An Attitude Towards the Status of the Guarantee of the Wife’s Maintenance (Nafaqah)

The authenticity of the guarantee as an accessory contract depends on the existence of debt. Therefore, a non-existent debt can not be guaranteed. There is a controversy in marriage about whether the source of wife’s maintenance (nafaqah) is obedience (tamkin), marriage, or headship of husband. This disparity shows itself, in particular, in the discussion of the validity of the guarantee of the future cost of maintenance of the wife. The famous jurisprudents accept that there is a consideration or quasi-consideration relationship between maintenance and the obedience (put maintenance as a consideration of obedience) and maintain that obligation ofmaintenance depends onobedience. On this basis, the guarantee of the maintenance of the wife has been declared void. In contrast, unpopular opinion maintains that the absolute cause of maintenance is a marriage contract and regards the guarantee of maintenancevalid. The present research, using analytical-descriptive method, aims at elaborating the nature of maintenance and describing the cost of maintenance in terms of a right or a prescription. Meanwhile it aims at estimating the capability of guaranteeing the future cost of maintenance of the wife as well as its effects. Briefly, it can be said that maintenance is essentially a right and it originates from marriage contract and headship of husband. Whenever the marriage contract is written and the rights and duties of the couple are established, the husband is obliged to pay the cost of maintenance. Therefore, maintenance of the wife can be guaranteed.