Fatwa ID: 01383
Answered by Mufti Mohammed Tosir Miah
1. The Nafaqah of the Mutallaqah during Iddah: What constitutes Nafaqah? How will this be calculated?
2. Islamically, can ex-wife make any other financial claim besides Sukna and Nafqah?
3. A father is required to pay Nafaqah for his child after divorce; however what exactly constitutes Nafaqah of the child? (food, clothes, etc.) Please specify all items with Hanafi references.
4. From an Islamic point of view, till what age is the father required to provide Nafaqah for his son?
5. After Iddah, the responsibility of the Sukna and Nafaqah of the female (ex-wife) reverts back to the female’s father (where he is alive). As the child is under two years old, the mother has the right of custody. If you have stated above that the Nafaqah of the child includes accommodation then in real life terms how would this work if the ex-wife’s father is providing accommodation for his daughter (the ex-wife) yet the ex-husband is to also provide accommodation for the child when they are living together?
6. From where will the Child benefit be met? If the child owns money, will the nafqah be met from his money?
7. According to Fataawa Rahimiyyah if the child is Ghani the Nafaqah of the child will be paid for from the child’s money. Does this include the child benefit that has been saved for the child? i.e. if the father has some of the child benefit saved up can he give the child benefit savings to the child or the child’s mother as Nafaqah for the child? 8. Does child benefit count towards the Nafaqah of the child when the father is a tax payer? (paying in excess of £500 a month) i.e. if the mother is receiving the child benefit can the father deduct the amount of the child benefit from the Nafaqah as he is paying tax from which the child benefit is being paid.
9. If the child benefit has been saved by the father in an account on his name (and he has also been spending on the child from one of his two accounts) can this money be used by the father to spend as Nafaqah on the child after divorce? If it can be used prior to divorce can or cannot it be used by the father after divorce?
10. If the answer to question 9 is negative – If the Ex-Husband has an account on his name in which the child benefit is deposited and from one of two accounts (both on his name) he spends on the child how will it be calculated how much has been used prior to the divorce. The child eats regular food hence his expenses fall within the general shopping expenses and are not separate.
11. What is the Islamic position on custody of boys?
12. If the mother refuses to transfer custody of the child at the age of seven, is the father liable to continue providing Nafaqah to the mother for the child?
In the name of Allah, the most Beneficent, the most Merciful.
In the Holy Qur’an Allah has said:
“And if they are pregnant, spend on them till they give birth to their child…” (Surah Talaq v.6)
According to Imam Abu Hanifa nafqah or maintenance is obligatory on the husband if the:
- Divorcee is pregnant
- If a woman has been given a revocable divorce
- If a woman has been given three talaqs or an irrevocable divorce. (Maariful Qur’an p.510 v.8 & Raddul Muhtar p.333 v.5)
The word Nafqah includes shelter, food, clothes and in this day and age the paying of all the bills. The Shariah dictates that the wife has an irrevocable right to the following three things;
1. Food must be sufficient for her.
2. Clothing – she must have a least two full sets of clothes.
3. Housing- she must at least have a room, which ensures her privacy.
(Al- Ikhtiyar p.229 v.4 & Raddul Muhtar p.278 v.5)
Regarding the nafqah Allah says:
“A man of vast means should spend according to his vast means. And anyone whose sustenance is limited should spend from whatever Allah has given to him.” (Surah Talaq v.7)
If both the husband and wife are rich, then the wife will receive the nafqah of rich people. If they both are poor, she will receive that of the poor. If the husband is poor and the wife is from a rich family or vice versa…then according to the mufta bihi opinion, the wife will receive maintenance that is of an average quality.” (Raddul Muhtar p.284 v.5)
The cause for nafqah to be obligatory is based on “restriction of one’s subordinates”, i.e. if someone is being restricted in order to fulfil another’s rights, their maintenance is obligatory upon the one who is restraining. (Bahrur Raaiq p.188 v.4)
Therefore, the conclusion we can come to is that the wife cannot make any other financial claims besides the nafqah. (Aapke Masaail p.425 v.5)
Nafqah includes shelter, food and clothes. (Al- Ikhtiyar p.229 v.4 & Raddul Muhtar p.278 v.5)
Nafqah is obligatory on the son until he reaches the age of puberty. However, if the mature son has some disabilities which stops him from earning a living himself or a mature son is seeking knowledge and he has no source of income, then it will still be obligatory on the father to financially maintain him. (Ahsanul Fatawa p.463 v.5)
You are still be obliged to make a contribution to the living costs of your son in terms of the rent, bills etc… even though the accommodation or the itself shelter may have been provided by your ex wife’s father.
If the child has money, the nafqah first of all will be met from his money and thereafter by the father. (Fatawa Rahimiyah p.451 v.8)
Child benefit is given to the parents or guardian for the child. Thus, it can be given as nafqah to the child.
Yes, you will be allowed to deduct the amount of the child benefit from the nafqah.
It is permissible to use the child benefit of one’s son as long as one is not bein wasteful or extravagant with it.
Saaiduna Abdullah Ibn Amr narrates that a man came to the Prophet of Allah and said: “I am poor, I do not have anything, and I have an orphan (under my care).” He said: “Eat from the wealth of your orphan, without being extravagant or wasteful or using it for trade.” (Sunan Abu Dawuud, Sunan Nasai and Sunan Ibn Majah)
Regarding this question, it will be permissible to use the child benefit which you have saved as nafqah after the divorce.
The mother has a right of custody for a boy until the child is capable of taking physical care of himself, for instance the child should be able to feed himself and go to the toilet by himself etc…This is approximately at seven years old, and the fatwa has been issued on this age. In case of a girl, the mother has custody for her until she has reached the age of puberty, which has been declared at nine years old. (Raddul-Muhtar p.252-265 v.5, Ahsanul Fatwa p458-459v.5)
It should also be borne in mind that the boy remains in his father’s custody until puberty, at which point he has a choice to whom he wants to live with or perhaps he may wish to live by himself. The girl on the other hand will remain with the father until she gets married. (Fatawa Hindiyyah p542 v.1)
Nafqah will be obligatory for the son until he reaches the age of puberty. (Ahsanul Fatawa p.463 v.5) The wife however, would be sinful for her actions.
Allah in the Holy Qur’an has said,
“As for those who disobey Allah and His Messenger and transgress His limits, we will admit them into a Fire, remaining in it timelessly, forever. They will have a humiliating punishment.” (Surah Nisa v.14)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham