at a certain
Ipecified rate,
to be varied
according to
any change in
his circum-
Hances.
Arrears of
maintenance
not due, un-
lefs the maintenance
have
been decreed
by the Kaz.ee,
or the rate of
it previoufly
determined
on between
the parties.
poflible injury; wherefore they are not to be feparated, but. the wife
fhall be directed to take' up the articles neceffary for her fubfiftence
upon his credit, as, was already Hated:— but the wife is. in this: cafe
reftrided in her expences to a rate which muft be determined by the
Kdzee.— The Kdzee cannot a d as the fubftitute of the hufband in ef-
feding a ieparation here, as in cafes of emafculation or impotence, be-
caufe property in marriage is only a dependant, or fecondary confidera-
tion, the primary objed being procreation, and that which is a dependant
merely cannot be put in competition with the original intent,
upon which principle it is that the. Kdzee is. empowered to effed a fe-
paration in either of the other two inftances, as there the original intent
is defeated; but it is not fo in the prefent cafe.. T h e advantage
of the Kdzee defiring the woman to procure a maintenance upon her
hufband’s credit, and of his fixing the rate thereof, is that fhe is
thereby enabled to make her hufband refponfible for the amount; for
if fhe contrad any debt without this.authority, the creditor’s claim
lies againft her, and not againft her hujband.
If the hufband were in indigent circumftances at the time o f the
Kdzee authorizing the wife as aforefaid, and he have confequently
determined her maintenance at the rate of poverty, and the hufband
afterwards become rich, and fhe fue for a proportionable addition
to her maintenance, a decree mull be given in her favour* as the rate
of the maintenance differs according to the poverty or opulence of the
hufband.
If a length of time fhould elapfe during which the wife has not
received any maintenance from her hufband, fhe is not entitled to demand
any for that time, except when the Kdzee had before determined
and decreed it to her, or where fhe had entered into a compofition
with the hufband refpeding it, in either of which cafes fhe is to be
decreed her maintenance for the time part, becaufe maintenance is an
obligation
obligation hi the manner of a gratuity * , as by a gratuity is underflood
a thing due without a return, and maintenance is of this de‘-
fcription, it not being held (according to our dodors) to be as a return
for the matrimonial propriety; and the obligation of it is not
valid but through a decree, of the Kdzee, like a gift, which does not
convey a right to pofleffion but through feizin, which eftablifhes póf-
feffion: but a compofition is of equal effed with a decree of the Kdzee,
in th e ’prefent cafe, as the hufband, by fuch compofition, makes
himfelf refponfible, and his power over his own perfon is fuperior to
that of the magiftrate.— This reaforiing does not apply to the cafe
of dower, as that is confidered to be a return for the ufe of the wife’s
perfon.
If the Kdzee decree a wife her maintenance, and a length of time
elapfe without her receiving any, and the hufband fhould die, her
maintenance drops ; and the rule is the fame i f jh e fhould die; becaufe
maintenance-,, is a gratuity, refpeding which the rule is that it drops
in confequence of death, like a gift, which is annulled by the deceafe
of either the donor or donee before feizin being made by the latter._
Shafe'i fays that the maintenance is in all circumftances to be confidered
as a debt upon the hufband, in conformity with his tenet, that it is
not a gratuity but a return, wherefore it cannot drop like demands of
the former defcription.— This was before replied to.
If a man give his wife one year’s maintenance in advance, and
then die before the expiration of the year, no claim lies againft the
woman for reftitution o f any part of it.— This is the dodrine o i Naneef
a and Aboo Toofaf.-— Mohammed fays that fire is entitled only to the
proportion due for the term paft, from the beginning of the year till
the hufband’ s deceafe, the remainder being the right of his heirs ; if
* Arab. S illit. By this is to be here underftood a prefent or gratuity promifed but
not yet paid,
therefore*
Arrears of a
decreed
maintenance
drop in cafe
of the death
of either
party.
Advances of
maintenance
cannot be reclaimed.