Tafsir

The Divorced Woman has the Right to Decent Accommodations, and what is Reasonable

Allah the Exalted orders His faithful servants that when one of them divorces his wife, he should provide housing for her until the end of her `Iddah period,أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم(Lodge them where you dwell,) means, with you,مِّن وُجْدِكُمْ(according to what you have,) Ibn `Abbas, Mujahid and several others said, it refers to "Your ability." Qatadah said, "If you can only afford to accommodate her in a corner of your house, then do so."Forbidding Ill-Treatment of Divorced Women

Allah's statement,وَلاَ تُضَآرُّوهُنَّ لِتُضَيِّقُواْ عَلَيْهِنَّ(and do not harm them in order to suppress them.) Muqatil bin Hayyan said, "meaning, do not annoy her to force her to pay her way out nor expel her from your house." Ath-Thawri said from Mansur, from Abu Ad-Duha:وَلاَ تُضَآرُّوهُنَّ لِتُضَيِّقُواْ عَلَيْهِنَّ(and do not harm them in order to suppress them) "He divorces her, and when a few days remain, he takes her back."The Irrevocable Divorced Pregnant Woman has the Right of Support (Maintenance) from Her Husband until She gives Birth

Allah said,وَإِن كُنَّ أُوْلَـتِ حَمْلٍ فَأَنفِقُواْ عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ(And if they are pregnant, then spend on them till they lay down their burden.) This is about the woman who is irrevocably divorced. If she is pregnant, then she is to be spent on her until she lays down her burden. This is supported due to the fact that if she is revocably divorced, the she has then right to receive her support (maintenance) whether she is pregnant or not.

The Divorced Mother may take Compensation for suckling Her Child

Allah said,فَإِنْ أَرْضَعْنَ لَكُمْ(Then if they suckle them for you,) meaning, when pregnant women give birth and they are irrevocably divorced by the expiration of the `Iddah, then at that time they may either suckle the child or not. But that is only after she nourishes him with the milk, that is the early on milk which the infant's well-being depends upon. Then, if she suckles, she has the right to compensation for it. She is allowed to enter into a contract with the father or his representative in return for whatever payment they agree to.

This is why Allah the Exalted said,فَإِنْ أَرْضَعْنَ لَكُمْ فَـَاتُوهُنَّ أُجُورَهُنَّ(Then if they suckle the children for you, give them their due payment,) Allah said,وَأْتَمِرُواْ بَيْنَكُمْ بِمَعْرُوفٍ(and let each of you deal with each other in a mannerly way.) meaning, the affairs of the divorced couple should be managed in a just way without causing harm to either one of them, just as Allah the Exalted said in Surat Al-Baqarah,لاَ تُضَآرَّ وَلِدَةٌ بِوَلَدِهَا وَلاَ مَوْلُودٌ لَّهُ بِوَلَدِهِ(No mother shall be treated unfairly on account of her child, nor father on account of child.) (2:233) Allah said,وَإِن تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُ أُخْرَى(But if you make difficulties for one another, then some other woman may suckle for him.) meaning, if the divorced couple disagrees, because the woman asks for an unreasonable fee for suckling their child, and the father refuses to pay the amount or offers an unreasonable amount, he may find another woman to suckle his child.

If the mother agrees to accept the amount that was to be paid to the woman who agreed to suckle the child, then she has more right to suckle her own child. Allah's statement,لِيُنفِقْ ذُو سَعَةٍ مِّن سَعَتِهِ(Let the rich man spend according to his means;) means, the wealthy father or his representative should spend on the child according to his means,وَمَن قُدِرَ عَلَيْهِ رِزْقُهُ فَلْيُنفِقْ مِمَّآ ءَاتَاهُ اللَّهُ لاَ يُكَلِّفُ اللَّهُ نَفْساً إِلاَّ مَآ ءَاتَاهَا(and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him.) This is as Allah said,لاَ يُكَلِّفُ اللَّهُ نَفْسًا إِلاَّ وُسْعَهَا(Allah does not burden a person beyond what He can bear.) 2:286A Story of a Woman who had Taqwa

Allah's statement;سَيَجْعَلُ اللَّهُ بَعْدَ عُسْرٍ يُسْراً(Allah will grant after hardship, ease.) This is a sure promise from Him, and indeed, Allah's promises are true and He never breaks them, This is an Allah's saying;فَإِنَّ مَعَ الْعُسْرِ يُسْراً - إِنَّ مَعَ الْعُسْرِ يُسْراً(Verily, along with every hardship is relief. Verily, along with every hardship is relief.) 94:5-6 There is a relevant Hadith that we should mention here. Imam Ahmad recorded that Abu Hurayrah said, "A man and his wife from an earlier generation were poor. Once when the man came back from a journey, he went to his wife saying to her, while feeling hunger and fatigued, `Do you have anything to eat' She said, `Yes, receive the good news of Allah's provisions.' He again said to her, `If you have anything to eat, bring it to me.' She said, `Wait a little longer.' She was awaiting Allah's mercy. When the matter was prolonged, he said to her, `Get up and bring me whatever you have to eat, because I am real hungry and fatigued.' She said, `I will.

Soon I will open the oven's cover, so do not be hasty.' When he was busy and refrained from insisting for a while, she said to herself, `I should look in my oven.' So she got up and looked in her oven and found it full of the meat of a lamb, and her mortar and pestle was full of seed grains; it was crushing the seeds on its own. So, she took out what was in the mortar and pestle, after shaking it to remove everything from inside, and also took the meat out that she found in the oven." Abu Hurayrah added, "By He in Whose Hand is the life of Abu Al-Qasim (Prophet Muhammad ﷺ )! This is the same statement that Muhammad ﷺ said,«لَوْ أَخَذَتْ مَا فِي رَحْيَيْهَا وَلَمْ تَنْفُضْهَا (لَطَحَنَتْهَا) إِلى يَوْمِ الْقِيَامَة»(Had she taken out what was in her mortar and not emptied it fully by shaking it, it would have continued crushing the seeds until the Day of Resurrection.)"

The next verses deal with further rules about the waiting period and maintenance of the divorced women and their other rights.أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم مِّن وُجْدِكُمْ وَلَا تُضَارُّ‌وهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ (Provide to them [ the divorced women ] residence where you reside according to your means...65:6) This injunction is related to Rule [ 3] above which states that divorced women must not be expelled from their homes. This verse states the positive aspect of the injunction, in that the husbands, according to their means, should let their divorced wives live in some portion of the residence where they themselves live. If the wife is given a revocable divorce, there is no need for any hijab or veil. However, if she is given an irrevocable divorce, whether of minor degree [ ba'in ] or of major degree by pronouncing divorce thrice, then marriage tie stands broken. She is required to be in hijab in the presence of her former husband.

Therefore, the arrangement in the residence should be made in such a way that she lives in the same residence with full observance of the rules of hijab.

Rule [ 10]: Do not Hurt Divorced Women during their "iddahلَا تُضَارُّ‌وهُنَّ (...and do not hurt them to straighten [ life ] for them...65:6) This verse sets down that all the possible needs of a divorced woman must not be harassed by taunts or by curtailing her needful things, so that she is compelled to leave the home.

Rule [ 11]: Maintenance of Divorcees during their "iddahوَإِن كُنَّ أُولَاتِ حَمْلٍ فَأَنفِقُوا عَلَيْهِنَّ حَتَّىٰ يَضَعْنَ حَمْلَهُنَّ (...

And if they are pregnant, spend on them till they give birth to their child...65:6) This verse lays down the rule that if a divorcee is pregnant at the time of divorce, her maintenance is obligatory on the husband. On the basis of this verse, there is a complete consensus of the Ummah on this point. Similarly, if she is not pregnant, and the divorce given to her is revocable, her maintenance too is compulsory on the husband till the expiry of her "iddah. This point too is agreed upon by all the jurists of the Ummah. However, if a wife is given irrevocable divorce, whether a ba'in divorce or the divorce pronounced three times, or if a woman has got her marriage terminated by way of khul' [ got herself separated from the husband for a compensation ], will not have to be maintained by the husband according to Imams Shafi` i (رح) ، Ahmad and others. However, according to Imam Abu Hanifah, her maintenance is also incumbent upon the husband. He argues that just as she is entitled to residence during the term of "iddah as is provided in verse 6, she is entitled to sustenance too.

The husbands are obligated to provide them with these necessities of life during "iddah. This is further supported by those Traditions in which it has been reported that when Sayyidna ` Umar ؓ heard the report of Fatimah bint Qais who claimed that her husband was not obligated to maintain her after divorce, he said: "We cannot abandon the Book of Allah and the Sunnah of the Prophet ﷺ ، on the basis of this narration. [ Muslim ]The Book of Allah' apparently refers to this verse (6). According to Sayyidna ` Umar ؓ ، the verse includes maintenance. 'Sunnah' refers to the Tradition reported by Sayyidna ` Umar ؓ himself and transmitted by Tahawi, Darqutni and Tabarani. Sayyidna ` Umar ؓ reports that he heard the Messenger of Allah ﷺ say that women divorced by three pronouncements are also entitled to maintenance and lodging. The details are available in Tafsir [ Mazhari ].

Rule [ 12]: Fees for Suckling the Childفَإِنْ أَرْ‌ضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَ‌هُنَّ (...

Then if they suckle the child for you, give them their fees...65:6). In other words, divorcees who are pregnant, their term of ` iddah ends with the birth of the child. Consequently, their maintenance is not incumbent upon the husband. However, if they are suckling the baby, it is permissible for the mother to claim a fee for suckling the baby from her former husband, and it is incumbent on him to pay it to her, if she claims it. The principle is that as long as the marriage between the parents of the baby is intact, it is the responsibility of the mothers to suckle the children as the Qur'an states (And the mothers suckle their children... 2:233) One cannot receive a fee for an act that is obligatory on him or her, because it amounts to rishwah (bribery) which in itself is unlawful to give or take. The period of "iddah is akin to the marriage in this respect, because the husband is obligated to maintain her, and therefore she cannot claim a fee for suckling a child during this period too.

But once she has delivered the baby, her term of "iddah is over and she is absolutely released from the tie of marriage. Consequently, it is not incumbent upon the former husband to maintain her. In this instance, if she suckles the baby, the verse under comment permits giving and taking a payment for the service.

Rule [ 13]وَأْتَمِرُ‌وا بَيْنَكُم بِمَعْرُ‌وفٍ (...and consult each other [ for determining the fee ] with fairness...65:6) The word I'timar means 'to consult each other' and 'to accept each other's suggestion'. The verse directs the spouses to avoid any conflict in determining the fee for suckling. The divorced wife should not demand more than the normal rate, nor should the former husband of the divorcee refuse to pay the normal fee. They are advised to settle the issue with mutual understanding and tolerance.

Rule/Injunction [ 14]وَإِن تَعَاسَرْ‌تُمْ فَسَتُرْ‌ضِعُ لَهُ أُخْرَ‌ىٰ (...

And if you have a deadlock between you, then another woman will suckle him...65:6) In other words, if the husband and wife cannot agree on the fee of suckling with mutual consent, or the wife refuses to suckle the child even for a remuneration, then the mother cannot be forced by a court for the service of suckling. Normally, the mother has the most compassion for the child. Despite this, if she is refusing to suckle him, she probably has a genuine reason for that. If she has no genuine reason, and she is refusing merely on account of anger and displeasure, she is a sinner in the sight of Allah, but an Islamic court cannot force her to do the suckling. Likewise, if the husband, on account of abject poverty, is unable to pay the fee for suckling and a wet-nurse is willing to suckle the child without remuneration or for a lesser fee than what the divorcee mother is demanding, he cannot be forced to agree to the demand of the mother and get her to do the suckling. In fact, in either of the cases it is possible to have the child suckled by the wet-nurse.

However, if the fee the mother is demanding is the same as the wet-nurse's remuneration, preference would be given to the mother rather than the wet-nurse. This is a point of consensus between all the Muslim jurists.

Ruling

If it is agreed that the wet-nurse would do the suckling, it is incumbent that the wet-nurse should do the suckling while the child is in the custody of the mother. It is not lawful to separate the mother and the baby, because the custody of the child is the right of the mother according to the law of Hidanah as stated in the authentic Traditions. It is not permissible to usurp this right from her. [ Tafsir [ Mazhari ].