1143 - Issue: He said: (If he marries off his slave girl and stipulates upon him that she should be with them during the day and that he sends her to him at night, then both the contract and the condition are valid, and the husband is responsible for the maintenance for the duration of her stay with him.)

As for the condition, it is valid because it does not conflict with the purpose of marriage, for intimacy only occurs at night. When the condition is valid, it does not prevent the validity of the contract, so both are valid. The husband is responsible for maintenance during the night because she has submitted herself to him during that time, and he is not responsible for daytime maintenance because that is in exchange for intimacy, and he cannot avail himself of intimacy in that state. Since daytime maintenance is not incumbent upon the husband, it is incumbent upon the master because she is in his service at that time, and because she remains subject to the original rule of being the master's responsibility. Thus, her maintenance is divided equally between them, and the same applies to clothing. Some of the followers of al-Shafi'i said: The husband is not responsible for any maintenance because it is not mandatory except upon complete availability, which was not found; therefore, nothing of it is mandatory, like a free woman if she offers availability at some times but not others. Our position is that maintenance is a compensation in exchange for benefit, so it is mandatory in proportion to what he receives, like wages in a lease. It differs from a free woman, for submission is mandatory upon her at all times; so if she withholds herself in some instances, she has not delivered what was mandatory for her to deliver. Here, however, the master has delivered everything that was mandatory for him to deliver.

Section: If he marries her off without a condition, the Qadi said: The ruling regarding it is the same as if there were a condition; he has the right to use her for labor during the day, and it is incumbent upon him to send her at night for intimacy, for that is his time. This is because the master possesses two benefits from his slave girl: the benefit of labor and the benefit of intimacy. If he enters into a contract for one of them, he is not obligated to deliver her except during the time of their fulfillment, just as if he had hired her for labor, he would not be obligated to deliver her except during her time, which is the day, and the maintenance is shared between them according to the duration of her stay with each of them. If the master volunteers to send her both day and night, the entire maintenance is upon the husband. If the husband volunteers to leave her with the master both day and night, her maintenance does not drop from his obligation. If both of them volunteer to leave her with the other and they push her back and forth, her entire maintenance is upon the husband, because the marriage contract implies the obligation of maintenance as long as he is not prevented from intimacy by aggression, a condition, or similar reasons. For this reason, her maintenance remains mandatory even with the impossibility of intimacy due to illness, menstruation, or similar conditions. Therefore, if there is no obstruction from the master here, maintenance is mandatory upon the husband due to the existence of the marriage, which necessitates it, and the absence of any obstruction to it.

Section: If the husband wishes to travel with her, he does not have the right to do so because it causes the loss of her labor which is due to her master. If the master wishes to travel with her, Ahmad has refrained from giving a definitive answer and said: I do not know. Thus, it is possible that it is forbidden, because it causes the loss of the husband's right to her, so he is prevented from it by way of analogy to what would happen if he were prevented from it while resident. Also, because he only owns one of the two benefits, he does not have the right to prevent the other from traveling with her, like the master, and as if he had leased her out and then wished to travel with her. It is also possible that he has the right to travel with her because he owns her person, like the master of a male slave when he marries him off. If the husband stipulates that the slave girl be delivered to him night and day, it is permissible, and he is responsible for her entire maintenance, and the master does not have the right to travel with her because he has no right to her benefit.

Section: It is recommended for one who intends to marry to choose a woman of religious character, due to the saying of the Prophet - peace and blessings of Allah be upon him -: "A woman is married for four things: her wealth, her lineage, her beauty, and her religion; so secure the one who is religious, may your hands be dusted [with success]." Muttafaq 'alayh. And he should choose a virgin, due to the saying of the Messenger of Allah - peace and blessings of Allah be upon him -: "Have you married, O..."