Islamic Fiqh > Marriage and family > Nafqa (the wife's maintenance) > Is maintenance assessed by the condition of both spouses, the husband, or the wife?
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Updated on 25 September 2026 at 3:23 PM
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The disagreement stems from whether the food maintenance in this chapter is compared to the fixed food obligation of the expiation, or to clothing, which is unfixed, the scholars agreeing that clothing is not fixed and that food is ("Bidayat al-Mujtahid", 2/41).
The jurists asked whether maintenance is assessed by the condition of both spouses together, the husband alone, or the wife alone. The majority of jurists, Hanafis according to their main criterion, Malikis according to the famous view and Hanbalis, take both spouses' condition into account: to the well-off husband for a well-off wife, the maintenance of the well-off; to the poor husband for a poor wife, that of the poor; to the well-off man for a poor wife, that of middling condition; to the poor man for a well-off wife, the minimum of sufficiency.
The Hanafis detail: maintenance is assessed by both conditions, husband well-off or poor; both well-off, the maintenance of ease; both poor, that of hardship; she poor and he well-off, her maintenance below that of well-off women and above that of poor women; he poor and she well-off, the maintenance of the poor, by the word of the Most High: "Let the man of wealth spend out of his wealth" and what follows (Surah At-Talaq, 7) ("al-Jawharah al-Nayyirah", 5/49-50; "al-Lubab", 2/162; "Majma' al-Anhar", 2/176; "Hashiyat Ibn Abidin", 3/584).
The Maliki Qadi Abd al-Wahhab (may Allah have mercy on him) says: assessment in wives' maintenance bears on both spouses together, the judge fixing her sufficiency according to her state and his, in hardship or ease, without a fixed sum. Al-Mawwaq (may Allah have mercy on him) reports that al-Lakhmi said: what counts in maintenance is the condition of both spouses, of their land, the era and the price; and that Ibn Arafa does not know of Ibn Abd al-Salam's report making only the husband's condition count.
"As-hal al-Madarik, a commentary on Irshad al-Salik in the madhhab of Imam Malik" cites: "she is assessed by her own condition, the governor striving to fix her sufficiency in what she cannot do without", which Khalil expresses: "Due to the wife placed at his disposal, capable of intercourse, from an adult husband with neither of them near death: food and relish, clothing and lodging by custom, according to his means, her condition, the land and travel, even if she eats much; the nursing mother receives more as long as her strength lasts, except the sick woman and the small eater: he owes only what she eats". The commentary notes that this view of the wife's condition alone is not the famous view: the famous view is that fixing maintenance takes both spouses together into account, as the text states ("As-hal al-Madarik", 2/96).
Al-Dasuqi (may Allah have mercy on him) says: assessing both their conditions is indispensable, whether they are equal in wealth or poverty, or one is rich and the other poor. Equality makes the assessment evident; difference imposes a middling condition between the two, so that the rich man's maintenance of a poor wife exceeds what he owes a rich wife, and the poor man's maintenance of a rich wife is less than what he owes a poor wife: this is the adopted view, against what two commentators, the second following the first, mentioned: that both conditions count only when equal, that only the husband's means count if she is better off, and a middling condition if she is worse off; our shaykh al-Adawi said so ("al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/479).
The Hanbalis: her maintenance is assessed by the condition of both spouses; both well-off, the maintenance of the well-off; both poor, that of the poor; both of middling condition, middling maintenance; one well-off and the other poor, maintenance of middling condition, whichever of them is well-off; both conditions count out of regard for both sides ("al-Mughni", 5/541; "Kashshaf al-Qina'", 5/541; "al-Ifsah", 2/207).
The Hanafis according to the apparent narrations, some Malikis and the Shafi'is count only the husband's condition, by the words 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): husbands are ordered to spend according to their means and holdings, regardless of another's condition. And by: "Upon the father of the children is their provision and their clothing in a proper manner" (Surah Al-Baqarah, 233): Allah obligated spending on the wife in a proper manner, measured by his condition; both well-off, the maintenance of ease; both poor, that of hardship; where they differ, the husband's condition counts ("al-Ikhtiyar", 4/4; "al-Lubab", 2/162; "Tahrir al-Mukhtasar", 3/403; "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; "al-Ifsah", 2/207).
Ibn Qudamah (may Allah have mercy on him) reports a view from Abu Hanifah and Malik making the woman's condition count, at the measure of her sufficiency, by the verse of Al-Baqarah 233, what is proper being sufficiency, and Allah equating maintenance and clothing according to her state; and by the Prophet's word to Hind: "Take what suffices you and your child, in a proper manner", which counted her sufficiency without her husband's condition. Her maintenance answers her need like that of slaves, and remains unfixed like her mahr. But this report is not sound: the correct position of both their madhhabs is assessing both spouses, as stated ("al-Mughni", 8/156-157).
The generality of jurists state the following. First, food and its relish: the husband must feed his wife the predominant food of the land, by the word of the Most High: "Upon the father of the children is their provision and their clothing in a proper manner" (Surah Al-Baqarah, 233), an allusion to custom, which varies with times and lands.
The Hanafis say: if he brings food requiring cooking and bread-baking and the woman refuses to cook and bake, she is not compelled if she refuses; the husband is ordered to bring her prepared food. He may not hire her for cooking and baking, and she may not take a wage for it: she would take payment for a task binding on her by the fatwa, which resembles a bribe (rishwah), so taking it is not permitted to her.
The jurist Abu al-Layth specifies this supposes she is incapable of it or is of noble birth; otherwise, if she is capable and of those who serve with their own hands, she is compelled ("Bada'i' al-Sana'i'", 4/24; "al-Muhit al-Burhani", 3/350; "Sharh Fath al-Qadir", 4/388).
May he pay his wife money in place of the food maintenance? The jurists state: if the wife asks her husband for dirhams in place of the bread and food due to her, he is not bound to give them; and if he offers dirhams in their place, she is not bound to accept them, for prices rise and fall, and exchange does not compel acceptance upon either of them.
If both consent: the Shafi'is according to the more correct view and the Hanbalis allow it, for the food is a debt established against the estate of a specified person, and exchange over it is permitted, like food in a loan. The Shafi'is contrary to the more correct view forbid it, as is accepted for expiatory food ("Rawdat al-Talibin", 6/58; "al-Najm al-Wahhaj", 8/233; "Mughni al-Muhtaj", 5/152).
The Hanafis say the husband may undertake the spending himself, unless it appears to the judge that he does not spend on her: the judge then fixes it monthly, measuring it by the scarcity or cheapness of each time. He does not fix it in dirhams and dinars at a given price, for prices rise and fall and one of the two spouses would be harmed; rather he sets dirhams or dinars according to the movement of prices, in scarcity as in cheapness, out of regard for both parties. If she agreed with him on an insufficient maintenance, the judge completes it at her request ("Bada'i' al-Sana'i'", 4/23; "al-Ikhtiyar", 4/4; "al-Jawharah al-Nayyirah", 5/47; "al-Bahr al-Ra'iq", 6/316).
The Malikis allow the husband to pay the wife, in place of all that is owed of maintenance and clothing, a price, if the woman consents: what is owed in kind, payable at once, may be exchanged for a price if she accepts. The husband must raise the price if the price of goods rises after she took it, and return the difference if it falls, so long as she has not stayed silent a long time, silence signaling intent to be generous; unless she bought the goods before the rise or the fall, in which case he neither raises it in the first case nor returns anything in the second ("Sharh Mukhtasar Khalil", 4/190; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/487; "Tahrir al-Mukhtasar", 3/413).
The generality of jurists state: if the wife eats with her husband, her maintenance lapses. It is a right due to her, and what goes beyond that need is not due: this is the explicit doctrine of the four madhhabs.
The Hanafis say: if the man keeps an open table and abundant food letting her take her fill, she may not demand from her husband the fixing of maintenance. Otherwise, if it appears to the judge that his table is lean and he harms her: the judge fixes maintenance for her in dirhams according to their condition and orders him to hand it over so she may support herself; if he does not give, he is imprisoned ("Sharh Fath al-Qadir", 4/387; "al-Bahr al-Ra'iq", 6/316; "Hashiyat Ibn Abidin", 3/581; "al-Fatawa al-Hindiyyah", 1/547).
The Malikis say the woman is invited to eat with her husband, for the affection and good marital life it involves, without being compelled to it by judgment. When she eats with him, her maintenance lapses for the period she shares his meals, even if maintenance was fixed, and clothing follows the same rule: if he clothes her, she has nothing else. She retains the right to refuse to eat with him and to demand the fixing, or foodstuffs to eat alone, so long as she has not committed herself to shared meals; some say she may refuse even if committed.
If she ate with him three days and then demands the fixing, the maintenance of those three days lapses from him, and the judge fixes thereafter. If she claims the maintenance of a past period and he alleges she ate with him during it, he is believed on the face of it ("Mawahib al-Jalil", 5/432; "Sharh Mukhtasar Khalil", 4/191; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/487; "Tahrir al-Mukhtasar", 3/413).
The Shafi'is according to the more correct view: if the woman eats with her husband willingly, by custom, her maintenance lapses, for such is people's practice in the lands, and such was the sufficiency of wives in the best of eras, that of the Messenger of Allah (peace and blessings of Allah be upon him), the Emigrants and the Helpers, with no woman claiming maintenance after him. Had maintenance not lapsed while the Prophet knew they shared meals, he would have informed them and disposed of it among the estates; yet it is a right due to her, and what invites her beyond that need is not due: this is the explicit doctrine of the four madhhabs ("al-Jawharah al-Nayyirah", 5/51; "al-Durr al-Mukhtar", 3/579; "al-Najm al-Wahhaj", 8/242-243; "Mughni al-Muhtaj", 5/157-158; "Tuhfat al-Muhtaj", 10/162-163; "al-Mughni", 8/159; "Kashshaf al-Qina'", 5/544).
The Malikis add to clothing (see below) the obligation of every adornment whose omission harms her, such as kohl and the customary kohl-oil, and henna for the woman accustomed to it: kohl preserves her sight, and neglect of henna, oil and the comb spoils her hair; hair dye (sibagh), however, is not owed ("al-Taj wa al-Iklil", 3/231-232; "Sharh Mukhtasar Khalil", 4/184; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/481; "Tahrir al-Mukhtasar", 3/404-407).
Third category: household furnishings. The husband owes all the wife needs of furnishings, bed, quilt, pillow and mat, by custom, along with eating, drinking and cooking implements one cannot do without, by custom ("al-Jawharah al-Nayyirah", 5/50-51; "al-Durr al-Mukhtar", 3/579; "al-Taj wa al-Iklil", 3/231-232; "Sharh Mukhtasar Khalil", 4/184; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/481; "Tahrir al-Mukhtasar", 3/404-407; "al-Najm al-Wahhaj", 8/244; "Mughni al-Muhtaj", 5/159; "Tuhfat al-Muhtaj", 10/166; "al-Mughni", 8/159; "al-Mubdi'", 8/188; "al-Insaf", 9/352-353; "Kashshaf al-Qina'", 5/542).
Fourth category: housing. The Muslim jurists agree that the husband owes his wife lodging in measure with their ease and hardship, by the word of the Most High: "Lodge them where you lodge, according to your means" (Surah At-Talaq, 6): if lodging is due to the divorced woman, it is all the more due to her still within the bond of marriage.
"Lodge them where you lodge, according to your means."
Surah At-Talaq, 6
And by His word: "and live with them in a proper manner" (Surah An-Nisa, 19): propriety requires housing her in a dwelling, she who cannot do without a roof for veiling herself from eyes, managing her affairs and enjoying. Housing is measured like maintenance by ease, hardship and middling condition, being obligated for her permanent interest like maintenance and clothing. The adopted view among the Shafi'is, also a Maliki view, is that the lodging be befitting her, since she cannot move from it and the house reflects on her honor.
The lodging need not be the husband's property: he may house her in owned, rented or borrowed premises, without disagreement ("Bada'i' al-Sana'i'", 4/23; "al-Jawharah al-Nayyirah", 5/48; "al-Ikhtiyar", 4/4; "al-Taj wa al-Iklil", 3/229; "Sharh Mukhtasar Khalil", 4/183; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/479; "Tahrir al-Mukhtasar", 3/403; "al-Muhadhdhab", 2/1625; "Rawdat al-Talibin", 6/56; "al-Najm al-Wahhaj", 8/245; "Mughni al-Muhtaj", 5/159-160; "Tuhfat al-Muhtaj", 10/167; "al-Mughni", 8/160; "al-Kafi", 3/364).
The Shafi'is say: if he lodges with her in her own house with her permission, or because she refused to join him, or in her father's house with his permission or his barring the move, the rent is not owed by him ("Mughni al-Muhtaj", 5/160; "Tuhfat al-Muhtaj", 10/167).
The Hanafis say: if the husband wants to house her with a co-wife who harms her, or with his female relatives, such as his mother, his sister or his daughter by another wife, or his kin, and she refuses, he must lodge her in a separate house, for they may mistreat her and harm her in shared living, and her refusal is proof of the harm. He must also be able to be intimate with her and keep her company at any time, impossible with a third present. Even if the house has rooms and he sets one apart for her with its own lock, they say she may not demand another house of him.
If she lives in her husband's house with no one alongside her and complains to the judge that he beats and mistreats her, the judge questions her neighbors: if they confirm her account being upright people, the judge rebukes him, orders him to treat her well, and charges the neighbors to look in on her. If the neighbors are not upright people, the judge orders him to move her to upright neighbors; if they contradict her account, he leaves her there and does not move her ("Bada'i' al-Sana'i'", 4/23).
Fifth category: a servant, for the woman who is served. The jurists of the four madhhabs agree that the woman who does not serve herself, by rank or by illness, is owed a servant, free or enslaved, whose wage and upkeep fall upon the husband, by the word of the Most High: "and live with them in a proper manner" (Surah An-Nisa, 19): propriety requires keeping a servant for her. It is a need akin to maintenance: she must have one who serves her and manages her household affairs, so that she may devote herself to her husband's needs, a benefit accruing to him, just as the judge is given from the public treasury (bayt al-mal) his sufficiency and a servant.
Disagreement: is more than one servant due? Abu Yusuf, of the Hanafis, says two servants are due her, no more; another narration from him ties the number to the woman's rank: if one servant does not suffice her service and she needs more, more is due in a proper manner, a view followed by al-Tahawi. The apparent sense of Abu Yusuf's view is that such a woman's service is not met by one servant: two are needed, one aiding the other, one serving her in her house, the other sent to her husband to claim maintenance and buy what suits her, or to her parents for her affairs ("Bada'i' al-Sana'i'", 4/24; "al-Hidayah", 2/41; "al-Muhit al-Burhani", 4/195-196; "al-Jawharah al-Nayyirah", 5/59; "al-Ikhtiyar", 4/4; "al-Umm", 5/87; "al-Hawi al-Kabir", 11/419; "al-Muhadhdhab", 2/162; "al-Najm al-Wahhaj", 8/245-246; "Mughni al-Muhtaj", 5/160-161; "Tuhfat al-Muhtaj", 10/167-169; "al-Ifsah", 2/207-208; "al-Mughni", 6/180; "al-Mubdi'", 8/190; "al-Insaf", 9/359; "Kashshaf al-Qina'", 5/544-545).
The Malikis according to the famous view say that if one servant does not suffice the wife and her station bears service like hers, such as the caliph's or king's daughter, more is due: it is marital life in a proper manner, and the obligation is measured by her sufficiency, the daughters of kings, with their extensive service, unable to make do with a single servant for washing their clothes, arranging their bed and the rest. Note that if he is incapable of providing one, he is not divorced for it according to the famous view; and if they dispute her entitlement to service, two opinions split the burden of proof ("al-Ishraf 'ala Nakt Masa'il al-Khilaf", 4/64-65, no. 1409; al-Qurtubi's tafsir, 5/97-98; "al-Taj wa al-Iklil", 3/232; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/482; "Tahrir al-Mukhtasar", 3/407-408; al-Sawi's gloss, 6/137).
The majority of jurists, Hanafis in the madhhab, that is, according to the view of Abu Hanifah and Muhammad, some Malikis, the Shafi'is and the Hanbalis, say only one servant is due her: what is owed is her being served in person, which one servant suffices to provide. Were the husband to serve her himself, no servant's maintenance would fall on him, and one servant takes his place; beyond that the limit ceases to be known, so two servants cannot be preferred to three or four: hence it is fixed at the minimum, which is one.
All this assumes the husband well-off by agreement; in hardship, Abu Hanifah, on what al-Hasan reports from him, the more correct view, owes nothing while in hardship even if she has a servant, for the obligated maintenance of the poor is the minimum of sufficiency, and the woman can make do with serving herself. Muhammad, Abu Hanifah on one narration, and the Shafi'is say a servant is due her if she is not of those who serve themselves, with its upkeep on him, even in hardship; otherwise not: if she already has a servant, that shows she does not accept serving herself; without one, she is presumed content, and he is not compelled to hire one ("Bada'i' al-Sana'i'", 4/24; "al-Jawharah al-Nayyirah", 5/59; "al-Najm al-Wahhaj", 8/245-246; "Mughni al-Muhtaj", 5/160-161; "Tuhfat al-Muhtaj", 10/167-169).
The husband owes his wife's clothing by consensus of the people of knowledge. Imam Ibn al-Mundhir (may Allah have mercy on him) said the scholars agree on her maintenance and clothing in a proper manner ("al-Ishraf", 5/157). Imam Ibn Rushd (may Allah have mercy on him) confirmed their agreement that maintenance and clothing are among the wife's rights ("Bidayat al-Mujtahid", 2/40). Imam al-Nawawi (may Allah have mercy on him) said the obligation of her maintenance and clothing is established by consensus ("Sharh Sahih Muslim", 8/184).
Imam Ibn Qudamah (may Allah have mercy on him) specifies that clothing is owed her by consensus of the scholars, on the texts cited and because she cannot do without it permanently, making it like maintenance. It is assessed by her adequate sufficiency, not fixed by the Law like maintenance, the companions of al-Shafi'i agreeing, the matter resting on the governor's ijtihad: he fixes it by her sufficiency, the ease or hardship of both spouses, and the custom of their likes, as with maintenance and as with the divorced woman's consolation gift.
He assigns to the well-off man for the well-off wife the finest garments of the land, linen, silk and brocade; to the poor man for the poor wife, coarse cotton and linen; to the intermediate, the middle. The minimum owed: a shirt, trousers (sarawil), a veil, footwear and a winter coat; added to it the number of garments of habitual, necessary use, excluding garments of adornment and ornament. Its sources are the word of Allah: "Upon the father of the children is their provision and their clothing in a proper manner" (Surah Al-Baqarah, 233), the Prophet's word: "They have a right over you to their provision and clothing, in a proper manner", and his word to Hind: "Take what suffices you and your child, in a proper manner" ("al-Mughni", 8/159).
The Hanafis detail: her clothing is two shirts, two head-veils (khimar) and one wrap (milhafah). For the poor husband, in winter: a fine-quality shirt (harawi), a wrap, a veil and a covering; in summer: a shirt, a veil and a wrap. For the well-off, in winter: a harawi shirt, a fine wrap (daynuriyyah), a silk veil (ibrisam) and a covering; in summer: a saburi-type shirt, a silk veil and a wrap; and for her servant, a shirt, an izar and a covering.
If clothing is fixed for her for six months, she has no right to anything else before the term. If the garment tears before the term through normal wear, a new one is due; otherwise not. If the garment survives the term through non-wearing, wearing another, or wearing it one day and not another, a new set of clothing is due her; otherwise not. Likewise, if she withheld her maintenance without spending it, a new maintenance is fixed for her; if she wore her clothing normally and it tore before the term, he renews it; if it does not tear during the period, nothing else is due ("al-Jawharah al-Nayyirah", 5/49-50).
The Malikis say the husband owes his wife's clothing by custom, in measure with her state and his. If she demands more than the custom of her likes, or he wants to give her less than they are used to, neither is heeded and both are returned to custom. Silk is not owed her, even if he is well-off; on one view, he is bound to it if it belongs to the dress and custom of her family ("al-Taj wa al-Iklil", 3/229-230; "Sharh Mukhtasar Khalil", 4/183-184; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/479-480; "Tahrir al-Mukhtasar", 3/403-404).
The Shafi'is say sufficient clothing is due, its sufficiency varying with height, corpulence or slenderness, and with lands in heat and cold. The number of garments does not vary with the husband's ease or hardship, which affect only quality, with no difference between city woman and bedouin woman. Every six months are due her a shirt covering the whole body, trousers covering the lower body, a head-veil, footwear (mi'kab), and, in winter, a cotton coat ("Mughni al-Muhtaj", 5/156).
The jurists differed over the sick wife's status: does the husband owe his wife's medical care, the physician's fee, the medicine's price and the cupper's wage, or not?
The majority of jurists, Hanafis, Malikis according to the famous view, Shafi'is and Hanbalis, say that if the wife falls ill, the husband does not owe her medical care, neither the physician's fee nor the medicine's price, which come from her own property, nothing of that weighing on him. These costs do not belong to the established maintenance: they are needed only on the occasion of a contingency, and they aim at repairing the body, just as the hirer is not bound to repair what decays in the house or to preserve its structures, and likewise the wage of the cupper and the bloodletter ("al-Mabsut", 21/105; "Bada'i' al-Sana'i'", 3/20; "al-Jawharah al-Nayyirah", 5/51; "al-Taj wa al-Iklil", 3/231; "Sharh Mukhtasar Khalil", 4/187; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/482-483; "Tahrir al-Mukhtasar", 3/409; "al-Muhadhdhab", 2/161; "Rawdat al-Talibin", 6/55; "Kanz al-Raghibin", 4/183; "al-Najm al-Wahhaj", 8/243; "Mughni al-Muhtaj", 5/158; "Tuhfat al-Muhtaj", 10/163; "al-Mughni", 8/159; "al-Kafi", 3/363; "Matalib Uli al-Nuha", 5/620).
Ibn Abd al-Hakam, of the Malikis, goes the other way: if the wife falls ill, the husband is bound to the physician's fee and the treatment, and Imam Khalil says this is the apparent view ("al-Tawdih", 5/132; "Tahrir al-Mukhtasar", 3/409; "Minh al-Jalil", 4/392).
The jurists agree that the husband who, from wealth, falls into hardship while still paying the poor-level maintenance does not have his marriage dissolved. Imam al-Mawardi (may Allah have mercy on him) said: the husband's insolvency for the well-off maintenance of two mudds, while able to pay the poor-level one mudd, gives the wife no option of dissolution, even if she is of high station: this is agreed ("al-Hawi al-Kabir", 11/454).
The disagreement concerns the man become wholly unable to spend: may she dissolve the marriage, must she support herself, or borrow against him?
The Hanafis and the Shafi'is contrary to the apparent opinion: the spouses are not separated for his inability over maintenance; she is ordered to borrow against him. They cite the word of the Most High: "If the debtor is in hardship, grant him a delay until ease" (Surah Al-Baqarah, 280): maintenance can at most be a debt against the estate, and the husband has become insolvent over it, so the woman is bidden by the text to grant delay. And by: "Allah burdens no soul beyond what He has given it. Allah will bring ease after hardship" (Surah At-Talaq, 7): one unable to spend is not charged with spending.
Separation would annul his right over her, while the order to borrow defers her right as a debt upon him, which is lighter. The Most High recommended marriage to the single and to slaves, saying that if they are poor, Allah will enrich them from His bounty (Surah An-Nur, 32): it is inconceivable to recommend marriage to one whose marriage may be dissolved. The mahr, firmer after consummation and giving no right of dissolution, shows that maintenance, weaker, gives none either; nor is she entitled to it for her servant's upkeep, which is known to give no dissolution; and maintenance has two states, the past being a debt without dissolution, the future not yet owed: no cause of dissolution remains.
The Hanafis specify the procedure: the judge tells her "buy food and clothing, eat and wear them, and reclaim their price from your husband", which is borrowing, and not "borrow from your husband", delegation to borrow being invalid. The point of authorizing her to borrow is that the claim passes to the husband, who may be pursued even unwilling; if she borrows without his authorization, the claim rests on her alone. If she borrows before the governor's order, it is voluntary and nothing of it weighs on the husband, unless maintenance had already been fixed on him, in which case it is no longer voluntary but a debt. Added to this is recourse after the death of either ("Tabyin al-Haqa'iq", 3/45, 55; "al-Jawharah al-Nayyirah", 5/61; "al-Ikhtiyar", 4/6; "al-Lubab", 2/186; "al-Hawi al-Kabir", 11/454-455; "al-Najm al-Wahhaj", 8/266-267; "Mughni al-Muhtaj", 5/175; "Tuhfat al-Muhtaj", 10/209; "Nihayat al-Muhtaj", 7/246; "al-Dibaj", 3/635).
The Malikis, the Shafi'is according to the apparent opinion, and the Hanbalis say the husband unable over maintenance, clothing or housing leaves the wife free to choose: to remain with him despite his hardship, maintenance becoming a debt she will recover if he prospers, or to have her marriage dissolved by the governor, by the word of the Most High: "Either retention in propriety or release with graciousness" (Surah Al-Baqarah, 229): unable to retain her as is proper, he owes her release with graciousness, for one made to choose between two things and unable to do one is bound by the other. And by: "Do not retain them to harm them and to transgress" (Surah Al-Baqarah, 231): the insolvent husband's wife is harmed, so he may not retain her.
From Abu Hurayrah (may Allah be pleased with him), the Prophet (peace and blessings of Allah be upon him) said, about the man who finds nothing to spend on his wife: "Let them be separated", a weak report (al-Daraqutni no. 3784, al-Bayhaqi). And he said:
"The best charity is that which leaves one self-sufficient, and the giving hand is better than the receiving hand; begin with those you support. The wife will say: either feed me or divorce me; the slave will say: feed me and employ me; and the child will say: feed me, to whom will you leave me?"Reported by Bukhari (no. 5040)
This informs of what she may do. Imam al-Shafi'i reports from Sufyan from Abu al-Zinad: I asked Sa'id ibn al-Musayyab about the man who finds nothing to spend on his wife; he said: "Let them be separated"; I asked: is it a sunnah?; he said: a sunnah. Al-Shafi'i (may Allah have mercy on him) comments: Sa'id's word "sunnah" most likely means the Sunnah of the Messenger of Allah ("al-Umm", 5/107; sound up to Sa'id, reported by al-Shafi'i in his "Musnad", p. 266, and Sa'id ibn Mansur in his "Sunan", no. 25022).
Imam Malik (may Allah have mercy on him) said: this is how I found the people of knowledge in my land: they are separated ("al-Muwatta'", 2/588; "al-Istidhkar", 6/208). And by the report of Nafi' from Ibn Umar (may Allah be pleased with them both) already cited, Umar ibn al-Khattab (may Allah be pleased with him) ordered that they be made to spend or divorce. Umar, Ali and Abu Hurayrah (may Allah be pleased with them) affirmed dissolution for insolvency, and al-Shafi'i said he knows of no Companion who contradicted them: if physical incapacity for intercourse grounds dissolution, inability to maintain does so more fittingly; and if separation is allowed for the oath of abstinence (ila') and impotence, whose harm is less than the harm of withheld maintenance, all the more for the latter.
Maintenance is a right intended by every marriage, its loss grounding dissolution as loss of enjoyment does in the man unable of erection and the impotent; and the argument from this basis is a fortiori in two respects: the body endures abstaining from intercourse, not from food; and the right of dissolution established for loss of the shared enjoyment applies all the more to loss of the maintenance exclusive to the wife.
Disagreement over the delay: the Hanbalis and al-Shafi'i on one view hold that, once insolvency is established, the wife may demand dissolution without delay, on the face of Umar's report and because the cause of dissolution already exists, as with a defect, the governor having imposed no delay. Malik says a month or the like; others: at the governor's discretion; others: no delay; others: a day or so, not enough for hunger to harm her; others: three days. Malik's companions hold the month or two months, the governor then divorcing after the delay and finding nothing for him to spend or clothe with. Al-Shafi'i, on the second view, which is the apparent one in the madhhab, allows a delay of three days, for it is short ("al-Istidhkar", 6/208; "al-Ishraf 'ala Nakt Masa'il al-Khilaf", 4/67-68, no. 1413; "al-Taj wa al-Iklil", 3/245-246; "Sharh Mukhtasar Khalil", 4/196-197; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/494-495; "Tahrir al-Mukhtasar", 3/421; "al-Ishraf", 5/160-161; "al-Hawi al-Kabir", 11/454-456; "al-Muhadhdhab", 2/163; "al-Najm al-Wahhaj", 8/266-267; "Mughni al-Muhtaj", 5/175-179; "Tuhfat al-Muhtaj", 10/209; "Nihayat al-Muhtaj", 7/246; "al-Dibaj", 3/635; "al-Mughni", 8/163; "Kashshaf al-Qina'", 5/560; "Sharh Muntaha al-Iradat", 5/667-668; "Manar al-Sabil", 3/195-196).
The majority of jurists, Hanafis, Malikis, Shafi'is according to the more correct view and Hanbalis, state: the well-off husband who refuses to spend gives no right of dissolution, for the wife can obtain her right through the governor or with her own hand if his property is within her reach, per the hadith of Hind (Bukhari no. 5049, Muslim no. 1714): the Prophet (peace and blessings of Allah be upon him) ordered her to take, without granting dissolution.
If she can take nothing, she brings the matter to the governor, who orders him to spend and compels him; if he refuses, he is imprisoned, and if he endures imprisonment, the governor takes the maintenance from his property. Ibn Qudamah (may Allah have mercy on him) says that if he has only goods or real estate, it is sold for that; Malik, al-Shafi'i, Abu Yusuf, Muhammad and Abu Thawr say the same.
Abu Hanifah restricts maintenance to cash, dinars and dirhams, and refuses the sale of goods without prior delivery, for the sale of a man's property takes effect only by his consent or that of his guardian, and no one holds guardianship over the sane adult. He is answered: the Prophet told Hind "Take what suffices you" without separating them, and this property is his, maintenance being taken from it as from dirhams and dinars; moreover the governor holds guardianship over him when he refuses, as shown by his guardianship over his dirhams and dinars.
If maintenance becomes impossible to take during his absence while he has an agent, the agent's authority stands for his in claiming and taking from the property at his refusal; without an agent, and if the woman cannot take, the governor takes for her from his property, and selling his real estate and goods is permitted if there is no other source of maintenance. Maintenance is paid day by day, according to al-Shafi'i and Yahya ibn Adam; the people of opinion say the judge fixes it monthly.
They are answered: that would advance maintenance before it is due, which is not permitted, just as advancing more than a month is not permitted ("al-Mughni", 8/164; "Tabyin al-Haqa'iq", 3/45, 55; "al-Jawharah al-Nayyirah", 5/61-62; "al-Ikhtiyar", 4/6; "al-Lubab", 2/186; "al-Hawi al-Kabir", 11/457; "al-Najm al-Wahhaj", 8/267-268; "Mughni al-Muhtaj", 5/175; "Tuhfat al-Muhtaj", 10/209-210; "Nihayat al-Muhtaj", 7/245-246; "al-Dibaj", 3/635).
The jurists asked: if the wife can take nothing of his property, or the governor is prevented, the husband having hidden his property and enduring imprisonment, or the maintenance cannot be taken from the absent man's property, does dissolution stand?
The Hanafis, the Shafi'is according to the more correct view, and the Qadi of the Hanbalis say that if the husband has hidden his property and endures imprisonment, or maintenance cannot be taken from the absent man's property, she has no right of dissolution: dissolution of the insolvent answers the defect of insolvency, absent here, and the well-off man remains presumed such as long as taking from his property can be hoped for. His refusal one day does not exclude abundance the next, unlike the insolvent ("al-Jawharah al-Nayyirah", 5/61-62; "al-Ikhtiyar", 4/6; "al-Lubab", 2/186; "al-Hawi al-Kabir", 11/457; "al-Najm al-Wahhaj", 8/267-268; "Mughni al-Muhtaj", 5/175; "Tuhfat al-Muhtaj", 10/209-210; "Nihayat al-Muhtaj", 7/245-246; "al-Dibaj", 3/635; "al-Mughni", 8/164).
The Malikis, the Shafi'is contrary to the more correct view, and the Hanbalis in the madhhab say that in this case she has the option of dissolution, by Umar's report already cited, which is a compulsion to divorce at his refusal to spend, a sound report (al-Shafi'i in his "Musnad", 1/267; Abd al-Razzaq in his "Musannaf", no. 12347; al-Bayhaqi in "al-Sunan al-Kubra", no. 15484).
Spending on her from his property having become impossible, she has the option as in insolvency, all the more: if dissolution is allowed for the excused, all the more for the other; the harm in patience can be removed by dissolution and must be; and it is a kind of impossibility that permits dissolution, with no difference between the well-off and the insolvent, as paying the price of the sold item makes no difference, for rescission of the sale, between the buyer being insolvent and his fleeing before paying the price. The defect of insolvency permitted dissolution only through inability to spend, as shown by the case of the man who borrows what to spend or is given it by a donor: she then no longer has dissolution.
To the objection "he may spend later", we answer: the insolvent too may be enriched by Allah, may borrow or be given what to spend; the two cases are therefore alike ("al-Muhadhdhab", 2/163; "al-Najm al-Wahhaj", 8/267-268; "Mughni al-Muhtaj", 5/175; "Tuhfat al-Muhtaj", 10/209-210; "Nihayat al-Muhtaj", 7/245-246; "al-Dibaj", 3/635; "al-Mughni", 8/164; "Sharh Muntaha al-Iradat", 5/669-671; "Kashshaf al-Qina'", 5/562-563).
Maliki preliminary: the man whose hardship is not established while he confesses abundance and refuses to spend and to divorce, having no visible property, has divorce hastened for him on one view, or is imprisoned until he spends on her on another, two views reported by Ibn Arafa. If imprisoned and he does not comply, his divorce is hastened, as it is hastened without delay when the governor obtained nothing from him at her request; if he has visible property, it is taken from him by force ("Mawahib al-Jalil", 5/444; "Sharh Mukhtasar Khalil", 4/197; al-Adawi's gloss on "Kifayat al-Talib al-Rabbani", 2/171).
The jurists asked: if the well-off man is absent, refuses to spend, and spending on her becomes impossible, may she dissolve the marriage?
The Hanafis and the Shafi'is according to the more correct view: no dissolution for the well-off man's refusal, present or absent. If the husband is absent, the governor writes to him or takes from his property at hand for the support of his wife. As long as the absent man's ease or hardship is unknown, there is no dissolution, the cause not being established; if his hardship is established before the governor of the wife's land, dissolution is permitted according to the more correct view. On another view, not until he has been sent for; if he neither comes nor sends maintenance, it is dissolved over him.
If his whereabouts are unknown, news of him having been cut off, does she have dissolution? Two opinions divide in the madhhab, dissolution and its refusal ("al-Najm al-Wahhaj", 8/267-268; "Mughni al-Muhtaj", 5/175; "Tuhfat al-Muhtaj", 10/209-210; "Nihayat al-Muhtaj", 7/245-246; "al-Dibaj", 3/635).
The Hanbalis and the Shafi'is contrary to the more correct view: it is the wife's right to dissolve the marriage if her well-off husband is absent, does not spend on her, she finds nothing to take of his property at hand, and she cannot obtain her maintenance from him by borrowing and the like: spending on her from his property having become impossible as in insolvency, all the more, and the harm in patience being removable by dissolution and thus requiring removal, to ward off harm. This is the choice of al-Qadi al-Tabari; al-Ruyani and the author of "al-'Uddah" say the fatwa rests on it; Ibn al-Sabbagh inclined to it, saying the fatwa rests on it, and al-Ghazali gave the fatwa accordingly ("al-Najm al-Wahhaj", 8/267-268; "Mughni al-Muhtaj", 5/175; "Tuhfat al-Muhtaj", 10/209-210; "Nihayat al-Muhtaj", 7/245-246; "al-Dibaj", 3/635; "al-Mughni", 8/164; "Sharh Muntaha al-Iradat", 5/660, 671; "Kashshaf al-Qina'", 5/563).
The Malikis, for their part, do not distinguish the well-off present from the well-off absent.
The jurists asked: if she married a man knowing his hardship, may she afterwards dissolve the marriage for his inability to maintain?
The Malikis according to the famous view and the Hanbalis on one narration say that if the wife knows at the time of the contract the husband's poverty, dissolution is not hers, even if he prospers and then falls back into hardship: she accepted his defect and entered the contract knowing it, like the woman who marries an impotent man ('unnin) knowing it, or who says after the contract: "I accepted him impotent".
The Malikis extend: the woman who knows at the time of the contract that her husband lives on begging, door to door, and consummates with him consenting, obtains no right of dissolution and remains with him without maintenance; knowledge is presumed if he is a notorious beggar, actual if he is poor without begging. If she consummates with him believing him a beggar and he gives up begging after consummation, the right of dissolution is established; likewise if her husband is not a beggar but notoriously a recipient of gifts, and she consummates knowing it and then the gifts cease: dissolution is hers ("al-Taj wa al-Iklil", 3/245-246; "Sharh Mukhtasar Khalil", 4/197; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/494-495; "Tahrir al-Mukhtasar", 3/421).
The Shafi'is, the Hanbalis in the madhhab, and the Malikis contrary to the famous view say that if she consented to remain with him despite his hardship or his abandoning future spending, then dissolution appears to her, or she married him insolvent knowing his state and accepting his hardship and his abandoning spending, or he stipulated not to maintain her and she then has dissolution, she obtains it: maintenance renews every day, so the dissolution attached to it renews, and one cannot waive a right not yet owed, as with waiving preemption before the sale.
If she waives future maintenance, the waiver does not stand; if she waives the mahr before the marriage, it does not stand; the obligation not lapsing, the dissolution established through it does not lapse. Her saying "I accept his insolvency forever" has no effect, a promise whose performance is not binding.
If she nonetheless remains with him, she is not bound to place herself at his disposal: the return not having been delivered to her, she owes no surrender, like the insolvent buyer to whom delivery of the sold item is not owed; and he must leave her free to earn and obtain what she spends on herself, for holding her without maintenance harms her. If she is well-off, he cannot hold her: he has this right only by covering her needs and enjoying the right due to her, both conditions being absent here ("al-Najm al-Wahhaj", 8/276; "Mughni al-Muhtaj", 5/180; "Tuhfat al-Muhtaj", 10/221; "Nihayat al-Muhtaj", 7/250; "al-Dibaj", 3/640; "al-Mughni", 8/165; "Kashshaf al-Qina'", 5/560-561; "Tahrir al-Mukhtasar", 3/421).
The Hanafis, as seen, hold no dissolution for the husband's insolvency over maintenance.
The Malikis, the Shafi'is in the madhhab, and the Hanbalis who hold dissolution for insolvency or refusal to spend state: dissolution is valid only by the governor's ruling, for it is a contested dissolution requiring the judge, like that for impotence; and he does not separate except at the wife's request, for it is her right, unlike dissolution for impotence ("Sharh Mukhtasar Khalil", 4/198; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/495; "al-Najm al-Wahhaj", 8/273; "Mughni al-Muhtaj", 5/178-179; "Tuhfat al-Muhtaj", 10/217-218; "Nihayat al-Muhtaj", 7/249; "al-Dibaj", 3/639; "al-Mughni", 8/165; "Kashshaf al-Qina'", 5/564).
Among the Malikis, the community of the Muslims stands in the governor's place. The upright witnesses ('udul) take the judge's place in this matter and in everything beyond his reach or where the judge is not upright, and one of them suffices ("Sharh Mukhtasar Khalil", 4/198; "al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/495).
The Shafi'is say dissolution may come from a judge or from an arbitrator bound by his stipulation (muhakkam), on condition he be a mujtahid, even with a judge or an imitator present: appointing an arbitrator does not require the governor's absence. The arbitrator dissolves for insolvency, or authorizes her to do so, and before that nothing of her dissolution has effect, outward or inward, her waiting period (iddah) being counted only from the dissolution.
If judge and arbitrator are both absent from her place, or she cannot bring the case to the judge, for instance if he says "I will not dissolve until you pay me", she dissolves by herself out of necessity, with effect outward and inward, the dissolution resting on a sound ground that necessarily carries inward effect. On another Shafi'i view, she may do so herself without litigation before the judge, like rescission of a sale for a defect. Al-Damiri (may Allah have mercy on him) specifies this holds if she can bring the case to the judge; if there is in the region neither judge nor arbitrator, "al-Wasit" states it: her acting alone in dissolution is agreed. Ibn al-Rif'ah adds that the effects of dissolution follow inwardly, so that if he prospers afterward she owes him no surrender, and if he prospers before her death he may not inherit what she leaves ("al-Najm al-Wahhaj", 8/273; see "Mughni al-Muhtaj", 5/178-179; "Tuhfat al-Muhtaj", 10/217-218; "Nihayat al-Muhtaj", 7/249; "al-Dibaj", 3/639).
The Hanbalis allow dissolution only by the governor's ruling. Al-Bahuti (may Allah have mercy on him) said: none of these dissolutions is valid without the ruling of a governor, for it is a contested dissolution requiring the judge like that for impotence; the governor dissolves at her request, since it is her right which he obtains only by her asking, or she dissolves by his order ("Kashshaf al-Qina'", 5/564).
The jurists asked: when the governor separates the spouses, is it an irrevocable dissolution, or a revocable divorce giving him a right of return if she is still in her waiting period?
The Shafi'is, the Hanbalis and Ibn al-Mundhir (may Allah have mercy on him) say the governor's separation is a dissolution without return, for it is a parting caused by his inability to fulfill what he owes her, resembling the separation for impotence. If the governor compels him to divorce, it is a divorce of fewer than three, with right of return during the waiting period; and if he takes her back while insolvent or refusing to spend with nothing to be taken from his property, and the wife asks for dissolution, the governor grants it, the cause persisting as before the divorce ("Mughni al-Muhtaj", 5/175; "al-Mughni", 8/165; "Kashshaf al-Qina'", 5/564).
The Malikis say the divorce the governor imposes on the husband for insolvency is a revocable divorce; yet he may not take her back, and the return is not even valid, until he has an ease covering maintenance like hers, no less. The divorce the governor imposed was indeed for the harm of his poverty: return is possible only if its cause, insolvency, has gone, unless the wife consents, the right being hers ("Bidayat al-Mujtahid", 2/41).