Islam Question and Answer - Rights of revocably and irrevocably divorced women

 

 

Rights of revocably and irrevocably divorced women

I would like to ask about the rights of the wife in the case of divorce when she has custody. Please note that she is the one who asked for talaaq.

 

Praise be to Allaah.

If a woman has asked for divorce – when her husband has
consummated the marriage with her – one of two scenarios must apply: 

1-

Either she has asked for it because of the husband’s
shortcomings in fulfilling her rights, or because of some attitude in him
that annoys her and deprives her of her rights, or because he has fallen
into sin, and other such reasons which make it permissible for her to ask
for talaaq. The shar’i judge is the one who should evaluate them and decide
whether they are valid reasons or not. If they are valid, then the husband
must divorce her by talaaq in that case, and give her all her rights in
full, which are: 

(i)               
The full mahr that was agreed
upon, both the earlier portion, if any of it is still outstanding, and the
delayed portion, because the Messenger of Allaah (peace and blessings
of Allaah be upon him) said: “If he has consummated the marriage with her,
then the mahr is hers because of his intimacy with her.” Narrated by
al-Tirmidhi (1102); classed as saheeh by al-Albaani in Irwa’ al-Ghaleel
(1840).

(ii)             
Reasonable maintenance,
including food, drink, accommodation and clothing during the ‘iddah period,
if it is revocable divorce. 

Shaykh Saalih al-Fawzaan (may Allaah preserve him) said: 

The woman who has been revocably divorced is still a wife so
long as the ‘iddah continues, and she is entitled to the same as other wives
of maintenance, clothing and accommodation. End quote. 

Al-Mulakhkhas al-Fiqhi (2/317). 

If the divorce is not revocable, such as a third talaaq, then
she is not entitled to maintenance or accommodation. 

Muslim (1480) narrated that Faatimah bint Qays (may Allaah be
pleased with her) was divorced by her husband for a third time, and she
asked the Messenger of Allaah (peace and blessings of Allaah be upon
him) about what she was entitled to of maintenance. He said:  “You are not
entitled to maintenance or accommodation.” 

If she has custody of her children from him, then in that
case he must also give her: 

(iii)           
Payment for custody and
breastfeeding.

(iv)           
Maintenance for the children. 

Allaah says (interpretation of the meaning):

“The mothers shall give suck to their children for two
whole years, (that is) for those (parents) who desire to complete the term
of suckling, but the father of the child shall bear the cost of the mother’s
food and clothing on a reasonable basis. No person shall have a burden laid
on him greater than he can bear”

[al-Baqarah 2:233]. 

So Allaah has made it obligatory for the father of the child
to spend on the mother who breastfeeds her child. This includes the woman
who is pregnant or divorced; the father must pay for maintenance.  

Tafseer al-Sa’di (p. 105). 

Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allaah have
mercy on him) said: 

The woman who is thrice-divorced is not entitled to
maintenance from her husband for herself, but he should spend on her for the
sake of the pregnancy. On that basis, whatever she needs of maintenance
because of the pregnancy, the husband must provide it, and after the
delivery, he should pay for the breastfeeding and clothing and the like of
the child, but he is not obliged to provide the mother’s food after the
delivery. Allaah says (interpretation of the meaning):  

“And if they are pregnant, then spend on them till they
lay down their burden”

[al-Talaaq 65:6]. 

Liqaa’aat al-Baab il-Maftooh
(147/question no. 8). 

It says in al-Mawsoo’ah al-Fiqhiyyah (17/311): 

The Shaafa’is and Hanbalis are of the view that the woman who
has custody is entitled to demand payment for custody, whether the woman
with custody is the mother or someone else, because custody is not
obligatory for the mother, and if she refuses custody it should not be
forced upon her, generally speaking. End quote. 

Setting the amount of payment and maintenance should be
referred to the qaadi (judge). 

It is not permissible for the husband to put pressure on his
wife so that she will give up any of the rights mentioned above. This has
been explained in the answer to question no.
42532. 

2-

The second scenario is where the woman asks for divorce from
the husband with no cause. In that case the husband may ask her to return
the mahr that he gave her, in return for divorcing her. This is what is
called khula’. 

See the answers to questions no.
1859,
26247 and
34579. 

In this case the four rights mentioned above no longer
remain, except payment for breastfeeding and custody, and maintenance of the
child who is still being breastfed. 

‘Abd al-Razzaaq narrated in al-Musannaf (4/90) that
al-Sha’bi was asked about the woman who is divorced by khula’ – is she
entitled to maintenance? 

He said: How can he spend on her when he takes from her? 

Because if the khula’ is done, the husband cannot take her
back, so she is like one who is irrevocably divorced, and is not entitled to
maintenance. 

Ibn al-Qayyim (may Allaah have mercy on him) said: 

The irrevocably divorced woman (unless she is pregnant) is
not entitled to maintenance or accommodation according to the saheeh Sunnah
of the Messenger of Allaah (peace and blessings of Allaah be upon him);
indeed this is in accordance with the Book of Allaah and is what is implied
by qiyaas (analogy) and it is the view of the fuqaha’ of hadeeth. 

I’laam al-Muwaqqi’een (3/378). 

See also the answer to question no.
49821. 

And Allaah knows best.

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