MAINTENANCE. Arabic nafaqah (نفقة), which, in the language of the law, signifies all those things which are necessary to the support of life, such as food, clothes, and lodging, although many confine it solely to food. (Durru ʾl-Muk͟htār, p. 283.)
There are three causes of maintenance established by law. (1) Marriage; (2) Relationship; (3) Property (i.e. in case of a slave).
A husband is bound to give proper maintenance to his wife or wives, provided she or they have not become refractory or rebellious, but have surrendered herself or themselves to the custody of their husband.
Maintenance may be decreed out of the property of an absent husband, whether it be held in trust, or deposit, or muẓārabah for him.
If the husband become poor to such a degree as to be unable to provide his wife her maintenance, still they are not to be separated on this account, but the Qāẓī shall direct the woman to procure necessaries for herself upon her husband’s credit, the amount remaining a debt upon him.
A divorced wife is entitled to food, clothing, and lodging during the period of her ʿiddah, and until her delivery, if she be pregnant. No maintenance is, however, due to a woman, whether pregnant or not, for the ʿiddah observed upon the death of her husband. No maintenance is due to a woman upon separation caused by her own fault.
A father is bound to support his infant children; and no one shares the obligation with him.
A mother, who is a married wife, cannot be compelled to suckle her infant, except where a nurse cannot be procured, or the child refuses to take the milk of any other than of the mother, who in that case is bound to suckle it, unless incapacitated for want of health, or other sufficient cause.
If neither the father nor the child has any property, the mother may be compelled to suckle it.
The maintenance of an infant child is incumbent upon the father, although he be of a different religion; and, in the same manner, the maintenance of a wife is incumbent upon her husband, notwithstanding this circumstance.
Maintenance of children becomes, however, incumbent upon the father only where they possess no independent property.
When the father is poor and the child’s paternal grandfather is rich, and the child’s own property is unavailable, the grandfather may be directed to maintain him, and the amount will be a debt due to him from the father, for which the grandfather may have recourse against him; after which the father may reimburse himself by having recourse against the child’s property, if there is any.
When the father is infirm and the child has no property of his own, the paternal grandfather may be ordered to maintain him, without right of recourse against anyone; and, in like manner, if the child’s mother be rich, or the grandmother rich, while its father is poor, she may be ordered to maintain the child, and the maintenance will be a debt against the child if he be not infirm, but if he be so, he is not liable.
If the father is poor and the mother is rich, and the young child has also a rich grandfather, the mother should be ordered to maintain the child out of her own property, with a right of recourse against the father and the grandfather is not to be called upon to do so. When the father is poor, and has a rich brother, he may be ordered to maintain the child, with right of recourse against the father.
When male children have strength enough to work for their livelihood, though not actually adult, the father may set them to work for their own maintenance, or hire them out, and maintain them out of their wages; but he has no power to hire females out for work or service.
A father must maintain his female children absolutely until they are married, when they have no property of their own. But he is not obliged to maintain his adult male children unless they are disabled by infirmity or disease.
It is also incumbent on a father to maintain his son’s wife, when the son is young, poor, or infirm.
The maintenance to an adult daughter, or to an adult son who is disabled, rests upon the parents in three equal parts, two-thirds being furnished by the father, and one-third by the mother.
A child in easy circumstances may be compelled to maintain his poor parents, whether they be Muslim or not, or whether by their own industry they be able to earn anything for subsistence or not.
Where there are male and female children, or children only of the male sex, or only of the female sex, the maintenance of both parents is alike incumbent upon them.
Where there is a mixture of male and female children, the maintenance of both parents is incumbent on them alike.
When a mother is poor, her son is bound to maintain her, though he be in straitened circumstances himself, and she not infirm. When a son is able to maintain only one of his parents, the mother has the better right; and if he have both parents and a minor son, and is able to maintain only one of them, the son has the preferable right. When he has both parents, and cannot afford maintenance to either of them, he should take them to live with him, that they may participate in what food he has for himself. When the son, though poor, is earning something, and his father is infirm, the son should allow the father to share his food with him.
As of a father and mother, so the maintenance of grandfathers and grandmothers, if they be indigent, is incumbent upon their grandchildren, though the former be of different religion.
It is a man’s duty to provide maintenance for all his infant male relations within prohibited degrees who are in poverty; and also to all female relations within the same degrees, whether infants or adults, where they are in necessity; and also to all adult male relations within the same degrees who are poor, disabled, or blind; but the obligation does not extend beyond those relations.
No adult male, if in health, is entitled to maintenance, though he is poor; but a person is obliged to maintain his adult female relatives, though in health of body, if they require it. The maintenance of a mere relative is not incumbent on any poor person; contrary to the maintenance of a wife and child, for whom poor and rich are equally liable.
When a poor person has a father and a son’s son, both in easy circumstances, the father is liable for his maintenance; and when there is a daughter and a son’s son, the daughter only is liable, though they both divide the inheritance between them. So also, when there is a daughter’s daughter, or daughter’s son, and a full brother, the child of the daughter, whether male or female, is liable, though the brother is entitled to the inheritance. When a person has a parent and a child, both in easy circumstances, the latter is liable, though both are equally near to him. But if he have a grandfather and a son’s son, they are liable for his maintenance in proportion to their shares in the inheritance, that is, the grandfather for a sixth, and the son’s son for the remainder. If a poor person has a Christian son and a Muslim brother, both in easy circumstances, the son is liable for the maintenance, though the brother would take the inheritance. If he has a mother and grandfather, they are both liable in proportion to their shares as heirs, that is, the mother in one-third, and the grandfather in two-thirds. So, also, when with the mother there is a full brother, or the son of a full brother, or a full paternal uncle, or any other of the ʿaṣabah or residuaries, the maintenance is on them, by thirds according to the rules of inheritance. When there is a maternal uncle, and the son of a full paternal uncle, the liability for maintenance is on the former, though the latter would have the inheritance; because the condition of liability is wanting on the latter, who is not within the forbidden degrees.
If a man have a paternal uncle and aunt, and a maternal aunt, his maintenance is on the uncle; and if the uncle be in straitened circumstances, it is on both the others. The principle in this case is, that when a person who takes the whole of the inheritance is in straitened circumstances, his inability is the same as death, and being as it were dead, the maintenance is cast on the remaining relatives in the same proportions as they would be entitled to in the inheritance of the person to be maintained, if the other were not in existence; and that when one who takes only a part of the inheritance is in straitened circumstances, he is to be treated as if he were dead, and the maintenance is cast on the others, according to the shares of the inheritance to which they would be entitled if they should succeed together with him. (See Durru ʾl-Muk͟htār, Bābu ʾn-Nafaqah.)