Qiwāmah and Wilāyah from The Perspective of Islamic Family Law

Marriage in Islam is noble and universally necessary because it brings peacefulness, lineage, and continuation of life with immaculacy and responsibility. Marriage in Islam confers duties and rights which should be highly regarded and upheld by each of the couple.

Our Prophet Muḥammad P.B.U.H. has given a clear picture on the concerned rights. It was narrated from Ḥakīm bin Mu’āwiyah, from his father, that: a man asked the Prophet: “What are the right of the woman over her husband?” He said: “That he should feed her as he feeds himself and clothe her as he clothes himself; he should not strike her on the face nor disfigure her, and he should not abandon her except in the house (as a form of discipline).^[i]”

Qiwāmah

The ḥadīth firstly highlights the concept of qiwāmah (Authority) which assigns men’s exclusive responsibility to provide nafaqah (maintenance) and clothes to their spouses according to their means and not beyond their means as provided in Sūrah al- Talāq: 7 “Let the man of means spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him”.^[ii]

The term nafaqah– as agreed by the scholars unanimously- includes food, clothing, shelter, domestic helper (upon meeting certain conditions and requirements),^[iii] and home essentials including washing machine etc.^[iv] There has not been explicit statement in the Islamic Law with regards to the quantum of nafaqah. In keeping with the Shāfi’ī School, the circumstances of the husband will be the key consideration. This is in contrast to the Mālikī and Ḥanbalī School which suggest the financial status of both husband and wife to be considered.^[v] The items considered to be necessary for nafaqah will naturally differ with the country, social status, way of life of different people and voluntary agreement between spouses.^[vi]

In the event of denial of the right to maintenance, the wife is allowed to take from the husband’s property even without his permission and knowledge to support her life. Nevertheless, she should take the property with kindness and without extravagance in subscribing to our Prophet’s ḥadīth to Hindun bint ‘Utbah.^[vii] Here, the emphasis is on Kifāyah (adequacy) and Ma’rūf (kindness) which establish the essence of nafaqah and the items to be considered, both as discussed above, as criteria of sufficient maintenance.^[viii]

As marriage is a two-way street, the Islamic jurists focus on two things: the obligation that the wife should have maintenance, and the man’s right to get peace, tranquility and stability in a marriage. Therefore, the wife’s right to maintenance should be an obligation as long as she is married to him and she gives herself to him.^[ix] To date, where women are most likely to be a career woman, it is submitted that non-maintenance forms as emotional abuse where the wife feel denied by the husband and is mostly not due to the inability of the wife to support herself.^[x]

Wilāyah

The later part of the ḥadīth revolves around the concept of wilāyah (Protectors of each other) which establishes the relationship between men and women as partners and that men have no level of superiority over women. Both genders are to guide one another, keep each other in check and to treat each other with respect, justice, and mercy.^[xi]

With respect to men who use violence at home, the Prophet P.B.U.H said, “Could any of you beat his wife as he would beat a slave, and then lie with her in the evening?”^[xii] Even when the Prophet’s wife Ā’ishah bint Abī Bakr was accused of adultery by some members of the community, the Prophet never raised his hand or even his voice against his wife.^[xiii]

Muslim men who are guilty of domestic violence might in retrospect cite Sūrah Al- Nisāa: 34 to justify their behavior due to its use of the word ḍaraba (to beat). Among the conditions placed by the traditional scholars upon this light “hitting” or “tapping” is that a husband could only use something very light, like a tissue and that he must not hit the face or leave any marks. In this regard, the word ḍaraba operates symbolically and this verse functions as a restriction on using violence and not as a license.^[xiv]

Therefore, some contemporary jurists such as Dr. Taha Jabir Al-Alwani suggest that in today’s societies, “hitting” the wife might not be applicable as it will hinder the very meaningful life presumed by the marriage.^[xv] Further, no man has the right to punish his wife when faced with her refusal to carry out the house- keeping chores as woman is lawfully not duty-bound to do so in spite of the due respect and maximum honour to be accorded to each other. This is epitomized in the life of the Prophet with his wives where he used to help them in carrying out house works.^[xvi]

In the corresponding notion, it is lawful for men to be watchful of their wives but not within the purview of suspicion and distrust. This is dangerous and makes life very difficult especially in the case of unfaithfulness. Allah states in Sūrah al- Ḥujurāt: 12 “O you who believe! Avoid most of suspicion, for surely suspicion in some cases is a sin…” As long as a woman’s unfaithfulness is not proved through convincing evidence, a man does not have any right to accuse her and vice versa.^[xvii]

In exercising the husband’s rights in preventing the wife from going to undesirable and unsuitable places, the wife is lawfully not allowed to go out without his permission as instructed by our Prophet. However, the right should be exercised moderately taking into account that a woman is like a man who needs freedom and should be at liberty in her rightful associations. Too much strictness is harmful as it destroys a friendly atmosphere and causes annoyance.^[xviii]

Hence, it is the responsibilities of both husband and wife to perform their duties in the best way possible to achieve family harmony. Any willful neglect or default of marital obligations may lead to a breakdown of marriage. Regrettably, this is evident in our community as the top 3 factors leading to divorce in the Syariah Court in 2016 are finance, violence and infidelity. Just as recorded by the Ministry of Social and Family Development, domestic violence against women has ranged 74-76% from 2012 to 2016, while domestic violence against men has ranged from 24-25% in the same period.^[xix] 

Family Justice Courts

Remedies for family violence in Singapore are addressed by the provisions of part VII of the Women’s Charter. Unlike some of the other provisions of the Charter, these provisions apply to all persons in Singapore, regardless of whether their marriages are solemnized under Muslim Law or Civil Law. An application may be made by the family member victimized by the family violence. Protection Order, Expedited Order, Domestic Exclusion Order and Counselling Order are among the types of relief that the Family Justice Courts can grant in restraining the respondent from committing family violence subject to specified exceptions or conditions.^[xx] The orders may be granted concurrently or separately depending on the severity of the incident, court processes and parties involved.^[xxi]

In the event where there is a willful breach of Order other than Counselling Order, the person contravening the order shall be guilty of an offence which is deemed seizable under the Criminal Procedure Code (Cap 68). To illustrate a case, in PP v Mohammad Noor bin Abdullah,^[xxii] the accused had breached the Protection Order when he threatened the complainant with the words “I am going to break your face.” Before granting relief from family violence, the Court will adopt a two-stage test to satisfy on a balance of probabilities that firstly, family violence, which includes physical violence, restrain, threats or serious magnitude of continual harassment has been or is likely to be committed. Secondly, the relief must be necessary for the protection of the family members e.g. the parties are likely to remain in contact.^[xxiii]

The intention of the Charter which reciprocates Islamic law’s in protecting family institution against domestic violence extends to maintenance where the obligation of the same remains unilateral with the exceptions for ill and disable husband.^[xxiv] The Charter in section 69(1) allows the court to only order an able husband to provide reasonable maintenance to his wife who proves her need for maintenance. In determining the quantum of maintenance, the court will have regard, inter alia, to the earning power of both spouses, previously, currently and in the future, and the assets owned by either and both parties.^[xxv]

To close, the jurists had laid down clearly the responsibilities and rights of spouses based on the sources and means of Qur’anic interpretation to achieve matrimonial harmony. In the event of family violence and default of maintenance, the remedies available at the Family Justice Courts may be invoked to give relief to the victimized party and more importantly, to give chances to both parties to work out and strengthen their family institution.

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References

[i] Sunan Ibn Mājah, The Chapters on, Marriage, Ḥadīth No. 1850.

[ii] Syaikh Hassan Ayyub. (2001). Fikih Keluarga. Jakarta: Pustaka Al-Kautsar.

[iii] Bahiyah Binti Ahmad. (2015).  Penentuan Kriteria Kifāyah dan Ma’rūf Nafkah Isteri dan Anak di Malaysia. Kuala Lumpur: Universiti Malaya.

[iv] Abdul Monir Yaacob, and Siti Shamsiah Md. Supi. (2006). Manual Undang-Undang Keluarga Islam. Kuala Lumpur: Institut kefahaman Islam Malaysia.

[v] ‘Abd Fattāḥ ‘Amru. (1997). Al-Siyāsah Al-Syar’iyyah Fī Al-Aḥwāl Al-Syakhṣiyyah. Jordan: Dār Al-Nafāis.

[vi] Tengku Fatimah Muliana Tengku Muda, Azizah Mohd, and Noraini Md. Hashim. (2017). Ḍarār Or Harm For Failure To Maintaın The Wife: A Quranic And Juristic Approach On Marriage Dissolution. Vol. 7, No. 8 International Journal of Academic Research in Business and Social Sciences.

[vii] Ibid.

[viii] Bahiyah binti Ahmad, Mazni Abd Wahab, Raihanah Azahari, and Asmak Ab Rahman. (2016). Pentaksiran Nafkah Anak Berasaskan Kriteria Kifāyah dan Ma’rūf: Kajian Kes di Malaysia at The 1^st International Conference On Islam and Contemporary Issues in The Muslim World: Challenges and Way Forward, on December 5-6, University of Malaya, Kuala Lumpur.

[ix] Mastora R. H. Al- Mutairi. (2004). A study of the wife’s right in Islamic Fiqh. United Kingdom: University of Birmingham.

[x] Tengku Fatimah Muliana Tengku Muda, Azizah Mohd, and Noraini Md. Hashim. (2017). Ḍarār Or Harm For Failure To Maintaın The Wife: A Quranic And Juristic Approach On Marriage Dissolution. Op. Cit.

[xi] Zainab Alwani. (2009). Domestic Violence Cross Cultural Perspective. North Texas.

[xii] Ṣaḥīḥ Bukhāry, Vol. 7, Book 62, Ḥadīth no. 132.

[xiii] Zainab Alwani. (2009). Domestic violence: Islamic Perspective. Op. Cit.

[xiv] Azizah Y. al-Hibri. (2003). An Islamic Perspective on Domestic Violence. Volume 27, Issue 1. Fordham International Law Journal

[xv] Zainab Alwani. (2009). Domestic violence: Islamic Perspective. Op. Cit.

[xvi] Lawal Mohammed Bani, and Hamza A. Pate. (2015). The Role of Spouses under Islamic Family Law. Vol. 37

 International Affairs and Global Strategy.

[xvii] Ibid.

[xviii] Ibid.

[xix] Statistics on Marriages and Divorces, 2016. Department of Statistics, Ministry of Trade and Industy, Republic of Singapore.

[xx] Section 65-66 of the Women’s Charter (Cap 353).

[xxi] Valerie Thean JC. (2016). Law and Practice of Family Law in Singapore. Singapore: Sweet & Maxwell.

[xxii] PP v Muhammad Noor bin Abdullah [2015] SGDC 96.

[xxiii] Valerie Thean JC. (2016). Law and Practice of Family Law in Singapore. Op. Cit.

[xxiv] Leong Wai Kum. (2008). Fifty Years and More of the Women’s Charter of Singapore. 1–24 Singapore Journal of Legal Studies

[xxv] Section 114 of the Women’s Charter (Cap 353).

RELIGION QIWAMA FAMILY ISLAMIC LAW MARRIAGE