Is the initial division of time (Qasm al-Ibtida') obligatory upon the husband?
General Chapter
Al-Mughni
Book of the Wedding Feast
Primary text
The initial division is obligatory, meaning that if a man has one wife, he is obliged to spend one night with her out of every four nights, unless there is a valid excuse. If he has multiple wives, each is entitled to one night out of every four. This is the position of al-Thawri and Abu Thawr. Evidence for this right is derived from the Prophet's instruction to 'Abdullah ibn 'Amr ibn al-'As that his body has a right over him, and his wife has a right over him. Furthermore, the established ruling of Ka'b ibn Sur, affirmed by 'Umar ibn al-Khattab, assigned one day and one night to the wife when her husband engaged heavily in voluntary worship, implying the wife's right to time. This established right is also supported by the fact that impotence or deliberate avoidance (Ila') allows for the dissolution of the marriage contract.
Supporting text
Al-Qadi, in 'al-Mujarrad,' states that the initial division is not obligatory unless the husband deliberately refrains from intercourse. Al-Shafi'i holds that the initial division is never obligatory because division follows the right, it is not the source of the right. The preferred view is that the wife's right is one night out of every eight, not every four, to maintain proportionality with a concubine's right, which should be half that of a free woman.