Abd al-Rahman al-Muallimi al-Yamani
al-Faskh bil-Isar - ضمن "Athar al-Muallimi
- Author died
- 1386 AH
- Editions
- Dar Alam al-Fawa'id lil-Nashr wa-al-Tawzi'
Al-Faskh bi-l-Iʿsār (Dissolution of Marriage due to Insolvency) is a short legal treatise by the Yemeni scholar Abd al-Rahman al-Muallimi al-Yamani (1311–1386 AH / 1894–1966 CE) exploring the legal rationale for dissolving a marriage contract when a husband is financially incapable of providing maintenance .
Manuscript and Publication
The work is preserved in a single small-format manuscript leaf within a compendium (majmūʿ) at the Library of the Holy Mosque in Mecca under accession number 4707 . It was published as the thirty-second treatise within the legal treatises section (al-Rasāʾil al-Fiqhiyya) of the author's collected works, Āthār al-Muʿallimī .
Juridical Content and Arguments
Al-Muʿallimī bases his treatise on the premise that dissolution of marriage due to insolvency (al-faskh bi-l-iʿsār) is established in the Shafiʿi school of jurisprudence . In examining the underlying legal cause (ʿilla), he argues that marriage constitutes a commutative contract with reciprocal consideration (ʿaqd bi-muqābal) analogous to sale (bayʿ), wherein permission of usufruct and conjugal intimacy is exchanged for the dower (ṣadāq) and living maintenance (infāq) .
In response to the potential objection that maintenance remains mandatory even when intimacy does not take place—such as with an impotent or absent husband—al-Muʿallimī explains that the usufruct is consumed under the husband's custody and remains under his liability (ḍamān), because the wife has made herself available and is precluded from disposing of herself elsewhere .
Al-Muʿallimī draws a legal analogy to the ruling in sales where a seller is entitled to rescind a transaction if the buyer is insolvent or if the payment is inaccessible at a distance permitting the shortening of prayer (masāfat qaṣr), citing the agreed-upon prophetic tradition: إذا أفلس الرجل ووجد البائع سلعته بعينها، فهو أحق بها من الغرماء ("If a man goes bankrupt and the seller finds his identical merchandise, he is more entitled to it than other creditors") . He posits that marriage warrants dissolution on even stronger grounds (awlā), given that financial deprivation causes harm (ḍarar) that renews and compounds on a daily basis .
He identifies the fundamental cause of dissolution as the impossibility of delivering the reciprocal obligation (taʿadhdhur taslīm al-ʿiwaḍ) . Consequently, he extends the right of annulment to parallel circumstances where the same cause is present:
- When a husband has disappeared without a trace (ghayba munqaṭiʿa) .
- When a husband willfully refuses to pay maintenance and cannot be brought under judicial control .
Al-Muʿallimī observes that due to the heightened sanctity and gravity of the marriage bond compared to commercial sales, dissolution is not permitted for minor delays or trivial harm . He concludes that a wife's independent financial wealth or the existence of a third party who provides for her does not invalidate her entitlement to seek dissolution, drawing parity with a seller's or lessor's financial standing in commercial contracts .
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