SIASAH SYARIYYAH LECTURE 5

MAINTENANCE (NAFAQAH) AND ISSUES RELATING TO SS.

1) Disentitlement of nafqah for working wife if the husband disallow.

According to Hanbalis and Malikis one of the reason why the wife is entitled to maintenance is the ability of her being consummated. Wife who refuses to have consummation is considered as nusyuz, therefore could be deprived her right to maintenance due to her inability or refusal to it. The husband has lost his absolute power (tamkin) over his wife.

Cont
The issue now is whether the wife who went out for work is considered nusyuz that will deprives her right to maintenance? The majority of jurists agreed that a working wife if happens that her husband disallow and disagree with her choice, and insist his wife to give up her profession, her refusal is tantamount to nusyuz and would consequently deny her from maintenance. The same applies to the case where the husband at first agrees but later on change mind and ask her to stop working but to no avail. The reason being the husband whose wife works will loss half of his time with the wife thus not in total control of her which is one of the requirement of nafqah.

Opinion of Muslim jurists

Hanafi: If the husband disagrees and disallows her from working but she continues with her work, her right of nafaqah would be dropped. Maliki: One of the requirement for nafaqah is the wife must not be nusyuz. Syafii: Nafaqah is compulsory and it remains as it is as long as the husband has full control of his wife where she is always ready for him at any time. Being unable to give enjoyment and pleasure to her husband would cancel her nafqah. Hanbali: If the wife went out from the marital house without his permission, there will be no nafqah for her.

Cont
From the above views, it is clear that a working woman will get nothing from her husband in term of nafaqah if she continues working while her husband kept insisting her to give up the job. Dr. Fath Amr have questioned these views of the fuqaha whether they are relevance to our current life and urf thus changeable according to different needs. This is because womans contribution in various fields like education, health, etc is so essential. Moreover, woman of our time were bound by an agreement with their sponsors to work for certain agreed time failing which would resulting in paying huge amount of money as a penalty for breach of contract. This would put them in a difficult situation.

Cont
If a judge encounters this kind of issue, is he oblige to follow the views of fuqaha in saying that the wife refusal to quit their profession in such situation like that is tantamount to nusyuz or they have to give another consideration which is more practical and closer to realization of justice and suitable to a changing needs and life. Dr Fath Amru chose the view of Ibn Nujaim of the Hanafi madhhab which defends the right of woman who had some legal responsibilities and duties to be fulfilled, to work and go out with or without permission and this is not considered as nusyuz.

Cont
According to him this is the view that must be followed by the court because marrying someone with profession while he knew it from the outset, indicates his agreement to accept losing total control of his wife. This is determines by the custom or urf and specifying the nass by the urf is similar to issue of istisna which permission was based on urf.

Siasah Syariyyah in this issue.

If a man marries a working woman, and he accepts it from the beginning and after marriage he had benefited from the income, this is a sign of his acceptance to give up some of his rights. There is no disagreement between fuqaha and Qada in this situation. However, after the marriage, if the husband asks his wife to give up her job but she refuses to do so, this is considered nusyuz that will take away her right of maintenance. Dr Fatah Amru differs with the opinion of jurists because according to him, it is not the right of husband who had given his agreement before the marriage to retract it with or without reason. If this happen it is not considered as nusyuz that will deny her right to maintenance provided that the wifes could be exempted from the general ruling due to unavoidable situation and her work is so indispensable.

Cont
This ruling is based on SS because Shariah is indifferent in this issue whether this would disentitle her from nafqah or not. The fuqaha only regard it as nusyuz according to urf of their time where a woman didnt required to work and could only dependant on husband income. Giving full obedience to husband is wajib and this cannot be abandoned for something that is not darurah. But if there is a darurah or if the urf permit her to work, she is exempted from the prohibition. Looking to our modern culture and custom that is changing in term of woman education and their contribution to the various industries, it is clear that woman cannot be prevented from working in order to gain income or to fulfill their responsibilities.

Cont
The husband if agree and never put condition or ask her to quit before the marriage, this agreement indicates that he accept the fact that he will lose his absolute control of her even though this was not clearly mentioned in the aqd but in this case the urf that determines the hukm. al-Maruf urfan kal masyrut syartan. According to Dr Fath Amru the best way is to take middle stance between the fuqaha and the court. The first would lead to injustice, and the second will infringe the ruling of Shariah and siasah syariyyah.

Cont
Based on SS the working wife is not considered nusyuz if she continues to work as she did before marriage and she had an excuse to do so such as if there is a general or specific darurah or needs (hajah). But if she work without valid excuses or according to her own wishes, the court who will decides whether she is nusyus or not depending on whether there are excuses for her or not. This guideline is in accordance with SS based on darurah and changing custom.

2) Altering the amount of nafqah six month after the order.

The amount of nafqah is not specified by the syara according to the majority except the Shafiis. This is due to the fact that needs and life are different from time to time. In some countries the custom and need could be vary. They might have meals twice or thrice or fourth time in a day. The amount of nafaqah is therefore different according to the what is sufficient and suitable (maaruf) to them. In the event where there is a need to increase the amount of nafaqah due to changing prices of foodstuff etc., is it possible to the wife asking the court to amend the amount granted before.

SS in this issue
Fatawa Hindiyyah allows the amount of nafaqah to be amended whether to increase or to decrease it in the event where after fixing the amount, the market prices suddenly goes up or down. The issue now is not only the amendment itself, but the period of time that is specified by the law i.e. 6 month in which no amendment could be made after the order. This is to avoid the court to hear the claim repeatedly within short period of time. This is done on the basis of maslahah and SS. Even this period is still changeable if the ruler sees any needs for such longer or shorter period.

THE END