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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 11 · Page 296Section

Translation · EN

thereby, and this shall take precedence over the inheritance because it is an obligation upon the deceased, thus resembling a debt. If there is a debt upon the deceased that consumes his entire estate, she shall claim the rental cost of the residence [along with the creditors] (64), because her right is equal to the rights of the creditors, and she shall rent a place to reside in with her share. The same ruling applies to a divorced woman if the husband was declared insolvent before he divorced her, and then he divorced her; she shall claim the rental cost of the residence for the duration of the 'iddah (waiting period) alongside the creditors if she is pregnant. If it is said: Why do you not prioritize the right of the creditors, since it is earlier? We say: Because her right was established upon him without her choosing, so she shares with the creditors in it, just as if the insolvent person destroyed someone's property or committed a crime against him. If he died while she was in his residence, it is not permissible to remove her from it, because her right attached to the residence itself before the creditors' rights attached to it, so her right is prioritized like the right of a pledgee. If the creditors demand the sale of this residence and that the right of residence be forfeited for her during the 'iddah period, it is not permissible; because she is only entitled to residence if she is pregnant, and the duration of pregnancy is unknown, so it becomes as if he sold it while excluding its usufruct for an unknown duration. If the heirs wish to divide her residence in a manner that harms her regarding her residence, they may not do so. If they wish to mark it with lines, without demolition or construction, it is permissible, because there is no harm to her in that.

Section: If we say that she claims [a share] along with the creditors for the duration of her 'iddah, then she claims based on the duration of her customary period for delivery of the fetus, if she is pregnant. If she is a divorcee among those who have menstrual cycles, and we say she has the right of residence, she claims based on the duration of her customary period of cycles. If she has no customary period, she claims based on the common practice of women, which is nine months for pregnancy, and three months—one month for each cycle—or for whatever (65) remains of that if any of her pregnancy duration has already passed; because it is not possible to delay the distribution [of the estate] for the sake of the creditors' rights. Once she claims based on that, and it coincides with the truth, and it does not (66) exceed or fall short,

Notes

(64) Omitted from: The original, A, and B. (65) In B: "wa-bima" (and with what). (66) In M: "fa-lam" (so it did not).

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