LECTURE XV. Principle. (a.) Proper maintenance comprehends food, raiment, and lodging.*-B. Dig., page 442. (b.) When a man has several wives, some of whom are free Muslims and some are slaves, they are all alike in respect of maintenance. But a woman enjoyed under a semblance of legality has no right to any maintenance. And it is said that there is no maintenance in cases of invalid marriage or their consequent iddats.Fatáwá Alamgírí, vol. i, page 735.-B. Dig., page 440. (c.) If a wife be disobedient or refractory, and go abroad without her husband's consent, she is not entitled to any support from him, until she return and make submission, because the rejection of the matrimonial restraint in this instance originates with her but when she returns home she is then subject to it, for which, reason she again becomes entitled to her support as before. It is otherwise where a woman, residing in the house of her husband, refuses to admit him to the conjugal embrace, as she is entitled to maintenance, notwithstanding her opposition, because, being then in his power, he may, if he please, enjoy her by force.-Hidayah, vol. i, page 394. If a woman be a náshizah or rebellious, she has no right to maintenance until she return to her husband's house. By this expression is to be understood a woman who goes out from her husband's house (munzil), and denies herself to him, in contradistinction to one who merely refuses to abide in her husband's apartment (bait), which is not necessary for the purpose of restraint.-Fatáwá Alamgírí, vol. i, page 733.-B. Dig., page 438. When she ceases to be a náshizah or rebellious, she is again entitled to maintenance.-Ibid. However, CCCCLXXXVI. If a woman refused to surrender herself on account of her dower, her maintenance does not drop, but it is incumbent upon the husband, although she be not yet within his custody. It is incumbent upon a husband to provide a separate apartment for his wife's habitation, to be solely and exclusively appropriated to her use; because this is essentially necessary to her, and is therefore her due, the same as maintenance, and the word of God appoints her a dwelling-house as well as a subsistence.-Hidayah, vol. i, page 401. XV. Since her refusal is only in pursuance of her right, and LECTURE consequently the objection to the matrimonial custody originates with the husband.-Hidayah, vol. i, page 394. CCCCLXXXVII. An adult woman who has Principle. not removed to her husband's house is not disentitled to have maintenance from him unless he has called upon her to remove, and she has refused to do so without a right; but if she has refused to do so of right, that is, to obtain payment of her dower, she is entitled to maintenance. CCCCLXXXVIII. If a man's wife be so young Principle. as to be incapable of generation (that is matrimonial intercourse), her maintenance is not incumbent upon him.-Hidayah, vol i, page 394. Because although she should be within his custody, yet as an obstacle exists in her to the carnal embrace, this is not the custody which entitles to maintenance, that being described "custody for the purpose of enjoyment," which does not apply to the case of one incapable of the act; contrary to the case of a sick woman, to whom maintenance is due, although she be incapable, as shall be hereafter demonstrated.-Hidayah, vol. i, pages 394 & 395. CCCCLXXXIX. But if the husband be an infant Principle. incapable of generation, and the wife an adult, she ANNOTATIONS. cccclxxxvii. When an adult woman, who has not yet removed to her husband's house, asks for maintenance, she is entitled to it unless he has called upon her to remove; and the fatwa is in accordance with this. view, though the lawyers of Balkh have said that she is not entitled till actual removal. If, when called upon to remove to his house, she refuses to do so of right, that is, to obtain payment of her dower, she is entitled to maintenance; but if she refuses to do so without right, as when her dower is paid, or deferred, or has been given to her husband, she has no claim to maintenance.-Fatáwá Alamgirí, vol. i, page 732,B. Dig., page 437. cccclxxxviii. When a wife is too young for matrimonial intercourse, she has no right to maintenance from her husband, whether she be living in her house, or with her father.-Ibid. LECTURE is entitled to maintenance at his expense.-Hidáyah, XV. Principle. Principle. vol. i, page 395. Because in this case delivery of the person has been performed on her part, and the obstacle to the matrimonial enjoyment exists on the part of the husband.-Hidayah, vol. i, page 395. CCCCXC. An obedient wife's being inflicted with a disease, or overtaken by any other calamity which rendered her unfit for matrimonial intercourse, or having any natural mal-formation obstructive of intercourse, does not invalidate the right to maintenance (d). (d.) When a wife, before her removal to her husband's house, falls sick of an illness which is obstructive of intercourse, and is removed, notwithstanding, sick as she is, she is entitled to maintenance after her removal. She is also entitled to it before removal if she had sought to be removed, and her husband had failed to remove her, she being still willing. But if he had asked her to remove, and she had refused, she has no right to maintenance until her removal. If attacked by illness subsequent to her removal, though of such a nature as to prevent matrimonial intercourse, she is entitled to maintenance according to all opinions.* When a woman is impervious by reason of mal-formation, or becomes mad, or is overtaken by any other calamity that unfits her for matrimonial intercourse, or gets too old for it, she is still entitled to maintenance whether any of these calamities have happened after her removal to her husband's house, or before it, provided she had not previously denied herself without just cause.* CCCCXCI. In adjusting the obligation of the nafkah or maintenance of a wife, regard is to be had to the rank and condition of both her and of her husband (e).-Hidayah, vol. i, page 393. * Fatáwá Alamgírí, vol. i, page 754.—B. Dig., page 440. XV. (e.) Thus, if the parties be both wealthy, he must sup- LECTURE port her in an opulent manner; if they be both poor, he is required only to provide for her accordingly; and if he be rich and she poor, he is to afford her a moderate subsistence, such as is below the former and above the latter.Hidayah, vol. i, page 393. CCCCXCII. The maintenance of the wife's Principle. servants is incumbent upon her husband, as well as that of the wife herself, provided he be in opulent circumstances.-Hidayah, vol. i, page 396. Because he is obliged to provide his wife's maintenance so far as may suffice, and it is not sufficient unless her servants also be supported, they being essential to her ease and comfort: but it is not absolutely incumbent upon him to provide a maintenance for more than one servant according to Hanifah and Muhammad.-Hidayah, vol. i, page 396. CCCCXCIII. The husband may compound with Principle. his wife for her maintenance, and if the amount so settled be insufficient, the latter can sue the former for an increase if the husband be rich. On the other hand, if the settlement be concluded by the wife with the husband it will hold, provided the same be suitable to one of like condition; but in the case of its being in excess thereof, she must be content with the maintenance of her equals.* When a man compounds with his wife for maintenance at three dirams a month it is lawful.* Thus, in the case already put of a composition for three dirams every month, if the wife should afterwards say,' "This amount is not sufficient for me," she is at liberty to litigate the matter for an increase if the husband be rich; and if the husband should say "I am unable to pay as much," though the Judge is not to believe him on his mere word, yet if he find on inquiry that it is confirmed by the information of others, he may reduce the amount to what he is able to bear.* * Fatáwá Alamgírí, vol, i, page 742.-B. Dig., pp. 446 & 447. LECTURE Principle. When a woman makes a composition for her maintenance and dress, and it is not much in excess of what is suitable to one of the like condition, the composition will hold good; but if the excess is beyond all reasonable bounds, it must be returned, and the woman be content with the dress and maintenance of her equals." CCCCXCIV. Maintenance may be decreed out of the property of an absent husband, whether it be held in trust, or deposit, or muzárabat† for him.* Principle. CCCCXCV. In all cases in which a Judge may decree maintenance to a wife out of the property of her husband, she may lawfully take it herself out of the property without his order to such an extent as may be justified by common usage. But where the property left by a husband in his own house, or in deposit, is of a different nature from that which a woman is entitled to for maintenance, it can neither be sold by herself nor by the Judge on account of her maintenance (f). And upon this point all are agreed.* (f.) If a woman's husband absent himself, leaving effects in the hands of any person, and that person acknowledge the deposit, and admit the woman to be the wife of the absentee, the Kází must decree a maintenance to her out of the said effects; and the same to the infant children of the absentee, and also to his parents. And the rule is the same if the Kází himself be acquainted with the above two circumstances, where the trustee denies both or either of them.Hidayah, pages 402 & 403. CCCCXCVI. Arrears of maintenance are not due unless the maintenance have been decreed by the Kází, or the rate thereof previously determined and agreed to between the parties. Arrears of decreed maintenance drop in case of the death of either * Fatáwá Alamgirí, vol. i, page 737.-B. Dig., pp. 443 & 447. |