Islamic Fiqh > Marriage and family > Khiyar: the option for defect between the spouses > The attribution of the option to both spouses
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full chapter: See all parts.
Khiyar al-'ayb, the option of annulment for defect, allows either spouse to seek the annulment (faskh) of the marriage upon discovering in the other a defect that grounds such a request. The jurists of the four schools agree on the principle of the option for defect and differ on its details: which defects establish it, whether the defect must be pre-existing, whether the petitioner must himself be free of defects, whether the resulting separation is a divorce or an annulment, and which mahr is then due. The following leaves lay out these positions with their classical references.
The jurists' divergence on this point stems from two causes: the first is whether the statement of the Companion constitutes proof, the second is whether marriage can be assimilated to sale on this question. The statement of the Companion invoked here is that of Umar ibn al-Khattab, may Allah be pleased with him.
"Any man who marries a woman afflicted with madness, leprosy or vitiligo, and in some reports: bearing a growth (qarn), she has her mahr in full, and this constitutes for the husband a burden resting upon her guardian."Statement of Umar ibn al-Khattab, reported by Malik in the Muwatta from Sa'id ibn al-Musayyib (1097)
As for the analogy with sale, the proponents of annulling the marriage for defect said that marriage resembles it in this respect. Their opponents replied that it does not, because of the Muslims' consensus that marriage is not returned for every defect, whereas sale is (Bidayat al-Mujtahid, 2/38).
The Hanafis ruled that judicial separation for defect belongs to the defects of the husband, not to those of the wife: the wife obtains the option if she discovers a defect in her husband. But if it is the wife who is afflicted with a defect, whatever it may be, madness, leprosy, vitiligo, imperforation (ratq) or a growth (qarn), the husband does not obtain the option, for this would harm the wife by nullifying her right. The husband's harm, however, can be averted by divorce or by another marriage: what he is entitled to is access to his wife, and such access exists; enjoyment is one of the fruits, and the loss of a fruit does not affect the contract. Does one not see that if he did not have enjoyment because of a foul odor (bakhar), a discharge or repulsive sores, he would not for that have a right of annulment: what is owed is access, and it is obtained (al-Hidaya, 2/27; al-Ikhtiyar, 3/142; al-Jawhara al-Nayyira, 4/350; al-'Inaya, 6/90; al-Lubab, 2/51; al-Fatawa al-Hindiyya, 1/523).
The majority of jurists, Malikis, Shafi'is and Hanbalis, ruled that separation is established for each of the two spouses if he discovers in his partner a defect among those that annul marriage: separation for defect is an equal right for both. For the woman is one of the two counter-values of the marriage, so that she is returned for defect like the mahr; or one of the two spouses is the object of the contract, so that the option for defect is established on account of the defect of the other, as on account of the woman (Mawahib al-Jalil, 5/134; al-Taj wa-l-Iklil, 2/551, 552; al-Sharh al-Kabir with al-Dasuqi's gloss, 3/103; Tahrir al-Mukhtasar, 2/651, 652; al-Bayan, 9/290; Rawdat al-Talibin, 5/37; al-Najm al-Wahhaj, 7/230, 231; Mughni al-Muhtaj, 4/333; Tuhfat al-Muhtaj, 9/5, 6; Nihayat al-Muhtaj, 6/356; al-Dibaj, 3/280; al-Mughni, 7/140; al-Mubdi', 7/101; Kashshaf al-Qina', 5/116, 117; Sharh Muntaha al-Iradat, 5/201; Manar al-Sabil, 2/599).
The jurists of the four schools agree on the existence of the option for defect, but differ on the defects that establish it. The Hanafis teach that not every defect in the husband opens to the wife the right of annulment: separation is established for her only if he is afflicted with the jabb (amputation of the genital organ), impotence ('inna) or castration (khasya).
Imam al-Mawsili defines the impotent man ('innin) in al-Ikhtiyar (3/142, 143) as one who cannot reach women, or reaches only previously married women without reaching virgins, or reaches a woman other than his own without reaching her. Impotence may stem from an illness, weakness, old age or sorcery. If the husband is impotent and his wife contests it, the judge grants him a respite of one year: if he manages to consummate with her, well and good; otherwise he separates them if she requests it, for she has a right to intercourse and may demand it. The respite may cover a passing illness as well as a lasting affliction, and the year was retained as the criterion because it encompasses the four seasons: an illness of cold vanishes with the heat of summer, an illness of moisture with the dryness of autumn, an illness of heat with the cold of winter, an illness of dryness with the moisture of spring, by custom, and this was reported from Umar, Ali and Ibn Mas'ud, may Allah be pleased with them.
Once the year has passed without access, it is known that the affliction is lasting and the wife is given the choice. If she chooses separation herself, Abu Yusuf and Muhammad rule that she is separated, and this is the apparent reading of the texts; al-Hasan reported from Abu Hanifa that she does not separate except by the judge's decision, and this is the famous position of the school: marriage is a binding contract, the husband's possession therein is protected and does not end except by its removal to ward off his harm; but since he is bound either to keep her with kindness or to release her with grace, since he is unable to keep her because of his impotence, and since the judge cannot stand in for him for intercourse, releasing her with grace falls upon him. If he refuses, the judge acts in his place, for he is instituted to repel injustice: she therefore does not separate without the judge's separation, and when he separates them, it is as if the husband had divorced her with his own hand, by an irrevocable divorce, so that the purpose is achieved, namely repelling injustice by restoring to her possession of herself. The wife's request is a condition, for separation is her right.
The "year" means the lunar year, which is meant by default; Ibn Sama'a, however, reported from Muhammad that it is a solar year counted in days, exceeding the lunar year by eleven days, counting therein the days of menstruation and the month of Ramadan, for the year is never free of them; the illness of either party is counted if it is half a month, and compensated if it exceeds that. According to Abu Yusuf, if she goes on pilgrimage, flees or is absent, that period does not count within the year, whereas if he goes on pilgrimage, flees or is absent, it counts against him. The respite runs only after the woman's claim before the judge: if she chooses her husband, she has no option thereafter, for she consented to the loss of her right; if the judge grants her the choice and she leaves the session before choosing, she has no option, like the woman given the choice by her husband. If the impotent man asks the judge for a further respite of one year, he obtains it only with her consent, and if she consents, she may return to choose before the second year elapses. If the judge separates them and he then marries her again, she has no option, for she consented to his impotence.
In case of dispute over access: if she is no longer a virgin, his statement prevails with his oath, for he denies the right of separation, the default being the soundness of the organ and the defect being incidental; if he takes the oath, his right lapses, and if he declines, he is granted a respite of one year as with other rights. If she is a virgin, the women examine her: if they say "she is a virgin", a respite of one year is granted; if they say "she is not", he swears as explained. The majbub, whose penis has been cut off at the root, brings about immediate separation, for deferring is of no use; the castrated man is assimilated to the impotent one, for he possesses an organ that erects and with which he performs intercourse, but he cannot impregnate; he is the one whose feminine parts were removed. If a slave woman's husband is impotent, the option belongs to the master, like withdrawal ('azl) according to Abu Hanifa. If the wife is afflicted with imperforation (ratqa'), she has no right to request, for she has no right to intercourse; and if the husband consummated with her once and then became impotent or underwent a jabb, she has no claim nor option.
The imams then differed if the husband is afflicted with madness, leprosy or vitiligo: does the wife obtain the option or not? Abu Hanifa and Abu Yusuf, and this is the view their fatwa follows, teach that the option is established for the wife only by the jabb, impotence and castration, not by madness, leprosy or vitiligo, for the option nullifies the husband's right and is therefore not established; it was established for the jabb and impotence only because they defeat the purpose of marriage, which is intercourse, which these defects do not do, and because what is required of the husband is to validate her mahr by consummating, which is possible. Muhammad ibn al-Hasan ruled on the contrary that the right of annulment is established for the wife on account of her husband's madness, leprosy or vitiligo, for the interests cannot be reconciled between them: the option is established for her to ward off harm, unlike the husband, who can ward it off by divorce; this defect thus becomes like the jabb and impotence, and remaining with a madman harms her more than remaining with an impotent man: if the option is established for the latter, a fortiori for the former (Bada'i' al-Sana'i', 2/322, 327; al-Hidaya, 2/27; al-Ikhtiyar, 3/142; al-Jawhara al-Nayyira, 4/352, 353; al-'Inaya, 6/90; al-Lubab, 2/51; al-Fatawa al-Hindiyya, 1/523).
Al-Kasani reports in Bada'i' al-Sana'i' (2/327) the detailed position: Abu Hanifa and Abu Yusuf rule that the husband's freedom from the five defects, the jabb, impotence, ta'akhkhudh (loss of the testicles), castration and hermaphroditism, is not a condition and does not annul the marriage. Muhammad rules that his freedom from every defect that prevents the wife from remaining with him without harm, such as madness, leprosy or vitiligo, is a condition of the binding force of the marriage until its annulment, and that his freedom from other defects is not a condition, and this is al-Shafi'i's school. Muhammad's reasoning: the option in these five defects was established only to ward off harm from the wife, and these defects harm her more than the others, for they are contagious diseases by custom; if the option is established for those, a fortiori for these, unlike the case where they afflict the wife: the husband, though harmed, can ward off the harm by divorce, which is in his hand, whereas the woman cannot, for she does not hold the divorce; annulment thus necessarily becomes the way to ward off harm. According to the first two, the option in the other defects was established to ward off the loss of her right acquired by the contract, namely a single act of intercourse, a right not lost by these defects since intercourse takes place despite them, hence no option against the husband; and on the wife's side, her freedom from defect is not a condition of the binding force of the marriage by unanimous agreement, so that no defect in her annuls the marriage.
The majority of jurists, Malikis, Shafi'is and Hanbalis, hold that the defects are broader. They fall into three categories: a category specific to men, a category specific to women, a category common to both. They agree on some and differ on others, and the most expansive in this matter are the Malikis, who count thirteen annulling defects.
Four are common to both spouses:
If either spouse discovers in the other one of these four defects, he may annul the marriage, whether he himself is afflicted with that defect or another: either may annul, provided the defects existed before the contract. If they appeared after, the wife may return her husband, but the husband has no right to return his wife, for he can separate from her by divorce if harmed, divorce being in his hand, unlike the woman, hence her option. Both spouses are granted a respite of one full year in the three diseases, madness, leprosy and vitiligo, if cure is hoped for, otherwise the respite is useless. During this term, the wife is entitled to maintenance from her husband, but not to the physician's fees or medicine if he has consummated with her; if he has not consummated, no maintenance is owed by him.
Four defects are specific to the man:
The option is established for the wife if she discovers one of these defects in her husband; if they occur after intercourse, even once, the option is no longer established and it is a calamity that has befallen her, unless she caused it, in which case she may return her husband as with a defect occurring before intercourse and after the contract.
Five defects are specific to the woman:
The option is established for the husband if he discovers one of these defects before the contract or at the time of its conclusion; if they occur in the woman after the contract, it is a calamity that has befallen the husband, and he has no right of annulment on that account: if he wishes he keeps her, if he wishes he separates, and if he separates before consummation, half the dower is owed by him, and after it, the dower in full.
There is no option outside these defects for blackness, baldness, blindness, squinting, limping, paralysis, the amputation of a limb or excessive eating, and everything custom counts among defects, except with a stipulation: the option is established for these defects and others if he stipulated freedom from them. If it appears that the woman was born of fornication or that her virginity was removed by fornication, the husband has no option, unless he stipulated freedom from that. The husband also has the return on the basis of a description given by the guardian at betrothal, such as: "she is sound in both eyes, long-haired, without defect", if the contrary is found, for his description stands in place of a stipulation; likewise the description of another person, such as the mother, in the suitor's presence while he remains silent. One who marries a woman he believes to be a virgin and finds her previously married: if he stipulated nothing, no return at all, whether the guardian knew her condition or not; if he stipulated chastity, the return belongs to him absolutely; if he stipulated virginity lost by a marriage, it is the same; if he stipulated virginity lost by a fall or by fornication, and the guardian knew it and concealed it from the husband, the return belongs to him, with recovery of the dower from the father or whoever conducted the contract (al-Istidhkar, 5/419, 421; al-Ishraf 'ala Nukat Masa'il al-Khilaf, 3/345-347, no. 1181; Mawahib al-Jalil, 5/133, 139; al-Taj wa-l-Iklil, 2/551, 556; al-Sharh al-Kabir with al-Dasuqi's gloss, 3/103, 108; Tahrir al-Mukhtasar, 2/651, 657; al-Sawi's gloss on al-Sharh al-Saghir, 5/153, 158).
Imam Ibn Rushd reported that Malik's companions differed over the cause ('illa) for which the return was restricted to four defects: it was said that it is a legal prescription without an established cause; it was said that it is because they are hidden defects, the others being understood as apparent defects; it was said that it is for fear of their transmission to children, and on this basis return is made for blackness and baldness. According to the first view, the return takes place for every defect known to have been concealed from the husband (Bidayat al-Mujtahid, 2/39).
The Shafi'is divide the defects establishing the option into three categories. The first is common to both spouses: either obtains the option upon discovering in the other one of three things:
If madness, leprosy or vitiligo are removed by treatment, the right of annulment lapses, for its cause has vanished. Each of the two obtains the option for these three defects even if each is afflicted with the same defect, according to the correct view of the school, for man tolerates in another what he does not tolerate in himself, which prevents his enjoyment. It has been said on the contrary: if he is afflicted with a defect like his own, there is no option, because of their equivalence. If they are of two different kinds, each of the two has the option, except if the man is majbub and the woman afflicted with imperforation: they are then like one and the same kind.
The second category is specific to the wife: the husband obtains the option of annulling the marriage if his wife is afflicted with imperforation (ratqa), the place of intercourse being closed by flesh, or with a growth (qarn), closed by bone according to the more correct view, others saying flesh, which reduces the two defects to one. The husband may not compel the imperforate woman to cut open the place; if she cuts it by a surgical operation and intercourse becomes possible, the husband no longer has the option, for the cause of annulment no longer exists.
The third category is specific to the husband: the wife obtains the option if she discovers that her husband is impotent ('innin), that is, unable to have intercourse with her specifically: the impotent man is one who suffers from a disease preventing his penis from erecting in her, even if he is capable with another; the failure of erection may stem from weakness of the heart, liver, brain or the organ itself; it may also happen that the faculty is withheld for a particular woman, desire being held back from her by aversion or shyness, while he is capable with others out of inclination or affection. Or that he be majbub, that is, with the penis cut off wholly or above the glans, so that nothing remains of it with which to consummate. Annulment is then established for the woman, and even if she knew of her husband's impotence before the contract, the option is established for her as well.
But if she knew, or he knew, of another defect among the rest before the contract, there is no option: the option is established for these defects only in case of ignorance, except for impotence. Nor is there annulment for hermaphroditism that became apparent before the contract according to the apparent view, for the purpose of marriage is not defeated. Second: the option is established on account of natural repulsion, whereas if the ambiguity of sex remained, her marriage is invalid.
If a defect among those mentioned occurs in the husband after the contract, before or after consummation, even by the wife's act, such as the severing of his penis, she chooses between annulling the marriage and keeping it, for she is harmed by the supervening defect as by the concomitant one, except for impotence occurring after intercourse: then she has no choice, for the purpose of marriage has already been attained through the mahr and the wife's becoming lawful to him; only pleasure remains, a desire the husband cannot be compelled to fulfill, and she hopes for the removal of his impotence. If a defect occurs in her before or after consummation, the choice is established for the new defect, as if the defect had occurred in him; for the old one, there is no choice, for there is no deception on her part and he can free himself by divorce without being compelled to annulment. The guardian has no option on account of a supervening defect in the husband, for the guardians' right to competence is considered only at the outset of the contract, not in its permanence; likewise the guardian has no option for concomitant jabb or impotence, for there is no shame, the harm resting on her alone, which is why it is obligatory for her to answer them, otherwise he would be an obstructer. According to one view, the guardians have the option for all concomitant defects. If it is objected that impotence is only discovered after the contract, how is it conceived? The answer: it is conceived in the case of one who married her, showed himself impotent, then divorced her and wishes to renew his marriage with her. The option is established for a concomitant jabb or impotence even if the woman consents, by consensus, for the guardians are disgraced by it; likewise leprosy and vitiligo according to the more correct view. According to the second view, the guardian has no option, for the harm of leprosy and vitiligo is specific to intimacy with one whom the soul cannot bear, and this is specific to the wife (al-Bayan, 9/290, 296; Rawdat al-Talibin, 5/37, 41; Kanz al-Raghibin, 3/644, 648; al-Najm al-Wahhaj, 7/230, 237; Mughni al-Muhtaj, 4/333, 336; Tuhfat al-Muhtaj, 9/5, 10; Nihayat al-Muhtaj, 6/356, 360; al-Dibaj, 3/280, 284).
The Hanbalis hold that the option for defect is established for each of the two spouses, and divide it into three categories. The first is specific to the man: the wife obtains the option if she discovers that her husband is:
Not counted against him in the term is the period during which the woman withdrew from him by rebelliousness (nushuz) or otherwise, for she is the one preventing; if the husband abstained from her or traveled for a need or otherwise, it counts against him, for it comes from his side, like the master; if he consummated with her within the year, he is not impotent; if the year passed without consummation, annulment of her marriage from him belongs to her. If the husband alleges that she knew of his impotence before marrying him: if she admits it or her knowledge is established by testimony, there is no respite, but neither is there annulment in her favor, for she entered knowingly. If she learned of his impotence after consummation, remained silent and then claimed it later, she is entitled to it, for the matter is open, and the respite of one year runs from the day of litigation, neither from the contract nor from consummation. If she said at any time: "I consented to him as an impotent man", she has no claim of annulment thereafter, for she waived her right.
If he does not admit it and no witness testifies to his admission or his impotence, if it can be ascertained, and he does not claim an act of intercourse, he swears an oath to cut off her claim, and his statement prevails, for the default in the man is the soundness of the organ; if he declines the oath, a respite of one year is granted. If the woman admits that he consummated with her once vaginally, his status as impotent lapses, for his impotence was removed by that intercourse; if he consummated with her from behind, the impotence does not lapse, for what is below the vulva is not a place of intercourse, hence no inviolability thereby and no return possible for a woman thrice divorced. If he consummated with her in a previous marriage or consummated with another woman, the impotence does not lapse, for it may recur, and each woman is judged by herself: annulment is for the harm of his incapacity toward her, harm not removed by consummating with another. If a husband alleges consummation of a virgin and a trustworthy woman testifies to her excuse, that is, her virginity, a respite of one year is granted him as if she were previously married; the stronger view requires the testimony of two trustworthy women; if no one testifies to her virginity, his statement prevails, for the default is soundness, and the oath falls upon her if the husband says: "I removed her virginity and it came back", for his truthfulness is conceivable.
The second category is specific to the woman: the husband obtains the option if he discovers in his wife one of these defects:
The option is established for the husband, for these defects prevent intercourse or its pleasure, or involve repulsion, deficiency, fear of the contagion of the ailment or of its impurity.
The third category is common to both spouses: each obtains the option upon discovering in the other one of these defects:
Annulment takes place for each of these defects, whether one finds in the other his own defect or another, for man tolerates in another what he does not tolerate in himself; except if the majbub discovers an imperforate woman: no option should then be established for the two of them, enjoyment being prevented by his own defect. The option is also established by the occurrence of the defect after the contract, even after consummation, for a defect that establishes the option concomitantly establishes it as supervening, like insolvency. If either spouse knew of the other's defect at the time of the contract, he has no option; likewise if he learned of it after the contract and consented to it, there is no option without disagreement, for he consented to it like the buyer of a defective good. It is the same if there was on his part an indication of consent to the defect by an act of intercourse or by enabling intercourse with knowledge of the defect. In case of dispute over knowledge of the defect, the statement of the one who denies it prevails with his oath, for that is the default. If he consented to a defect, such as an imperforate woman, and then another defect of a different kind occurs, such as leprosy upon the imperforate woman, he has the option for the supervening defect, for he did not consent to it. If he believed the defect to which he consented to be slight and it proves extensive, like one who believed a limited vitiligo that spreads over most of the body, or if the defect increased after the contract, he has no option, for it is of the kind to which he consented, and his consent covers what follows from it. There is no option for squinting, limping, the amputation of a hand or a foot, blindness, dumbness or deafness, for none of this prevents enjoyment nor raises fear of contagion (al-Mughni, 7/140, 143; al-Mubdi', 7/101, 103; al-Insaf, 8/199, 200; Kashshaf al-Qina', 5/116, 123; Sharh Muntaha al-Iradat, 5/201, 208; Matalib Uli al-Nuha, 5/141, 144; Manar al-Sabil, 2/599, 602).
The shaykh of Islam Ibn Taymiyya and Ibn al-Qayyim, may Allah have mercy on them, held that the defects are not limited to those mentioned: every defect resembling them in harm is added to them. Ibn Taymiyya said: "It is known that the defects of the genitals that prevent intercourse are not ordinarily consented to, unlike color, height, shortness or limping and the like, for which the slave is returned; for the free woman is not examined as the slave is, and the husband consented to her absolutely, unlike sale, yet did not stipulate any quality, and she lacked it; now the stipulation is only established by stipulation and custom, and whatever allows intercourse and its perfection does not lend itself to a precise determination of people's aims: women are consented to by custom and habit with varying qualities, and the purpose of marriage is affinity and enjoyment, which vary with the qualities; this is a rational, legal distinction in the custom of people." He also said: "As for the man, his matter is apparent, whoever wishes sees it; there is thus no defect in him obliging return; as for the woman, if the husband first failed to examine her, he has a way to free himself from her by divorce, which is in his hand and not in the woman's" (Majmu' al-Fatawa, 29/354, 356). He also said: "Annulment is established by continuous bleeding according to the more apparent of the two views, and the woman is returned for every defect that repels perfect enjoyment." And: "If the husband appears infertile, the analogy of our view comes from the woman's option: she has a right to children, which is why we say that no one divorces the free woman without her permission; and there is in Imam Ahmad what implies it, and it has also been reported from the Commander of the Believers Umar ibn al-Khattab" (al-Fatawa al-Kubra, 4/543).
Ibn al-Qayyim said: "Restricting the defects to two, six, seven or eight, excluding what is graver or equivalent, has no basis. Blindness, dumbness, deafness, her being deprived of both hands or both feet or of one of them, or the man being so likewise, are among the greatest deterrents, and silence about them is among the ugliest deceptions and the ugliest cheats: it is contrary to religion. The word sound refers to soundness; it is like a condition laid down by custom. The Commander of the Believers Umar ibn al-Khattab, may Allah be pleased with him, said to one who had married a woman while unable to have children by her: inform her that you are sterile and give her the choice. What then would he say of the defects for which this constitutes perfection and not deficiency? The analogy is that every defect that repels the other spouse and prevents attaining the purpose of marriage, mercy and affection, obliges the option, and it is still more warranted than in sale, just as the conditions laid down in marriage are more worthy of being honored than the conditions of sale. Allah and His Messenger never bound a deceived person nor one cheated by that with which he was deceived and cheated. Whoever ponders the purposes of the Law in its sources and its applications, its justice, its wisdom and the interests it contains will not fail to see the preponderance of this view and its closeness to the rules of the Sharia" (Zad al-Ma'ad, 5/182, 183).
We have seen the reasoning of the Hanafi doctor Muhammad: the option in the five defects was established only to ward off harm from the wife, for these defects harm her more than the others, being contagious diseases by custom; and if these defects afflict the wife, the husband, though harmed, can ward off the harm by divorce, which is in his hand, whereas the woman cannot, for she does not hold the divorce, hence annulment as the necessary way (Bada'i' al-Sana'i', 2/327).
The Malikis teach that it is permitted to the guardian to conceal blindness and the like, every defect that does not oblige the option, such as baldness, blackness, paralysis and every defect souls dislike, other than the thirteen defects, if the husband did not stipulate freedom from it; for marriage is built upon honorable treatment, unlike sale, where the seller must disclose everything displeasing to the buyer; as for what obliges the option, the guardian must disclose it. It is obligatory for him to conceal shameful deeds, that is, the disgraceful acts that bring dishonor, such as fornication and theft, even if the husband stipulated freedom from that. What should then be said: concealment is obligatory in order to veil and prevent her being given in marriage, by saying to the suitor: she does not suit you, for religion is sincere counsel (Sharh Mukhtasar Khalil, 3/249; al-Sharh al-Kabir with al-Dasuqi's gloss, 3/124; Tahrir al-Mukhtasar, 2/672; al-Sawi's gloss on al-Sharh al-Saghir, 5/181).
The jurists laid down for the establishment of separation for defect a first condition: the absence of consent to the defect; the following leaves will examine whether the defect must be old and whether the petitioner must be free of defects. The majority of jurists teach that the sound spouse who knew of the other's defect before the contract, during or after it, explicitly or by indication, saying for instance: I consented to this defect, or by consummating with her, or by enabling him to consummate, has no option thereafter, like the buyer of a defective good whose option lapses by statement and by what indicates consent. Ibn Qudama said: "Among the conditions of the option for these defects is that he did not know of the defect at the time of the contract and did not consent to it afterwards; if he knew of it at the contract or after and consented to it, there is no option for him, and we know of no disagreement on this, for he consented to it and thus resembles the buyer of a defective good" (al-Mughni, 7/142; al-Mubdi', 7/109; al-Insaf, 8/199, 200; Kashshaf al-Qina', 5/122, 123; Sharh Muntaha al-Iradat, 5/209; Matalib Uli al-Nuha, 5/144; Manar al-Sabil, 2/603).
The question of the impotent man is an exception and has given rise to disagreement. Malikis and Hanbalis hold that if she knew of his impotence, kept silent, and then later claimed annulment, that is permitted to her. The Hanbalis specify: if she learned of his impotence after consummation and then claimed it, it belongs to her, for the matter is open, and the respite of one year runs from the day of litigation, neither from the contract nor from consummation; if she said at any time: I consented to him as impotent, she has no claim of annulment thereafter, for she waived her right. Ibn Qudama said: "If she knew that he was impotent after consummation, kept silent from claiming and then claimed it later, it belongs to her, and the respite of one year is granted her from the day of litigation, and we know of no disagreement on this; her silence after the contract is no proof of consent, for it is a time in which she can neither annul nor withhold herself from his enjoyment, so that her silence does not entail the loss of her right, like her silence after the fixed term before its expiry; and if she kept silent after the term, her option does not lapse either, for the option is established only after the matter is raised to the ruler and the incapacity is established, so that prior silence does no harm" (al-Mughni, 5/154; al-Zarqashi's commentary, 2/414; Kashshaf al-Qina', 5/118).
The Malikis consider that the failure of erection (i'tirad), called marbut, resembles the impotence of the majority: the option is established for his wife if she enabled him to enjoy her knowing of his condition, and her right of separation does not thereby lapse. Al-Dardir said: "The option for either spouse on account of a defect among those detailed, if knowledge did not precede it, nor consent to the defect, explicit or by commitment, such that he saw it after the contract, nor enjoyment of the defective one knowingly, except the wife of the man without erection if she knew, before or after the contract, of his condition and enabled him to enjoy her: she has the option as long as she hoped for his cure and it did not take place" (al-Sharh al-Kabir, 3/103).
The Hanafis teach that if she knew of his impotence at the time of the marriage, there is no option for her, like the buyer who knows the defect of the goods; if she did not know of it at that time and learned of it afterwards, the claim remains hers, however long the time (al-Bahr al-Ra'iq, 4/135). The Shafi'is teach that annulment is established for the woman even if she knew of her husband's impotence before the contract: the option belongs to her afterwards according to the school, for impotence is realized with one woman rather than another and in one marriage rather than another, and the option is established for the wife by impotence even if he is capable of intercourse with another; likewise if she knew of his impotence and deferred raising the matter to the judge, her option does not lapse; but if the impotence occurred after he consummated with her, there is no option, for the purpose of marriage has been attained through the mahr and the establishment of lawfulness, and she knew of his capacity and obtained her right (Mughni al-Muhtaj, 4/334; al-Shirwani's glosses, 9/13; al-Dibaj, 3/283).
If she consented to her impotent husband after knowing of it, her option lapses according to the generality of jurists, except for one view of the Shafi'is. Ibn Qudama said: "In every case where she consented to him as impotent, her option lapses: whether she said it after the contract, after the fixed term or after its expiry, and we know of no disagreement on the lapse of her option after the expiry of the term. Before its expiry, al-Shafi'i said in the newer view: her option does not lapse, for her right of annulment is established only after the expiry of the term, so that its waiver before is not valid, like the preemptor waiving his right before the sale. Our proof: she consented to the defect after the contract, so her option lapses as with the other defects, as after expiry. What they mentioned is not correct, for the impotence that is the cause of annulment exists, and the term was set only to know of its existence and confirm her knowledge: it is like the witness for the other defects, and it differs from preemption, whose cause is the sale, which does not yet exist" (al-Mughni, 5/154; al-Zarqashi's commentary, 2/414; Kashshaf al-Qina', 5/118; see also al-Ikhtiyar, 3/143).
The scholars agree, without disagreement, that when the woman brings her case before the judge on account of her husband's impotence, he grants him a respite of one year. Ibn Abd al-Barr said: "I know of no disagreement among the Companions that the impotent man is granted a respite of one year from the day the matter is raised to the ruler; it has been reported from Umar, Ali, Ibn Mas'ud and al-Mughira ibn Shu'ba, may Allah be pleased with them. Umar's report was transmitted by the Medinans, the Kufans and the Basrans without divergence; Ali's report comes only from the Kufans, who also differ about it, and nothing of it is authentic from the standpoint of the chain, and Allah knows best." Abu Amr said: "On this the successors of the Hijaz and Iraq were collectively agreed: the impotent man is granted a respite of one year from the day the matter is raised to the ruler; it has been reported from one of them that he granted him ten months, and that is of no account. The respite of a year, and Allah knows best, aims at the treatment being complete across the seasons of the year, for diseases vary with the times and seasons; if he is not cured within the year, they despair of him and separate them." The separation between the two counts as a single divorce according to Malik, Abu Hanifa, their companions and al-Thawri, whose proof is that the separation occurs for a cause coming from the husband, so it is a divorce. Al-Shafi'i, al-Hasan ibn Hayy and Abu Thawr held that the separation is an annulment and not a divorce, al-Shafi'i saying: the separation, coming from her, occurs only by her choice. If she consents to it and remains with him, no separation takes place; if the separation does not come from the husband, it is an annulment, not a divorce. And they agree that the impotent man is not separated from his wife after the full year, unless she requests it and chooses it (al-Istidhkar, 6/193, 194).