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Unformatted text preview: the Hanafis have held the second. The majority of jurists, including Abu Hanifas disciple, Abu Yusuf, have held that the consent of the State is not necessary for anyone to commence reclaiming barren land. But it appears that jurists and scholars of the later ages prefer the Hanafi view which stipulates that reclaiming barren land requires the consent of the State. The Hanafi view is based on the rationale of preventing disputes among people. The Malikis on the other hand only require government consent when the land is close to a human settlement, and the Hanbalis only when it has previously been alienated by another person. [47. Abu Dawud, footnote 2534 at p. 873; Al-Marghinani, Hedaya (Hamilton's trans.)' p. 610.] Disagreement has also arisen with regard to the Hadith that adjudicated the case of Hind, the wife of Abu Sufyan. This woman complained to the Prophet that her husband was a tight-fisted man and that despite his affluence, he refused to give adequate maintenance to her and her child. The Prophet Principles of Islamic Jurisprudence ~ Kamali 57 instructed her to 'take [of her husband's property] what is sufficient for yourself and your child according to custom. [48. Tabrizi, Mishkat, II, 1000, Hadith no. 3342.] The ulema have disagreed as to whether the Prophet uttered this Hadith so as to enact a general rule of law, or whether he was acting in the capacity of a judge. If it be admitted that the Hadith consists of a judgment addressing a particular case, then it would only authorize the judge to issue a corresponding order. Thus it would be unlawful for a creditor to take his entitlement from the property of his debtor without a judicial order. If it be established, on the other hand, that the Hadith lays down a general rule of law, then no adjudication would be required to entitle the wife or the creditor to the property of the defaulting debtor. For the Hadith itself would provide the necessary authority. If any official permission is to be required then it would have to be in the nature of a declaration or clearance only. p. 515.] The Hanafis, Shafis and Hanbalis have held that when a man who is able to support his wife willfully refuses to do so, it is for the wife to take action and for the qadi to grant a judgment in her favor. If the husband still refuses to fulfill his duty, the qadi may order the sale of his property from whose proceeds the wife may obtain her maintenance. The court may even imprison a persistently neglectful husband. The wife is, however, not entitled to a divorce, the reason being that when the Prophet instructed Hind to take her maintenance from her husband's property, she was not granted the right to ask for a divorce. The Malikis are basically in agreement with the majority view, with the only difference that in the event of the husband's persistent refusal, the Malikis entitle the wife to ask for a divorce. Notwithstanding some disagreement as to whether the court should determine the quantity of maintenance on the basis of the financial status of the husband, the wife,...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.
- Spring '13