By Ammar Muhammad (December 2021)
- WHAT IS THE MAINTENANCE OF WIFE?
Upon the terminology of the syarak, maintenance is anything required by humans such as food, drinks, clothing and place of abode. Maintenance of the wife as is made incumbent on the husband is maintenance essentially in respect of food, drinks, clothing and place of abode. That aside, it also includes furniture for the house, cosmetics, and a maid if she used to have one while living with her parents before her marriage.
However, we must take note that the Syarak did not impose any obligation on the husband to provide monetary support for the wife whether periodically or on a monthly basis. What was made obligatory by the syarak is for the husband to provide food, drinks, clothing and place of abode for the wife. That is the obligation in accordance to Hukum Syarak.
2. ELEMENTS CONSIDERED BY THE COURT BEFORE DECIDING THE EXISTENCE OF ARREARS OF MAINTENANCE
In any case, if there was a consensus as between the wife and the husband for the latter to provide a specific form of maintenance, then such a prescribed maintenance would become a debt due the moment the husband fails to make good his said obligation. This arrangement is termed as tamlik.
However, if, in a marriage, no specific maintenance agreement has been reached as between the spouses, and the wife willingly accepted what was provided for by the husband, then such a situation is known as tamkin. In such circumstance, failure of the husband to provide maintenance will not entail in any debt owed. Maintenance in the nature of tamkin did not stipulate the rate of maintenance, or the time or time frame within which the maintenance is to be paid. It all depends on the means of the husband. In the circumstances, the defendant is not subject to time, time frame or rate of maintenance to be given to the plaintiff as her maintenance.
3. HOW TO DETERMINE THE SUM FOR MAINTENANCE?
Hukum Syarak has made it clear that its provision is subject to the husband’s means and not the wife’s condition. In the book Al Fiqh Al Manhaji, as translated, it was said:
The status of the wife (rich, poor, noble etc) will not affect the said rate. This is because the factor that ought to be considered is the means. This factor refers to the giver and not recipient of maintenance.
The court would also consider a hadith narrated by Abu Daud in the book on marriage, i.e., the chapter on rights of wife against husband, viz:
Muawiyah al Qusairi r.a said: I proceeded to meet Rasulullah s.a.w and asked: What’s your view of your wives? Rasulullah s.a.w replied: Give them food the same food you eat. Give them clothing the same clothing you wear. Do not assault them and do not degrade them.
4. HOW TO CLAIM ARREARS OF MAINTENANCE?
As a wife you can file Summon and Statement of Claim where it should narrate the fact of the relationship between parties, the arrangement of maintenance between parties, the arrears by the Ex-Husband, the means of your Ex Husband and the calculation of the arrears of maintenance should be clarified.
5. HOW TO DEFEND ANY CLAIM OF ARREARS?
To defend this claim, you as ex husband must ensure that you have bundle of evidences to show that you had paid the maintenance either by bank transfer record or bank in slip throughout the years of marriage. Perhaps, you can straightaway claim that there is no previous specific arrangement for the maintenance and invoke the point of Tamkin.