Chapter Four
Ancestry, Pregnancy and Custody
(A) Ancestry
1419. It is known that the blood ties of the child to his mother are not concealed after he or she has been born to her, while doubt may arise – in some cases – over the blood ties of the child to his or her father, therefore to confirm the relationship of the child to his or her father, the following points must be met:
1- Confirmation that the semen of this man did enter the vagina of the woman, by any means.
2- That a period of time elapses between the entry of the semen and giving birth of not less than six months and not more than one year.
If these points are established, the child is ruled to be the man’s child and is to be biologically linked to him regardless to whether the relationship of the father with his or her mother is legitimate or adulterous.
1420. If a man commits adultery with a woman then he marries her after that, if the pregnancy by him appears after the contract with her and it is not known that the baby is from the forbidden or the allowed sexual intercourse, it is ruled that he or she is from the allowed intercourse and is regarded as a legitimate child. But if it is known that the child is the result of the adultery, the child will be regarded as a son of adultery (ibn zinā) even if the adulterer married his mother after she became pregnant with him or her.
1421. The stigma of adultery does not continue in the sons and grandsons, so someone whose father is the son of adultery, and who has been born to a legitimate marriage, is not considered to be the son of adultery; the same goes for his sons and grandsons.
1422. The principle standpoint in connecting the child to his father is the fact that he was created from his sperm, just as the principle standpoint in connecting the child to his mother is that fact that he was created from her egg; so if the woman placed in her womb another woman’s egg, the mother is the owner of that egg not the woman that went through pregnancy to bear it.
1423. Blood relationships can be established through what is called ‘artificial insemination’ - in which the sperm and the egg are joined outside the womb (in-vitro) - between the child and the owners of the egg and the sperm, even if they had not entered into a marriage contract.
1424. There are two dependable ways to confirm the ancestry of a child – in general – which are:
1- An acceptance or admission by someone who is qualified; it will be accepted – provided that his truthfulness is probable – in all matters in which the consequences of loss and payment are involved; but the confirmation of ancestry by acceptance has different rulings depending on two situations:
a- If a man accepts that a young child is his son and that the son's fate is in his hands, and if his truthfulness is probable in this acceptance, when judged by normal standards and according to the Sharī‘ah, and there is no other person claiming fatherhood, paternity is confirmed by the father's acceptance and all the consequences come in force, although precaution should be observed in this regarding all of the consequences of ancestry.
b- If a man accepts that an adult is his son or his father or brother or other similar relationship, the blood tie is not confirmed except with the acceptance of the other party in the claim, in which case it is established with all its consequences. That said, there is a problem (not a clear-cut ruling) regarding inheritance between them when there exists another heir for one or both of them if the latter did not confirm; the same applies to inheritance with others of the rest of relatives when they do not confirm the blood ties.
2- Giving witness, by two witnesses, based on which the consequences of the witnessed blood ties in terms of inheritance etc come in force; this is not affected by the denial of some parties, unless they provide conclusive proof or decisive evidence to the contrary.
1425. The husband has no right to deny paternity of a child in the following cases:
1- If their birth by him has been absolutely confirmed, particularly if by resorting to decisive modern methods, such as medical tests, whether the child from his permanent or term wife.
2- If the child was born within permanent marital life; this brings to bear, the condition, as has been mentioned, of his semen entering her vagina and the elapse of the appropriate period of time.
3- If he had accepted their blood tie to him previously, although it is more appropriate to observe the precaution in the various angles of this situation regarding marriage, divorce, inheritance etc.
4- If the father is not a husband to the mother or the mother is observing the period of irrevocable divorce marriage-abstention from him and other men have had sexual intercourse with her in addition to him, as adultery or in a state of legal uncertainty, and the child can possibly have been conceived from any one of them, then the child was made his child through a lottery (between them).
1426. If the child is by his permanent wife who is still his wife, but it is not known that all the conditions of the child’s blood ties to him exist, nor has he accepted the presence of all the conditions or the heredity of the child, he is allowed to deny the child through li‘ān (cursing) – in fact it might become obligatory on him to do so, when the wife is accused of adultery, because he knows that the heredity conditions are not met. Then, if he denies his paternity in relation to the child but his wife contradicts his claim and confirms his paternity, he must carry out li‘ān in front of the Islamic authority, using a specific form that will be mentioned in the divorce section; and if they do that, his blood tie to the child is ruled out and his wife becomes permanently forbidden to him.
(B) Pregnancy and giving birth
1427. Giving birth is not obligatory for a woman; however since it is regarded as an implicit condition in the marriage contract, the woman must meet her obligation in this, but according to her wishes regarding the timing and number, not her husband’s wishes. However, if he had made a certain number of children conditional in the marriage contract, she must abide by the condition.
1428. It is not allowed for both spouses to do anything that leads to permanent infertility, even if after giving birth; other contraceptive methods are allowed provided that they do not cause the abortion of an embryo after the formation of the notfah ('a drop of fluid', i.e. up to 40 days (see below) into the pregnancy) and its implantation in the womb.
1429. If the embryo’s notfah is formed and becomes stable in the womb, it is not allowed to abort it from the womb except in two circumstances:
1- If the continuation of the pregnancy will lead to the death of the mother or to an intense harm such as paralysis, insanity, blindness and the like, in which case it is allowed to abort it – in fact it might be obligatory – so that the mother can protect herself. Included in such cases is if the woman fears being killed because of some entrenched customs of her society and if preventing the killing depends on abortion.
2- If keeping the embryo is intensely difficult for the woman and the difficulty is so intense that it will disturb her life and threaten its stability to a great extent, such as if the pregnancy is shameful to her; however allowing its abortion – here – is limited to the situation in which the spirit has not yet entered in it, but if it has entered it, it is not allowed to abort it unless the matter presents the dangers cited in the previous case.
Abortion of the embryo is not allowed in the case of an intense difficulty for the man because of the pregnancy, such as if his wife is a term wife and it would be intensely difficult for him to withstand the situation of her pregnancy in front of his family or wife.
1430. In every situation in which the person is allowed to abort the embryo, the doctor is allowed to carry out the abortion as long as he is certain of the person’s justification for it, however this does not relieve him of the obligation to pay compensation (diyah), unless he makes it conditional that the person requesting the abortion meets its cost on his behalf, as will be explained.
1431. If a person causes abortion, such as if the mother does it to herself or someone else does to her something that leads to abortion (either directly such as by beating her on her abdomen, or putting a medicine in her mouth or other ways that lead to abortion, or indirectly by doing something that causes abortion and which is regarded as similar to direct action, such as digging a ditch for her to fall into it, or encouraging her to drink a medicine that leads to abortion without her knowing its effect, or similar ways in which the person causing the abortion is stronger than the person having it), if a person causes an abortion in this manner, he or she must pay compensation for the embryo as we will explain, whether the abortion is the result of intention and awareness or unintentional and through lack of awareness, and whether the person is one of the two parents (father or mother) or someone else, and whether it is the doctor who the two parents asked to do this or someone else, and whether the mother has justification toabort the baby or not. However, if the mother has a justification and the doctor makes it conditional on her to pay the compensation for him, in this case it would not be due from him, as mentioned previously.
1432. If the pregnancy was ‘notfah’ ('a drop of fluid') and was aborted, the compensation payable would be twenty gold dinars; if it was ‘‘alaqah’ ('a clinging form', i.e. it clings to the womb), the compensation would be forty dinars; if it was ‘moheh’ ('a lump of flesh'), the compensation would be sixty dinars; if it had formed bones, the compensation would be eighty dinars; if it had flesh (i.e. muscle tissue), the compensation would be one hundred dinars; if the spirit had entered it, the compensation would be one thousand dinars for a male and five hundred dinars for a female.
The period in which it becomes notfah is forty days from the day it was conceived, then ‘alaqah another forty days, then modghah another forty days.
The shar’i dinar equals one half Rashādī Ottoman gold lire, so the person paying compensation must check its value according to his or her country’s currency if paying it in that country.
1433. The compensation is to be paid to the embryo’s progenitors, who are its two parents, in the first line (of inheritance), if they are alive and available to give them compensation; but if the person responsible for the abortion is one of them, and has acted without justification and deliberately, the other will take all the compensation; if the mother was the person responsible for the abortion and the father is dead, the rest of its relatives will inherit it according to the levels of inheritance.
In all cases, it is allowed for the person to whom the compensation is to be paid to give it up, in which case it is cancelled and not due from the person responsible; if the person responsible has no justification, they have sinned and must repent and ask Allah forgiveness in the hope that Allah will forgive them and accept their repentance.
(C) Breastfeeding
Here follows an explanation of the rulings for breastfeeding from the angle of showing the reason for establishing a relationship in a certain manner between a number of individuals, also from the angle of its relationship to the areas of pregnancy and giving birth.
1434. The kinship through breastfeeding has no consequence except the prohibition of marriage and what is related to it, which is: the prohibition of marriage for certain individuals amongst the breastfeeding relatives, with all the consequences such as allowing them to look at each other except the private parts, and allowing them to touch each other. The rest of consequences, however, which are inheritance, guardianship, custody, maintenance, good treatment of the parents, good treatment of the kinship and the rest, all of these are limited to biological kinship, not kinship through breastfeeding.
1435. The following are conditional in the breastfeeding that results in prohibition (of marriage):
First: The milk must have been formed by the breastfeeding woman after giving birth, not before, and her pregnancy must be the result of a legitimate marriage, including sexual intercourse of questionable legitimacy. So, if the woman became pregnant from an illegitimate relationship, gave birth, and her milk formed and she breastfed her child, prohibition would not be enforced – as an obligatory precaution – even if the rest of conditions exist; equally, if the woman was pregnant and her milk formed during that pregnancy, even shortly before giving birth, this would not call for prohibition, not to mention if the milk formed without pregnancy.
Regarding giving birth, no distinction is made between one in which the mother gives birth to a complete baby and one which she has a miscarriage, if it is commonly regarded as a baby. Also, no significance is given to the formation of milk immediately after giving birth, so if a short while elapses when the mother produces no milk, then it starts coming again, so that this newly formed milk is related to that birth of hers, in this case prohibition is established, in contrast to the case where the newly formed milk is not related to that birth, in which there would be no prohibition.
Also prohibition is imposed because of her birth if her husband divorces her or dies, then she marries another and the second husband had sexual intercourse with her and she became pregnant or not pregnant; in this case if she breastfed a baby her milk from her birth from her first husband and the milk had been still forming without stopping, this breastfeeding would result in prohibition between this mother and this baby and her first husband.
Second: The breastfeeding woman is the same woman for the whole amount or the period in which the prohibition is established; so if a man has two breastfeeding wives and one baby is breastfed by one of them seven times and by the other eight times, for example, then although the baby had completed fifteen feeds from the milk of one man, this would not establish prohibition because the milk was from two women, not one.
Third: The milk is related wholly to one man, then if this man divorces his wife after giving birth to a child by him then she marries another and becomes pregnant by him and gives birth, then if she breastfeeds another baby from her first husband seven times, for example, then she breastfeeds him eight times after giving birth to the baby by her second husband, such breastfeeding would not establish prohibition.
Fourth: The breastfeeding takes place before the baby is more than two years old, so if he is breastfed or completes breastfeeding after the two years, prohibition would not be established; regarding the breastfeeding woman, however, establishing prohibition through her breastfeeding would not be affected by the elapse of more than two years on giving birth to a baby that results in the formation of the milk.
What is meant by two years is the elapse of twenty four lunar months starting from the birth, so if the baby is born in the middle of the month, the number of days equal to the number of days elapsed from the start of the month of his birth and the two years completed must be counted in the twenty-fifth month.
Fifth: The breastfeeding must last until the time when flesh firms up and bones strengthen, something which is established, in its duration or amount, by fifteen consecutive breastfeeding feeds during each of the minimum spells of the breastfeeding of one full day (day and night), provided that no breastfeeding of another woman takes place in between nor any nutrition by food or drink other than milk. However, if the baby’s breastfeeding from her was for a period that is not short - a month or more or less - in this case, establishing prohibition due to breastfeeding would not be affected by breastfeeding – every now and then – from another woman or nutrition by food and drink other than milk, as long as flesh has firmed up and bones have strengthened as a result of breastfeeding from the milk of that woman. The criterion regarding flesh formation and bone strengthening is the extent that is commonly appreciable which conforms to the precise scientific measurements. Also, the criterion of a one breastfeeding time, when it is used as a measure, is that if the baby is hungry and is breastfed, he or she will be satisfied and will leave the breast on his or her own.
1436. It is not conditional for establishing prohibition through breastfeeding that it takes place by the baby sucking it from the breast, so if the milk is made to flow into the baby’s mouth or if the baby drinks it from a bottle or cup, prohibition would be established.
Also, it is not conditional that the mother is aware when breastfeeding the baby, so establishing prohibition would not be affected if she was asleep, unconscious or insane when the baby is breastfeeding; in fact, it would not be affected if she was dead and the baby completed the number by one breastfeeding from her after her death, just as it establishes prohibition as if she is alive.
1437. If the breastfeeding that meets all conditions takes place, the father becomes the milk owner and the breastfeeding woman becomes a mother to the breastfed baby, their fathers and mothers grandfathers and grandmothers to the him or her, their children brothers and sisters to him or her, their children’s children nephews and nieces to him or her, their brothers and sisters uncles and aunts to him or her, also their uncles (father’s and mother’s sides) and aunts (father’s and mother’s sides), and the breastfed baby becomes a son or daughter to them, and his or her children grandchildren to them.
We have mentioned in some entries about the description of the spouses details of those males and females who become forbidden through breastfeeding when we talked about who is forbidden to marry through kinship (see no. 1337 and after.)
1438. The breastfeeding prohibition is confirmed in two ways:
First: Knowledge or satisfaction that it took place, through the information given by one person or more.
Second: Testimony given by two just witnesses that it took place in which a detailed account is given in which the reason of prohibition is to be given, whether it is due to the period, or number (amount) or development of flesh – so a general account is not sufficient, such as saying that the prohibition breastfeeding took place, or that so and so is the son of so and so through breastfeeding.
There is an ishkāl (not a clear-cut ruling) in confirming it through the witness of one man and two women, or the witness of four women.
1439. It is better to prevent women from carrying out too many breastfeedings of children to avoid mishaps due to their forgetfulness and marriages taking place between unmarriageable relatives without awareness.
1440. It is not obligatory on the mother to breastfeed her baby –either free of charge or upon payment – if preserving the baby did not depend on her breastfeeding; it is also not obligatory on her to breastfeed the baby free of charge even if preserving it depends on it, but she has the right to claim a fee for breastfeeding her baby in its first two years especially, not longer than that, in which case she is paid out of the baby’s money if he has money, otherwise out of his father’s money if he is capable, or out of the money of his grandfather, on the father’s side’s, when the father is not capable or dead; when all this is not available, the mother is then obliged to breastfeed the baby for free, either herself or by hiring a breastfeeding woman to that, paying with her own money as an obligatory precaution.
That said, the mother has more right to breastfeed her baby if she wants to do it, and the father has no right to appoint another woman unless if she asks for a fee while the other woman accepts to breastfeed at a lower fee or for free; in this case the father has the right to hire the other, and if the mother objects to the breastfeeding of the other woman and she carries out the breastfeeding of her baby herself, no fee will be due to her.
1441. A baby should be breastfed its mother’s milk, as it is narrated in the hadith: ‘No milk a child breastfeeds on is more blessed than his mother’s milk.’ That said, if there is something that makes another woman better, then there is no problem in choosing her instead. And when it is decided that a woman other than the mother is to breastfeed the baby, one should choose a sane Muslim who has good characteristics, in both physical form and character.
(D) Custody
1442. When the father and mother live together in one house, it is natural that the child lives with them and under their care, but when they separate through divorce or revocation of the marriage, and when the custody conditions (which will be explained below) are met, the child that has reached seven Hijri years stays with its mother and under her custody until it reaches seven, and the mother takes care of the child's usual affairs (its feeding, clothing, sleeping, protection of health, prevention from harm and so on) provided that no dispute with the father, nor anyone else – arises in these matters, whether the child is male or female, and as long as the mother does not marry. When the period elapses, or if the mother gets married during it, the custody goes to the father, in which case he is allowed to separate the child from his mother or leave it with her; this is if the parents separate through divorce or revocation during the first seven years of the child’s life.
However, if the separation takes place because of the death of the husband during this period – or after it and after the transfer of the custody to the father – the mother will then have more right of custody over the child than all of her husband’s relatives until the child becomes rāshid, whether the mother gets married after this or remains unmarried. Also, the father has more right of custody over all the mother’s relatives – not to mention any person appointed in her will– if the mother dies during the period of her right of custody. But if the mother dies after the father’s death and after she has had independent custody of the child, in this case the custody goes to the child’s grandfather, on the father’s side, but if he is not available, the custody goes to the person appointed in his father’s will- or to his father’s grandfather. If the two people appointed by the wills- are available and they reach an agreement satisfactory to both, then no problem arises; but if they dispute, the matter has to be resolved through a lottery. And if both people appointed by the wills are not available, custody goes to the rest of the father’s relatives according to their place in the line of inheritance, resorting to a lottery between them if more than one has legitimate claim and dispute the child’s custody.
1443. Conditions relating to who gets custody amongst the two parents and others are:
First: Sanity, so custody is not given to the insane during the period of his insanity.
Second: Trustworthiness regarding the fulfilment of the duties of custody in a way that secures safety for the child in its self, body and religion.
Third: The custodian must be Muslim if the child is Muslim; so if one, not both, of the parents is Muslim, the child is given to a Muslim and the custody is given to the Muslim, and not to a non-Muslim in any case; the same ruling applies regarding the child who is ruled as Muslim when custody is given to one of its relatives when both parents are not available.
Fourth: During the period of her custody, the mother must be, living independently following her divorce with the ex-husband –, and not married; so if she gets married, she loses her right to the child’s custody.
Hence, if the mother lacks any of the above conditions during the period of her right of custody, she loses her right to it and the custody transfers to whoever comes after her, according to their place in the list. Also, if the father or the grandfather, on the father’s side, lacks any of these conditions, they lose their right of custody and is transferred to the next in line, but without cancelling their guardianship of the child if they were the child’s guardians and if their qualification as guardians remained valid. For example, if the custody of the grandfather, on the father’s side, is cancelled because he cannot be trusted with the child due to his old age and inability to meet the obligations of his duties towards the child’s, in this case, as long as he is still qualified as a guardian by his sanity and Islam, he continues to be the child's guardian despite not being his custodian.
1444. The right of custody is one of the rights that are open to cancellation, so it is acceptable for anyone who has that right to surrender it to the next person that comes after him in the list of the child’s relatives, instead of a non-relative, provided that this person meets the conditions, whether giving up the child is with or without exchange; so if the other person accepts, the right is confirmed to them in place of the person who gave up the right, and the latter cannot retract from it; even if they want to retract from it, the right of custody will not be returned to them. But if the second person to whom they gave up the right did not meet the requirements, or if someone else was more appropriate, giving the right up to the second person is not valid and the right is not cancelled.
1445. The right of custody implies that the child lives with the person who has custody over it, so if the mother is the custodian, she is allowed to take the child to live with her where she lives, and the child’s guardian has no right to force her to live in a particular place. But if a woman custodian has no home after her divorce or her husband’s death, she has no right to ask the guardian to arrange for a home for her to carry out her custodianship of her child, whether using the guardian’s assets or the child’s; it is sufficient for the mother’s home to be suitable for her, even if someone donates it or if she moves in with her new husband if she gets remarried after the death of her first husband, or the like. But if she does not have a home or she did find one but it is not suitable for her or her child, so that she is no longer regarded as trustworthy regarding the care of her child, she loses her right of custody until she finds a suitable home.
And just as it is inappropriate for the guardian to interfere in the housing of the child, nor in any other of the custody affairs that are part of the duties and responsibilities of the custodian mentioned above, in every situation where the custodian is not the guardian, it is also inappropriate for the custodian to carry out any of the guardian’s duties, such as the protection and investment of the child’s assets, providing guidance and discipline, and other matters that come under the guardian’s authority. In any case, the guardian should agree with the person who has custody – who is often the mother – on how to deal with the child’s affairs and they should coordinate the duties between them in the way that preserves the right of each of them and best serves the interests of the child.
1446. The custody comes to an end when the child becomes rāshid (having reasonable conduct and behaviour), when it becomes rāshid no one has a right of custody of it, even the two parents, not to mention the others. Rather, the child now has rights over itself, and can choose to join either of the parents, or someone other than them, whether the child is male or female. That said, if the child's separation from them will lead to living in a way that is contradictory to the requirements of happiness and normal living, so the parents worry about their child and they order him or her to live with them out of fear for his or her safety, the child must obey them in this, for the sake of good conduct towards them (birr) and to avoid hurting them.
(E) Maintenance from relatives
1447. It is obligatory for the male child to provide maintenance for his parents, and it is obligatory for the father to maintenance for his male and female children; this structure of maintenance duties towards relatives is definitively confirmed upon the conditions that we shall mention; however, maintenance is also conferred on relatives other than these as follows:
First: Just as it is obligatory for the male child to provide maintenance of for parents, it is also obligatory for the female child to provide maintenance for her parents.
Second: Just as it is obligatory for the immediate child – male or female – to provide maintenance for his/her parents, it is also obligatory for the grandchildren to provide maintenance for the grandfathers and grandmothers, and so on up the line of ancestry chain, - on the father’s side or mother’s side. This applies when the immediate father is not available or when he is unable to meet the expenses.
Third: Just as it is obligatory for the father to provide maintenance for his male and female children, it is also obligatory for the grandfather, on the father’s side, and so on up the line of ancestry, to provide maintenance for his grandchildren, male and female, when the immediate father is not available or when he is unable to meet the expenses. Then, if the grandfathers, on the father’s side are not available or unable, it becomes obligatory for the mother, then for her father, then for her mother, then for her father’s father, then for her mother’s father, and so on to the nearest then the next one in the list, including if the origins are present with the branches . So if one of the origins such as his grandfather, on his mother’s side, is present along with one of the branches such as his son’s son, in this case his grandson is nearer to him than his grandfather and more appropriate for paying the maintenance.
However, the duty of paying maintenance is not conferred on relatives other than the fathers and sons, such as the brothers, sisters, uncles (on the father’s and the mother’s sides) and aunts (father’s and mother’s sides), or others amongst their sons and daughters, although meeting their expenses from one’s assets is a good thing that also promotes maintaining a good relationship with them and kindness towards them.
1448. If there is more than one person who has the duty of maintenance, such as if the person worthy of maintenance has a father and a son, or many sons, it becomes obligatory on each one of them to provide his maintenance; but if one of them meets the expenses and secures the whole of his needs, the obligation on the others is cancelled, as long as the maintenance is provided, but if the recipient secures only some of it, in this case all of them, including the one who is already providing some, must make up the deficiency.
1449. Poverty is a condition regarding the obligation on relatives to provide maintenance, meaning that if they actually do not have what they need themselves for living – food, clothes, bed, shelter, housing and so on - it is not obligatory to provide for anyone who actually has his or her means of maintenance, although they might be regarded as poor as far as the Sharī‘ah is concerned (i.e: he or she does not have enough to cover a full year’s maintenance).
The obligation on a person to provide maintenance for their relative who is finding his or her own maintenance applies if the latter is managing that by begging or asking people or taking it from the khoms, zekāt, alms and the like, or through borrowing but with intense difficulty and hardship or when it is quite probable that they are not going to pay off the debt later, or if they can only obtain it (their maintenance) by earning it through work that is not appropriate for their status and situation. However, if they can avoid any of the above-mentioned ways, especially things like begging and asking people, or manage to get maintenance from religion-based money revenues (hoqūq shar’iyyah) or through borrowing without hardship, and it is possible that they will be able to pay off their debt, ending up actually getting enough to meet their expenses (maintenance), in this case the obligation of providing maintenance for their relatives is cancelled. The obligation of maintenance is also cancelled if they are able to earn it through ways that are appropriate to their status and situation, such as strong people who can carry weights but abstain from that, or someone who could earn through some crafts and works but he abstains from that out of laziness. That said, maintenance of them is obligatory in the case when they abstain from earning because of engagement with things that cannot be performed if one is earning, such as fighting, religious preaching and the like.
1450. It is not conditional that the relative being maintained is a Muslim, or just, or suffering from a defect such as blindness, disabling paralysis and the like. However, it is conditional in relatives other than the two parents that they are not a kāfir harbi, i.e.: a non-Muslim who is in a state of war with the Muslims in the manner explained in the section on defence (Section 7).
1451. It is conditional in the person who is providing the maintenance that he is able to maintain his relatives, after providing the maintenance of himself and his permanent wife in the manner appropriate to his needs and his status, including what he needs to spend for his own marriage, even if this is not necessary, or for offering hospitality to his guests and meeting the needs of those who turn to him for their needs, and similar things that are regarded as part of his maintenance. Then what is left is to be used for his obligation to maintain those unable to do so amongst his relatives to the amount that is possible (from what is left). If that meets the expenses of all that he is obliged to provide as maintenance, then the matter is fulfilled, but if what is left can only maintain some of them, in this case he has to give priority to those nearest to him and so on; hence his son, for example, is given priority over the grandson; but if they are level in their degree of kinship, he must distribute the maintenance equally between them if what he has is divisible and remains useable after division, otherwise he may choose to whom he wants to pay it.
It is not conditional for the conferment of responsibility for maintenance that the person providing the maintenance has reached the Islamic legal age or is sane; so if a young person or an insane person has assets that are more than that needed for their own maintenance and that of their wife, the guardian must use it to provide maintenance for whomsoever that young or insane person is obliged to provide maintenance.
1452. The obligatory maintenance of relatives is limited to the relative himself or herself, so it does not cover the maintenance of those that they maintain among the members of their families, such as their wife and children, unless this is obligatory on the maintaining relative through another route. Hence, it is obligatory on the father, for example, to pay maintenance for his son, not the latter’s wife, but he is obliged – also – to maintain the children of this son on the basis of what was explained earlier, that maintaining his grandchildren is obligatory for him, independent of his maintaining their father or otherwise. Also, the son is obliged to maintain his father, not the latter’s sons since they are his brothers, and so on.
1453. There is no particular estimate of the level of maintenance for the relative that one is obliged to provided, as it is sufficient to pay whatever is enough to sustain their life in terms of food, clothes, housing and other matters in the manner that is appropriate to their situation and status, such as their servant, vehicle, treatment costs, travel costs and the kind of things that were mentioned regarding the wife's maintenance (no. 1411). However, paying their debts is not regarded as part of the obligatory maintenance, nor paying any fidyah (worship compensation), kaffārah (atonement) or diyah (killing compensation) or the like, nor the costs of their marriage such as the dowry etc., although this is better, especially in the case of the father when he is in need of marriage but is unable to meet its expenses.
Addendum on term marriage
This marriage is called ‘term’ because in the contract it defines a fixed period at the end of which the marriage ends without divorce. This marriage is not different in its essence, nor in a lot of its rulings, to permanent marriage, however, there are a number of rulings that distinguish it from permanent marriage:
1454. Two conditions must be present in term marriage:
1- Stating the dowry, so if the couple established the contract without stating this – out of ignorance or forgetfulness, not to mention intentionally – the contract is invalid.
2- Stating the term, so if they establish the contract without stating it – out of ignorance or forgetfulness, not to mention intentionally – the contract is valid, but it is established as permanent.
On the basis of this, the best form of the mot‘ah (i.e. term) marriage contract is one in which the woman says: ‘Zewwajtoka nefsi bi-mahrin qadrohū kathā li-moddet kethā’ (I am marrying off myself to you at a so and so dowry for a so and so period), the man says: ‘Qabilt’ (I accept), using correct classical Arabic, with the proposal (ijāb) coming from the woman and the acceptance (qobūl) coming from the man, and the proposal coming before the acceptance; however, it is allowed to carry it out differently to this, as mentioned under permanent marriage (no. 1373).
1455. There is no particular limit to the time period of the term, so it it is valid to make it for one hour just as it is valid to make it for fifty years. That said, it is not valid to make it for a period that is longer than the possible age of man according to normal experience, so if he makes it that long, it is established as permanent not term.
The term must be specified in a way that does not accept curtailment or extension, and the contract is invalidated if the termination is given as an unspecified time, such as a day of the week or the like.
1456. The right of pleasure (istimtā‘) is confirmed for each of the two spouses, as is the case in permanent marriage; however (in contrast to permanent marriage) the husband has no right to force the term wife to stay with him and to abstain from leaving their meeting place without his permission for as long as he does not need her for his pleasure. Also, ‘azl (ejaculation outside the vagina) is allowed with the term wife even if she does not accept it. In addition, the term wife has no right of maintenance, nor is there any inheritance between them.
It is allowed for each of them to impose any reasonable conditions they want in the contract, such as living together, maintenance or others except inheritance, and if they make inheritance conditional, the condition is invalid while the contract stays valid.
1457. Forced separation in term marriage takes place when the term specified in the contract ends, and they have to establish a new contract if they want to return to each other. Voluntary separation can only take place if the husband gives up the period left of the term to his wife and relieves her from her obligation; this is a right for the husband only, unless if she makes it conditional to be a proxy for him in giving up the period to herself. Once he has given up what is left of the term, he cannot retract from that.
Any divorce (in this marriage) has no effect and is regarded as meaningless speech and the bond of the term marriage is not broken by it.
1458. If he gives her up in the period before having sexual intercourse with her, half of the agreed on dowry is due to her, but if he gives her up in the period after sexual intercourse, the whole of the dowry will be due to her.
1459. If the term ends, or the husband relieves himself of it, then if he has not had sexual intercourse with her, no marriage-abstention period needs to be observed by her; but if he has had sexual intercourse with her and she has not reached menopause, then she has to observe a marriage-abstention period lasting two menstrual periods as an obligatory precaution to check that she is not pregnant, otherwise her marriage-abstention period ends by giving birth. That said, if she is someone who does not have menses because of an illness or due to a defect, her marriage-abstention period is then forty-five days.
1460. If the man renews his term contract with the woman – with whom he has had sexual intercourse– during her marriage-abstention period (‘iddah) following her first contract with him, then gives her up in the period before renewed sexual intercourse, the woman is not regarded a non-‘iddah woman because he did not have sexual intercourse with her in the second contract, but she keeps observing the first ruling of observing the marriage-abstention period following the first contract; so she is not allowed to marry another man until she completes her first contract’s marriage-abstention period.
1461. If the husband of a term wife dies, her marriage-abstention period is four months and ten days if she is not pregnant, and the furthest of the two time periods of that period (4 months and 10 days) or giving birth if she is pregnant – which means that if one of the two things took place before the other, she must wait for the second to take place.