be careful with this. The husband can counter this; there’s a difference between living to acceptable standards and “keeping up with the Joneses”
Is it the case that the husband isn’t providing or that the wife wants more? Is he providing her at a standard given the ‘urf or his standard upon getting married. eg they both came from middle class families.
If he is providing based on a reasonable standard, she doesn’t have the right to work and she would be doing wrong. It is a very, theoretically speaking, simple answer but the reality of it and how to put it into practice is more complex.
Now suppose where one income simply isn’t enough. So the wife takes on a job to get a second income to support the family. She does it with the approval of the husband. By definition, this income would be a donation or sadaqah.
If someone is in need and you donate money to them as a gift for the sake of Allah, you will get ajr inshaAllah. Those who are closer to you deserve the most.
The wife of Abdullah ibn Mas’ood used to make things like clothing and sell them. She told the Prophet that this is the only income they have coming in and can she spend it on the household? The Prophet said that you will receive ajr for everything that you spend on the family.
If she does it freely out of her own will, inshaAllah there will be a great reward for that. She will be rewarding for helping those in great need and helping those who are closest to her.
It’s an obligation on the husband to provide for the family; this contribution of the wife’s income to support the household is considered a loan if she so chooses. The madahab agree that this upkeep is on the shoulders of the husband and that this is now a debt that the husband owes to the wife.
Imam Shafi’ was one of the first scholars, in his book Kitaab al Um, to speak about communal property as far as the sheikh knows. The spouses may both contribute to the household. He has a passage that gives this implication of communal property.
The strongest opinion is that if she does work and she contributes to the household financial needs by her own will and seeks reward from Allah, this is a praiseworthy act and she earns a great reward for it. Some scholars say that when she contributes, she may feel compelled to not say anything. So if later she comes and says this is to be considered a debt, this claim must be taken seriously.
The concept of at-ta’asif is most emphasized in the books of al nikkah and talaq and also the books on the law of pre-emption of property.
If the ‘urf violates shari’ principles, the ‘urf must be supplanted by the shari’ principles.
The only situation where the wife has wealth or income but doesn’t have the right to spend it is if she is not capable of spending it appropriate (she is sifahah or incompetent in this manner).
Is there evidence to support the opinion that the wife cannot spend her money without her husband’s permission?
This specific question was asked by somebody in Baltimore MD in response to a talk given in 1970s. Sh read the question and discussed it. And in response to that specific question, we are discussing the following hadith.
We find in Sunan ibn Majah, that the wife of Kaa’b ibn Malik, went to the Prophet with her jewelry and said that I am giving this jewelry in sadaqah. The prophet said it’s not permissible to given from her wealth without the husband’s permission and asked if she has his permission. She said yes. The Prophet sent someone to the husband to confirm. Indeed the husband said that.
Al Albani says this hadith is sahih.
There is another hadith where the Prophet gave the judgment that a woman is not allowed to give anything from her wealth except from her husband’s permission.
The Prophet () said: It is not permissible for a woman to present a gift (from her husband's property) except with the permission of her husband.
حَدَّثَنَا أَبُو كَامِلٍ، حَدَّثَنَا خَالِدٌ، - يَعْنِي ابْنَ الْحَارِثِ - حَدَّثَنَا حُسَيْنٌ، عَنْ عَمْرِو بْنِ شُعَيْبٍ، أَنَّ أَبَاهُ، أَخْبَرَهُ عَنْ عَبْدِ اللَّهِ بْنِ عَمْرٍو، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ " لاَ يَجُوزُ لاِمْرَأَةٍ عَطِيَّةٌ إِلاَّ بِإِذْنِ زَوْجِهَا " .
Another hadith: the Prophet said that it’s not allowed for a husband to consume anything of her wealth except by her husband’s permission.
Another hadith: The Prophet said it is not permissible for a woman to present a gift from the property that she has in her permission if the husband owns her chastity (a literal translation of the hadith which means she is married to him).
These are five hadith; what do they mean?
We will leave you with these hadith to give you something to think about for next time.
Permissibility of spending wealth by the wife without her husband’s permission
We are discussing whether it is permissible for the wife to spend of her wealth without the permission of her husband. If we had authentic hadith then we would have to follow them but ... The reason why we have to discuss this topic is because there is an opinion that a woman cannot spend wealth without her husband’s permission.
There is an opinion that says that there is agreement among the fuqaha that a woman may buy and sell from her wealth without the permission of her husband. However there is no agreement among the scholars, they disagree that buying and selling is allowed but giving donation or gift or charity there is a difference of opinion.
Among the modern scholars the area in which they differ on this topic, there are many more disagreements, so their views are diverged rather than converged.
We will discuss five hadith on this topic. Sh Jamaal had written a detailed article about the grading of those hadith in Al Basheer Magazine.
Link to the Al Basheer Magazine article https://docs.google.com/file/d/0B1xT97dnLCYnYW9pb2pwRW9ibmc/edit
The default case is that a woman can do whatever she wants to do with her wealth, so we need to present evidence that show why the default case does not apply and the husband has some rights over the wife’s wealth.
List of Hadith as mentioned in the Al Basheer article
#1 Hadith of Khairah the wife of Kaab
#2 Ibaadah - Hadith from Musnad Ahmad about the judgement of the prophet regarding the wife
#3 Hadith of Waathilah reported from Tabarani -- woman should not tantahik the wealth of her husband
#4 Narrated by Amr ibn Shu’aib - She cannot give from her wealth, which would be inclusive of her wealth before or after marriage
#4A Chain from Amr ibn Shu’aib - #4 is narrated from two different chains, in one narration it says that she cannot spend from her wealth, and in another narration it says that she cannot have any say in her own wealth after marriage.
Sometimes the ulema of hadith sometimes treat these hadith that say very different things and you have to analyze the hadith to determine which it is. But the scholars of these hadith don’t do that. But the Albaani will say “it is saheeh” even with the difference of the wording. Shu’aib Al-Arna’oot did say that the second version has idraaj (a defect where additional words are inserted) in these extra words.
#5 Narrated by Amr ibn Shu’aib - Not permissible for the woman to give anything without her husband’s permission. This hadith does not say her wealth and it is more closely related to hadith # ??????
Conclusions about the narrations
For details see the article written by Sh Jamaal, we only discuss the conclusions in order to avoid this class becoming an uloom al hadith class.
#1 This narration is weak or very weak. It has two unknown narrators
#2 It has a broken chain and unknown narrator. The unknown narrator is known to narrate against what is the correct ..
#3 It has three unknown narrators????
#4, #4A and #5 are just one hadith.
Who is Amr ibn Shu’aib? He is Amr ibn Shu’aib ibn Muhammad ibn Abdullah ibn Amr ibn Al-Aas. Abdullah bin Amr ibn Al-Aas is well known for being a companion of the Prophet (SAWS) and he also collected something during the lifetime of the Prophet (SAWS) called a Saheefah, in this particular case called the Saheefah Al Saadiqah.
But then if it’s a book, then this is not hadith is meant to the book to be passed on, because writing at the time, writing was just to remind your memory -- there was no tashkeel, no dots, etc. So just having the book is problematic. And so scholars are very careful about this chain. We have no doubt about authenticity, people, etc, but there is a difference between believing in that book and knowing that particular hadith from that book. If heard it from his father. Many scholars will say the chain is Hassan, but if there is something unique to this chain, they will doubt it a little bit. So Albaani would probably regard this as Hassan. And so his conclusion will be that this hadith is Sahih.
Bukhari had a title in his book saying that she is permitted to spend money unless she is safeehah. Another instance was the wife of the Prophet (SAWS) -- Maimoona -- freed a slave and told the Prophet (SAWS), and he said, you could have given her to one of your maternal uncles.
So we can find a number of evidences that show explicitly that women are allowed to give without permission.
Sh mentioned many examples from the Quran and Sunnah that clearly show women have their own wealth and that they are allowed to spend freely from it without their husband’s permission.
1. A woman can not give or spend without her husband’s opinion: not traceable to any of the Sahabah. Imam Malik said that it was ⅓ of her property. Why did he mention that it has to be 1/3 of the property. He based this on the hadith about Sa’d b Abi Waqqas and his will and testament. Because the Prophet (SAWS) said ⅓ is a lot, she said he is infringing on the right of his heirs. Albaani accepts all 5 hadith. So he has said that she is not allowed to spend any of the wealth. “But he must not if he is a sincere Muslim abuse this ruling and not allow her to spend her wealth on things that will not harm either of them -- similar to the right of the daughter to wed -- if he refuses, it may be referred to a judge.”
2. The majority of scholars do not have the same view and in general they give a different version of the hadith. E.g. Atheem Abbaadi (wrote a commentary on S Abu Dawud); he interpreted as “she can’t spend from HIS wealth without permissions.” Many scholars just reject these hadith, and in contradiction with other pieces of evidence and even from a uloom-ul-hadith perspective to raise these hadith to the status of hasan or sahih. Imam Shafi’i rejects these hadith: Q + S + Aql all point to these being permissible. Ibn Hazm rejects because it is a saheefah. Bin Baz says this contradicts ahdadeeth as long as she is rasheedah.
Footnote: Discussion about suspending the right to dispense your property at your death bed. In some madhabs, for over a year before the death of an individual who is on his or her deathbed are considered void or null, since the person on the deathbed is harming the inheritors by disposing of his wealth. This was discussed in conjunction to the discussion of why pregnant women are not allowed to spend their wealth, because of the high mortality rate during pregnancy.
Footnote: When Albaani discussed his opinion about this hadith, it caused a great amount of fitnah in the US East Coast in 1993. Some brothers just read the first part of his remarks and jumped to a conclusion. You have to study in detail before making haste conclusions on your part.
When does the wife lose the right to nafaqah from her husband?
The most important of these is nushooz. Before the end of marriage, usually husband and wife don’t treat each other the way they should. Very clear from the Qur’an it could be the wife or the husband or both.
http://quran.com/4/34 -- wife
http://quran.com/4/128 -- husband
http://quran.com/4/35 -- both
Definition of Nushooz
Hanbalis define it as either party having hatred for the other person. Some others define it on the part of the wife very specifically. E.g. Hanafi: the wife leaves the house without permission, and keeping herself from her husband when has the right. All the madhabs are clear that there is implicit and explicit permission -- doesn’t have to be called on cell phones individually.
Malikis define nushooz as obligatory departing from her obligations, leaving sexual relationships, locking her husband out, going places he would not permit her to go.
Shafies and Hanbalis give similar definition.
Ibn Taymiyah says that wife raises herself above the husband, she is keeping herself away from the rights of her husband.
The question of when does the woman receive nafaqah, we said that it was the result of the aqd, others say it was because of her saving herself for her husband, etc.
Most scholars agree that if a woman is nashizah, then she loses her right to maintenance. There is a minority opinion that this is not the case, and she’s still entitled to maintenance.
For men, nushooz is defined as when he fails to meet his obligations, or any forms of abuse of the wife, or not dealing with her as she should be dealt with all of that is considered nushooz.
If the wife is exhibiting nushooz, then the husband can take the issue to court.
Since proving that a wife is exhibiting nushooz is very difficult, it is advised that the husband have a representative from both of their families present when making these allegations.
There are some other circumstances other than nushooz when a wife loses her right to nafaqah which we will discuss next time.
We will discuss the topic of a wife giving up her right to nafaqa. We earlier discussed rights of human beings and rights of Allah swt and we said that some of the rights that are of both Allah swt and the human being, you cannot give up the right of Allah swt. You do not have the authority to give up the right of Allah swt.
Since nafaqa belongs to the rights of a human being, it is possible that she can give up those rights. If the wife gives up this right, it cannot be due to coercion or deception. If someone is forced to do something out of coercion, then it is not a sound and legal act on their part.
Hadith: Allah has removed from my ummah, what they do in forgetfulness or out of coercion....
One of the important types of coercion is described by Ibn al Qayim. If someone gives up something but not out of pleasure, but the person told them that unless you do this then I will not do this other right that is expected of me.
If those other things are part of the rights, then that is a form of coercion. It is not necessarily a gun to the head but still a form of coercion.
If somebody deceives her and say that it would be better for her to give up this right or promise something better in return for giving up this right, this is not acceptable.
Can a wife give up the right before the marriage contract or aqd (maybe in a prenuptial agreement)? Can the husband demand that the wife has to give up her right of nafaqa?
Mahr is from the right of Allah swt and it cannot be given up by the wife. However nafaqa is the right of the human being so can it be given up?
The basic reason why such a marriage contract is not valid, is because you cannot give up something that does not exist yet.
Hadith: There is no talaq except after the marriage, you cannot free a slave unless you own it.
In general you cannot do something unless you have it. Hence majority of scholars say that a marriage contract that requires a woman to give up her nafaqa is not valid.
Imam Ahmed was asked about these types of marriage contracts, he said that she cannot give it up and if it is in the marriage contract, she is still allowed to ask for nafaqa after the marriage.
Due to different cultural aspects, it is difficult for some women to get married due to their status or age or being widowed or divorced and that is the reason why the Jawaiz al Misyaar have been developed where the husband does not pay nafaqa. These are not valid contracts and they have become aspects of some marriage contracts and some women are forced to give up their nafaqa in order to get married.
Would such a woman being coerced due to cultural mores to give up her nafaqa? From the law point of view it might not be coercion, but from the moral point of view, it can be considered to be coercive. Even the scholars who allowed such types of marriages they say that these are exceptional types of marriage contracts.
So the conclusion is that giving up nafaqa is not valid in a pre-nuptial agreement, can relinquishing nafaqa happen after the marriage contract?
Can a man ask the woman on the wedding night to give up her right of nafaqa? And she consents to give up this right, what do you think about it? What if the woman says on the wedding night that you don’t have to maintain me?
Here again it is the same as giving up her rights before it’s time is due. So she cannot be held legally obligated for giving up her rights. Scholars say that it is not legally sound and it cannot be legally binding. In the future, even if she has given up the right of nafaqa on the wedding night, she can later on ask for it and she is legally in the right to ask for it.
Does this mean that all conditions should not be valid in the marriage contract, conditions such as that they will live in Sacramento, or that she will not work, or that she will work.
Since these additional rights are not born out of the contract, they are independent of the marriage contract, they exist before the marriage contract and if you agree not to use them, then it is up to you. However the right of nafaqa are tied to the marriage contract and giving it up is not legally binding on the woman.
If a woman is due nafaqa right now and she can give it up. Or if she was due nafaqa from the past, she can give it up. However she cannot give up the nafaqa of the future, atmost it can be considered a promise on her part.
If it is considered a promise, then it is not legally binding. A legally binding contract allows the two parties to bring the matter to a court, but a non legally binding contract or a promise, you do not have the right to sue the party.
In the shariah if you make a promise and you understand it is not a contract, and if your intention is not to fulfill the promise, then you are committing a sin.
Scholars differ on whether it is obligatory or mustahab to fulfill a promise, we can say that at the least it is mustahab.
Morally speaking you should try to fulfill your promises. There are five different opinions about promises and contracts.
1. A promise is both legally and morally binding. Opinion of ibn Al Arabi and others. This is a minority opinion, it is not a majority opinion, because then there is no difference between waad or aqd. This minority opinion is the basis of many innovative financial contracts nowadays.
2. A promise is morally obligatory but not legally. This is the opinion of Taqi Ud Din Subki.
3. It is recommended but not obligatory to fulfill your promises. Majority amongst Shafi’is, Hanbalis, Hanafis and some of the malikis. For example a person had promised to give somebody a piece of land and he did not fulfill this promise, and the scholar said in response to a complaint that he is not legally responsible to fulfill this promise, but it would be better if he fulfills it....
4. If the promise is tied into some cause or action, then it is binding: e.g. if you do x, then I will do y. E.g. Abe promises Bob to pay for his wedding if he gets married, so Bob goes and spends money. And then if Abe does not fulfill the promise, Bob can ask for repayment of costs incurred by Bob in getting ready for the wedding. This opinion is used by many to implement the financial contracts, which are structured such that the a person promises to buy the house on installments if they financier goes and purchases the property on his behalf.
So it is OK to give up one’s right -- but if you give up your rights that you gave up in the past, you can’t come later and claim them back.
Suppose the husband claims that he does not have to provide for his wife and appears before a court.
Here the default case is that the husband has to provide for his wife. This is the yaqeen or the default case. And the burden of proof is on him to show that he does not have to provide for his wife.
Suppose a couple is married for 20 years and the wife complains that her husband has not provided her nafaqa for the first five years of marriage and she asks for compensation for those five years. Here the burden of proof is on the wife that she did not receive nafaqa for those five years of the marriage, since she lived with him for 20 years and also she is claiming that only five years of those marriage she was not provided for, and the rest of the 15 years she was provided nafaqa.
Nafaqa is built into the contract. If you try to tweak it, then it is considered to be a promise and not legally binding.
Nafaqa is one of the main issues for marital discords in the US. Many women are complaining that the men are not providing nafaqa to them. This is not a problem with the immigrant community who are educated and rich. In some cultures there are many cases where the husband is not providing nafaqa. If some husbands are addicted to drugs or some other addiction, they do not provide nafaqa, but then there are bigger issues to be handled.
التعسف في استعمال الحق
Ta’assuf means going beyond one’s rights. In this particular question it is being oppressive in using your rights. It is where the Shari’ah has given you rights, but you negate those rights in the way you demand them.
Example: you own a house, and the Shari’ah has given me the right to do with my property whatever I choose to do. Is it legally acceptable for you to do things on your property to things that may do harm to their property?
An example is the gun lobby in the USA. The right of the individual to own guns does intrude into the rights of the others to be free of harm.
Ta’assuf: they limit the rights of individuals to do what they want based on certain restrictions.
There are varied opinions. Abu Hanifah was of the opinion that he could use his property in any way he wishes, even if he harms his neighbor. And Shafi’i said you can not force someone to spend wealth in such a way other than religious obligations, even if they harm others or themselves.
The students of Hanafi and Shafi’i disagreed with this. The Shafi’is used to look at contracts and would not examine it. The Shafi’i scholars said there are limits to what you can do with your rights. Similarly in Hanafi madhab -- both Muhammad and Abu Yusuf.
This question of ta’ssuf is especially intense in the case of marriage. The husband is the head of his household, so if he wants to move he can move the family. He can say it’s my right, even though it may not be what’s best for us. Or the wife says that she has the right to maintenance and goes over the top.
So this concept especially within the household this is something that needs to be carefully understood. A household should be a relationship of love and tranquility.
Why should we study At Taa’suf?
The reasons we are going to discuss the topic of at-taa’suf in detail is because of the following:
First: It is a concept that is rarely discussed and there is no question that for the Muslim Ummah as a whole, we do not understand the Shariah and do not have the proper appreciation of the Shariah. This topic is related to understanding the Shariah as a whole
Second:The framework of the family, this is an important topic. No one can see what is happening in the family, or find out how the spouses are being treated. We have to understand that just because the shariah has given us some rights, we should try to cause harm to our spouses. Many times spouses start using their rights out of spite to the other party in order to cause them harm.
The concept of at-taa’suf is a very beautiful concept and we should understand it.
Definition of At-Taa’suf
When you do something that the Shariah has given you the right to do so, but by doing this action, you cause harm to others.
When you abuse the rights, you are within the rights of the Shariah, but you are causing harm to others and in context of the class, it is towards your spouse. Even if the harm is unintentional.
The evidence that Taasuf is prohibited
Surah Al Baqarah verse 231
And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things.
Before Islam, there was no limit on how many times an individual could divorce his wife. If you are familiar with how divorce works, you will realize how making the statement of divorce could harm the wife psychologically. This verse restricted the number of times you could divorce your wife.
When you divorce your wife, she enters into iddah, a waiting period in order to reconcile and provide a chance or opportunity for the husband and wife to work things out.
Let us say that they are not able to make things work out and now she is a free to go and find another husband.
And then when this time is approaching, the husband takes her back, as is his right, this is known as rajaa. But the only reason he does that is in order to cause harm to his wife. And then he divorces her again and she enter the waiting period time again.
During the time of jahiliyaah, the husband would keep on doing it over and over again, in order to harass the wife. After the verse was revealed, the husband cannot take her back after the third divorce.
The verse says that let them go in kindness and if you take them back, treat them nicely and do not wrong them.
In the Maliki madhab, if the husband takes his wife back and if he does not have any intention to treat her right, then the he does not get a new iddah after he divorces her again, ie the starting point of the last iddah remains.
Another example of At-Taa’suf related to spending wealth
This is related to the question of someone’s wealth. A will is to be written and the person has the right to do whatever is desired with the wealth. However, if the wealth is going to be used in such a way to harm others or use the control of it to harm others, then this is something wrong.
So how can someone with respect to their wealth and their heirs cause harm to themselves or their heirs?
In his tafseer, al Razi describes six ways, some of which are clearly haram and sinful according to the majority of the scholars.
For example, if someone bequests more than ⅓ of his wealth, according to many scholars this bequest is not lawful according to a hadith of the Prophet صلى الله عليه وسلم.
Another way that al Razi mentions is when the individual claims or admits he owes someone money but in reality he does not owe that person money. If someone owes money, that person has a right to his wealth before the person’s heirs. Here two sins are being committed: lying and harming one’s heirs.
Another case is when one claims a debt has been paid when it hasn’t been paid back and the only reason this is being said is to harm the heirs of the other person. This is another example of a case where there is lying and harm is being done to heirs.
Another case that al Razzi mentions is that one can argue this is not a sin and the individual has the right to do this: this is where the individual buys something cheap at a very expensive price or if the person sells a very expensive piece of land or property for a cheap price. This is clearly haram.
The last one that al Razzi mentions is when someone gives a bequest within the limits but does it for the sake of keeping the money from his heirs and not for the sake of Allah swt. He has the right to give away ⅓ of his wealth as the default ruling but under these conditions this is not considered valid in the shariah.
Another example of At-Taa’suf related to the case of divorced couples
In Surah Al Baqarah verse 233, Allah swt is talking about a case of a divorced couple.
Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period]. Upon the father is the mothers' provision and their clothing according to what is acceptable. No person is charged with more than his capacity. No mother should be harmed through her child, and no father through his child. And upon the [father's] heir is [a duty] like that [of the father]. And if they both desire weaning through mutual consent from both of them and consultation, there is no blame upon either of them. And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable. And fear Allah and know that Allah is Seeing of what you do.
In the context of describing some of the relationships between the spouses after divorce, the mother may breastfeed the children for two years. No one is charged with more than his capacity.
What is meant by this portion where Allah swt said that no mother shall be harmed through her child and no father harmed through the child (translation from Sahih International)?
Again, this is a situation of divorce and we are talking about breastfeeding a child. If the father wants, he could hire someone else to breastfeed the child. Suppose he knows that there is a connection between the mother and the baby. The mother wants to have the baby with her; in this case the husband should not abuse his right to have someone breastfeed the baby as this will cause harm to the mother (since she wants to breastfeed the baby). Invoking his right would cause harm and he does not and should not invoke this right. This is causing harm to the mother through the baby (the baby is being used as a tool to cause harm).
What about the second part? How could the mother use the child as a tool to harm the father?
Let’s say that she has the means to breastfeed the baby and she is willing to but just to cause harm to the father/husband, she will refuse to breastfeed the baby. Or she may insist on receiving more compensation than the going rate. This is a case where this right is allowed but is not free of sin if done for the wrong intentions (eg to cause harm).
Another example of At-Taa’suf related to debt
In Surat al Baqarah verse 280, this is another verse that’s used as an indication of the concept of at-taa’suf.
And if someone is in hardship, then [let there be] postponement until [a time of] ease. But if you give [from your right as] charity, then it is better for you, if you only knew.
If someone is in hardship (a debt), let there be postponement until there is a time of ease. How is this related to the question of at-taa’suf? If someone owes you money and someone asks that it be paid, this is within the person’s right. This verse is instructing us to take into account whether the person is going through some difficulty. Give him more time or even better, give up what is owed by the person.
Why should you give up something that you have the right to do?
Sometimes the best thing to do is to be very flexible with one’s rights and be forgiving and be willing to give those rights up to ease any hardship that another is going through (with some restrictions/boundaries of course).
Examples of applying the principles of At-Taa’suf from the Sunnah of the Prophet
Hadith: “There is no causing of harm nor reciprocating of harm.” This is a Hasan hadith, recorded by Bay Alhaqi and Nawawi. Footnote: This is an imperative statement even though it is khabar, this was directed towards the students of Usool al Fiqh.
It’s very clear from this statement that there’s to be no causing harm. One way of causing harm is to do something that is normally permissible in an impermissible manner. Even if you are doing something halaal, you cannot cause harm to others. Abusing one’s rights, especially in the family context, is one of the ways of bringing about harm. The Prophet صلى الله عليه وسلم also said that there is no reciprocating harm. The way Prophet صلى الله عليه وسلم said this statement, it is a very general statement and it can be applied to many situations.
In a hadith recorded by Al Bukhari, the Prophet صلى الله عليه وسلم said “No one should prevent his neighbor from fixing a wooden peg into his wall.” What does this hadith mean?
In the past, adobe houses used to be connected to each other and also animals needed to be restrained somewhere. Sometimes the only way to restrain the animal is to attach a peg into the neighbor’s wall. The Prophet صلى الله عليه وسلم is saying that this is beneficial to the neighbor and it’s not harming you at all. You have the right to protect your property but this is not causing you harm. You’re not benefiting at all from it but your neighbor is and it’s not harming you. This is usually done out of spite, etc, wAllahu alam.
We find examples of the Sahabah applying these principles as well.
A: There is one narration or statement of ibn Abbas that said, there should be no causing of harm or reciprocating of harm and there is nothing stopping an individual from putting a peg into his wall. So this statement of ibn Abbas brought together both of the hadith.
Conditions/Categories for At Taa’suf
The scholars have described four things as conditions for at-taa’suf that make this kind of action prohibited.
#1 If the person had the intention to harm someone else.
Clearly, if you have the intention to bring upon harm to someone else by using your rights, this is a clear case of what they call at-taa’suf. If you do it in this fashion, you’re also committing a sin because of that intention to cause harm to someone else.
#2 If the benefit expected from this action is not approved by the Shari’a, then this is also a case of at-taa’suf.
For example, as we know, riba is haram but one can enter into different kinds of business agreements where you are basically using your rights but are going around the shari’a and are trying to get some benefits that are not approved by the shari’a. The ultimate goal is to get something that the shari’a does not approve. This is considered an abuse of one’s rights. The end result is something that is not approved by the shari’a.
#3 If the benefit received from something is out of proportion to the harm it causes someone else.
For example, one of the topics that will have to be discussed in great deal sometime in the future due to controversy surrounding it; in one of the well-known books in the Hanafi school talks about the situation of the husband invoking his right to discipline his wife in the case of nushooz. He is saying this is his right to discipline his wife but as in the Maliki schools if they don’t expect any benefit or harm to come about and if invoking the right in this case, this is a sort of abusing of one’s rights or at-taa’suf.
#4 If one uses their rights in a way that goes beyond the norm and as a result causes unexpected harm to others.
The examples given are interesting. For example, irrigating land in unusual ways that cause harm to others. the sheikh is not familiar with this subject.
A lot of these points in particular where scholars describe at-taa’suf is related to business practices and what one does with property. A classic case is if one owns a two-story house and on one side of the house one is overlooking a private area of the neighbor’s house. One decides that they want more light in the house; this benefit exposes a harm to the neighbor by exposing their private areas of the house. The benefit obtained is one’s right but this benefit of getting more light in one’s house doesn’t compare to the harm caused to the neighbor through the negative effect on privacy.
Proper and kind treatment of your wife
This question of at-taa’suf brings us to the next category of the rights of women. This is a very comprehensive category and is often given as a separate category but it is also in reality encompassed in other rights discussed. Usually scholars talk about the financial rights (mahr, nafaqah) and non-financial rights with respect to the wife.
This is based on Surah Nisa, verse 19.
O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take [back] part of what you gave them unless they commit a clear immorality. And live with them in kindness. For if you dislike them - perhaps you dislike a thing and Allah makes therein much good.
Qur’an: Consort with your wives in a goodly manner.
The third right is proper and kind treatment. This ties into the previous discussion we just had about at-taa’suf. Especially in marital relations, spouses don’t treat the other spouse well out of their demand for their own rights and not considering the harm caused to the other.
You are responsible for your actions - Ignorance or lack of intention to cause harm is no excuse
If you know one of your rights will cause harm to another, don’t do it. The vast majority of people don’t want to be harmed and don’t like to be harmed. This means we must be conscious about our actions and rights. We can’t just go around invoking our rights without considering the effects on others. The limits of ignorance is not just saying “oh I didn’t know”; if you didn’t know because you caused yourself not to care or to think about it, you’re still responsible. You should try to think about how you are affecting others even if it’s something within your right. Once it’s brought to your attention that you’re causing harm, you must remedy your actions.
Discussion of the Arabic text of treating wife with kindness
The Arabic text says, Ashari uh hunna, bil maroof. The two parties should be interacting with each other with maroof. What does maroof mean here?
Ashari hunna is imperative, it is a command, and it implies an action on your part. And then the expression bil ma’roof, which occurs frequently in the Quran, what does it mean?
Discussion of concept of Ma’roof
The word Ma’roof, lexically means, something is known, acknowledged, recognized, accepted. As a phrase bil Maroof is used forty times in the Quran.
The scholars discuss many different definitions, all of them are related to a general and clear concept. Al Qurtubi says that every good conduct that is known and the soul is satisfied by performing it.
Another common definition, its goodness is recognized both from the Shariah and the rational point of view.
At Tabari had defined ma’roof as every action that is known as a good and beneficial action by those who are believers in Allah swt.
This is a very comprehensive command from Allah swt that’s telling us explicitly that when it comes to our relationship with our spouses, it goes both ways, that these actions should be good and beautiful actions with respect to each other.
For example, ibn Kathir in his commentary on this verse, says this means have good speech with him, deal with them in kind deeds in the best manner you are capable of and in the way that you love them behave in that way to them. They have rights similar to those upon them according to al ma’roof.
Ibn Kathir continues and says that the Prophet صلى الله عليه وسلم said that the best of you are those that are best to their wives and I am the best of you. He would sport and play with his wives, spend generously on them and laugh with his wives. Every night he would gather together his wives in the house of the one he’s spending the night with and eat dinner with them. After the night prayer, he would enter her house and speak with her before sleeping. The Prophet صلى الله عليه وسلم is the best example for us.
These few words are a command from Allah swt with regards to how we should behave towards one another. This shows us again that the relationship between husband and wife has to go well and above one’s rights and responsibilities. It should be filled with kindness, overlooking mistakes, trying to help one another, etc. With respect to mahr and nafaqah, they should be done in the spirit of doing something in the best way,
From this right, many other rights are derived and explained by the scholars. We will continue next week.
If these principles are applied, the state that husbands and wives are in would be much better than many of the cases that we see today. We can see clearly what the sources of these problems are; they are neglecting the fact that the relationship they have with their spouse goes beyond their rights and responsibilities. This is really what the relationship is supposed to be about.
We were discussing the non-financial rights of the wife. The last point that we discussed applies to both financial and non financial rights, which is treating the wife in a kind manner. Al Jasas noted that part of treating the wife kindly is also treating her financial rights properly. bil Maroof permeates all matters or relationships between the husband and wife.
Today we will discuss the verses and hadith on how the wife is to be treated and the relationships between husband and wife based on Maroof
Surah Nisa verse 19
يا أيها الذين آمنوا لا يحل لكم أن ترثوا النساء كرها ولا تعضلوهن لتذهبوا ببعض ما آتيتموهن إلا أن يأتين بفاحشة مبينة وعاشروهن بالمعروف فإن كرهتموهن فعسى أن تكرهوا شيئا ويجعل الله فيه خيرا كثيرا
O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take [back] part of what you gave them unless they commit a clear immorality. And live with them in kindness. For if you dislike them - perhaps you dislike a thing and Allah makes therein much good.
This verse refers to the practice of jahiliyyah, where the sons would inherit the wives of their fathers. We see even nowadays that when the husband is not interested in maintaining the marriage, but is not ready for the financial obligations that arise out of a divorce related to mahr.
A. J. Arberry (who is not Muslim, but sometimes his translation captures nuances): consort with them with kindness.
Surah Baqarah verse 119
يا أيها الذين آمنوا لا يحل لكم أن ترثوا النساء كرها ولا تعضلوهن لتذهبوا ببعض ما آتيتموهن إلا أن يأتين بفاحشة مبينة وعاشروهن بالمعروف فإن كرهتموهن فعسى أن تكرهوا شيئا ويجعل الله فيه خيرا كثيرا
O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take [back] part of what you gave them unless they commit a clear immorality. And live with them in kindness. For if you dislike them - perhaps you dislike a thing and Allah makes therein much good.
This verse is talking about the process of a divorce and it makes a general statement about the relationships with the wives. If they are pregnant, then the iddah is until the end of the pregnancy, but if they conceal their pregnancy then they can end their relationship much earlier.
These two verses of the Quran, these are the basis by which scholars present what is supposed to be the relationship between husbands and wives.
Hadith: I am giving you advice, so accept this advice from me, I am advising you to treat women well.
Hadith: The person who is most complete in Iman, is the one who has the best character and ..., and the best of you are the ones who are the best to their wives.
Hadith: The best among you are the ones who are best to their wives, and I am best to my wives.
It was narrated from Ibn 'Abbas that:
the Prophet said: "The best of you is the one who is best to his wife, and I am the best of you to my wives." (Hasan)
حَدَّثَنَا أَبُو بِشْرٍ، بَكْرُ بْنُ خَلَفٍ وَمُحَمَّدُ بْنُ يَحْيَى قَالاَ حَدَّثَنَا أَبُو عَاصِمٍ، عَنْ جَعْفَرِ بْنِ يَحْيَى بْنِ ثَوْبَانَ، عَنْ عَمِّهِ، عُمَارَةَ بْنِ ثَوْبَانَ عَنْ عَطَاءٍ، عَنِ ابْنِ عَبَّاسٍ، عَنِ النَّبِيِّ ـ صلى الله عليه وسلم ـ قَالَ " خَيْرُكُمْ خَيْرُكُمْ لأَهْلِهِ وَأَنَا خَيْرُكُمْ لأَهْلِي " .
If the khulaq is good with their wives, then their khulaq in public would also be good. Since your relationship with your wives is under duress or under all types of circumstances, and if you have good khuluq with them, then you have good khuluq in public too.
Description of marital relationships by our scholars
If you look at the books of tafseer, you are going to find lots of repetition and sometimes it’s verbatim without reference. You do find variations among the scholars and these variations give us an idea about the bigger picture. When we speak about fiqh of marriage, they usually think about the rights of the husband and the rights of the wife, because of the framework of the fiqh matters. But marriage is much more than the rights of husbands and wives, and even the manner in which we give those rights to each other, or the manner in which we fulfill those rights.
The way marriage is in our cultures is different than the way it is described by our scholars based on the evidence of the Quran and Sunah.
Is it obligatory to treat your wife with kindness? Or is just mustahab?
From the point of view of fiqh or law, there is a tendency among some madhabs, they treat the imperatives (commands or Amr from Allah swt) as irshaad, that is, it is guiding you to something that is good, which means they consider it as a recommendation and not an obligation. This tendency is true among the Hanafis, they treat it as a recommendation. And also among some of the Hanbalis.
Scholars discuss the verb al Asharatil Hunna, and say it is between both of the parties, and not just one party.
Al-Kasaani says it is recommended or mustahab, in his book which he wrote as a mahr for his wife. He says it is sunnah to treat each other in a good fashion. They say that between the two spouses, they should be kind to each other and bear each other’s harm. Sometimes we harm each other and we should bear with patience each other’s harm. Here you can see that scholars go beyond what is legally required.
Maliki school says that it is obligatory from a religious point of view or moral point of view, but not obligatory from the legal point of view, since you cannot quantify this right and hence hold them accountable in the court of law.
Most of the Malikis and Hanbalis say that it is obligatory on both of the spouses. They should treat each other kindly and not harm each other, and one should not delay the right in fulfilling their right if they have the means to do so, one should smile at each other, you should not follow good deeds with reminders of your kindness to them
Saleh Al-Munajjid says that it is waajib, it is not just optional. Because Allah has ordered it, and the default case wrt to the imperative is obligation and there is no evidence to the contrary. He is invoking the legal principle that the imperative implies obligation. The Prophet (SAWS) also said that the best men are those who treat their wives well. Another thing that shows that treating an obligation seriously is the ayaah about the example of the Prophet; and he had a beautiful manner of dealing with them -- so he goes on to describe some of their characteristics.
So it is considered an obligation. Ma’roof is a very broad and covers shar’i evidences, rational evidences and customary evidences.
What is Ma’roof?
Shari’ah overrules the other two. It can not be good if it contradicts the Shari’ah. If things are done that contradict the Shari’ah, that’s not considered ma’roof.
In the Muslim world, many things are part of the ‘urf but they are not sanctioned by the Shari’ah.
Qurtubi says that it shows that the wife is deserving of more than one servant is sufficient for her. E.g. for examples, daughters of the khulafaa’ etc, that may have more than one servant if it is necessary. But this is part of what our scholars understand.
The best description of how husband should treat his wife is from Abu Zayd, an early scholar. He explained Asharati hunnah bil Maroof, they should have taqwa of Allah in terms of their dealings in the same way as they have taqwa of their husbands.
He said that it also implies that you do not give mean look to your wife if she does not commit any sins. And you do not show disinterest to your wife. And he says that if this relationship is there from one side, then it would be reciprocated from the other side.
You should treat them in a way you like them to treat you. And then he gave an example of a person using perfume and beautify himself, in order to please his wife, and some say that this example given by Abu Zayd was referring to ibn Abbas. We have a statement of ibn Abbas that he liked to beautify himself for his wife’s pleasures
Hadith: Treat women kindly because they are created from the rib. The rib has a curvature or a bend and if you try to straighten it, you will break it.
Scholars commenting on this hadith say, that women are different than men, and if you try to mold them in a manner that you like, then you will break your relationship and end up in divorce.
Hadith: No believing man should hate a believing woman, for if there is character in him that you do not like then you find a characteristic that you do like.
There is a tendency that we focus on one trait at the expense of other traits that are beneficial to us. So they focus on one bad tendency and destroy their relationships. So one thing happens and they say that I dont see anything good in you. So there might be some characteristics in your spouse that you do not like. You have to overlook these characteristics of your spouse.
Here we are talking about general behaviour, something that cannot be quantified by law.
Prophet emphasized that relationship between husband and wife should be intimacy, closeness, and love that is different than the intimacy and closeness that exist in other relationships.
The Prophet used to behave in a special way to his wives, he would try to bring joy to them and make them happy. We all remember the race between Prophet and Ayesha when she was young and later when she was older. We know that the Prophet did not race any of his sahabah. Why did he race with Ayesha and have this kind of relationship with her and not with anybody else.
Nowadays we have men having fun amongst themselves and not with their wives.
Umar said: When the man is at home, he should almost be like a child -- compliant and easy-going.
But outside the house, he's serious.
Hadith: You should not waste your time just for fun, except for three things, the man playing with his wife, the man training his horse, or the man shooting arrows.
All three of these activities have positive benefits. It improves his relationship with his wife etc.
If you are doing sporting and fun, you should do it with your wife. And you find it over and over again in the books of tafseer, and the same kind of critiques of the modern families, where men have fun amongst themselves and women amongst themselves, but the husband and wife do not have any shared activities amongst themselves.
ibn Uthaymeen said that if they treat each other bil maroof, it will complete their bounty upon them. He said how many times couples separate because they do not treat each other well. if they treat each other well, then the result will be khayr and barakah.
He said that you will even find a husband striking his wife for the most of flimsiest of the reason, even attacking her for the flimsiest of reasons.
In another occasion where he is speaking about housing and clothing, he says the husband has to do so with a very clear nafs, and not make his wife feel bad about it.
It is obligatory for the husband to do this without nafs, and if he fulfills it and fulfills it properly it will be a great source of reward for him.
“Much good”: Ibn Abbas means that this woman is going to be the source of a child for you and in sha Allah you will benefit from that child. This happens in reality. In many times the wife is not treating her right, but she is a source of good for him.
You should not allow yourself to get to a position when your hate is so strong that you don’t feel like you have any common ground.
You will never feel remorse. There is a narration from Ibn Umar: sometimes a person makes istikhara and he is upset with his Lord what he is directed him to. If they wait then they see that in the long run there is something good for them.
Who among men can’t give salam when he enters it? You have to set the right tone. It’s hard to be nice and friendly to someone when the vibe is wrong.
Muhammad Mukhtar Shinqeeti emphasizes that maroof, some of them are in the heart of the human; some are in his words, and some are in his actions. In the heart: to make sure you have a good intention -- Allah calls it a “meethaaqan ghaleethan.” If your intention is to please Allah with respect to this marriage, then it should be good. A person’s speech should be carefully weighed. Even the way you call your spouse over. Even the way you call out to women we have to be careful. E.g. don't say "Woman, come over here."
Even if you ask for something -- you have to respect the other person, then that will affect how you request it. And also how we speak to one another when we disagree.
Prophet (SAWS) if you have the capability to do something and you postpone those rights, then this is thulm. There are three types of thulm. One is a type of thulm between you and Allah and Allah may forgive it. Another is between you and your nafs. And the third is between you and another human being. That type of thulm -- you had better reconcile that before you see Allah (SWT) on the Day of Judgement.
Hadith: Prophet advised him to treat his women well. Prophet said that the woman has been created from a rib, the uppermost rib, which is the most crooked. If you try to straighten it, it will break ....
What is the ramification of this hadith? If you try to change their ways, you will break them. And in another hadith, it says that what is meant by break them is that you will end up divorcing them.
What Sh was able to find in how some of the scholars discussed this hadith: the upper end, the woman’s head & tongue -- she may say things to her husband that are not that pleasing to the husband -- so this is something he has to live with, if he tries to change it he will not be able to change it.
Some scholars said the upper portion refers to the head of the woman. As Shaikh was reading these different discussions, one point is obvious is that men and women look at the situations differently, akin to Men are Mars and Women are from Venus.
All of the scholars who commented that this verse does not have anything to do with what is obligatory. So you have the right to change your spouse’s behaviour if she does not pray. And yes this might break her, but it is for something obligatory.
So you have to be careful in matters that are not obligatory. The hadith is talking about how husband should try to treat his wife in a good manner.
Right to good treatment - Aashiroohunna bil Maroof
This right of the wife is very difficult to quantify, however there are some clear indicators that show whether you are treating your wife properly.
When we say that it is the right of the wife to be treated well, what is the significance of this? Can she go to a judge and say “I am not being treated in a proper fashion”? Yes.
Suppose she goes to the judge and complains that my husband is not treating me with ihsaan or maroof. What can the judge do in this case, can he ask them to be separated? Are these grounds for divorce? Let us say that the husband uses bad language towards his wife.
Opinion #1: The judge does not have the right to separate husband and wife for minor infractions such as cursing at her or striking her. Marriage can end in many ways, one way is the judge separating them. The only thing the judge can do is to order the husband to stop his behaviour. And if he does not stop his ways, then the judge can order discretionary punishment to the husband. The punishment is such that it would stop his behaviour. Sometimes bringing a third party, might make the husband more violent towards his wife. This is the opinion of Hanafis, Shafies, Hanbalis and Thahiris.
In Ibn Al Abideen’s book, the judge can order that he stop his behaviour. And if he can verify his behaviour then he can take actions. In Minhaj, if the husband’s khulaq is bad without any due cause, he should be ordered to stop and if he refuses, then he should be punished.
Opinion #2 held by Malikis: If the husband harms his wife, by striking her without any reasons, then if the woman wishes to stay with her husband, she can take the case to the judge but the judge can not separate them. But if the woman wants to get out of the marriage, then he can order one divorce to be pronounced.
Footnote: Khula is the case when the woman is granted all of her rights but she is not happy with the marriage (and also wants to separate?). The judge would try to reconcile between the husband and wife through some negotiation process, but if they are unable to do so, then the khul’a will done.
In the Maliki opinion if the husband just says “you are daughter of a dog” (a traditional Arabic insult), this is enough grounds for her to complain to the judge. If the woman is struck even once, she has the right to either have the husband reprimanded or have divorce pronounced once.
Malikis are cautious about restricting the rights of the judge to avoid activist judges. However the writings of the madhab are nowhere near what is actually happening in certain cultures and communities.
Sometimes we find a big gap between Islam and what some people believe to be Islam. Example: Abdullah Hakim Quick visited a place where women thought that if you were not beaten by their husbands, they would not enter Jannah.
The major causes of divorce in Muslim parts of the world (found via a study done in several states in the Middle East) are typically: men not treating their wives correctly, men being unfaithful to the wives, husbands humiliating wives in public, husbands beating wives, not treating them with respect etc.
It is a concept we have to take seriously and follow to the best of our abilities.
Other specific rights of the wife
Some scholars mention just three, Nafaqa financial rights, kind treatment and “other rights” (a misc. category) (?) Other scholars break it down into many more specific rights.
Classroom discussion - what should be specifically detailed as the rights of the wife.
1. Right to knowledge of the deen.
2. Right to be helped with certain types of ‘ibaadah.
3. Right to be consulted in family matters.
4. Right to take care of the husband.
5. Right to be respected.
6. Right to maintain her relations with her family.
7. Right to go to the mosque.
8. Right to a dignified life.
9. Right to be in the company of other good sisters.
10. Right to follow her own (fiqh) opinion(s) in matters of ikhtilaaf.
11. Right to his companionship/time.
12. Right to have children.
13. Right to intimate relations.
14. Right to domestic help.
15. Right to work.
16. Right to “private time”.
17. Right to be consulted before second/third/fourth wife.
18. Right to entertainment.
19. Right to secular education.
20. Right to random acts of kindness.
21. Right to go out sometimes.
22. Right to means of communication
23. Right to tell husband what to wear.
24. Right to self defence.
It looks like the students in the classroom came up with a lot of other specific rights.
Rights described by scholars
1. Right to privacy (of what happens between her and her husband).
2. Right to have her honor defended by her husband (غيرة -- jealousy/protective)
3. Right to be treated justly in a polygynous household.
When we say that a wife has a right, what do we mean by that?
1. If she asks for it, then the husband has to give it to her and if he does not comply, then he is sinful.
2. There has to be some evidence for it in the Qur’an & Sunnah. If there is ‘urf that does not contradict explicit text (or implicit text or goals of the shari’a), then it is also a right.
Not all of the things in the list are rights.
- E.g.: Right to consult about second/third/fourth wife: this is not specific, so it falls under aashiroohunna.
- Other rights are general: example silaturrahim -- is a right to fulfill their obligation.
- But there are a lot of tricky fiqh aspects.
- Others are similar or subtypes of aashiroohunna e.g. dignified life == aashiroohunna.
- Right to have children: still have to discuss.
- Right to work?
One of the points from Sh:
Older fatawa are from husbands complaining about bad language from their wives; newer fatawa are wives complaining about bad language from their husband.
A few that were not mentioned intentionally last class:
1. The right to al-khula’.
Al-Khula’ as we alluded to before is a situation where the wife’s rights are being met from the shari’a point of view but she is still not satisfied in the relationship. She has the right to get out of the relationship through something called al-khula’. We will discuss this more in a future class when we discuss how a marriage can come to an end.
2. The right to go to a qaadi if her rights are not being fulfilled. She can demand that these issues (or situation) be fixed or she can has the marriage dissolved. This can be done by the qaadi either by order, punishment or ordering talaaq (some kind of resolution).
3. The right to inheritance. This is a common right of both spouses.
4. One more important right but will be left for its appropriate time..... stay tuned...
Some of the rights mentioned last class have supporting evidence via text. We will discuss these.
There are also rights that the wife has that also have counterparts from the perspective of the husband.
Some rights are also difficult to categorize as rights from the Shari’a perspective. Some of them may be rights under an ‘urf perspective. For example, the right to “my time” or personal time.
This concept of personal time for a wife, especially with kids, in the West is a fairly recent phenomenon. It’s something that you can say it’s accepted in this society and in this place. In other societies, this may be something that’s not considered a right of the spouse due to ‘urf. This may not be a definitive right from the Shari’a perspective.
Another one may be the right to communication. This is probably more related to ‘urf.
Another one may be the right to be taken out or let outside. This is also more of an ‘urf aspect.
Right to Husband’s attention
The right to the husband’s attention and time. is there any evidence for this?
Yes, we know that the Prophet صلى الله عليه وسلم did eat with his wives and spent time with them. So we can say that this is definitely a part of the sunnah. However, is this sufficient to say that this is a shari’a right?
Surah Nisa, verse 129. This ayaah actually talks about being just in a polygynous relationship. Even though it’s talking about this specific situation, it does touch upon this point. “Leaving the other one hanging” - this is a sign that the wife has the right to some of the husband’s time at least. This has also been mentioned by many of the ulimah as falling under the idea of being good with your wife.
Urf cannot override rights established by Shariah
If something is established as a right from the text, it cannot be overridden by ‘urf. So if it’s an aspect of ‘urf where the husband doesn’t spend time with the wife, this doesn’t override this right of the wife as there is textual evidence supporting this right.
Right of Domestic Help
There was another right mentioned as well: the right to domestic help.
When we discuss the rights of the husband that is recognized by some scholars and not by others is whether he has the right of the wife to serve him. Some scholars say that she has the right to have a servant as it’s part of living with the wife in goodness. Others say that this is more related to the ‘urf at that time.
The sheikh feels that this is more related to ‘urf as described by many scholars but there is no question that it is the sunnah for the husband to take part in and help with the affairs and chores of the household. A’isha (ra) has described the Prophet صلى الله عليه وسلم as helping at home and keeping himself busy by serving his family. This narration in particular is from Sahih Bukhari.
Another hadith from Musnad Ahmed: A’isha (ra) described the Prophet صلى الله عليه وسلم as being any other man in that he milked the goat, mended his clothes and helped around the house.
حَدَّثَنَا عَبْدُ اللهِ بْنُ صَالِحٍ، قَالَ: حَدَّثَنَا مُعَاوِيَةُ بْنُ صَالِحٍ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ عَمْرَةَ، قَالَتْ: قِيلَ لِعَائِشَةَ: مَاذَا كَانَ يَعْمَلُ رَسُولُ اللهِ صلى الله عليه وسلم فِي بَيْتِهِ؟ قَالَتْ: كَانَ بَشَرًا مِنَ الْبَشَرِ، يَفْلِي ثَوْبَهُ، وَيَحْلُبُ شَاتَهُ، وَيَخْدُمُ نَفْسَهُ.
Amrah Radiyallahu 'Anha reports that someone asked 'Aayeshah Radiyallahu 'Anha. "What was the usual practice of Rasulullah Sallallahu 'Alayhi Wasallam at home?" She replied:
"He was a human from among other humans. He himself removed the lice from his clothing, milked his goats, and did all his work himself".
It’s at least sunnah (at a minimum) that the husband at least help around the house. Helping others is also part of the khulukh of a Muslim in any case. Obviously if he is able to do so and if the wife is willing to allow him to do so.
The Prophet صلى الله عليه وسلم said that Allah swt will be helping an individual as long as the individual is helping his brotherhood. This narration is from Sahih Muslim.
We will go through some of the rights mentioned earlier that have specific text or fiqh related to them.
Right of Al Ghayra (Protective Jealousy)
One of the rights of the wife is known as al ghrayra. This is sometimes translated as protective jealousy. It means that it’s the duty of the husband to look after the wife’s honor and reputation. He should defend her if she is spoken bad about or backbitten. He should also prevent other men from looking at her or causing harm to her.
The Prophet صلى الله عليه وسلم in different ahadith:
أَخْبَرَنَا عَمْرُو بْنُ عَلِيٍّ، قَالَ حَدَّثَنَا يَزِيدُ بْنُ زُرَيْعٍ، قَالَ حَدَّثَنَا عُمَرُ بْنُ مُحَمَّدٍ، عَنْ عَبْدِ اللَّهِ بْنِ يَسَارٍ، عَنْ سَالِمِ بْنِ عَبْدِ اللَّهِ، عَنْ أَبِيهِ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " ثَلاَثَةٌ لاَ يَنْظُرُ اللَّهُ عَزَّ وَجَلَّ إِلَيْهِمْ يَوْمَ الْقِيَامَةِ الْعَاقُّ لِوَالِدَيْهِ وَالْمَرْأَةُ الْمُتَرَجِّلَةُ وَالدَّيُّوثُ وَثَلاَثَةٌ لاَ يَدْخُلُونَ الْجَنَّةَ الْعَاقُّ لِوَالِدَيْهِ وَالْمُدْمِنُ عَلَى الْخَمْرِ وَالْمَنَّانُ بِمَا أَعْطَى " .
"The Messenger of Allah said: "There are three at whom Allah will not look on the Day of Resurrection: The one who disobeys his parents, the woman who imitates men in her outward appearance, and the cuckold. And there are three who will not enter Paradise: The one who disobeys his parents, the drunkard, and the one who reminds people of what he has given them."' (Hasan)
Three people will not enter jannah: those men who are dhuyoot; he does not feel this honor or jealousy towards his wife, he doesn’t stand up for her. It’s the individual who does not have this feeling of ghrayrah. Jealousy has a bad connotation to it so we will say that this is more about protecting the honor of the wife.
The Prophet صلى الله عليه وسلم said that verily Allah has this kind of jealousy and honor similar to the husband; when a believer is sinning, there is a dislike from Allah swt towards this.
We must be carعful about this concept of al ghrayrah, particularly with respect to ‘urf. Even with respect to honorable things, there is a such thing as going beyond the limits. Islam has brought and shown us what are true limits.
If you look at the Arabs in jahiliyyah, they had many good qualities; however they did not know the proper limits since they did not have the hidayah from Allah swt.
One of the famous statements of jahiliyyah that was said by the Prophet صلى الله عليه وسلم: You should help your brother, whether he is the one doing wrong or if he is the one being wronged. It doesn’t matter if he’s right or wrong.
When the Prophet صلى الله عليه وسلم was asked about how do we help him if he is doing wrong? The Prophet صلى الله عليه وسلم replied by taking his hand and preventing him from causing this wrong.
حَدَّثَنَا مُسَدَّدٌ، حَدَّثَنَا مُعْتَمِرٌ، عَنْ حُمَيْدٍ، عَنْ أَنَسٍ ـ رضى الله عنه ـ قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " انْصُرْ أَخَاكَ ظَالِمًا أَوْ مَظْلُومًا ". قَالُوا يَا رَسُولَ اللَّهِ هَذَا نَنْصُرُهُ مَظْلُومًا، فَكَيْفَ نَنْصُرُهُ ظَالِمًا قَالَ " تَأْخُذُ فَوْقَ يَدَيْهِ ".
Allah's Messenger () said, "Help your brother, whether he is an oppressor or he is an oppressed one. People asked, "O Allah's Messenger ()! It is all right to help him if he is oppressed, but how should we help him if he is an oppressor?" The Prophet () said, "By preventing him from oppressing others."
We see it nowadays also where some Muslims say that we have to help our brothers even if they are wrong. And this feeling of supporting your brothers also existed during the time of Jahiliyyah. But our Prophet showed us how to correct this attitude, we have to help our brothers who are committing oppression by taking them away from oppression.
Similarly to al ghrayrah, this existed in the times of jahiliyyah and similarly is something that can be taken to an extreme.
The Prophet صلى الله عليه وسلم said that from al ghrayrah, this protective jealousy, there is some portion that is beloved to Allah swt and there is some portion that Allah swt hates.
Then the Prophet صلى الله عليه وسلم said as for the ghayrah that is beloved to Allah swt, it is that ghrayrah that is for a reason. That which is disliked is the ghrayrah that has no reason.
What happens in ‘urf nowadays in many parts of the Arab world is that the husband takes this jealousy to an extreme; the husband will get upset since he has an overly suspicious mindset. This is something that people have to be careful about. Coming from many different Muslim cultures, it’s easy to go to an extreme here. This is one of the major complaints that the ulimah receive from women. This is something we must be careful about and we must maintain a proper balance. We must observe the boundaries outlined in the sharia’.
From one of our other classes, to show how extreme people can get is a someting called honor killings. This is going to an extreme in this feeling of protecting one’s honor or the family’s honor. This is something that is not from Islam whatsoever. It’s not from the way of the Prophet (SAWS) nor is it from the Sahabah, etc. Even amongst the Arabs, this feeling of ghrayrah went beyond the boundaries established in Islam.
Even one of the Sahabi had a difficult time dealing with this. He asked the Prophet (saws) if it was allowed to kill a man that is seen having sexual intercourse with his wife. The Prophet صلى الله عليه وسلم said that he is not allowed to do so.
Another sahabi (Sa’d ibn ‘Ubaadah), when he was told what the Prophet صلى الله عليه وسلم said, said that he would kill the person even if the Prophet صلى الله عليه وسلم said not to. The Prophet صلى الله عليه وسلم said are you surprised or admire the ghrayrah of this sahabi? I have more ghayrah that this Sahabi, and Allah swt has more ghrayrah than I do.
حَدَّثَنَا مُوسَى، حَدَّثَنَا أَبُو عَوَانَةَ، حَدَّثَنَا عَبْدُ الْمَلِكِ، عَنْ وَرَّادٍ، كَاتِبِ الْمُغِيرَةِ عَنِ الْمُغِيرَةِ، قَالَ قَالَ سَعْدُ بْنُ عُبَادَةَ لَوْ رَأَيْتُ رَجُلاً مَعَ امْرَأَتِي لَضَرَبْتُهُ بِالسَّيْفِ غَيْرَ مُصْفَحٍ. فَبَلَغَ ذَلِكَ النَّبِيَّ صلى الله عليه وسلم فَقَالَ " أَتَعْجَبُونَ مِنْ غَيْرَةِ سَعْدٍ، لأَنَا أَغْيَرُ مِنْهُ، وَاللَّهُ أَغْيَرُ مِنِّي ".
Sa`d bin Ubada said, "If I found a man with my wife, I would kill him with the sharp side of my sword." When the Prophet () heard that he said, "Do you wonder at Sa`d's sense of ghira (self-respect)? Verily, I have more sense of ghira than Sa`d, and Allah has more sense of ghira than I."
Allah swt has sent down laws to protect honor; the sharia’ is filled with ways to protect honor. You cannot have better ghayrah than what the Prophet صلى الله عليه وسلم had or what Allah swt has.
This statement from the prophet صلى الله عليه وسلم is saying that anyone who goes beyond the limits of the shari’a does not have more of something than the Prophet صلى الله عليه وسلم or Allah swt.
This is a very sad but excellent example of going beyond the limits of something that is good (in this case, honor).
An example from one Muslim country; from the penal code: He who discovers his wife or female relatives committing adultery and kills or wounds or injured one of them is exempted from any penalty.
We know that this is not the shari’a position. Allah swt revealed the concept of li’an; if the husband sees something but does not have witnesses, he cannot come and make an accusation against her without following a specific guideline and he definitely cannot kill her due to that accusation.
Sometimes even if a young lady has been found to be talking to a young boy, even this can result in the woman being killed in certain parts of the world, even the West.
Transgressing the limits of Shariah is sinful
To go beyond the limits of the shari’a is sinful and can cause great harm. One of the greatest sins that can be committed in the sharia’ is killing unjustly.
What is more ironic is that In the country mentioned, there was a movement to try to repeal this law. It was the muslim groups that opposed the repealing of this law. Some of the arguments given is that this move to repeal it is a foreign conspiracy and they argue that the West or the foreigners don’t understand honor or Islamic honor. If you go into the sharia’, this is not the case.
Origins of honor killings
Where did this practice come from? This practice was introduced by the Napoleonic code in Egypt and other parts of the Muslim world. Maybe the law is a foreign conspiracy to Islam.
You have to be very careful, especially if one is already a “jealous type,” especially since the man usually has more authority, strength and power. He may even end up killing the woman if he does not observe these boundaries. Do not accuse your wife without good reason and do not have suspicion towards her for things that are not deserving of this feeling.
Most of the madhab do not apply li’an to the woman; it’s usually applied to the man.
One of the other rights mentioned by the students in the previous classes was the right to the knowledge of the deen. We said that this is one of the rights of the wife.
Is this a true right of the wife? We were trying to identify the rights of the wife as a wife. The husband should have a vested interest to make sure his woman has knowledge of the deen. Allah swt tells us in the Qur’an...
يا أيها الذين آمنوا قوا أنفسكم وأهليكم نارا وقودها الناس والحجارة عليها ملائكة غلاظ شداد لا يعصون الله ما أمرهم ويفعلون ما يؤمرون
O you who have believed, protect yourselves and your families from a Fire whose fuel is people and stones, over which are [appointed] angels, harsh and severe; they do not disobey Allah in what He commands them but do what they are commanded.
Obligation to protect our families and ourselves from hellfire
It’s an obligation to protect our families and ourselves from the Hellfire. A person is not going to be performing ibadaat properly without knowledge of the deen.
The Prophet صلى الله عليه وسلم also said that we are all like shepherds and will be asked about our flocks.
وعن ابن عمر رضي الله عنهما عن النبي صلى الله عليه وسلم قال: " كلكم راعٍ، وكلكم مسئول عن رعيته، والأمير راعٍ، والرجل راعٍ على أهل بيته؛ والمرأة راعية على بيت زوجها وولده، فكلكم راعٍ، وكلكم مسؤول عن رعيته" ((متفق عليه)).
The Prophet () said, "All of you are guardians and are responsible for your subjects. The ruler is a guardian of his subjects, the man is a guardian of his family, the woman is a guardian and is responsible for her husband's house and his offspring; and so all of you are guardians and are responsible for your subjects."
The husband needs to make sure that the wife has the proper aqeedah and how to perform the ibadaat. The Prophet صلى الله عليه وسلم also said that the seeking of knowledge is obligatory upon every Muslim.
Right to acquire knowledge
Based on this, we can say that the woman has the right to the knowledge of the deen in the sense that the husband can in no way prevent her from getting that knowledge.
What does this mean? For example, the scholars in the past have discussed this; it’s obligatory for the husband to teach his wife the deen or at least make ways to learn available for her (attending halaqaat, etc).
There’s obviously a lot of good reasons why women should have knowledge. We’ll get to this in a bit.
What we mean by the previous point is that the husband cannot prohibit the wife from going to the masjid to attend halaqaat or dhuroos. If she has to go to the masjid to get this knowledge, he cannot prohibit her from doing so.
How do you modernize this? There are very few people who don’t have internet access at home.
The woman wants to get the deen in the way that she wants as opposed to the way that she can. If there is a conference in another city, the sister may want to go. However, the knowledge covered in the conference may not be unique to that conference (ie can be learned in another manner). She cannot insist that she has the right to do this since the knowledge is apparently there; but nowadays, there are many ways to attain knowledge. She cannot invoke this right if there are other means to get this knowledge.
Every husband should want his wife to know the deen. The woman herself should want this knowledge to get closer to Allah swt and to become a better person. Their khulukh will improve, etc.
Unless the husband’s intentions are bad, he should want her to improve herself as a Muslim. The husband should have a vested interest to make sure that his wife is knowledgeable about the deen. He should not be opposed to this.
Some husbands are afraid of the following: #1 The wife becomes more knowledgeable than the husband.
This is a problem for the youth now. The sisters are much more active in the Islamic perspective than the brothers. The brothers though are still feeling they are in charge of the household while they are not seeking the knowledge to make sure that they are able to carry out that responsibility.
Husbands can benefit from knowledgeable wives.
The other two things were not discussed.
As a conclusion, acquiring knowledge is always good and beneficial.
Right to follow her own madhab in matters of ikhtilaaf
Another right: the right for the wife to follow her own madhab in matters of ikhtilaaf. What do you think about this?
Some examples of different responses to this: If the husband and wife are knowledgeable, they should go look at the evidences and follow what is strongest. They should discuss the matter and determine what the best option is.
Al-Albani quoted the ayah in the Qur’an describing the position of authority men have over women; thus in this situation it’s clear that one of the two opinions of the spouses will be followed. There is no doubt and no question that the woman must follow the husband and no weight is going to be given to her opinion. She must obey him.
Before that, they should try to come to an understanding and discuss the issue; otherwise if they don’t come to agreement then she must follow him.
Another response that is more detailed and pragmatic but also important is the nature of the issue.
1. The issue in which they differ may be related to ibaadah.
In matters of ibaadah, if you say something is wajib or mustahaab, usually it doesn’t affect the husband or the right when they follow their own opinions. If he starts interfering in these things where she has an opinion that’s based on knowledge, he’s really overstepping his bounds and telling her to do exactly as he does.
Ibn Uthaymeen uses the example of praying zakaat on jewelry. He said that some husbands prevent their wives from paying zakaat on jewelry. He said that this is haram for them; it is not permissible for a husband or mahram to prevent a woman from paying zakaat on jewelry if she believes it’s obligatory for her to pay zakaat on her jewelry. This is not affecting the rights of her husband.
Obedience to Allah swt takes precedence over obedience to her husband and he will not be able to protect her from punishment on the Day of Judgement. He should say to her that this is an issue where there is a difference of opinion and that he cannot force his opinion. She should try to pay the zakaat in a way that he does not know about it.
Similarly, the wife should not put her prayers at risk due to her husband’s difference in opinion. If it’s something that is going to affect the relationship and it’s related to a voluntary act of worship, then it’s not allowed for her to do it and he may prevent her from doing so.
Voluntary prayers, voluntary fasts, voluntary hajj are examples of such things. If it is something that they can compromise on, they should do their best to do so. They should do what they both feel is correct.
Another important question that we will talk about later is regarding the obedience to the husband: what are the limits, criteria, etc. Scholars begin often by saying that the wife must obey the husband unless it involves disobedience to Allah swt, causes harm to her or causes harm or prevent some of her rights from being fulfilled.
For example one of the issues that come up is the wearing of niqaab. There is a big dispute of niqaab. many times it’s the case where the woman believes it’s wajib and the husband doesn’t or vice-versa.
So we can say there is a lot of truth behind this issue but if it’s affecting her husband’s rights, she should give up her position and obey her husband.
We will continue our discussion of rights of wives based on earlier classroom discussion and determine which are true rights, which are based on urf, and which are not true rights.
Li’aan - Right of a wife to defend her honor when accused of unlawful sexual relationship
Last time we discussed li’aan. Why do Hanafis and Shafiees consider it to be rights of a wife? Sh asked us to add this as one of the rights of a wife.
There are couple of times when one resorts to li’aan. One case is when the husband tries to deny the paternity of the child, then liaan becomes obligatory to him. Here he is claiming that his wife committed zina. Li’aan is also related to the dignity of the woman, when husband accuses his wife of zina based on rumor or innuendo. In both of the cases, the wife has a right to sue her husband and take him to court and protect her honor. This is li’aan - a right of the wife.
Accusing a woman of zina is bad for her reputation. So the wife can take her husband to court and dissolve the marriage.
Therefore to accuse someone of this is a big crime, and the repercussions are strong.
Discussion whether wife has the right to attend Salaat in the masjid
There is a hadith that says that do not stop your women from attending the prayers in the masjid.
Musnad Ahmad Hadith: Umm Humayd (wife of Abu Humayd al Sa’idi) came to the Prophet and said I loved to pray with me. Prophet said that I know that you love to pray with me. And then the Prophet said to her, the salaat in your baitik (room) is better than salat in hujara (your apartment), and salat in your hujara is better than salat in your house, and salat in the masjid of your people is better than your salaat here.
In response to this hadith is that she reserved a space for her prayers in her room and she prayed there until she died.
Is there any contradiction in the two hadith? No the previous hadith says that if she wants to pray in the masjid she should not be stopped, but it is preferable for her to pray in her room.
Hadith from Imam Ahmad: Do not prevent your women from going to the masjid at night.
How do we interpret this -- especially about day time? Depends on whether we do mafhoom al muwafaqah (argumentum a fortiori) or mafhoom al mukhaalafah (argumentum a contrarium).
Mafhoom al mukhaalafah interpretation: During the daytime women would be seen, so they should only go out at night.
Mafhoom al muwaafaqah interpretation: During the night they would be attacked and unsafe, so they should be preferred.
Sahih Bukhari one of the wives of Umar bin Khattab would go out for the prayers, and it was known that Umar bin Khattab had much gheerah -- then she said “do not prevent the female slaves from attending the mosque”.
S Mu ‘Abdullah b Umar said “Do not prevent your wives from going to the mosque if they ask you to do so.”
Bilal ibn Umar said: “I will prevent them from doing so.” Then Ibn Uthman cursed him out repeatedly because of this.
From Abu Hurairah: “Do not prevent the female slaves of Allah from the mosques of Allah, and they must go out unperfumed”
From Sunan Abu Dawud, Ibn Uthman: “Do not prevent the women from the mosque and their houses are better for them).
Hadith: The Prophet (صلى الله عليه وسلم): “Sometimes I stand in the Salaah and I intend to make it longer, so I shorten my salaat out of fear of troubling the baby’s mother.”
In Sahih Bukhari: Aisha saying: “If the Prophet (صلى الله عليه وسلم) knew what women were doing, he would have forbidden from going to the mosque, just like the women of bani Isra’eel were prevented from going to the Mosque.
One of the Sahabiyyaat called Umm Hisham said “I memorized Surah Qaaf from hearing the Prophet (صلى الله عليه وسلم) reciting it in khutbah on Fridays.”
We can conclude that women did attend prayers in the masjid during the time of the Prophet, he did not prevent them, and he said that husbands should not prevent their wives from attending the prayers in the masjid. However it is better for women to pray at home. So women could sometimes pray at home or sometimes in the masjid. Even though something is better, you still have a choice.
Edit: Who is UbK? Umar bin Khattab. Sh was dictating fast :-) We should have a list of acronyms ready and handy, this is excellent. OK I will put one together and link to it, in sha Allah.
When we look at the Muslim world, there are things that are sometimes done as part of the madhab even though they have nothing to do with the Madhab.
Hanafi view of women attending the mosque
In general, the Hanafi scholars have all agreed upon this, according to Imam Abu Hanifa, if the woman is young (shabbah which means from age of puberty to 30 years), it is not permitted for her to attend the congregational prayers, neither the jumuah, nor the two Eids.
Arabs did divide women into many categories. Al Ajooz are women over 30 years old. According to Abu Hanifa they may attend Fajr, Maghrib and Isha, but not Dhuhr and Asr or Jumu’ah.
Evidence for their opinion is based on Qurah Surah 33 verse 33 http://quran.com/33/33
وقرن في بيوتكن ولا تبرجن تبرج الجاهلية الأولى وأقمن الصلاة وآتين الزكاة وأطعن الله ورسوله إنما يريد الله ليذهب عنكم الرجس أهل البيت ويطهركم تطهيرا
And abide in your houses and do not display yourselves as [was] the display of the former times of ignorance. And establish prayer and give zakah and obey Allah and His Messenger. Allah intends only to remove from you the impurity [of sin], O people of the [Prophet's] household, and to purify you with [extensive] purification.
And their going out is a fitnah. And any fitnah that leads to haraam is haraam. So they have general prohibition of them leaving the house.
The later Hanafis say that they should not go to any prayers because of how evil people have become. And you find that in many masajids in India or Pakistan, you will not find any room reserved for women to pray.
Al Sarakhsi says that in our time it is disliked. According to two students of Abu Hanifa, Al Ijaz (a category of women) can attend all of the prayers.
Even about Eid says: “She should go to salaat al eid since the purpose of Salaat.” But Abu Yusuf says that she should not pray, but to increase the number -- even those with menses.
Heated classroom discussion about this topic and badly designed flow of traffic in masajids in the US. Edit: Amazingly all of the large centers have this problem.
If a man goes to the mosque with intention to look at women, then he is committing haram. And if it is known to commit nuisance then it is permissible to remove him from the premises.
Maliki view about women going to the masjid
Older women can go to the mosque. Younger women should only go now and then. If a young wife asks permission to go to the mosque, the husband should not allow her to go to the mosque. ... She should go to mosque only irregularly.
[Edit note: Added link to list of abbreviations at top of document: https://docs.google.com/document/d/1hVx5UIljfIwUuwbEJeBSTpwL1x9G_UiPu3UrrVZvh_Q/edit?usp=sharing]
Ibn Rushd says women can be divided into one of four categories. Ajooz (no interest in her from men) they become men in their rights, the mutajaala -- women in their 40s or 50s, some men may still desire her she can go to the mosque. The young woman can go to the mosque every now and then. And then about the beautiful young women, they recommend they not go to the masjid at all. How to distinguish beautiful vs non-beautiful?
Shafiee view about women going to the masjid
Those women who are beautiful and attractive are prohibited from attending Jumuah as protection for them. In some societies, until this day, women were kidnapped for their beauty. And those who are not beautiful are not to be prevented based on the earlier hadith that we discussed that should not prevent slave women from attending prayers in the masjid.
There are three ta’weels or interpretations about this opinion: It is a recommendation concerning those women who are not beautiful, it is a recommendation concerning the jum’ah prayers and eid prayers, and the third is that it is about the masjid haram.
Nawawi in his very important book said, that it is recommended for the husband to give his wife permission to grant permission if she is an old woman or it’s not going to be desired or we do not expect harm for her. If he prevents her from doing so, it is not haram for him to prevent him for doing so, according the bayhaqi because of the most of the scholars say that the hadith is a nahy tanzeehi because it is the right of the husband to have her stay in his house is considered an obligation and her going to the house is considered a fadeelah or virtuous act.
It is a haraam to go from something that is haraam to something that is less than haraam. Note for students of Usool al Fiqh about making taweel.
Hanbali view about women going to the masjid
According to ibn Qudamah, it is permissible for women to attend congregational prayers with the men because women used to pray with the Prophet saas and then he quotes the various hadith that we have discussed earlier. Women used to leave earlier after finishing their prayers while it was dark.
In another book of Hanbali madhab, it is disliked that a husband denies permission for his wife to attend prayers in the masjid, if she asks permission to do so.
He said that the statement of the scholars that the hadith is a prohibition from prevention. He says that this is the correct opinion. And then he quotes the narration of Bilal ibn Umar and the statement of Umar when he heard his son’s statement.
Thaahiri view about women going to the masjid
The thaahiri view is that it is prohibited for the man to prevent his wife from going to the masjid.
Ibn Uthaimeen is saying that this is the right of the woman.
There are a lot of ramifications about women attending mosque since it is at the core of the question whether it is a right of the wife to go to the mosque.
However we found that there there are many different opinions from the scholars about women attending mosques. They restrict it for younger women, women who are beautiful. And they allow it for women who are menopausal.
Ibn Uthaymeen while commenting on this hadith, he says that the term is mar’ah which is a general term and it includes all of the women, young and old, etc.
So from the different text of the Prophet there is no issue with women attending the mosque and it is indeed her right to attend the mosque and the husband should not prevent the wife from attending the mosque. Most scholars say that there are some conditions for women attending the mosque, and there are conditions for men attending the mosque.
Men have an obligation to attend congregational prayers while it is sunnah mawqedah for the women.
Conditions for women attending the mosque
1) She should not be a fitnah for men. She should not mix with the men.
2) She should not wear perfume.
3) Women should have their own entrance to the mosque.
4) The lines of the women are to be behind the lines of the men.
5) The women would typically leave the mosque before the men left.
(This was in a time when there were combined entrances).
The issue of women attending mosque, the text is very clear. The differences of opinion between scholars can be categorized as strong or weak. A strong difference of opinion is wherein both sides have strong evidences and you have to respect either point of view. A weak difference of opinion is based on one side having very weak evidence.
The Hanafi madhab is very strict about it and it is not based on urf. So it will be very difficult to bring about change.
Taqleed can be tantamount to shirk. If you insist on following a madhab to the exclusion of the Q & S then that’s elevating the status the madhab to the status of the Prophet (SAWS).
In the United States, we can say that many Hanafi women do not apply this ruling. Some traditionalists do not allow the women to go to the mosque.
For your own wives, you should take into account if the mosque has space for women to pray and it adheres to the above five conditions, then you can indeed take your wife to the mosque.
Some students were not happy with the Hanafi opinion and the conclusion they came up with it. Shaikh cautions us to not fall into the trap of going against the text of the Quran and Sunnah. Be very cautions about it.
Shafie scholars tried to understand the purpose and the intention of the texts.
Didn’t the Prophet say that there is no greater fitnah for the men then the women. Didnt the hadith of Ayesha caution women wearing perfume and going to the mosque. And then the biggest fitnah is that of zeena. So we have to be very aware of these texts
We are critiquing the Hanafi scholars for their opinions and what about us, we are going to the other extreme. What would happen 200 years from now, when the scholars of that time would critique us for our opinions that we are handing out today.
Example: 90% of the scholars in the USA say there is no issue with a woman traveling without a mahram. But there are very clear ahadith on this subject. This is the same thing that the Hanafis did.
We have to take what the Quran and Hadith say and we have to take the example of what the previous generations did and not fall into the same trap. Edit: Shaikh is definitely upset and warning us very clearly.
He reminds us that we should not allow our biases allow us to stray from the Quran and Sunnah.
Note: We can say some of the earlier Hanafi scholars made a mistake and some of their followers made a mistake of blindly following their opinion without questioning it.
Again this is not just the Hanafis. What has lived on is mostly with the Hanafis, the other schools such as Shafie and Hanbali madhabs did not restrict women from entering the mosques.
What if the husband fears that the interaction of men and women in the mosque is not strong and based on this fear tell the wife not to attend the mosque?
In general if there is bidaa in the mosque, should you stop going to the mosque? ibn Taymiyyah says that you are now answering a bidaa by a bidaa, since not attending the mosque is itself a bidaa.
Ibn Uthaymeen says that if there is clear bidaa, the husband cannot stop her, but the husband should convince his wife not to attend the mosque.
Is the wife obliged to listen to her husband if he says do not attend the mosque. No. The woman has the right to attend the mosque and if he prevents her then he is committing a sin. But based on the earlier question, she can take his advice and consider it.
Right of education
...Missed some notes over here..... so I missing a bit of the context over here......
Taqi-ud-din Hilali (famous for his translation of the Quran in English) wrote an article about the education of women, he said among the muslims there are three madhabs. According to the first madhab the only thing that women need to know is to read the Quran without any understanding and he says that this is the way of our fathers and we should follow it. He says that teaching women spoils their akhlaq. Note: We are presenting this opinion to highlight the state of some of the Muslims right now, since Hilali died recently.
Ibn Hajr Al-Haitami Al-Shafi’i (not to be confused with the other famous ibn Hajr al Asqani) -- he received a ruling about teaching women how to read and write? According to Al-Waahidi there is one explanation of the tafseer of Surah Nur that seems to indicate this is not recommended. He said: “It is correct.” He said that that Haatim narrated that Al-Baihaqi said “Do not let them reside in their rooms, and do not teach them how to write, but teach them weaving and Surah Nur.” Because Surah Nur contains many of the rulings related to preserving their chasing their chastity.
Al-Hakeem Al-Tirmidhi (not to be confused with the other Tirmidhi who is famous for the collection of sunan) recorded from Ibn Mas’ud that the Prophet (SAWS) said: Luqman passed by a young girl sitting by a young girl who was writing and said “who has given this young girl a sword?” Human beings by virtue of being able to write, they are able to reach levels of deception that they would not be able to read and write.
There’s a narration that it is the right of the child on the father that he teaches him how to read and write and he says this is particular just for the boy. And he goes on to say “Prohibiting women from learning how to read and write does not contradict the fact that they have to learn the quran and manners and remembrance.”
Al-Shifaa b Abdullah came to me and said to her why don’t you teach Hafsah ruqya in the same way that you taught her how to read and write? This is evidence that it is permitted to allow them to read and write.
Muhammad Mukhtar Al-Shinqeeti (in Adwaa Al Bayaan) -- he has a section on “the question of teaching women how to read and write.” He said that there is a difference of opinion on this because of the text. He goes on to say: the question of them attaining knowledge there’s no difference of opinion of this.
There is no question about the issue of getting knowledge, learning the quran, and that there are women who are qualified to teach. There are many verses in the Quran that says about reciting the Quran and its benefits for the household....
However there seems to be a question about the teaching of reading and writing (...). And Shaikh is answering this question.....
Hadith: About the first hadith -- “Do not teach them to read and write..... but teach them weaving and ... and teach them Surah Nur.
There is no question that it is a fabricated hadith. It’s recorded by Baihaqi and at the end he says it is Munkar. And Al-Daraqutni says he is a liar. Ibn Hibban said it is not allowed to narrate from this narrator. Al-Haakim in al Mustadrak -- it is supposed to be sahih that is not recorded in Bu and Mu. Al-Haakim unfortunately died before he completed the editing. Al-Dhahabi said it is fabricated. Almost all scholars say it is fabricated. But Al-Shawkani said it is sahih in nayl al awtaar.
And we can see how this fabricated hadith had a great influence on the opinion of some scholars. It is shocking that Al Shawkani missed this fabrication. It is not shocking for the other scholars such as Al Haakim and ....
You can trace all of the opinion of those who say women should not learn to read and write, can trace their opinion back to this fabricated hadith. And since we know that this hadith is fabricated and some scholars have missed its status, it is indeed easy for us to answer the concerns about reading and writing.
However even all of those scholars say that the women should be education. And there is no question about reading and writing.
Ayesha was an expert in Arabic poetry and Arabic genealogy and based on this, Shaikh assumes that she knew how to read and write, but he will have to double check it.