A husband neglected the maintenance of his wife for years. When the husband passes away, can the arrear maintenance be considered as something the husband owed to the wife (debt)? Is it permissible for the wife to claim her maintenance rights from the inheritance her husband left before it is divided through afraid?
Waalaikumussalam wrt, wbt.,
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
As the mukadimah, we will present the evidence that sanctions the obligation of a husband to provide maintenance for his wife and children. In a hadith from Jabir RA, the Messenger PBUH said:
ابْدَأْ بِنَفْسِكَ فَتَصَدَّقْ عَلَيْهَا ، فَإِنْ فَضَلَ شَيْءٌ فَلِأَهْلِكَ ، فَإِنْ فَضَلَ عَنْ أَهْلِكَ شَيْءٌ فَلِذِي قَرَابَتِكَ ، فَإِنْ فَضَلَ عَنْ ذِي قَرَابَتِكَ شَيْءٌ فَهَكَذَا وَهَكَذَا
“Start with your own self and spend it on yourself, and if anything is left, it should be spent on your family, and if anything is left (after meeting the needs of the family) it should be spent on relatives, and if anything is left from the family, it should be spent like this, like this.”
Sahih al-Bukhari (6763) and Sahih Muslim (997)
Imam al-Syaukani said: Maintenance for one’s family is wajib even if the leader of the family became poor. The scholars have agreed that maintenance for one’s wife and children is wajib. (See Nail al-Autar, 6/381)
Further reading on the matters of maintenance, please refer to our previous article:
- al-Kafi #1428: Between the Maintenance of One’s Wife and Mother: Which One Should Be Prioritized?
- al-Kafi #1082: Settling One’s Debt or Provide Sustenance?
- al-Kafi #162: Does Not Provide Sustenance for One’s Working Wife
- al-Kafi #1366: Is It Wajib for A Husband to Provide Sustenance for His Wife Who Refused His Conjugal Rights?
- al-Kafi #1290: Husband Who Lets His Wife Provide for the Family
- al-Kafi #1229: How to Follow the Messenger ﷺ Example in Providing for His Wife?
The madhhab’s jurists discussed on arrear maintenance. The majority of jurists are of the opinion that the arrear obligation of maintenance for one’s children is abrogated if the father has fulfilled the needs of his child after the time for it passes. This is different from the maintenance of his wife where it is considered as a debt of the husband towards his wife even after the time has passed according to the majority of scholars with the exception of the Hanafi scholars. (See al-Fiqh al-Islami wa Adillatuhu, 7 /816, 829)
Furthermore, Act 303 Islamic Family Law (Federal Territory) Act 1984. Part Vi - Maintenance of Wife, Children and Others. Section 69 appropriate Recovery of arrears of maintenance:
(1) Arrears of unsecured maintenance shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his bankruptcy and, where they accrued due before his death, shall be a debt due from his estate.
[Am. Act A902: s.21]
According to the act, arrears of unsecured maintenance throughout the duration of marriage will be considered as debt on the husband. Debt should be settled even after the death of the debtor. Thus, the debt is included under the matter which is wajib to be settled before the division of the inheritance through faraid. This is clear in the statement of the Prophet PBUH:
أَنَا أَوْلَى بِالْمُؤْمِنِينَ مِنْ أَنْفُسِهِمْ، فَمَنْ تُوُفِّيَ وَعَلَيْهِ دَيْنٌ فَعَلَيَّ قَضَاؤُهُ، وَمَنْ تَرَكَ مَالًا فَهُوَ لِوَرَثَتِهِ
"I am closer to the believers than their own selves. Whoever dies and leaves behind a debt, I will pay it, and whoever leavers behind wealth, it is for his heirs."
Sahih al-Bukhari (2298) and Sahih Muslim (1619)
According to the above hadith, when a person dies, then the inheritance he left should be divided to his heirs through faraid after the obligations on the inheritance are fulfilled which includes the costs for the management of the body of the deceased (including the funeral), settlement of his debts and will.
For further information related to the division of inheritance, please refer to our previous articles:
al-Kafi #1224: Issues Regarding the Division of Property and Cash
al-Kafi #1463: Is it Permissible to Divide the Inheritance of a Deceased Without Following the Faraid?
al-Kafi #1472: The Ruling of Using the Inheritance to Cover the Costs for the Management and Division of Inheritance
To conclude, in our opinion arrear in maintenance for a wife that was unfulfilled is considered as debt on her husband according to the majority of scholars. Thus, it is wajib to be settled using the inheritance left by her husband before it is divided through faraid. Thus, the case of arrears in maintenance or matrimonial assets can be claimed in the Shariah Court. Hopefully, this explanation will give an understanding to our society. Amin.