The subsistence of the wife is incumbent upon her husband. When a woman surrenders herself into the custody of her husband, it is incumbent upon him thenceforth to supply her with food, clothing and lodging, whether she be a Mussalman or an infidel, because such is the precept in Holy Qur’an.
Such an obligation arises from the moment the wife is subject to the moral control of her husband and in certain cases for a time even after it is dissolved. A wife must be accommodated with a separate apartment. It is incumbent upon a husband to provide a separate apartment for his wife’s habitation, to be solely and exclusively appropriated to her use, so that none of her husband’s family, or others, may enter without her permission and desire, because this is essentially necessary to her, and is, therefore, her due the same as maintenance for the word of God appoints her a dwelling house as well as a subsistence, and as it is incumbent upon a husband to provide a habitation for his wife under his control. The maintenance is in all circumstances to be considered a debt upon the husband in conformity with his tenet.
It is really remarkable in Islam that as soon as two sui juris persons enter into contract of marriage so many rights arc created but as soon as the marriage is dissolved, those rights will continue according to the Injunctions of Holy Qur’an. Wife can justly claim maintenance from the date of accrual of cause of action and not necessarily from the date of first seeking redress.
Husband’s obligation to maintain his wife commences with the performance of marriage subject to certain conditions. The marriage in Islam being in the nature of a contract, dower is the consideration agreed between the parties which the husband has to pay to the wife either promptly or subsequently, in accordance with the terms of the agreement.
On the contrary, maintenance is in obligation which is one of the essential ingredients of marriage, liable to suspension or forfeiture under certain circumstances. The obligation of the husband to maintain his wife has been derived from Verse No.232 of the Sura Albaqra which enjoins upon the father of a suckling child to feed and clothe his wife:
Unless due sanction is spelled out to interpret and to apply the tenets of Muslim Law and evolutionary process is allowed to be undertaken and what better institution can there be for that purpose than the Judicial component of the State, with ample room for trial and error, the latter of course correctable at the level of the higher echelons or that of the Legislature.
Muslim Law can never assume the character of the dynamic force which Almighty Allah wills it to be. There will, in such exercises, be errors and pitfalls but the corrective process of ultimate judicial dispensation and the appropriate legislative measures can always be counted to suppress the mischief and to advance the objectives. This will, in addition, be possessed of the advantages of evolutionary elements and relieve the society of abruptness and suddenness, not uncommonly associated with legislation alone, taken in isolation. Muslim Family Laws Ordinance (VIII of 1961) ‑sections 7 and 8 of the Ordinance are valid.
Intention of Legislature, in codifying section 7 of the Ordinance was to abolish Talak‑ul‑Bidaat and legislate Islamic provisions pertaining to two forms of Talaq‑us‑Sunnat viz. Talaq Ahsan and Talaq Hasan as far as may be ‑ Legislative machinery, however, had not fully succeeded in doing so and Ordinance, being an “existing law” in terms of Article 260 of the Constitution read with Article 268(7), adaptations could be construed therein ‑ Court should be extremely slow in according restricted meanings to sections 7 and 8 of the Ordinance and brooking the defeat of the objectives of law on account of any technicalities and procedural flaws in the legislation ‑ Necessity of amending the law desired accordingly.
Article 2A of the Constitution of Pakistan had been incorporated into the Constitution of Pakistan as a substantive clause since 1985. The fourth clause of this Article contemplates that the Muslims shall be enabled to order their lives in the individual and collective sphere in accordance with the teachings and requirements of Islam as set out in the Holy Qur’ an and Sunnah. Previously it was a part of the preamble of the Constitution and was also enacted in Articles 31 and 230 of the Constitution of Pakistan. The primary duty of the Court is to adjudicate by reference to positive law in a manner to lend certainty, clarity and precision to the application of law to concrete questions of law and fact necessarily required to be decided.
However, the basis of Islam is Qur’an, Sunnah, Ijmaa and Ijtehad where there is only a Hakam then the rest’ is left to the Ijmaa to interpret in what manner it is to be implemented. It is` the duty of the Kazee to interpret and define the law. Therefore, unless and until the Legislature expresses its intention to amend a statute, the statute will remain under protection of the Article 268 of the Constitution of Pakistan, which says except as provided by this Article all existing laws shall, subject to the Constitution, continue in force so far as applicable and with the necessary adaptation, until altered oramended by the appropriate Legislature.
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