Custody (Al-Hadanah) According to Five Islamic Schools of Jurisprudence
Custody has no connection with guardianship (wilayah) over the ward with respcct to marriage; it is limited to the care of a child for its upbringing and protection for a period of time during which it requircs the care ot women. Custody is the right of the mother by consensus, though there is a difference of opinion regarding: the period after which it expires, the person who is entitled to custody after the mother, the qualification for a woman to act as a custodian, her right to receive a fee for it, and other aspects which we shall discuss subsequently.
The Right to Act as a Custodian:
If it is not possible for a mother to act as the custodian of her child, to whom will this right belong'l
The Hanaf;s observe: It is transferred from the mother to the mother's mother, then to the father's mother, then to the full sisters, then to the utcrine sisters, then to the paternal sisters, then to the full sister's daughter, and so on till it reaches the maternal and paternal aunts.
The Malik;s say: The right is transferred from the mother to her mother, how high so ever; then to the full maternal aunt; then the uterinc maternal aunt, then the mother's maternal aunt, then the mother's paternal aunt, then the father's paternal aunt, then his (father's) mothcr's mother, then his t'ather's mother and so on.
The Shafi';s say: The mother, then the mother's mother, how high so ever, on condition that she inherits; then the father, then his mother, how high so ever, on condition that she inherits; then the nearest among the female relatives, and then the nearest among the male relatives.
According to the Hanbal;s, the mother is followed by her mother, then her mother's mother, then the t'ather, followed by his mothers; then the grandfather followed by his mothers; then the full sister; then the uterine sister; then the paternal sister; then the full maternal aunt; then the uterine maternal aunt, and so on.
The Imamiyyah observe: The mother, and then the father, and if the father dies or becomes insane after he has taken the child's custody, the right to custody will revert to the mother on her being alive, because she is better entitled than others--including the paternal grandfather--even if she has married a stranger. If the parents are not there, the custody of the child will lie with the paternal grandfather, and if he isn't there nor has an executor, the child's custody will lie with its relatives in order of inheritance, the nearer taking precedence over the remote. If there is more than one relative of the same class, such as the maternal and paternal grandmothers or maternal and paternal aunts, the matter will be decided by drawing lots in the event of contention and dispute. The person in whose name the lot is drawn becomes entitled to act as the custodian till his death or till he forgoes his right.' This is also the view of the Hanbal;s (al-Mughni, vol. 9, bab al-hidanah).
The Qualifications for Custody:
The scholars concur regarding the qualifications required for a fcmale custodian, which are: her being sane, chaste and trustworthy, her not being an adulteress, a dancer, an imbiber of wine, or oblivious to child care. The purpose of these requirements is to ensure the proper care of the child from the viewpoint of physical and mental health. These conditions also apply if the custodian is a man.
The schools differ as to whether being Muslim is a condition for custodianship. The Imamiyyah and the Shafi'l schools say: A non-Muslim has no right to the custody of a Muslim.
The other schools do not consider Islam as a requirement for a custodian, cxcept that the Hanaf;s say: The apostasy of a custodian, male or female, terminates his/her right to custody.
The Imamiyyah state: It is compulsory that the female custodian be frec from any contagious disease.
The Hanbal; school says: It is compulsory that she should not suffcr from leprosy and leucoderma, and that which is important is that the child should not face any harm. The four schools have said: If the mother is divorced and marries a pcrson who is unrelated to the child, her right to custody shall terminatc. But if the husband is of the child's kin, the right to custody remains with the mother.
The Imamiyyah observe: The right to custody terminates with her marriage irrespective of whether the husband is related to the child or not.
The Hanafí, the Sháfi`zi, the Imámí and the \anbalí schools say: If the mother is divorced by the second husband? the disability is rcmoved and her right to custody reverts after its carlier tcrmination due to her marriage.
According to the Malikí school, her right to custody does not revert.
The Period of Custody:
The Hanafl s say: The period of custody for a boy is 7 years, and for a girl 9 years.
The Shafi'l school observes: There is no definite period of custody; the child shall remain with its mother until it is able to choose between the two parents; and when it has reached the discriminating age it will choose between the two. If a boy chooses to stay with his mother, he will stay with her during the night and spend the day with his father, so that the father can arrange for his instruction. If a girl chooses to stay with her mother, she will continue to stay with her during the day as well as in the night. If the child chooses both the parents together, lots will be drawn between them, and if the child keeps quiet and does not choose any one of them, the custody shall lie with the mother. The Malik;s consider the period of custody for a boy to be from birth until puberty and for a girl until her marriage.
According to the Hanbal; school, it is 7 years irrespective of the child's sex, and, after that, the child can choose to live with one of the parents.
The Imamiyyah have said: The period of custody for a boy is 2 years, and for a girl 7 years. After this, the custody shall lie with the father until the girl reaches the age of 9, and the boy the age of 15; thereafter they can choose to live with one of the parents.
Fee for Custody:
Thc Shafi'; and the Hanbal; schools state: A female custodian has the right to claim a fee for her services irrespective of whether she is the mother or someone else. The Shafi' ;s clarify that this fee shall be paid from the child assets if any; otherwise it is incumbent upon the father, or upon whoever is responsible for the child's maintenance. The Malik;s and the Imamiyyah observe: The female custodian is not entitled to any fee for her services. But the Imamiyyah add: She is entitled to be paid for breast-feeding. Therefore, if the child has any assets she shall be paid out of that; otherwise, the father shall pay it if he is capable of doing so (al-Fiqh 'ala al-madhahib al-'arba'ah, vol.4; al-Masalik; vol.2).
The Hanaf; school has said: The payment of fee for custody is wajib if: there does not exist any marital relationship between the female custodian and the child's father; if she is not in the course of observing the 'iddah of a revocable divorce given by the child's father; if she is observing the 'iddah of an irrevocable divorce of an invalid marriage, in which case she is entitled to receive maintenance from the child's father. If the child has any property, the payment shall be made from it; otherwise the payment shall be made by the one responsible for the child's maintenance (al-'Ahwal al-shakhsiyyah by Abu Zuhrah).
Travelling With the Child:
In case the mother takes the child under her custody, and the father intends to travel with his child to settle down in another town, the Imamls and the Hanafls say: He cannot do so. The Shafi'l, the Malikl and the Hanbali schools observe: He can do so. But ir it is the mother who intends to travel with the child, the Hanafl school gives her the right to do so if the two following conditions are met: (I) That she be migrating to her own town; (2) that thc marriage contract should have been recited in the town to which .shc is migrating. If any of thcse two conditions is not met, she is forbidden to travel except to a place so near that it is possible to return hefore it gets dark.
The Shafi'l and the Malikl schools, and Ahmad in one of the two traditions narrated from him, observe: The father has greater right over the child irrespective of whether he is moving or she (Rahmat al-'ummah fi ikhtilaf al-'a'imah).
The Imamiyyah state: A divorced mother is not permitted to travel with the child under her custody to a far-off place without the consent of the child's father. The father, too, is not permitted to travcl with the child to any town which is not the mother's hometown whilc thc child is in her custody.
Voluntary Breast-Feeding and Custody:
The difference between custody and breast-feeding (al-rida') is that by 'custody' is meant only the upbringing and care of the child; it cxcludes breast-feeding, which involves the infant's nourishment. Because of this difference, it is valid for a mother to forgo her right to breast-feed while her right to custody remains intact. The Imamiyyah and the Hanaf; schools concur that if a woman volunteers to breast-feed a child gratuitously while the mother refuses to breast-feed without recompense, the woman volunteering shall be given precedence over the mother, whose right to suckle her child is lost. But her right to the custody of her child shall remain as it is, and the child shall be under her care while the nurse comes to feed it or it is taken to the nurse to be fed.
If a woman volunteers to act as a child's custodian, the child shall not be separated from the mothcr, according to the Imamiyyah and the other schools which do not require compensation for a custodian's services.
But the Hanafis, who consider the payment of compensation for custody as wajib, observe: Where the mother refuses to act as a custodian unless she is paid and another woman volunteers to act as a custodian, thc mother is better entitled to custody if the compensation is to bc paid by the father, or if the woman is an outsider and there are no women custodians among the child's relatives. But if the woman volunteering is related to the child and the compensation lies upon an indigent father, or is to be paid from the child's property, the other woman shall be preferred, because, in such a situation, the child is saved from payment of fee out of its asscts hy thc woman volunteering. Therefore, she shall be given preferencc over the mothcr in the child's interest (al-'Ahwal al-shakhsiyyah by Abu Zuhrah).
Surrendering of the Right to Custody:
Is the right to custody specifically the right of a female custodian that terminates on her forgoing It --similar to the right of pre-emption which can be surrendered --or is it a right of the child that binds the female custodian precluding her right to forgo it, as in the case of a mother's right which cannot be surrendered?
The Imami, the Shafi`i and the Hanhali schools say: Custody is the specific right of a female custodian, and she can surrender it whenever she pleases and she shall not be compelled to act as a custodian on her refusing to do so. There is a tradition from Malik regarding this, and the author of al-Jawáhir has argued on its authority that the jursts have not concurred that a female custodian can be compelled to act as a custodian, and the Sharí`ah does not expressly mention such compulsion; on the contrary, the texts of the Sharí`ah apparently consider custody similar to breast-feeding, and, consequently, she has the right to surrender her custody at will.
The same principle applies where a child's mother seeks a divorce from her husband by surrendering in his favour her right to custody of the child, or when the husband surrenders to her his right to take away the child after the expiry of her period of custody. This form of divorce is valid and neither of the two can refrain from rectifying their agreement after it is concluded, except by mutual consent. Similarly, if the two compromise and she surrenders her right to custody or he surrenders his right to take away the child, the compromise is binding and its fulfilment is mandatory.
Ibn `ábidín has reported a difference of opinion amongst the Hanafis on this issue. He has pointed out that it is better that custody be considered as a right of the child, so that the mother does not have the right to surrender her responsibility to act as a custodian, to make compromise over it, or to exchange it for securing a divorce.
The Sunni sharí`ah courts in Lebanon consider a divorce of this kind as valid, but consider as invalid the condition that she would surrender her right to custody; any compromise which includes the surrendering of her right to custody is considered void ab initio. But the Ja`fari Sharí`ah courts consider the divorce, the condition, and the compromise as valid.
The Right to Maintenance
There is consensus among all Muslims that marriage is one of the causes that make maintenance mandatory. Similarly, consensus exists regarding kinship (al-qarábah). The Qur'án explicitly mentions the wife's maintenance in the following verse:
... And on the child's father (the husband) is their food and their clothing....[2:233]
The pronoun “their” refers tot wives and the words “Child’s Father” is the husband.
There is also a tradition which says:
The right of a woman over her husband is that he feeds her, clothes her, and if she acts out of ignorance, to forgive her.
The Qur'án refers to the maintenance of relatives in the phrase:
... (and it was written upon you) that you take good care of your parents.
and the Prophet (S) said:
You and your property belong to your father.
Our discussion consists of two issues: first, the maintenance of a wife and her maintenance during the waiting period; second, the maintenance of relatives.
The Maintenance of a Wife and of a Divorcee who is in Waiting:
The legal schools concur that the wife's maintenance is mandatory if the requisite conditions, to be mentioned subsequently, are fulfilled, and that the maintenance of a divorcee is mandatory during the waiting period of a revocable divorce. The schools also concur that a woman observing the waiting following her husband's death is not entitled to maintenance, whether she is pregnant or not, except that the Shafi`i and the Maliki schools state: If the husband dies, she is entitled to maintenance only to the extent of housing.
The Shafi'`is say: If he separates from her while she is pregnant and then dies, her maintenance shall not cease.
The Hanafis say: If she is a revocable divorcee and the husband dies during the waiting period, her waiting period of divorce shall change into an Waiting Period of death, and her maintenance shall cease, except where she had been asked (by court) to borrow her maintenance and she had actually done so. In this case, the maintenance shall not cease.
There is consensus that an Awaiting woman as a result of intercourse by mistake is not entitled to maintenance.
The schools differ regarding the maintenance of a divorcee during the waiting period of an irrevocable divorce. The \anafis say: She is entitled to maintenance even if she has been divorced thrice, whether she is pregnant or not, on condition that she does not leave the house provided by the divorcer (husband) for her to spend the period of waiting period. According to the Hanafi school, the rules which apply to a woman in an Waiting Period following the dissolution of a valid contract are the same as those which apply to a divorcee in an irrevocable divorce.
According to the Maliki school, if the divorcee is not pregnant, she shall not be entitled to any maintenance except residence, and if she is pregnant she is entitled to her full maintenance; it shall not subside even if she leaves the house provided for spending the Waiting Period, because the maintenance is intended for the child in the womb and not for the divorcee.
The Shafi`i, the Imami and the Hanbali schools state: If she is not pregnant she is not entitled to maintenance, and if pregnant she is entitled to it. But the Shafi`is add: If she leaves the house of her waiting period without any necessity, her maintenance shall
The Imamis do not consider the dissolution of a valid contract similar to an irrevocable divorce; they hold: A divorcee undergoing the Waiting Period of a dissolved contract is not entitled to any maintenance whether she is pregnant or not.
A Disobedient Wife:
The schools concur that a disobedient wife is not entitled to maintenance. But they differ regarding the extent of disobedience which causes the maintenance to subside. According to the Hanafis, when a wife confines herself to her husband's house and does not leave it except with his permission, she shall be regarded as “obedient”, even if she denies him her sexual company without any valid reason. Therefore, though such an act is prohibited for her, it shall not cause her maintenance to cease. Thus, the cause which entitles her to maintenance, according to the Hanafis, is her confining herself to her husband's home, and her denial of her sexual company has no effect at all. This view of the Hanafi school is contrary to the view of all the other schools who concur that if a wife does not allow her husband free access to her person without any legal and reasonable excuse, she shall be considered “disobedient” and shall not be entitled to any maintenance. The Shafi`is add: Her allowing him to have sexual intercourse with her is not enough unless she comes forth and says expressly to him: “I surrender myself to you”.
In fact, the criterion for ascertaining obedience and surrender is the general custom and there is no doubt that the people consider a wife obedient if she does not refuse sexual contact with him when he demands it, and they do not consider it necessary that she offer herself to him morning and evening. Whatever be the case, we have here the following questions conccrning obedience and disobedience.
(1) If the wife is a minor, unfit for intercourse, and the husband a major capable of it, shall maintenance be due?
The Hanafis say: There are three types of female minors:
(i) A minor wife who is neither of any use for service nor for sociability, shall not be entitled to maintenance.
(ii) A minor wife with whom intercourse is possible enjoys the rights of a major wife.
(iii) A minor wife who is of use for service or for sociability alone, but not for intercourse, shall not be entitled to maintenance.
The remaining schools hold: A minor wife is not entitled to maintenance even if the husband is a major.
(2) If the wife is a major capable of intercourse while the husband is a minor and incapable of it, the Hanafi, the Shafi`i and the Hanbali schools say: Her maintenance is due because the hindrance is from his side, not her.
The Malikis and some scholars of from the Imamis say: Maintenance is not mandatory because the consent to engage in sexual intercourse from her side has no effect while there exists a natural disability in the husband, and a minor husband is free of obligations (ghayr mukallaf), and as to the duty of his guardian, there is no proof that he is responsible for his ward's wife's maintenance.
If the wife is sick or suffers from al-ratq or al-qarn, her maintenance does not cease according to the Imami, the Hanbali and the Hanafi schools, and it does according to the Maliki school if she is suffering from a serious disease or if the husband himself is similarly ill.
If the wife apostatizes, her maintenance ceases according to all the schools. The maintenance of a wife belonging to People of the Book is mandatory, and there is no difference between her and a Muslim wife from the viewpoint of maintenance.
If a wife leaves her husband's home without his permission or refuses to reside in a house which fits her status, she shall be considered disobedient and shall not be entitled to maintenance according to all the schools. The Shafi`i and the Hanbali schools add: If she goes out with his permission for his need she shall be entitled to maintenance, and if she goes out not for his need, her maintenance shall cease even if he had granted her permission to do so.
If she goes out for performing the obligatory pilgrimage, her maintenance shall cease according to the Shafi`i and the Hanafi schools, and according to the Imamis and the Hanbalis it shall not.
If the wife is obedient to the husband in consenting to sexual intercourse and resides with him wherever he wants, but uses harsh language while talking to him, frowns in his face and opposes him in many matters, as is the case with many women, shall this be a cause for the maintenance to cease or not?
I have not come across the views of the schools on this question, but in my opinion if the wife has a hot-tempered disposition by nature and this is her way of behaviour with everyone including her parents, she shall not be considered disobedient. But if she is not so by nature and is well-disposed towards everyone except her husband, she should be considered disobedient and not entitled to maintenance.
(8) If the wife refuses to obey her husband unless she is paid her Dowry, agreed to be paid immediately, shall she be considered disobedient?
The schools have divided the question--as mentioned in the chapter on Dowry--between her refusing him before consenting to sexual intercourse and her refusal after granting him access willingly before taking the Dowry.
In the first case, her refusal is due to a legally valid excuse and therefore she shall not be considered disobedient. In the second case, her refusal is without any valid excuse and, therefore, she shall be considered disobedient.
(9) I have come across an opinion expressed by the Hanbalis stating that if a wife imprisons her husband, demanding her maintenance or Dowry, her maintenance shall cease if he is indigent and unable to meet her monetary rights, and if he has the means to pay but delays doing so it shall not.
This opinion is both good and firm because if she has imprisoned him while he is an indigent man unable to pay, she is oppressing him; and if she has imprisoned a husband who has the means to pay her but delays doing it, he is oppressing her. A verse of the Qur'an says:
And if the debtor is in straitness, let there be postponement until the time of ease.... [2. 280]
There is also a tradition which says:
It is permissible to punish and dishonour a person who possesses (but does not pay his liabilities).
It is also narrated that `Alí (A) used to detain one who delayed his creditors and release him if his penury was ascertained. Accordingly, a judge, after having ascertained that the circumstances of the husband are straitened and that the wife is entitled to maintenance, will order it to be considered a debt payable by the husband until further notification. If the judge determines the maintenance without mentioning the period during which it is to be paid, and the wife then imprisons the husband despite indigence and poverty, the husband is entitled to approach the judge to have her maintenancc annulled from the date of his imprisonment, and the judge is bound to respond to his plea.
(10) If a wife is divorced while she is disobedient, she will not be entitled to maintenance; and if she is undergoing the Waiting Period of a revocable divorce and turns disobedient during this period, her maintenance shall cease; but on her reverting to obedience, it shall resume from the date of hi.s knowledge of her becoming obedient.
(11) If the wife remains at her father's home after the recital of the marriagc contract for a period of time and then claims maintenance for that period, shall she be entitled to it? The Hanafis say: She is entitled to maintenance even if she hasn't shifted to her husband's home, either because the husband hasn't asked her to do so, or has but she has refused to come until she is given her Dowry (Ibn `Ábidín).
According to the Maliki and the Shafi`i schools, she is entitled to maintenance if the marriage has been consummated or she has offered herself to him.
The Hanbali school states: If she doesn't surrender, she is not entitled to maintenance even if she remains in such a state for years.
The Imamis consider her entitled to maintenance from the date of the consummation of marriage --even if such consummation should occur while she is with her family--and from the date of her asking him to take her along with him.
From the above-mentioned views, it follows that all the schools entitle her to maintenance if she has surrendered and showed her readiness to comply, and also if the marriage has been consummated, except that the Hanafis do not suffice with consummation but consider her willingness to confine herself also necessary. Apart from this, it has been pointed in the answer to the eighth question of this section that the wife has the right to refuse to surrender until she is paid her prompt Dowry, and her doing so is legally valid and does not cause her maintenance to cease.
(12) The Maliki, the Shafi`i and the Hanbali schools hold: An absent husband is similar to a husband present in regard to the rules of maintenance. Therefore, if an absent husband has any known assets, the judge shall order her maintenance to be paid from them, and if he does not possess any property, the judge shall pass an order of maintenance against him and the wife will borrow against him. This is what is practiced in Egypt. (al`A<wál ash-Shakh#iyyah, by Abú Zuhrah).
In al-'A<wál ash-Shakh#iyyah ( 1942, pp. 269, 272) of Muhammad Muhyí ad-Dín `Abd al-Hamíd it is stated: The Hanafi school presumes that the absent husband has left in his property a share for his wife... and if he has not left any property, the judge shall consider him liable to pay the maintenance and will order the wife to borrow against his name. If she complains of not having found a person ready to lend her in her husband's name, the judge shall order the person on whom her maintenance is mandatory to lend her on the supposition that she has no husband, and if this person refuses to lend her maintenance, the judge will imprison him.
The Imamis observe: If the husband disappears after surrendering herself to him, her maintenance is due upon him under the presumption that her obedience still persists from the time he left her; and if he disappears before consummation, she shall appear before the court and declare her obedience and willingness to live with him. The judge will then order the husband to present himself to inform him of her willingness. If the husband presents himself, or sends for her, or sends her the maintenance, it suffices. But if he does not fullil any of these alternatives, the judge shall allow a period of time sufficient for the issuance of a notification and the reception of his reply or for his sending of her maintenance; he will not issue any order during this period. vAfter the expiry of this period he shall issue orders. If, for instance, such a period is two months, he shall order the payment of maintenance beginning from the date of expiry of the two months. Or if the wife informs the husband of her state without the mediacy of the judge and proves it, it shall also suffice. Then she shall be entitled to maintenance from that date.
(13) If the wife pleads before a judge to pass an order against the husband for the payment of her maintenance without mentioning the date from which she is entitled to receive it, the judge shall order payment trom the date of her demanding maintenance, after ascertaining that the conditions have been fulfilled. If the wife mentions a date which is prior to the date of demand, shall the judge order payment of her maintenance for the period prior to the date of demand?
The Hanafiss say: Past maintenance may not be demanded from the husband; it is annulled by the passage of time except when the period is less than a month or if the judge has ordered its payment, because maintenance ordered to be paid by court remains a debt for the husband irrespective of the passage of time.
The Malikis say: If the wife demands her past maintenance, and the husband possessed the means to pay her during that time, she has the right to such a claim against him even if it had not been ordered by the court. But if the husband was indigent and unable to pay during that period, she cannot claim her maintenance from him, because, according to this school, indigence annuls maintenance; and if his indigence is subsequent to his affluence, the maintenance for the period of indigence shall be void and he shall be liable for the payment of the maintenance pertaining to his period of affluence.
The Imamis, the Shafi`i and the Hanbali schools say: The wife's maintenance remains his liability, if the conditions entitling the wife to maintenance are fulfilled, no matter how much time has passed and irrespective of whether he was affluent or indigent during that time and regardless of whether the judge had ordered such payment or not.
Determination of Maintenance:
The schools concur that a wife's maintenance is mandatory in all its three forms: food, clothing and housing. They also concur that maintenance will be determined in accordance with the financial status of the two if both are of equal status. Here, by the financial status of the wife it is meant the financial status of her family and its standard of living.
But when one of them is well-off and the other indigent, the schools differ whether maintenance should be in accordance with the husband's financial status (commensurable with his means if he is well-off and the wife indigent, and commensurable with his indigence if he is indigent and she is well-off), or whether the financial status of both should be considered and a median maintenance be fixed for her.
The Maliki and the Hanbali schools say: If the couple differ in financial status, a median course will be followed.
The Shafi'; school observes: Maintenance will be determined in accordance with the financial status of the husband, and the status of the wife will not be considered; this is regarding food and clothing. But as regards housing, it should be according to her status, not his (al-Bajur;, 1343 H., vol.2, p.197).
The Hanaf;s have two views. According to the first, the status of both will be considered, and according to the second only the status of the husband.
Most Imamiyyah legists observe that maintenance will be fixed in accordance with her requirements of food, clothing, housing, servants and cosmetics used by women of her standing among her townspeople. Some Imamiyyah legists consider the husband's not the wife's financial status as the criterion for fixing maintenance.
Whatever the case, it is necessary that the financial condition of the husband be taken into consideration as the Qur'an has expressly stated:
Lodge them where you are lodging, according to your means....Let the man of plenty expend oul of his plenty... As for him who has his means of subsistence
sfraitened, let llim expend of what God has given him. God does not burden
anyone except to the extent of what ~e has granted him.... (65 6, 7)
Under Egyptian law (act 25, 1929), the wife's maintenance, to be paid by the husband, is fixed in accordance with his financial condition, irrespective of the condition of the wife. Here it becomes clear that providing a servant and expenses of tobacco, cosmetics, tailoring, etc., requires that two things be taken into consideration: the husband's condition and the custom prevailing among her likes. Therefore, if she demands more than lhat the husband is not obliged to comply, irrespective of his financial condition; and if she demands what her likes generally require, it is compulsory that the husband meet her demands if he is well-off, but not if his means are straitened. Here, the following questions are also pertinent:
If thc wifc needs medicines or surgery, will the husband be compelled to pay her medical and surgical expenses?
The answer to this question leads us to another one: Is medical care part of maintenance or something apart from it? When we refer to the canonical sources, we find that the Qur'an makes the wife's food and clothing wajib. The ahadith say: It is for the husband to satiate her hunger and to clothe her. There is no mention of medicine and medical treatment in the Qur'an and the traditions. The legists have limited maintenance to the providing of food, clothing and housing, and have not touched the matter of medical care. On the contrary, some of them have explicitly said that it is not wajib for the husband. In al-Fiqh 'ala al-madhahib al-'arba'ah, it has been narrated from the Hanafls that medicines and fruits are not wajib on the husband during the period of dispute between the couple. In the Imam; work al-Jawahir (vol. 5) it is stated: The wife is not entitled to claim from the husband medicine during illness, or the expenses of cupping and bathing except during winter. Al-Sayyid Abu al-Hasan observes in al-Wasilah: If the medicines are of common use and needed for common ailments, such medicines are included in maintenance and are wajib upon the husband; but if the medicines are for difficult cures and uncommon ailments, which require expensive treatment, they are not included in maintenance and it is not the husband's duty to provide them.
This was a summary of the opinions of the legists which I have come across. It is also said that the treatment of simple diseases, such as malaria and ophthalmia, is included in maintenance, as observed by the author of al-Wasilah. But regarding surgeries, which require large sums of money, if the husband is poor and the wife is financially well-off she will bear the expenditure; and if he is a man of means while she is poor, he will meet the expenses -- for of all people the husband, being her life partner, is most entitled to be kind to her. If both of them are indigent, they will share in meeting the expenses.
In any case, it is certain that the Sham'ah has not explicitly defined the limits of maintenance, but has only made it wajib on the husband, leaving it to be determined in accordance with 'urf (usage). Therefore, we should refer to 'uff and not make anything wajib for the husband except after ascertaining that it is considered part of maintenance by 'urf. And there is no doubt that 'uffdisapproves the conduct of a husband who while possessing the means neglects his wife who needs medical attention, exactly as it considers a father blameworthy if he neglects his ailing children while having the means t~ hllv medicines an-l n~v the doctor's feP
Expenses of Child-birth:
The essential expenses of child-birth and the obstetrician's fee will be paid by the husband when called upon by need.
If a judge determines a certain sum of money, or the spouses mutually settle it in lieu of maintenance, it is valid to adjust it by increasing or decreasing it in accordance with changes in prices or changes in the financial condition of the husband.
The Wife's Housing:
The Imamiyyah, the Hanafi and the H. anball schools state: It is necessary that the house provided to the wife befit the couple's status, and that the husband's family and children not reside in it except by her consent.
The Malikis observe: If the wife is of a humble status, she may not refuse to stay with the husband's relatives, and if of a high social status she can refuse to stay with them except if it had been mentioned as a condition in the contract. If so, it is wajib for her to reside with his family on being provided a room where she can enjoy privacy whenever she desires and does not suffer from mistreatment by his family.
According to the Shafi' l school, it is wajib that the housing suit her and not his status, even if he is poor.
The truth is that it is necessary to consider the condition of the husband in everything concerning maintenance, without there being any difference between food, clothing and housing in this regard, because the Qur'an says,
Lodge them where you lodge, according to your means, [65: 6]
on condition that she have an independent home and does not suffer by staying in it.
A Working Wife:
The Hanaf l s are explicit that a woman if she works and does not stay at home is not entitled to maintenance if the husband demands her to stay at home and she does not concede to his demand. This view is in concurrence with what the other schools hold regarding the impermissibility of her leaving her home without his permission. The Shafi'l and the Hanball schools further state, as mentioned earlier, that if she leaves home with his permission for meeting her own requirements, her maintenance ceases. But a correct view would be to differentiate between a husband who knows at the time of marriage that she is employed and her employment prevents her staying at home, and a husband who is ignorant about her employment at the time of marriage. Therefore, if he knew and rcmained silent and did not include a condition that she leave her job, hc has no right in this case to ask her to forgo her job; and if he demands and she refuses to comply, her maintenance shall not cease, because he has concluded the contract with the knowledge that she works. And many men marry working women with an intention of exploiting them, and when they are unable to do so they ask the wives to stop working with the purpose of harming them (financially).
But if the husband does not know that she works at the time of marriage, he can demand that she stop working, and if she does not comply, she shall not be entitled to maintenance.
Is the wife entitled to claim from her husband a surety to secure her future maintenance if the husband intends to travel alone without leaving anything for her?
The Hanafl, the Malikl and the Hanball schools observe: She is entitled to do so, and he is bound to arrange a surety for maintenance, and on his refusal she can ask that he be prevented from making the journey. The Malikls further add: She is entitled to
claim from him advance payment of maintenance if he intends to go for a usual journey, and if the wife accuses him of planning to go for an unusual journey she has the right to claim immediate payment of maintenance for the period of a usual journey and to provide her a surety for the period which exceeds the period of a us~tal journey.
The Imamiyyah and the Shafi' l schools state: She is not entitled to claim a surety for her future maintenance because its payment hasn't become due, and in the future the possibility of its ceasing due to her disobedience or divorce or death is always present. My opinion is that she has the right to claim a surety because the causc on whose basis a surety is demanded is present, and this is her prcsent obcdience. Therefore, al-Shaykh Ahmad Kashif al-Ghita' has obscrved in his Safinat al-najat (b~-lb al-daman): But the opinion (that she can claim a surety) is not farfetched if not opposed by consensus (ijma'), so that her future maintenance is insured like her past and prcsent maintenance.
As the matter leads to consensus, it lacks strength from the Imaml viewpoint, because, according to their principles of jurisprudence, every consensus reached after the period of the Imams (A) faces the possibility of being refuted. Thus if there is a possihility that the consensus of the concurring legists is based on thcir bclief that future maintenance does not become payable yrcscntly hecausc it is not correct to provide surety for something which has not bccome payable, the argument on the basis of conscnsus rails duc to the presence of this possibility. Now it should bc secn whether the rule (that everything which has not yet become payable does not require a surety) on which the legists have based their argument is correct and whether it can be applied here or not. Here, as already explained, the cause (the wife's obedience) is present, which is sufficient to justify surety. Accordingly, the wife is entitled to claim a surety for her maintenance if the husband intends to travel, especially when he cannot be relied upon and is known to be irresponsible.
Dispute between Spouses:
If after the husband accepts the wife's right to maintenance, the two differ about the actual payment of maintenance (she denying that he has paid, and he claiming to have paid it) the Hanafi, the Shafi'i and the Hanbali schools observe: The wife's word shall be accepted because she is the refuter and the burden of proof is not on her.
The Imamiyyah and the Maliki schools state: If the husband resides with her in the same house, his word will be accepted, otherwise her word.
If the husband concedes that he has not paid maintenance on the excuse that shc is not entitled to it due to her not surrendering herself to him, his word will be accepted according to all the schools. The consensus on this issue is a corollary to the consensus of the schools on the issue that Dowry becomes payable on the conclusion of the contract and becomes fully payable on consummation; but maintenance docs not become payable solely on the conclusion of the contract, it is necessary for her to surrender herself to the husband. It is the practice of the Shari'ah courts of Lebanon, both Sunn; and Sh,'', when the spouscs differ regarding disobedience (nushuz) (he claiming that she is disobedient and she charging him with disobedience), to order the husband to provide a suitable house and to order the wife to reside in it. If the husband refuses to provide a house, he will be considered disobedient; and if he providcs a house which tulfils all the conditions and shc rcluscs to reside in it and to obey him, she will be considered disobedient.
The Wife's Claim of Expulsion:
If the wife leaves her husband's home claiming that she has been expelled, and he denies this, the burden of proof will rest on her and he will be made to take an oath; because it is not valid for her to leave home without an acceptable excuse, and as she claims the presence of such an excuse, she is burdened with proving it.
When the husband provides his wife with maintenance for the future, and then it is stolen or destroyed while in her possession, it is not wajib upon the husband to replenish it, irrespective of whether such loss occurs due to an unavoidable cause or on account of her negligence.
Husband 's Debt Claim against Wife:
If a wife owes a debt to her husband, can he adjust this debt against her present or future maintenance?
The Imamiyyah legists have dealt with this issue; they observe: If she is financially well-off and yet refuses to repay the debt, it is permissible for him to adjust it from her day-to-day maintenance, which means that he consider her debt to him as her maintenance for each day, separately. But if she is financially straitened, he cannot do so; because any payment towards debt should be from what exceeds her daily expenditures.
Maintenan~e of Relatives:
Who are the relatives entitled to maintenance and who amongst them is liable to provide maintenance? What are the conditions which make such maintenance wajib?
Definition of a Relative's Maintenance:
According to the Hanaf I s, the criterion for the responsibility of the relative to provide maintenance of another is the prohibited degree of marriage, so that if one of them is supposed a male and the other a female, marriage between them would be considered haram.
Therefore, this responsibility includes fathers--how high so ever--and sons--how low so ever--and also includes brothers, sisters, uncles and aunts, both paternal and maternal, because marriage between any two of them is prohibited.
The nearest relative shall be liable to provide maintenance, and affinity here has nothing to do with the title to inheritance. Therefore, if there is someone in the two classes of lineal ascendants and descendants, maintenance will be wajib on him, even if he is not entitled to inherit (from the person he is liable to maintain). One not belonging to these two classes will not be liable to provide maintenance, though he should be entitled to inherit. For example, if a person has a daughter's son and a brother, his maintenance will be wajib upon the former and not the latter, though the latter alone be entitled to the entire legacy to the exclusion of the former (al-Durar fi sharh al-Ghurar, vol. 1, bab al-nafaqat).
Similarly, between two relatives of the same class, the nearer one will be responsible, even if he isn't entitled to any share in the legacy. Therefore, if a child has a paternal great grandfather and a maternal grandfather, his maintenance will be wajib upon the latter not the former, though the former should be an heir to the exclusion of the other. The secret here is that the maternal grandfather is nearer though he does not inherit, while the paternal great grandfather is comparatively distant, though he is an heir.
The Hanafls also state: The well-to-do son is responsible for the maintenance of his indigent father's wife, and he is also liable to get his indigent father married if he needs a wife.
The Malikls observe: Maintenance is wajib only on parents and children, not on other relatives. Thus, a grandson is not responsible to maintain his paternal or maternal grandfathers or grandmothers, and, reciprocally, a grandfather is not liable to maintain his grandsons and granddaughters. On the whole, the responsibility for maintenance is limited to parents and children, to the exclusion of grandparents and grandchildren. They also state: It is wajib upon a well-to-do son to maintain the servant of his indigent parents, even if they don't need him; but it is not wajib for a father to maintain his son's servant. A son is also liable to maintain his father's wife and her servant and have his
father married to one or more wives, if one wife does not suffice.
The Hanbal;s state: It is wajib that fathers, how high so ever, provide and receive maintenance. Similarly, it is wajib that sons, how low so ever, provide and receive maintenance, irrespective of their title to inheritance. Maintenance of relatives not belonging to the two classes is also wajib if the person liable to provide maintenance inherits from the person being maintained either by fard or by ta'sib;6but if excluded from inheritance, he will not be responsible for maintenance. Thus, if a person has an indigent son and a well-to-do brother, neither may be compelled to maintain him, because the son's indigence relieves him of the responsibility, and the brother by being excluded from inheritance due to the son's presence (al-Mughn i, vol. 7, bab al-nafaqat).
They also state: It is wajib on the son to arrange for his father's marriage and to maintain his wife, in the same way as it is wajib on the tather to have his son married if he is in need of marriage.
According to the Imamiyyah and the Shafi'; schools, it is wajib for sons to maintain their fathers and mothers, how high so ever, and it is wajib for fathers to maintain sons and daughters, how low so ever. Thc obligation of maintenance does not transcend these two main lineal classcs to include others, such as brothers and paternal and maternal uncles.
But the Shafi' ;s are of the view that a well-to-do father is liable to have his indigent son married if in need of marriage; and a son is likewise bound to arrange for his indigent father's marriage if in need of marriage. Moreover, the liability for a person's maintenance includes the maintenance of his wife (Maqsad al-nabih, bab nafaqat al- 'aqarib).
Most Imamiyyah legists state: It is not wajib to arrange for the marriage of a person whose maintenance is wajib, irrespective of whether he is tather or son. Similarly, it is not wajib for a son to maintain his father's wife if she is not his mother, or for a father to maintain his son's wife, because the canonical proofs (adillah) which make maintenance wajib include neither the father's wife nor the son's, and an obligation is assumed to be non-existent until proved.
Conditions for the Wujub of Maintenance:
The following conditions are necessary for making the maintenance of one relative wajib upon another.
( 1 ) The person to be maintained must be in need of maintenance. Therefore, maintaining a person who is not needy is not wajib. The schools differ regarding a person who is needy and can earn his livelihood but does not do so, as to whether it is wajib to maintain him or not.
The Hanaf; and the Shafi'; schools state: The inability to earn is not a necessary condition for the wujub of the maintenance of fathers and grandfathers. Therefore, their maintenance is wajib on sons even if they have the ability to work but neglect to do so. Regarding other relatives who are able to make a living for themselves, their maintenance is not wajib; rather, they will be compelled to make a living, and a one who neglects to work or is sluggish commits only a crime against himself. But the Shafi';s say regarding a daughter: Her maintcnancc is wajib on the fathcr until she is married.
The Imamiyyah, the Malik; and the Hanbal; schools state: If one who was earlier making his livelihood by engaging in a trade that suited his condition and status later neglects to do so, his maintenance is not wajib upon anyone, irrespective of whether it is the father or the mother or the son. The Malik;s agree with the Shafi' ;s' position regarding a daughter and the reason for this is that formerly women were considered generally incapable of earning their own livelihood.
(2) That the maintainer be well-off, according to all the schools, except the Hanaf;s who say: Being well-to-do of the maintainer is a condition only for the maintenance of those who are neither ascendants nor descendants; but financial capacity is not a condition in the maintenance of the scion by one of the parents or the maintenance of the parents by the scion. The only condition here is the presence of the actual ability to maintain or the presence of the ability to earn. Therefore, a father who is capable of work will be
ordered to maintain his child, and similarly a son with respect to his father, except where one of them is indigent and incapable of making an earning, such as due to blindness, etc. The schools differ regarding the degree of financial ease necessary to cause the liability for providing maintenance to a relative. According to the Shafi'; school, it is the surplus over the daily cxpenditure of his own, his wife's and his children's.
The Malik;s add to this the expenditure incurred upon servants and domestic animals.
According to the Imamiyyah and the Hanbali schools: It is the surplus over the daily expenditure of oneself and one's wife, as the maintenance of descendants and ascendants belongs to the same category.
Hanaf; legists differ in defining the state of financial ease. According to some of them, it is possession of an amount of wealth which gives rise to the incidence of zakat (nisab); according to others, it should be enough to prohibit his taking of zakat. The third opinion differentiates between the farmer and the worker, allowing the farmcr his and his family's expenditure for a period of one month and the worker a day's expenditure as deduction.
(3) According to the Hanbal;s, their belonging to the same religion is necessary; thus, if one of them is a Muslim and the other a non-Muslim, maintenance will not be wajib (al-Mughni, vol. 7).
The Malik;, the Shafi'; and the Imamiyyah schools state: Their belonging to the same religion is not necessary. Therefore, a Muslim can maintain a rclative who is not a Muslim, as is the case when maintenance is provided by a Muslim husband to his wife belonging to Ahl al-Kitab.
The Hanaf;s observe: Belonging to the same religion is not required between ascendants and descendants, but necessary between other relatives. Therefore, a Muslim will not maintain his non-Muslim brother and vice versa (Abu Zuhrah).
Determination oSRelative's Maintenance:
It is necessary that maintenance paid to a relative be sufficient to cover his/her essential needs, such as food, clothing and housing, because maintenance has been made wajib to protect life and to provide its needs. Thus it is to be determined in accordance with the needs (al-Mughni, vol. 7, al-Jawahir, vol. 5).
Dispute Between Relatives:
The Malik;s state: Maintenance of parents will not be wajib on a son unlcss their condition of need is proved by the testimony of two just male witnesses; the testimony of a just male witness along with two female witnesses or the testimony of a just male witness along with an oath will not suffice.
The Shafi';s state: The father's word will be accepted without an oath if he claims to be in need.
The Hanaf;s state: Need is presumed unless there is proof to the contrary. Therefore, if the person claiming maintenance pleads indigence, his word will be accepted on oath and the person from whom maintenance is claimed is burdened to disprove the claim of the claimant. And if the person from whom maintenance is claimed pleads indigence, his word will be accepted on oath and the claimant will be burdened with proving the former's financial capacity. If the presence of financial capacity was established in the past and incapacity is subsequently claimed, the former state will be presumed to exist until the opposite is proved.
The Imamiyyah concur with the Hanaf; position on this issue, because it is in accordance with the principles of the Shar;'ah, excep~ where the person claiming indigence owns known assets. If he does, his plea will be rejected and the word of the person claiming his financial capacity will be accepted.
The schools concur that the past maintenance of relatives will not be payable if the judge had not determined it; the spirit of mutual assistance and fulfilment of need being the reason behind it, it cannot be made good for past time. The schools differ where the judgc determines it and orders its payment, as to whether outstanding maintenance must be paid after the judge's order or whether it is annulled (with the passage of time) as if he had not ordered its payment at all.
The Malik;s state: If a judge orders the payment of maintenance to a relative and then it remains unpaid, it will not be annulled.
The Imamiyyah, the Hanaf; and some Shafi'; legists observe: If the judge orders maintenance to be borrowed and the relafive entitled to receive maintenance does so, it is wajib for the maintainer to clear this debt. But if the judge does not order the borrowing of maintenance, or orders but it is not borrowed, the maintenance will be void. The Hanaf;s require the payment of past maintenance after the judge's order if it accrues for a period of less than one month; so if the judge orders payment and a month passes since its becoming due. the relative will be entitled to claim the maintenance of the current month only, not of the month past.
It should be noted that if a relative entitled to maintenance receives the maintenance of a day or more through litigation, through gift, zakn~ or some other manner, the maintenance due to him will be deducted to the extent of what he received through these means, even if the judge has ordered the payment of maintenance.
The Order of Relatives on Whom Maintenance is Wajib:
The Hanaf;s observe: If there is only one person responsible for maintenance, he will pay it; if two or more belonging to the same category and capacity are responsible--such as two sons or two daughters--they will share equally in providing maintenance, even if they differ in wealth, after their financial capacity has been proved.
But where they are of different categories of relationship or of varying capacities, there is confusion in the views of Hanaf; legists in providing the order of those responsible for maintenance (al-'Ahwal al-shakhsiyyah, Abu Zuhrah).
The Shafi';s state: If a person in need has a father and a grandfather who are both well-off, his maintenance will be provided solely by the father. If he has a mother and a grandmother, the maintenance will be solely provided by thc mother. If both Ihe parents are there, the father will provide the maintenance. If he has a grandfather and a mother, the grandfather will provide the maintenance. If he has a paternal grandmother and a maternal grandmother, according to one opinion, both are equally responsible, according to another opinion, the patcrnal grandmother will be solely liable (Maqsad al-nabih, naJaqat al-'aqarib).
The Hanbalís state: It a child docs not have a father, his maintenance will be on his heirs; and ir he has two heirs, they will contribute in proportion to each's share in legacy. If there are three or more heirs, thcy will contributc in proportion to their share in legacy. Thus if hc has a mothcr and a grandfather, the mother will contribute one-third of maintenance and the grandfather the remaindcr, as thcy inhcrit in the same proportion (al-Mughni, vol. 7).
The Imamiyyah state: The child's maintenance is wajib on the father. If the father is dead or indigcnt, its maintenance will lie upon the paternal grandfather; and it the grandfather is dead or indigent, thc mothcr will be liablc for maintenancc. Aftcr hc, hcr fathcr and mother along with the child's paternal grandmother will share equally in the maintenance of the grandchild if they are financially capable. But if only some of them arc well-off, the maintenance will lie only on those who are such.
If an indigent person has father and a son, or father and a daughter, they will contribute to his maintenance equally. Similarly, if he has many children, it will be shouldered equally by them without any distinction between sons and daughters. On the whole, the Imamís consider the nearness of relationship as criterion while determining the order of relatives who are liable to provide maintenance; on their belonging to the same class, they are compelled to contribute equally without any distinction between males and females or between ascendants and descendants, except that the father and the paternal grandfather are given priority over the mother.
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