400 d i v o r c e : B o o k IV.
therefore, the difference remain with her in fubftance, Ihe muff reftorc
it; or, if it do not remain, Ihe is refponfible for the value, (and this
alio is the doftrine of Shafei, and the fame difference of opinion obtains.
in relpeft to clotheg.und apparel,) becaufe the wife in this cafe
has. received in advance the return for the matrimonial confinement,
to which the has a claim, in virtue of liich confinement, but her
claim is annulled by the hulband’s deceafe, fiuce the no longer remains
confined, and confequently the return is annulled in proportion
to the annulment of her claim, in the tame manner as the tlipend of a
Kazce.— The argument of the two Elders Sis .that the maintenance is a
gratuity, of which the claimant has already taken pofleffion; and re-
ftitution o f a gratuity cannot be demanded after death, the virtue of it
being completed by that event, as in a cafe of g ift; whence it is that if
the maintenace were to perijh in the woman’s pofleffion, without her
confuming it, no part of it can be demanded of her, according to all the
dofbors, whereas, i f it were a return, it might be demanded in a pfe
of dejlrublion, as well as rin one of confumpiion, nor would there be
any difference between the two.— It is recorded from Mohammed that
i f the proportion advanced do not exceed that of one month, no refti-
A Have may tution is required, as this proportion is lnconfidera'ble, and ftands as an
be fold for the ,T1 - r r jj§
maintenance cillOWcinCC IOf pfClCllt lllc.
of his wife,
if the latter
he free. j p a {]ave marry a free woman, her maintenance is .a debt upon
him, for the difeharge of which he may be fold; but this is only provided
the marriage was with his owner’ s confent, as her maintenance
being due from the Have, the obligation to it muft ultimately affeft
his owner; the debt is therefore charged to the Have, in the fame
manner as .one contracted in trade by a Mazoon, or privileged Have;
but his owner is at liberty to redeem him by difeharging the debt,
becaufe the woman’ s right extends to her maintenance only, not to
the Have’ s perfon: and i f the Have die, her right to any arrear of
maintenance drops, (and fo alfo. where he is killed,') fince it is a gratuity,
as was already flated.
I f
D I V O R C E . 401 C h a p . XV.
If a man marry the female Have of another, and her owner give
her permiffion to refide in her hulband’ s houfe, her maintenance is incumbent
upon the hulband, becaufe Ihe is then within his cuftody:
but i f flie have not permiffion to refide with her hulband, he is not
refponfible for her maintenance, as in this cafe her cuftody is not
eftablilhed.— The term here applied to the permiffion granted by the
mafter \taboweeat\ means not only liberty to refide in the hulband’s
habitation, but alfo an exemption from all fervice; wherefore, i f any
fervice be afterwards required o f her, the maintenance from the huf-
band drops, as cuftody, which is the ground o f her right to maintenance
from him, neceflarily ceafes on fuch an ocCafion.— It is lawful
for the mafter to require the fervice of his female Have, although he
have granted her leave to refide with her hulband, becaufe fuch leave
is not binding upon him, as is demonftrated in its proper place.— But
it is to be obferved that if the female Have voluntarily perform her matter's
fervice, without his calling upon her, her right to maintenance
from her hulband does not drop. Thefe rules apply equally to Am-
Walids as to abfolute Haves.
S E C T . II.
I t is incumbent upon a hulband to provide a feparate apartment
for his wife’s habitation, to be folely and exclufively. appropriated to
her ufe, fo as that none of the hulband’ s family, or others, may enter
without her permiffion and defire, becaufe this is eflentially neceflary
to her, and is therefore her due the fame as maintenance, and the
word of G o d appoints her a dwellinghoufe as well as a fubfiftence:
and as it is incumbent upon a hulband to provide a habitation for his
wife, fo he is not at liberty to admit any perfon to a lhare in it, as this
would be injurious to her, by endangering her property, and obftruft-
Von. I, F f f ino-
A hulband
mud maintain
his wife,
being a Have,
where Ihe re-
lides with
him: .
and the fame
o iiA m -W a lid s .
A wife muft
be accommodated
with
a feparate
apartment,