Islamic Fiqh > Marriage and family > Nafqa (the wife's maintenance) > Conditions and cause of the wife's maintenance obligation
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This chapter faithfully translates the sheets of the Fiqh Encyclopedia (al-Mawsu'ah al-Fiqhiyyah) devoted to the maintenance (nafaqa) a husband owes his wife under the four Sunni schools. It covers the cause and conditions of the obligation, the assessment of its amount, its categories (food, clothing, housing, furnishings, a servant), the sick wife and the wife on pilgrimage, the absent husband, spending by the wife on herself, and dissolution of the marriage for insolvency. School positions, figures, takhrij and classical references are rendered in full.
Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) said: a man must support his child, his animals and his wife by the consensus of the Muslims, and supporting his own person is even more binding upon him ("Majmu' al-Fatawa", 8/535). As for the rational demonstration: the woman is confined by the bond of marriage, a right of the husband, and prevented, by that same right, from earning; the benefit of her confinement therefore accrues to him, and her maintenance falls upon him, as in his saying (peace and blessings of Allah be upon him): "Yield is tied to liability". And because, confined in his house and barred from going out to work by his right, she would perish were her maintenance not owed by him. This is also why the judge is given a provision from the Muslims' public treasury (bayt al-mal) on account of their right: he is confined for their sake and prevented from earning, so his support was assigned to their funds ("Bada'i' al-Sana'i'", 4/15).
The jurists differed over the cause of the wife's maintenance obligation: is maintenance due by the contract alone, even if the husband has not consummated the marriage, or only by the contract combined with her placement at his disposal and full surrender? The schools hold distinct positions.
The Hanafis, in the madhhab, hold the cause to be the right of confinement (habs) that a valid marriage establishes in the husband's favor; an invalid contract grants no such right, hence no maintenance. Its condition is her surrender to the husband at the time surrender becomes due. The surrender meant is placement at his disposal: that she remove whatever obstacle bars consummation or enjoyment of her, when the obstacle comes from her or from another; if this surrender does not exist when it is due, there is no maintenance.
Thus, one who marries a free, adult, healthy woman and moves her to his house owes her maintenance, cause and condition being present. Likewise, if he has not moved her while she does not resist the move, she claims maintenance, and he does not demand that she come, she is entitled to it: by forgoing the move, the husband waived his right although he could have exacted it. This is the view of the apparent narrations: maintenance is due from the time of the valid contract, even without transfer to the husband's home, if he does not demand her coming.
If he demands the move and she refuses with a valid ground, such as demanding first the payment of her immediate mahr, maintenance is due to her: surrender is not required of her before the immediate portion of her mahr is paid. Likewise if he has paid her mahr and then demands she come to a usurped house and she refuses: maintenance is due, for her refusal is grounded in right. Likewise if she dwells in her own home and bars him entry without rebellious intent (nushuz), saying: "Move me to your house, or rent me a house to live in, for I need this house of mine to take its rent": she is entitled to maintenance, her refusal pursuing a legitimate aim.
Conversely, if the refusal is without right, after he has paid her mahr or while the mahr is deferred, there is no maintenance: surrender is absent at the time it is due, so the condition of the obligation is missing. That is why the rebellious wife (nashiza) has no maintenance, and this wife is rebellious.
Imam Abu Yusuf, a choice adopted by al-Quduri among the Hanafis, as well as the Malikis, the Shafi'is in the madhhab and the Hanbalis, hold that maintenance is not owed by the husband from the contract alone, but only after the wife's placement at his disposal following the contract.
Ibn Abidin (may Allah have mercy on him) explains: his saying "even if she is at her father's house" generalizes the obligation in the wife's favor; according to the apparent narrations, maintenance is due from the valid contract, even without transfer to the husband's home, if he does not demand her coming. Some later scholars say it is not due until she has been brought to his home: this is a narration from Abu Yusuf adopted by al-Quduri, but the fatwa does not rest on it ("Hashiyat Ibn Abidin", 3/575).
The Malikis say: the wife's maintenance is not due by the contract; her maintenance, clothing and the rent of her lodging are owed by the husband if she demands consummation, or her guardian or agent does so on her behalf, even without a judge and after the customary period of preparation for each, under four conditions:
Maintenance is therefore not due by the contract alone; these conditions concern the wife with whom the marriage has not been consummated and who has demanded entry, for the consummated wife is entitled to it regardless of these conditions ("al-Taj wa al-Iklil", 3/229; "Mawahib al-Jalil", 5/426-427; "Sharh Mukhtasar Khalil", 4/183; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/478; al-Sawi's gloss on "al-Sharh al-Saghir", 6/130).
The Shafi'is, in the madhhab, say maintenance arises not from the contract but from full placement at his disposal. If the marriage is concluded and the woman does not surrender herself to the husband, and he does not demand her, and this goes on for a year or more, maintenance is not due: the Prophet (peace and blessings of Allah be upon him) married Aisha (may Allah be pleased with her) when she was seven and consummated the marriage when she was nine, and no report mentions that he maintained her before; had it been her right, he would have fulfilled it, and had it occurred, it would have been transmitted.
Likewise, if the guardian offers the adult, sensible wife to the husband without her consent and the husband does not take her and this continues, maintenance is not due, for he holds no guardianship over her property ("al-Bayan", 11/190-191; "Rawdat al-Talibin", 6/61; "al-Najm al-Wahhaj", 8/252; "Mughni al-Muhtaj", 5/164-165).
The Hanbalis say: when the woman surrenders herself to the husband as required, she is entitled from him to all she needs, food, drink, clothing and lodging. If she refuses to surrender herself, or her family prevents her, or the two spouses live apart after the contract without her offering herself or his summoning his wife, there is no maintenance even if this lasts long, for surrender is the condition of the obligation and is absent. An incomplete surrender, restricted to her house or to a given house, to her town or to another, entitles her to nothing, unless it was stipulated in the contract, for such a surrender is as if it never was.
If she surrenders herself, or her guardian surrenders her, while the husband is away, maintenance is not fixed until the judge has written to him, for she surrendered while he could not receive her: the judge writes to the governor of the land where he is, to summon him and inform him. If he travels to her, or appoints an agent qualified to receive her, such as a mahram relative, and he or the agent takes her, maintenance becomes due at that point; before that, her surrender is as if it never was. If he does not, the governor fixes his maintenance obligation from the time he could have reached her and received her, for he withheld himself while able and while she offered herself: her maintenance binds him as if he were present.
And if the husband is absent after his wife's placement at his disposal, maintenance remains due during his absence, whether he received her or not, the impediment coming from him ("al-Mughni", 5/471; "al-Mubdi'", 8/200-201; "al-Insaf", 9/377; "Kashshaf al-Qina'", 5/553-555).
The early Shafi'is, and the later view is reported as well, hold that maintenance is due by the contract like the mahr, independent of surrender, as shown by its obligation to the sick woman and the one whose passage is sealed (ratqa'); but if she rebels, it falls away: the contract obliges, rebellion (nushuz) extinguishes ("al-Bayan", 11/190-191; "Rawdat al-Talibin", 6/61; "al-Najm al-Wahhaj", 8/252; "Mughni al-Muhtaj", 5/164-165).
Contrary to the apparent opinion, the Shafi'is and some Hanbalis grant maintenance to the young wife incapable of intercourse if she was handed over to the husband, like the one whose passage is sealed (ratqa'), the one with an obstruction (qarnu'), or the sick woman: she is confined with him, and the loss of enjoyment stems from an excuse, so she resembles the sick wife. This view rests on the thesis that maintenance is due by the contract ("Rawdat al-Talibin", 6/65; "al-Najm al-Wahhaj", 8/257; "Mughni al-Muhtaj", 5/169; "al-Insaf", 9/376).
Abu Yusuf, of the Hanafis, said: if the girl serves the husband and he benefits from her service, and she surrenders herself to him, he may send her back or keep her as he wishes. If he keeps her, she has maintenance, for he obtained from her a kind of benefit and enjoyment by accepting the surrender of a minor. If he sends her back, she has none until she becomes capable of intercourse, since the surrender the contract requires does not exist and he did not consent to the surrender of one incapable ("Bada'i' al-Sana'i'", 4/19).
Third condition: that the husband be an adult. The jurists asked: if the husband is a minor and married a woman capable of intercourse, is maintenance binding on him?
The Malikis, and the Shafi'is contrary to the apparent opinion, do not impose maintenance on the minor, even if capable of intercourse according to the Malikis: adulthood is thus a condition of the obligation for them, and the minor, even capable, owes none. A view adopted by Ibn Shas goes the other way: if he is capable of intercourse, maintenance binds him, along with the obligation of consummation ("al-Taj wa al-Iklil", 3/229; "Sharh Mukhtasar Khalil", 4/183-184; "Tahrir al-Mukhtasar", 3/402; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/478).
The Shafi'is contrary to the apparent opinion owe nothing, for his wife cannot be enjoyed by him due to an excuse: no liability falls upon him ("Rawdat al-Talibin", 6/65; "al-Najm al-Wahhaj", 8/257; "Mughni al-Muhtaj", 5/169).
The Hanafis, the Shafi'is according to the apparent opinion, and the Hanbalis impose maintenance on the husband even if a minor incapable of intercourse, if she surrendered herself to him as an adult capable woman: maintenance is taken from his property, for the incapacity came from him while the surrender he required existed and she deserves the return, like a hirer for whom performance becomes impossible after delivery of the thing hired.
The same applies to the husband who cannot achieve erection (majbub), the chronically impotent ('unnin), the one imprisoned for debt, the one too ill for intercourse, or the one gone on pilgrimage: she is entitled to maintenance ("al-Taj wa al-Iklil", 3/229; "Sharh Mukhtasar Khalil", 4/183-184; "Tahrir al-Mukhtasar", 3/402; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/478; "Rawdat al-Talibin", 6/65; "al-Najm al-Wahhaj", 8/257; "Mughni al-Muhtaj", 5/169).
Al-Laqqani made the three mentioned conditions general conditions of maintenance for every woman, consummated or not, who demanded entry; but he cites no report for it, and the apparent view is that of "al-Tawdih" ("al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/478; "al-Taj wa al-Iklil", 3/229; "Sharh Mukhtasar Khalil", 4/183-184; "Tahrir al-Mukhtasar", 3/402-403).
The majority of jurists, Hanafis according to the apparent narrations, Malikis, Shafi'is and Hanbalis, grant maintenance to the sick wife, before or after the transfer according to the Hanafis, whether intercourse is possible or not.
The Hanafis say: if she falls ill in the husband's house, she has maintenance, for she has surrendered herself and the impediment comes from Allah, the Most High, which does not affect the lapse of her maintenance. Confinement indeed persists: he keeps her company, touches her, she safeguards the house, and the impediment is only a passing condition like menstruation.
According to Abu Yusuf: if she surrenders herself and then falls ill, she has maintenance, the surrender having taken place; if she is ill and then surrenders, no maintenance is due, the surrender being invalid.
Al-Kasani (may Allah have mercy on him) says: if she was ill before the transfer with an illness preventing intercourse and was transferred while ill, she has maintenance after the transfer; and before it too, if she claims maintenance without the husband having moved her, provided she would not refuse to come if he demanded it. If she refuses, she has no maintenance, like the healthy wife, according to the apparent narrations. It is narrated from Abu Yusuf that she has nothing before the transfer, and that if she is transferred while ill he may send her back: the surrender the contract requires, which makes intercourse possible, not existing, he may refuse a surrender the contract does not require, as he rules for the girl incapable of intercourse.
The apparent narrations answer that surrender, in respect of placement for enjoyment, did occur even if it fails in respect of intercourse, which suffices for the obligation, as with the menstruating woman, the one bleeding after childbirth, or the one fasting Ramadan; and if she refuses, surrender does not exist at all, hence no maintenance. Abu Yusuf also said: if the sick wife gives him companionship and is useful to him apart from intercourse, he may send her back or keep her; if he keeps her, she has maintenance; if he sends her back, nothing, as we said of the girl.
If she was transferred healthy and then falls ill in the husband's house with an illness preventing intercourse, her maintenance is not extinguished by consensus: the absolute surrender, making intercourse and enjoyment possible, took place at the transfer and then became restricted by a passing condition, so she resembles the menstruating woman. Or one says that the surrender due by contract for the sick woman incapable of intercourse, before and after the transfer, is in respect of enjoyment, not of the act, as with the menstruating woman. The same applies if, after the transfer, she loses her mind and becomes insane, grows old until intercourse becomes impossible for her husband, or is struck by a calamity: she has maintenance for the reasons stated ("Bada'i' al-Sana'i'", 4/20; "al-Jawharah al-Nayyirah", 5/54, 58; "al-Bahr al-Ra'iq", 4/198; "Hashiyat Ibn Abidin", 3/578).
The Malikis say maintenance is due to the sick wife after consummation. Al-Dasuqi (may Allah have mercy on him) summarizes: "al-Tawdih" made sound health, the husband's adulthood and the wife's capacity for intercourse conditions of maintenance for the unconsummated wife who demanded entry; if one is lacking, there is no maintenance, while the consummated wife is entitled to it without condition. Al-Laqqani made them general conditions, consummated or not, but without a transmitted proof ("al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/478; "al-Taj wa al-Iklil", 3/229; "Sharh Mukhtasar Khalil", 4/183-184; "Tahrir al-Mukhtasar", 3/402-403).
The Shafi'is: maintenance is due to the sick woman, the one with a sealed passage (ratqa'), and the emaciated one (da'na) incapable of intercourse, whether these states follow the surrender or accompany it, for they are lasting excuses: the surrender making enjoyment possible has occurred, and enjoyment remains possible in one respect. The same applies during the days of menstruation and post-childbirth bleeding ("Rawdat al-Talibin", 6/64).
The Hanbalis: if she surrenders herself while intercourse is impossible for her, due to a sealed passage, menstruation, post-childbirth bleeding, emaciation or illness, maintenance binds him as well; and if any of these states occurs afterward, her maintenance does not lapse: enjoyment remains possible, no negligence comes from her, even if he abstains from the act. But if she refused surrender in good health, then fell ill and then surrendered, she has no maintenance while sick, as punishment for withholding herself when he could have enjoyed her, and for surrendering against it ("al-Mughni", 7/200; "al-Mubdi'", 8/200; "al-Insaf", 9/376; "Kashshaf al-Qina'", 5/553; "Sharh Muntaha al-Iradat", 5/663).
Imam al-Nawawi (may Allah have mercy on him) reports that al-Baghawi said: if she is taken by force, there is no maintenance even if she has an excuse, for she has left the husband's custody and enjoyment is lost, unlike the sick wife ("Rawdat al-Talibin", 6/64).
The jurists differed over the wife who sets out on pilgrimage, whether the obligatory or the voluntary pilgrimage: does her maintenance lapse? And is there a difference between going with her husband and going without him?
The Hanafis state: if the wife performs the obligatory pilgrimage before the transfer without a mahram or a husband, she is rebellious; with a mahram but without the husband, she has no maintenance according to all of them, for she refused surrender after it became due and becomes like the rebellious one. If, after moving to her husband's home, she sets out on pilgrimage with a mahram but without him, Muhammad says she has no maintenance, for surrender ceased through her own act, her departure: she does not deserve maintenance, like the rebellious one. Abu Yusuf says she has it, for the absolute surrender occurred at the transfer to her husband's home and then ceased through the performance of an obligation, which does not void maintenance, as if, once transferred, the fast of Ramadan became obligatory for her; or the absolute surrender occurred and then ceased through an excuse, so maintenance does not lapse, as with the sick wife.
On Abu Yusuf's basis, once maintenance is established, the judge fixes for her the maintenance of residence, not of travel: only the maintenance of residence binds the husband, and the extra provisions the woman needs in travel, carriage and the like, are on her, for they serve the obligation upon her, like the medical costs of an illness during residence. If she settles in Mecca or stays there after the pilgrimage without need, her maintenance lapses: she is not excused and becomes like the rebellious one ("Bada'i' al-Sana'i'", 4/20).
The Malikis: a woman setting out for the obligatory pilgrimage on her own initiative, with a mahram or a trustworthy company, even without her husband's permission, does not lose her maintenance; she has the maintenance of residence, and any rise in prices is on her. The voluntary pilgrimage, if she sets out for it, carries no maintenance from her husband, unless he permits her or cannot bring her back: then she has the maintenance of residence as with the obligatory pilgrimage ("al-Kafi", 1/255; "al-Taj wa al-Iklil", 3/243; "Sharh Mukhtasar Khalil", 4/195; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/492; "Tahrir al-Mukhtasar", 3/419).
The Shafi'is: if she enters sacralization (ihram) for a pilgrimage or umrah, there are two cases. The first: she enters ihram with his permission; if she departs, she has traveled for her own sake. If he travels with her, maintenance does not lapse according to the madhhab; otherwise it lapses according to the apparent opinion, with or without his permission, his prohibition on her going having no effect since the permission accompanies the ihram. Al-Qaffal says that if he forbade her to go out, there is no maintenance at all.
Before departure, there are two opinions: no maintenance, enjoyment being lost; or, more correctly, it is due, for she is in his custody and the loss of enjoyment stems from a cause he permitted. The second case: she enters ihram without his permission; he may release her from a voluntary pilgrimage, and from the obligatory one according to the apparent opinion. If we accept that he may release her and he does not, she has maintenance as long as she has not departed, for she is in his custody, able to release her and enjoy her. Another opinion holds no maintenance is due, for she is rebellious by her ihram, and the rebellious one deserves no maintenance even if the husband can force her back to obedience; the first view is the more correct.
Al-Nawawi (may Allah have mercy on him) concludes: if she departs without permission, there is no maintenance; if he travels with her, see what precedes; if he permits her going, the two opinions on travel with permission apply; if one holds he cannot release her from her ihram, she is rebellious from the moment of ihram; another opinion grants her maintenance as long as she stays put, the first view being the more correct. A solitary opinion holds that ihram never voids maintenance, since it means performing an obligation upon her ("Rawdat al-Talibin", 6/65-66; "al-Najm al-Wahhaj", 8/258; "Mughni al-Muhtaj", 5/169).
The majority of jurists, Hanafis according to their sound view, Malikis, Shafi'is and Hanbalis, state: the wife who surrendered herself to her husband and was handed over to him in full surrender while he was present, whom he refused to receive and who was then left by his departure, is entitled to maintenance from him, and his absence does not extinguish this right ("al-Jawharah al-Nayyirah", 5/62; "Mukhtasar al-Wiqaya", 1/444; "al-Lubab", 2/169; "Hashiyat Ibn Abidin", 3/604).
Imam al-Kasani (may Allah have mercy on him) reports: if the husband is absent and the woman asks the judge to fix maintenance on him, the judge does not fix it, even if he knows of the marriage: this is Abu Hanifah's later view and the view of Shurayh. Abu Hanifah at first held, on the report of Ibrahim al-Nakha'i, that this is not a condition and the judge fixes maintenance for the absent husband.
The proof of the later view is the report of the Messenger of Allah (peace and blessings of Allah be upon him) to Hind, Abu Sufyan's wife: "Take from Abu Sufyan's wealth what suffices you and your child, in a proper manner"; the Prophet fixed maintenance on Abu Sufyan while he was absent. The proof of the earlier view: the judge's fixing against an absent man is a default judgment, permitted only when an opposing party is present against him, which does not exist here.
"Take from Abu Sufyan's wealth what suffices you and your child, in a proper manner."Reported by Bukhari (no. 5049) and Muslim (no. 1714)
The hadith is no proof of judgment: the Messenger of Allah spoke to Hind by way of fatwa, not of judgment, since he did not specify what she should take from Abu Sufyan's wealth, whereas fixing maintenance by the judge consists precisely in assessing it; without assessment, there is no judgment. One who admits judgment against the absent admits it only for one absent on a journey; if he is in town, it is forbidden by consensus, for he is not deemed absent, and Abu Sufyan was not traveling: this shows it was assistance, not judgment.
If the judge does not know of the marriage and she asks him to hear her proof of marriage and fix maintenance on the absent husband: Abu Yusuf says he does not hear the proof nor fix it; Zufar says he hears it, fixes maintenance, and she borrows against him. If the husband returns and denies, she is ordered to re-establish her proof before him: if she does, the fixing stands and the debt is valid; otherwise neither.
All this applies when the husband has no property at hand. If he has property, held by her and of the nature of maintenance, she may support herself from it without the judge's order, per the hadith of Abu Sufyan. If she asks the judge to fix maintenance on that property and he knows of the marriage and the property, he fixes it, for she could have taken it to support herself without any fixing: the judge's fixing here is assistance enabling her to obtain her right, not a judgment; Zufar refuses, for it would be judgment against the absent without a present opposing party, the depositor and the debtor not being adversaries of the husband.
We answer: the holder who acknowledges the deposit and the marriage, or the debtor who acknowledges the debt and the marriage, or the judge's knowledge, establish her right of taking and recovery: the wife may extend her hand to her husband's property and take her maintenance from it, per the hadith of Abu Sufyan's wife. If one of the two facts is denied and unknown to the judge, he does not hear the proof nor fix, for that would be judgment against the absent without a present adversary, which is not permitted.
Here the deposit or debt is assumed to be of the nature of maintenance: dirhams, dinars, food, or clothing of the kind she wears. If it is of another kind, she may not take any of it. If it is real estate, the judge does not fix maintenance on it by consensus, for maintenance owed on real estate would require its sale, and selling the absent man's real estate for maintenance is forbidden by agreement.
If it is movable goods, the Qadi Abu Ya'la sets out the disagreement in his commentary on al-Tahawi's Mukhtasar: Abu Hanifah does not allow selling his goods, while his two colleagues allow it, an issue tied to placing the sane adult under interdiction (hajr). Al-Quduri reports the matter as a matter of agreement: sale is imposed only on a present man who withholds payment of his debt, to ward off his injustice, whereas the absent man's withholding is unknown, hence his injustice unknown, so sale is not imposed on him ("Bada'i' al-Sana'i'", 4/26-27).
The jurists asked: if the husband is absent before she surrenders herself to him and she wishes to surrender herself, is maintenance fixed for her?
The Shafi'is and Hanbalis say: if she goes to the governor of her land and declares that she surrenders herself to her husband and removes every obstacle between them, the governor writes to the governor of the land where the husband is, to inform him. When the letter reaches him, he summons the husband and informs him: if he travels to her and receives her, or appoints an authorized agent who receives her, maintenance is owed by him from the moment he or his agent received her.
If travel is possible for him and he withholds, he or his agent, for a period long enough to travel to her, the governor fixes maintenance for her from the expiry of that period, for he could receive her and did not: he withheld from receiving her and maintenance binds him. The Shafi'is add: if travel is impossible for him, for lack of company or fear of the road, maintenance is not due until travel becomes possible, for he is not withholding from receiving her ("al-Bayan", 11/190-191; "Rawdat al-Talibin", 6/61; "al-Najm al-Wahhaj", 8/252; "Mughni al-Muhtaj", 5/164-165).
The Hanbalis follow the same mechanism: surrender during his absence is as if it never was until the judge summons him; if he does not travel, the governor fixes maintenance for her from the time he could have reached her and received her, for he withheld though able while she offered herself: her maintenance binds him as if he were present.
The Malikis: the husband absent from his wife, if she raises her case and claims her maintenance, the governor, or failing him the community of the Muslims, fixes it for her according to his means and her state, from his property at hand or his expected absent property. He likewise fixes it from his debt owed to people after the debtor's acknowledgment, and from the deposit he entrusted to people, whether the marriage has been consummated or not. This occurs only after her oath that he left her nothing, sent nothing, and that she did not release him from it; his goods and properties are sold, after a deferral, as if his obligation had been lawfully assessed ("al-Taj wa al-Iklil", 3/247; "Sharh Mukhtasar Khalil", 4/199; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/496; "Tahrir al-Mukhtasar", 3/425-426).
The Hanafis' detail in the previous question has already been given. If the husband is absent after his wife's placement at his disposal, maintenance remains due during his absence, whether he received her or not, the impediment coming from him ("al-Mughni", 5/471; "al-Mubdi'", 8/200-201; "al-Insaf", 9/377; "Kashshaf al-Qina'", 5/553-555).
The jurists asked: if the husband refuses to spend or is absent, and the wife spends on herself or borrows to do so, may she claim it back from him in all circumstances? May she do so only if a governor has ruled? Or, if she is well-off, no claim, and if he is in hardship, none either? There are three opinions.
The Hanafis and, on one narration, the Hanbalis: if the husband has not maintained his wife for a time and she claims from him what she spent from her own property on herself or borrowed, she gets nothing, unless the judge fixed maintenance or she agreed with him on its amount: the judge then awards her the maintenance of the past. Maintenance is a bond (sila) and not a return: it is only enforced by judgment, for it is due day by day, and delay extinguishes it without judgment, like the maintenance of relatives, the past having been overcome with time.
But if the judge fixed maintenance and he does not spend, she may claim it, for it becomes a debt upon him; likewise if he fixed it upon himself by agreement with her, his self-binding being firmer than the governor's, his guardianship over himself stronger than the judge's over him. Once it is a debt by judgment or agreement, it does not lapse with time; it lapses by the death of either spouse or by separation.
If the husband dies after the judge ruled maintenance on him, or if months have passed, it lapses; likewise if the wife dies, for maintenance is a bond, and the bond lapses at death, as the gift lapses at death before taking possession. The wife's release of her future maintenance is invalid, for it would concern what is not yet owed.
If the judge fixed maintenance on the husband and she spent from her own property, she has recourse against his property as long as both live; the right lapses at the death of either, unless what she spent was a debt ordered by the judge, in which case it does not lapse ("al-Jawharah al-Nayyirah", 5/63-64; "al-Ikhtiyar", 4/6-7; "al-Lubab", 2/170; "al-Mughni", 8/166; "Zad al-Ma'ad", 5/508; "al-Mubdi'", 8/199).
The Shafi'is and Hanbalis in the madhhab: if the husband does not spend on his wife and she spends from her property or borrows, maintenance does not lapse and becomes a debt upon him, whether he withheld for an excuse or without excuse, whether a governor ruled or not, whether he was present or absent, on the strength of the report from Nafi' from Ibn Umar (may Allah be pleased with them both): Umar ibn al-Khattab (may Allah be pleased with him) wrote to the army commanders about men absent from their wives, ordering that they be made to spend or divorce; if they divorced, they were to send the maintenance of the period they had withheld her. None of them ever contradicted Umar in this.
Also because it is a right binding in ease and hardship alike, and does not lapse with time, like the rent of real estate and debts. Ibn al-Mundhir (may Allah have mercy on him) said: this is maintenance obligated by the Book, the Sunnah and consensus, and what these proofs obligate does not cease except by their like; it is a mandatory return, like a wage, unlike the maintenance of relatives: a bond in which the spender's ease and the recipient's hardship are weighed, obligated to improve one's condition, and dispensed with once its time has passed. If he withheld spending in ease, full maintenance is owed by him; if he withheld in hardship, only the hardship-level maintenance ("al-Najm al-Wahhaj", 8/266; "Mughni al-Muhtaj", 5/174-175; "Tuhfat al-Muhtaj", 10/208; "Nihayat al-Muhtaj", 7/245; "al-Dibaj", 3/635; "al-Mughni", 8/166; "Zad al-Ma'ad", 5/508; "al-Mubdi'", 8/199; "Kashshaf al-Qina'", 5/552; "Sharh Muntaha al-Iradat", 5/658; "Matalib Uli al-Nuha", 5/625; "Manar al-Sabil", 3/193).
The Malikis: if the husband is well-off, what the wife spent from her property on herself is an established debt on him that she claims, whether he is present or absent. If she spent on herself during his absence or in his presence while he is in hardship, she gets nothing from him, by the word of the Most High:
"Let the man of wealth spend out of his wealth, and whoever's provision is restricted, let him spend from what Allah has given him. Allah burdens no soul beyond what He has given it."
Surah At-Talaq, 7
He is therefore in hardship, having nothing to give, and nothing is imposed on him; what she spent during his hardship is not reclaimed, maintenance having lapsed in that state and she being deemed a donor, present or absent. "Lapse" here means non-enforceability, since no obligation rests on him in hardship. If he cannot spend, her only options are to consent to remain with him or to be separated from him.
Al-Mudawwana draws the consequences: if a well-off woman spends from her property on herself and on her husband, well-off or in hardship, then claims maintenance: she has nothing of what she spent on herself if the husband was in hardship at the time of spending; if he was well-off, it is a debt. What she spent on him is a debt whether he is well-off or in hardship, unless it is seen to have been a gift of affection. If she spends on herself while he is absent and in hardship, it is not a debt, says Malik: the man in hardship cannot spend, she has no maintenance on him, and her only options are to stay with him or be divorced.
If she spends on herself while he is absent and well-off, does that spending compete with the creditors? Yes. If she spends on herself and on her children during his absence and then claims: Malik says she recovers if he was well-off at the time of spending, for children who are small or adolescent girls, whether he is present or absent; but what she spent on the child does not compete with the creditors ("al-Mudawwana al-Kubra", 4/259-260; "al-Taj wa al-Iklil", 3/242-243; "Sharh Mukhtasar Khalil", 4/195; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/492; "Tahrir al-Mukhtasar", 3/419).
The jurists differed over the amount of the wife's maintenance: is it measured by adequate maintenance (kifayah), varying with the person entitled? Is it a fixed sum, independent of poverty and plenty? Is it measured by the custom of women like her and the state of the land? Or by what the judge fixes?
The majority of jurists, Hanafis, Malikis, one Shafi'i opinion and the Hanbalis in the madhhab, hold it is not fixed by the Law, but measured by her adequate maintenance, without stinting or excess. They cite the word of the Most High, absolute without fixing, so that whoever fixes it contradicts the text; and the fact that Allah obligated it under the name of provision (rizq), a person's provision being his sufficiency by custom, like the judge's and the profit-sharing partner's:
"Upon the father of the children is their provision and their clothing in a proper manner."
Surah Al-Baqarah, 233
They also cite the hadith of Aisha (may Allah be pleased with her) that Hind bint 'Utbah said: "Messenger of Allah, Abu Sufyan is a stingy man who does not give me enough for myself and my child, except what I take from him without his knowledge", and the Prophet (peace and blessings of Allah be upon him) replied: "Take what suffices you and your child, in a proper manner" (Bukhari no. 5049, Muslim no. 1714). The Prophet stated adequate maintenance, ordering her to take what suffices without fixing a sum and referring the assessment to her: the wife's maintenance is therefore measured by sufficiency, all the more as it is owed because she is confined by her husband's right and barred from earning, its obligation resting on sufficiency.
The Prophet also said: "They have a right over you to their provision and clothing, in a proper manner" (Muslim no. 1218): obliging less than sufficiency would neglect what is proper, and obliging the measure of sufficiency, even a mudd or two ratls of bread, is spending in a proper manner, which becomes the obligation of the Book and the Sunnah. In the hadith of Hakim ibn Mu'awiyah al-Qushayri from his father, a man asked the Prophet what right the wife has over her husband:
"Feed her when you eat, clothe her when you clothe yourself; do not strike the face, do not revile her, and do not keep away from her except within the house."Reported by Abu Dawud (nos. 2143-2144) and Ahmad (nos. 20072, 20036)
In another wording: "Feed them from what you eat and clothe them from what you wear; do not strike them and do not revile them": a general, unfixed statement. The wife's maintenance is compared with that of relatives, itself not fixed in itself but measured by sufficiency. The expiations, fixed in kind, are so because they are pure acts of worship, obligated in the manner of charity like zakat; the obligation of this maintenance is not of that kind but of sufficiency, measured by it like the maintenance of relatives, so assessing maintenance by the expiations is invalid, the expiation not varying with ease and hardship.
Maintenance answers enjoyment, whose grant has no limit, and its return neither. Since its obligation rests on sufficiency, the husband owes from maintenance enough to feed her, bread, relish (idam) and fat: bread is habitually eaten with a relish, and fat is indispensable to women. Maintenance is not fixed in dirhams and dinars at a given price, for prices rise and fall and one of the two spouses would be harmed: it is set according to the movement of prices, in scarcity as in plenty, out of regard for both parties. In clothing, two sets a year, summer and winter, are due, for she needs clothing as she needs food and drink ("Bada'i' al-Sana'i'", 4/23; "al-Ikhtiyar", 4/4; "al-Ishraf 'ala Nakt Masa'il al-Khilaf", 4/62-63, no. 1408; "al-Taj wa al-Iklil", 3/229; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/479-480; "Sharh Sahih Muslim", 12/7; "al-Najm al-Wahhaj", 8/229; "Mughni al-Muhtaj", 5/150; "Tuhfat al-Muhtaj", 10/144; "Nihayat al-Muhtaj", 7/217; "al-Ifsah", 2/207; "al-Mughni", 8/157; "al-Mubdi'", 8/186; "al-Insaf", 9/355; "Kashshaf al-Qina'", 5/540-541; "Sharh Muntaha al-Iradat", 5/649).
The Shafi'is in the madhhab and the Qadi of the Hanbalis hold the amount fixed and determined, varying with ease, hardship and middling condition among the Shafi'is: two mudds a day for the well-off, one mudd for the poor, and one and a half for the one between. They ground the variation in the word of the Most High: "Let the man of wealth spend out of his wealth, and whoever's provision is restricted, let him spend from what Allah has given him" (Surah At-Talaq, 7), and fix the amount by analogy with the expiations, both being wealths obligated by the Law and established against the estate.
The maximum obligated in expiation for each poor person is two mudds, in the expiation for harm done during pilgrimage, and the minimum one mudd, as in the expiation for zihar. The well-off therefore owe the maximum, two mudds, the measure of the man of means; the poor the minimum, one mudd, which suffices the austere and satisfies the reluctant; the intermediate the middle, one and a half: bound to two he would be harmed, contented with one she would be. Imam al-Mawardi (may Allah have mercy on him) explains that the amount must vary with conditions and rest on a basis: the expiations, food meant to satisfy hunger and established against the estate; the largest food fixed in expiation being the ransom of pilgrimage, two mudds per poor person, the basis of the well-off wife's maintenance; the smallest, the expiation for intercourse during the Ramadan fast, one mudd, the basis of the poor wife's; and the intermediate treated by the mean, one and a half, half the well-off maintenance and half the poor maintenance.
The well-off is he who can, from his earnings, support the well-off for himself and all those he must support; the poor, he who cannot support from his earnings more than the poor, any surplus coming from his capital; the intermediate, he who can support the intermediate, surplus coming from his capital and shortfall from his earnings. Ease and hardship are thus measured by earnings in maintenance, not by capital as in the expiations. What exceeds the wife's satiety belongs to her; if the quantity does not reach satiety, the husband chooses between completing her fill or letting her earn; if he lets her earn and she cannot, she falls among the recipients of charity and takes the rest of her sufficiency from alms and expiations ("al-Hawi al-Kabir", 11/425; "al-Najm al-Wahhaj", 8/228-229; "Mughni al-Muhtaj", 5/150; "Tuhfat al-Muhtaj", 10/143-144; "Nihayat al-Muhtaj", 7/216-217; "al-Dibaj", 3/613).
The Qadi of the Hanbalis holds the obligation fixed, not varying with plenty and poverty: every day two ratls of bread, for the well-off, the poor and the intermediate, by analogy with the expiations, only the quality varying ("al-Mughni", 8/157; "al-Mubdi'", 8/186; "al-Insaf", 9/355). One Shafi'i opinion leaves the fixing to the judge's ijtihad, and another makes it follow the custom of the land ("al-Najm al-Wahhaj", 8/229).
Imam Ibn Rushd (may Allah have mercy on him) summarizes: Malik holds maintenance not fixed by the Law, dependent on the husband's and wife's state, varying with places, times and circumstances, and Abu Hanifah says the same. Al-Shafi'i holds it fixed: two mudds for the well-off, one and a half for the intermediate, one for the poor ("Bidayat al-Mujtahid", 2/41).