Does a wife have the right to seek dissolution (Faskh) if she initially consents to remain with an indigent husband who neglects maintenance, or if she married a known indigent man agreeing to the neglect of maintenance?
General Chapter
Al-Mughni
Book of Maintenance (Nafaqāt)
Primary text
The wife possesses the right to seek dissolution (Faskh) if she initially consented to stay with her indigent husband despite his inability or failure to provide maintenance, or if she married an indigent man aware of his condition and satisfied with the lack of maintenance, or if a condition was stipulated that he would not maintain her, and subsequently she desires dissolution. This is the position held by Al-Shafi'i. The basis for this ruling is that the obligation of maintenance is renewed daily, thereby renewing her right to dissolution. It is invalid to waive a right that has not yet become fully due, similar to waiving the right of pre-emption before the sale occurs. Consequently, if she waives future maintenance payments, they are not waived, and similarly, waiving the dower before marriage does not waive it. Since the obligation of maintenance is not waived, the right of dissolution established by it is not waived.
Supporting text
The apparent view of Ahmad, attributed to Al-Qadi, states that she does not have the right to dissolution, and her option becomes void in both scenarios. This is also the position of Malik. The reasoning is that she consented to his defect (incapacity for maintenance) and entered the contract knowingly, thus forfeiting the right to dissolution, analogous to a woman who knowingly marries a man incapable of consummation (ayn) and consents to that condition.