Islamic Fiqh > Marriage and family > Nafqa (the wife's maintenance) > The maintenance of collaterals: brothers, uncles and aunts
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Updated on 25 September 2026 at 3:23 PM
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The "hawashi", the collaterals, are the relatives who are not of the two pillars of lineage: brothers, sisters, the children of brothers, paternal uncles and aunts, maternal uncles and aunts. The jurists differ: is their maintenance owed to a man or not? The Malikis, the Shafi'is and Ibn al-Mundhir hold that there is no maintenance except upon descendants and ancestors: the Prophet, in the matter of the dinar, ordered it spent on oneself, one's wife, one's child and one's servant, without ordering it spent on others (Ibn Hibban 3337); and the Law came only with the maintenance of parents and descendants: the others join them neither in birth nor in its rulings, so the analogy is not valid (al-Ishraf 4/69-70; an-Najm al-Wahhaj 8/280; Mughni al-Muhtaj 5/182).
The Hanafis and the Hanbalis hold the collaterals' maintenance obligatory, with their detail. The Hanafis say: the solvent man owes the maintenance of every relative forbidden in marriage, that is, one whose permanent marriage is not permitted: brothers, sisters, their children, paternal uncles and aunts, maternal uncles and aunts. No maintenance for the relative whose marriage is permitted, nor for the forbidden one who is not a relative by kinship: the wives of fathers, of sons, in-laws, the mothers' fathers, milk-brothers and milk-sisters and their children; and the prohibition must be by kinship: the relative forbidden without being so by kinship, like the paternal cousin who is a milk-brother, has no maintenance.
The reading of Ibn Mas'ud, may Allah be pleased with him:
"and for the heir of the near forbidden kinship, the like of that."
Surah Al-Baqara, 233, reading of Ibn Mas'ud
a famous reading, transmitted by hearing from the Prophet, peace and blessings of Allah be upon him; it restricts the absoluteness of the text: the poor minor absolutely, or the adult woman, poor or rich, or the adult man who is insane, dependent, blind or unable to earn, or the man of the great houses, a metonymy for nobility: the notables whom earning would dishonor, or the student of knowledge occupied by it, if he is of upright conduct.
The solvent man is compelled to maintain in order to discharge a right owed by him, and maintenance is measured by the share of inheritance, by "for the heir, the like of that": Allah made inheritance the cause, so the obligation is measured by the cause; thus, if a poor man has solvent full and consanguine sisters, his maintenance is owed by them in fifths as they would inherit him in fifths: three fifths for the full sister, one fifth for the consanguine sister, one fifth for the uterine sister, both by fixed share and by reversion. Capacity to inherit is taken in the broad sense: being an heir in general even if another blocks him, not the realized inheritance, which is known only after death. Thus the maintenance of a poor man who has a solvent maternal uncle and paternal cousin is upon his maternal uncle: he is forbidden by kinship, while his cousin reserves his inheritance, being his ta'sib; for the cause of inheritance is established for the uncle: were the cousin to die before him, the uncle would realize his inheritance. At equality of prohibition and capacity to inherit, the one who is heir in act is preferred: if he has a paternal uncle and a maternal uncle, or an uncle and a paternal aunt, the maintenance is upon the paternal uncle: they are equal in prohibition, and he is preferred as heir in act (al-Hujja 3/152-153; al-Mabsut 5/223; Ahkam al-Qur'an 2/109; Bada'i' as-Sana'i' 4/33-34; Majma' al-Anhur 2/197-199; Mukhtasar al-Wiqaya 1/448-449).
The Hanbalis say: the maintenance of everyone from whom he inherits, by fixed share or by ta'sib, besides the two pillars of lineage, is owed, whether the other also inherits him, like his brother, or not, like his paternal aunt or his brother's daughter, as well as the paternal cousin, by "for the heir, the like of that": Allah made maintenance obligatory upon the father then attached the heir, which requires sharing in the obligation; it is a generosity and a help specific to kinship, which therefore targeted the ta'sibs, like manumission. Kulayb ibn Manfa'a reported from his grandfather that he came to the Prophet and said: Messenger of Allah, whom shall I honor? He said:
Your mother, your father, your sister, your brother, then your freedman who has over you a due right and a connected kinship.Reported by Abu Dawud (5140), hasan hadith
Maintenance is therefore owed to the heir by fixed share or by ta'sib: thus his paternal aunt's maintenance is owed by him since he inherits her by ta'sib, but hers is not owed upon her, for she inherits neither her brother's son by fixed share nor by ta'sib. It has been said: no maintenance is owed upon the paternal aunts; and it has been said that this is the madhhab. As for the "dhawu al-arham", those who are neither fixed-share heirs nor ta'sib among those outside the pillars, like the maternal uncle and aunt: no maintenance for them nor upon them, for lack of any text concerning them and of solid kinship; they take his wealth like the rest of the Muslims when the deceased has no heir, the proof being the precedence of reversion to them. Shaykh Taqi ad-Din nevertheless chose the obligation: it belongs to the tie of kinship, which is general.
Three conditions sum up the obligation of their maintenance:
(al-Mughni 8/174; al-Mubdi' 4/215; al-Insaf 9/395-396; Kashshaf al-Qina' 5/566; Sharh Muntaha al-Iradat 5/672-673.)
Imam Ibn Hubayra, may Allah have mercy on him, said: they differed over compelling the heir to maintain those from whom he inherits by fixed share or ta'sib when they are solvent. Abu Hanifa said: he is compelled to the maintenance of every forbidden relative, which includes the maternal and paternal aunts and excludes the cousin and the milk relatives. Malik said: maintenance is owed only to the nearest parents and the children of the loins. Al-Shafi'i said: maintenance is owed to the father however high, and to the son however low, without going beyond the two pillars of lineage. Ahmad said: every person between whom and the other there is inheritance by fixed share or ta'sib from both sides owes the other's maintenance: parents, children, brothers and sisters, uncles, according to one narration; if inheritance runs only from one side, they are the dhawu al-arham, like the brother's son with his aunt and the cousin with his cousin: one narration establishes maintenance, another does not (al-Ifsah 2/210-211).
The shaykh of Islam Ibn Taymiyya, may Allah have mercy on him, said after the verse:
"Let not those of you who possess favor and wealth swear to give nothing to the near of kin, the poor, and those who emigrate in the way of Allah; let them pardon and forgive."
Surah An-Nur, 22
The verse indicates the obligation of the tie, of maintenance and more, toward the dhawu al-arham who inherit neither by fixed share nor by ta'sib. It is indeed established in the Sahih, in the affair of the lie, that Abu Bakr as-Siddiq had sworn not to spend on Mistah ibn Uthatha, one of those who had spread the lie about Aisha; Mistah's mother was the daughter of Abu Bakr's maternal aunt: Allah made him one of the near of kin He forbade depriving; and the prohibition entails forbiddance: if swearing off an act is not permitted, the act is obligatory (Majmu' al-Fatawa 15/350).
And Imam Ibn al-Qayyim, may Allah have mercy on him, upheld the obligation of the dhawu al-arham's maintenance: maintenance is deserved by two things: inheritance, by the Book of Allah, and kinship, by the Sunna of the Messenger of Allah. Umar ibn al-Khattab, may Allah be pleased with him, blocked a boy's ta'sib in order to compel his ta'sib relatives, who were his cousins, to feed him; and the word of Zayd ibn Thabit was transmitted: if there are an uncle and a mother, maintenance is upon the uncle to the extent of his inheritance and upon the mother to the extent of hers: no one among the Companions contradicts them at all: it is the view of the majority of the early generations; indicated by:
"Give the near of kin his due."
Surah Al-Isra, 26
and:
"Worship Allah and associate nothing with Him; and be good to parents and relatives."
Surah An-Nisa, 36
and the Prophet made the gift to relatives obligatory while naming their lineages: "your sister, your brother, then your nearest, then your nearest: a due right and a connected kinship".
If it is said: this aims at filial piety and the tie, not at obligation? It is answered: He commanded it, named it a right and joined it to them by "his due", and the Prophet informed that it is a right and an obligation: part of this proclaims the obligation openly. If it is said: "his due" means abandoning the severance? There are two answers. The first: what severance is greater than seeing him die of hunger and thirst, suffering heat and cold to the extreme, without giving him a morsel or a drink, nor clothes to cover his nakedness and protect him from heat and cold, nor a roof to shade him, he who is his brother by the same father and mother, or his uncle like his father, or his aunt who is like his mother: nothing would be owed him beyond what is owed to the far stranger, namely repaying him against his liability until he becomes solvent and then reclaiming it; and that while he is in the utmost ease and abundance! If this is not the forbidden severance, we do not know what the forbidden severance is, nor the tie Allah commanded, making Paradise forbidden to the one who severs it. The second: what is this obligatory tie to which the texts called, which they magnified in imposing it and blamed the one who severs it, that would exceed the stranger's right to the point that hearts grasp it, tongues report it and limbs act upon it? Is it the greeting upon meeting, the visit when he is ill, the blessing when he sneezes, the answer when he calls? You establish none of that beyond what is owed to the stranger: if this tie is not striking him, insulting him, harming him and despising him, that right is owed by every Muslim to every Muslim, even by the Muslim to the far dhimmi: what then is the specificity of the obligatory tie of kinship? That is why some of the virtuous of later generations used to say: "I wish I knew what the obligatory tie of kinship is". When people pressed the companions of Malik over it, asking them what the tie of kinship means to them, one of them composed a large book on it, gathering elevated and suspended reports, the kinds of the tie, its species and its divisions; despite that he did not free himself of this constraint: the tie is known to elite and commoner alike, the reports about it more famous than knowledge; but what is the tie proper to kinship that obliges mercy without the stranger sharing in it? You cannot define an obligation without maintenance being more obligatory, nor cite a cause of lapse for maintenance without the rest being more worthy of lapse. The Prophet joined the right of the brother and sister to the father and mother: "your mother, your father, your sister, your brother, then your nearest, then your nearest": what has abrogated that? What made its beginning an obligation and its end a recommendation? That being known, it is not part of honoring one's parents to let one's father sweep the courtyards, hire himself out with donkeys, kindle the bathhouse furnaces and carry on his head the load from whose wage he feeds himself, while he is in the utmost ease and abundance and open-handedness; nor to honor his mother to let her serve people, wash their clothes and give them water, without protecting her with what he spends on her, saying: the two parents earn their living and are neither dependent nor blind: by Allah, what wonder! Where is the condition of Allah and His Messenger in filial piety and the tie of kinship, that either be dependent or blind? The tie of kinship and filial piety are not suspended on that by the Law, nor by language, nor by custom. Success comes from Allah (Zad al-Ma'ad 5/549-551).
The Hanafis say: when the ancestors combine with the collaterals, the question falls into one of two situations. The first: one of the two classes is an heir, the other not: only the ancestors are considered, preferring specificity, with no sharing in inheritance to consider: the ancestor is preferred, whether he is the heir or the heir belongs to the other class. First example: a maternal grandfather and a full brother: the maintenance is upon the grandfather. Second example: a maternal grandfather and a paternal uncle: the maintenance is upon the grandfather: he is preferred in both examples by specificity, with no sharing in inheritance: he is the heir in the first, and in the second the heir is the uncle. If there is a maternal grandmother with the maternal grandfather, the grandfather is preferred; and if a maternal grandfather is found with the paternal grandfather, the paternal grandfather is preferred by inheritance, at equality of specificity.
Second situation: each of the two classes, ancestors and collaterals, is heir: inheritance is then considered, that is, its amount: maintenance is owed by each of them according to his share of inheritance. If there combine for a needy man a mother and a full brother, or a nephew, or an uncle: one third upon the mother and two thirds upon the ta'sib, for such is the division of inheritance and the share of each. If there is a mother with the maternal grandfather, the mother is preferred by inheritance and closeness; likewise in the last examples, the mother is preferred to the maternal grandmother. And if a paternal grandfather is with her, a poor man having a mother, a paternal grandfather and a full brother, or a nephew, or an uncle: the maintenance is upon the grandfather alone, for the grandfather excludes the brother, his son and the uncle by his substitution for the father; once that substitution is realized, it is as if the father truly existed, and when the father truly exists, the mother does not share the obligation of maintenance with him: likewise by ruling, the maintenance is therefore upon the grandfather alone; unlike a mother with a single paternal grandfather: the grandfather does not stand in the father's place, so maintenance is owed by both in thirds according to the apparent meaning of the narration.
At equality of prohibition and capacity to inherit, the one who is heir in act is preferred in this situation: if he has a paternal uncle and a maternal uncle, the maintenance is upon the paternal uncle: they are equal in prohibition, and he prevails as heir in act. If he has a paternal uncle and a maternal uncle: upon the uncle, equal in kinship, the uncle is the heir. If he has a maternal uncle and a paternal cousin: the maintenance is upon the maternal uncle, not the cousin: they are not equal in the forbidden kinship, only the maternal uncle is such, so he is preferred, and the capacity to inherit serves as preference at equality of the deserving cause. If he has paternal aunts, a maternal aunt and a paternal cousin: one third upon the maternal aunt, two thirds upon the paternal aunt, nothing upon the cousin: the deserving cause does not exist for him, and the aunts are equal in the deserving cause and in the capacity to inherit: they therefore share according to inheritance. If he has a paternal uncle, a paternal aunt and a maternal aunt: the maintenance is upon the uncle alone: he is their equal in the deserving cause, the forbidden kinship, and surpasses them as heir: the inheritance is his, not theirs; if he is insolvent, the maintenance passes to the aunts in thirds according to their inheritance and the uncle is treated as deceased.
The principle: anyone who would take the whole inheritance and is insolvent is treated as deceased; the maintenance then passes to the others according to their shares; whoever would take only a part is not treated as deceased: maintenance is owed according to the shares of those who inherit with him (Tuhfat al-Fuqaha 2/167; Bada'i' as-Sana'i' 4/33-34; al-Bahr ar-Ra'iq 4/228; Hashiyat Ibn Abidin 3/625). The Hanbali madhhab: when relatives of both sides combine, ancestors and collaterals, inheritance is what is considered: maintenance is owed by each of them according to his share of inheritance. If the poor man has an heir other than the father, even a fetus, his maintenance is owed by them according to their shares, for Allah tied maintenance to inheritance: the amount therefore follows the share: a mother and a paternal grandfather: one third for the mother, the rest for the grandfather, for they inherit him so; if there is a grandmother and a full or consanguine brother: one sixth for the grandmother, the rest for the brother according to his inheritance; if there is a mother and a daughter: the maintenance between them in quarters, as they inherit him by fixed share and reversion; if there is a son and a daughter: in thirds, for thus they inherit.
If one is solvent and the other insolvent, nothing is owed by the insolvent and the solvent owes his share without increase: his share was owed only thanks to the other's wealth, so he does not bear in his place what the other does not find. This applies to those outside the pillars; for the two pillars, the whole maintenance is owed by the solvent one, because of the strength of kinship, the proof being that inheritance is not a condition there. It is on this principle that maintenances are computed: the order of maintenances follows the order of inheritance; as the grandmother has one sixth of the inheritance, she owes one sixth of the maintenance. If there combine a daughter and a sister by another mother, or a daughter and a brother, or three consanguine sisters: the maintenance among them according to the share of inheritance, whether there is reversion, augmentation or neither. A mother's mother and a father's mother are equal in maintenance, at equality of inheritance, unless there is a father: he alone has the maintenance, in kindness. Whoever has a poor son and a solvent brother: no maintenance owed by either: upon the son for his insolvency, upon the brother for lack of inheritance. Whoever has a poor mother and a solvent grandmother: the maintenance is upon the solvent grandmother even if she is blocked, because of the strength of kinship; likewise a poor father and a solvent grandfather: the maintenance is upon the grandfather. Two parents and a grandfather, the father insolvent: one third of the maintenance upon the solvent mother, for she inherits a third, and the rest upon the grandfather, for he would inherit so were the father absent; if a wife is with them, it is likewise: she has no share in the obligation of maintenance, her maintenance follows his. Two parents, two brothers and a grandfather, the father insolvent: nothing upon the two brothers: they are blocked and outside the two pillars; one third of the maintenance upon the mother, as a sixth only according to inheritance, for the two brothers block her third though they themselves are blocked by the father; the rest upon the grandfather as if there were no brothers. If there is no grandfather in the question, the whole maintenance is upon the mother alone: not upon the father, for his insolvency, nor upon the brothers, for they are blocked (al-Mughni 8/170-171 and 175; al-Mubdi' 8/216-217; Kashshaf al-Qina' 5/566-567).
The majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis, state: when a man is obliged to maintain someone, the obligation is to spend the amount of his sufficiency. Imam al-Kasani, may Allah have mercy on him, said: the maintenance of relatives is measured by sufficiency without dispute: it is owed for need, so it is measured by need; whoever owes another's maintenance owes him food, drink, clothing, housing, and nursing if he is an infant: the obligation is for sufficiency, which consists of these things; if the maintained person needs a servant for his service, one is assigned to him too: that is part of sufficiency (Bada'i' as-Sana'i' 4/38).
The Malikis say: the children and the parents are owed maintenance and what follows it, burdens, clothing and housing, according to the state of the spender and the customs of the land, to the extent of sufficiency (al-Qawanin al-Fiqhiyya, p. 148; al-Sharh al-Kabir with Hashiyat ad-Dasuqi 3/501). The Shafi'is say: the obligatory maintenance is sufficiency, by the Prophet's word to Hind: "take what suffices you and your child, in kindness"; it is owed as generosity to repel the urgent need; his state of age, asceticism and appetite is taken into account; he must be filled, ointment is owed to him like food, the burden of a servant if he needs one, clothing and housing suited to him, the physician's fee and the price of remedies: all that is among the necessary burdens. If the maintenance is handed to the relative and perishes in his hand, it must be replaced; likewise if he destroys it himself. If it is said: replacing it wrongs the payer, especially if the destruction is repeated? It is answered: the payer is negligent: he can feed him without handing anything over; what he destroyed in his possession is on his liability if he becomes solvent; liability concerns only the discerning one, because of the payer's negligence: his course is to feed him or delegate someone to feed him, handing over nothing: maintenance and what accompanies it is enjoyment (an-Najm al-Wahhaj 8/283; Mughni al-Muhtaj 5/185).
Imam Ibn Qudama, may Allah have mercy on him, said: what is obligatory in the relative's maintenance is the sufficiency of bread, ointment and clothing according to custom, as we said for the wife: it is owed for need, so it is measured by what repels need; the Prophet said to Hind: "take what suffices you and your child, in kindness": he measured her maintenance and her child's by sufficiency; if he needs a servant, his hire is owed, as for the wife: it is part of his complete sufficiency (al-Mughni 8/177). And al-Buhuti said: what is obligatory in the relative's maintenance is the sufficiency of bread, ointment, clothing and housing according to custom, for need is repelled only by that, as we mentioned for the wife. And the maintenance of one who has no craft is owed, even if he is sound and legally responsible, even if he is outside the parents, by the Prophet's word to Hind: "take what suffices you and your child, in kindness", without excepting an adult or a sound man: he is poor, deserving maintenance upon his relative, like the dependent man. If he has a craft, his maintenance is not owed, per al-Mubdi': without dispute: the craft helps him, and the relative's maintenance is owed only with poverty; the craft must procure his sufficiency, otherwise it must be completed (Kashshaf al-Qina' 5/567-568).
The jurists agree: whoever owes someone's maintenance and does not maintain him, without a qadi's ruling establishing the obligation, it lapses and does not become a debt upon him: maintenance was legislated only to fill the needy person's want; if he manages during that period without taking his maintenance from the one upon whom it is due, then claims it after its time has expired, he has nothing from the past: it lapsed in favor of the solvent man for that period, for it lapses by the passing of its time, the want having receded and the cause of its obligation having gone; unlike the wife's maintenance, which belongs to exchange and does not lapse by the passing of its time.
They differed over the case where the qadi fixed it without its being paid: does it become a debt upon him? The Hanafis hold that such maintenance never becomes a debt, whether the qadi fixed it or not, unlike the wives' maintenance, which becomes a debt by the qadi's ruling or by agreement; even if the qadi fixes a month's maintenance for the relative and the month passes without his taking it, he cannot claim it: it lapses. What cancels it after its obligation is the passing of time without taking or borrowing: even if the qadi fixes a month's maintenance for the relative and he neither takes it nor borrows until the term passes, the maintenance lapses: this maintenance is owed by pure kinship tie, so its obligation is confirmed only by taking or its equivalent (Bada'i' as-Sana'i' 4/38).
The Malikis, the Shafi'is and the Hanbalis hold that the relative's maintenance, once established by a ruling, does not lapse and remains claimable. The Malikis say: if a governor ruled it fixed for the past and its claimant brings it to a governor who sees no lapse by the passing of time and rules it binding, it does not lapse in favor of the solvent man by the passing of time: by the ruling it has become like a debt; and it is not a matter of having fixed it for the future: the governor's ruling does not enter the future, for he cannot fix one thing permanently before its term, which varies with the times. Likewise, maintenance does not lapse in favor of the solvent one of the two, father or son, when a third party who is not a donor paid it intending recourse against the one upon whom it was due: he stood in for him by a due obligation: there is recourse, unlike the donor, who has no recourse. It has been said: recourse occurs only if a non-donor maintained the young child while the father is solvent: recourse upon the father, for the solvent father is like wealth; if the father is insolvent, no recourse; or if he maintained the father, no recourse upon the young son without a ruling: ad-Dardir preferred this view (al-Sharh al-Kabir with Hashiyat ad-Dasuqi 3/504; at-Taj wa-l-Iklil 3/255-256; Sharh Mukhtasar Khalil 4/204; Tathbir al-Mukhtasar 3/433-434).
The Shafi'is say: maintenance lapses by the passing of time even if the payer was guilty of refusal, for it was owed to repel the urgent state; it does not become a debt, for it belongs to generosity: when the need is repelled otherwise, the purpose is fulfilled, and nothing is established upon the relative even if the payer exceeded by his refusal. It is established upon him only by a qadi's ruling, or by his permission to borrow in case of absence or refusal: it then becomes a debt. The relative may take his maintenance from his relative's wealth in case of refusal, and may borrow if he finds no wealth there and the qadi is powerless, with recourse if he witnesses it, like the grandfather of a needy child whose father is absent; and the father and grandfather may take the maintenance from their young or insane descendant's wealth by the right of guardianship, and compel him to what he can do (an-Najm al-Wahhaj 8/283-284; Mughni al-Muhtaj 5/185-186; ad-Daybaj 3/645). The Hanbalis add: whoever leaves the obligatory maintenance unpaid for a period owes no compensation, for the relative's maintenance is owed to repel need and give life to the soul, which was achieved in the past without him; unless a governor fixed it: it was confirmed by his ruling, like the wife's maintenance; or unless he borrowed against him with the governor's permission. But if a husband is absent and his wife borrowed for herself and her young children, she recovers what she borrowed (al-Mubdi' 8/220; al-Insaf 9/403; Kashshaf al-Qina' 5/569).
The jurists agree: if the man has no sufficient surplus for all those whose maintenance is due, he begins in this order:
This when the child is young: he is then preferred to the father, by agreement. If the child is adult and the father dependent, the father has the stronger claim: his inviolability is greater and his need more pressing; preferring the child is also conceivable, for his maintenance is owed by the text. If both are sound adults, or both dependent, one view among the Shafi'is and Hanbalis: the father is preferred to the child if he can maintain only one of the two: his inviolability is greater than his son's, the proof being that the father is not subject to retribution by his son, whereas the son is by his father. It has been said: the child has the stronger claim, for the obligation of his maintenance is established by the text of the Book and the father's is a matter of ijtihad: this is a view among the Shafi'is and Hanbalis. And a third view among the Hanbalis: they are equal, by equality of closeness and the reciprocity of their ranks.
Then, if something remains and he has two parents, and he finds only what suffices one of the two, the jurists differ: is the father preferred, or the mother, or are they equal? The Shafi'is in one view, the Hanbalis in the madhhab and some Hanafis hold that the father is preferred to the mother: the Prophet attributed the child and his wealth to the father by "you are, you and your wealth, for your father"; the father equals the mother in birth and is alone in ta'sib.
The Hanbalis hold that the father must provide his son with a wife if the latter needs marriage: it is what his need calls for and he is compelled by its lack: it is therefore obligatory upon him. The Hanafis and the Shafi'is hold that it is not obligatory upon the father (Rawdat at-Talibin 6/91; al-Mughni 8/172; al-Kafi 3/379; al-Mubdi' 8/220). I found no Maliki position in this question, though the apparent meaning of their madhhab is that the father is not obliged to marry off his son.
As for the son: must he provide his father with a wife if he needs one? The jurists differ: if the father needs a wife, must the son provide one or not? The majority of jurists, the Hanafis in one view, the Malikis in the famous view, the Shafi'is in the madhhab and the Hanbalis, hold it obligatory upon the son: it is what need calls for and compels by its lack: the son is therefore obliged to it as to maintenance; he must provide his father with a single wife, owing also her maintenance and clothing as the father's maintenance and clothing; if the father has two wives or more, the son owes only one maintenance, which he hands to the father who distributes it among them. And if he has a single wife who does not suffice him, must the son marry him another who would? Two views among the Malikis: the first, it is not obligatory; the second, it is obligatory when his sufficiency depends on her. Likewise the mother must be provided for like the father by marriage if she asks and her equal makes his proposal. The Malikis in one view, that of Ibn al-Qasim, said to be the madhhab, and the Shafi'is in one view hold that the child is not compelled to marry off his father. The mentioned Hanafi view is what al-Haddad, may Allah have mercy on him, transmitted in al-Jawhara an-Nayyira, then transmitted by a group: if the father needs a wife and the son is solvent, he must marry him or buy him a concubine, owing her maintenance and clothing as the father's maintenance and clothing (al-Jawhara an-Nayyira 5/83; Durr al-Hukkam 4/481; Majma' al-Anhur 2/199).
Yet I found Imam al-Quduri, may Allah have mercy on him, saying: our companions said: the son is not obliged to provide his father with a wife, for what one does not fear to lose for lack of its kind is not obligatory for the father's sake, like buying perfume; and the father is not obliged to it toward his son: the son is therefore not obliged toward his father.
It is not said: "the son owes his father what the father does not owe him, which is why retribution does not apply to him"; for the father's inviolability is greater than the child's: the confirmation of his inviolability made the child like the father's limbs, so that retribution does not apply to him; likewise his inviolability toward his son: he is made like the son, owing therefore nothing he does not owe to himself. And providing a wife, as it was not obligatory upon the son for himself, is not so for his father, unlike food and clothing, like the making available of wealth; and he is one of the two parents: providing for him is therefore not obligatory upon the son, as for the mother (at-Tajrid of al-Quduri 9/4498).
The jurists of the community do not differ: it is obligatory to nurse the young child when he needs it and lives only by it, at the age of nursing: he is then compelled to it. Imam al-Kasani, may Allah have mercy on him, said: this is the view of the majority of the scholars (Bada'i' as-Sana'i' 4/40). Must the mother nurse her child? Two cases: she is divorced from him and completed her waiting period, or she is within the bond of marriage.
First case: the mother is divorced and separated from her husband. If she completed her waiting period, it is not obligatory upon her to nurse her child, by consensus, unless no one else is found; the proof:
"If they nurse for you, give them their wages; and consult together in kindness. And if you disagree, another woman will nurse for him."
Surah At-Talaq, 6
Allah informed that the mother and the child's father, if they dispute over the nursing wage, another woman than she will nurse him: He therefore did not make nursing her child obligatory upon her by imposition. And "Mothers nurse their children" indicates the limit of nursing, beyond which the parents' disagreement sets a boundary, without establishing that nursing children is an imposition upon mothers; and most of the exegetes hold that the mothers intended here are the definitively divorced women.
Imam Ibn Battal, may Allah have mercy on him, said: the scholars agreed that the nursing fee is upon the husband once the divorced woman leaves her waiting period (Sharh Sahih al-Bukhari 7/535). Imam Ibn Rushd said: as for the divorced woman, no nursing is owed by her, unless the child accepts no other breast: then she nurses and the husband owes the nursing fee: this is a consensus, by "if they nurse for you, give them their wages" (Bidayat al-Mujtahid 2/43). And Imam Ibn Qudama said: the child's nursing is upon the father alone, and the mother may not be compelled to nurse him, whether she is lowly or noble, whether she is within the bond of marriage or divorced; we know of no disagreement over the absence of compulsion when she is separated (al-Mughni 8/199).
The Hanafis and the Shafi'is state: if the divorced woman agrees to nurse him for the equivalent fee, the father may not have the child nursed by another: Allah ordered him to pay the fee if she nurses, and "Mothers nurse their children" means the mothers are most entitled to nurse their children. If she demands more than the equivalent fee, the husband is not obliged, by "if you disagree, another woman will nurse for him"; what requires more than the equivalent price is like the nonexistent; compelling the father to what the mother seeks would harm him, and Allah said:
"No mother shall be harmed because of her child, nor any father because of his child; and for the heir, the like of that."
Surah Al-Baqara, 233
the father is not harmed by being bound beyond what outside women seek, according to some interpretations. But she nurses him at her place, without their being separated, because that would harm the mother: this is the Hanafi view; the Shafi'is say he may take him from her and hand him to another (al-Mabsut 5/209; Bada'i' as-Sana'i' 4/40-41; al-Muhadhdhab 2/168).
If she demands the equivalent fee while the father has someone to nurse him for free or at a lower price, there are two views among the Shafi'is: the first: the mother has the stronger claim to the equivalent fee, for nursing is the child's right and the mother's milk is the best and most beneficial; she accepted the equivalent price, so she has the stronger claim. The second: the father has the stronger claim, for the nursing of the young equals the maintenance of the grown: if the grown man found a volunteer for his maintenance, maintenance would not be owed by the father; likewise, if a volunteer is found for nursing, the fee is not owed by the father; if she claims the father finds no other, the father's word prevails: she claims a right to the equivalent fee whose absence is the default (al-Muhadhdhab 2/168; an-Najm al-Wahhaj 8/286-287; Mughni al-Muhtaj 5/186-187; Tuhfat al-Muhtaj 10/236-237).
As for the Hanbalis, Imam Ibn Qudama said: if the mother demands nursing for the equivalent fee, she has the stronger claim to it, whether she is within marriage or after it, and whether the father finds a volunteer or not. The companions of al-Shafi'i say: if she is within the bond of marriage, her husband must prevent her from nursing him, for it forfeits his right to enjoy her at certain times; hiring her for nursing is not permitted, for the benefits are his right: one may not hire from her what is his, in whole or in part; if she nurses the child, is she owed the equivalent fee? Two views. If she is divorced and demands the equivalent fee and he wants to take him from her to hand him to a nurse at the equivalent fee or more, that is not his right; if he finds a volunteer or a nurse at a lower price, taking him is his right according to the apparent meaning of the madhhab: he is not obliged to bear the burden while the child's need is repelled otherwise.
Abu Hanifa said: if she demands a fee, the father is not obliged to pay it to her, but she does not lose her right of custody: the nurse comes to nurse the child at her place, for it was possible to combine the two rights: it was therefore not permissible to sacrifice either. Our answer to the first: what precedes; on the validity of hiring: it is a contract of hire permitted from another with permission, therefore permitted with the husband, like hiring herself out for sewing or service; their statement "the benefits are owned by him" is not sound: were he to own the benefit of custody, he would own compulsion over her, it would not be permitted for her to hire herself to another with his permission, and the fee would be his; yet her hiring herself to a stranger without his permission is prevented by the loss of enjoyment at certain times, which is why it is permitted with his permission; when he hires her, he has therefore permitted her hiring of herself: the contract is valid as coming from a stranger.
As for the proof of the mother's priority, if she demands the equivalent fee, over the volunteer:
"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
and "if they nurse for you, give them their wages"; the mother is more tender and more compassionate, her milk is better than that of others: she is therefore more entitled than anyone, as if an outside woman sought to nurse him for the equivalent fee; nursing by another forfeits the mother's right of custody and harms the child: it is not permitted to forfeit the obligatory right of custody and harm the child in order to drop an obligation Allah imposed upon the father. Abu Hanifa's view leads to forfeiting the child's right to his mother's milk and the mother's right to nurse her child: that is not permitted, as in the case of the volunteer.
If the mother demands more than the equivalent fee and the father finds a nurse at the equivalent fee or a volunteer, taking the child is permitted: she forfeited her right by demanding what is not hers, so she falls under the generality of "another woman will nurse for him". And if he finds no nurse at any fee but that one, the mother has the stronger claim: they are equal in fee, so the mother prevails as if each had demanded the equivalent fee.
Section: if the outside married woman seeks to nurse her child for the equivalent fee with her husband's permission, her right is established and she has the stronger claim over anyone else: the mother is prevented from nursing only by the husband's right; if he permits it, the prevention is lifted and she becomes like the unmarried woman; if he prevents her, her right lapses, for she cannot reach it. Section: if the woman nurses her child while within the bond of his father and needs additional maintenance, it is obligatory upon him, by "upon the father of the child is their provision and their clothing in kindness": she is owed by him to the extent of her sufficiency; if her need increases, her sufficiency increases. And Allah knows best (al-Mughni 8/200-201).
Imam Ibn Hubayra, may Allah have mercy on him, said: they differed when the definitively divorced woman demands the equivalent fee for nursing her child. Abu Hanifa said: if there is a volunteer or someone who would nurse him without the equivalent fee, the father may have him nursed by another, on condition that the young child stays with the mother, for custody is hers. Malik: two narrations: one like the madhhab of Abu Hanifa; the other: the mother has the stronger claim in every case. Al-Shafi'i, in one of his two views: the mother has the stronger claim even if the father finds a nurse at a lower price or a volunteer, and he is then compelled to pay her the equivalent fee; his second view is the madhhab of Abu Hanifa (al-Ifsah 2/209-210; Sharh Mukhtasar Khalil 4/206).
Second case: the mother is within the bond of marriage. The jurists differ: is nursing the young child obligatory upon her, or is it for the father to have his child nursed? The Malikis hold that the mother must nurse her child, unless the like of her does not nurse for nobility, honor and high rank, or for illness and little milk, by "Mothers nurse their children two full years": it cannot mean information, which has no benefit: what is meant is therefore the command. Allah commanded the wives to nurse their children and established for them upon the husbands maintenance and clothing, the marital bond standing: she thus has maintenance and fee combined; had nursing been upon the father, He would have mentioned it with their provision and clothing, without imposing it upon the mothers. And the custom of the people runs that the woman nurses her child herself without her husband being charged a fee: what custom runs with is like the stipulated; and if the child accepted nursing from none but her, it would be obligatory upon her: what a person is compelled to carries no fee, unlike the outside woman.
Our proof that if the like of her does not nurse for nobility and rank, compelling her contradicts custom and harms her, so no obligation (al-Ishraf 4/71-72, no. 1418; Sharh Sahih al-Bukhari 7/536; Tahdhib al-Mudawwana 1/392; Ahkam al-Qur'an of Ibn al-Arabi 4/288; al-Bayan wa-t-Tahsil 5/381; Sharh Mukhtasar Khalil 4/209).
The majority of jurists, the Hanafis, Shafi'is and Hanbalis, hold that it falls to the father to have his child nursed, and that the mother is not obliged to nurse her young child, the father being unable to compel her, noble or lowly, within the bond of marriage or divorced, unless she is the only one who can nurse, or the child accepts only her breast, or neither the father nor the child has wealth: she must then nurse her child.
They adduce as proof "if they nurse for you, give them their wages": she has the choice: if she wills, she nurses; otherwise, no. And "if you disagree, another woman will nurse for him": were nursing owed by her, she would not deserve a fee. She is compelled only for the child's inviolability, the husband's, or both: not for the child's, for she is not compelled if she is thrice-divorced, by consensus, while the child's inviolability exists; not for the husband's: were he to take her into his service, that would not be his right, all the more for another: she is therefore not compelled at all; not for both: what has no proper association does not establish the ruling by joining part to part, and were it for both, the ruling would persist after separation; the verse is interpreted in the state of spending and absence of dispute. And "upon the father of the child is their provision and their clothing in kindness": nursing is a spending for the child, and the child's maintenance is specific to the father, unshared by the mother, like his maintenance after independence: just as his maintenance is not owed by her afterward, it is not owed before, that is, his nursing (al-Mabsut 5/209; Ahkam al-Qur'an of al-Jassas 5/360; Bada'i' as-Sana'i' 4/40-41; al-Muhadhdhab 2/168; an-Najm al-Wahhaj 8/286-287; Mughni al-Muhtaj 5/186-187; Tuhfat al-Muhtaj 10/236-237; al-Ifsah 2/110; al-Mughni 8/199-200; al-Kafi 3/380).
The Shafi'is add: the mother must give her child the liba', the milk that descends at the first moment of birth, for the child does not otherwise live for the most part and is strengthened and developed only by it; she may take the fee if its kind has one, and she is not obliged to nurse for free, as the food of the desperate is demanded only with an equivalent (an-Najm al-Wahhaj 8/285; Mughni al-Muhtaj 5/186; Tuhfat al-Muhtaj 10/235).
The Hanafis say: that is the ruling; as for the fatwa, the answer given is that she nurses, by "no mother shall be harmed because of her child": according to some interpretations: the mother is not harmed by her child by casting him upon the husband who had known her and grown attached to her, without nursing him, to the point that the child suffers; and when the child suffers, the parent suffers, his heart grieving over it; and "nor any father because of his child": the child's father is not harmed by the harm done to his child, according to some senses of the interpretation; marriage is a contract of settledness and pairing, obtained only by their agreement on the interests of marriage. But if she refuses, she is not compelled, per what we said, unless no one is found to nurse him: she is then compelled, else the child would perish (al-Mabsut 5/209; Bada'i' as-Sana'i' 4/40-41; al-Muhadhdhab 2/168).
The jurists differ: if the mother wants to take a fee for nursing her child while she is within the bond of marriage, is it permitted her? The Hanafis, which is the requirement of the Maliki madhhab as seen, and the Shafi'is in one view, hold that she may not take a fee for nursing: nursing, if not owed by the ruling, is owed by the fatwa; taking a fee for a due thing is a bribe; she already deserves the maintenance of marriage, and the nursing fee equals maintenance: she does not deserve two maintenances; and the nursing fee is for guarding and washing the child, which belong to the cleanliness of the house: the benefit of the house accrues to both spouses, so she cannot take compensation for a benefit that accrues to her; even if she were hired to nurse the husband's child by another, it is permitted: it is not obligatory upon her, so it is not a fee for a due act; and guarding has no benefit accruing to her: she is not obliged to house him with her.
Likewise, if she is within the waiting period of a revocable divorce, she may not take the fee, as within the bond of marriage: after the revocable divorce, the marriage stands from every side. The times of nursing are owed to the husband's enjoyment in exchange for the maintenance: she cannot take another compensation; and if she refuses to nurse, she is not compelled: what is owed by marriage is the offering of the person for enjoyment; the other works are recommended without compulsion by the ruling: sweeping the house, washing the clothes, cooking, kneading: so too the nursing of the child (al-Mabsut 5/209; Bada'i' as-Sana'i' 4/40-41; al-Muhadhdhab 2/168).
The Shafi'is in the madhhab and the Hanbalis hold that taking the fee is permitted: it is a work whose fee may be taken after separation, therefore before, like weaving; the detail of Ibn Qudama preceded (al-Muhadhdhab 2/168; an-Najm al-Wahhaj 8/286-287; Mughni al-Muhtaj 5/186-187; Tuhfat al-Muhtaj 10/236-237; al-Mughni 8/200-201).
Imam Ibn Rushd, may Allah have mercy on him, said: the husband's rights over the wife concerning nursing and house service differ: a group made it obligatory upon her absolutely; a group did not make it obligatory at all; a group made it obligatory upon the lowly, not upon the noble, unless the child accepts only her breast: this is the famous view of Malik. The cause of their difference: does the verse of nursing contain the ruling of nursing, that is, its obligation, or only its command? Whoever says "its command" says: nursing is not obligatory upon her, for there is no proof of obligation here; whoever says the verse contains the command to nurse and its obligation, among the reports whose implication equals command, says: nursing is obligatory upon her. And whoever distinguishes the lowly and the noble took custom and usage into account. As for the divorced woman, no nursing is owed by her, unless the child accepts no other breast: then she nurses and the husband owes the nursing fee: this is a consensus, by "if they nurse for you, give them their wages" (Bidayat al-Mujtahid 2/42-43).