We have stated the Islamic view of dower and the rationale of dower. Now it is suitable time to discuss the subject of maintenance.

We should take note before hand that in Islamic laws, maintenance, like dower, has a status and position special and peculiar to it, and so it should not be confused with, or considered the same as what is the case in the situation that was or is now being witnessed in the non-Islamic world.

If Islam had given the right to man to avail himself of the services of woman, and to consider the returns of her labour and toils and virtually all the wealth that she earned as his own, the object and rationale of maintenance would have been evident. The reason would have been obviously, that if some person makes use of an animal or another person to derive some financial benefit, he should necessarily provide the expenses for that animal or person’s livelihood. If carter does not give grass and oats to his horse, the horse will not draw his cart for him.

However, Islam does not recognize such a right for man. A woman is given the right of ownership: she can earn wealth, and man is not given the right to appropriate the wealth which belongs to her. Still, it is considered the duty of man to provide for the expenses of the family. He should defray the expenses of the wife, the children, the servant, the maid-servant, the house, etc. What is the reason for this?

Unfortunately our westernized people are not ready to think these matters over for a moment. They look into our faces and repeat exactly the same criticisms about the Islamic systems which occidentals repeat about their own systems of rights; and of course the latter criticisms are right.

As a matter of fact, if anybody says that the maintenance of man in the west until the nineteenth century was nothing but a ration of food, drudgery, and the insignia of slavery, then he is right in his criticism. For if it was the duty of woman to carry out the housework of man for free and to have no right of ownership, the maintenance that was given to her was, no doubt, a kind of ration given to a prisoner, or fodder given to a beast of burden.

But, if, somewhere in the world, we come across a special law which relieves woman from the compulsory duly of carrying out a man’s homework, gives her the right to amass wealth, gives her complete financial independence, and yet still exempts her from contributing to the family budget, that law must be based on some other rationale. The pros and cons of that rationale deserve to be fully studied and seriously examined.

The repression of European women up to the second half of the nineteenth century:

In his commentary on the Civil Law of Iran on page 362, Dr. Shaygan has written:

The right of independence that a woman has concerning her property and assets, and which Shi’ite jurisprudence has acknowledged right from beginning is not to be found in ancient Greece or Rome or Japan, or, till a short time ago, in the rights of most of countries. This means that woman has been denied the right to possess her property, just like a minor, a lunatic or someone forbidden by law. In England, where the personality of the woman was wholly obscured in the personality of her husband, two laws, one in 1870, and the other in 1882, were passed under the name of “The Married Woman’s Property Act” and thus the interdiction was raised from woman. In Italy in 1919 AD, a law removed woman from the category of interdicted persons. In the Civil Law of Germany after 1900, and in the Civil law of Sweden after 1907, a woman has had the same legal capacity as her husband.

“However, a married woman in Portugal or France is still on the list of interdicted persons, although Act 18 of February 1938 in France has amended the limits of the interdiction.”

As you have seen, is still under a century since the first law concerning a woman’s financial independence from her husband (1882 in England) was passed in Europe, and, as they say the interdiction was raised from married women.       

Why did Europe suddenly grant financial independence?

Now, how was it that a century ago such an important event happened? Did the human feelings of the men of Europe suddenly come to the boil, and the oppressiveness of their treatment becomes revealed to them?  

Listen to the reply to this question from Will Durant. In his The Pleasures of Philosophy, he begins an inquiry under the heading ‘‘Reasons”. There he comments upon the reasons why freedom was granted to the women of Europe, and it is there that we sorrowfully come across a dreadful reality. It is disclosed, that the European woman ought to feel grateful for her freedom and her right of ownership to machines and not to man, and should bow her head to the great cogs of machinery, and not before European man. It was the greed and covetousness of mill owners pushing them to make more profit and to pay less wages which caused them to put up the draft of the Act for the financial independence of women in the British Parliament.

A century ago, in England men found it hard to get work but placards invited them to send their wives and children to the factory gate. Employers must think in terms of profits and dividends, and must not the distracted by the considerations of morals, institutions or states. The men who unwittingly conspired to destroy the home were the patriotic manufacturers of nineteenth - century England.

“The first legal step in the emancipation of our grandmothers was the legislation of 1882, by which it was decreed that there after the women of Great Britain should enjoy the unprecedented privilege of keeping the money they earned. It was a highly moral and Christian enactment, put through by the factory-owners in the House of Commons to lure the ladies of England into attending upon their machines. From that year to this the irresistible suction of the profits motive has drawn women out of the drudgery of the home into the serfdom of the shop.”  (pp. 131 — 132)

As you see, it was the capitalists and mill-owners of England who, simply for their material gain, took this step “in the interest of women.”

The Qur’an and the financial independence of woman:

One thousand four hundred years ago, Islam passed this law and ordered:

To the men a share from what they have earned, and to the women a share of what they have earned. (4:32)

In this verse the Qur’an considers men to have a right to the fruits of their labour and efforts. In exactly the same way it considers women to have the right to the fruits of their labour and efforts.

In another verse the Qur’an ordained

To the men a share of what parents and kinsmen leave, and to the women a share of what parents and kinsmen leave. (4: 7)

It means that for men there is a share in the wealth which their parents or relatives leave behind at death, and for women there is a share in what their parents and kindred leave behind on their death.

This verse has established the right of inheritance of women. There is a long history regarding the dispute as to whether woman has a right of inheritance or not, to which we will refer, if God wills, afterwards. The Arabs of the pre-Islamic period did wish to grant the right of inheritance to women, but the Holy Qur’an firmly established that right.

A comparison:

So the Qur’an gave financial independence to women thirteen centuries before European women achieved it, with the difference that, first of all, the motive of Islam in giving financial independence to women was nothing but Islam’s humanitarian aspect and its sense of divine and communal justice. In the case of Islam there were no such initiatives as the avarice of the factory-owners of England, who, in a desire to get more and more profits, got his law passed, and then trumpeted through-out the world that they had given official recognition to female rights and had acknowledged the equality of the rights of men and women.

Secondly, Islam gave financial independence to women, but, according to Will Durant did not destroy family ties, and did not ruin the basis of the family. It did not set up wives to confront their husbands and daughters to confront their fathers in rebellion and revolt. Islam brought about a great social revolution with these two verses, but quite a peaceful harmless and safe one.

Thirdly, all that the western world did, according to Will Durant, was that it relieved woman of the drudgery of her house work and imprisoned her in stores and factories for hard work and toil. In other words, Europe took one set of collars and chains off the body of woman, and stuck on another set, no less heavy than the former ones. But Islam freed woman from the bondage and slavery of man within his house and outside it, on the land, and, by making it compulsory for man to provide for the upkeep for the whole family, freed woman from all sorts of obligations and impositions on her own spending, as also the spending of the other members of the family. In the eyes of Islam, woman, despite her having a right in agreement with the human instinct to earn, save and add to her wealth, is in no manner responsible for procuring the necessities of life. These things should not put a strain upon her, and should not deprive her of her pride, beauty and honour, which are always associated with her peace of mind and tranquility.

Anyhow, what can we do? The eyes and ears of some of our writers are too tightly closed for them to think over these in disputable historical and philosophical realities.

Criticism and reply:

Ms. Manuchihriyan in her book criticizing the constitutional and Civil law of Iran says on page 37:

“Our Civil Law requires, on the one hand, that a man give maintenance to his wife; that is, he should provide for her dress, food and dwelling. Just as an owner of a horse or mule provides for its food and stabling, so the owner of woman should make her reach this lowest standard of livelihood. On the other hand, it is not clear why in Art. 1110 of the Civil Law it is particularly mentioned that during the period of ‘iddah after the death of the husband (a period during which the widow may not remarry) the woman is not entitled to maintenance. On the occasion if the death of her husband, a woman badly needs sympathy and condolence and naturally she wants that, after the loss of her owner, she should not be put to financial difficulty and distress, You may possible say, ‘You are so fond of freedom and you wish that you should be equal to men in all respects, so why should you desire here that a woman should remain the ration-eater a slave of man, and that man should have kept in view that after his death also her capacity as a ration-eater should continue?’ We in reply say that  in accordance with the same rationale of the slavery of woman on which foundation the structure of this Civil Law is raised, it was proper that the law-makers should themselves have taken measures to provide for the maintenance of the woman, and that the law should have been compassionate on this subject”

We ask this author from where in the Civil Law of Iran and from where in the law of Islam, (or according to her that philosophy of female slavery) she has discovered that man is the owner of woman, and that the cause of man’s giving maintenance to woman is that woman is the property of man? What kind of owner is it who is not entitled to ask his slave to give him a cup of water? What kind of owner is it whose slave may do any work for the slave’s own benefit and not for his owners? What sort of owner is it whose slave may demand, if she wants, wages for the smallest piece of work the slave does for him? What kind of owner is the man who he has no right to force his slave to suckle his baby for nothing, the child she has herself begotten in the house of her owner?

Secondly, is everyone who is maintained by some other person his slave? According to Islam, and according to every law, it is the obligation of the father, or the father and mother, to maintain their children. Does it follow that under every law of the world, children are considered as the slaves of their parents? According to Islam, the father or mother, if they are destitute, must the maintained by their sons, without the sons being entitled to impose their will upon them. Should we say that Islam considers fathers and mothers the property of their own sons?

Thirdly, and most surprising of all, is that she asks: Why, during the period of ‘iddah after the death of the husband maintenance is not obligatory, whereas the woman at that time is most needful of the money of her husband.

It seems that the worthy author lives in the Europe of a century ago. The basis of the maintenance of the woman by the man is not her need. If, according to Islamic laws, a woman, as long as she lives with her husband, has no right of ownership, it would be right that immediately after the death of her husband, the condition of woman is disturbed. But when a law which gives the right of ownership to the woman, and says the women, can keep her own wealth, even though all her expenses are met by her husband, why should it be necessary that after the household is disturbed, the woman should, for a period continue to get maintenance. Maintenance is a gift for a man’s household, but when the household itself is shaken up, it is not necessary that this right should continue.

Three kinds of maintenance:

In Islam there are three kinds of maintenance:

The first kind is what an owner should spend on what is owned by him. The expense incurred by someone who owns animals comes under this heading. The basis of this kind of maintenance is ownership, and the fact of being owned.

The second kind is the maintenance which a person spends for his children, when they are under-age or without any resources, or which he spends on his father and mother when they are in need. The basis of this right of maintenance is not ownership and the state of being owned, but these are the rights which the children naturally have from the persons who are responsible for their coming into existence, and the right which a father and a mother have on account of their sharing in the birth of their sons and on account of the sufferings they underwent during the upbringing of their sons. This maintenance depends upon the inability of the person whose maintenance is obligatory.

The third kind of maintenance is that which a man spends on his wife. The basis of this maintenance is neither the link of ownership and of being owned, nor the natural right mentioned in connection with the second kind, and neither does it depend on incapacity, inability or poverty.

Suppose the wife is a millionaire and has an enormous income, and the husband has fewer resources, still the husband has to arrange for the family expenses and also the personal expenses of the wife. The difference which this kind has with the first and the second kind is that if the man who is under the obligation does not perform his function as regards the first and the second kind, and does not give the maintenance, he is a sinner; but non-fulfillment of that function does not take the form of a recoverable debt or of a legal liability. In other words that default creates no legal cause of action. But in the third kind, if someone having that duty ignores it, the wife is entitled to take precedings against him in a court of law, and, if he is proved to be in fault, to recover the maintenance from the man. What is the basis for this kind of maintenance? We shall discuss his thing in the next section.