Tafheem-ul-Quran - Abul Ala Maududi

Footnotes

• [1] The jurists agree that if the woman has been divorced revocable, the husband is responsible for her lodging and maintenance. They also agree that if the woman is pregnant, the husband will bear the responsibility of her lodging and maintenance till child-birth whether she has been divorced revocable or irrevocably. However, the difference of opinion has arisen about whether the nonpregnant woman who has been divorced irrevocably is entitled to both lodging and maintenance, or only to lodging, or to neither.
• [2] One group says that she is entitled to both lodging and maintenance. This is the opinion of Umar, Abdullah bin Masud, Ali bin Husain (Imam Zain al-Abidin), Qadi Shuraih and Ibrahim Nakhai. The same has been adopted by the Hanafis, and the same is also the viewpoint of Imam Sufyan Thauri and Hasan bin Saleh. This is supported by the Hadith of Daraqutni in which Abdullah bin Jabir reports that the Prophet (peace be upon him) said: The woman who has been divorced thrice has a right to lodging and maintenance during the waiting-period. This is further supported by those traditions in which it has been reported that Umar had rejected the Hadith of Fatimah bint-Qais, saying: We cannot abandon the Book of Allah and the Sunnah of our Prophet (peace be upon him) on the word of a woman. This shows that the Sunnah of the Prophet (peace be upon him) in the knowledge of Umar must be that such a woman is entitled to both maintenance and lodging. Furthermore in a tradition from Ibrahim Nakhai there is the explanation that Umar rejecting the Hadith of Fatimah bint-Qais, had said: I have heard the Prophet (peace be upon him) say that such a woman has a right to lodging as well as to maintenance. The first argument that Imam Abu Bakr al Jassas has given in his discussion of this question in his Ahkam al-Quran is that Allah has explicitly said: Divorce them for their prescribed waiting periods. This divine command also applies to that person who might have taken his wife back after divorcing her twice in the first instance, and now he is left with only one divorce to pronounce. His second argument is: When the Prophet (peace be upon him) taught this method of pronouncing divorce that one should either pronounce divorce in such a period of purity in which one may not have had sexual intercourse, or in a state when the signs of a woman’s being pregnant might have appeared. In this he did not make any distinction between the first, second, or final divorce. Therefore, the divine command: Lodge them (in the waiting period) where you yourselves live, will be regarded as relevant to every form of divorce. His third argument is: The maintenance and lodging of the pregnant woman, whether divorced revocable or irrevocably, is binding on the husband, and in respective the non-pregnant revocably divorced woman also both these rights are binding. This shows that the maintenance and lodging have not been made incumbent on the basis of pregnancy but because both are legally bound to stay in the husband’s house. Now, if the same injunction be applicable to the irrevocably divorced non-pregnant woman also, there can be no reason why her lodging and maintenance should not be incumbent on the man divorcing her.
• [3] The second group says that the irrevocably divorce woman has a right to lodging but not to maintenance. This is the viewpoint of Saed bin al-Musayyab, Suleman bin Yasar, Ata, Shabi, Auzai, Laith and Abu Ubaid, and Imam Shafei and Imam Malik also have adopted the same. But in Mughni al-Muhtaj a different viewpoint of Imam Shafei has been stated as will be explained below.
• [4] The third group say that the irrevocably divorced woman is neither entitled to lodging nor to maintenance. This is the viewpoint of Hasan Basri, Hammad Ibn Laila, Amr bin Dinar, Taus, Ishaq bin Rahawaih and Abu Thaw. Ibn Jarir has cited this very viewpoint as of Ibn Abbas, Imam Ahmad bin Hanbal and the Imamiah sect of the Shias also have adopted the same, and in Mughni al-Muhtaj the viewpoint of the Shafeis also has been stated to be this: The woman who is passing her waiting-period on the basis of divorce has an obligatory right to lodging, whether she is pregnant or not, but for the woman who has been irrevocably divorced, it is not obligatory. And for the nonpregnant irrevocably divorced woman there is neither maintenance nor clothing. This viewpoint in the first place is based on this verse of the Quran: You do not know: Allah may after this bring about a situation (of reconciliation). From this they conclude that this could be correct only about a revocably divorced woman, and not about an irrevocably divorced one. Therefore, the command of lodging the divorced woman in the house is specifically applicable only to the revocably divorced woman. Their second reasoning is from the Hadith of Fatimah bint-Qais, which has been reported in the collections of Hadith through many authentic channels.