RETHINKING POST-DIVORCE MAINTENANCE: AN

ALTERNATIVE FOR THE EMPOWERMENT OF MUSLIM

WOMEN IN BANGLADESH
Md. Jobair Alam *
Toufiqul Islam **

ABSTRACT
The current scholastic understanding and dominant judicial articulations- based on the classical
interpretation of Islamic law demonstrate that women are only entitled to three months of spousal
support during their religiously prescribed waiting period. The apex court of Bangladesh long back
in 1999 in the famous Hefzur Rahman case not only provided its verdict in the same tune but also
made a distinction between maintenance and Maa’ta, where the latter was settled as a consolatory
gift. However, apart from the religious aspects, the issues of post-divorce maintenance and Maa’ta
have a broader socio-political and economic connotation. Thus, the objective of this study is to
examine whether the post-divorce maintenance and the support may work as an alternative for the
empowerment of Muslim Women in Bangladesh. A pluralistic methodology combining both
primary and secondary data has been used in this study. In order to assess the objective, the study at
first revisited the existing literature after the conceptualisation of the term maintenance in the related
fields that includes but not confined to the post-divorce maintenance in the light of the Quran and
the Sunnah and also its journey from traditional concept to the legislations of modern Muslim
world. The study then made a connection of these to the situation of post-divorce maintenance in
Bangladesh. And then before presenting a case study, which is necessary to test the objective; the
study construed the ways following which; post-divorce maintenance may be used as an alternative
for the empowerment of the Muslim women in Bangladesh.. The study concludes that the proper
actualisation of the post-divorce maintenance and support may be used as a valuable and alternative
for empowering Muslim women in Bangladesh.
I. INTRODUCTION
The current understanding and judicial pronouncements based on the classical
interpretation of the Islamic law in the Muslim world indicate that women are
not entitled to any post-divorce financial support 1 rather they are only entitled

* Md. Jobair Alam, a PhD candidate at Macquarie Law School, Macquarie University,
Sydney, Australia; is an Assistant Professor of Law, University of Dhaka, Bangladesh.
** Toufiqul Islam, LLB (Hons), LLM, University of Dhaka, Bangladesh; is a Research
Assistant (Law) at Bangladesh Institute of Law and International Affairs (BILIA),
Dhaka, Bangladesh.
1 The Post-divorce Financial Support is also known as Mut-al-talaq. Under the classical
interpretation of Islamic law women are not entitled to any Mut-al-talaq and property
settlement, or any wealth of their household that accumulated during the marital course,
82 15: 1 & 2 (2015) Bangladesh Journal of Law

to three months of spousal support during their religiously prescribed waiting

period, known as ‘Iddat al talaq’. 2 They go far by saying that ‘Maa’ta’ is not the
same thing like ‘Nafaqa’ 3. ‘Nafaqa’ is used as a synonym of maintenance.
Indication of both of these, namely ‘Maa’ta’ & ‘Nafaqa’; can be found in the
primary sources of Islam- the Quran and Hadith. 4
In the subsequent elongation of the concept of maintenance 5, there is no
controversy about maintenance of a wife prior to divorce but debate exists on
post-divorce maintenance, particularly in relation to its duration and connection
to Maa’ta. In the backdrop of this debate, the divorcee’s condition may undergo
a critical situation as three things may happen, firstly, she may be denied the
right to maintenance; secondly, she may be granted the post-divorce maintenance
but for a shorter time; and thirdly, she may be granted only maintenance and not
Maa’ta. In order to resolve this debate and to secure the rights of the women,
many countries, which include but not confined to Egypt, Turkey, Brunei-
Darussalam, Tunisia, Yemeni, Iraq, Malaysia; have already enacted legislations
and clarified the ways, methods and scope of maintenance. In Bangladesh,
there is no legislation in this regard. However, the Appellate Division (AD) of

under the pretext that these women have already exhausted their shares by being sheltered,
clothed, and fed by their husbands during the period of their marital life. For more details
see, Sheikh, M., “Post-Divorce Financial Support from the Islamic Perspective”, at
<http://iiit.org/Research/ ScholarsSummerInstitute/ Tableof Contents 2008/ Post
DivorceFinancialSupport/tabid/254/Default.aspx>. Last visited on December 30, 2015.
2 See for details, Tusi, M., Concise Description of Islamic Law and Legal Opinions, ICAS Press,
2008, at Chapter. XIII; also, Abiad, N., Sharia, Muslim States and International Human
Rights Treaty Obligations: A Comparative Study, London, 2008, at pp. 15-17.
3 A clarification is made and distinction drawn between Nafaqa and Maa’ta at the later
portion of this article.
4 The reference could be found in the Holy Quran at several places, like, (2:236), (2:241),
(33:28), (33:49). Even in the Hadith, the reference is found regarding the same.
5 In Muslim law, the wife has been bestowed with an absolute right to be maintained and
the husband is bound to maintain her regardless of any consideration. Wife’s right to
maintenance is a debt against the husband. In Muslim law, wife is preferred over all the
other persons (even the young children & other necessitous relations). Even, the wife
does not lose the right to maintenance if she refuses access to her husband on legal
grounds, such as if the marriage cannot be consummated because of her old age,
illness, minority or physical defects. However if the wife being too young for sexual
intercourse, lives with her parents; she does not possess any right for maintenance.
Nevertheless, the controversy starts from the moment of a separation and arguably a
divorcee is entitled to three months of maintenance, which is known as post-divorce
maintenance, for details see, Law Teacher, “Maintenance of Wife Under Hindu and
Muslim Law Essays”, at <http://www.lawteacher.net/free-law-essays/family-
law/maintenance-of-wife-under-hindu-law-essays.php#ixzz3vnooDBMM>. Last
visited on December 30, 2015.
Rethinking Post-Divorce Maintenance 83

the Supreme Court of Bangladesh 6 long back in 1999 in the well-known Hefzur
Rahman case 7 not only provided its verdict settling three months of post-
divorce maintenance but also made a distinction between maintenance and
Maa’ta, where the latter is settled as a consolatory gift.
However, apart from the religious aspects and interpretative debates, the
issues of post-divorce maintenance and Maa’ta have broader socio-political and
economic connotations. For example, the post-divorce maintenance may work
as a tool for the empowerment 8 of the Muslim women, particularly for those,
who go through the transitional shock immediately after the separation. Thus,
the object of this study is to examine- whether the post-divorce maintenance
and support may work as an alternative for the empowerment of Muslim
Women in Bangladesh. 9 A pluralistic methodology, combining both primary
and secondary data; has been used in this study. In order to assess the objective,
the study after the conceptualisation of the term maintenance, at first revisited
the existing literature in the related fields, that includes but not confined to the
post-divorce maintenance in the light of the Quran and Sunnah; and also its
journey from traditional concept to the legislations of modern Muslim world.
The study then made a connection of these to the situation of post-divorce
maintenance in Bangladesh. And then, before presenting a case study, which is
6 Bangladesh being a common law country, precedent is a source of law. Thus, the
verdicts made by the supreme judiciary, have the status of law and binding force. The
Constitution of the People’s Republic of Bangladesh in this regard under Article 111
states that the law declared by the Appellate Division shall be binding on the High
Court Division and the law declared by either division of the Supreme Court shall be
binding on all courts subordinate to it.
7 Hefzur Rahman vs. Shamsun Nahar Begum 51 (1999) DLR (AD) 172.
8 Women –Empowerment is multidimensional as it occurs within sociological,
psychological, economic and other dimensions, and at various levels such as individual,
group, and community. It is a social process in the sense that it happens in
relationships to others. It empowers women to control over their own lives; seeds
capacity in them, for use in their own lives, their community, and in their society by
acting on issues that they define as important. The empowerment of women brings
certain elements in women like, sense of self-worth; their right to have the power to control
their own lives; their rights to have and to fix choices and so forth. For details see,
Majumdar, M., Encyclopaedia of Gender Equality Through Women Empowerment, New Delhi,
2005; Kumar, H., Varghese, J., Women's Empowerment, Issues, Challenges, and Strategies: A Source
Book, Delhi, 2005.
9 The object of the current study is to test whether the post-divorce maintenance or
support may work as an effective tool for the empowerment of Muslim women in
Bangladesh or not. Although it is clarified at the very beginning that Mut-al-talaq and
Iddat al talaq are not the same thing, but in this work they are distinctly related as the
object is set to see the impact of either or both of them on women empowerment and
thus, under the current study they are used interchangeably.