The concept of maintenance is derived from a number of sources which includes the Qur’an, Sunnah and the ijma of the jurist, so it is one of the areas where there has been more of man’s involvement in what God intended by verses Al Talaq  65:7; Al Baqarah 2:233 &  Al-Nisa 4:34.

Mainataince of a wife is regarded as Nafaqah  which is an Arabic word, its root origins being derived from the word infaq, which means to spend for a good purpose[1] which  the Hanafi school regards as  food, clothing and accommodation;  The Hanabili view it as  “what is sufficient for maintaining a family with food, clothing and accommodation and their supplements”[2] The Shafi have a wider interpretation which includes cleaning tools, house appliances, and “servant in the case where the wife has ever used the service of a servant before her marriage[3]”. In essence all 5 school agree on mainataince. However, there are no defined limits of mainataince in the sharia and Mughniyya (ND) argues that payments are only wajib, therefore one has to look at the principles of Urf (usage) and the means of the husband and if they have sufficient funds then it would extend to costs such as medical expenses which would include cost of childbirth[4]. However I would submit that although there is no direct mandatory obligation by way of the jurist, one has to look at verses of the Qur’an which provide the support to confirm maintenance is more than just wajib, it is obligatory as noted bv  Farz  and  Mohd, A & Ibrahim, B (2010). Even  if one was able to argue it was wajib, one has to have regard for the overarching social justice principles which form part of Islam and not to provide for a woman’s needs  who has been intimate with a man does not sit right when one looks at  the prophets last sermon where men were reminded of their duties to women[5], why a  Dower (Mahr) exists  as per  verse 4:21[6]. To deny a woman anything in on going marriage whilst she is being intimate would in my view go against the spirit of what was intended, this is of course subject to the means that are available to man. One should note that the principles of maintenance cannot apply in the situation of a woman where the contract is void[7], but does apply to a woman who is not of the same religion as the principles of mainataince are rooted in the contract[8]. so, where there is a valid contract the issue of mainataince becomes a live issue.

Accordingly, across all the five schools’ men have a various degrees of obligations to maintain the wife’s subject to them not being excluded by way of being disobedient or rebellious, an apostate (nushuz)[9], are not refusing conjugal rights and are obeying all lawful commands[10] and are of maturity,  In the absence of such  it becomes incumbent on the man to provide and it is generally accepted that this will be in accordance with the means of the man in line with verse 65:7, as opposed to the life style that the woman was accustomed to which is advocated by the Shafi and Hanafi schools[11]. So subject to these variances a husband has to provide the essential elements such as food, accommodation and clothing, in other aspects there is divergence re medical costs, servants or a working wife.

The Jurist are in consensus that where a woman has complied with her obligations then the husband has to maintain her but differ on whether it is a debt which is enforceable[12], but in some codified systems it is[13]. The jurist suggests that the basis for its significance is that it is there to make the woman feel secure for her providing intimacy, thus it gives her security as well as supporting the relationship.  The issue which is not addressed is that in some regards it impinges on the principles of Adl and Al-Kafa’ah which are there to ensure women are treated no less than a man given they are equal before God subject to the principles of Taqwa (piety). If this is the case, why is there a change in the status qou post a valid marriage contract?  I would argue that there is another reason for the development of this principles given that woman is also compensated for sharing her intimacy by the dower principles, as well as being given the security of a contract which is rooted in the protection of the rights of the woman in the Qur’an. I would advocate that one has to understand its roots and to do that one has to go back to era it was developed, my view being it was developed to highlight the rights of women in a time period when they were not as important to other societies/faiths which then made Islam more appealing to women and men engaged in practice to separate themselves from such practices.  It should have been a springboard to recognition of women as equals, but sadly the converse has occurred.

The views expressed in this article are the personal views of Yasin M Din- Barrister at Law

References

[1] Mohd, A & Ibrahim, B (2010) Muslims Wife’s Rights to Mainataince; Husbands Duty to Maintain a Working Wife in Islamic Law and the Law in Malaysia, HUM Law Journal Vol 18 No 1 2010- page 104

[2] Mohd, A & Ibrahim, B (2010) Muslims Wife’s Rights to Mainataince; Husbands Duty to Maintain a Working Wife in Islamic Law and the Law in Malaysia, HUM Law Journal Vol 18 No 1 2010- page 104

[3] Mohd, A & Ibrahim, B (2010) Muslims Wife’s Rights to Mainataince; Husbands Duty to Maintain a Working Wife in Islamic Law and the Law in Malaysia, HUM Law Journal Vol 18 No 1 2010- page 104

[4] Mughniyya, Muhammad Jawad (ND), The Five Schools of Islamic Thought, Al-Islam.org Page 271

[5] Nasir, Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 106 – “Show piety to women, you have taken them in the trust of God and have had them made lawful for you to enjoy by the word of God, and it is your duty to provide for them and clothe them according to decent custom”

[6] As reflected by Verse 4:21 “How could you take it when you have lain with each other and they have taken a solemn pledge from you” -   It was narrated from Aishah that : the Messenger of Allah said: “Any woman whose marriage is not arranged by her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. If (the man) has had intercourse with her, then the Mahr belongs to her in return for his intimacy with her. And if there is any dispute then the ruler is the guardian of the one who does not have a guardian - • Sunan Ibn Majah, Vol. 3, Book of Marriage, Hadith 1879- https://muflihun.com/ibnmajah/9/1879 

[7] Nasir, Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 105

[8] Nasir, Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 105

[9] Mohd, A & Ibrahim, B (2010) Muslims Wife’s Rights to Mainataince; Husbands Duty to Maintain a Working Wife in Islamic  Law and the Law in Malaysia, HUM Law Journal Vol 18 No 1 2010- page 111 https://www.researchgate.net/publication/328287539_MUSLIM_WIFE'S_RIGHTS_TO_MAINTENANCE_HUSBAND'S_DUTY_TO_MAINTAIN_A_WORKING_WIFE_IN_ISLAMIC_LAW_AND_THE_LAW_IN_MALAYSIA

[10] Nasir, Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 107

[11] Mohd, A & Ibrahim, B (2010) Muslims Wife’s Rights to Mainataince; Husbands Duty to Maintain a Working Wife in Islamic  Law and the Law in Malaysia, HUM Law Journal Vol 18 No 1 2010- page 117 https://www.researchgate.net/publication/328287539_MUSLIM_WIFE'S_RIGHTS_TO_MAINTENANCE_HUSBAND'S_DUTY_TO_MAINTAIN_A_WORKING_WIFE_IN_ISLAMIC_LAW_AND_THE_LAW_IN_MALAYSIA

[12] “Imams Maliki, Shafi and Ahmad view that, in the case where the husband declines, it becomes a debt on him to pay. The debt will not cease unless and until the husband pays the debt or the wife waives her right or forgives the husband (istibra’). The debt does not cease with the change of time and period, or the wife becomes nushuz afterwards or after divorce or death takes place”- ohd, A & Ibrahim, B (2010) Muslims Wife’s Rights to Mainataince; Husbands Duty to Maintain a Working Wife in Islamic  Law and the Law in Malaysia, HUM Law Journal Vol 18 No 1 2010- page 117

[13] In Pakistan, under Article 9 of The Muslim Family Law Ordinance of 1961, the husband is bound by the law to maintain his wife, and if he does not do so without legal cause, then the wife may sue him for her maintenance. She may also apply for a court order as to payment of her maintenance under the Criminal Procedure Code of Pakistan- Nasir, Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 106