Shah-Bano-eng

Shah Bano, MW Act, and Mataa
on the text of the Holy Quran, which is the highest source of law for
all sects of Muslims. Besides, there is ample and respectable juristic
authority of commentators on the Holy Quran to sustain it as a
binding obligation upon husbands of all divorced women.
6. Two reputed authorities who have dealt with this matter are
Maulana Baizawi (obit. 1286 A.C.) and Ibn Katheer (obit 1373 A.C.).
The relevant portion of the Arabic text of these Commentaries is
reproduced as Annexure ‘A’ (1) hereto along with the translation,
Annexure ‘A’ (2). 1 These Commentators have declared that the
obligation upon the husband of paying mataa-un-bil-maaroof
(reasonable provision) to his divorced wife is imperative and binding,
and not merely optional. They have further opined that such
obligation exists in all cases, whether the wife be mafruzah (vide
supra para 3) or mafawwadah (i.e. divorcee by virtue of exercise of
delegated power) or whether she be one divorced before
consummation of marriage (mutallaqata qabl-al-masees) or one
divorced after consummation (madkhoola-biha). The jurists have
reached this conclusion after comparing and contrasting the text of
the Holy Quran II:241 (earlier set out) with the text of the earlier
verse, namely II:236. That earlier verse reads: --
236. No blame shall attach to you if you divorce your women before you
have touched them or settled the dower (mahr) on them; but make
(reasonable) provision for them -- the affluent in circumstances according
to his means and the straightened according to his means as considered
fair. This is an obligation on those who act kindly. (Al-Quran, op. cit., page
27.)
7. The Commentators point out that whereas, in verse II:236 the
obligation is stated to be only upon “those who are kind” (alal
mohsineen), in the second verse, II:241, where the obligation is
enlarged to cover all categories of women, it is also made binding
upon all the God-fearing men (alal muttaqeen). This means that the
obligation, mentioned in the second verse, II:241, is binding upon all
Muslims.
8. Apart from their own reasoning, which, it is submitted, is
unimpeachable, the commentators cite in support of the view that the
obligation, mentioned in verse II:241, is obligatory and universal, the
opinions of such jurists as Imam Shafei, Saeed Ibn Jubair, Ibn Jarir
Tabari and other elders.
1. The Ibn Katheer text and translation are reproduced below, p. 31.
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