Question
My husband divorced me due to pressure of his mother who insisted on the Talaaq. I was given Talaaq Baain whilst I was in the state of nifaas, two weeks after the birth of my baby. After the Talaaq my husband made contact with me. Both of us wanted to reconcile. However, my mother-in-law was opposed to the reconciliation. At a recent meeting which was attended by me, my ex-husband, his lawyer and my lawyer, I was told that there was no scope for reconciliation because my former mother-in-law was averse to it. My ex-husband agreed to the divorce only to satisfy his mother. I wanted to get a Maulana involved to assist with a reconciliation, but I was told that they would not allow a Maulana to enter into this matter. When I asked their lawyer who is an ardent campaigner for the Muslim Marriages Bill, why I am not allowed to have the assistance of the Ulama, he said that he was merely taking instructions from his client who happens to be his nephew. He said that he was not playing 'dirty'. It was his client. I said to him that as one who claims to have much Islamic knowledge, he should explain to his nephew and should have advised them of their error and endeavour to effect a reconciliation. This is the type of 'islamic' law this lawyer practices. It is a 'law' in which the wishes of his client have to be fulfilled and in which the pursuit of money are placed above the laws of Allah Ta'ala. I do not mind if my identity is revealed and publicized. I have been greatly wronged by the other party and their lawyer who speaks much about 'islamic' law, but practises nothing of it. A year has passed and I find myself in a difficult position. Half the medical bills and all the consumable bills have not been paid. They have started to pay a monthly maintenance of R1,500. This is not enough to cover the child's needs. They say I should seek employment. I have also not been compensated for my Iddat expenses nor for the period after my husband left me on 17 May 2010 until the day of Talaaq in August 2010. I have been breast-feeding my child for the past 19 months and shall continue doing so until she is two years, Insha'Allah. What are my rights according to the Shariah? What advice do you have for me?
Answer
Since there are elements of dispute involved in this matter, we shall restrict our response to the clear-cut Shar'i issues. We are not aware of the reason for your ex-mother-in-law's animosity towards you, and which constrained her to force her son to divorce you, and to adopt such an uncompromising stance regarding a reconciliation which both parties wanted. We therefore cannot comment on the validity or invalidity of your ex-mother-in-law's attitude. If a parent has valid reasons, he/she is Islamically allowed to advise his/her son to divorce his wife. However, you should examine your ex-mother-in-law's attitude and resultant stance in the cold light of intelligence, devoid of emotion in an attempt to fathom the causes for her animosity towards you.
From your explanation, it appears that the reason for the other party and their lawyer refusing intervention of the Ulama is simply the fact that such intervention would have been futile in view of the stance of your ex-mother-in-law. It seems that she had the power of veto and her son for whatever reason would have abided by only her command. Furthermore, you could have enlisted the assistance of the Ulama yourself without requiring the consent of the other party. You should have contacted the office of the Jamiatul Ulama KZN. You are in the city of Durban. This would have been no difficulty for you. Whilst reconciliation is an Islamic exhortation, we are unable to comment on your mother-in-law's opposition because we are unaware of her reasons. However, your ex-husband is guilty of some major sins which also involves violation of your Shar'i rights. The Shar'i position is as follows:
• Issuing Talaaq during your state of nifaas was haraam.
• Maintenance for you was Waajib for the Iddat period on condition that you had not left the marital home of your own free will. Refusing to pay the maintenance is a major sin.
• Maintenance for you was Waajib from the day your husband deserted you on 17 May 2010 until the date of the Talaaq in August 2010. However, the condition for incumbency of maintenance is that you had not left the marital home without valid reason. Unjustified refusal is a major sin.
• Their suggestion that you should seek employment is haraam. It is haraam for you to leave home to seek employment especially now that you have to care for the infant. You have to remain at home, take care of the baby, and the baby's father has to pay all the expenses for the care of his child, including remuneration for you for looking after the infant, and this includes rent for the apartment.
• The father has to maintain the child until adulthood. However, he is not responsible for paying for the secular education of the child. In fact it will be haraam to send the girl to secular school. He is liable for only the Islamic education.
• Custody of the girl will be your right until she attains the age of ten years. From that age, custody will be the right of the father.
• If you marry a man who is not a very close relative of the child, you lose the right of custody. In that case, if your mother (the child's maternal grandmother) is Islamically capable of caring for the child, custody will be her right. If she is Islamically disqualified, then it will be the right of the paternal grandmother.
• The father remains the guardian at all times of the child. Hence, you may not make unilateral decisions on any matter of importance regarding the child. It is the father's right, in fact obligation, to monitor the Deeni ta'leem and tarbiyat of his child. Divorced wives are in absolute abnegation of this Shar'i right of their children's fathers.
• The father has the right of access to his child at all times, not only at times stipulated by a kaafir court. However, the father may not visit your apartment to have access to the child. A neutral venue for access has to be arranged.
As far as the amount of maintenance is concerned, we advise that you get in touch with the office of Jamiatul Ulama KZN of whom you must be aware. The Jamiat will, Insha'Allah, appraise the situation and be in a better position than us to advise on this issue.
- Source
- themajlis.co.za
- Published in
- The Majlis Vol 21 No 04
- PDF page
- 10