The fiqh formulations of the scholars (fuqaha) were never abstract or arbitrary. They were always rooted in the foundational framework of rights (ḥuquq) and responsibilities (wajibat). In the marital context, rulings were consistently built upon one central question: what is the husband’s duty, what is the wife’s duty, and what are their respective rights before Allah?
Our scholars dealt with many of these issues centuries ago, laying down principles that remain relevant today. What is required from us is not to abandon those principles for Western or secular sensibilities, but to study them carefully, understand their logic, and apply them consistently.
Fiqh stands superior to secular approaches for several
reasons:
Principle-based, not arbitrary. Every ruling flows from a
coherent framework of justice, rights, and responsibilities, not from shifting
social fashions.
Balanced and fair. Contributions of both spouses are
acknowledged, but always in proportion to duties and obligations.
Comprehensive. Fiqh is not limited to financial
distribution; it encompasses spiritual, ethical, and social dimensions,
providing a holistic vision of justice.
Consistent. Unlike modern systems where one can demand
“equality” in one sphere and “special rights” in another, fiqh requires
internal consistency. Every claim must correspond to an obligation.
Accountable before Allah. Secular law ends at the courtroom;
fiqh continues into the realm of accountability before the Creator.
The Concept of Mutʿah and Nafaqat al-Mutʿah in Islamic
Jurisprudence
Among the sensitive issues within Islamic family law is the
matter mutʿah, a concept embodying benefit, consolation, and financial
compensation. Within its scope, nafaqat al-mutʿah- the consolatory gift after
divorce- serves as an essential mechanism to ensure that when separation
occurs, it is done with dignity, fairness, and concern for the emotional and
financial well-being of the divorced woman. Far from being an afterthought, nafaqat
al-mutʿah reflects Islam’s broader
philosophy of justice and mercy, balancing the rights of the husband with the
protection and honour of the wife.
The Definition of Mutʿah Linguistically and
Technically
The root of mutʿah- denotes benefit. The word is used both
as mutʿah and mata’, denoting enjoyment
or benefit granted to someone. In linguistic usage, it signifies that which is
given for enjoyment and consolation. For example, the Prophet ﷺ said in an
authentic narration: “The world is a temporary enjoyment (mat’aʿ), and the best
enjoyment of it is a righteous woman.”
Technically, jurists defined mutʿah as ‘wealth’ that the
husband gives to his wife upon separation through divorce or its equivalents,
either as an addition to the dowry or in place of it (in cases where the mahr was not specified), with the purpose of consoling her and compensating for the
pain of separation.
Those jurists who regarded mutʿah as obligatory defined it
as wealth that the husband must give when separation occurs in life. Those who
regarded it as recommended defined it as that which a husband offers
voluntarily to console his divorced wife.
A comprehensive definition, combining both approaches, is
that nafaqat al-mutʿah is a financial compensation, in addition to the dowry,
paid by the husband to his wife upon divorce, intended to repair the harm she
suffers from separation caused without fault on her part.
The Wisdom Behind the Legislation of Nafaqat al-Mutʿah
Islam is a religion founded upon mercy, compassion, and
justice. Its laws are not arbitrary rulings disconnected from reality, but
carefully calibrated principles that reflect the divine wisdom of the Lawgiver,
who knows the needs of human beings better than they know themselves. Among the
profound manifestations of this wisdom is the legislation of nafaqat al-mutʿah-the
consolatory gift given to a wife upon divorce. This institution reflects the
nobility of Islam and its concern for the emotional, social, and material
wellbeing of the family, even in moments of separation.
Divorce, by its very nature, is a painful rupture. It often
harms the wife emotionally and socially, leaving her vulnerable to feelings of
rejection, loneliness, or even stigma within her community. In many societies-ancient
and modern-the divorced woman has been unfairly viewed with suspicion, as if
divorce diminishes her honour or worth. Islam, in its justice and mercy,
directly confronts these harms by legislating mutʿah, not as a mere formality
but as an act of consolation (tasliyah), a means of easing her pain, and a
public affirmation of her dignity and integrity. In this way, nafaqat al-mutʿah
becomes a testimony that the woman is not being abandoned in disgrace, but
parted from honourably, with her rights safeguarded. Such a ruling could only
come from the One who is All-Wise and All-Knowing, fully aware of both the
outward circumstances of society and the hidden realities of the human soul.
Classical scholars of fiqh and tafsir have mentioned several
wisdoms behind this legislation. Among the most important are the following:
1. Consolation for the Divorced Woman
When a woman is divorced by her husband, she is left facing
a void where companionship once existed. Islam, in its concern for her
emotional state, requires that she receive a gift from him to console her
heart. This provision is not merely financial; it is a symbolic gesture that
acknowledges the hurt feelings and emotional pain that accompany separation.
The act of giving demonstrates that she is not being dismissed carelessly, but
is being honoured despite the end of the marital bond. This consolatory gift
reduces the bitterness of separation and leaves the woman with a sense of
closure rooted in dignity rather than humiliation.
2. Cultivating Compassion and Generosity in Society
The divine methodology in establishing healthy societies is
built on principles of mercy, compassion, and generosity. Marriage is not
simply a legal contract but a moral bond that nurtures character and refines behaviour.
By legislating mutʿah, Islam cultivates within the husband a sense of
responsibility, teaching him that even in ending a marriage, he must act with
generosity towards the one who once shared his life. This ruling transforms
divorce from being a harsh rupture into a dignified process where kindness
tempers conflict. It instils in the community the principle that human
relationships-even when severed-must end with fairness, compassion, and
consideration, rather than cruelty or indifference. (Live together peacefully or leave peacefully).
3. Upholding Women’s Dignity and Rights
Islam’s legislation of mutʿah is also a clear expression of
the high status that women enjoy in Islamic law. Unlike many pre-Islamic
systems where women were discarded without rights, Islam enshrined protections
for them at every stage-marriage, divorce, widowhood, and beyond. The very
existence of nafaqat al-mutʿah illustrates this unique aspect of Islamic law:
that the woman is not a passive party abandoned at will, but a dignified
individual whose rights are recognised and secured. By obligating (according to
some scholars) or recommending mutʿah, Islam ensures that a divorced woman is
not left without support or acknowledgment, safeguarding her from financial
vulnerability and social disgrace. This protective care is one of the
distinctive features that sets Islamic law apart from other legal systems and
traditions, both past and present.
4. Safeguarding Reputation and Social Standing
Another profound wisdom behind nafaqat al-mutʿah is the
protection of the divorced woman’s reputation. Without such legislation, she
could be subjected to gossip, suspicion, or slander, with people speculating
that she was divorced due to some fault or deficiency on her part. The fact
that her former husband provides her with mutʿah upon separation is a public
acknowledgment of her honour and integrity. It sends a message that she is
blameless and that the divorce occurred without disgrace. This reduces social
stigma and preserves her standing in the community, shielding her from harmful
speculation and maintaining her chances for future stability and remarriage.
The Ruling of Nafaqat al-Mutʿah According to the
Jurists
The question of whether nafaqat al-mutʿah-the consolatory
gift to a divorced woman-is obligatory or recommended has been a subject of
considerable discussion among the jurists of the four Sunni schools of law.
Their debate reflects the diversity of interpretative methods within Islamic
jurisprudence and the nuanced manner in which the revealed texts were
understood. The opinions of the schools can be summarised as follows:
The Ḥanafi School
The Ḥanafī jurists adopted a balanced approach, holding that
mutʿah may be obligatory in certain cases while merely recommended in others.
They rooted their differentiation in the specific circumstances of divorce and
the presence or absence of a mahr.
According to them, mutʿah is obligatory for a woman known as
al-mufawwaḍah-that is, a woman whose marriage contract was concluded without a
specified dowry, with her matter delegated either to herself or her guardian,
and who was subsequently divorced before consummation but after a valid
seclusion (khalwah sahihah). The reasoning behind this ruling lies in the legal
weight of seclusion, which in Ḥanafi jurisprudence is treated as equivalent to
consummation (waṭʾ ḥukmi). Since such a woman is particularly vulnerable to
harm upon divorce, mutʿah is deemed obligatory as a means of compensation and
consolation.
In cases outside this narrow category, however, mutʿah is
considered recommended but not mandatory. The Ḥanafis elaborate by
distinguishing four scenarios:
Divorce before consummation, without a specified dowry: In
this situation, mutʿah is obligatory, as the woman has no financial entitlement
otherwise.
Divorce before consummation, with a specified dowry: Here,
mutʿah is neither obligatory nor recommended, since the woman is entitled to
half of the specified dowry, which suffices as her right.
Divorce after consummation, with a specified dowry: In this
case, mutʿah is recommended but not obligatory, for the woman already receives
the full dowry.
Divorce after consummation, without a specified dowry:
Mutʿah is recommended here as well, since the woman is entitled to mahr
al-mithl (a mahr equivalent to that of similar women).
The Ḥanafis supported the obligatory ruling with the verse:
“There is no blame upon you if you divorce women you have
not touched nor specified for them an obligation.” (2:236)
This verse acknowledges the permissibility of divorce prior
to consummation, but in such cases where no dowry was stipulated, the woman is
left particularly disadvantaged. Thus, Allah commanded that she be given mutʿah
according to the husband’s financial capacity, whether he be wealthy or poor.
For cases where mutʿah is recommended, they reasoned that
mutʿah was legislated either as a substitute for conjugal relations (buḍʿ) or
as compensation in the absence of a mahr. Where a woman is already entitled to
a specified mahr or to mahr al-mithl, obligating mutʿah would amount to
granting her two substitutes for the same right-an impermissible duplication.
Furthermore, since by consensus a woman divorced before consummation with a
specified dowry is not entitled to mutʿah (because she receives half of the mahr), then a woman divorced after consummation-who is entitled to the full
dowry-is even less in need of it.
The Maliki School
The Malikis, in contrast, adopted a more expansive view.
They held that mutʿah is recommended (mustaḥabb) for every divorced woman,
whether the divorce is revocable (raj’i) or irrevocable (baʾin). Their position
was based on the verse:
“And provide for them [the divorced women], the wealthy
according to his means and the poor according to his means.” (2:236)
The wording “provide for them” is understood as a command,
which, although not strictly obligatory, carries a strong sense of
encouragement. This is reinforced by the phrase “a duty upon the doers of
good,” which implies an emphasised recommendation bordering on obligation.
Despite this general encouragement, the Malikis excluded
certain categories of women from entitlement to mutʿah.
These include:
A woman divorced before consummation when she is already
entitled to half of the dowry.
A woman who initiated khulʿ, offering compensation to her
husband in exchange for divorce.
A woman who possessed authority over her own divorce.
A woman who annulled the marriage due to a defect in her
husband.
A woman divorced through the procedure of liʿan (mutual
imprecation).
The Shafi School
The Shafi’s adopted somewhat of a direct stance, holding
that nafaqat al-mutʿah is obligatory in all cases of divorce where the
separation is initiated by the husband and not caused by the wife. They
carefully distinguished between cases occurring before and after consummation.
If separation occurs before consummation, two scenarios arise:
If the mahr does not become due because of the divorce, the
woman is entitled to mutʿah.
If half of the mahr becomes due, then mutʿah is not required.
If separation occurs after consummation, then the wife is
entitled to mutʿah regardless of whether a dowry was specified. They cite the
verse:
“So provide for them and release them with a gracious
release.” (33:49)
They argue that mutʿah in this case serves as compensation
for the humiliation and harm that a woman may feel from being divorced after
the consummation of marriage.
Additionally, the Shafi’s specify that when the divorce is
caused by the husband without fault on the part of the wife, mutʿah is
obligatory. Conversely, if the separation is initiated by the wife-whether
through khulʿ or annulment-she forfeits her entitlement to mutʿah.
The Ḥanbali School
The Ḥanbalis largely agreed with the Ḥanafis in tying the
obligation of mutʿah to cases involving a mufawwaḍah divorced before
consummation. They explained that tafwiḍ (delegation of the mahr) occurs in
two ways:
Tafwid al-buḍʿ: when a father marries off his virgin
daughter without stipulating a mahr. If she is later divorced before
consummation, she is entitled to mutʿah.
Tafwiḍ al-mahr: when a marriage contract is concluded with
the dowry left open for later agreement.
Their evidence is likewise the verse:
“There is no blame upon you if you divorce women you have
not touched nor specified for them an obligation. But provide for them, the
wealthy according to his means and the poor according to his means, a provision
in a fair manner-a duty upon the doers of good.” (2:236)
The Amount and Form of Mutʿah
The foundation for determining the amount of nafaqat
al-mutʿah-the consolatory gift that a husband must provide his wife upon
divorce-is firmly rooted in the Book of Allah, the Exalted. The guiding
principle is expressed in His statement:
“There is no blame upon you if you divorce women you have
not touched nor specified for them an obligation. But provide for them, the
wealthy according to his means and the poor according to his means, a provision
in a fair manner-a duty upon the doers of good.” (2:236)
From this verse, it becomes evident, according to some
scholars, that the amount of mutʿah is not a fixed, uniform sum but is rather
tied directly to the financial capacity of the husband. A wealthy husband is
expected to provide generously, in accordance with his means, while a poor
husband is only required to provide what he can reasonably afford. This
flexible approach underscores Islam’s balance between justice and compassion,
ensuring that the divorced woman receives some form of compensation and
dignity, without imposing undue burden on the husband.
Thus, the amount of mutʿah depends primarily on two factors:
The husband’s financial capacity-whether he is well-off or
in straitened circumstances.
Prevailing custom (ʿurf)-which is recognised as a valid
source of law in Islamic jurisprudence, provided it does not contradict a clear
textual injunction and clear Islamic principles.
Classical jurists approached this issue with ijtihad. They sought to establish practical guidelines for determining mutʿah while preserving the Qurʾanic principle that it is relative to the husband’s financial condition. Some of their efforts were designed to make its implementation easier in real cases.
The Flexibility of Mutʿah: No Fixed Form
It is noteworthy that the jurists themselves never agreed on
a fixed form for mutʿah, which in itself is proof that its type and amount
should vary according to custom, the circumstances of the couple, the place and
time, and the financial condition of the husband. For this reason, limiting
mutʿah to a fixed measure-such as half of the dowry-is a restriction not
supported by the Qurʾan or Sunnah. Indeed, mutʿah is not necessarily confined
to money. It could be in the form of goods, clothing, or any provision that the
wife finds agreeable and that the husband can afford. For example, a wife might
prefer an item of value, clothing, or even a service instead of cash, and the
husband may agree to that.
The Qurʾanic guidance is clear:
“Upon the wealthy according to his means and upon the poor
according to his means.” (2:236)
This generality indicates that fixing a set amount
contradicts the intended flexibility of the ruling.
While the sacred texts did not prescribe a specific form or amount, the jurists employed reasoning to provide practical guidelines.
The Ḥanafis maintained that the mutʿah should consist of
three garments:
a dirʿ (a dress worn over a chemise),
a khimār (a head covering), and
a milḥafah (a wrap covering the woman from head to toe).
Their reasoning stemmed from the Qurʾanic phrase “a
provision in fairness,” which in customary usage often refers to tangible goods
or commodities. In fact, in everyday language, matāʿ is associated with items
of utility, and the minimum clothing a woman requires for modesty when leaving
her home consists of precisely these three garments.
The Shafi’s suggested that mutʿah should not fall below the
value of thirty dirhams, regarding this as the minimum. At its maximum, it
could even be a servant, and its middle measure could be a garment. They argued
that it should ideally not exceed half of the mahr al-mithl, but if it does, or
even if it equals or exceeds it, the gift remains valid due to the unrestricted
nature of Allah’s command:
“And provide for them (mutʿah).”
If disagreement arises between husband and wife about the
appropriate amount, the matter is referred to a judge, who decides according to
fairness, taking into account the means of the husband and the condition of the
wife.
The Malikis rejected setting any fixed measure. For them,
mutʿah is entirely relative to the husband’s financial means, whether little or
much. They held firmly to the Qurʾanic statement that ties mutʿah to the
husband’s wealth, considering this the most equitable and practical approach.
The Ḥanbalis adopted a middle position. They held that if the spouses mutually agree on a particular amount, then their agreement determines the measure, since the right belongs to them alone. However, if they dispute, there are various reports from Imam Aḥmad. One opinion holds that for the wealthy, the highest form is to provide a servant, while for the poor, it suffices to provide clothing: a dirʿ, a khimar, and a garment suitable for prayer. As the Qurʾan did not stipulate a specific amount, they considered it a matter requiring ijtihad and judicial discretion.
Conditions for Entitlement to Nafaqat al-Mutʿah and
Causes of Its Forfeiture
The jurists have laid down specific requirements that must
be met for a woman to deserve this gift, as well as certain causes that lead to
its forfeiture. These conditions ensure that mutʿah fulfils its purpose as a
just and compassionate provision, rather than being misapplied in cases where
it is not warranted.
First Requirement: Conditions for Entitlement to Nafaqat
al-Mutʿah
Validity of the Marriage (Nikah Sahih)
The first and most fundamental condition is that the
marriage itself must be valid (ṣaḥih). A valid marriage is one in which all the
necessary legal pillars and conditions are fulfilled, and which thus produces
legitimate legal consequences under Sharīʿah.
Mutʿah is not due in cases where the marriage was void (batil)
or irregular (fasid). For example, if a woman were to marry someone who was
permanently prohibited to her (such as one of her maḥarim), or if she were to
contract marriage with someone mentally incompetent (insane), the marriage
would be invalid and no right to mutʿah would arise upon separation.
Among the essential conditions for a valid marriage are:
Witnessing of the contract: The marriage must be conducted
in the presence of two upright witnesses who are sane, adult, free, and capable
of hearing the offer and acceptance (ijab wa-qubul). They must also be Muslims,
since non-Muslims are not considered eligible to testify over Muslims.
Absence of legal prohibitions: The wife must not fall under
any category of permanent (taḥrim muʾabbad) or temporary (taḥrim muʾaqqat)
prohibition with the husband. For instance, if she is still in her waiting
period (ʿiddah) from a previous irrevocable divorce, then the marriage
contracted during that time would be irregular (fasid). Such a marriage must be
annulled before consummation, though if consummation takes place, certain legal
consequences still follow despite the sinful nature of the act.
Permanence of the contract: The marriage contract must be
permanent, not one that is limited to a fixed term. A time-limited contract
contradicts the spirit of Islamic marriage, which is intended to establish a
lasting family unit.
When all these conditions are fulfilled, the marriage is
deemed valid. Thus, if a separation occurs after consummation of such a
marriage, the wife is entitled to receive mutʿah.
That Divorce Occurs After Consummation
Another requirement is that divorce must take place after
consummation of the marriage. Consummation can be of two types:
Actual consummation (dukhul haqiqi): where intercourse has taken place.
Hukmi consummation (dukhul ḥukmi): which occurs when the
husband and wife have been alone together in a valid seclusion (khalwah ṣaḥiha)
where intercourse could have taken place, even if it did not in fact occur.
In both cases, once consummation- actual or hukmi- has taken
place, mutʿah becomes obligatory if divorce follows. If, however, divorce
occurs before consummation, mutʿah is generally not due.
That Divorce Must Take Place Between the Spouses
The type of divorce-whether revocable (raj;i) or irrevocable (baʾin)-does not affect entitlement to mutʿah, provided the other conditions are met.
Revocable divorce (ṭalaq raji;): In this case, the husband
retains the right to take back his wife during her waiting period without
requiring a new contract or dowry, and without her consent. This form of
divorce usually occurs after consummation and is not connected to compensation
(ʿiwaḍ), nor is it the third and final divorce.
Irrevocable divorce (ṭalaq baʾin): This prevents the husband
from resuming marital life without a new contract and dowry. It is of two
types:
Minor irrevocable divorce (baynunah sughra): This occurs in
cases such as:
a. Divorce before consummation, as indicated in the verse:
“O you who have believed, when you marry believing women and then divorce them
before you have touched them…” (3:49).
b. Expiration of the waiting period after the first or
second divorce.
c. Divorce through compensation (khulʿ), in which the wife
ransoms herself.
d. Judicial annulment (tafriq qaḍa’) due to harm, defect, or
prolonged absence.
That the Divorce Occurs Without the Wife’s Consent
Mutʿah is meant as consolation to the woman for harm she suffers when divorce is imposed upon her without her willing participation. Therefore, if the divorce occurs with her consent or at her own request, she is not entitled to it.
This includes cases such as:
Where the wife has been delegated the right of divorce (tafwid)
and chooses to exercise it.
Where separation is decreed by a judge due to reasons
attributable to the wife.
Where divorce is reached by mutual consent between both
spouses.
In these scenarios, mutʿah is not obligatory, since the
separation was not an arbitrary act of the husband alone.
That the Wife Is Not the Cause of the Divorce
Perhaps the most important condition is that the wife must
not be the cause of the divorce. Since the right of divorce lies with the
husband, Islamic law recognises the possibility of his misusing this right. In
such cases, the wife is entitled to mutʿah because she has been harmed unjustly
by his arbitrary exercise of power.
Jurists have identified several situations in which a husband’s act of divorce is deemed arbitrary (taʿassuf):
Absence of legitimate justification: For instance, when the marriage is stable, without conflict or animosity, yet the husband divorces purely out of spite-perhaps to harm his wife or her family. Divorce without reasonable cause contradicts public interest, since it dismantles one of the building blocks of society.
Presence of a trivial justification: This refers to cases
where the reason for divorce is petty compared to the magnitude of harm it
inflicts. An example is a husband divorcing his wife simply because he desires
another, without any legitimate marital discord.
Circumventing the purposes of Shari’ah: This occurs when a
husband uses divorce not for its legitimate purpose of ending an unworkable
marriage, but to achieve another end that harms the wife. A common example is
divorcing her on his deathbed in order to deprive her of inheritance.
In all such cases, the wife is entitled to prove the
arbitrary nature of the husband’s action by any acceptable means of evidence,
including testimony of witnesses. If established, the judge rules in her favour
and grants her the right to mutʿah.
Grounds for Forfeiture (Masqutat) of Nafaqat al-Mutʿah
While nafaqat al-mutʿah serves as a form of consolation and
compensation for the divorced wife, Islamic law also recognises certain
circumstances in which the woman forfeits her entitlement to this allowance.
These are referred to as the masqutat of mutʿah, or the grounds for its
forfeiture. In such cases, the principle of fairness dictates that the wife may
not claim this financial right, either because she has willingly relinquished
it or because the conditions for its validity have not been met.
One of the most common grounds for forfeiture is waiver by
the wife of her rights, including her right to mutʿah, as part of the
conditions of divorce. If a woman agrees to release her husband from all
financial obligations in exchange for being granted divorce, she cannot later
return to claim mutʿah. In this form of divorce, the wife renounces her rights,
including maintenance, dowry balance, and mutʿah, in exchange for freedom from
the marital bond. Jurists have generally considered this-to be a type of khulʿ-the
dissolution of marriage initiated by the wife.
Another related situation occurs when the wife requests
divorce through the court by filing for khulʿ. Once the court grants her
request, she is legally considered to have waived all of her financial rights,
even if she did not explicitly declare such a waiver. In other words, by
seeking dissolution of the marriage through khulʿ, the wife is deemed to have
surrendered claims to maintenance, outstanding dowry, and mutʿah. This reflects
the reciprocal nature of khulʿ: the husband releases the wife from the marriage,
and she, in turn, relinquishes her financial claims.
A further cause of forfeiture arises when the wife is unable
to establish that the cause of divorce was due to the husband’s fault or
arbitrary conduct. As outlined earlier, mutʿah is primarily granted when the
husband misuses his unilateral right of divorce, thereby inflicting harm on his
wife without valid justification. If the wife alleges such misuse but fails to
provide sufficient proof- whether through witness testimony, circumstantial
evidence, or other acceptable means-her claim to mutʿah cannot be upheld. In
this way, the burden of proof lies upon her to demonstrate that she was
divorced unjustly and without cause (shar'an). If she cannot meet this evidentiary
standard, the presumption favours the validity of the husband’s act, and mutʿah
is forfeited.
Thus, the forfeiture of nafaqat al-mutʿah occurs in clearly defined cases: when the wife willingly waives her rights in the process of divorce, when she seeks and obtains divorce through khulʿ, or when she fails to establish that her husband was at fault in pronouncing divorce. These exceptions maintain the balance intended by Shar'ahah between the protection of women and the equitable treatment of husbands, ensuring that mutʿah is granted only in circumstances where harm is demonstrably suffered.
Conclusion
The preceding discussion was compiled over the course of
several years, drawing upon dialogues with scholars across different parts of
the world and primarily relying on translations of various texts. It must be
emphasised at the outset that this work is not intended to serve as a fully
academic article, which is why precise references and formal documentation are
absent. In time, it is hoped that a more substantial and rigorously referenced
study can be produced.
From the foregoing exploration, it becomes evident that the
concept of nafaqat al-mutʿah has been the subject of considerable debate among
classical jurists. Their differences of opinion primarily concern the degree of
its obligation. The majority maintain that mutʿah is recommended, a practice
rooted in generosity and compassion rather than strict compulsion. A minority,
however, argue that it is recommended with binding force under specific
conditions, thereby moving it closer to obligation in practice.
At this juncture, a few further reflections are necessary.
It would be misleading and, indeed, irresponsible to equate mutʿah with the
modern Western concept of alimony. While there are certain surface similarities-both
being forms of financial support given to a divorced woman-the two differ
fundamentally in scope, intention, and legal foundation. In many Muslim
societies today, husbands already bear financial responsibilities well beyond
what is explicitly required in the sacred texts. To impose an additional
obligation on them after divorce, especially one that entails long-term or
indefinite payments without their consent, raises serious legal and ethical
concerns.
To argue that an ex-husband, who after divorce becomes an
ajnabi (a non-related stranger) to his former wife, must continue to provide
her with monthly financial support for two, five, or even ten years is not only
problematic (and haram) but also contrary to the principles of Shariah. Such an
arrangement neither reflects the cohesive and comprehensive nature of Islamic
law nor takes into account the realities of fasad al-zaman (the corruption and
challenges of contemporary times) and the prevailing social customs. The matter
must therefore be approached with greater nuance and caution.
It is also worth stressing that these issues should not be
left for courts or jurists to untangle only after a marriage breaks down.
Rather, couples themselves ought to discuss financial expectations and
post-divorce arrangements before marriage, ideally in the presence of someone
qualified in Shariah and family matters, so that clear guidelines can be put in
place. This kind of foresight can prevent disputes and reduce hardship in the
unfortunate event of divorce.
Yet, it is equally important to remember that fiqh deals
with legal frameworks, not the essence of human relationships. No marriage can
thrive if it is built solely upon a legalistic mindset. Successful marriages
depend upon mutual understanding, loyalty, commitment, compassion, sacrifice,
and patience. Without these values, a marriage-no matter how well drafted its
contractual terms-will inevitably face difficulties and perhaps collapse.
Contemporary scholars and policymakers must take into
account fiqh al-maʾalat (jurisprudence of consequences). Even well intentioned
regulations, if not grounded in a robust understanding of Shariah and its
context, can lead to harmful unintended consequences. A useful analogy here is
the so-called “cobra effect.” During British colonial rule in India, the
authorities sought to reduce the number of venomous snakes by offering a
monetary reward for every cobra killed. Initially, this seemed effective.
However, local populations began breeding cobras in order to profit from the
reward system. Once the authorities discovered the deception and discontinued
the programme, many of these snakes were released into the wild, leading to an
even greater infestation.
This analogy illustrates how mechanisms designed to solve
one problem can inadvertently create larger and more destructive ones. Applied
to the question of post-divorce financial regulations, we see similar dynamics
in modern societies: many men, burdened with excessive financial obligations
after divorce, are left homeless, destitute, and socially alienated. Some
suffer from severe psychological distress, while others even contemplate or
resort to suicide due to the crushing weight of these imposed responsibilities.
For this reason (and other), extra care and deliberation are
necessary when engaging with issues of financial support in divorce. While
Islam places great emphasis on compassion and justice toward women, it also
upholds fairness and balance, ensuring that neither party is burdened in a
manner that leads to harm. The discussions surrounding nafaqat al-mutʿah must
therefore be approached not only through the lens of fiqh but also with
awareness of real-life consequences, changing contexts, and the ethical spirit
of Sharīʿah as a whole.
If one chooses to adopt the minority view regarding the
obligation of nafaqat al-mutʿah, it is imperative that the conditions
previously discussed are carefully observed. In addition, the financial
capacity of the husband must be a central consideration. He should not be
unduly burdened by obligations that exceed his means, for Islamic law places a
strong emphasis on balance and justice, ensuring that one party is not harmed
while fulfilling the rights of another.
Equally important is a careful assessment of the wife’s own
financial circumstances. Does she have family support? Does she possess
personal wealth or other resources that enable her to maintain herself? These
factors can significantly influence the fairness and necessity of obligating
the husband to provide a consolatory gift. In Islam, men bear broader financial
responsibilities, not only toward their wives but also toward parents,
siblings, children, and other dependents. Women, on the other hand, are not
typically obligated to maintain such extended financial networks. This
disparity must be weighed when determining the propriety of mutʿah,
particularly in cases where the wife already has means of support.
For instance, if an elderly woman faces divorce, the jurist
(faqih) must first ensure that she has no other support mechanisms in place
before compelling her ex-husband-now an ajnabi (stranger) to her-to provide
financial maintenance. This approach ensures that the ruling remains fair and
proportionate, protecting the husband from undue hardship while still upholding
the wife’s rights where truly needed.
These reflections represent some basic guiding principles for applying the minority view of nafaqat al-mutʿah. Naturally, there may be additional factors and nuances that have not been fully addressed here, and careful deliberation by qualified scholars collectively remains essential to achieve just outcomes in each specific case. We are working on few things related to this, Insha’Allah.
May Allah guide us to sound understanding, teach us what is beneficial, and protect us from error in both knowledge and practice.
Allah Knows Best
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