17 There is complete consensus that whether the woman has been divorced revocably or irrevocably, her husband is responsible for her lodging and maintenance till child-birth if she is pregnant. However, a difference of opinion has arisen in case the husband of the pregnant woman may have died, irrespective of whether he may have died alter pronouncing the divorce, or May not have pronounced any divorce and the woman may have been widowed during pregnancy this regard, the jurists have expressed the following views:
(1) Hadrat 'Ali and Hadrat 'Abdullah bin Mas'ud hold that she has an obligatory , right to maintenance in the husband's un-divided legacy. The same also has been cited as the view of Hadrat 'Abdullah bin 'Umar, Qadi Shuraih, Abul 'Aliyah, Sha'bi and Ibrahim Nakha'i, and a saying of Hadrat 'Abdullah bin 'Abbas also supports the same. (Alusi, AI-Jassas) .
(2) Ibn Jarir has cited another view of Hadrat 'Abdullah bin 'Abbas to the effect: "If the deceased person has left some inheritance, expenditure should be made on her from the share of the child of her womb; and if he has left no inheritance, the heirs of the deceased should spend on her, for AIIah says: 'And the same responsibility for the maintenance of the mother devolves upon the heir'." (AI-Baqarah: 233) .
(3) Hadrat Jabir bin 'Abdullah, Hadrat 'Abdullah bin Zubair, Hadrat Hasan Basri, Hadrat Sa'id bin al-Musayyab and Hadrat 'Ata' bin Abi Abi Rabah say that there is no maintenance for her in the inheritance of the deceased husband. A third saying from Hadrat 'Abdullah bin 'Abbas also has been cited to be the same. (AI-Jassas) This means that she can meet her expenses from the share of inheritance that she may receive from the husband's legacy, but she has no right of inheritance on the husband's combined legacy, which may burden the other heirs.
(4) Ibn Abi Laila says: "Her maintenance in the deceased husband's legacy is as obligatory as is somebody's debt obligatory In his legacy. " (AI-Jassas ) . That ii, just as a debt has to be paid out of a combined legacy, so also should her maintenance be paid out of it.
(5) Imam Abu Hanifah, Imam Abu Yusuf, Imam Muhammad and Imam Zufar say: "She has neither any right to lodging in the deceased husband's legacy nor to maintenance, for nothing belongs to the deceased after death: whatever remains after him belongs to the heirs. The widowed pregnant woman, therefore, cannot have any maintenance in their property." (Hedayah; AI-Jassas) . The same is the viewpoint of Imam Ahmad bin Hanbal (A/-Insaf
(6) Imam Shafe`i says: "There is no maintenance for her; but she has a right to lodging (Mughni al-Muhtaj) " His reasoning is based on the incident concerning Furai'ah bint-Malik, sister of Hadrat Abu Sa`id Khudri: when hor husband was put to death, the Holy Prophet (upon whom be Allah's peace) commanded her to pass her waiting-period in the house of her husband. (Abu Da'ud, Nasa'i, Timtidhi) . Furthermore, they deduce their view from the tradition of Daraqutni: "Thc Holy Prophet said: there is no maintenance for the widowed pregnant woman." The same is the view of Imam Malik also. (Hashiyah ad-Dusuqi)
18 This Divine Command teaches several important things: (1) That the woman is the owner of her milk; otherwise, obviously she could not be authorised to receive wages for it, (2) that as soon as she becomes tree from the marriage bond with her previous husband at child-birth, she is not legally bound to nurse her child; but if the father desires that she nurse it, and she also is willing for it, she would suckle it and would be entitled to receive the wages; (3) that the father also is not legally bound to have the child suckled only by its mother; (4) that the maintenance of the child is the responsibility of the father; (5) that the mother is best entitled to suckle the child, and the other woman can be employed for suckling only in case the mother herself is not willing for it, or demands too high a wage for the father to pay. The sixth rule that automatically follows is that if the other woman also demands the same wages as the mother, then the mother's right is superior.
The following are the opinions of the jurists in this regard:
Dahhak says: "Thc child's mother is best entitled to suckle it, but she has the option .to suckle it or not, However, if the child dces not take to the new nurse-maid, the mother will be compelled to suckle it." A similar opinion is held by QAtAdah, Ibrahim Nakha`i and Sufyan Thauri. ibrahim Nakha`i adds: "In case another woman is not available for nursing the child, the mother will be compelled to nurse it. (Ibn Jarir) . According to Hedayah: "If at the separation of the parents the child has not yet been weaned, it is not obligatory that the mother alone should suckle it. However, if another woman is not available, the mother would be compelled to suckle the child. And if the father says: I shall employ another woman to suckle the child on wages instead of having it suckled by the mother on wages, and if the mother demands the same wages as the other woman, or is Willing to perform the service gratis, the mother's right will be regarded as superior. And if the child's mother demands higher Wages, the father will not be compelled to accede to her demand. "
19 This contains a severe rebuke both for the father and tot the mother. The style clearly shows that if the two do not settle the question of the child's suckling amicably, overlooking the previous bitterness that led to divorce, it is not approved by AIlah, The woman has been warned to the effect: "If you demand too high a wage only in order to embarrass the man, the fosterage of the child is not dependent on you alone: some other woman will muse it. " And the man also has lien warned as if to say: 'It would be unfair tt you pressed the mother unjustly only because she was the mother. In this connection. please also see AI-Baqarah: 233 for details.