Marital companionship and the rights of spouses (ishra)

العِشْرة

In the lexicon, ishra is companionship and mingling; ashir is a near kinsman or friend, and a wife's ashir is her husband. As a term it is the affection and union between spouses ¹. The Hanafis and Hanbalis hold that spouses' good companionship is recommended, while the Malikis hold it obligatory in conscience but not enforceable in court ². Good companionship means fulfilling each one's rights in full with good conduct ² ³. The husband's rights include the wife's surrender of herself for intercourse, her obedience in what is not sinful, the enjoyment of her, her cleanliness and grooming, her not admitting unwanted guests or leaving the house without his leave; the majority hold that service is not obligatory on her, while the Hanafis hold it obligatory in conscience ⁴ ⁵ ⁶ ⁷ ⁸. The wife's rights include the dower, maintenance, the husband's intercourse with her, and night-sharing or equal division where he has more than one wife, on which the jurists differ in detail ⁸ ⁹ ¹⁰ ¹¹. Companionship, enjoyment and inheritance are shared rights ¹¹ ¹².

Summary

In the lexicon, ishra is companionship and mingling; a wife's ashir is her husband. As a term it is the affection and union between spouses ¹.

The ruling on good companionship

The Hanafis and Hanbalis hold that good companionship between spouses is recommended; the Malikis hold it obligatory in conscience but not enforceable in court ². It means fulfilling each one's rights in full with good conduct ² ³.

The husband's rights

These include the wife's surrender of herself for intercourse, her obedience in what is not sinful, her not preventing what hinders his enjoyment of her, her not admitting unwanted guests or leaving the house without his leave ⁴ ⁶ ⁸. The majority hold that service is not obligatory on her; the Hanafis hold it obligatory in conscience ⁸ ⁹.

The wife's rights

These include the dower, maintenance, the husband's intercourse with her, and on the majority view his not withdrawing from her without her consent; and, where he has more than one wife, night-sharing or equal division ⁹ ¹⁰ ¹¹.

Shared rights

Good companionship, enjoyment and inheritance ¹¹ ¹².

Where to look further

The dower is treated under «mahr», maintenance under «nafaqa», and division among wives under «qasm» ¹¹.

Sources

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11626

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11627

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11628

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11629

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11630

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11631

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11632

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11633

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11634

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11635

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11636

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11637

Obstructing a marriage (adl): the guardian and the husband

In the lexicon, adl means to prevent, and the jurists use it of a guardian who prevents his ward's marriage, and in the case of divorce for ransom of a husband who harms his wife so that she will pay him back. In principle it is forbidden for a guardian to prevent a ward's marriage to a suitable husband, and for a husband to harm his wife to force her to ransom herself; a guardian may be permitted to refuse for the woman's own benefit. A guardian is an obstructer when a woman asks for a suitable husband, or a suitable man proposes, and he refuses without a valid reason, whether or not she asks for her proper dower; the Hanafis do not count refusing a dower below the usual amount as obstruction, and the Malikis do not count a compelling father's rejection of suitors as obstruction unless harm is intended. Once obstruction is proven before the judge, he orders the marriage; if the guardian still refuses, guardianship passes to the ruler according to the Hanafis, Shafi'is, most Malikis and one Hanbali narration, or to the next guardian according to the main Hanbali view; if all guardians obstruct, the judge contracts the marriage.