Islamic Fiqh > Marriage and family > Khiyar: the option for defect between the spouses > If he consummated the marriage once and then became impotent
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Updated on 25 September 2026 at 3:23 PM
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The jurists of the four schools, Hanafis, Malikis, Shafi'is and Hanbalis, state explicitly that if the husband consummated with his wife, even once, and then became impotent, she has no right of deferral or option in this marriage, even if he divorced her and then took her back. Ibn Qudama said: "If he admits having reached her once, his status as impotent lapses." Most people of knowledge are on this: once he has consummated with his wife, his claim of incapacity is not heard and no term is set for him; among them Ata', Tawus, al-Hasan, Yahya al-Ansari, al-Zuhri, Amr ibn Dinar, Qatada, Ibn Hashim, Malik, al-Awza'i, al-Shafi'i, Ishaq, Abu Ubayd and the upholders of reasoned opinion.
Abu Thawr said: if he is incapable of consummating with her, a respite is granted him, for he has become incapable of her and her right is established as if his penis had been severed after consummation. Our reply: his capacity to consummate with her in this marriage was verified and his impotence vanished, so no term is set for him, as if he had not been incapable; the conjugal rights, the establishment of the mahr and of the waiting period, are realized by a single act of intercourse, and it took place; the jabb, for its part, establishes the incapacity, hence the difference (al-Mughni, 7/155; al-Zarqashi's commentary, 2/415). Al-Kasani said: "If they agree, he and she, that he reached her, she is his wife and there is no option for her; if he reached her once only, there is no option, for he attained his right by a single act of intercourse, and the option aims at the loss of the acquired right, which did not occur" (Bada'i' al-Sana'i', 2/325). Al-Mawsili said: "If the husband consummated with her once and then became impotent or underwent a jabb, she has no claim nor option" (al-Ikhtiyar, 3/143). Al-Amrani, the Shafi'i, said: "If a man marries a woman, consummates with her and then becomes incapable of consummating with her, the option is not established for her and she is not judged against him for impotence." Abu Thawr said: "A term is set for him and the option is established for her, as if he had consummated with her and then his penis had been severed." Our proof: impotence is reached by inference and by effort of interpretation; once his capacity to consummate in this marriage has been verified, one does not revert to the passage of time, for that would be reverting from certainty to conjecture, unlike the case where he consummated with her and was then severed: the jabb is a witnessed and established fact, so that his capacity can be excluded by the established fact (al-Bayan, 9/308, 309).
The majority of jurists do not distinguish between the old defect preceding the contract, the defect concomitant with the contract or occurring after it: the option is established in all cases. They differ, however, over the defect occurring after the contract: does it establish the option or not?
The Malikis: madness, leprosy, vitiligo and the idhyata; 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, provided the defect existed before the contract. If it 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. As for the male defects, castration, jabb, impotence or failure of erection discovered before intercourse, the option is established for the wife; if they occur after intercourse, even once, there is no option 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. If the man discovers in the woman the ratq, the qarn, the 'afl, the ifda' or the bakhar before the contract or at its conclusion, the option is established for him; if they occur in her after the contract, it is a calamity that has befallen the husband, he has no right of annulment nor option: 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 (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; Mayara's commentary, 1/326; Tahrir al-Mukhtasar, 2/651, 657; al-Sawi's gloss on al-Sharh al-Saghir, 5/153, 158).
The Shafi'is: if the woman knew, or the husband, of a defect before the contract, there is no option, except for impotence, for which annulment is established for the woman even if she knew of her husband's impotence before the contract. If a defect among those mentioned occurs in the husband after the contract, before or after consummation and even by the wife's act, such as the severing of his penis, she chooses between annulment and keeping, for she is harmed by the supervening defect as by the concomitant one, except for impotence occurring after intercourse, for which there is no choice, for the purpose of marriage was attained through the mahr and lawfulness; only pleasure remains, a desire the husband cannot be compelled to fulfill, and she hopes for the removal of his impotence. Likewise 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 he is harmed by the supervening defect as by the old one, and there is no meaning to his alone being able to free himself by divorce, for he would owe half the dower before consummation, unlike annulment for defect. As for the old defect, there is no choice, for there is no deception on her part and he can free himself by divorce without being compelled to annulment (al-Bayan, 9/295, 296; Rawdat al-Talibin, 5/39, 41; Kanz al-Raghibin, 3/644, 648; al-Najm al-Wahhaj, 7/235, 237; Mughni al-Muhtaj, 4/334, 336; Tuhfat al-Muhtaj, 9/9, 10; Nihayat al-Muhtaj, 6/360; al-Dibaj, 3/282, 284).
The Hanbalis in the school: the option is established whether the defect is discovered before the contract, after it, or even after consummation, for a defect that establishes the option concomitantly establishes it as supervening, like insolvency. Ibn Qudama said: "If the defect occurs in either of them after the contract, there are two views: the first, the option is established, and this is the apparent view of the Kharaqis, for they say: if he was severed before consummation, the option belongs to her at its time, for it is a defect in the marriage that establishes the option concomitantly and therefore also as supervening, like insolvency, and like emancipation, which establishes the option if concomitant, as when a slave girl was deceived over a slave, and if it supervenes, as when a slave girl is emancipated while under her slave; the contract is for a benefit, and the occurrence of the defect establishes the option therein as in hire. The second, the option is not established, and this is the view of Abu Bakr and Ibn Hamid, and the school of Malik, for it is a defect occurring in the object of the contract after its binding force, resembling the defect occurring in sale, and it is annulled by the supervening defect in hire." Al-Shafi'i's companions said: if the defect occurs in the husband, the option is established, and if it occurs in the woman, likewise according to one of the two views; according to the other, it is not established, for the man can divorce her, unlike the woman. Our reply: they were equal as to the prior defect, so they are equal as to the supervening defect, like the two parties of a sale (al-Mughni, 7/142; al-Zarqashi's commentary, 2/405; al-Mubdi', 7/108; Kashshaf al-Qina', 5/122, 123; Matalib Uli al-Nuha, 5/149).
The majority of jurists do not require that the one requesting separation for defect be himself free of defects. The Malikis: the option is established for each of the two spouses on account of the defect of his partner, whether he is himself afflicted with that defect or another; the option is established for both even if the defects afflict them both. Al-Lakhmi gave the detail: if each of the two spouses discovers in the other a defect of a kind different from his own, finding for instance that he is afflicted with madness and she with leprosy, vitiligo or a disease of the genitals, each of the two has the right to stand apart; if it is one and the same kind, leprosy or vitiligo, or the same epileptic madness, he has the right to stand apart from her, for he paid a dower for soundness and found her among those whose dower would have been less. Al-Dasuqi said: the first view is the more apparent, for it is the accumulation of harm that is meant, and the addition of ailment upon ailment increases the harm (al-Dasuqi's gloss on al-Sharh al-Kabir, 3/103; Mawahib al-Jalil, 5/134).
The Shafi'is in the school: the option is established for each of the two spouses even if each is afflicted with the same defect, for man tolerates in another what he does not tolerate in himself, which prevents his enjoyment. It has been said: 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 imperforate: they are like one and the same kind. Al-Mawardi said: if the husband discovers in her a defect and she in him a defect, there are two cases: the first, the two defects differ, leprosy in one and vitiligo in the other, each then has the option for the defect of his partner, for the leper can bear the vitiliginous and the vitiliginous the leper; the second, the two defects are equal, each being afflicted with vitiligo or leprosy: two views on the option, one that there is no option because of their equivalence and the absence of superiority of one over the other, the other that each has the option, for he can tolerate in another what he does not tolerate in himself, such as spitting, mucus and annoyance (al-Hawi al-Kabir, 9/344; al-Najm al-Wahhaj, 7/235, 236; Mughni al-Muhtaj, 4/234, 235; Tuhfat al-Muhtaj, 9/9, 10; Nihayat al-Muhtaj, 6/359; al-Dibaj, 3/283).
The Hanbalis: each of the two spouses may annul the marriage for a defect among those mentioned, whether one finds in the other his own defect, according to the correct view, 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. Ibn Qudama said: "If one of the two inflicts upon the other a defect and is himself afflicted with a defect of another kind, like the vitiliginous man who discovers a woman mad or leprous, each of the two has the option, for each finds his cause, except if the majbub discovers the imperforate woman: no option should be established for the two of them, for his defect is not what prevents his partner from enjoying, it is by his own defect that enjoyment is prevented. If one discovers in the other a defect identical to his own, there are two views: one, that there is no option for the two of them, for they are equal and neither has superiority over the other, resembling the two sound ones; the other, that he has the option, for each finds his cause, like a slave deceived over a slave girl" (al-Mughni, 7/142; Kashshaf al-Qina', 5/122).
The jurists differed over the separation established for defect: is it a divorce or an annulment? The Hanafis and the Malikis hold that it is a divorce obtained by a single, irrevocable divorce, for the purpose of this separation is to deliver the woman from a husband from whom fulfilling her right is no longer expected, in order to repel injustice and harm from her; this is obtained only by the irrevocable, for were it a revocable divorce, the husband would take her back without her consent and they would have to be separated again and again, the separation yielding no benefit. The Shafi'is and the Hanbalis hold that it is an annulment, not a divorce, and it does not reduce the count of divorces: if he returns to marry her, she remains with him within the three divorces, for it is an option established for defect, hence an annulment like the buyer's annulment for defect (Bada'i' al-Sana'i', 2/326; al-Ikhtiyar, 3/143; Ikhtilaf al-'Ulama by al-Marwazi, 128; al-Istidhkar, 6/193, 194; al-Hawi al-Kabir, 9/375; al-Bayan, 9/308; al-Mughni, 7/153; Kashshaf al-Qina', 5/124, 125).
Does the separation require the judge's decision? The Hanafis differed over the choice made by the woman herself for the defects of jabb, impotence, castration and hermaphroditism: Abu Yusuf and Muhammad hold that if she chooses separation herself, she is separated, and this is the apparent reading of the texts, for the Law gave her the choice at the completion of the year in case of impotence to ward off her harm, so that she does not need the judge's separation, as when the husband gives her the choice. 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, for 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 to keep her with kindness or release her with grace, since he is incapable of the first 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, and she therefore does not separate without the judge's decision: 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 attained, namely repelling injustice by restoring to her possession of herself (Bada'i' al-Sana'i', 2/325, 326; al-Ikhtiyar, 3/143).
The Malikis: divorce here takes place only by the judge's ruling; if there is no judge, the notables of the land stand in his place. If the year fixed for impotence has elapsed, the husband divorces her with the ruler's authorization, the ruler charging him with it; if he divorces her, it is manifest, otherwise the ruler divorces her on his behalf. The ruler may order her to pronounce the divorce herself, such as: "I divorce my husband", and similar formulas, the ruler witnessing the divorce pronounced by her (Sharh Mukhtasar Khalil, 4/98; al-Sharh al-Kabir with al-Dasuqi's gloss, 3/112).
The Shafi'is: raising the matter to a ruler is a condition of annulment for impotence definitively, for its establishment depends on further examination and interpretation, and an appointed arbiter suffices in his place, even if a judge is present. The same applies to the other prior defects: raising the matter to the ruler is a condition of annulment for each of them according to the more correct view, for it is an annulment involving interpretation, resembling annulment for insolvency; if they mutually consent to annulment for a defect permitting it, it is not valid. According to the second view, raising the matter to the ruler is not required, either of them being able to annul alone, like the return for defect (al-Bayan, 9/307, 308; al-Hawi al-Kabir, 9/374, 375; al-Najm al-Wahhaj, 7/243; Mughni al-Muhtaj, 4/334; Tuhfat al-Muhtaj, 9/17; al-Dibaj, 3/286). Al-Amrani said in al-Bayan (9/297): this annulment is established only through the ruler, for it is disputed, and is therefore established only through him, like the annulment of the marriage for insolvency regarding maintenance and the mahr. The shaykh Abu Hamid said: neither of the two spouses may undertake the annulment himself in any case. Ibn al-Sabbagh said: when the matter is raised to the ruler, he is the most entitled, holding the option: if he wishes he annuls himself, if he wishes he orders the woman to annul. Al-Qaffal said: when the matter is raised to the judge and the defect is established before him, she is given the choice between annulling herself and the judge annulling at her request.
The Hanbalis: annulment in the option for defect or the option for a stipulation takes place only by the ruling of a ruler, for it is an annulment involving interpretation and therefore depends on it; the ruler annuls it or returns the annulment to the holder of the option so that he annuls. Annulment by the woman is valid when she is granted the right in the husband's absence, and it is preferable that it take place in his presence. Ibn Muflih reported from shaykh Taqi al-Din that he is not himself the annuler: he only permits and judges; when he permits or judges for someone the right to a contract or an annulment, that one contracts or annuls without thereafter needing a ruling of validity absent dispute; but if he himself contracts or annuls, it is disputed, like his act in this matter; and if the entitled one contracts or annuls without a ruling, the matter is disputed and validity is judged. Shaykh Taqi al-Din also established the lawfulness of annulment without a ruling in the case of consent with a man incapable of intercourse, like the one incapable of paying maintenance; and in the sixty-third rule he held that all annulments do not depend on the ruling of a ruler (al-Insaf, 200, 201; see also al-Mughni, 7/143; al-Kafi, 3/63; Kashshaf al-Qina', 5/124, 125; Manar al-Sabil, 2/603, 604).
The Shafi'is and the Hanbalis according to one view hold that every situation in which either spouse is permitted to annul the marriage for defect establishes that option immediately, not in a deferred manner, for it is an option for a defect requiring neither examination nor reflection, like one who buys at sight and discovers a defect: the return is immediate. We do not mean by this that the annulment takes place immediately, but that the claim for annulment is immediate: as soon as either spouse knows of the other's defect, he raises it to the ruler, who summons the other and questions him; if he admits it or the defect is apparent, he annuls the marriage between them; if he denies it or the defect is hidden, the claimant must establish the proof, and when the proof is established, he annuls the marriage (al-Bayan, 9/297; al-Najm al-Wahhaj, 7/237; Mughni al-Muhtaj, 4/336; Tuhfat al-Muhtaj, 9/13; al-Mughni, 7/143; al-Insaf, 8/200).
The Hanbalis in the school hold that the option for defect is established in a deferred manner and does not lapse unless an indication of consent is found: the husband's statement and enjoyment of her, or her enabling him to consummate; for it is an option to ward off an established harm, and is therefore deferred, like the option of qisas (legal retribution) and the option for defect in goods. The difference is that the harm in the goods is not established, for the purpose may be the value or the service, which are obtained despite the defect, whereas here the purpose is enjoyment, lost through the defect (al-Mughni, 7/143; al-Insaf, 8/200; Kashshaf al-Qina', 5/123; Sharh Muntaha al-Iradat, 5/209; Manar al-Sabil, 2/603).
As for the Hanafis, al-Kasani said: what voids the option is of two types, explicit and by indication. The explicit is the declared waiver of the option and what takes its place, such as saying: "I waive the option", "I consent to the marriage", "I have chosen the husband", whether after the judge granted her the choice or before. The indication is doing what denotes consent to remaining with the husband: if the judge grants her the choice and she remains with her husband, obedient in bed and otherwise, that is proof of consent to the marriage and to life with the husband; but if she acts thus after the term has elapsed before the judge granted her the choice, it is not consent, for her staying with him after the term may aim at her choice or at choosing his state as it is, so it is not proof of consent where there is ambiguity. Is her option voided if she leaves the session? Al-Karkhi reported that Ibn Sama'a and Bishr said from Abu Yusuf: if the judge grants her the choice and she remains with her husband or leaves her session before choosing, or the judge rises, or some of the judge's aides make her leave her session without her saying anything, she has no option, which indicates that her option is restricted to the session of choice, without his mentioning the disagreement; the qadi mentioned in his commentary on al-Tahawi's Mukhtasar that restriction to the session does not apply according to the apparent reading of the texts; Abu Yusuf and Muhammad said that restriction to the session applies, like the option of the woman given the choice by her husband.
The meaning of what was reported from Abu Yusuf and Muhammad: the choice granted by the judge here stands in place of the choice granted by the husband, and the option of the woman given the choice by her husband lapses if she leaves the session; it is the same here, likewise if the judge leaves the session before she has chosen, for the session of choice was voided by his leaving, and likewise if the judge's aides make her leave her session before her choice, for she was capable of choosing before being made to leave, so her being prevented while capable denotes consent to the marriage. The meaning of the apparent reading of the texts, which is the difference between this option and the option of the woman given the choice by her husband: the latter's option is restricted to the session only because the husband, by giving her the choice, transferred to her the ownership of the divorce, the owner of a thing being the only one to dispose of it by his choice and will; the husband's granting of choice is thus a transfer of ownership of the divorce, and the answer to the transfer is restricted to the session, for the transferor asks for the answer in the session by custom, just as acceptance in sale is restricted to the session; the judge's granting of choice, for its part, is a delegation of the divorce and not a transfer, for she does not own the divorce herself, the husband not having transferred its ownership to her but having delegated the divorce to her by charging her with it; what follows is therefore delegation, not transfer, and if he does not own it himself, how could he own it from another? Such is the difference between the two grantings of choice, and Allah knows best (Bada'i' al-Sana'i', 2/326, 327).
The man afflicted with ta'akhkhudh and the castrated one, in all that we described, are like the impotent man, for the organ exists for both of them, so they are like the impotent; the same applies to the hermaphrodite. As for the majbub, if he is known to be such by his admission or by touching above the garment: if the woman knew of it at the time of the marriage, she has no option, for she consented to it; if she did not know of it, she is given the choice immediately, without deferring a year, for the deferral aims at the hope of access, and no access can be hoped from him, so the deferral is useless. If she chooses separation and the judge separates them or not, according to the mentioned disagreement, the full dower belongs to her and the full waiting period rests upon her if he had seclusion with her according to Abu Hanifa; according to the two companions, half the mahr and the full waiting period; if he had no seclusion with her, half the mahr and no waiting period, by consensus (Bada'i' al-Sana'i', 2/326, 327).
Separation for defect occurs either after the contract and before consummation or seclusion, or after the contract and consummation. If it takes place before consummation, nothing is owed by the husband according to the majority of jurists, Malikis, Shafi'is and Hanbalis, whether the annulment comes from the husband or the wife for a defect in either: if it comes from her, the separation is from her side and her mahr lapses, as if she annulled it because his wife had suckled him; if it comes from the husband, he annulled only for a cause coming from her side, namely her deception about the defect, so the annulment is as if from her; and the effect of annulment is the mutual return of the two counter-values, and her genitals returned to him sound, so the counter-value returns to him sound. If the annulment takes place after consummation or seclusion, the full dower is due to her according to the Malikis, with a detail among them to come, the Shafi'is and the Hanbalis, for the mahr is established by intercourse itself.
The Malikis: if the return of the marriage takes place before consummation, there is no dower for her, even if it took place by the formula of divorce, for on account of the defect she chose to separate from him before taking delivery of her commodity, even if the defect is in him, hidden and deceptive. It has been said: if the defect is in him, she has half the dower, for he is deceptive and he entered upon her knowing that she would return him for it. If the return takes place after the consummation of one whose consummation is conceivable, such as the madman or the vitiliginous man, the named dower is obligatory upon him because of his deception; as for the majbub, the impotent man and the castrated one with the severed penis, there is no dower for her (Sharh Mukhtasar Khalil, 3/244, 245; Tahrir al-Mukhtasar, 2/664, 666; al-Sawi's gloss, 5/172).
The Shafi'is and the Hanbalis differ after the mahr is established: the named dower or the dower of equivalence (mahr al-mithl), with a detail among them. The Shafi'is: annulment after consummation is either for a defect existing at the time of the contract, or for a defect concomitant with it or occurring after intercourse. If it takes place after consummation because the defect was only known afterwards, the more correct view is that the dower of equivalence is due if the marriage was annulled for a defect, in him or in her, concomitant with the contract, or for a defect occurring between the contract and intercourse unknown to the one who consummated if the defect is in the woman consummated with, and unknown to her if the defect is in the one who consummated; for he enjoyed a defective woman and paid the named dower only upon a presumption of soundness that did not materialize: the contract is thus as if it had taken place without naming, and the accompaniment of intercourse by the mahr in the second case counts as the accompaniment by the contract: it is likewise as if it had taken place without naming; and the effect of annulment is that each of the two returns to his right or to its equivalent if it perished: the husband returns to his right, which is the named dower, and the wife to the equivalent of her right, which is the dower of equivalence, because of the loss of her right through consummation. The more correct view is that the named dower is due if the defect occurred after intercourse, for it was established by intercourse before the cause of the option existed and therefore does not change. The second view, reported, is that the named dower is due absolutely, for it was established by consummation; the third is that the dower of equivalence is due absolutely. It has also been said, for the concomitant defect: if he annuls for her defect, the dower of equivalence; if she annuls for his, the named dower. The upshot: intercourse is always compensated without disagreement, for intercourse in marriage never occurs without a counterpart; the disagreement is over whether the named dower or the dower of equivalence is due. If the marriage is annulled by the apostasy of either after intercourse, Islam not having rejoined them during the waiting period, the named dower is due, for intercourse established the named dower before it existed, and apostasy has no retroactive effect (al-Bayan, 9/297, 298; al-Najm al-Wahhaj, 7/238, 239; Mughni al-Muhtaj, 4/337; Tuhfat al-Muhtaj, 9/14, 15; al-Dibaj, 3/285).
The Hanbalis in the school: if the annulment takes place after consummation, the dower is due to her, for the mahr becomes obligatory by the contract and is established by consummation, and does not lapse because of something occurring afterwards; this is why it does not lapse either by her apostasy nor is it annulled from her side. The named dower is due, for it is a separation after consummation in a valid marriage containing a valid naming, so the naming is due, as with the defective woman or the one emancipated while under her slave. The proof that the marriage is valid is that it met its conditions and pillars, so it was valid as if it had not been annulled, like the marriage of the slave girl emancipated while under the slave; the rules of validity follow from it, the establishment of inviolability and the lawfulness of return for the first husband, and the other rules of validity; had it been invalid, keeping it would not have been permitted and its annulment would have been necessary. According to one narration, the dower of equivalence is due. The Hanafis: the wife of the impotent man, of the man with ta'akhkhudh and of the castrated one has the full dower and the full waiting period by consensus if the husband had seclusion with her; if he did not, there is no waiting period for her, and half the mahr if a dower was named, otherwise the compensation (mut'a). The wife of the majbub has the full dower and the full waiting period if he had seclusion with her according to Abu Hanifa; according to the two companions, half the mahr and the full waiting period; if he had no seclusion, half the mahr and no waiting period, by consensus (al-Mughni, 7/143, 144; al-Kafi, 3/62; al-Insaf, 8/201, 202; Sharh Muntaha al-Iradat, 5/210; Kashshaf al-Qina', 5/125; Manar al-Sabil, 2/604; Bada'i' al-Sana'i', 2/326, 327).
When the husband divorces his wife before consummation, half the named dower becomes obligatory toward her; but if he annulled the contract before consummation on account of a defect she had, nothing is due to her, by agreement. If he divorced her before consummation and then learned that she had a defect, he does not recover the half, as stated explicitly by the majority of jurists, Malikis, Shafi'is and Hanbalis, for he consented to the removal of possession while binding himself to half the mahr, and therefore recovers from no one; likewise if he divorced her after consummating with her and then learned that she had a defect, there is no recovery. If she died or he died before the defect was known, the full dower is due to her, with recovery from no one, for the cause of recovery is annulment, which did not take place; the dower was established by death and inheritance is established between them (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, 5/180; al-Mudhhab, 2/48; al-Bayan, 9/301; al-Mughni, 7/145; al-Mubdi', 7/111, 112; Kashshaf al-Qina', 5/126; Manar al-Sabil, 2/604).
The jurists differed over the husband who annulled the marriage on account of a defect in his wife: does he recover the mahr from her or from the one who deceived him, or not? The Shafi'is in the newer view and the Hanbalis according to one view, which is that of the Hanafis, hold that the husband who annuls for defect does not recover, after the annulment, the mahr he bore from the one who deceived him, guardian or wife, on account of a concomitant defect, for he took the benefit of the genitals valued by the contract. The proof is Aisha's hadith, may Allah be pleased with her:
"Any woman who marries without the permission of her guardians, her marriage is invalid; three times. If he consummates with her, the dower is due to her for what he took from her; if they dispute, the ruler is the guardian of the one who has no guardian."The Messenger of Allah, peace be upon him; narrated by Abu Dawud (2083), Tirmidhi (1102), Ahmad (25365) and Ibn Hibban in his Sahih (4074)
When the Prophet, peace be upon him, granted the dower to the woman on account of touching in the invalid marriage in every case, without recovering it from her, whereas she is the one who deceived him and no other, it is likewise in the valid marriage in which the husband holds the option, a fortiori for the woman. The burden of the mahr is moreover the compensation for his consummation of the genitals and his enjoyment of her, so that he cannot recover the burden of what his consummation obliged, even if deceived, like one deceived in a commodity he has consumed; and one cannot combine ownership of the compensation and of the compensated: he may own the enjoyment, which is the compensated, and it is not permitted that he own the mahr, which is the counterpart of the compensation (al-Hawi al-Kabir, 9/145, 146; al-Mudhhab, 2/48; al-Bayan, 9/299; al-Najm al-Wahhaj, 7/241; Mughni al-Muhtaj, 4/338).
The Malikis, the Shafi'is in the older view and the Hanbalis in the school hold that the husband recovers the mahr from the one who deceived him, because of the deception by concealing the defect concomitant with the contract, for the deceived was compelled to bind himself to the mahr by this affliction; without him, the mahr falls upon him only with a lasting affliction in a standing marriage; he is thus like the two witnesses who bound him to a burden by their testimony and then retracted: the burden of what was consumed by their testimony falls upon them. Ibn Qudama said: he recovers the mahr from the one who deceived him. Abu Bakr said: two narrations, one that he recovers, the other that he does not. The correct is that the school has only one narration and that he recovers, for Ahmad said: I inclined to Ali's view, then I left that view for Umar's view: "If he marries her and finds leprosy or vitiligo, she has the mahr because he touched her, and her guardian is liable for the dower", which indicates his return to this view; al-Zuhri, Qatada, Malik and al-Shafi'i in the older view are on it. It was reported from Ali: no recovery, and Abu Hanifa and al-Shafi'i in the newer view are on it, for he guaranteed what he consumed as counterpart, the intercourse, and therefore recovers from no one, as if the sold commodity were defective and he consumed it. Our proof: what Malik reported from Yahya ibn Sa'id from Sa'id ibn al-Musayyib: Umar ibn al-Khattab, may Allah be pleased with him, said: "Any man who marries a woman afflicted with madness, leprosy or vitiligo and touches her, she has her dower in full, and this is for her husband a burden resting upon her guardian" (reported by Malik in the Muwatta, 1097), for he deceived him in the marriage by what establishes the option, so the mahr rests upon him as if he had deceived him about the free status of a slave girl.
It follows: if the guardian knew, he bears the burden; if he did not know, the deception is from the woman and he recovers from her the full dower. If they differ over the guardian's knowledge, proof is established against him testifying that he had knowledge, otherwise his statement prevails with his oath. Al-Zuhri and Qatada said: if he knew, he bears the burden, otherwise he swears by Allah the Great that he did not know, and then it is upon the husband. The qadi said: if he is a father, a grandfather, or one of those permitted to see her, the deception is from his side whether he knew or not; if he is one of those not permitted to see her, such as the paternal cousin or the client, and he knew, he bears the burden; if he denies and no proof establishes his admission, his statement prevails and he recovers from the woman the full dower: this is Malik's view, except that he said that if the woman returns what she took, an amount by which she may be made lawful is left for her, so that she does not become like one given as a gift; al-Shafi'i has two views like Malik and the qadi. Our proof that the guardian who did not know does not bear the burden: the deception is from another, so he does not bear, as if he were a paternal cousin; and as for his recovering the full dower: he was deceived by her, so he recovers the full dower as if the guardian had deceived him. Their saying that it is not hidden from him since he sees her is not correct, for the defects of the genitals cannot be inspected and it is not permitted to him to see her, likewise the defects under the clothes: he is thus like one who does not see her, except for madness, which can scarcely be hidden from one who sees her, unless he was absent. As for the recovery of the mahr, it is for another reason: it is as if he had given it to her, unlike the gifted object (al-Mughni, 7/144, 145; Kashshaf al-Qina', 5/125; Sharh Muntaha al-Iradat, 5/211; Matalib Uli al-Nuha, 5/152; Manar al-Sabil, 2/604).
The Shafi'is, according to the view of recovery: the one who deceives may be the wife, her guardian or a third party; if the guardian or a third party deceived him, the husband recovers from him, after his burden, what he undertook, namely the dower of equivalence; if the wife absolved him, he does not recover from the deceiver; if she returned it to him after taking it, there are two views on his recovery, one that he does not recover, like the son, the other that he recovers, for her returning it to him is an initiating gift on her part. If she is the one who deceived him, nothing of the mahr is taken from her that he might recover from her, for it is unrestricted; two views: one, that her entire mahr lapses through the deception, he recovering all of it as he would from another had she deceived him; the other, explicit in al-Shafi'i's older view, that the dower of equivalence lapses, except the minimum that may constitute a mahr, which he owes her so that she may not be lawful to him without payment (al-Hawi al-Kabir, 9/145, 146; al-Bayan, 9/299).
The Malikis: if the husband returns his wife after consummation on account of her defect, he recovers from a guardian to whom her condition was not hidden, such as the father, the brother or the son, because of his deception by concealment, and nothing of the dower she took remains for her: no recovery for the guardian nor from her by the husband if she was absent from the session of the contract, for the guardian is the deceiver. If the wife was present at the session of the contract and neither she nor her guardian informed of the defect, the husband has the choice: to recover from the mentioned guardian or from her, because of the deception of both by concealment; then the guardian recovers from her if the husband took from the guardian, thus placing the burden upon her. This concerns the apparent defect, such as leprosy and vitiligo; as for what appears only after consummation or through intercourse, such as the ratq, the near guardian is therein like the distant one, with no burden upon him. The husband recovers from her alone only if the one who conducted her contract was a distant guardian, such as the uncle, his son or the ruler, and there is left for her a quarter of a dinar, a right of Allah, so that the genitals may not be without a mahr and his consummation may not resemble fornication; likewise he recovers from her for a near guardian who gave her in marriage with a defect in her that cannot be known before consummation, such as the 'afl, the ratq or the bakhar. If the distant guardian knew of the defect and concealed it, he is like the near one: the whole is recovered from him if she was absent from the session of the contract (al-Mudawwana al-Kubra, 4/212; Sharh Mukhtasar Khalil, 3/244, 245; Tahrir al-Mukhtasar, 2/664, 666; al-Sawi's gloss, 5/172).
The Shafi'is: no maintenance for the woman whose marriage was annulled after consummation during the waiting period, whether she is menstruating or pregnant, for the effect of the marriage was cut off by the annulment; lodging is due to her, for she is in the waiting period of a valid marriage, to protect the seminal fluid (Mughni al-Muhtaj, 4/337, 338). The Hanbalis: neither lodging nor maintenance for the woman whose marriage was annulled, for lodging and maintenance are due only to the woman whose husband holds over her the right of return; but she separates here by annulment as she would separate by a threefold divorce, and her husband has no right of return over her, hence neither lodging nor maintenance, according to the Prophet's saying, peace be upon him, to Fatima bint Qays:
"Maintenance and lodging are due to the woman only if her husband holds over her the right of return."Narrated by Nasai (3403)
This if she is menstruating; if she is pregnant, maintenance is due to her, for she is separated from a valid marriage during her pregnancy, like the thrice-divorced woman and the widow. The qadi said: no maintenance for her if she is pregnant according to one of the two views, for she is separated from an invalid marriage; regarding lodging, there are two narrations (al-Mughni, 7/145; al-Zarqashi's commentary, 2/409; Kashshaf al-Qina', 5/125).