By Muhammad Yunus, NewAgeIslam.com
(Joint Author),Essential Message of Islam, Amana Publications, USA, 2009.
The case of Shah Banu’s divorce (Indore, India, 1978) may not have faded from the memory of the Indian readers. In a nutshell, while divorcing her after more than 30 years of marriage, her husband gave her only the retained part of dowry and three months’ maintenance. At 62, with no job experience and declining health, she desperately needed recurring maintenance to survive and approached the court of law. Her case traveled upwards from lower to higher courts finally reaching the benches of Supreme Court (1985). It gave a verdict in her favor; the verdict also accorded with the broader Qur’anic message. In a defiant outburst that virtually shook the nation, the Muslim Ulema and masses demanded the reversal of the verdict to conform to the Muslim personal law that restricted maintenance to only the Iddat period (three months). The Indian Government was forced to raise the issue in the Parliament. It subsequently passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Supreme Court verdict was overturned in favor of the Muslim Personal Law. A brazenly un-Islamic decree that denied even utterly destitute Muslim divorcees the right to recurring alimony from their former husbands retained its antiquated rubric of Islamic Law.
There is an old saying: you cannot fool all the people all the time, and the time for the champions of antiquated Muslim Personal Law in the name of Islam is over. As a fearless and honest child can loudly proclaim the king naked, any honest and fearless seeker of truth can establish the gender prejudice of the champions of the restrictive alimony for Muslim women regardless of the attending circumstances. He can post his truthful remarks incognito from any corner of the world without any fear of bearing the wrath of the clergy or its blind supporters. With this, we turn to the Qur’an, the ultimate source of wisdom, to uncover the truth.
The Qur’an commands men to give a reasonable maintenance (mata‘) to their divorced wives:
“(There shall be) a reasonable (bi al- ma‘ruf) maintenance for divorced women - a duty (haqq) binding on the heedful (2:241). Thus does God clarify His messages to you that you may use your reason” (2:242).
The injunction is in broad terms. It does not say whether a man is required to make a one off provision to his divorced wife, or give a recurring maintenance until she remarries or expires. The duration and value of such maintenance is not specified. This is left with the court or arbitrators to decide after taking account of attending circumstances and financial factors. Thus, a man of limited means divorcing a rich wife soon after his marriage cannot be expected to bear the same level of financial responsibility as a man of means divorcing a penniless wife after a long marriage. The Qur'an, however, asks men-folk to use reason, and provides the basis for his reasoning.
The verses 2:236 and 33:49 command a man to make a provision, commensurate to his income, to a woman with whom he has only contracted marriage but not consummated it:
“There (will be) no blame on you to divorce women before you have consummated (marriage) with them, or fixed their dower (faridah), but provide for them: the rich according to his means, and the poor according to his means – a reasonable provision, a duty (haqq), binding on the compassionate” (2:236).
“You who believe, when you marry believing women and divorce them before you have consummated (marriage) with them, you do not have to count (the waiting) period for them. So make provision for them, and part with them in a handsome parting” (33:49).
The verse 2:237 asks men to be generous and give full dower to a divorced wife  even if the marriage was not consummated though the dower was fixed:
“If you divorce them before you have consummated (marriage) with them, but you have fixed their dower (faridah), then (give them) half of what you have fixed, unless they (the women) forgo it, or the one in whose (alladhi) hands is the marriage tie forgoes it. To forgo is nearer to heedfulness (taqwa), and do not forget to be generous between yourselves. (Remember,) God is Observant of what you do” (2:237)
In light of these clear exhortations to men to disburse the dower or its equivalent (if it is not fixed), at the time of wedding, retention of a part of the dower for settlement at the time of divorce dilutes the spirit of a marriage contract. Likewise, denying recurring maintenance to a penniless woman after more than 30 years of her marriage stands in sharp contrast to the spirit of generosity that a man is expected to show to his divorced wife, even if he divorced her before consummating the marriage (2:237).
But this is not all. The Qur’an spells a man’s responsibilities towards his wife under the process of divorce for the stipulated three months waiting period (iddat), and towards a pregnant wife through to the nursing period of two years:
“Accommodate them (the women in iddat) in the manner you lodge, according to your circumstances, and do not harass them to reduce them (to straits). If they are pregnant, meet their expenses until they bring forth their burden; and if they suckle (the baby) for you, give them their due, and consult together honorably. But if you find it difficult (for her health reason, or she intends to remarry), let another woman nurse (it) on behalf of him (the father) (65:6). (In all these matters) the rich should spend (according to) his abundance, but the one whose means is limited should spend of what God has given him. (Remember,) God does not burden anyone beyond what He has given him. Surely God will grant relief after distress” (65:7).
“Mothers shall nurse their children for two whole years if they wish to complete the nursing. The father (has to) provide for them, and clothe them reasonably. No soul is to be burdened beyond its capacity. A mother should not be made to suffer for her child, nor a father for his child, while the heir (is liable) likewise. If they both wish to wean the child by mutual consent and consultation - there is no blame on them; so if you wish to give your children out to wet-nurses, there is no blame on you, provided you pay what is reasonably expected from you. Heed God and know that God is Observant of what you do” (2:233).
If the Qur’anic scheme were to limit the responsibilities of a man to the iddat period (three months), and for a pregnant wife for up to two years after the delivery regardless of the divorced woman’s circumstances, there was practically no need for the Qur’an to pronounce yet another decree making it binding (haqqan) for the heedful to arrange a reasonable provision for a divorced woman (2:241 above). This demonstrates the Qur’an’s profound concern for a divorced woman. The verse 4:20 reflects this concern substantively by forbidding a man to withhold any gift he gave his wife during their conjugal life, while divorcing her:
“If you want to take one wife in place of another wife, and you had given the one of them (you are divorcing) a fortune - do not take anything away from it. Would you take it by slander (committing) an open sin” (4:20)?
Conclusion: The Qur’an commands a man divorcing his wife to i) lodge and maintain her in the way he lives during the three month waiting period (iddat) for the divorce to become irrevocable (65:6), ii) bear the expenses for the delivery of a child from a pregnant divorced wife and their expenses for two years (65:6, 2:233), iii) provide for a reasonable maintenance (mata‘) – a generic instruction contingent to what the intellect (‘aql) demands (2:242), iv) give a reasonable compensation if he breaks marriage even before touching his wife or fixing the dowry (2:236, 33:49), v) give at least half or preferably the full extent of the contracted dowry even if he breaks the marriage before consummating it and vi) not to retain any valuable gift he might have given her during their married life. Taken together, any suggestion to freeze the maintenance of a non-pregnant divorced woman - regardless of the length of marriage and her health and financial conditions stands grossly and shamefully un-Islamic and must be corrected to avoid gross injustices to the divorced Muslim women.
The Classical Islamic Law to which the Indian Muslim Ulama are unflaggingly clinging only represents the opinions of the scholars of the medieval era that were inevitably informed by the historical realities of the times that saw, among other things, an undiluted form of patriarch verging on misogyny. No doubt, in that era, the deal offered to women by the Classical Islamic Law was far better than what their counter-parts got in the non-Muslim civilizations, and the Muslims can be rightly proud about it. However, with a major paradigm shift in gender dynamics in recent times, the ‘Islamic-Law’ package falls considerably short of what non-Muslim women get in their respective civilizations. Since the Qur’an stands on their (the women’s) side as the listed and other verses on women’s empowerment clearly demonstrate, the Muslim jurists must act without delay to revise their laws in line with the message of the Qur’an and not the opinions of its medieval interpreters, unless of course they want to protect and preserve their patriarchic interest and licenses and project themselves, in the eyes of the Western world, as the agents of the demon as some of their spokesmen are clamoring these days.
 The verse may be broken down into the following simple tenets:
• If a man initiates a divorce, he has to pay half the dower to the woman, unless she forgoes it.
• If a woman breaks the marriage from her side, she has to forgo her claim on half the dower that she would have received if the man divorced her.
• A man, who gives a divorce, has the option to forgo the exempted ‘half' part, and give full contracted dower as a gesture of generosity (fadl).
• Both the partners of a divorce should be generous to each other, and refrain from exploiting one another.
Muhammad Yens, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Zahra al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khalid About El Fad of UCLA, and published by Amana Publications, Maryland, USA, 2009.
"Quranic principles should apply in the formulation of our laws, namely equality, justice, fairness and human dignity." Does this mean the other religious text does not have the same? If this is available in abundance why there is so much sectarian violence on the basis of sect in Islam?
I appreciate this commendable article. No wonder, genuine efforts of Muslim intelligentsia in providing such research based Islamic articles will succeed in formulating a solid system acceptable to all.
Apex Court has also given various rulings in this regard in connection with the maintenance of divorced Muslim women. I mention one of them. It begs your attention. The Muslim Women (Protection of Rights on Divorce) Act, 1986
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to- (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to before or after he divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective date of birth of such children; (c) an amount equal to the sume of mahr or dower agreed to be paid to her at the time or her marriage or at any time thereafter according to Muslim Law; and (d) all the properties given to her before or at the time or marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fiar provision and maintenance or the amount of Maher or dower due had not been made or apid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, Maher or dower or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that- (a) her husband having sufficient means, has failed or neglected to make or pay her within the Iddat period a reasonable and fair provisions and maintenance for her and the children; or (b) the amount equal to the sum of Maher or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such Maher or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.
(4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or Maher or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.
Reality is the Supreme Court judgment was annulled by constitutional amendment and sown the seed of Hindu fundamentalism by Islamic fundamentalism.
Even today no Muslim body has the moral guts to seek the government to make amendments to provide equal right to woman on succession or alimony.