Fiqh of Marriage
Fiqh of Marriage: Rights of Women
2012 Fall Session (October 28 to December 23 2012)
Class taught by Shaikh Jamaal Zarabozo
This class will concentrate on all of the various fiqh aspects of the rights of the wife, discussing the mahr (whether it is permissible to delay it), the wife’s maintenance and factors affecting it, etc.
2012-10-28 Class Notes
What are the different types of rights in Islam? The Arabic word is haqq (حق) -- and it means either certainty or truth. While some have claimed that there is no classical definition of the word haqq this is not the case.
It revolves around two things: ikhtisas -- one is exclusivity. You have the rights to use it, or your privilege. the second is maslaha -- there is some kind of benefit.
Three components of a right
Rights have three components:
1. The owner of the right.
2. The object of the right.
3. The obligation on others to fulfill the rights.
Categorization of rights
But with respect to the rights of husband and wife, there are particular implications and issues. Here are the ways of categorizing rights:
1. An individual has the right to something and in some cases it can be conceded and in others it may be cancelled.
Example: Dower -- it is not a right for the woman before the marriage to concede the dower. Similarly in the case of divorce the woman has the right to maintenance during her waiting period. She cannot be asked to leave the house nor can the male ask her to leave the house.
2. Rights that are quantifiable/not quantifiable.
Example: One of the main rights of the wife is that she be treated well -- there’s no dollar sign nor minimum number of kisses etc. But the dower is an example of something that is quantifiable.
3. Rights related to wealth vs non-wealth related.
Example: same as above.
4. Moral rights versus legal rights.
Example: a promise. You can not take someone to court for breaking them. Example: hundred divorces his wife, but there are no witnesses. The wife heard it, but didn’t have any witnesses. If it goes to court, then it would just be he-said-she-said. Even though there are no witnesses, morally, he would be sinful, but legally there’s nothing you can do about it.
Some rights overlap; e.g. maintenance of the wife. Is it quantifiable or non-quantifiable?
Suppose someone was not providing maintenance for his wife. Suppose she goes to court, then a judge can assess the value.
Dower or Mahr (مهر)
Sometimes also called sidaaq or fareeda or ajr. For example in Surah Nisaa
وآتوا النساء صدقاتهن نحلة فإن طبن لكم عن شيء منه نفسا فكلوه هنيئا مريئا
And give the women [upon marriage] their [bridal] gifts graciously. But if they give up willingly to you anything of it, then take it in satisfaction and ease.
It is an indication of sincerity on behalf of the groom. Mahr existed before Islam. But it was given to the guardian of the woman and the woman did not get any of it. Example: in some bedouin cultures they would congratulate the man because of this mahr. In Islam, the mahr belongs completely to the woman. Nihlah in the above means graciously or willingly. You should appreciate the fact that this woman is becoming your wife.
Hanafi definition of mahr: the wealth/property that is incumbent on the husband either because it is named in the contact or by virtue of the contract itself. Even if not mentioned, it is obligatory.
Surah Nisa 4:24
والمحصنات من النساء إلا ما ملكت أيمانكم كتاب الله عليكم وأحل لكم ما وراء ذلكم أن تبتغوا بأموالكم محصنين غير مسافحين فما استمتعتم به منهن فآتوهن أجورهن فريضة ولا جناح عليكم فيما تراضيتم به من بعد الفريضة إن الله كان عليما حكيما
And [also prohibited to you are all] married women except those your right hands possess. [This is] the decree of Allah upon you. And lawful to you are [all others] beyond these, [provided] that you seek them [in marriage] with [gifts from] your property, desiring chastity, not unlawful sexual intercourse. So for whatever you enjoy [of marriage] from them, give them their due compensation as an obligation. And there is no blame upon you for what you mutually agree to beyond the obligation. Indeed, Allah is ever Knowing and Wise.
A sahabi came to the Prophet (ﷺ) about marriage and asked about the dower, and he said give something, even if it is an iron ring.
If someone gets married with the intention of not giving the dower. If he dies he will meet Allah (SWT) as a fornicator.
Is it acceptable that the woman is not given her mahr until divorce or death? We will answer shortly. The mahr is not a prerequisite for the marriage contract. Evidence: quranic ayah mentioning that it is not a prerequisite for marriage.
Another example was a woman who consummated the marriage but before they had agreed upon the mahr. Abdullah bin Mas’oud said that she should be given a mahr between women who were similar to her. This is know as mahr mithl. Someone came to Abdullah b Masoud and said this happened during the time of the Prophet (ﷺ) and he ruled the same thing. But it is best to agree and identify and state the mahr before the marriage takes place.
2012-11-04 Class Notes
We are discussing mahr. Is this a necessary and important arkaan (essential component) of the marriage contract, what did we conclude?
Mahr is not an essential component of the contract and the strongest proof for it is the Surah 2:236 which basically says no sin upon you if divorce before consummating the marriage or setting up a mahr. Which implies that you could sign the contract without setting up a mahr.
The Malikis say that mahr is part of the arkaan of the marriage contract. In each madhab, over time there was a standard abridged work, you start learning a madhab by studying an abridgement and not the 20 volume work discussing all of the details. There is an abridgement of the Maliki madhab called Mukhtasar Al-Khaleel مختصر الخليل and in it, it says that mahr is the part of the arkaan of the contract. In the commentaries, it says that there cannot be a previous agreement that there will be no mahr, and if such an agreement exists then the contract is null and void. Malikis say that you cannot stipulate before the marriage the contract that mahr will not be a part of the contract.
So is there any difference in what other schools say and what Malikis say about mahr?
The other madhabs say that the contract is valid but the stipulation is void. Here the man still has to pay mahr and the marriage contract is still valid.
For the Malikis they divide it into two cases, if the man stipulates that there is no mahr then the marriage contract is void if the marriage has not been consummated. The marriage is null and void if the marriage has not been consummated. The madhabs do not want to break the marriage on a technicality. The man has to pay mahr. So after consummation of the marriage, the Maliki view is the same as the other madhabs, but before the marriage is consummated, then the marriage is considered null and void because of the stipulation of no mahr.
In essence all of the madhabs agree that mahr has to be paid and you cannot stipulate that there is no mahr.
A woman has the right to refuse the consummation of the marriage until the mahr has been paid. She can agree on delayed payment which we will discuss later. So mahr is the right of the wife and it is agreed upon by all scholars.
Footnote: You have to be very careful when you read abridged works of the madhab, you have to read the details in order to truly determine what has been said.
We have the verse of the Quran that not appointing the amount for the mahr is acceptable and also other hadith that shows that the marriage contract does not become voided.
It is permissible to not agree to the amount of the mahr, but none of the scholars say it is preferable. Ibn Taymiyyah says that it was the practice not only to agree upon the mahr but to give the mahr during the marriage contract.
One of the most important things is that by agreeing beforehand, you are avoiding any types of disputes that might arise later. Hanafi scholars agree that mahr should be agreed upon before the marriage contract, according to them it was the practice of the Prophet for all of his wives and his daughter’s marriage. He agreed upon the mahr before the contract.
They do not present any evidence for it. They also mention that it should avoid any type of dispute. They also say that by naming the mahr before the marriage contract and you would avoid anything was special to the Prophet. Even though it was special to the Prophet, he did not accept it. ANd you do not want to give rise to any type of confusion ....
Thus there are three possible arrangements about mahr:
1. The spouses agree not to pay any kind of mahr
All scholars agree that it is not permissible that there will not be any mahr.
2. The dower is agreed upon at the time of the mahr
All scholars agrees that this is the best of the 3 options, no-one can say that this is obligatory.
3. No dower is agreed upon at the time of the contract
This marriage is valid, but the husband will have to pay the mahr for a woman of similar stature.
Footnote: In the US most of the marriages have mahr agreed upon before the marriage contract.
There are three types of rights with respect to the mahr. These are the right of Allah, the right of the wali, and the right of the wife.
Right of Allah
What do we mean by right of Allah wrt mahr? This is a right that you cannot concede. There is a mahr and it is at least a minimum of what is required for a mahr. We will discuss the minimum. Neither party has the right to agree to something less than that.
After the marriage, the mahr becomes the right of the wife, she can dispose of it anyway she wishes. Before the marriage contract she cannot forego the mahr. And this is what we mean by the right of Allah.
Right of Wali
If the wali is the father of the girl, he should have the interest of his daughter. Let us say that the daughter is a divorced woman and if she agrees to a mahr that is less than the comparable other mahr, then the wali has the right to object to the mahr. The wali should make sure that his daughter is not being taken advantage of, he has the right to step up and say that mahr is not acceptable
Right of the Woman
If the wali accepts an amount that is less than the comparable amount, then the woman has the right to reject the amount agreed upon for the mahr.
If the woman and the wali feel that the man is very special, let us say he is from a poor country and that he is unique, and he might not be able to provide a mahr that the woman’s sisters have received, then they can compromise upon the amount.
However both the wali and woman can object to the mahr in order to get a proper amount. A wali should step in and make sure that she is not being taken advantage of because of her kindness etc.
Is there a maximum or minimum amount for mahr?
There are no authentic hadith that mention any kind of maximum amount. Surah Nisa verse 20, Allah swt refers to the case of divorce.
وإن أردتم استبدال زوج مكان زوج وآتيتم إحداهن قنطارا فلا تأخذوا منه شيئا أتأخذونه بهتانا وإثما مبينا
But if you want to replace one wife with another and you have given one of them a great amount [in gifts], do not take [back] from it anything. Would you take it in injustice and manifest sin?
The word qintaar means a lot of money. There is a difference of opinion about what it means. Some say it means 1000 dinar, 12000, 20000, 40000, 80000 dinar (gold coins). So even if you gave your wife a large sum of money as mahr, when you divorce you cannot take back anything.
So it means that it is permissible to have a large mahr.
Umar al Khattab when he wanted to marry Umm Kalthoum he offered 40,000 dinars as mahr.
But there is also a famous hadith from Umar b. Khattab that he got on the mimbar and was going to set a limit to the maximum mahr (the Prophet (ﷺ) for example gave 12 uqia (ounces of gold) if someone gives more than that then it will go to bayt ul maal. Then a woman stood and said: “Does the book of Allah have the right to be followed or your statement?” Umar said: “The Book of Allah.” Then the woman quoted the verse above. And he said “Umar made a mistake.”
Unfortunately this narration is weak. The chain is broken. However, there are narrations in Abu Dawud where ‘Umar where he advised people not to be excessive in dowers. So what we have authentically narrated is that Umar b. Khattab not to be excessive.
Umar b. Khattab: Do not exaggerate in dowers, because if they were good the Prophet ﷺ would have done so, because the dower that was limited to about 12 ounces of gold.
Hadith of the Prophet ﷺ: The best mahr is that which is easiest.
Footnote: Dirham is silver coins, dinar is gold coins, uqia is ounces of gold.
Ibn taymiyyah said it is disliked but not forbidden to not pay mahr in cash. What he means that you should borrow within your means in order to pay the mahr, but it is preferable to pay in cash.
Bragging about the mahr was not something that’s consistent with the Sunnah. And the biggest problem if mahr becomes exorbitant, is that it interferes with the people’s ability to get married.
If you set the mahr too high, you’re not helping anyone. The woman doesn’t get married, the man doesn’t get married and if this becomes something widespread this could lead to all kinds of fasaad, and then people might turn to means that are not acceptable. And that is why we find all of the madhabs they insist that the mahr not be exorbitant. But they stop short of setting a maximum for the mahr. You have to avoid extravagance but you can’t say there’s a maximum.
There are particular problems, especially in the gulf. The Saudi government has a program where they give money to people with the means to pay mahr. This leads to people resort to things like ‘urfi marriage. Then they marry non-Saudi women. It can cause a lot of harm. When we talk about the situation here in the USA, it’s a bit tougher. In the ME, the family gets together to help them out. You have to look at the prevalent conditions, but it can not be something that causes harm.
The minimum required -- according to some scholars -- dower is 29.75 grams of silver. But the evidence they use doesn’t seem authentic. There’s a hadith they use that says no mahr can be less than 10 dirhams. But it is pretty clear this is a weak hadith. There’s Al-Zayla’i’s work called Al Hidaya. He also concludes that this hadith is weak.
After we finish discussing the fiqh aspects of mahr, we will discuss how the US courts view mahr and how should we handle it. Also we will try to determine what should be an acceptable level of mahr in the US.
2012-11-11 Class Notes
What is your view of mahr, is this a contract or is this something that you are doing to please Allah swt?
If it is a contract then the two parties can negotiate, if it is something that you are doing to please Allah swt then you can do as please.
Shafie scholar says that there is no minimum amount, we will discuss its implications. Their reasoning is that mahr is not part of the contract and it is a gift to the bride in order to please Allah swt.
The hanafis and malikis (other than wahb) say there is a minimum. And they say the minimum is 10 dirhams. In reality every hadeeth that describes a minimum for mahr is either weak, very weak or fabricated hadeeth. In any case, the hadeeth are not up to the level of being accepted in Fiqh. Even though hanafis are generally more accepting weaker ahadith, these don’t even qualify for their criteria.
Hadith: There is no mahr that is to be less than 10 dirhams.
This is used as evidence by the Hanafis. Even the Hanafi scholars reject the hadith, such as ....
Hadith: The least amount that makes a woman’s private part permissible is 10 dirhams.
Hadith: There is no mahr that is less than 5 dirhams.
This is also a weak hadith.
Hanafis and malikis set a minimum for the mahr. For the hanafis it is dirham. And they also say that this is the minimum amount for hadd punishment to be implemented.
They make an analogy between the minimum for hadd punishment to be enforced and the minimum for mahr. Sh does not see how they can make this analogy, even though he has read their arguments.
Malikis say the minimum amount for mahr is 3 dirhams and they say it is 1/4 gold dinar according to the exchange rate set during the time of the Prophet which was silver dirhams and gold dinar of 3:1.
Hadith: ... hadd punishment should not be less than a 1/4 of a dinar
Again Malikis are making an analogy of minimum amount for hadd punishment and minimum for mahr.
Abdul Rahman ibn Awf got married with mahr of 1/4 dinar. But there is nothing is this report that says that it is the minimum amount for Mahr.
Surah Nisa verse 25
Whoever has no means to marry free believing women then you can marry from the slaves.
The word used is tawla which means wealth. And they say that the definition of tawl is .... some amount. But there is nothing clear in the shariah that states what is the minimum amount of tawla.
If you are going to state there is a minimum, you need to present a clear authentic hadith that specificies the minimum.
Another dominant opinion of ...... dhahiries and Hasan al Basri.
Anything that can be considered mal (valuable) is mahr.
SUrah Nisa verse 24
As long as you seek them with your wealth, they are lawful
Ibn Qudamah says that anything of value can be considered mahr.
Hanafis have a strange response. they say amwal is plural. IN arabic language you have singular, dual or plural and this implies that you should have atleast 3 coins. But their argument is not convincing.
Surah Baqarah which talks about divorcing women before you have consummated the marriage or agreed upon mahr.
Woman should receive 1/2 of the agreed upon mahr.....
And they say that maal is used generally and it could be anything.
Hadith: Bayhaqi and others say that a woman got married and her mahr was a pair of shoes, the prophet asked her is she was satisfied with her dower, she replied yes, the Prophet said that this marriage is proper.
Tirmidhi said this hadith is sahih.
A pair of sandals is not that valuable, what do you think about the amount?
Sh says that this hadith is rejected by all, including Tirmidhi’s teacher Bukhari has rejected this hadith. All of the scholars including Arnaut and others reject this hadith. Tirmidhi was known to accept weak hadith since he was very lax with his grading methodology.
Narrated by Abu Dawood, even 1 dirham is permissible as mahr. Again this hadith is weak.
There is an authentic hadith recorded by Bukhari and Muslim. A man wanted to get married and he did not have anything, the Prophet advised him to seek something even if it is a ring made of iron.
All of the scholars say that the iron ring is definitely less than 3 dirhams. And this is a definitely an authentic hadith.
Some say that the ring was part of what was to be given before the marriage, and there was an amount paid later. However there is no evidence in the hadith narrated about the ring made of iron for this understanding of the hadith.
Mahr can be something of value or just something.
Ibn Hazm said that anything that can be called shay (“something”) can be considered mahr.
Another opinion, anything that has value regardless of it being material or not can be considered mahr.
.... says that this opinion captures all of the other narrations.
Umm Salaymah accepted .... as her mahr.
Prophet married a woman to a man, and prophet asked what portion of the Quran do you know, and the Prophet married them with portion of Quran as mahr.
Scholars say that it is understood that the man would teach his wife the portion of the Quran that he knew.
So this hadith captures that anything can be of value even if it is not material.
Shariah does not lay down a minimum amount for mahr. This is for the benefit of the ummah, because you could have very poor communities and are we to say that they should not get married because they have no material wealth.
So what should we do if the shariah does not define a minimum. Shariah does not define the requirements for travel (safar), there are many hadith, but none them define a minimum amount of travel.
Shariah leaves them undefined and for the customs or urf of the time to set an expectation of some kind.
For mahr we can say it has to be something of value. But what it is exactly and how much should it be is left for the two parties to agree. This is sufficient for the two parties to be considered as mahr.
Wali has a role to make sure that she is not taken advantage of the woman. The woman also has a right to ask for an amount. The woman might be shy and hesitant to speak out, so the wali has to speak out on her behalf.
Mahr has to be something halal.
What if the mahr is not usufruct, such as the promise that the husband will take his wife to Hajj or some other location? Can you consider an action to be mahr?
Abu Talha’s example of offering a portion of the Quran that he knew as mahr is an example of the action.
Should there be some criteria for such kind of mahr? Can you say that the husband will serve the wife for one year?
Some people quote the example of Prophet Musa, where his father in law said that you serve me for 8 years as mahr. Prophet Musa served his father in law for 8 years.
Is the shariah of the Prophets before us our shariah?
There is difference of opinion in usool al fiqh. If we have something in our shariah that contradicts their shariah then our shariah overrides the previous shariah.
Sh feels that there is something different in their shariah then our shariah, why?
Here the service is offered for the father or wali and not the woman. In our shariah the mahr is for the woman. So just based on this, this is not acceptable.
Conditions set upon actions as mahr
The Shafi’s say that whatever is agreed upon should have value, it should be within the means of the husband to fulfill, logistically and ......, and it has to be something mubah.
The Maliki madhab some scholars do not allow this kind of mahr at all.
Hanafis scholars say that you must be able to put a price tag on it. IN case you are not able to fulfill it and if you divorce then the woman gets her right. IN general the Hanafis permit this type of mahr.
In US there are cases where some accept this type of mahr and later on ask whether it is acceptable.
Is teaching of Qur’an can be considered mahr?
We quoted the hadith above, they say that the particle “be” could mean because of the qualities that you have, the Prophet was arranging this marriage, since he had good qualities, and the mahr was set later.
Footnote: Earlier Hanafis scholars said that you could not receive wages for teaching the Quran. And the later Hanafis scholars changed their point of view about it. Most of the scholars who were teaching Quran in the masjid were receiving remuneration from bayt ullah, and there was no need for them to receive any wages, during the time of khilafah rasheedeen. But later they said that if there is nobody being paid then who will teach Quran?
Summary of minimum amount of mahr
There is no exact minimum. Mahr has a purpose and a goal. All of the madhabs emphasize that it is to show the sincerity of the man. It is also meant to financially help the woman incase there is a divorce. Parties are free to agree upon. However the husband should make sure that it is not be just a token, and he should step up and should give more than what is being asked.
Sh has seen in the US, where sisters who have accepted Islam, they like the simplicity of Iman and they consider dower to be strange, and because of that they accept some token amounts such as a bag of dates as mahr. This is not proper.
When does the mahr have to be paid?
Some scholars say that at least a portion of it has to be paid before consummating the marriage. The strongest evidence that they use does not have a strong chain.
Hadith in Sunan Abu Dawood: When Ali married Fatima and when he wanted to consummate the marriage, the Prophet forbid them and said that pay your mahr. Ali said that I do not have anything. Ali gave her the shield. And then Prophet allowed the consummation of the marriage.
The portion that Prophet prevent until he gave something is not in a strong narration of the hadith.
Strong narration similar to the above hadith: Ali wanted to propose and he did not have anything of value. ..... the Prophet asked him where is your such and such shield that I gave you. Ali replied I have it. The Prophet said give it.
Another narration which is not authentic: Ayesha said the Prophet asked me to prepare a woman for marriage before her husband has given her anything.
This hadith seems to indicate that you could consummate the marriage before giving anything as mahr in part or in full.
Hadith: A person promised to give 4000 dinar and he consummated the marriage before giving the mahr. And nobody objected to it.
If the woman demands the amount before consummation, then she has the right to ask for it.
We will discuss the kind of mahr that is set up nowadays and they promise that it will only be paid in case of divorce or death.
2012-11-18 Class Notes
We will continue our discussion of aspects related to mahr. For the majority of the ulema, the woman is entitled to a mahr by virtue of the marriage contract itself. The malikis have a slightly different view, they say that the marriage contract entitles her to half of the mahr and we will see how they come to this conclusion.
The mahr becomes an obligation on the husband as soon as the marriage contract is signed, unless it has been agreed upon before to delay the payment.
We also saw in the last cass that there is no authentic evidence to show that you have to pay part of the mahr before consummating the marriage or that you cannot consummate the marriage without paying the mahr.
In Fiqh you can divide waajib into two categories, wajib al muwassa - there is some flexibility to practice your obligation (so woman can demand it immediately but she does not have to demand it), and wajib al mudayyak....
So mahr becomes the woman’s right as soon as the contract is signed but if she does not demand it, it still is an obligation on the husband but he does not have to fulfill it immediately.
An analogy is the time for dhuhr, it becomes an obligation when the time for dhuhr begins but you have time until asr to offer your dhuhr prayers.
Spot transaction versus paying mahr over time
Most of the scholars agreed that during the time of the Prophet, the custom among sahaba and tabiyyeen was that mahr was paid after the contract and before the consummation. But there is no direct evidence that it has to be like that. However this is the best practice and it is recommended to do so.
There might be reasons for delaying mahr, paying part immediately and part later. A young husband might not have enough money saved and it might be in her best interest of the wife and the husband. This arrangement might be beneficial to get married even before the husband has saved the money to pay the mahr.
Most marriage contracts simply mention the amount of mahr but not when it will be paid, whereas there might be some marriage contracts that spell out exactly when the amount would be paid.
What should happen when the marriage contract does not lay out the terms of the payment of the mahr?
Then it should follow the standard practices of the community, the urf. And if you do not want to follow the standard practice, then you should spell out your terms. The standard practice should be well known.
However in the Muslim American community, since it is so diverse and have many subcultures, it depends whether the two parties are from the same subculture.
What happens if both parties are not from the same subculture? The question is what is the default ruling?
The default ruling is the one that comes even before urf. The wife can demand it immediately if the contract does not state the terms. This is the default case since there is no well established urf between the two parties.
In many cases, part of the mahr is delayed.
Marriage contract is essentially an aqd (promise) and it cannot be left open. Suppose if I buy a car from you and do not pay you immediately, what should happen in this case?
There should be limits on how long can the payment be delayed, it cannot be left open. The various madhabs define the terms of delayed payments of mahr.
The Hanafi madhab makes it very clear. Whatever is specified in the contract, then it takes precedence over urf. So if the contract clearly states immediate payment, then the woman has the right to refuse consummating the marriage or moving into the household until she receives mahr or whatever portion of the mahr has been specified for immediate payment in the contract.
There must be some known time in the contract, you cannot put undue risky conditions in the contract. You cannot state that you will pay the rest of the amount when an unknown event takes place such as when it rains, etc
The most common condition mentioned in the cultures is that part of the mahr will be paid if there is a divorce or death. It is also the case that in many cultures this is what occurs even without mentioning it specifically in the contract, is this an acceptable condition of the contract?
In the Hanafi madhab, they accept these type of conditions in the contract. They say that this term is defined by a specific event. This is the majority opinion among the Hanafis. It is not the only opinion, there are some Hanafi scholars who oppose this view.
In the case of the Malikis, they do not like the idea of delaying any portion of the mahr, they consider it to be makrooh. They say it was not the practice of the salaf, and if you have to delay the payment, then it must be due to some good reasons.
If the husband is able to procure the mahr due to its availability in the town, then he should pay it immediately, but if the mahr has to be procured from out of town, then he can delay it
If the terms stipulates delaying the mahr until death or divorce, then for the Malikis this contract is null and void. They say that the two parties should be kept apart and not allow them to consummate the marriage.
According to the Malikis, In general if you have conditions that are invalid, then it makes the entire contract invalid.
In the Shafi madhab, Imam Shafi said that you can pay the amount immediately or delay it, the woman can refuse to move until the mahr is paid, but if she agrees to the delayed terms then she cannot refuse to move into the household of her husband. They say that the time cannot be unknown or unspecified.
Footnote: Arabic terms for muajjal immediate, ?????? delayed and ????? deferred. One has ayn and another has hamza. In the old days they used ‘ for ayn and ` for hamza when transliterating it in English???????
Footnote: According to a qaeeda which states that urf will be legally binding, unless the urf goes against the shariah. For example in India the urf is that dower is paid by the girl’s family to the groom, this is unacceptable urf.
Abdul ibn Baaz’s view is that it is permissible to delay mahr until the condition mentioned by the questioner which was death or divorce. They are influenced by Hanbali scholars and they see no problems in delaying the part of the mahr on death or divorce.
Salih sadlaan another contemporary scholar describes the goal of the mahr and its effect on the goal. He says that there is problem with the goal, which is to show your sincerity and interest towards your wife. If you say that amount will be paid only when you die, then you are not really showing your sincerity since you will not be able to take money with you when you die.
He also discusses the harms that can result due to these conditions. If the husband is unhappy with his wife, then it will affect his relationship, but he will be hesitant to divorce because of the payment of the rest of the amount of mahr and he will remain in marriage solely to save him from financial burden.
He also says that as soon as a person dies, everybody comes for their share of the wealth, she might be left of the wealth by the inlaws. He says that delaying mahr until death or divorce should not be in our religion. He is from the Hanbali madhab but he does not ascribe to their views on this conditions or stipulations or urf of delaying payments until death or divorce.
What portion of the mahr can a woman demand if she goes to a judge,
She is entitled to Mahr al mithli, mahr of women who are similar to her, and the judge can rule based on urf, social conditions, etc.
If entire portion of mahr is delayed until death or divorce, this is completely unacceptable.
There are enough commonalities between aqd al bayah (business transaction) and aqd of marriage. The burden of proof is upon those who say that there are no commonalities between the two.??????
Q: What about risk of inflation and long term delayed payments of mahr?
A: The Maliki madhab do not like delaying the mahr and they say that is because of the long period of time. Some Shafis do not like mahr delayed a long period of time.
What about hyper inflation such that occurred before World War II? Since it does not occur that often, we do not have to worry about it.
What happens if later the husband does not have the means to make the payment? Does the wife have the right to annul the marriage, fasakha????
The question is what happens if there is a breach of contract. According to many scholars, it is a failure on the part of the husband to fulfill the marriage contracts and she has the right to annul the marriage contract, even if the marriage has been consummated.
In general when you have rights, you also have the right to waive away your rights.
Q: What happens if the marriage contract spans two countries and you specify amount without a currency?
A: You follow the urf, it can be understood to be one or the other currency. If the amount is delayed, the wife cannot retroactively say that since one currency is higher valuation than the other to change the terms of the contract.
If the woman is unhappy in the marriage even though he is fulfilling the rights of the marriage, he is taking care of her, fulfilling the rights of the marriage, he has paid the mahr, she has the right to end the marriage and the man can demand the mahr to be returned, we will discuss this much later. This was in response to a question.
Next time we will discuss among other topics, does the woman have to pay zakat on the amount of mahr that has not yet been paid to her.
2012-11-25 Class Notes
The practice of no mahr except in the case of death or divorce is wrong, it was not a practice of the salaf, and is definitely not correct by contract theory in Islam.
We discussed in the previous quarter that you could have pre-nuptial agreements and terms of payment in case of divorce. Since this is no longer mahr and this is a voluntary financial agreement, they are free to do so.
If it were to become a burden for an individual to pay the mahr on the spot, he can make arrangements to pay it in installments.
There are cases when a woman is entitled to her entire mahr, half of her mahr and some other cases when she is not entitled to any amount of the mahr. We will discuss those cases. We know that the mahr becomes obligatory ...
Discussion of various cases when a woman is entitled to entire mahr
Case of Sound Marriage
If you have a sound marriage and the two consummate the marriage, she is entitled to teh complete mahr, regardless of whether that mahr was stated in the contract or not. The ulimah is in agreement on this.
Case of haraam consummation even in Sound Marriage
Even if the consummation was not completely “halaal”, lets say like the woman was on her menses and they still consummated their marriage. That act of intercourse was haram but is still considered an act of consummation for the marriage.
Even if the marriage contract was fasid, esp in Hanafi school, she is still entitled to the entire mahr after consummation.
Case of Marriage without a wali
If they got married without a wali, even as a result of that improper contract she is going to be deserving of her entire mahr.
Hadith: The prophet saas said that if any woman gets married without the permission of her guardian, then her marriage is void, the marriage is void and her marriage is void. If she consummates the marriage, she is entitled to her mahr.
Case of problems with marriage contract
Even if there is an issue with the contract itself and they continue to consummation, she is still entitled to her entire mahr.
By mafoom wal mahalafah, she is definitely entitled to her entire mahr when the consummation is done.
Case of Marriage without permission of wali
If they get married without the permission of the wali and they consummate the marriage, there is some difference of opinion on what mahr they should receive.
Let’s say they agreed upon the mahr in the contract but didn’t have the bride’s wali present. The scholars differ on the mahr that is due after consummation.
Case of a Void Marriage contract
Some scholars say that she should not receive the whole mahr that was agreed upon. What is the legal reason behind that? The contract is not valid and some scholars say that since that contract is not valid, she cannot receive the mahr stated. She will receive some mahr of the women who are similar to her, ie what the custom is. If she agreed to less than the custom, she gets more than what she agreed upon, and if she agrees to more amount than the custom, then she still receives what she agreed too.
This goes back to the idea that the contract is void and therefore this mahr stipulated in the contract isn’t valid.
Case of Fasid Contract
For hanafis, fasid means that a contract is defective but is repairable. In this case, the wali’s permission would need to be obtained. For others, the contract is completely void and would need to be redone completely with the wali’s permission.
Q: how does one deal with cultural situations where the elders require the mahr be specified as being given upon death or divorce?
A: He should work with them and convince them to at least give some of the mahr upon the time of marriage and the rest can be delayed.
Things that are built into culture are difficult to handle or get around.
In summary the cases that we have discussed so far have the following in common, it is the consummation of the marriage, even if you have a consummation after a not-so-sound marriage contract, the women is still entitled to her mahr.
Case of death of husband before consummation of the marriage
If the spouse dies after the ‘aqd but before the consummation, she is entitled to her entire mahr even if there was no consummation. The mahr becomes obligatory after teh ‘aqd. This is agreed upon by all the scholars with one slight caveat that will be discussed later. If the woman dies, her heirs get the mahr.
The reason for this is that death does not annul the marriage contract but it does end the contract.
Case of Maliki exception
The Malikis have a difference on one point that is strange with regards to the death of the husband before the marriage is consummated.
If the mahr was not explicitly stated in the marriage contract and one of them dies before consummation, they say in this case the woman is not entitled to anything. The sheikh believes this is a very strange opinion that goes against an authentic hadith of the prophet saas where someone came to Abdullah Ibn masoud as was asked about what a woman should do when her husband died and no mahr was specified in the contract. Abdullah ibn Masoud said that she should receive her inheritance, observe the mourning period and receive a mahr similar to what women received. One of the companions came to Abdullah ibn Masoud and affirmed that the Prophet saas made a statement in agreement with the judgment Abdullah ibn Masoud provided in a separate occasion.
Footnote: Discussion of annulling marriage contract. When it comes to this topic, you should not listen to what the jews, christians, or mormons do. We have our shariah and there is such a thing as fasid contract, where the marriage contract is annulled, we will discuss it later. (Fasid is more for Hanafi’s I think..)
Discussion of various cases when a woman is entitled to no mahr
Case of murder of the husband by the wife
Suppose the wife kills the husband; should she be entitled to her full mahr?
The death of the husband brings the marriage to an end. There is a qaaidah that if someone brings about something before it’s time, then it is prohibited. So according to this qaaidah, the woman caused the marriage to an end before its time, and she wil prohibited from benefitting from it. Therefore, the wife is prohibited from the mahr and cannot receive any part of it.
Discussion of various cases where there is a dispute about amount of the mahr is entitled to the woman (most of the cases here are full amount of mahr)
Case of khalwa al sahihah (Difference of opinion on this case)
now suppose the husband and wife for example go to a hotel room and are alone by themselves but suppose they don’t consummate the marriage. Would this be sufficient to allow the woman to be entitled to her entire mahr? Suppose they spend a few nights at a hotel and they don’t have intercourse. later, he decides to divorce her. Now, is she entitled to her entire mahr or not?
This is the concept known as khalwa al sahihah or the true or sound seclusion. This is where after a sound marriage contract the two spouses are alone together without any risk of anyone entering and without having any physical or shariah obstacles for enjoying the situation. A shariah obstacle is the menstrual period.
Footnote: An example of physical impediment. In some muslim cultures even now, they actually sow up the woman’s private parts so that she couldn’t do anything when she was younger.
So this means you’re alone, the mood is right, everything is right but there is no consummation.
There is a difference of opinion here whether she should receive her entire mahr or half the mahr.
There are some scholars that say seclusion without intercourse is sufficient to be considered consummation with regards to the obligation of the mahr. Here the wife allowed her husband the opportunity to consummate but he chose not to do so. If they didn’t have intercourse, that’s up to them and it was their choice but the mahr is still due. The mahr is based on the ability to consummate and the woman giving herself over in a sense.
This is the opinion of the hanafis, one narration from imam malik, the old opinion of imam shafi’, the opinion of imam Ahmed and this is the opinion of the Khulafah Rashideen and other Sahabah.
Those who say that this khalwa sahihah doesn’t take the place of consummation
Newer opinion of Imam Shafi, Ibn Abbas and Ibn Masoud, lesser known opinion of Imam Malik (missed some of this...)
It seems that the strongest opinion here is that the khalwa sahihah takes the place of consummation and she will have the right to her entire mahr.
Case of disagreement between husband and wife about khalwa al sahihah
What if they are in the process of getting a divorce shortly after getting married and both the husband and wife agree that they didn’t consummate the marriage but the wife claims they had the khalwa sahihah but the husband denies it.
Whose opinion (the husband’s or the wife’s opinion) should be taken and why?
The burden of proof is on the one who claims some change in status.
This is based on a hadith of the Prophet saas. part of this hadith is that if people were given according to their claims, they would be given almost everything. (paraphrasing)
You have to determine now what is the default case and what is the change in state.
For example, if we claim that Jalaal owes the sheikh $1000, obviously in some point in time, Jalaal didn’t owe the sheikh $1000. The sheikh is claiming that there was some change of status. Jalaal doesn’t have to prove that he owes $1000. The sheikh has to prove that this change of status happened.
The key is to determine what the default case is.
If the woman claims they had khalwa sahihah, the fuqahah in class seem to agree that the burden of proof is on the woman that this indeed took place. Otherwise, the man would need to take an oath that it didn’t happen.
There are two opinions in the hanafi schools:
- We go by the statement of the woman; their argument is a little different. Ibn Abideen explains this; all of the mahr becomes obligatory as a result of the ‘aqd and the consummation and being in private is just confirming what the ‘aqd has already established. In this way of looking at it, the entire mahr has been established and the burden of proof is on the husband that she doesn’t deserve all of it. So they sort of twist it to say that the existence of an ‘aqd indicates that she is entitled to her mahr. This point is weak according to the sheikh and the burden of proof is on her that she had a private meeting.
What is a proof in the shariah? Does it have to be witnesses?
Ibn al Qayyim has a book called ? where he shows that the goal of judges and judging in the shariah is to ascertain what really happened. He talks about how in some fiqh books considers proof as witnesses only. He proves this as absolutely incorrect based on the Qur’an, sunnah and the early generations of muslims. Physical evidence is also a proof. So in our example, if there was a security camera showing that they both entered the hotel room together. The burden of proof might now be on the husband to show that she was in her menses or there was some barrier to intercourse.
There is another interesting opinion amongst the Malikis. The sheikh does not completely understand it. If a woman stays one year in the house of her husband and he doesn’t consummate the marriage with her, that staying of one year in his house gives her the right of her entire mahr.
Why one year? This is interesting.
Not having intercourse while living in the same residence? This is interesting.
Since they are living together, there must be some kind of khalwa sahihah that took place.
Case of divorce of a deathbed marriage
Suppose a man and woman get married and before consummation (‘aqd is sound), the husband is on the death bed and divorces his wife while on his deathbed. The Hanbalis in particular say in this case she is entitled to her entire mahr. The hanbalis and some of the other madhab (but hanbalis are focusing on this in particular) they look at the niyyah behind this act. They consider this to be a fleeing divorce, a divorce to take her out of her inheritance and her mahr as well. They say that this kind of action is only done to harm the wife. If he is on his deathbed, why divorce his wife. The others say that we cannot claim to know the intention, we have to look at the acts. The divorce was a divorce.
Footnote: Why does a divorce “take away the mahr”? Because if the marriage is not consummated she loses half of her mahr.
Case of sexual pleasure even without khalwa al sahihah
For the Hanbalis as well (there are a couple of places where they have a unique view), this is where the husband gets any kind of sexual pleasure from her even without khalwa sahihah, she must receive the entire mahr.
Ibn Qudammah in one of the most important books of fiqh says that if he hugs or kisses her, she is entitled to her complete mahr as he has done with her what others are not permitted to do.
Case of removing khimaar or head covering
Anyone who removes the khimaar or head covering of a woman must give her the entire mahr even if there was no consummation. Is this hadith authentic? This is definitely not an authentic hadith. This is not to be confused with looking at a prospective bride (where most scholars agree the khimaar cannot be removed).
Case of not touching her
If he divorces her before even touching her, she is entitled to half her mahr.
What about the other evidence they use?
The verse says that if you divorce them before touching them. What does the verse mean by touching? The majority of the mufassireen agree that this is a euphemism in arabic and means sexual intercourse.
There is no strong evidence supporting this Hanbali position or Ibn Qudammah’s opinion.
Some issues to discuss next time:
Discussion of various cases where the woman is entitled to half or less than half of the mahr.
Does she owe zakaat on the mahr received?
2012-12-02 Class Notes
Woman is entitled to only half of her dower
We discussed the case where woman is entitled to her entire mahr, now we will discuss the cases where the woman is entitled to half her mahr.
One case where all of the scholars agree is the one that is mentioned in Surah Baqarah verse 237.
Surah Baqarah verse 237 ... if you have divorced them before you touched them, then they are entitled to half their mahr.
وإن طلقتموهن من قبل أن تمسوهن وقد فرضتم لهن فريضة فنصف ما فرضتم إلا أن يعفون أو يعفو الذي بيده عقدة النكاح وأن تعفوا أقرب للتقوى ولا تنسوا الفضل بينكم إن الله بما تعملون بصير
And if you divorce them before you have touched them and you have already specified for them an obligation, then [give] half of what you specified - unless they forego the right or the one in whose hand is the marriage contract foregoes it. And to forego it is nearer to righteousness. And do not forget graciousness between you. Indeed Allah , of whatever you do, is Seeing.
Some say the khalwa is sufficient for the woman to be entitled to her entire amount of mahr.
The reasons for separation could be due to the case of being breastfed by the same woman. Since man and woman who are breastfed by the same woman cannot get married, so they should now be separated, but it is fault of neither the man or the woman, the marriage should be annulled. So how much mahr is she entitled if the separation becomes before consummation.
Some scholars say if the separation is before consummation due to the above scenario, then she is not entitled to any mahr. Some other scholars say that the woman is entitled to half her mahr. This is a difficult scenario.
But let us say that the husband apostates before consummation or khalwah (private consultation or seclusion), then the marriage annulment will be due to the fault of the man, and she is entitled to half her mahr.
But if the woman apostates in the above scenario, then since it is the woman’s fault, she is not entitled to any mahr.
Woman is not entitled to any portion of her dower
This would be separation before consummation or khalwah and the separation is due to some act of the woman, then she is not deserving of any mahr. The reasons could be due to apostasy as discussed above.
Let us say, if the woman finds a physical defect in the husband before the consummation and she decides to break the marriage contract then she is not entitled to any mahr, but if she is deceived by the husband then she is entitled to half the mahr.
The only other case is when she of her own volition gives up her dower. In S Nisa:
وآتوا النساء صدقاتهن نحلة فإن طبن لكم عن شيء منه نفسا فكلوه هنيئا مريئا
And give the women [upon marriage] their [bridal] gifts graciously. But if they give up willingly to you anything of it, then take it in satisfaction and ease.
She cannot be coerced to give up her mahr, and if she is coerced then it is not acceptable.
Let us say that a portion of the mahr has not been paid to her, it is something that the husband owes her, she can forego the amount that her husband owes her.
Suppose she has already received her mahr, can she then give up the mahr on behalf of her husband? She already has the mahr in her possession, and she can only return it to her husband if he accepts it. But in the earlier case, she can unilaterally drop the debt owed to her by her husband, but in this scenario, she cannot just give the dower without the husband’s acceptance.
Let us say, if a man is paying the woman the dower over a period of time in installments, can she say that since you owe me $20,000 over time, but if you buy me this car worth $10,000 then we will consider the mahr paid.
Some scholars say that if both parties agree, then there is no problem with it. But some Hanbalis object to it.
Suppose a woman is owed some part of her mahr and she unilaterally dropped it, can she after some time request the amount to be paid? Once she drops the amount owed to her, she cannot later ask for it. This is the basics of contract theory and once she gives up her right, she cannot change her mind. These are serious contractual issues and your decisions should not be based on emotions, specially in case of large amounts of money, it is a fitnah, and you have to be careful before you give it up.
Does the wife have to pay zakat on the amount owed by her husband?
If they have a clause that says that the woman will receive the mahr owed to her when her husband dies or divorces her, so since she does not have the money in her possession, she does not have to pay zakat on it.
Scholars distinguish between strong and weak debt. In shariah, lending money is considered a brotherly act, and there might be reasons to believe that it might not be coming back to you, this is considered to be a weak loan, therefore you do not have to pay zakat on it.
But let us say that a person has the ability to repay you, he has money with him, and if you demand it, he can pay it to you, in this case you do not have the money in your possession, but you could say that they are holding it for you, and hence you have to pay zakat on it.
If the woman is owed mahr and she allows the man to hold on to the amount, then either one of you has to pay zakat on that amount. Husband can pay on behalf of the wife, or the wife has to pay it. If we let the zakat not be paid on by either parties, then this could be used as a mechanism to avoid paying zakat.
So if the two parties are waiting to settle the account, then one of the parties has to pay the zakaat. THe person who lent the money has to pay the zakaat.
But suppose the husband does not have money to pay the mahr, the woman knows about it, this would be the case of weak debt, and she does not have to pay zakaat.
Suppose the husband is late paying the mahr, he pays the mahr after 10 years, so when the woman receives the mahr, does she have to pay for every year the amount was owed, or does she pay as soon as she receives it, or does she have to wait one year after she receives it?
These are the three opinions for the above case, but the strong opinion is that she should wait for one year after the money comes into her possession and if she still has money over the nisaab, then she should pay zakaat.
Suppose that the husband has the money to pay the mahr to the wife, but there is some barrier between the wife getting the money, eg culture or in-laws (ie it’s taboo to ask for the money in that specific culture). Who pays zakaat on this money?
If there is some kind of barrier between you and your wealth, then there is no zakaat on it and you have to pay it after you receive it and have it in your possession for more than a year. It is better that the two parties discuss the situation to make sure that someone is paying zakaat on the mahr as this could lead to a situation where zakaat is not being paid on all wealth and may lead to fitnah as people may start escaping zakaat.
Does the wali have any right to ask for any portion of the mahr?
There is no question, that the father can ask for the entire amount, there is also a hadith that says that the father can ask for the entire wealth from his son, but there are caveats.
If a parent needs wealth, then it is the right of the parent to ask for wealth from their son or daughter.
In some cultures, they allow the father to have a share in the mahr of his daughter. But majority of the scholars say, that the entire amount belongs only to the woman....
If the wali is anybody other than the father, then he is not allowed to have any share in the mahr.
In Hanbali school, the father can ask for something based on the Surah Qasas......
Those scholars who follow the shariah of the people before us, then they can say that the father can ask for portion of the mahr, since there is nothing in the shariah that clearly forbids it.
But those who do not follow the shariah of the people before us, then they ....
This should be avoided, the woman is entitled to the entire amount of money. The parents can request portion of the mahr only in case of need.
How do we deal with mahr in the United States?
We have many subcultures with different levels of expectations. And this could cause hurt feelings specially when they marry across cultures.
Suppose in your culture, the mahr is $25,000 and they try to find a woman from a different culture where the demand might be much less such as $5,000. And suppose after the woman gets $5,000 she finds out that the culture she is married into, typically pays $25,000, and it might cause problems.
We will continue discussion of this topic next time.
2012-12-09 Class Notes
Today we will discuss the second right, which is nafaka. The idea of nafaka is one of the important qualities that Allah swt speaks about in the Quran, as one of the prerequisites of getting guidance.
Surah Baqarah verse 1-5
Alif, Lam, Meem.
ذلك الكتاب لا ريب فيه هدى للمتقين
This is the Book about which there is no doubt, a guidance for those conscious of Allah -
الذين يؤمنون بالغيب ويقيمون الصلاة ومما رزقناهم ينفقون
Who believe in the unseen, establish prayer, and spend out of what We have provided for them,
والذين يؤمنون بما أنزل إليك وما أنزل من قبلك وبالآخرة هم يوقنون
And who believe in what has been revealed to you, [O Muhammad], and what was revealed before you, and of the Hereafter they are certain [in faith].
أولئك على هدى من ربهم وأولئك هم المفلحون
Those are upon [right] guidance from their Lord, and it is those who are the successful.
Nafaka literally means that which is spent, it no longer in your hands. Al Infaq means poverty, when you give all of your wealth away, then you are in the state of infaq.
Allah swt says .. that people who do not spend in the cause of Allah swt are worried about being in the state of infaq.
Al Anfal verse 2-4
إنما المؤمنون الذين إذا ذكر الله وجلت قلوبهم وإذا تليت عليهم آياته زادتهم إيمانا وعلى ربهم يتوكلون
The believers are only those who, when Allah is mentioned, their hearts become fearful, and when His verses are recited to them, it increases them in faith; and upon their Lord they rely -
الذين يقيمون الصلاة ومما رزقناهم ينفقون
The ones who establish prayer, and from what We have provided them, they spend.
أولئك هم المؤمنون حقّا لهم درجات عند ربهم ومغفرة ورزق كريم
Those are the believers, truly. For them are degrees [of high position] with their Lord and forgiveness and noble provision.
Surah Hajj verse 35 also ends with the same expression.
Surah Qasas verse 54, the people who converted will receive two rewards
Surah Sajdah verse 16, the people who leave their beds to praye
Surah Ashurah verse 38 ...
These are all passages which describes how Allah swt has bestowed wealth upon the believers, they take it and spend it on others.
Allah swt is talkinng about nafaka that is obligatory upon the individual. These verses are not talking about sadaqah and voluntary spending. Wealth is a great fitna, and there are many obligations, and you have to spend it on those who are dependent upon him, whether it is his wife, his children, his parents, his relatives, his slaves and others who are dependent upon him.
Ibn Abbas says that some of the verse means zakat, but this narration is weak. Some scholars say that it means to spend on your family. But the strongest conclusion is that it is obligatory spending.
Nafaka is one of the important obligation upon the believers. Sr ... said that the number one complaint from the sisters is that their husbands are not maintaining them. In some communities in the US, the husbands have the ability to work and provide for their family, they get married in the masjid without an official marriage certificate, and then they ask their wife to get social security welfare payments. This happens even in England and France.
IN the above cases, the husbands have the ability to work and to spend for their wives is an obligation upon them. It is an obligation to make wealth, and also an obligation to spend it on their wives and their children.
A believer should not lie in order to qualify for welfare, moreover they should not be begging, if they have the ability to work.
We can prove from the quran, the sunnah and the ijmaah that it is an obligation upon the man to provide for his wife.
Allah swt says .....
The husband has the leadership and it comes with heavy responsibility that he maintains the household.
Allah swt says in Surah Baqarah verse 223
Ibn Katheer says that .... they should do so without miserliness and ...
Allah swt when speaking about pregnant divorced women, the husbands are required to spend upon them until they give birth in Surah Talaq. So by mafhoom al mukhalafah, if a divorced woman is required to be spent upon, then the married women also are deserving of being spent upon.
Al Qurtubi is more explicit when he talks about maintenance and how he is supposed to do so....
Surah Taha verse 117
فقلنا يا آدم إن هذا عدو لك ولزوجك فلا يخرجنكما من الجنة فتشقى
So We said, "O Adam, indeed this is an enemy to you and to your wife. Then let him not remove you from Paradise so you would suffer.
How can you use this surah as proof that a husband is supposed to provide for his wife?
In the next two verses, Allah swt describes jannah.
إن لك ألا تجوع فيها ولا تعرى
Indeed, it is [promised] for you not to be hungry therein or be unclothed.
وأنك لا تظمأ فيها ولا تضحى
And indeed, you will not be thirsty therein or be hot from the sun."
One of the problems about relying upon the translations of the Quran is that English is different from Arabic, and there is something very clear in Arabic that is missing in the English translation.
What is the difference between tashqa and tashqa ya, the statement that talks about suffering, is not in dual but in the singular.
Al Qurtubi says that this verse is evidence, from the word tashqa ya, it is Adam who is going to suffer, in order to provide food, clothing, and protection from heat, whereas while they were in Jannah, they did not suffer hunger, heat, thirst etc.
If this was the only verse we had, then the argument would not be too strong, but we have many evidence from the sunnah of the Prophet. As individual evidence, it is weak.
Footnote: Sometimes some evidence by itself might not be strong, but given other pieces of evidence, they bolster each other and make a strong case.
Prophet has also warned us about nisaa. .... upon you is the right to provide for them...
One time prophet was asked about how to provide, he said, that you provide for her food and drink, when you eat and drink. ....
Hadith quoted by Imam Bukhari and Muslim. Hind bin ukhwah complained about her husband Abu Sufyan, she said he was very stingy and did not provide for her and her children, and she asked whether she could take his wealth without asking, he said take as much as you need that is sufficient for providing for you and children as is the custom.
Sometimes people go to different hadith and say that this is judgement for that time and that it does not imply a common law, and you cannot build a general principle based upon the hadith.
Basically, the above hadith of hind, we cannot say that this is a general ruling. He never made a judgment until hearing from the other side. Even if the Prophet had been given knowledge, he still had to apply the .... of this dunya. So the fact that we do not have evidence that he contacted Abu Sufyan about this complaint, we cannot say that this is a general ruling.
But there is a general principle being defined here, that says that man is responsible for providing for the household and if he does not, the wife has the right to take from the wealth, the amount sufficient for providing for the household.
Ibn Qudamah says that husband is responsible for the household. There is ijmaa among the Maliki school, Hanbali school, Shafi school that the husband is required to maintain the wife. If you find ijmaa among the scholars, then it moves the knowledge to a level of certainty, and it removes any doubt on any of the evidence. ilm al yaqeen.
Scholars say that there is rational evidence for nafaqa, it is mentioned by many scholars. They say that once the woman marries, she is responsible for the household, for taking care of the children, so she does not have the .... to fend for her livelihood, and since she is taking care of the household for her husband, that means, the husband is responsible for providing for her.
By fulfilling this nafaqa, the husband is fulfilling a great commandment, which draws him closer to Allah swt, as we studied in the 40 hadith class, last quarter about drawing closer to allah swt by doing the obligatory deeds.
Hadith ... the dinar that you spent upon your family, is the greatest dinar that you spent......
If you go and provide charity but do not spend upon your family, then you are not fulfilling your obligation.
Hadith .... you will get rewarded for any wealth that you spend on your wife and the food that you put in her mouth ....
If a Muslim spends wealth on his family, and he is seeking reward from Allah swt, then this spending will be considered sadaqah.
Commentators say that you get two rewards,since you are doing this act to seek reward from Allah swt. And even when you want to be generous, you have to start with those who are dependent upon you.
Supporting your wife, is one of those actions, you can do for the worldly deeds. So even a non religious person can support his wife, since this is a dunyawi deeds. But if you make the intention that you doing it for seeking reward from Allah swt, then he will be rewarded by Allah swt. If you do not make this intention, then you will not be rewarded by Allah swt.
The above paragraph ties in neatly with the topic of intention that we are discussing in the qawaa'id al fiqhiyaah class.
Wisdom behind nafaqa
People are now evaluating themselves by how much money they are making and their status in society. And this has made the status of women who are taking care of her children and not earning money, then some consider her value to be insignificant. This mentality has arisen in today’s society ...
The shariah says, a person’s value is determined by how good an ‘abd you are and how much the person obeys and adheres to the commands of Allah swt.....
How can we have a healthy family which contributes to a healthy society?
The basic unit of society should be a very happy house, the house where somebody who looks after them, provides for them, two parents, a father who provides the finances, and the mother taking care of the household, the affairs of the household, even if there are no children.
2012-12-16 Class Notes
What is the causes or shabaab or shuroot behind nafaqa?
This is an important question because many times the aqd is done and then the marriage consummation happens a year or later. We can assume that the man is not maintaining the woman during the time before the consummation, but is this practice of not maintaining the woman correct?
First of all, the aqd has to be valid, if it is not valid, then the man is not responsible for maintaining the woman.
If before you consummate the marriage, you find that there are some reasons for invalidating the marriage, such as being breastfed by the same foster mother, once you find that out, then the marriage is considered null and void, and the man is not responsible for maintenance. And the marriage is considered null and void.
Footnote: If let us say that the marriage is consummated in the above case, the woman becomes pregnant, then are the children legitimate? Yes the children are legitimate, and the husband is responsible for maintenance of the children and the wife. ...... Missed the point about annulment of the marriage after the couple finds out that their aqd was invalid. ......
Three opinions about nafaqa
By the virtue of the aqd itself, the woman is deserving of the maintenance, even if the marriage is not consummated. So by the virtue of aqd itself, she is deserving of the nafaqa. This is the opinion of the ibn Hazm.
Another opinion is that because she is available for sexual relationships with her husband, and because of this availability, the nafaqa becomes valid.
Another opinion is that the nafaqa becomes valid only if she is living with him in his quarters. This is the Hanafi view.
Ibn Hazm says that anyone who says otherwise don’t have any evidence for their opinion.
The aqd between the Prophet and Ayesha was done when she was six years old, the aqd was between the Prophet and Abu Baqr. And there is no evidence that the Prophet maintained Ayesha before the marriage was consummated.
The absence of evidence is not evidence. So if we don't have evidence that the Prophet maintained Ayesha does not mean that he did not maintain her.
Some say that there was a three year period during which we don’t have any evidence that the Prophet maintained her after the aqd. So they say that the sunnah of the Prophet was duly recorded and three year period is a sufficient time for the evidence to be recorded that he maintained her.
So in the above case, it is not just the aqd, but some other condition, such as, she is not available to the husband.
Among the contemporary scholars, some of them are leaning towards the Hanafi view.
Definition of Nafaqa - Maintenance of the wife
The old books of Hanafi, they way they used to define, it is the continual providing upon which the life is dependent upon. It is food, clothing, and housing.
The Hanbali define it as a sufficient amount, for those who are are dependent upon, such as bread, soup or similar to soup, clothing, housing.
The Maliki define it as that which is required for normal human existence without extravagance.
Sayyid Sabbiq in Fiqh us Sunnah, defines it as providing the wife with what she needs of housing, clothing, medicine, servants, even if she was rich. It is not necessary to mention the clause, that even if she is rich, in the definition, but he might have provided it for some other reason.
Another definition, it should be something that is honorable maintenance.
Traditionally the sahaba have defined it as food, clothing, and housing.
Can the shariah define a specific minimum or limit, or should it be defined by the social standing of the two?
Scholars differ on the above question, is it just the husband’s social standing the sole and determining factor, or should the condition of both of them.
The Maliki say that you have to consider the social standing of both the husband and the wife.
Let us describe, the upper class, the lower class and the middle class. So if both the husband and wife are from the upper class, then the level of nafaqa should be according to the standard of the upper class.
If both of them are from the lower class, then the husband has to provide what he can, according to the norms of the lower class.
If the husband is from the lower class and the wife is from upper class, and vice versa. In the first case, considering both of their conditions, the husband has to provide from the level of the middle class. And the vice versa case, the woman is deserving of more than the lower class and reaching to the level of the middle class.
The level of the nafaqa is completely determined from the level of the husband regardless of the social standing of the woman. This is the majority opinion of the shafie and others.
A lower class husband might not be able to maintain his wife according to the upper class level. Can we say that the woman has to live according to the level of the lower class?
Since the woman has accepted the marriage, and she was aware of his financial condition, then it is not fair or possible for the man to maintain according to her social standing.
Allah swt says in Surah Talaq verse 7
Let the man of his means spend according to his means .........
The Shafis say the above discussion is true for everything accept housing. The housing should be the level that the woman is used to, since she is going to spend most of the time in the house, she would be put in a difficult situation, and you might put her in a condition that she is not used to.
Hadith: The Prophet told the man about the nafaqa, feed them of what you eat and clothe them according to what you can afford.
So the above hadith is evidence that the level of nafaqa should be according to the level of the husband. This is the strongest opinion.
The role of the wali is very important that he does not place the woman in a situation that she is not used to. The wali can be very open and ask questions such as are you dealing in riba, to truly determine their social standing and financial health.
Hadith: One of the first things that destroyed ... would be when the wife would burden the husband for clothing which are from the .... rich .....
He should not be extravagant nor stingy.
Hadith: Do not make you hand as if chained to your neck or extended completely such that you .... blame the soul.....
In some countries such as Bahrain, the urf is that the man has to pay a monthly stipend of $2000 to his wife. And if that is the urf and the man does not pay it, then she can demand this payment from the husband.
All of the scholars agree that food is part of the nafaqa. The main reason the scholars are discussing this topic in order to avoid disputes. Laws are written for the difficult cases and not the norm. So when there is dispute, the fuqaha speak about the food.
Shafiees say exactly what is the minimum level of food that is required. They say it depends upon his social standing, it should be two madh of barley every day if he is in the upper class, one madh if he is in the lower class, and one 1/2 madh if he is in the middle class. And he has to provide vinegar and honey......
Some translate madh as a bushel, what would a woman do with so much barley or wheat ????
Hadith: Take what is sufficient for you, your wife, your children according to the maruf.
The Shafiees made an analogy between the kafarah and the nafaqa. Some say that you cannot make an analogy between two things that are not similar.
One shafiee scholar disagreed with the above opinion, and he says the correct opinion is that it should be according to the urf.
We will discuss clothing and housing next week.
2012-12-23 Class Notes
We are discussing the details about nafaqa that the scholars have laid out, the reason why they discuss these details is in order to resolve any disputes that arise between husband and wife.
We discussed food as a component of nafaqa last time, now we will discuss clothing as a component of nafaqa.
The scholars say that husband has to provide clothing as appropriate for the season, once in the summer and once in the winter.
Historically it is not desirable that you wear the same garment every day of a season and if the husband forces this, then he puts his wife in an embarrassing situation.
There used to be a time that people had just two pairs of garments, they would wash one pair and wear the other, but things have changed a lot.
A husband should provide clothing appropriate for the season and by the norms of the society. It is an obligation on the husband to provide clothing and the amount will be determined by the culture.
In more egregious cases, a wife can go to a judge and say that her husband is not providing enough clothing according to the norms of the society (considering culture or ‘urf as well).
Allah swt tells us in Surah Talaq, verse 6 about housing women:
Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in the acceptable way; but if you are in discord, then there may breastfeed for the father another woman.
Imam Shafiee and other scholars have said, that the woman is going to spend a lot of time in the residence, and the housing was a bigger issue than clothing. Nowadays the clothing is more important to women than housing.
Housing should be appropriate for the neighborhood and the neighborhood should be ... in an area where good people live.
Choosing a proper neighborhood is an important component of nafaqa, you must look out for her needs and take care of her needs. She should feel comfortable in the neighborhood and there is somebody close by for her company, since you will be away from the house and she has to spend time while you are away. This is particularly important if the wife is not familiar with the local area or customs/culture/society (eg in cases where the wife is brought from another country).
The house should be properly furnished, it is not enough that you just provide a housing without any furnishings.
The Malikis have an important ruling about furnishing of the house, they say that the furnishing could come out of the dower of the wife. But this is not a proper ruling, since the verse clearly states that the husband should provide dwelling for the wife.
The housing should be something that a woman has complete right over and not to be shared with anybody from the husband’s family. She must have her own dwelling area that is not shared with anyone else, in particular members of the husband’s family.
A scholar (Al Kasani, an earlier famous Hanafi scholar and also a later Hanafi scholar al Shabani?) says that if the husband wants his wife to share the house with his other wives or her in-laws and relatives from the husband’s sides, and if she refuses to do do, then the husband should provide her with separate housing.
A wife has a right to her own housing which is completely separate from the housing of any member of the husband’s family.
Shafi’s, Malikis and Hanbalis agree. The Malikis differentiate between upper and lower classes; if the wife is of the upper class, she should get her own residence unless the husband make it clear in the marriage contract that they would live with her in-laws, provided that they don’t harm her. This must be made clear before the marriage contract. In the Hanafi school, if they move in and cause harm or burden her or not give her any privacy, she has the right to refuse this situation.
In the Maliki school, if she is of a lower class, she has no right to ask for a dwelling of her own. She should expect this situation and has a right to request her own dwelling space.
The scholars talk about why this is so important; the woman must have a dwelling area where she can undress and separate herself from gossip, social matters,or hear what happens between the husband and the wife etc. Privacy when it comes to marriage is very important.
The default case is that she has her own separate dwelling.
It could be the case that the custom of a certain area is that she will live with her in-laws. This is not uncommon. One of the possible reasons this developed is due to economic need. When this is the case and she is living in this kind of situation where it is understood that she will move in with her in-laws, the only thing this means is that the husband doesn’t have to state this before the marriage contract. If everyone knows this is what is done in the culture, then it doesn’t need to be stated. This does not mean that she doesn’t have the right to her own dwelling in the marriage contract.
For example, here in the US, when we say separate housing, we might be talking about an apartment or other property that is rented/leased or owned.
Living with family is not part of the urf of the US and the woman has the right to refuse this situation.
Things like preferences as to where to live, etc should be discussed beforehand (eg before the marriage contract is made or as part of the negotiation process).
In the first verse of Surat Talaq, when the woman is in their waiting period, you cannot turn them out of their living houses unless there was some leudness, etc.
O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah , your Lord. Do not turn them out of their [husbands'] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah . And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter.
Maids and servants for the wife
When we discuss the rights of the husband, we will discuss whether the wife serving the husband is the right of the husband. Right now we are discussing the rights of the wife and the provisions that the husband should provide.
All four schools of fiqh discuss this topic of providing servants for the wife. They say that if the husband is poor then he has to only provide food, clothing and housing according to his means. This is the view of Malikis, Hanbalis and Hanafis.
View of all four madhab: If the husband has financial means and the woman is not used to taking care of chores (due to her status if she if from the upper class) or if she is weak or has many children, then it is obligatory on the husband to provide maids and servants for her. This is based on the evidence .....asharahunna maroof????
The Malikis go further and say that if the husband is rich then he has to pay for two servants, one for helping around the house and another for helping with things outside of the house.
Hadith of Fatima and the Prophet did not require Ali Abu Talib to provide a servant or maid for his wife.
In many Muslim countries that there are maids and servants. And these countries such as Saudi, they are facing many problems because of the maids and servants who are from outside the country, many times they are non Muslims, the children of Saudis are brought up by the maids and servants and the children have more attachment to them compared to their parents. In many cases, the maids are treated as slaves, they are without hijab in front of their masters. Many scholars are trying to wean them away from the maids and servants, since in reality they are causing a lot of harm.
The dhahiri view on maids and servants is that under no circumstance does the woman has the right for a maid or servant, even if she is the daughter of a khalifa or the husband is the son of a khalifa. They say that there is no evidence to say that the husband has to provide for a maid or servant.
The majority view is that husband should provide according to the urf. The evidence is based on asharahunna maroof........ live with them in a good manner.
Nowadays we have technology to make life easier such as washers, dryers, dishwashers, microwaves, ovens, appliances, robotic assistants (not too far off), etc.
The wife is deserving of help in matters of the household and we do not have means to provide maids and servants, then we should provide them to the means available to us.
If the husband can take care of these for the wife then he does not have to provide maids and servants.
If the wife is ill or she has many children, the less time and energy she has for other things, and the husband and wife have to take that into consideration. No one should be overburdened, the husband should not overburdened financially and neither should the wife be overburdened by having undue demands of the household.
What about medical needs? Is the husband responsible for the medical needs of the wife?
Most of the early scholars said that it is not obligatory on the husband to provide medical needs, since in the early days that they relied on cupping, or taking a bath, or resting at home. Some scholars say that it is agreed upon that the husband does not have to provide for the medical care.
Ibn al Qayim says that the husband has to take care of his wife’s medical needs, but other things such as cupping or ijaama are not required....
Discussing some other scholar’s opinion, they give some strange analogy of rental properties (eg the tenant doesn’t have to pay for repairs to the house like if part of the house collapses).
This is a common thread throughout the four madhabs and Shaikh cannot defend it. He asks us why do you provide housing, it is to provide for her safety and care of the woman, and he says how can it be the case that the medical care has to be provided by for the father of the wife.
Shawkani says it is obligatory on the husband to provide for the medical care of the wife. Qardawi discusses the hadith of Hind .... and that it is obligatory on the husband to provide for her care, but the evidence does not make sense.
In today’s society, there is no question that medical care falls under the nafaqa and the husband has to provide for medical care of the wife.
Detergent, Perfume, Adornments
Scholars discuss detergent, perfumes, adornments when discussing nafaqa. The argument that some of them give is that since the woman has to make herself attractive to the husband and she has to pay for it. Malikis say that the husband has to pay for a hair dresser. Some say that he has to pay for kohl and henna.
These questions are raised, when the husband does not provide them for her.
If the husband loves his wife, then these questions should not arise.
A better approach would be to take care of all of the necessities which includes housing, food, clothing, medical care and in addition to the necessities, he has to provide for needs which are also defined by the urf. And beyond that there are amenities and luxuries, and he does not have to provide for them, but if he loves his wife and does not fall into israaf, then he can provide for it.
So a oven nowadays would be considered to be a need, a double oven could be an amenity. A husband should understand the requirements of nafaqa and should be beyond that, considering his financial situation.
If the woman is working then does the obligation of nafaqa change, since she has means to provide for some of her needs and it is understood that she does not have much time for the household. We will discuss this later.
Footnote: How much should be mahr for second generation Americans with middle class upbringing? It is difficult to answer this question with a specific amount. An arrangement of a specific amount up front and payments made every year would make it easy for many young people to get married. The amount should be in thousands but it is difficult to specify exactly.