(unlefs fhe be
accompanied
by the hufband.).
It continues
during her
ß chiefs»
A huïband
mult maintain
his wife’s
fervants.
but he allows her only a Nifka-M izr, or fupport as lii a fettled place;
and not a Nifka-Sifr, or fupport as upon a journey; as the former only
is incumbent upon the hufband, not the latter. But if the hufband
accompany his wife upon her pilgrimage, her maintenance is then incumbent
upon him according to all our doctors, becaufe in this cafe
fhe continues in his cuftody; but file is entitled to a N fka -H izr only,
not to a Nifka-Sifr, as he is hot the occafion of her travelling* whence
it is that he is not obliged to furnifh her With a conveyance.
If a woman fall fick in her hufband’ s houfe, fhe is' {till entitled to
a maintenance. This is upon a principle of benevolence, as analogy
would fuggeift that fhe is not entitled to maintenance, where fhe falls
fick fo far as to be incapable of admitting her hufband to the conjugal
embrace, fince in this cafe fhe cannot be deemed in cufodyfor the pur-
p ofeof enjoyment: but the reafon for a more favourable conftruclion
of the law in this cafe is, that fhe ftill remains in cuftody,-as her
hufband may affociate and indulge in dalliance with her, and fhe may
continue to fupe'rintehd his domeftic concerns, and the obftacle to
carnal enjoyment is (like the menftrual difcharge) an accidental occurrence.—
It is recorded from Aboo Yoofaf that if a woman deliver
herfelf into the cuftody of her hufband, and then fall fick, fhe is ftill
entitled to maintenance; but if fhe fall fick firft, and then deliver herfelf
to him, fhe has ho claim to maintenance until her recovery, as
the furrender of her perfon is not in this cafe complete: and the learned
in the law admit this to-be a proper diftinction.
T he maintenance of the wife’s fervants is incumbent upon her
hufband, as well as that of the wife herfelf, provided he be in opulent
circumftances, becaufe he is obliged to. provide his wife’s maintenance,
“ _/ofa r as may fu jfe e ,” (as aforefaid,) and it is not fufficient,
unlefs her fervants alfo be fupported,. they being eflential to her eafe
and comfort: but it is not abfolutely incumbent upon him to provide
a maintenance for more than one fervant, according to Haneefa and
Mohammed.
Mohammed. Aboo Toofaf fays he maft provide maintenance for two
fervants, a's one is required for fervice within the houfe, and the other
out of doors.— T h e arguments of Haneefà and Mohammed on this point
are twofold;— f ir s t , one fervant may anfwer both purpofes, whence
two are unneceflary ; se c o n d l y , i f the hufband were himfelf to undertake
all the fervices required by the wife, it would fuffice, and a
fervant would be unneceflary ; and, in the fame manner, it fufflces if
he conflitute any Angle fervant his fubftitute therein;- wherefore a
fécond fervant is not requifite. : T h e learned in the law fay that the
rate of maintenance due from an opulent hufband to his wife’s fervants
is the fame as that due from a poor hufband to his wife,— namely,
the loweft that can be admitted as fufficient.— Haneefa fays that a
hufband who is poor is not required to find maintenance for his wife’s
fervants ; and this is an approved dodtrine, as it is to be fuppofed that
the wife o f a poor man will ferve herfelf. Mohammed holds that it is du e
froth a poor hufband, in the fame manner aé from one more opulent.
I f a hufband become poor, to fuch a degree as to be unable to
provide his wife her maintenance, ftill they are not to be feparated on
this account, but the Kâzée fhafl diredt the woman to procure, necef-
fariés'for herfelf upon her hufband’ s prédit, fixe amount remaining a
debt upon him.— Shafei fays that they muil be feparated, becaufe
whenever the hufband becomes- incapable of providing his wife"’s maintenance,
he cannot ** retain hér with humanity,” (as is required in the
façred writings,) and fuch being the cafe, it behoves him to divorce
her ; and if hè decline fo to do, the Kdzee is then to efFedt the feparation
as his fubftitute, inthe fame manner as1 in cafes o f emafculation or impotence
: nay, the neceffity for this is more urgent in the. prefent in-
ftance than in either of thofe cafes, as the maintenance is indifpenfable.
To this our dodtors reply that if a feparation take place the right of
the hufband is deftroyed in toto, which is a grievous injury to him ;
whereas, if the wife be defired to procure maintenance for herfelf
upon his credit, his right is by this means preferved with the fmalleft
I f the hufband
be poor,
themagillrate
muft empower
the
wife to raife
fubliftence
upon his
credit,