And if he is insolvent regarding what exceeds the maintenance of the indigent, she has no option, because that excess falls away due to his insolvency, it is possible to be patient regarding it, and the body can subsist without it. If he is insolvent regarding the maintenance of a servant, no option is established for her, for the reason we have mentioned, and likewise if he is insolvent regarding condiments. If he is insolvent regarding clothing, she has the right to annulment, because clothing is necessary, one cannot be patient without it, and the body cannot subsist without it. If he is insolvent regarding the cost of a dwelling, there are two views; one of them is that she has the option, because it is something necessary, so it is like maintenance and clothing. The second is that she has no option, because the physical structure can subsist without it. This is the view that the Qadi mentioned. If he is insolvent regarding past maintenance, she does not have the right to annulment, because it is a debt, and the body can subsist without it, so it resembles other debts.
The second situation is that he refrains from providing maintenance while being solvent. If she is able to access his wealth, she may take from it the amount of her need, and she has no option of annulment, because the Prophet (peace and blessings of Allah be upon him) commanded Hind to take [from it], and did not grant her the annulment. If she is unable, she may refer him to the ruler, who will command him to provide maintenance and compel him to do so. If he refuses, he shall imprison him. If he remains patient in prison, the ruler shall take the maintenance from his wealth. If he finds nothing but goods or real estate, he shall sell them for that purpose. This is the opinion of Malik, al-Shafi'i, Abu Yusuf, Muhammad, and Abu Thawr. Abu Hanifa said: The maintenance is [taken] from his wealth [consisting] of dinars and dirhams, and he shall not sell goods except with [his] consent, because the sale of a person's property is not valid except with his permission or the permission of his guardian, and there is no guardianship over a person of sound judgment. Our argument is the statement of the Prophet (peace and blessings of Allah be upon him) to Hind: "Take what suffices you," and he did not differentiate. Furthermore, this is his wealth, so maintenance is taken from it, like dirhams and dinars, and the ruler has authority over him when he refuses, evidenced by his authority over his dirhams and dinars. If maintenance is difficult to obtain in
(12) In [B] and [M]: "maskan" (dwelling). (13) Omitted from [B]. (14) In [M]: "dhakara" (mentioned). (15) In [A]: "bidunihi" (without it). (16) In [A] and [M]: "qala" (he said). [This is an] error. (17) In the original: "ba'ahu" (he sold it). (18) In [A]: "wa-idhn" (and permission).
