Islamic Fiqh > Marriage and family > Nafqa (the wife's maintenance) > The irrevocably divorced non-pregnant woman: housing
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This chapter completes the study of nafqa, the maintenance allowance in fiqh: the case of the woman irrevocably divorced, by bayn or by a triple divorce, when she is not pregnant; the woman released through khul'; the disobedient wife; then the maintenance of relatives: parents, children, grandparents and collaterals; the amount owed, the order of priority when means are short, and finally the breastfeeding of the infant. Each question is presented according to the positions of the four schools, with their proofs drawn from the Quran, the Sunna and the transmitted consensus.
By the unanimous agreement of the scholars, the divorced woman who is pregnant is owed housing and maintenance, by the word of Allah, exalted is He, and by some reports of Fatima bint Qays: "you have no maintenance unless you are pregnant", and because what she carries is his child: he must support it, which is only possible by supporting her, like the fee for nursing (al-Mughni 8/185).
"House them where you dwell, according to your means, and do not harm them so as to straiten them. And if they are pregnant, spend on them until they lay down their burden."
Surah At-Talaq, 6
As for the woman divorced by bayn or three times, when she is not pregnant, the jurists differ: is she owed housing and maintenance during her waiting period, only maintenance, only housing, or nothing at all? The first point discussed here is housing.
The Hanbalis, in the madhhab, hold that the bayn and the thrice-divorced woman have no housing, based on what Muslim reported from ash-Sha'bi: I entered upon Fatima bint Qays and asked her about the ruling that the Messenger of Allah, peace and blessings of Allah be upon him, had issued in her favor. She said:
My husband had divorced me irrevocably. So I disputed with him before the Messenger of Allah over housing and maintenance, but he assigned me neither housing nor maintenance and ordered me to spend my waiting period in the house of Ibn Umm Maktum.Reported by Muslim (1480)
In another version from ash-Sha'bi, from Fatima bint Qays, from the Prophet, peace be upon him, concerning the thrice-divorced woman: "she has neither housing nor maintenance" (Muslim 1480). Abu Bakr ibn Abi al-Jahm reported hearing Fatima bint Qays say:
My husband sent me my divorce through Abu Amr ibn Hafs ibn al-Mughira Ayyash ibn Abi Rabi'a, who brought with him five wasqs of dates and five wasqs of barley. I said: Have I no maintenance other than this? And I shall not spend my waiting period in your house. He said: no. So I tightened my clothes and went to the Messenger of Allah, who said: How many times did he divorce you? I said: three times. He said: He spoke the truth: you have no maintenance. Spend your waiting period in the house of your cousin Ibn Umm Maktum, for he is blind and you may leave your garment there.Reported by Muslim (1480)
Amir also reported that Fatima told him her husband had divorced her in the lifetime of the Messenger of Allah, who had sent him on an expedition. His brother said to her: leave the house. She replied: I am owed maintenance and housing until the term expires. He said: no. She then went to the Messenger of Allah: so-and-so divorced me, his brother expelled me and denied me housing and maintenance. He sent for him and said: what is it between you and the daughter of the family of Qays? He answered: Messenger of Allah, my brother divorced her three times in one sitting. The Messenger of Allah said: "Listen, daughter of the family of Qays: maintenance and housing are owed by the husband to the wife only as long as he retains the right to take her back; when he no longer has that right, there is neither maintenance nor housing. Leave, and go and lodge with such-and-such a woman", and then he added: "he speaks with her; lodge with Ibn Umm Maktum, for he is blind" (Muslim 1480).
Ibn Qudama, may Allah have mercy on him, reports the objectors' case: Umar disapproved of this hadith and said: "we will not abandon the Book of our Lord and the Sunna of our Prophet for the word of a woman whose truthfulness or lying we do not know"; Urwa said that Aisha disapproved of it most severely: she would have been in an isolated place and her seclusion feared compromised; and Sa'id ibn al-Musayyib said: that woman tempted the people; she was of unsound mind and had been placed in the hands of the blind Ibn Umm Maktum.
Here is the reply. As for the contradiction with the Book: when they disapproved of it, she said: between you and me is the Book of Allah:
"You do not know whether Allah will bring about after that another matter."
Surah At-Talaq, 1
And what new matter could arise after the triple divorce? How then can you say she has no maintenance if she is not pregnant, and on what basis do you confine her? How can a woman be confined without maintenance? As for the word attributed to Umar: Ahmad denied that he said it thus, but said rather: "we do not allow in our religion the word of a woman", a general statement contradicted by his own practice: he accepted the report of Furi'a, who was a woman, and the narrations of Aisha and the wives of the Messenger of Allah in many rulings; and the scholars relied on this report of Fatima in many rules, such as the lapse of the bayn's maintenance when she is not pregnant, the woman's looking at men, or a man's proposal superseding his brother's proposal while she has not settled with the first (an authentic hadith reported by Imam Ahmad in his Musnad, 27145 and 27389, and an-Nasa'i, 3403).
As for those who interpreted her hadith, their reading is worthless: Fatima contradicts them and knows her own situation better than anyone; the interpreters never agreed on anything, and those who rejected her were themselves refuted. Maymun ibn Mihran said to Sa'id ibn al-Musayyib: that woman tempted the people; had she only followed the ruling the Messenger of Allah issued for her, she would have tempted no one: we have in the Messenger of Allah a fine example, even though she is among those most forbidden to her husband: he has over her neither the right of return nor inheritance. Aisha's statement, "she was in an isolated place", does not stand: the Prophet gave another reason: "maintenance and housing are owed only as long as your husband retains the right to take you back", as al-Humaydi and al-Athram reported. And if this interpretation were acceptable, Umar would not have needed to excuse himself by saying it was the word of a woman. Fatima is the protagonist of the affair, the best informed about her own situation; she disapproved of her disapprovers and answered those who rejected her report or interpreted it against its apparent meaning: her word must therefore prevail (al-Mughni 8/132-133; Sharh az-Zarkashi 2/567 and 570).
Ibn Taymiyya, may Allah have mercy on him, adds: when Umar saw that the bayn was owed housing and maintenance and thought the Quran indicated it, the majority of the Companions disputed it with him: some said "she has housing only", others "she has neither maintenance nor housing", among them Ibn Abbas, Jabir and Fatima bint Qays, who reported from the Prophet: "you have neither maintenance nor housing". When Umar's argument was set against them:
"Do not expel them from their houses, nor should they leave, unless they commit a manifest indecency."
Surah At-Talaq, 1
she and other Companions, such as Ibn Abbas and Jabir, replied: this concerns the wife who may be taken back, for Allah then says: "You do not know whether Allah will bring about after that another matter": what new matter could there be after the triple divorce? And the jurists of hadith, such as Ahmad ibn Hanbal according to the apparent meaning of his madhhab, are with Fatima bint Qays (Majmu' al-Fatawa 33/32-33).
The majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis in one narration, oblige housing for the bayn and the thrice-divorced woman, based on "House them where you dwell, according to your means": a general verse that includes wives and divorced women, even though it is more specific for the latter, for what precedes and follows it is its proof; she is observing a waiting period from divorce and is therefore owed housing like the wife who may be taken back.
It is reported that the Prophet said to Furi'a bint Malik, the sister of Abu Sa'id al-Khudri, when she told him her husband had been killed and had left her no house he owned: "stay in your house until the Book reaches its term". Since he made housing obligatory in the waiting period of death, all the more in the waiting period of divorce: she observes a waiting period in it, and housing is owed to her like to the wife who may be taken back.
They answer the hadith of Fatima that senior Companions, such as Umar, disapproved of it before the assembly of the Companions: Muslim reports from Abu Ishaq: I was sitting with al-Aswad ibn Yazid in the Great Mosque, and with us was ash-Sha'bi, who narrated the hadith of Fatima: the Messenger of Allah had assigned her neither housing nor maintenance. Al-Aswad took a handful of pebbles and pelted him: woe to you, do you narrate such a thing? Umar said: we will not abandon the Book of Allah and the Sunna of our Prophet for the word of a woman whose memorizing or forgetting we do not know; she has housing and maintenance, for Allah said: "Do not expel them from their houses..." (Muslim 1480).
Hammad reported from ash-Sha'bi that Fatima related her husband had divorced her three times and the Prophet had said: neither maintenance nor housing. She informed an-Nakha'i, who reported that Umar, when informed of this, said: "we will not abandon a verse of the Book of Allah nor the word of the Messenger of Allah for the word of a woman who may have been deluded; I heard the Messenger of Allah say: she has housing and maintenance" (at-Tahawi, Sharh Ma'ani al-Athar 3/68). Al-A'mash reported from Umara ibn Umayr, from al-Aswad, that Umar ibn al-Khattab and Abdallah ibn Mas'ud said of the thrice-divorced woman: "she has housing and maintenance" (at-Tahawi 3/68).
Umar thus disapproved of this hadith of Fatima and did not accept it; Usama ibn Zayd also disapproved of it: Abu Salama ibn Abd ar-Rahman reported that Fatima used to relate that the Messenger of Allah had told her to spend her waiting period in the house of Ibn Umm Maktum; Muhammad ibn Usama ibn Zayd used to say: whenever Fatima mentioned any of that, Usama threw at her whatever was in his hand (at-Tahawi 3/68).
Aisha, may Allah be pleased with her, also disapproved of it. Yahya ibn Sa'id heard al-Qasim ibn Muhammad and Sulayman ibn Yasar relate that Yahya ibn Sa'id ibn al-As had divorced the daughter of Abd ar-Rahman ibn al-Hakam, and that Abd ar-Rahman ibn al-Hakam moved her out. Aisha sent word to Marwan, the governor of Medina: fear Allah and return the woman to her house. Marwan replied: Abd ar-Rahman overpowered me; then he asked: have you not heard the hadith of Fatima bint Qays? Aisha said: "it does you no harm not to mention the hadith of Fatima bint Qays", meaning she had had a special case that occasioned the ruling issued for her. Marwan said: if evil befalls you, the evil between these two is enough for you; that is: I expelled her for the same evil for which Fatima had been expelled. Ar-Rahman ibn al-Qasim reported from his father that Aisha said: "what standing does Fatima's report have when this hadith is mentioned?", that is, her words: neither maintenance nor housing. Aisha therefore did not rule by the hadith of Fatima.
Sa'id ibn al-Musayyab, for his part, gave it another meaning. Amr ibn Maymun reported from his father: I asked Sa'id ibn al-Musayyib where the thrice-divorced woman spends her waiting period; he said: in her house. I said: did the Messenger of Allah not order Fatima bint Qays to spend it in the house of Ibn Umm Maktum? He said: "that woman tempted the people and had nothing but foul language for her kin; the Messenger of Allah therefore ordered her to spend it in the house of Ibn Umm Maktum, a man deprived of sight." Ibn Shihab reported that Abu Salama told him the Prophet's words, and that the people disapproved of what she narrated about her leaving before the end of her waiting period. Here is also the attestation that Abu Salama knew the people, among them Companions of the Messenger of Allah and those who joined them among the successors, had disapproved of it: Umar, Usama and Sa'id ibn al-Musayyib along with those we have mentioned; and this disapproval came from Umar ibn al-Khattab before the assembly of the Companions without any of them disapproving of him: their abstention from disapproval proves their position was his (Bada'i' as-Sana'i' 3/209-210; at-Tajrid of al-Quduri 10/5395-5396; al-Ishraf 4/22 and 24; Bidayat al-Mujtahid 2/71; al-Hawi al-Kabir 11/246 and 248; al-Bayan 11/50-51; Sharh Sahih Muslim 10/95-96; an-Najm al-Wahhaj 8/165; Mughni al-Muhtaj 5/110; Tuhfat al-Muhtaj 10/63).
The Hanafis hold that maintenance and housing are owed to the bayn and the thrice-divorced woman, based on "House them where you dwell, according to your means"; and in the reading of Abdallah ibn Mas'ud, may Allah be pleased with him: "House them where you dwell and spend on them according to your means". There is no difference between the two readings: one explains the other, like "As for the thief, male and female, cut off their hands" and the reading of Ibn Mas'ud: "their oaths": this is not a difference of reading, but a reading that explains the apparent reading; the same applies here.
"Let the man of means spend according to his means; and the one whose resources are restricted spend of what Allah has given him."
Surah At-Talaq, 7
Moreover, the command to house them is a command to spend: she is confined and prevented from going out, unable to earn her maintenance; if it were not owed by the husband and she had nothing, she would perish or be straitened and pressed, which is not permissible. And the preceding verse states the obligation without distinction between before and after the divorce during the waiting period.
Maintenance was obligatory before the divorce because she was confined from going out by the husband's right; that confinement persists after the divorce during the waiting period, and the right of the Law is added to it: before the divorce the confinement was the husband's right in exchange for her release; after the divorce it is the right of the Law that attaches to it, so that she may not go out even if the husband permits her. Since maintenance was therefore obligatory before the divorce was confirmed, all the more after.
As for "spend on them until they lay down their burden", it contains a command to spend on the pregnant woman, without negating the obligation toward the non-pregnant one, without establishing it either: the matter remains suspended on the proof, and the proof of the obligation is what we have given. As for the hadith of Fatima bint Qays, Umar, may Allah be pleased with him, rejected it: in the report transmitted by at-Tahawi (3/68), Umar said: "we will not abandon a verse of the Book of Allah nor the word of the Messenger of Allah for the word of a woman who may have been deluded; I heard the Messenger of Allah say: she has housing and maintenance"; and al-A'mash reported that Umar and Abdallah ibn Mas'ud said: "she has housing and maintenance".
It has also been said, to interpret it: she had nothing but outrageous words for her kin, and she let her tongue run against them with insult; the Messenger of Allah therefore moved her to the house of Ibn Umm Maktum without assigning her maintenance or housing, for she had become like the disobedient wife when the cause of leaving lay with her. And so it is judged of the woman who leaves her husband's house during her waiting period, or who gives a cause for leaving: she is not entitled to maintenance as long as she stays with someone other than her husband. It has also been said: her husband was absent, so no ruling of maintenance and housing was issued against him, for it is not permitted to rule against an absent man without an adversary present.
And because maintenance is owed in exchange for confinement, which persists after the triple divorce and the bayn, maintenance persists; whether the woman observing the waiting period from divorce is adult or minor, Muslim or dhimmi, for the proofs given entail no distinction (Bada'i' as-Sana'i' 3/209-210; at-Tajrid of al-Quduri 10/5395-5396).
The majority of jurists, the Malikis, Shafi'is and Hanbalis, hold that the thrice-divorced woman and the bayn have no maintenance: in the verse, Allah specified the pregnant woman in the command to spend; if spending were owed to the non-pregnant woman, the specification would be void; Allah therefore made the bayn's maintenance an obligation conditioned upon pregnancy, which proves its lapse in the absence of pregnancy. And if maintenance were owed as housing is, specifying it for the pregnant woman would have no meaning: the specification therefore entails that the woman has no maintenance if she is not pregnant. Allah, in mentioning housing, made it general for every divorced woman; in mentioning maintenance, He restricted it to pregnancy: the bayn therefore has no maintenance.
Added to this are the three reports of Fatima bint Qays transmitted by Muslim (1480) and already cited: "he assigned me neither housing nor maintenance"; "she has neither housing nor maintenance"; "maintenance and housing are owed only as long as he retains the right to take her back". And because the marital bond has been dissolved, maintenance lapses with it, as for the woman whose husband has died; and because the separation is definitive, her maintenance lapses as for the woman who has not been consummated; maintenance is in exchange for availability: when that goes, maintenance goes; he enjoys his wife as he owns his slave woman: just as the slave woman's maintenance lapsed when his ownership of her servitude ended, the wife's maintenance lapses when his ownership of the enjoyment ended (al-Muwatta 5/580-581; al-Mudawwana al-Kubra 5/471; at-Tamhid 19/141; al-Istidhkar 6/165; al-Ishraf 4/23; Sharh Sahih al-Bukhari 7/496; Ahkam al-Qur'an of Ibn al-Arabi 4/287; al-Hawi al-Kabir 11/465-466; al-Muhadhdhab 2/164; al-Bayan 11/230-231; Sharh Sahih Muslim 10/95; al-Mughni 8/185 and 187).
The jurists therefore differed over the housing and maintenance of the non-pregnant bayn according to three views:
The cause of their difference: the divergence of narrations in the hadith of Fatima bint Qays and the opposition of the apparent meaning of the Book. Whoever establishes neither maintenance nor housing relies on the hadith of Fatima reported by Muslim: "my husband divorced me three times in the lifetime of the Messenger of Allah; I went to the Prophet and he assigned me neither housing nor maintenance", and in some versions: "maintenance and housing are only for the wife whom her husband may take back": a word reported from Ali, Ibn Abbas and Jabir ibn Abdallah. Those who establish housing without maintenance rely on the version of Malik's Muwatta of the same hadith: "you have no maintenance claim on him", with the order to spend the waiting period at Ibn Umm Maktum's, with no mention of the lapse of housing: the generality of the verse "House them..." therefore stands; they explained the order by the abusive language on her tongue. And those who establish both rely on the generality of "House them where you dwell, according to your means".
In sum, wherever the Law obliges housing, it obliges maintenance, for maintenance follows housing in the case of the wife who may be taken back, the pregnant woman and the marital bond itself; Umar is reported to have said about this hadith of Fatima: "we will not abandon the Book of our Prophet nor his Sunna for the word of a woman". And distinguishing between the obligation of maintenance and that of housing is difficult: the weakness of its proof is the reason (Bidayat al-Mujtahid 2/71-72).
The woman who has released herself from her husband by khul' is necessarily in one of two states. First state: she is pregnant. The jurists agree: the khul' wife who is pregnant is owed maintenance and housing, for she falls under the generality of "If they are pregnant, spend on them until they lay down their burden"; she is occupied with his child: he benefits from her womb, as he would benefit from her in the marital bond, since offspring is a purpose of marriage as intercourse is (Asna al-Matalib 3/437).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: the scholars agreed that the maintenance of the pregnant thrice-divorced woman is obligatory, by the verse of Surah At-Talaq (al-Ishraf 5/346). Imam al-Kasani adds: whether the divorce is triple or bayn, if she is pregnant she has maintenance and housing by consensus (Bada'i' as-Sana'i' 3/209; at-Tajrid 10/5395). And Imam Ibn Qudama said: when a man irrevocably divorces his wife, whether by the triple divorce, by khul' or by rescission, if she is pregnant she has maintenance and housing by the consensus of the scholars, by the verse, the reports of Fatima bint Qays: "you have no maintenance unless you are pregnant", and because what she carries is his child: he must support it, which is only possible by supporting her, like the fee for nursing (al-Mughni 8/185).
Second state: the khul' wife is not pregnant. The jurists differ: is she owed maintenance during her waiting period? The majority, the Malikis, Shafi'is and Hanbalis, hold that she has no maintenance, like the thrice-divorced woman and the bayn; the Hanafis hold maintenance obligatory during the waiting period, as for the bayn; it is the same divergence already exposed.
As for the disobedient wife, most scholars hold that she has no maintenance, because she has forfeited submission in one of the owed counterparts, namely obedience. Nushuz in marriage is her disobedience to her husband in what is his due by marriage; the word derives from elevation, from the "nashz" which is the elevated place: the disobedient wife has risen against obedience to her husband. As soon as she refuses his bed, leaves his home without his permission, refuses to move with him to a similar dwelling or to travel with him, she has neither maintenance nor housing in the view of most scholars.
Imam Ibn al-Mundhir said: the generality of scholars agree on the lapse of the disobedient wife's maintenance when she withholds herself from her husband: this is the view of ash-Sha'bi, Hammad ibn Abi Sulayman, Malik, al-Awza'i, al-Shafi'i, Abu Thawr and the people of opinion. I know of no one who contradicted them except al-Hakam, who said of a woman who left her husband's house in disobedience: she has maintenance. Abu Bakr said: the first view is sounder. Ibn Qudama adds: he perhaps argues that her disobedience does not cancel her mahr, so neither her maintenance. Our answer: maintenance is owed only in exchange for her being made available, as shown by its not being owed before consummation; when he denies her maintenance, she may deny him her availability; when she denies him that, he may deny her maintenance, as before consummation; it differs from the mahr, which is owed by the mere contract: if either dies before consummation, the mahr is owed, not maintenance.
If she has a child by him, he must support his child: it is an obligation upon him, and her disobedience does not cancel his right, as for the child come of age; he must hand the child to her if she has custody or nurses him; likewise the fee for her nursing must be paid to her: it is a wage she earned by nursing, not in exchange for enjoyment, and it does not lapse with it.
When the woman's maintenance lapses by her disobedience, if she returns to obedience and the husband is present, her maintenance resumes, the cause of lapse having gone and the availability required for maintenance being restored; if he is absent, her maintenance does not resume until submission returns with his presence, the presence of his agent, or the governor's ruling establishing the obligation when the period of possibility has passed (al-Mughni 8/189).
Imam al-Imrani, may Allah have mercy on him, said: if the wife leaves the house her husband housed her in for another without his permission, or leaves the town without his permission, she is disobedient and her maintenance lapses; this is the view of all the scholars except al-Hakam ibn Utayba: her maintenance does not lapse. Our proof: maintenance is owed in exchange for availability for enjoyment, which has gone: her maintenance lapses as if she had not submitted herself. If the woman travels without her husband's permission, her maintenance lapses: she deprived him of enjoyment by the journey. If she travels with his permission, look: if he travels with her, her maintenance does not lapse, she is in his grasp and obedience; if she travels alone: if it is for his need, maintenance is obligatory upon him, for she traveled for his occupation and purpose; if it is for her own need, al-Shafi'i says in the book on maintenance: she has maintenance, and in the book on marriage: she has no maintenance; his companions differ there: Abu Ishaq said it is not two views but two situations: where he said she has maintenance, he meant the case where the husband is with her; where he said she has none, the case where he is not with her. Others say there are two views: the first, no maintenance, this being the view of Abu Hanifa and Ahmad, for she is not made available, as if she had traveled without permission; the second, maintenance is owed because she traveled with his permission, as if she had traveled for his need (al-Bayan 11/195).
Imam Ibn Abd al-Barr, may Allah have mercy on him, said: the one whose wife disobeys him after he has consummated the marriage, her maintenance lapses, unless she is pregnant. Ibn al-Qasim contradicted the majority of jurists over the disobedient wife's maintenance by establishing it; when she returns to her husband, her maintenance becomes owed again for the future (al-Kafi 1/255; Tafsir al-Qurtubi 5/174). And as-Sawi, may Allah have mercy on him, said: they differed over the obligation of the disobedient wife's maintenance; what al-Matiyyi mentioned and where al-Hakam fell, and it is the sound view: if the husband can bring her back, even by the governor's ruling, and does not, she has maintenance; if her kinsmen's fierceness overpowers him and she is among those against whom rulings are not enforced, she has no maintenance (Hashiyat as-Sawi 5/231).
The scholars agreed on the obligation of maintaining relatives in general; the relatives whose maintenance is agreed upon are the parents, however high the line, and the children, however far it descends. First, the maintenance of parents: it is obligatory upon the children, sons or daughters, by the Book, the Sunna and the consensus.
As for the Book:
"Your Lord has decreed that you worship none but Him, and that you be good to your parents."
Surah Al-Isra, 23
that is: your Lord commanded and decreed that you worship none but Him, and He commanded and enjoined kindness to parents; and spending on them in their poverty is among the finest forms of kindness.
"We have enjoined upon man kindness to his parents."
Surah Al-Ankabut, 8
"Be grateful to Me and to your parents."
Surah Luqman, 14
Gratitude to parents is rewarding them: Allah commanded the child to reward them for part of what they gave him of upbringing, kindness, tenderness and protection from every harm and detestable thing, when they are unable to attend to their own affairs and needs; abundant spending on them in their incapacity and need belongs to gratitude for the blessing: the obligation is therefore established. And:
"keep company with them in the world with kindness."
Surah Luqman, 15
This verse concerns the two disbelieving parents: the Muslim parents are more entitled, and spending on them at need is among the most recognized kindnesses. And:
"Do not say to them 'uff' and do not repel them."
Surah Al-Isra, 23
This "uff" is a metonymy for every word containing strike and harm; and no doubt harming one's parents by abandoning spending on them in their incapacity while the child is able is graver: the prohibition of "uff" is therefore an indication of the prohibition of abandoning spending, just as it prohibits insult and striking.
As for the Sunna: Jabir ibn Abdallah, may Allah be pleased with him, reported that a man came to the Messenger of Allah with his father and said: Messenger of Allah, I have wealth, and I have a father who has wealth too, and my father wants to take my wealth. The Messenger of Allah said:
You are, you and your wealth, for your father.Authentic hadith, mentioned earlier
He joined the son's wealth to the father with the lam of ownership; its apparent meaning requires that the father have real ownership of his son's wealth; if real ownership is not established, it is no less established that he has the right of disposal at need. And the Prophet said:
The best of what a man eats is the fruit of his earning, and his child is part of his earning: so eat of your children's earnings.Authentic hadith, mentioned earlier
that is, when you need it in a lawful way. This hadith is a proof by its beginning and its end: its end is apparent, for he made absolute the father's eating of his son's earnings whenever he needs them, without condition of permission or compensation: affirming it is therefore obligatory. As for its beginning, the meaning of "his child is part of his earning" is that his child's earning is part of his earning, for he made man's earning the finest of food, and what is eaten is his earning, not his person. The term "child" is therefore taken absolutely, as is the term "parent":
"Allah enjoins you concerning your children: for the male a share like that of two females."
Surah An-Nisa, 11
a verse that includes the children of sons; and:
"and for his parents, to each one of them a sixth of what he leaves, if he has a child."
Surah An-Nisa, 11
and:
"the creed of your father Ibrahim."
Surah Al-Hajj, 78
and because between them exists a kinship that establishes manumission and the rejection of testimony: child and parent thus resemble the close relative (both hadiths are authentic and were mentioned earlier).
The Malikis hold that the grandfather's maintenance is not owed to the son's son: no maintenance upon them nor for them, for the grandfather is not a real father; the maintenance of relatives is not owed by transmission, but originally; the grandfather's maintenance follows the father's and is not transmitted to his son (al-Ishraf 4/69, no. 1416; al-Ma'una 1/460).
Several conditions are required in the father whose maintenance is owed by his child. The first: freedom: the father must be free so as to belong to the people of generosity; if he is enslaved, the maintenance of his parent is not owed by him.
The Prophet also said to the man:
Give of yourself to whichever of the two you wish; there is no share in it for the rich nor for the strong earner.Reported by Abu Dawud (1633) and an-Nasa'i (2598)
He thus made the capacity to earn equivalent to wealth in money. The Malikis and Shafi'is, on the sounder view, reply indeed: if the son is insolvent yet able to earn, he is not obliged to earn in order to maintain his parents, just as an insolvent father is not obliged to ply a craft or the like to maintain his insolvent son, even if the father has a craft.
The jurists differ: is the father's Islam a condition for the obligation of his maintenance upon the child, or is maintenance owed to the father even if he is a disbeliever? The majority, the Hanafis, the Malikis in the famous view, the Shafi'is and the Hanbalis in one view, hold that the Islam of the two parents is not a condition: maintenance is owed by the disbelieving father if the child is a Muslim, and likewise the disbelieving child's maintenance is owed to the Muslim father; difference of religion does no harm: it is a maintenance owed when religions agree, therefore owed when they differ, like the wife's maintenance and the slave woman's; and manumission is established on behalf of the relative: spending is therefore owed as if their religions agreed.
The Hanbalis in the madhhab and the Malikis in one view hold that difference of religion prevents it: neither owes the other maintenance, for it is a generosity on the path of filial piety and ties, not owed under difference of religion, like the maintenance of those other than the two pillars of lineage; and they do not inherit from one another, so maintenance is not owed by kinship, as if one of them were enslaved; it differs from the wives' maintenance, which is a counterpart owed even in insolvency, which difference of religion does not prevent, like the dower and the wage; likewise it is owed under the servitude of both or one, like the maintenance of slaves. Manumission on behalf of the relative remains valid with all relatives whose marriage is forbidden: they are manumitted despite difference of religion without maintenance, for it is a tie and a generosity not owed under difference, like paying him his zakat, manumitting him or inheriting from him (Bada'i' as-Sana'i' 4/34 and 36; at-Tabyin 3/64; al-'Inaya 6/243; Durr al-Hukkam 4/482; al-Bahr ar-Ra'iq 4/223-224; al-Fatawa al-Hindiyya 1/565; at-Taj wa-l-Iklil 3/252-253; Mawahib al-Jalil 5/463-464; Sharh Mukhtasar Khalil 4/202; al-Sharh al-Kabir with Hashiyat ad-Dasuqi 3/501-502; Tathbir al-Mukhtasar 3/429-430; al-Hawi al-Kabir 11/478-479; al-Bayan 11/251-252; Rawdat at-Talibin 6/87-88; an-Najm al-Wahhaj 8/280-282; Mughni al-Muhtaj 5/183-185; Tuhfat al-Muhtaj 10/227-231; al-Mughni 8/169-170; Kashshaf al-Qina' 5/556; Sharh Muntaha al-Iradat 5/673-674; Manar as-Sabil 3/199).
Among what the jurists of the community do not dispute: the father must support his young children who have no wealth. The scholars adduced proof for this by the Book, the Sunna and the consensus. As for the Book:
"Mothers nurse their children two full years, for whoever wishes to complete the nursing. And upon the father of the child is their provision and their clothing in kindness."
Surah Al-Baqara, 233
that is, the provision of the nursing mothers; if the mothers intended are the divorced women who completed their waiting period, the verse establishes the obligation of the nursing fee upon the child's father, for the child's sake. And "if they nurse for you, give them their wages": Allah made the fee for the child's nursing obligatory upon the father, which proves that his maintenance is owed by him; maintenance after weaning equals the burden of nursing before it; and the child is a part of the father: his maintenance is like the father's maintenance of himself. Spending at need belongs to giving life to the one maintained, and the child is a part of the parent: giving life to one's own soul is obligatory, therefore to its part. And:
"Do not kill your children for fear of poverty: it is We who provide for them and for you."
Surah Al-Isra, 31
Were he not obliged to maintain the child, he would not kill him for fear of poverty caused by spending (al-Mabsut 5/333; Bada'i' as-Sana'i' 4/30-31; al-Ma'una 1/639; al-Hawi al-Kabir 11/477; al-Bayan 11/245-246; al-Mughni 8/169).
As for the Sunna, Aisha, may Allah be pleased with her, reported that Hind bint Utba said: Messenger of Allah, Abu Sufyan is a stingy man and gives me nothing sufficient for me and my child except what I take from him without his knowledge. He said:
Take what suffices you and your child, in kindness.Reported by al-Bukhari (5049) and Muslim (1714)
This report proves the obligation of the children's maintenance upon their father, its measure by their sufficiency and its lawful character. And Abu Hurayra, may Allah be pleased with him, reported that the Prophet said:
The best charity is that which leaves the giver at ease; the upper hand is better than the lower hand; begin with those you support. The wife says: feed me or divorce me; the slave says: feed me and employ me; the child says: feed me, and to whom will you leave me?Reported by al-Bukhari (5040)
And Sa'id ibn Abi Sa'id al-Maqburi reported from Abu Hurayra, may Allah be pleased with him, that the Messenger of Allah said one day to his companions:
Give in charity. A man said: Messenger of Allah, I have a dinar. He said: Spend it on yourself. Another: Spend it on your wife. Another: Spend it on your child. Another: Spend it on your servant. Another: You know best.Reported by Ibn Hibban in his Sahih (3337)
As for the consensus, more than one scholar transmitted it on the obligation for the parent to maintain his poor young child.
Imam Ibn al-Mundhir said: all those whose words we preserve among the scholars agree on the obligation for a man to maintain his young children who have no wealth (al-Ijma' 391; al-Ishraf 5/167). The qadi Abd al-Wahhab said: the maintenance of his poor young child is obligatory upon the man, without dispute (al-Ma'una 1/369). Imam al-Mawardi said: the children's maintenance upon the fathers is proven by the Book, the Sunna and the consensus (al-Hawi al-Kabir 11/477). Imam Ibn Hazm said: they agreed: the free man able to own property, adult, sane and not interdicted, must support his son and his daughter who have not reached puberty and have no wealth, until they reach it (Maratib al-Ijma', p. 79). And Imam al-Kasani said: if the young child has two parents, his maintenance is upon the father, not the mother, by consensus, even if they are equal in kinship and birth; no one shares with the father the maintenance of his child: Allah specified the father by naming him the child's father, joined the child to him with the lam of ownership, and imposed on him the young child's maintenance by "upon the father of the child is their provision": He named the mother "mother" and the father "the one to whom the child is born".
According to al-Shafi'i, a father's children have maintenance upon him as long as they are dependent on him, males and females, as long as they have no wealth, his children and the children of his children however far down, as long as no father below them can maintain them. A group assigns maintenance only to the young children, the women and the dependent men; the man without dependency and the woman without dependency have their maintenance delivered to their supporter: this is the view of the people of opinion. A group, and this is the Hanbali madhhab, establishes maintenance for all his children, adult and young, males and females, if they have no wealth dispensing them from him, on the apparent meaning of the Messenger of Allah's word to Hind: "take what suffices you and your child, in kindness", without excepting an adult child as against the young: the scholars' agreement on the lapse of the rich one's maintenance among them suffices to cancel it; every disputed matter returns to the Messenger of Allah (al-Ishraf 5/168-169; Sharh Sahih al-Bukhari of Ibn Battal 7/530-531; Tafsir al-Qurtubi 5/32; al-Mughni 8/171; al-Mubdi' 8/217).
Fourth condition: that the parent be solvent. The jurists differ: is the father's wealth, that is, a surplus over his own food and his own maintenance, a condition, or is maintenance owed to his son even if he is poor? The Malikis, the Shafi'is in the madhhab and the Hanbalis hold that he must have what with which to maintain them as a surplus over his own maintenance, from his wealth, or from his earnings according to the Shafi'is and Hanbalis; whoever has no surplus owes nothing, by the Prophet's word:
If one of you is poor, let him begin with himself; if there is a surplus in it, for his dependents; if there is a surplus, for his close relative, or he said: for his kinsman; if there is a surplus, let him spend it here and there.Reported by Abu Dawud (3957), an-Nasa'i (4653), Ibn Khuzayma in his Sahih (2445, 2452) and Ibn Hibban in his Sahih (3342)
Added to it is the already-cited hadith of the dinar (Ibn Hibban 3337): it is a generosity, so wealth is taken into account. The Malikis add: if the father is insolvent yet able to earn, he is not obliged to earn to maintain his insolvent son, even if he has a craft. The Hanafis and the Shafi'is in one view hold that the parent's wealth is not a condition for his young child's maintenance: maintenance is owed by him even if he is insolvent; he is compelled to borrow and ordered to repay when able (Bada'i' as-Sana'i' 4/34 and 36; al-Ikhtiyar 4/13; Mukhtasar al-Wiqaya 1/449; at-Tabyin 3/64; al-'Inaya 6/243; Durr al-Hukkam 4/482; al-Bahr ar-Ra'iq 4/223-224; al-Fatawa al-Hindiyya 1/565; at-Taj wa-l-Iklil 3/252-253; Mawahib al-Jalil 5/463-464; Sharh Mukhtasar Khalil 4/202; al-Sharh al-Kabir with Hashiyat ad-Dasuqi 3/501-502; Tathbir al-Mukhtasar 3/429-430; al-Hawi al-Kabir 11/478-479; al-Bayan 11/251-252; Rawdat at-Talibin 6/87-88; an-Najm al-Wahhaj 8/280-282; Mughni al-Muhtaj 5/183-185; Tuhfat al-Muhtaj 10/227-231; al-Mughni 8/169-170; Kashshaf al-Qina' 5/556; Sharh Muntaha al-Iradat 5/673-674; Manar as-Sabil 3/199).
The jurists differ: if a poor or dependent man has a father and a son, is his maintenance owed by the father or by the son? The Hanafis hold it is owed by the son, not the father, even if they are equal in closeness and inheritance: the son is preferred by the obligation established upon him, for he is his father's earning and thus has a right in his earning; and his wealth is legally attributed to him by the Prophet's word: "you are, you and your wealth, for your father". No one shares with the child the maintenance of his parent, likewise his mother, for lack of sharing in the cause, which is birth: specificity in the cause entails specificity in the ruling; likewise no one shares with a man the maintenance of his grandfather or grandmother in the absence of father and mother: the grandfather stands in the father's place in his absence, and the grandmother in the mother's (Bada'i' as-Sana'i' 4/32).
The Shafi'is hold: if the man is poor and dependent, with a solvent son and father, there are three views: the first, his maintenance is upon the father, for the obligation of maintenance upon the father is textual in the Quran, while that upon the son is a matter of ijtihad; the second, and it is the sound one, his maintenance is upon the son, for he is stronger in the right of ta'sib than the father, and more entitled to attend to his father's affair given the greatness of his inviolability; the third, his maintenance is owed by both, for they are equal in degree and in ta'sib. Al-Imrani adds: if we judge so, is it owed by them in halves, or according to their shares of inheritance? Two views: the sounder, two halves. And if a son and a grandfather combine: for some of us it is as if son and father combined; for others, one view only: the maintenance is upon the son as the nearer (al-Bayan 11/254; an-Najm al-Wahhaj 8/290; Mughni al-Muhtaj 5/189).
The Hanbalis hold that whoever has a father among those entitled to maintenance has no maintenance owed by anyone else, based on "if they nurse for you, give them their wages", "upon the father of the child is their provision and their clothing", and the Prophet's word to Hind: "take what suffices you and your child, in kindness": he placed the maintenance upon their father; maintenance upon the father being textual, the text must be followed and what exceeds it left (al-Mughni 8/171-172).
The jurists agree: if the father is poor and dependent, with two solvent sons or two solvent daughters, his maintenance is owed by them in halves: neither has precedence over the other. They differ if he has a solvent son and a solvent daughter: is the whole maintenance upon the son, or shared equally between them? The Shafi'is in one view and Imam Ahmad in one narration hold that the whole maintenance is upon the son: they are equal in degree, but the son has the merit of ta'sib, so he is preferred in the obligation of maintenance, as the father when he combines with the mother. The Hanafis according to the apparent meaning of the narration, the Malikis in one view and the Shafi'is in one view hold it owed by both in halves: they are equal in closeness, and equal whether they are equally wealthy or not; the reason is that each alone would owe the whole maintenance, young or old, male or female: when they combine, it is divided equally between them. Imam Abu Hanifa according to al-Hasan's narration, the Shafi'is in one view and the Hanbalis in the madhhab hold it owed according to their shares of inheritance: two thirds of the maintenance upon the son, one third upon the daughter. The Malikis in the famous view hold it divided according to wealth, males and females equal: like a man with three children, one owning three hundred, another two hundred and another one hundred: the owner of the three hundred owes half the maintenance, the owner of the two hundred a third, and the owner of the hundred a sixth (Bada'i' as-Sana'i' 4/32; Mukhtasar al-Wiqaya 1/448; Majma' al-Anhur 2/196; Hashiyat Ibn Abidin 3/633; at-Taj wa-l-Iklil 3/254; al-Bayan 11/254-255; Rawdat at-Talibin p. 94-95; Mughni al-Muhtaj 5/188-189; al-Mughni 8/174; Zad al-Ma'ad 5/503).