What rights does a divorce wife have

CategoriesDivorce [570]

Fatwa ID: 01700

Answered by Molana Ishaaq Hussain

Question:

Assalamu Alikum Waramatullah  please guide me how will following things be treated after I divorce my wife
A. Mehar Which stands already paid
B. Gold ornaments given by me to my wife at the time of marriage as Jaidad/Thaan.
C. Iddat period for which payment is to be made.
D. Gifts given to me by my wife & her relatives at the time of  marriage.
E. Any other dues if any to be paid to my wife. F. If both parties mutually agree to take their own gift items instead of other is it permissible as per Islam.

 Answer:

Bismillah

 The mahr is one of the rights of the wife and the husband gives it at the time of the marriage ceremony.

Allah subḥānahu wa ta'āla (glorified and exalted be He) in the Holy Quran has said “And give the women their dower in good cheer”.  (Surah Nisaa v.4)

Mahr is obligatory.  Allah subḥānahu wa ta'āla (glorified and exalted be He) has used the word “faridah” for it.  It means something is fixed, decided and obligatory.  It is compulsory for the husband to pay for the mahr unless the wife by her own will and without any pressure forgives the husband in paying for it.    (Mazahirul Haqq p.104 v.4)

If a husband dies without paying the mahr to his wife, it will be considered an outstanding debt and will be taken out of his inheritance.  (Fatawa Darul Uloom Deoband p.336 v.8)

If a man stipulated a certain amount of mahr, thereafter the woman came and lived with him. He also had sexual intercourse with this wife of his, or he did not have intercourse with her, but he and his wife were able to meet in privacy where no one or nothing has prevented the from engaging in sexual intercourse. In both of these cases, it will be wajib on the person to fulfil the full amount of the stipulated mahr. If one of the above did not occur between them, and one of them passed away, it will still be Wajib to fulfil the entire Mahr.

However, if none of the above occurred, and the man divorced her, it will be Wajib on him to fulfil half the stipulated mahr. (Fatawah Hindiyyah p 240 v 2, Baheshti Zewar p 416)

In  Islam it is a  major sin to take back something that you have given. If a person takes back something that he has given and the person gives it willingly, then the person who had originally given the item will once again become the owner. (Baheshti Zewar p 548)

However a gift given to a blood relative who cannot be married or to a spouse cannot be claimed back. (Mukhtasar Qudoori p 132)

From the above we understand the gifts which was given to you at the time of marriage and the gold you gave to your wife will all come under the category of Hiba/gifts.

Therefore, if you wanted to claim it back, then it would be impermissible for you to do so. (Fatawah Hindiyyah p 138 v 5).

According to Imam Abu Hanifa   nafqah or maintenance is obligatory on the husband if the:

  1. Divorcee is pregnant
  2. If a woman has been given a revocable divorce
  3. 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 at 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)

Only Allah Knows Best

Written by Molana Ishaaq Hussain

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham.

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