Chapter on Maintenance and the Rights of the Owned

(1) The statement: And accompany them in this world with kindness: This indicates that the maintenance of parents is obligatory on a man, as stated in Al-Hidayah.

(2) The statement: And upon the heir is the like of that: This refers to the distant relative, pointing to the beginning of the verse, which is Allah’s statement: And upon the father is their provision and clothing [Al-Baqarah: 233]. This indicates that maintenance is obligatory on the heir, restricted to a relative with a prohibited degree of kinship based on Ibn Mas’ud’s reading, and there is no doubt that his reading was heard from the Prophet (ﷺ) and is well-known, making it equivalent to a widely narrated report. As is known, it is permissible to restrict the generality of the Book with it. [Inayah and Binayah, excerpted from them] It is stated in Al-Madarik: "And upon the heir" is connected to "And upon the father is their provision and clothing," and what is between them explains what is acceptable, meaning upon the heir of the child, in the absence of the father, is the like of what was upon his father during his lifetime in terms of provision and clothing. There is disagreement about this. According to Ibn Abi Layla, it applies to anyone who inherits him. In our view, it applies to a relative with a prohibited degree of kinship based on Ibn Mas’ud’s reading: "And upon the heir with a prohibited degree of kinship is the like of that." According to Ash-Shafi’i (may Allah be pleased with him), there is no maintenance except for lineage. [End quote] In At-Tafsir Al-Ahmadiyyah, Fakhr Al-Islam said: The apparent meaning of this verse indicates that maintenance is obligatory beyond lineage, which is the maintenance of relatives, contrary to Ash-Shafi’i, as Allah’s statement: And upon the heir is the like of that [Al-Baqarah: 233] in its generality includes the brother, uncle, and others, encompassing them by its meaning, as “heir” is derived from inheritance, like “adulterer” or “thief.” It indicates that those other than the father bear maintenance according to the shares of inheritance, so maintenance is obligatory on the mother and grandfather in thirds, based on Allah’s statement: And upon the heir is the like of that [Al-Baqarah: 233], as it is a derived term, and the ruling must be based on its meaning. His point is that Allah’s statement: And upon the heir is the like of that [Al-Baqarah: 233] indicates generality, encompassing beyond lineage relatives, and indicates that maintenance is according to inheritance, containing two indications.

(3) The statement: And give to the near relative his right: The authors of Al-Kashshaf and Al-Madarik explicitly stated that Allah’s statement: So give to the near relative his right [Ar-Rum: 38] is evidence for the obligation of maintenance for relatives with prohibited degrees of kinship, as is our view. It was previously mentioned that according to Ash-Shafi’i, there is no maintenance except for lineage relatives, while in our view, maintenance is obligatory for every relative with a prohibited degree of kinship who is in need and unable to earn, upon every wealthy relative, according to the order of inheritance and agnates, as is known in fiqh. [At-Tafsir Al-Ahmadiyyah]

(1) The statement: Take what suffices for you and your child in a reasonable manner: This contains several benefits, including the obligation of maintenance for the wife. Ibn Al-Humam said: There are many Hadiths on this topic, and there is consensus among the Imams on it. Another benefit is the obligation of maintenance for poor minor children on their father. He said “poor” because if they are wealthy, their maintenance is from their wealth. [Taken from Sharh Al-Wiqayah] Another benefit is that maintenance is measured by sufficiency. In detail: There is disagreement about whether a wife’s maintenance is fixed by Shariah or based on the condition of both spouses. Abu Hanifah, Malik, and Ahmad said: The condition of both spouses is considered, so a wealthy man must provide for a wealthy woman the maintenance of the wealthy, and for a poor woman the least sufficient maintenance. For a wealthy man with a poor woman, a moderate maintenance between the two, and for a poor man with a wealthy woman, the least sufficient, with the rest remaining a debt on him. Ash-Shafi’i said: It is fixed by Shariah, not subject to ijtihad, based solely on the husband’s condition: two mudd for a wealthy man, one and a half for a middle-class man, and one for a poor man. This Hadith is evidence against him. [Rahmat Al-Ummah and Nayl Al-Awtar, excerpted from them] The consideration of both spouses’ conditions and adopting the middle ground when their conditions differ is our view, which might suggest it is agreed upon among our scholars or the core of our madhhab, but this is not so. It is a view chosen by Al-Khasaf and adopted by most scholars. As stated in Al-Walwaljiyyah: This is the correct view, and the fatwa is based on it. The core of our madhhab, as mentioned in the apparent narrations, is to consider the man’s condition alone, like Ash-Shafi’i’s view, but the texts and commentaries follow the first view. It is stated in Al-Bahr: They agreed on the obligation of maintenance for the wealthy if both are wealthy and for the poor if both are poor. The disagreement arises when one is wealthy and the other is poor. According to the apparent narration, the man’s condition is considered, so if he is wealthy and she is poor, he provides the maintenance of the wealthy, and vice versa, the maintenance of the poor. According to the fatwa, a middle maintenance is obligatory in both cases, above the poor’s maintenance and below the wealthy’s. Those who ruled by considering both conditions relied on Allah’s statement: Let a man of wealth spend from his wealth [At-Talaq: 7], and the Hadith of Abu Sufyan’s wife mentioned in the book, as the verse indicates considering the husband’s condition, and his statement: "Take what suffices for you and your child in a reasonable manner" indicates considering her condition, necessitating a combination of both, which is only achieved by considering both conditions. [Taken from Umdat Ar-Ri’ayah and Radd Al-Muhtar] Another benefit is that if someone has a right over another and is unable to claim it, it is permissible to take from his wealth the amount of his right without his permission. The explanation is that if someone takes one hundred from you, you are not unjust in taking one hundred back, especially since Allah said: The recompense for an evil is an evil like it [Ash-Shura: 40]. They agreed that calling the recompense an evil is for linguistic harmony. Abu Hanifah and Ash-Shafi’i said: The disagreement is whether he takes his right from the same type or from another. The Imam said: He can only take from the same type, as taking from another requires assuming a sale, which he has no authority to do. His two companions said: He can take from both prices, as they are equivalent in ruling. Ash-Shafi’i said: He can take from another type, even real estate. Later jurists among us favored this narration due to the corruption of judges and their taking bribes in rulings. [Al-Kawkab Ad-Durri, summarized] It is established in our principle that ruling against an absent party without an opponent is not permissible. His statement to Abu Sufyan’s wife was a fatwa, not a judicial ruling, as evidenced by the fact that he did not specify what she should take, and specifying maintenance is the judge’s role. If it is not specified, it is not a judicial ruling. In summary: Some used this to argue for the permissibility of ruling against an absent party, but this is not so, as this case was a fatwa, not a ruling, according to the most correct view. [Taken from Al-Bahr Ar-Ra’iq] It is stated in Al-Marqah: This indicates that a man is obligated to provide maintenance for his parents and children, as if he is obligated for his child’s maintenance, then providing for his parent, with their greater sanctity, is even more obligatory.

(1) The statement: I have wealth, and my father needs my wealth, etc.: This Hadith indicates the obligation of maintenance for a parent on their child. In detail: Two conditions are considered for the obligation of maintenance for ascendants. First, the one for whom maintenance is obligatory must be poor, even if capable of earning, as if they have wealth, their maintenance is from their wealth, and maintenance for a wealthy person is not obligatory on anyone except a wealthy wife, whose maintenance is obligatory on her husband as compensation for her confinement. Maintenance for others is obligatory for kinship, and kinship is only obligatory in need, which is poverty. The basis is Allah’s statement: And accompany them in this world with kindness [Luqman: 15], meaning the parents, and all ascendants are included. It is not acceptable for an ascendant to die of hunger while living in Allah’s blessings. Second, the one upon whom maintenance is obligatory must be wealthy, as a poor person needs others, so how can maintenance for another be obligatory on him? Maintenance is not obligatory on a poor person except for a wife and minor child. [Umdat Ar-Ri’ayah]

(1) The statement: Your mother and your father: This indicates that the mother is more entitled to good companionship than the father and takes precedence over him in kindness when the son’s wealth is insufficient for both, as held by the majority, as narrated by Al-Qadi Iyad. He said: The majority held that the mother is preferred in kindness over the father, while some said they are equal, as narrated from Malik and some Shafi’is. Al-Harith Al-Muhasibi narrated consensus on preferring the mother over the father. [Nayl Al-Awtar]

(2) The statement: Your sister and your brother, then the nearest: This indicates the obligation of maintenance for every relative with a prohibited degree of kinship. It is stated in Sharh Al-Wiqayah: Maintenance for every minor relative with a prohibited degree of kinship who is poor, or an adult female who is poor, or a male who is disabled or blind, is according to inheritance, and he is compelled to provide it. The eligibility for inheritance is considered, not its actuality. This is because maintenance for these is obligatory due to Allah’s statement: And upon the heir is the like of that [Al-Baqarah: 233], so it should only be obligatory based on inheritance. He said: The consideration is eligibility for inheritance, not its actuality, as the actuality of inheritance is only known after death. If someone has a maternal uncle and a cousin, the cousin may die, and the inheritance goes to the uncle, so proximity with eligibility for inheritance is considered. It is stated in Umdat Ar-Ri’ayah: The statement: Maintenance for every relative with a prohibited degree of kinship, etc., is connected to the statement: Maintenance for his ascendants, meaning upon a wealthy person with natural wealth is the maintenance of every relative with a prohibited degree of kinship, meaning a relative whose marriage is permanently forbidden. This specifies that maintenance is not obligatory for a non-prohibited relative, like a cousin, nor for a prohibited non-relative, like the wife’s mother or a foster brother. [Binayah] It is stated in Rahmat Al-Ummah: They differed on whether the heir is compelled to provide maintenance for those he inherits by fixed shares or agnation. Abu Hanifah said: He is compelled to provide maintenance for every relative with a prohibited degree of kinship, including the maternal aunt and paternal aunt, but excluding the cousin and those related by fosterage. Malik said: Maintenance is only obligatory for the closest parents and direct children. Ash-Shafi’i said: Maintenance is obligatory for the father, however high, and the son, however low, and does not extend beyond the direct line. Ahmad said: For every two people between whom inheritance flows by fixed shares or agnation from both sides, maintenance is obligatory on the other, such as parents, siblings’ children, uncles, and their children in one narration. If inheritance flows from one side, like relatives with kinship, such as a nephew with his aunt or a cousin with his cousin’s daughter, there are two narrations from Ahmad.

(1) The statement: The slave has his food and clothing: The Hadiths of this chapter indicate the obligation of maintenance and clothing for the slave, and there is consensus on this, as narrated by the author of Al-Bahr and others. Ibn Al-Humam said: There is consensus among scholars on this except for Ash-Sha’bi. It is stated in Umdat Ar-Ri’ayah: Maintenance for a slave, whether male, female, umm walad, or otherwise, includes the mudabbar and one assigned for service, as the intent is a slave of benefit, excluding the mukatab, as he owns his benefits, so there is no maintenance for him from the master during his kitaba. This includes young and old, those with a present father and those without, and a married slave woman unless she is settled in her husband’s home. As stated in Al-Fatawa: The slave’s maintenance is estimated as sufficient from the common food and condiments of the land, as is clothing, and it is not permissible to limit it to covering the private parts. It is recommended to equalize between male and female slaves, and to increase the clothing of a slave woman used for enjoyment due to custom.

(2) The statement: He is not to be tasked with work except what he can bear: This indicates the prohibition of tasking slaves with work beyond their capacity, and this is agreed upon. [Nayl Al-Awtar]

(3) The statement: Let him feed him from what he eats, etc.: An-Nawawi said: The command to feed them from what the master eats and clothe them similarly is understood as recommended. The master is obligated to provide maintenance and clothing for the slave in a reasonable manner according to the customs of the land and individuals, whether it is of the same type as the master’s maintenance and clothing, lesser, or greater. If the master restricts his own maintenance, whether out of asceticism or miserliness, beyond the custom of his peers, it is not permissible to restrict the slave similarly or compel him to conform unless he agrees. Ibn Al-Humam said: The intent is the type of what they eat and wear, not the exact same, so if he wears fine linen or cotton, it suffices to clothe him with ordinary linen or cotton, unlike clothing him with rags. It is not inherited from the companions that they clothed them exactly the same except in rare cases. [Al-Marqah] It is stated in At-Tawdih: Equalizing in food and clothing is recommended, as agreed by scholars. If the master eats superior food and wears fine clothing, he is not obligated to equalize his slave in it. Ash-Shawkani said regarding the Hadith of one or two morsels: This indicates that it is not obligatory to feed the slave from the same type as the master eats, but he should hand him enough to fill his mouth for the stated reason, which is handling its heat and preparation, and give him what suffices from any food he prefers according to custom, as previously established by consensus, though sharing is preferable.

(1) The statement: Narrated by Abu Dawud: After this, the author of Al-Mishkat said: I did not find in sources other than Al-Masabih what was added to it, namely: And charity prevents a bad death, and righteousness increases lifespan. The objection of Al-Mishkat’s author to Al-Masabih’s author is incorrect, as he said it can be understood from Shaykh Al-Jazari’s words that the Hadith, as in Al-Masabih, was narrated by Ahmad in its entirety. Thus, it is stated in this book: And Ahmad added, etc. [Taken from Al-Marqah]

(2) The statement: Will be flogged on the Day of Resurrection: This indicates that there is no hadd punishment on the master for slandering his slave, nor on anyone slandering a slave, as a slave is not considered muhsan, so the slanderer is excused, even if he is the master. [Al-Luma’at] These Hadiths urge kindness to slaves and good companionship with them. Muslims have agreed that freeing them for this is not obligatory but recommended, and it serves as expiation for the sin and removes the guilt of wronging them.

(1) The statement: Whoever separates a mother from her child, etc.: It is stated in Fath Al-Qadir: This prohibition is tied to kinship with a prohibited degree for marriage, so it does not include a prohibited non-relative, like one related by fosterage or the father’s wife, nor a non-prohibited relative, like a cousin, nor spouses, as separating them is permissible, as it is contrary to analogy and restricted to its context, which is prohibited kinship, as in a mother and her child or siblings. If it is said: If so, separating an uncle from his niece or an aunt from her sister’s daughter should not be prohibited, as the text only mentions the mother and siblings. The response is: Prohibited kinship establishes a meaning by indication, which is the implied agreement in Shafi’i terminology, as the mother’s specificity is not considered, since the father is similar, so kinship by lineage is understood. Then the text of siblings came, clarifying that it is not restricted to lineage but extends to prohibited kinship, so it applies to the uncle and aunt by indication. The scholars hold that priority is not required for indication and implied agreement. It is stated in Al-Hidayah: Whoever owns two minor slaves, one of whom is a relative with a prohibited degree of kinship to the other, should not separate them, and the same applies if one is an adult. Ibn Al-Humam said: There remain eight issues where separation is permissible despite prohibited kinship, including the three mentioned by the author of Al-Hidayah, such as when separation is more rightful. Both must be in his ownership, as the text is contrary to analogy and restricted to its context, so if one minor belongs to him and the other to someone else, there is no issue with selling one, as ownership differs. [End quote, excerpted] The separation refers to separation by sale, gift, division of inheritance, spoils, or bequest. They differed on the age limit permitting separation. Ash-Shafi’i said: It is seven or eight years. Abu Hanifah’s companions said: Until puberty. [Taken from Al-Marqah] If he separates, it is disliked, but the contract is valid. There is disagreement about the validity of the sale. Ash-Shafi’i said: It is not valid. Abu Hanifah, and a view of Ash-Shafi’i, said: It is valid but disliked, and the dislike is prohibitive, as the command in "Return him, return him" indicates obligation, so the sale is prohibitively disliked. The sale’s components were fulfilled by competent parties in its subject, and the dislike is due to an adjacent factor, similar to the dislike of usury. In detail, as stated by Allamah Nuh in the marginal notes of Ad-Durar. There are two narrations from Abu Yusuf: one that the sale is not permissible for lineage kinship but permissible for other kinship, which is the most correct in Ash-Shafi’i’s madhhab; and another that it is not permissible for any, whether lineage or other kinship. If both are adults or spouses, there is no issue with separating them, as the text is contrary to analogy, so others are not included by indication. It is authentic that Al-Muqawqas Al-Qibti gifted him Mariyah and Sirin, who were sisters, and he separated them, taking Mariyah as a concubine and giving the other to Hassan. [Fath Al-Qadir, Fath Al-Mu’in, Sharh Al-Kanz by Al-Ayni, Nayl Al-Awtar, and Radd Al-Muhtar, excerpted from them]

(2) The statement: Between a brother and his brother: This explicitly indicates that separation is not restricted to lineage but includes every relative with a prohibited degree of kinship, as is our view. [Al-Marqah]

(3) The statement: The entire household: This is the second object, with the first omitted, meaning he gave one of us the household from the captives together and did not separate them. [Al-Luma’at]

(1) The statement: Has absolved himself of the covenant: This refers to the covenant of Islam and its pledge, which is a stern warning, as is his statement: "He has disbelieved." It is said this applies if he flees to the land of war or joins them or deems fleeing permissible. [Summarized from Al-Luma’at]

(2) The statement: The Messenger of Allah (ﷺ) passed by a camel whose back had reached its belly, etc.: The master must provide maintenance for his slave and slave woman. If he refrains, and they have earnings, they earn and spend. If they have no earnings, such as a disabled slave or a slave woman not typically hired, the master is compelled to sell them, as they are entitled to maintenance. Selling fulfills their right and preserves the master’s right through compensation, unlike a wife’s maintenance. The difference between a wife’s maintenance and a slave’s is that if the master refrains from providing maintenance and they have no earnings, he is compelled to sell the slave. If a husband is unable to provide maintenance for his wife, he is not compelled to divorce, as compelling the sale transfers the master’s ownership to compensation, the price, while not doing so forfeits the slave’s right to maintenance without compensation, as a slave’s maintenance never becomes a debt on the master. In marriage, compelling separation forfeits the husband’s ownership without compensation, while not doing so forfeits the wife’s right temporarily, as her maintenance becomes a debt on the husband by the judge’s ruling, making it a delay. A slave’s maintenance does not become a debt, so it is a forfeiture. Unlike other animals, as they are not entitled to maintenance, so he is not compelled to provide for them, but he is commanded to do so in his relationship with Allah, as he forbade torturing animals, and this involves it, and it involves wasting wealth, and this involves it. In summary: A person is not compelled to spend on his property except for slaves. For animals, the fatwa is to spend on them in his relationship with Allah. For non-animals, like houses, real estate, and crops, there is no fatwa to spend, but if it involves wasting wealth, refraining from spending is disliked. The author of Al-Hidayah mentioned that he forbade torturing animals, as in Abu Dawud’s narration: "Do not torture Allah’s creation," and forbade wasting wealth, as in the Sahihayn that he forbade wasting wealth and excessive asking. Abu Yusuf said he is compelled to provide maintenance for animals, which is Ash-Shafi’i’s view, and they analogized to slaves. The most correct view is what we said, non-compulsion, as compelling the master to provide for his property is a form of judicial ruling requiring an entitled recipient, which exists in slaves, as they are entitled to rights against the master and others generally. A slave with kitaba has rights against the master, even though enslaved. Non-slaves have no rights against the master, so they cannot be the subject of a ruling, making the condition for a ruling absent, thus the ruling is absent. This Hadith does not indicate compulsion, and previous evidence negates it according to our madhhab. [Fath Al-Qadir, Al-Inayah, and Al-Marqah, excerpted from them] It is stated in Ad-Durr Al-Mukhtar and Radd Al-Muhtar: He is commanded, either to sell or provide maintenance for his animals, religiously, not judicially, according to the apparent madhhab, due to the prohibition of torturing animals and wasting wealth. In the second view, he is compelled, preferred by At-Tahawi and Al-Kamal, who said: The truth is with the majority, as endorsed in Al-Bahr, An-Nahr, and Al-Minh. The three Imams said so, and he is not compelled for non-animals, like houses, real estate, and crops, though wasting wealth is disliked unless he has a partner, in which case he is compelled if division is not possible, like a riverbank, canal repair, well, waterwheel, defective ship, or wall, unless it can be divided from its foundation, and each builds a barrier on his share.

(1) The statement: Refraining from his wealth is preferable: Meaning abstaining from his wealth, even by borrowing, if not needed, is better than otherwise. If needed, it is permissible. [At-Ta’liq Al-Mumajjad] It is stated in Al-Hidayah: This is because confinement is a cause of maintenance, as with a trustee. Elsewhere, it is said: Maintenance is compensation for confinement, and whoever is confined for another’s intended right, their maintenance is upon him, the basis being the judge and the charity worker in charities.