(Al-Mahr)
Dowry is one of the rights of the wife established
in the Qur'án and the Sunnah, and on which there is consensus (ijmá`)
among Muslims. There are two kinds
of dowery: The Stated Dowery
(al-Mahr al-musammá) and the Fair dowery (al-Mahr al-mithl).
The Stated Dowry
The Stated Dowry is one agreed upon by the couple and specified by them
in the contract. This dowry does not have any upper limit, by consensus of all
jurists of the schools, in accordance with the following verse of the Qur'án:
And if you wish to take a wife in place of another and have given one of
them a heap of
gold, then take not from it a thing [4: 20]
Jurists however differ regarding the lower limit.
The Sháfi`ite, the Hanbalite and the Imámite schools say: Everything which is valid as price in a contract of sale is
valid as dowry in a marriage contract, even if it is a single morsel.
The minimum dowry according to the \anafís is ten Dirhams, and a
contract concluded for a lesser amount is valid and the minimum
--i.e. ten Dirhams shall be payable.
The Málikites say: The minimum is three Dirhams.
Therefore, if something less is specified and later the marriage is
consummated, the husband will pay her three dirhams; if it has not been
consummated, he has a choice between giving her three dirhams or dissolving the
contract by paying her half the Stated Dowry.
Provisions ofof dowry
It is possible that dowry be specified in terms of currency, jewelry,
land, cattle, profit, trade commodities and other things of value.
It is necessary that the value of the dowry be known, either exactly
(e.g. a thousand lira) or approximately (e.g. a particular piece of gold or a
particular heep of wheat). If the
dowry is totally vague, so that its value is unascertainable in any manner,
according to all the schools except the Maliki, the contract is valid and the
dowry is void. The Málikís say:
The contract is invalid and shall be rescinded before consummation, but
if consummation has occurred it shall be validated with fair dowry being due.
As one of the conditions is
the status of dowry itself; being lawful and having pecuniary value in terms of
a commodity whose transaction is considered legal by Islamic law. Consequently, if it is mentioned in terms of liquor, swine or
carrion meat (Maytah) or anything else whose ownership is invalid, according to
the Málikís, the contract shall be invalid if it has not been
consummated, and if consummated, shall be valid and the Fair Dowry shall be
payable. The Sháfi`í, Hanafi, \anbalí and
most of the Imámi legists have said: The contract is valid and she shall
be entitled to fair dowry. Some Imámi
legists have entitled her to fair dowry only if the marriage has been
consummated, while others put forth no such condition and are in consonance with
jurists of the four schools.
In case the stated dowryis a usurped property, such as when she is
married for a farm as her dowry and later it is known to belong to the groom's
father or someone else, the Málikís say: If the farm is known to
the two of them and both happen to be sane, the contract shall be invalid if not
consummated and if consummated shall be considered valid on the basis of fair
dowry. Sháfi`í and
\anbalí schools regard the
contract as valid and entitle her to fair dowry.
The Imámi and the Hanafi schools are of the opinion that the
contract is unconditionally valid; but regarding the dowry they observe:
If the owner gives affirmation, she shall receive the farm itself; if the
owner desent and offer no ratification, she shall be entitled to receive a
similar thing or its value because the stipulate dowry in this case is capable of being validly owned though
ownership is not validated, in
contrast with liquor or swine which cannot be owned at all.
Fair Dowry
The concept of Far Dowry is
relevant in the following cases:
1. There
is consensus among the schools that Dowry is not an essential pillar (rukn) of a
marriage contract, as price is in a contract of sale. On the contrary, Dowry is
only one of the incidents (Athar) of a marriage contract, and even without its
stipulation the contract is valid. Thus, Fair dowry shall be payable on
consummation (in the case where dowry was not specified) and if he divorces her
before the consummation of marriage, she shall not be entitled to any dowry, but
will receive a gift, which is a gift given by the husband to his wife (at the
time of divorce) in accordance with his status, such as a ring or a dress, etc.
If they both agree on this gift, it will suffice; otherwise it will be
fixed by the judge. The issue whether the couple's retiring to seclusion
(Khalwah) is tantamount to consummation or not, will be discussed later.
Hanafi and \anbalí schools
observe: If the husband or the wife dies before consummation, full Fair Dowry
shall be payable as if the marriage had been consummated (Majma` al-'anhur and
al-Mughní, chapters on marriage).
According to Málikís and Imámís, no dowry is
payable if any of the two dies before consummation (al-Mughní
and al-Wasílah).
Sháfi`ís have
two opinions in the matter:
That
the dowry shall be due,
No
dowry shall be paid (Maqsad al-nabíh).
2. If
the marriage contract is concluded with specification of dowry in terms of a
commodity which cannot be owned, e.g. Liquor or swine, as mentioned earlier.
3. All
schools agree that Fair Dowry becomes Wajib as a result of
intercourse-by-mistake. Intercourse-by-mistake is intercourse with someone with
whom it is not legally permissible, though without the knowledge of it being so;
such as a person marrying a woman without the knowledge of her being his
foster sister and coming to know of it later, or his having intercourse with her
after both have appointed their deputies for reciting the contract, thinking it
to be sufficient for permitting sexual contact.
In other words, intercourse-by-mistake is intercourse without proper
marriage, though the presence of a legal excuse which precludes penal action.
On this account the Imámís include under this head
intercourse by a person who is either insane or intoxicated or in sleep.
4. Imámi,
Sháfi`í, and \anbalí schools
have said: One who coerces a woman to have intercourse shall have to pay fair
dowry; but if she had yielded voluntarily she shall not be entitled to anything.
5. A
marriage concluded on the condition that no dowry shall be paid is valid
according to all except the Málikís, who say:
The contract shall be invalid if not consummated, and valid if
consummated but with the obligation to pay fair dowry. A large number of Imámi
legists have said: He shall give
her something, be it much or little. Traditions from the Ahl al-Bayt (A) support
this view.
According to the Imámi and the Hanafi schools, if an invalid
marriage contract with a certain dowry is recited and the marriage is
consummated, she shall be entitled to receive the Dowry stipulated even though
it was less than the Fair Dowry because of her prior consent. But if the
stipulated Dowry is more, she shall receive only the Dowry al mithl, because she
is not entitled to receive more than fair dowry.
Fair dowry is computed by the \anafís by taking into account the
Dowry of her equals from the paternal, not the maternal side. According to the Málikís,
her dowry shall be commensurate with her physical and mental qualities. The Sháfi`ís
, take the Fair Dowry of the wives of her paternal relatives as reference, i.e.
the wife of her brother, that of her paternal uncle, then her sister etc. For
the \anbalís, the judge shall determine the fair by taking into account
the dowry of her female relations, such as the mother or maternal aunt.
The Imámís say: There is no fixed way of determining fair
dowry in Islamic law. It is
estimated by those who know her status, descent, and all those aspects which
influence the increase or decrease of dowry.
But this dowry shall not exceed the Mahr al-sunnah, which is equal to
five hundred Dirhams.
Immediate and Deferred Payment of dowry:
All the schools concur regarding the validity of deferred payment of
dowry, fully or partly, provided that the part be known, either exactly (such as
when it is said, "I marry you for a hundred, of which fifty shall be paid
immediately and the rest after one year") or in an indeterminate manner
(such as when it is said, "The dowry is deferred till death or
divorce").The Sháfi`í school disapproves the latter form of
deferment.
However, if the period is totally vague, such as when it is stated that
the payment of dowry shall be made on the return of a certain traveler, the term
shall be void.
The Imámi and the \anbalí
schools have said: If the dowry has been mentioned without specifying
whether its payment is immediate or deferred, the entire dowry shall be
immediately payable.
According to the \anafís, the local custom shall be observed; i.e.
the portions to be immediately paid and deferred will follow the local custom.
The \anafís also state: If dowry is deferred without mentioning
the period of deferment (such as when it is said, "Half of it is
immediately payable and the rest deferred"), the full dowryshall be
immediately payable.
The \anbalís observe: The dowry can be deferred until death or
divorce.
The Málikís are of the opinion that such a marriage is
invalid; it is voidable before consummation, though valid after it on the basis
of fair dowry.
The Sháfi`ís state:
If the term is known not exactly but in an indeterminate manner (such as until
death or divorce) the dowry stipulated shall become invalid and the fair dowry
will be payable (al-Fiqh `alá al-madháhib al-'arba`ah).
Side Issue:
The Hanafi and the \anbalí ; schools say: If the bride's father
apportions for himself, as a condition, a part of her dowry, the dowry is valid
and the condition is binding and must be fulfilled.
The Sháfi`ís say:
The stipulated dowry shall become invalid and fair dowry will be due.
According to the Málikís, if this condition is included at
the time of marriage, the bride shall receive the entire dowry, including her
father's share; and if the condition is laid after the marriage, the bride's
father shall receive his share (al-Mughní and Bidáyat
al-mujtahid).
The Imámís observe: If her dowry has been specified with a
fixed portion of it mentioned for her father, she shall get her full stipulated
dowry and her father will not get the portion appropriated for him.
The Wife's Right to Refuse Her Conjugal Society
There is consensus among the schools that the wife, simply after the
creation of the contract, has the right to demand her full specified dowry
immediately and to refuse her conjugal society until the dowry is paid. But, if
she agrees once willingly without demanding the dowry, she loses her right of
refusal; all concur on this issue except Abu Hanifah.
He notes: She has the right
to refuse even after surrender. Abu Hanifah's disciples, Muhammad and Abu Yúsuf
dissent.
The wife is entitled to receive maintenance if she refuses her conjugal
society until the payment of Dowry; because her refusal in such a case is
legally valid. But if she refuses to fulfill her conjugal duties after receiving
Dowry or after voluntary surrender, she shall not be entitled to maintenance
except according to Abu Hanifah.
If the wife be a minor unfit for marital relations and the husband an
adult, it is up to her guardianto demand the Dowry; it is not necessary that he
wait until her maturity. Similarly, if the wife be a major and the husband a
minor, the wife has the right to demand the Dowry from his guardian, and it is
not necessary for her to wait until his maturity.
The Imámi and the Sháfi`í schools state: If a
dispute arises between the couple, with the wife refusing to surrender until
payment of Dowry and the husband refusing payment until her surrender, the
husband shall be compelled to deposit the Dowry with a trustee and the wife will
be asked to surrender. Then if she surrenders, she shall receive her Dowry and
be entitled to maintenance. But if she refuses, she shall not receive the Dowry
and will not be entitled to any maintenance. If the husband refuses to deposit
the Dowry, he will be ordered by a judge to pay her maintenance on her demanding
it.
The Hanafi and the Maliki schools state: The payment of Dowry has
precedence over the woman's surrender, and the man may not say, "I will not
pay the Dowry until she surrenders". If he insists on this, he shall be
ordered to pay her maintenance, and if she, after receiving the Dowry, refuses
her conjugal society, the husband is not entitled to recover it.
According to the \anbalí school,
the husband shall be first compelled to pay the Dowry.
This opinion concurs with the Hanafi view except that according to the
\anbalís, if she refuses her conjugal society after receiving the Dowry,
he has the right to recover it from her. (Maqsad al-nabíh, Majma` al-
'anhur, and al-Fiqh `alá
al-madháhib al- 'arba`ah)
Inability of the Husband to Pay the Dowry
The Imámi and the Hanafi schools observe: If the husband is unable
to pay the Dowry, the wife is not entitled to rescind the marriage, and the
judge, too, cannot pronounce her divorce. But she has the right to deny her
conjugal society.
The Málikís state: If his inability is established before
the consummation of marriage, the judge will grant him time according to his own
discretion.
If, after the expiration of such period his inability continues, the
judge will pronounce divorce, or the wife will divorce herself and the judge
shall endorse its validity. But if he has consummated the marriage, she can in
no way dissolve it.
The Sháfi`í school is of the opinion that if his insolvency
is proved while the marriage has not been consummated, she can dissolve it. But
if it has been, she cannot dissolve it.
The \anbalís state: She may dissolve the marriage even after its
consummation, provided she had no knowledge of his insolvency prior the
marriage. Therefore, if she had the knowledge, the question of dissolving the
marriage does not arise. Even when the marriage is dissolvable, only the judge
has the authority to do so.
The Father and His Daughter-in-law's Dowry
The Sháfi`í, the Maliki and the \anbalí
schools hold that if a father concludes the marriage of his poor son, he
shall be liable for payment of Dowry even if the son be a major and the father
acts as his agent for the marriage as his son's deputy. If the father dies
before Dowry is paid, which was wajib upon him, it shall be paid out of his
primary asset.
The Hanafi school observe: The payment of Dowry is not an obligation of
the father regardless of whether the son is a well-to-do person or a poor one, a
major or a minor (al-'ahwál ash-shakhsiyyah by Abú Zuhrah).
The Imámís state: If the minor son possesses property and
his father arranges his marriage, the Dowry shall be paid from the son's assets
and the father shall not be liable at all. But if the minor has no property at
the time of marriage, the father shall be liable to pay the Dowry; the husband
(son) shall not be liable even if he becomes wealthy later. Also, the father is
not required to pay the Dowry of his major son's wife unless he guarantees it on
the conclusion of the contract.
Consummation and Dowry
Sex relations with a woman fall within these three categories:
Fornication (zina) to which she surrenders with the
knowledge of its being prohibited. In this instance, she will not get any Dowry;
rather shall be liable to penal action.
As a result of a misunderstanding on her part such
as her being lawful, followed by later knowledge that it was prohibited.
This averts the penal consequences and she is entitled to receive fair
dowry, irrespective of the man's knowledge or ignorance of the act being
prohibited.
As a result of a valid marriage. In this case she is
entitled to receive the specified dowry if it has been validly stipulated, and
the fair dowry if no dowry was specified in the contract or was specified in an
invalid form (e.g. in terms of liquor or pork).
If one of the spouses dies before consummation, then, according to the
four schools, she is entitled to receive the entire stated dowry.
The Imámi jurists differ. Some
of them, in consonance with the four Sunni schools entitle her to the entire
stated dowry, while others (including al-Sayyid Abú al-Hasan al-Isfahání
in his al-Wasílah and Sheikh Ahmad Káshif al-Ghitá' in
Safinat al-naját) to half the stated dowry as in the case of a woman who
has been reputiated.
Crime Against The Husband
The Sháfi`í, the Maliki and the \anbalí
schools hold: If a wife
kills her husband before the consummation of marriage she shall lose the entire
dowry.
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