Muslim Wife’s Rights to Maintenance: Husband’s Duty to Maintain a Working Wife in Islamic Law and the Law in Malaysia

Abstract

Islamic law imposes a duty on the husband to maintain his wife. This duty arises as soon as the marriage contract is completed. The duty to maintain her continues until the contract of marriage ends either through death or separation. This paper seeks to examine the provisions of Islamic law on the husband’s duty to maintain a working wife. The examination extends to the adequacy of provisions of the law in Malaysia governing maintenance of a Muslim wife. The paper will further analyze the law on the extended duty of the husband to maintain the wife, even though the wife is working and especially earning a good salary of her own.

Non-Muslim Wife Maintenance in Malaysia: A Right or Privilege in the 21st Century?

“…The different schools of though in Islam have defined "nafaqah" to basically refer to the basic needs. However, the Shafi'i jurists have expanded the meaning to include food, clothing, cleaning tools, house appliances like cooking equipment, accommodation and servant in the case where the wife ever used the service of a servant before her marriage [27].…”

“…[30] 2) She must be a major person and therefore to have sexual relationship. [31] 3) The marriage must be a valid marriage. [31] 4) The wife's right to maintenance must be unaffected by certain factors which disentitle her to maintenance, for example, disobedience (nusyuz) [31] From the conditions set out above, it could be observed that a wife loses her right to maintenance when she is disobedient or nusyuz.…”

“…[31] 4) The wife's right to maintenance must be unaffected by certain factors which disentitle her to maintenance, for example, disobedience (nusyuz) [31] From the conditions set out above, it could be observed that a wife loses her right to maintenance when she is disobedient or nusyuz. The Muslim jurists have given certain examples of nusyuz as follows: [32] (1) when the wife prevents the husband from touching her or declines to have sexual intercourse without lawful reasons. (2) When the wife goes out from the husband's home or travels without the husband's permission.…”

“…In answering the first question, a working wife might be able to fulfil the conditions for maintenance, for example, submission to the husband in terms of sexual intercourse. However, this submission may not be complete as for instance, a working wife may need to go out of the matrimonial home on certain occasions [32]. Hence, this leads to the next question, as to whether this would cease her right to maintenance?…”

“…The exceptions mentioned in section 59(2) on when the wife loses her right to maintenance applies to a working wife as well as a homemaker. The judicial decisions so far also seem to highlight the principle that the duty of a husband to maintain a working wife is obligatory so long as the wife by working does not commit any act which amounts to nusyuz [32].…”