Askinoohunna min haythu sakantum min wujdikum wala tudarroohunna litudayyiqoo AAalayhinna wa-in kunna (surah Talaq: 6)

Tafseer Tafheem-ul-Quran by Syed Abu-al-A'la Maududi

(65:6) (During the waiting period) lodge them according to your means wherever you dwell, and do not harass them to make them miserable. *16 And if they are pregnant, provide for them maintenance until they have delivered their burden. *17 And if they suckle your offspring whom they bore you, then give them due recompense, and graciously settle the question of compensation between yourselves by mutual understanding. *18 But if you experience difficulty (in determining the compensation for suckling) then let another woman suckle the child. *19

Askinoohunna min haisu sakantum minw wujdikum wa laa tudaaarroohunna litudaiyiqoo `alaihinn; wa in kunna ulaati hamlin fa anfiqoo `alihinna hattaa yada`na hamlahunn; fain arda`na lakum fa aatoo hunna ujoorahunna waatamiroo bainakum bima`roofinw wa in ta`aasartum fasaturdi`u lahooo ukhraa

*16) The jurists are agreed that if the woman has been divorced revocable, the husband is responsible for her lodging and maintenance; they are also agreed that if the woman is pregnant, the husband will bear the responsibility of her lodging and maintenance till child-birth whether she has been divorced revocable or irrevocably. However, the difference of opinion has arisen about whether the non-pregnant woman who has been divorced irrevocably is entitled to both lodging and maintenance, or only to lodging, or to neither. One group says that she is entitled to both lodging and maintenance. This is the opinion of Hadrat 'Umar, Hadrat 'Abdullah bin Mas'ud, Hadrat 'Ali bin Husain (Imam Zain al-'Abidin), Qadi Shuraih and Ibrahim Nakha'i. The same has been adopted by the Hanafis, and the same also is the viewpoint of Imam Sufyan Thauri and Hasan bin Saleh. This is supported by the Hadith of Daraqutni in which Hadrat 'Abdullah bin Jabir reports that the Holy Prophet (upon whom be peace) said: 'The woman who has been divorced thrice has a right to lodging and maintenance during the waiting-period. " This is further supported by those traditions in which it has been reported that Hadrat 'Umar had rejected the Hadith of Fatimah bint-Qais, saying: We cannot abandon the Book of AIIah and the Sunnah of our Prophet on the word of a woman. " This shows that the Sunnah of the Holy Prophet (upon whom be Allah's peace) in the knowledge of Hadrat 'Umar must be that such a woman is entitled to both maintenance and lodging. Furthermore in a tradition from Ibrahim Nakha'i there is the explanation that Hadrat Umar rejecting the Hadith of Fatimah bint-Qais, had said: "I havc heard the Holy Prophet (upon whom be Allah's peace) say that such a woman has a right to lodging as well as to maintenance." The first argument that Imam Abu Bakr alJassas has given in his discussion of this question in his Ahkam al-Qur an is that AIIah has explicitly said: "Divorce them for their prescribed waiting periods." This Divine Command also applies to that person who might have taken his wife back after divorcing her twice in the first instance, and no v he is left with only one divorce to pronounce." His second argument is: "When the Holy Prophet 1 upon whom be peace) taught this method of pronouncing divorce that one should either pronounce divorce in such a period of purity in which one may not have had sexual intercourse, or in a state when the signs of a woman's being pregnant might havc appeared. In this he did not make any distinction between the first, second, or final divorce. Therefore, the Divine (Command, '`Lodge them (in the waitingperiod) where you yourselves live," will be regarded as relevant to every form of divorce." His third argument is; "The maintenance and lodging of the pregnant woman, whether divorced revocable or irrevocably, is binding on the husband, and in respective the non-pregnant revocably divorced woman also both these rights are binding. " This shows that the maintenance and lodging have not been made incumbent on the basis of pregnancy but because both are legally bound to stay in the husband's house. Now, if the same injunction be applicable to the irrevocably divorced non-pregnant woman also, there can be no reason why her lodging and maintenance should not be incumbent on the man divorcing her.
The second group says that the irrevocably divorce woman has a right to lodging but not to maintenance. This is the viewpoint of Sa'id bin al-Musayyab, Suleman bin Yasar, 'Ata`, Sha`bi, Auza'i, Laith and Abu 'Ubaid (may Allha bless them ), and Imam Shafe' i and Imam Malik also have adopted the same. But in Mughni al-Muhtaj a different viewpoint of Imam Shafe`i has been stated as will be explained below.
The third group say that the irrevocably divorced woman is neither. entitled to lodging nor to maintenance. This is the viewpoint of Hasan Basri, Hammad Ibn Laila, 'Amr bin Dinar, Ta'us, Ishaq bin Rahawaih and Abu Thaw. Ibn Jarir has cited this very viewpoint as of Hadrat Ibn, Abbas, Imam Ahmad bin Hanbal and the Imamiah sect of the Shi'as also have adopted the same, and in Mughni a/-Muhtaj the viewpoint of the Shafe`is also has been stated to be this: 'The woman who is passing her waiting-period on the basis of divorce has an obligatory right to lodging, whether she is pregnant or not, but for the woman who has been irrevocably divorced, it is not obligatory. And for the non-pregnant irrevocably divorced woman there is neither maintenance nor clothing." This viewpoint in the first place is based on this verse of the Qur'an: "You do not know: Allah may after this bring about a situation (of reconciliation)." .From this they conclude that this could be correct only about a revocably divorced woman, and not about an irrevocably divorced one. Therefore, the Command of lodging the divorced woman in the house is specifically applicable only to the revocably divorced woman. Their second reasoning is from the Hadith of Fatimah bint-Qais, which has been reported in the collections of Hadith through many authentic channels.
This Fatimah bint-Qais al-Fihriyyah was one of the earliest Emigrants. She was esteemed for her wisdom and sagacity, and the consultative body of the Companions on the occasion of Hadrat 'Umar's martyrdom had met together at her house. She was first married. to Abu `Amr bin Hafs bin al-Mughirah al-Makhzumi after she was separated by him by three divorces, the Holy Prophet (upon whom be Allah's peace ) married her to Hadrat Usamah bin Zaid. According to reports, her husband, Abu `Amr had pronounced two divorces on her. Then, when he was sent to Yaman along with Hadrat 'Ali, he also sent from there the third and final divorce, According to lodge her in the house during the waiting-period and maintain her, according to others, she herself had laid claim to maintenance and lodging. Whatever be the case, the husband's relatives refused to concede her claim. Thereupon she took her case to the Holy Prophet (upon whom be peace), and he gave the decision that she was neither entitled to maintenance nor to lodging, According to a tradition, the Holy Prophet said: "The husband is under obligation to provide maintenance and lodging to the woman only in case he had a right to return to her, but when he had no such right, she was neither entitled to maintenance nor to lodging." (Musnad Ahmad), Tabarani and Nasa'i also have related almost the same tradition, the concluding words of which are to the effect: "But when she is not lawful for him until she marries another man than him, there is neither maintenance for her nor lodging." After giving this decision the Holy Prophet first commanded her to pass her waiting period in the house of Umm Sharik and then told her to stay in the house of Ibn Umm Muktum.
However, the arguments of those who have not accepted this Hadith are as follows:
In the first place, she had been commanded to leave the house of her husband's relatives because she was rude of tongue and they were fed tip with her ill-temper Sa'id bin al-Musayyab says: "This lady by reporting her Hadith has misguided the people. The truth is that she was nide and impudent; that is why she was lodged in the house of Ibn Umm Maktum. " (Abu Daud In another tradition Sa'id bin al Musayyab is reported to have said: "She had been impudent and rude to her husband s relatives; that is why she was commanded to shift from that house" (Al-Jassas) Suleman bin Yasar says 'Her expulsion from the house was hecause of her iII-temper." (Abu Da ud)
Secondly, her tradition was repudiated by Hadrat Umar at a rime when many of the. Canpanions were still living, and the matter could be fully investigated. Ibrahim Nakha'i says: "When this Hadtih of Fatimah reached Hadrat Umar. he said: 'We cannot adandon a verse of the Book of AIiah and a saying of the Messenger of AIIah (upon whom be His peace( Because of the saying of a woman, who seems to be conjecturing. I have myself heard the Holy Prophet (upon whom be peace( say that the woman who has been divorced irrevocably is entitled to both lodging and maintenance." (AI-Jassas). Abu Ishaq says: "I was sitting with Aswad bin Yazid in the mosque of Kufah, when Sha'bi made mention of the Hadith of Fatimah bint-Qais. Hadrat Aswad.thereupon threw pebbles at Sha'bi and said: "When in the time of Hadrat 'Umar this tradition of Fatimah was brought to his nonce, he said: 'We cannot cast off the Book of our Lord and the Sunnha of our Prophet on the strength of the tradition of a woman. May be she has forgotten. The woman has a right to maintenance as well as to lodging, for Allah says: 'Do not turn them out of their houses'." This tradition has been reported in Muslim, Abu Da'ud, Tirmidhi and Nasa'i with some variation in wording.
Thirdly, during the reign of Marwan when a dispute arose in respect of the irrevocably divorced woman, Hadrat 'A'ishah had subjected the tradition of Fatimah bint-Qais to severe criticism. Qasim bin Muhammad says: "I asked Hadrat 'A'ishah: 'Don't you know the incident concerning Fatimah?' Shc replied: 'Better not mention the HadIth of Fatimah'." (Bukhari), The words of Hadrat 'A'ishah in the other tradition related by Bukhari are to the effect: "What has happened to Fatimah? Is she not afraid of God?" In the third tradition Hadrat 'Urwah bin Zubair says that Hadrat `A'ishah said: "There is no good for Fatimah in reporting this hadith. "In still another tradition Hadrat 'Urwah says that Hadrat 'A'ishah expressed great indignation against Fatimah and said: "Shc in fact was in an empty house, where she had no sympathizer; therefore, for the sake of her convenience the Holy Prophet instructed her to change her house
Fourthly, this lady was later married to Usamah bin Zaid, and Muhammad bin Usamah says: "Whenever Fatimah made mention of this Hadith, my father would throw at her whatever fell in his hand. " (AI-Jassas). Obviously, had not Hadrat Usamah known that the Sunnah was contrary to what Fatimah said, he could not have felt so annoyed at the mention of this Hadith. "
*17) There is complete consensus that whether the woman has been divorced revocably or irrevocably, her husband is responsible for her lodging and maintenance till child-birth if she is pregnant. However, a difference of opinion has arisen in case the husband of the pregnant woman may have died, irrespective of whether he may have died alter pronouncing the divorce, or May not have pronounced any divorce and the woman may have been widowed during pregnancy this regard, the jurists have expressed the following views:
(1) Hadrat 'Ali and Hadrat 'Abdullah bin Mas'ud hold that she has an obligatory , right to maintenance in the husband's un-divided legacy. The same also has been cited as the view of Hadrat 'Abdullah bin 'Umar, Qadi Shuraih, Abul 'Aliyah, Sha'bi and Ibrahim Nakha'i, and a saying of Hadrat 'Abdullah bin 'Abbas also supports the same. (Alusi, AI-Jassas).
(2) Ibn Jarir has cited another view of Hadrat 'Abdullah bin 'Abbas to the effect: "If the deceased person has left some inheritance, expenditure should be made on her from the share of the child of her womb; and if he has left no inheritance, the heirs of the deceased should spend on her, for AIIah says: 'And the same responsibility for the maintenance of the mother devolves upon the heir'." (AI-Baqarah: 233).
(3) Hadrat Jabir bin 'Abdullah, Hadrat 'Abdullah bin Zubair, Hadrat Hasan Basri, Hadrat Sa'id bin al-Musayyab and Hadrat 'Ata' bin Abi Abi Rabah say that there is no maintenance for her in the inheritance of the deceased husband. A third saying from Hadrat 'Abdullah bin 'Abbas also has been cited to be the same. (AI-Jassas) This means that she can meet her expenses from the share of inheritance that she may receive from the husband's legacy, but she has no right of inheritance on the husband's combined legacy, which may burden the other heirs.
(4) Ibn Abi Laila says: "Her maintenance in the deceased husband's legacy is as obligatory as is somebody's debt obligatory In his legacy. " (AI-Jassas ). That ii, just as a debt has to be paid out of a combined legacy, so also should her maintenance be paid out of it.
(5) Imam Abu Hanifah, Imam Abu Yusuf, Imam Muhammad and Imam Zufar say: "She has neither any right to lodging in the deceased husband's legacy nor to maintenance, for nothing belongs to the deceased after death: whatever remains after him belongs to the heirs. The widowed pregnant woman, therefore, cannot have any maintenance in their property." (Hedayah; AI-Jassas). The same is the viewpoint of Imam Ahmad bin Hanbal (A/-Insaf
(6) Imam Shafe`i says: "There is no maintenance for her; but she has a right to lodging (Mughni al-Muhtaj) " His reasoning is based on the incident concerning Furai'ah bint-Malik, sister of Hadrat Abu Sa`id Khudri: when hor husband was put to death, the Holy Prophet (upon whom be Allah's peace) commanded her to pass her waiting-period in the house of her husband. (Abu Da'ud, Nasa'i, Timtidhi). Furthermore, they deduce their view from the tradition of Daraqutni: "Thc Holy Prophet said: there is no maintenance for the widowed pregnant woman." The same is the view of Imam Malik also. (Hashiyah ad-Dusuqi)
*18) This Divine Command teaches several important things: (1) That the woman is the owner of her milk; otherwise, obviously she could not be authorised to receive wages for it, (2) that as soon as she becomes tree from the marriage bond with her previous husband at child-birth, she is not legally bound to nurse her child; but if the father desires that she nurse it, and she also is willing for it, she would suckle it and would be entitled to receive the wages; (3) that the father also is not legally bound to have the child suckled only by its mother; (4) that the maintenance of the child is the responsibility of the father; (5) that the mother is best entitled to suckle the child, and the other woman can be employed for suckling only in case the mother herself is not willing for it, or demands too high a wage for the father to pay. The sixth rule that automatically follows is that if the other woman also demands the same wages as the mother, then the mother's right is superior.
The following are the opinions of the jurists in this regard:
Dahhak says: "Thc child's mother is best entitled to suckle it, but she has the option .to suckle it or not, However, if the child dces not take to the new nurse-maid, the mother will be compelled to suckle it." A similar opinion is held by QAtAdah, Ibrahim Nakha`i and Sufyan Thauri. ibrahim Nakha`i adds: "In case another woman is not available for nursing the child, the mother will be compelled to nurse it. (Ibn Jarir). According to Hedayah: "If at the separation of the parents the child has not yet been weaned, it is not obligatory that the mother alone should suckle it. However, if another woman is not available, the mother would be compelled to suckle the child. And if the father says: I shall employ another woman to suckle the child on wages instead of having it suckled by the mother on wages, and if the mother demands the same wages as the other woman, or is Willing to perform the service gratis, the mother's right will be regarded as superior. And if the child's mother demands higher Wages, the father will not be compelled to accede to her demand. "
*19) This contains a severe rebuke both for the father and tot the mother. The style clearly shows that if the two do not settle the question of the child's suckling amicably, overlooking the previous bitterness that led to divorce, it is not approved by AIlah, The woman has been warned to the effect: "If you demand too high a wage only in order to embarrass the man, the fosterage of the child is not dependent on you alone: some other woman will muse it. " And the man also has lien warned as if to say: 'It would be unfair tt you pressed the mother unjustly only because she was the mother. In this connection. please also see AI-Baqarah: 233 for details.