What does the Muslim Law say about post-divorce Compensation for disadvantaged women

Recently in a landmark ruling, Beijing Fangshan District Court has ordered a man to pay a compensation of 50,000 Yuan to his wife for five years of unpaid labour, for the housework she did during their marriage. The ruling was a result of a new civil code in China, which entitles people to seek compensation in a divorce if they bear more responsibility in child raising and other household chores. 

The decision was based on the fact that the wife was reluctant to divorce, but later requested financial compensation, arguing that her husband had not partnered in any housework or childcare responsibilities of their son. The presiding judge opined that the housework constitutes intangible property value. 

The judgment brings into attention the need to provide protection to women who are from disadvantaged educational and economic backgrounds. The idea of compensating the spouse for her continued loyalty and contribution in the family, who is later subjected to arbitrary divorce, is in consonance with the ideas of equity and morality. 

At present Muslim divorce laws in Bangladesh allow husbands to pronounce divorce unilaterally. It becomes difficult for a woman to survive financially and socially after divorce in Bangladesh. Compensation resembling the one given by the Chinese court can be provided to disadvantaged women in Bangladesh to ameliorate their situation after divorce. 

Traditionally, there is no concept of post-divorce maintenance in Islam. According to Muslim law, the wife is entitled to unpaid dower and maintenance till iddat period on the occasion of divorce. The Commission on Marriage and Family Laws of Pakistan, 1956 proposed that an arbitrarily or unjustly divorced wife should be given maintenance till her death or re-marriage. 

However, this proposition was not incorporated in the Muslim Family Law Ordinance (hereafter referred to as MFLO), 1961, considering that it might be unjust towards the rights of the man's present wife and raise questions on the chastity of the divorced woman. Even in the 50th year of our independence, this proposition has not made its way in the statutes of Bangladesh. Although, Section 9 of MFLO, 1961 sets forth the legal remedy accessible to a woman to recover maintenance from her husband during the continuation of marriage, the Ordinance regrettably remains silent on post-divorce maintenance. 

Even if the post-divorce maintenance is deemed as an 'un-Islamic' concept, there are substitutive remedies in the form of compensation available in Islam. The Islamic principle of mata'a (parting gift) to a divorced wife, an alternate instrument for protecting poor and destitute women, has often gone ignored. The mention of mata'a can be found in verse 236 and 240 of Sura Al Baqarah and verse 49 of Surah Al Ahzab. The appropriate translation of the word 'Mata'a' is "a suitable gift."  

According to the Hanafi jurists, the concept of mata'a or a parting gift is obligatory only when the wife has been divorced before consummation in circumstances where no mahr has been set. Still, it is not contrary to the tenants of Muslim law for the husband to bestow a parting gift to his divorced wife in other cases. 

Other Sunni schools and the Shias regard mata'a as obligatory for husbands in every case of talaq, in addition to mahr. As per the verses of Sura Al Al Baqarah, many scholars hold that mataa is obligatory in all cases of divorce. 

In Hefzur Rahman vs. Shamsun Nahar Begum case, an attempt was made to equate mata'a with maintenance. But the Appellate Division found it faulty. Nevertheless, the concept of mata'a in Islam is well established. According to hadiths, Prophet Muhammad (SM) himself divorced one of his wives with a parting gift and directed others to do the same, even if they didn't have any means.

Post-divorce maintenance or Mata'a has been the subject of legislation in the family laws of many countries. The Indian Supreme Court in Shah Bano vs. Mohd Ahmad Khan and Daniyal Latifi vs. Union of India, reinterpreted the Quranic verses and resorted to Islam's egalitarian ethics to save women from the clutches of destitution. In India Section 3 (1) (a) and 4 (1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, state that husband has to provide reasonable and fair maintenance to the wife during the period of iddat. Afterward, if the woman is unable to look after herself, she can seek maintenance from her relatives, and on their inability to do so, she can resort to the Wakf Board. 

In Bangladesh, there is no provision of post-divorce maintenance for women in Pakistan beyond the period of iddat. In 2004, the court granted maintenance surpassing the iddat period on the reason of breast feeding the suckling baby in Muhammad Aslam vs. Muhammad Usman.  In Qatar, pursuant to Section 115 of the Family Reform Code, 2005, post-divorce maintenance can be provided to a woman for three years. 

Under the Civil Code of Iran, a husband is obligated to compensate his wife for three years provided she is not responsible for the divorce. The Civil Code amendment, 1992 of Iran, empowers women to claim compensation from their husbands for the household chores after divorce. 

The Islamic Family Law (Federal Territory) Act 1984 of Malaysia entrenches that the Shariah court, on the satisfaction that a woman has been unjustly divorced can order the husband to pay her post-divorce maintenance. 

In Syria, mata'a is granted in lump sum or in installments depending on the husband's financial condition for up to 3 years. In Tunisia and Turkey, courts can even order the wife to pay mata'a, if she insists on divorce against the husband's wishes and without his fault. 

The institution of mata'a has been promoted as an instrument of protection for women who have been divorced for no fault of their own, are no longer of marriageable age, and whose economic and educational backgrounds make them dependent on others for survival.

In Hefzur Rahman vs. Shamsun Nahar Begum, an alternate remedy of granting mata'a was rejected because it was a gift and hence cannot be judicially enforced. The Appellate Division was of the opinion that it was an established ijma and thus should not be broken. Instead, the court saw that destitute women could be protected through the maintenance from their other relations and, alternatively, from the state. 

But the realisation of mata'a from the husband as compensation is more realistic. And there are enough opinions in favour of the view that mata'a can be recovered in a court of law, as a legal due. The Supreme Court of Pakistan in Mst Khurshid Bibi vs Mohd Amin opined that judges can reinterpret Islamic law in light of present-day situations and that they could depart from the ancient jurists if the views of the jurists conflict with the Quran and the Sunnah. 

The enforcement of mata'a is not even against the opinion of jurists per se and goes in flow with the essence of the Holy Quran and Sunnah, which gives great importance to the needs of a divorced woman. Using Mata'a to help the poor and needy women is in accordance with the ideas of justice, tolerance, and compassion preached by the Holy Quran. 

As a substitute for post-divorce maintenance till death or remarriage, which has no grounds in Islam, opting for mata'a is an established practice in Muslim majority countries. It is more rational and "Islam-approved." 

Instead of keeping the wife bound with the previous husband, protection can be provided to the disadvantaged women through one time payment of mata'a. It is also just towards the husband, as it allows them to move from a failed marriage. 

Therefore, whether paid as a compensation for housework or as a compensation for arbitrary divorce, it is incumbent that the court provides protection to destitute women, on a case by case basis. Mata'a could well prove to be an instrument to provide justice to spouses, particularly wife, who put effort in their marriages but are left in a dire state.

Arafat Ibnul Bashar and Suriya Tarannum Susan are students of the Department of Law at the University of Chattagram.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.