SIASAH SYAR’IYYAH – LECTURE 5[1]

7/28/2019 SIASAH SYARIYYAH LECTURE 5[1]

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SIASAH SYARIYYAH

LECTURE 5

MAINTENANCE (NAFAQAH) AND ISSUESRELATING TO SS.


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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 tomaintenance is the ability of her beingconsummated. Wife who refuses to haveconsummation is considered as nusyuz,

therefore could be deprived her right tomaintenance due to her inability or refusalto it. The husband has lost his absolutepower (tamkin) over his wife.


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ContThe issue now is whether the wife who went out

for work is considered nusyuz that will deprivesher right to maintenance? The majority of juristsagreed that a working wife if happens that herhusband disallow and disagree with her choice,and insist his wife to give up her profession, her

refusal is tantamount to nusyuz and wouldconsequently deny her from maintenance. Thesame applies to the case where the husband atfirst agrees but later on change mind and ask herto stop working but to no avail.

The reason being the husband whose wife workswill loss half of his time with the wife thus not intotal control of her which is one of therequirement of nafqah.


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Opinion of Muslim jurists

Hanafi: If the husband disagrees and disallows herfrom working but she continues with her work, herright 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 isas long as the husband has full control of his wifewhere she is always ready for him at any time. Beingunable to give enjoyment and pleasure to her husbandwould cancel her nafqah.

Hanbali: If the wife went out from the marital housewithout his permission, there will be no nafqah forher.


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Cont

From the above views, it is clear that aworking woman will get nothing from herhusband in term of nafaqah if she continuesworking while her husband kept insisting herto give up the job.Dr. Fath Amr have questioned these views of

the fuqaha whether they are relevance to ourcurrent life and urf thus changeableaccording to different needs. This is becausewomans contribution in various fields likeeducation, health, etc is so essential.

Moreover, woman of our time were bound byan agreement with their sponsors to work forcertain agreed time failing which wouldresulting in paying huge amount of money as

a penalty for breach of contract. This wouldput them in a difficult situation.


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ContIf a judge encounters this kind of issue, is he

oblige to follow the views of fuqaha in sayingthat the wife refusal to quit their profession insuch situation like that is tantamount to nusyuzor they have to give another consideration

which is more practical and closer to realizationof justice and suitable to a changing needs andlife.

Dr Fath Amru chose the view of Ibn Nujaim of

the Hanafi madhhab which defends the right ofwoman who had some legal responsibilities andduties to be fulfilled, to work and go out with orwithout permission and this is not consideredas nusyuz.


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Cont

According to him this is the view thatmust be followed by the court becausemarrying someone with profession whilehe knew it from the outset, indicates hisagreement to accept losing total controlof his wife. This is determines by thecustom or urf and specifying the nass by

the urf is similar to issue of istisna whichpermission was based on urf.


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Siasah Syariyyah in this issue.If a man marries a working woman, and he accepts itfrom the beginning and after marriage he hadbenefited from the income, this is a sign of hisacceptance to give up some of his rights. There is nodisagreement between fuqaha and Qada in this

situation.However, after the marriage, if the husband asks hiswife to give up her job but she refuses to do so, this isconsidered nusyuz that will take away her right ofmaintenance. Dr Fatah Amru differs with the opinion of

jurists because according to him, it is not the right ofhusband who had given his agreement before themarriage to retract it with or without reason. If thishappen it is not considered as nusyuz that will deny herright to maintenance provided that the wifes could beexempted from the general ruling due to unavoidable

situation and her work is so indispensable.


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Cont

This ruling is based on SS because Shariah is

indifferent in this issue whether this would disentitleher from nafqah or not. The fuqaha only regard it asnusyuz according to urf of their time where a womandidnt required to work and could only dependant onhusband income. Giving full obedience to husband is

wajib and this cannot be abandoned for something thatis not darurah.

But if there is a darurah or if the urf permit her towork, she is exempted from the prohibition.

Looking to our modern culture and custom that is

changing in term of woman education and theircontribution to the various industries, it is clear thatwoman cannot be prevented from working in order togain income or to fulfill their responsibilities.


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Cont

The husband if agree and never put condition

or ask her to quit before the marriage, thisagreement indicates that he accept the factthat he will lose his absolute control of her eventhough this was not clearly mentioned in the

aqd but in this case the urf that determinesthe hukm. al-Maruf urfan kal masyrutsyartan.

According to Dr Fath Amru the best way is totake middle stance between the fuqaha andthe court. The first would lead to injustice, andthe second will infringe the ruling of Shariah

and siasah syariyyah.


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ContBased on SS the working wife is not

considered nusyuz if she continues to work asshe did before marriage and she had anexcuse to do so such as if there is a general orspecific darurah or needs (hajah).

But if she work without valid excuses oraccording to her own wishes, the court whowill decides whether she is nusyus or notdepending on whether there are excuses forher or not. This guideline is in accordance withSS based on darurah and changing custom.

2) Alt i th t f f h i th ft


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2) Altering the amount of nafqah six month after

the order.

The amount of nafqah is not specified by thesyara according to the majority except theShafiis. This is due to the fact that needs andlife are different from time to time. In some

countries the custom and need could be vary.They might have meals twice or thrice or fourthtime in a day.The amount of nafaqah is therefore differentaccording to the what is sufficient and suitable(maaruf) to them. In the event where there isa need to increase the amount of nafaqah dueto changing prices of foodstuff etc., is itpossible to the wife asking the court to amend

the amount granted before.


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SS in this issue

Fatawa Hindiyyah allows the amount ofnafaqah to be amended whether to increaseor to decrease it in the event where afterfixing the amount, the market prices suddenly

goes up or down.The issue now is not only the amendmentitself, but the period of time that is specifiedby 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 claimrepeatedly within short period of time. This isdone on the basis of maslahah and SS. Eventhis period is still changeable if the ruler sees

any needs for such longer or shorter period.


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THE END

SIASAH SYAR’IYYAH – LECTURE 5[1]

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