Islamic Fiqh > Marriage and family > Mahr (dowry): status, mention and limits > Mahr in the contract: mention, deadlines and insolvency
Contents
Updated on 24 September 2026 at 7:46 PM
The mahr, the dower paid by the husband, raises in the fiqh of marriage a series of precise cases: should it be mentioned in the contract, does the marriage remain valid if the spouses stipulate its waiver, when does it become due, and how are disputes over its amount or its receipt settled? The jurists of the four schools, Hanafi, Maliki, Shafi'i and Hanbali, answer point by point, with their Quranic proofs, their hadiths and their classical references. The sheets below gather the substance of these positions.
The jurists of the four schools agree that naming the mahr in the marriage contract is recommended (mustahabb), not obligatory. A marriage concluded without a mahr being named and without the spouses agreeing to exempt it from any mahr is valid. The Prophet (peace and blessings of Allah be upon him) indeed married off his daughters and other women, and his own marriages were never without a mahr.
He thus said to the man he was marrying to a woman given as a gift:
"Go and seek one, even if it be a ring of iron." The man went, then returned: "No, by Allah, not even a ring of iron."Narrated by al-Bukhari (5533)
The Prophet then married him to her with what he possessed of the Quran. Mentioning the mahr is moreover desired because it precludes dispute and disagreement at the closest point. As for the fact that this mention is not a condition of the marriage, the proof is Allah's saying:
"There is no blame upon you if you divorce women you have not touched, or for whom you have not specified an obligation (bridal due)"
Surah Al-Baqarah, 236
Allah establishes there the divorce without a fixed due, and divorce occurs only in a valid marriage: Allah lifted the blame from one who divorces in a marriage with no mahr named, and divorce takes place only after marriage. The marriage without a named mahr is therefore permitted. Allah also says:
"O you who believe, when you marry believing women and then divorce them before you have touched them"
Surah Al-Ahzab, 49
This verse concerns divorce in a marriage with no mahr named, the proof being that Allah makes the mut'a obligatory there by His saying "provide for them" (Al-Ahzab, 49), and the mut'a (the consolation gift) is due only in a marriage with no named mahr. The marriage without mention of the mahr is therefore permitted.
Then comes the hadith of Uqba ibn Amir (may Allah be pleased with him). The Prophet (peace and blessings of Allah be upon him) said to a man: "Are you content that I marry you to so-and-so?" He answered yes. Then he said to the woman: "Are you content that I marry you to so-and-so?" She answered yes, and he married the one to the other. The man consummated the marriage without naming a mahr and without giving anything. He was among those who witnessed al-Hudaybiyya, and those who witnessed al-Hudaybiyya had a share at Khaybar. When death approached, he declared:
The Messenger of Allah (peace and blessings of Allah be upon him) married me to so-and-so, and I named no mahr for her nor gave her anything. I call you to witness that I give her my share of Khaybar as her mahr.Authentic hadith, narrated by Abu Dawud (2117) and al-Hakim in al-Mustadrak (2742)
She took a share and sold it for one hundred thousand. Mentioning both spouses is required in the contract because the purpose in marriage lies in the persons of the spouses themselves, not in the mahr, the compensation there being accessory. It differs from sale, whose intended object is the compensation: the mention of seller and buyer is therefore not required when the contract is concluded between their two agents.
It will be objected: the mahr is a legal obligation, so how can the marriage be valid with silence about it? Answer: its being obligatory does not condition the validity of the marriage; it serves to show the honor of its object. Mentioning the mahr is therefore not necessary to the validity of the marriage. If it is said that this claim requires a proof, we answer: the proof is Allah's saying cited above (Al-Baqarah, 236), by which He ruled the validity of divorce in the absence of any mention, and divorce occurs only in a valid marriage.
Divorce indeed occurs only in a valid marriage: it is thus known that omitting the mention of the mahr does not prevent the validity of the marriage (Bada'i' al-Sana'i' 2/274; al-Hidaya 1/204; al-'Inaya 4/472; al-Ikhtiyar 3/127; Mukhtasar al-Waqi'a 1/366-367; al-Jawhara al-Nayyira 4/317; al-Bahr al-Ra'iq 3/152; al-Taj wa-l-Iklil 2/593; Sharh Mukhtasar Khalil 3/273; al-Bayan 9/368-369; al-Najm al-Wahhaj 7/296; Mughni al-Muhtaj 4/362; al-Mughni 7/160; al-Insaf 8/227; Kashshaf al-Qina' 5/142-143; Sharh Muntaha al-Iradat 5/233).
The question: if the waiver of the mahr, its negation or the absence of any mahr is stipulated in the marriage contract, is the marriage valid? The majority of the jurists, namely the Hanafis, the Shafi'is and the Hanbalis, hold that it is: even if the two contracting parties stipulate the waiver of the mahr, its negation or no mahr, the marriage remains valid, by the verse of Al-Baqarah (236) cited above and the verse of Al-Ahzab (49), whose argument has already been set out.
Alqama and al-Aswad narrate from Abdallah ibn Mas'ud (may Allah be pleased with him) that a man came asking him about a man who had married a woman and then died without touching her and without naming a mahr for her. He said nothing and kept them a month, then he said: "I will give an opinion; if it is right, it is from Allah, and if it is wrong, it is from me: I consider that she has the mahr of women of her rank, neither less nor excess; the waiting period is upon her and she inherits." A man of the Ashja' then stood up and said: "The Messenger of Allah (peace and blessings of Allah be upon him) ruled thus in the case of Barwa' bint Washiq." Abdallah rejoiced at this and pronounced the takbir.Authentic hadith, narrated by Abu Dawud (2214), Tirmidhi (1145), Ibn Majah (1891) and Ibn Hibban in his Sahih (4100)
They then all agree: if the husband consummates, the mahr is due; if he does not and divorces her, she has the mut'a or half the mahr of her like, according to the difference to be set out later concerning the mufawwada bride, the one for whom the fixing of the mahr is delegated to the husband (Bada'i' al-Sana'i' 2/274; al-Hidaya 1/204; al-'Inaya 4/472; al-Ikhtiyar 3/127; Mukhtasar al-Waqi'a 1/366-367; al-Jawhara al-Nayyira 4/317; al-Bahr al-Ra'iq 3/152; al-Taj wa-l-Iklil 2/593; Sharh Mukhtasar Khalil 3/273; al-Hawi al-Kabir 9/472; al-Najm al-Wahhaj 7/326; Mughni al-Muhtaj 4/375; al-Dibaj 3/323; al-Mughni 7/183; al-Mubda' 7/167; Kashshaf al-Qina' 5/174; Sharh Muntaha al-Iradat 5/273; Matalib Uli al-Nuha 5/217).
The Malikis (and Imam Ahmad in a narration reported by the Shaykh of Islam Ibn Taymiyya) hold that if the two spouses contract the marriage stipulating the complete waiver of the mahr or its negation, the marriage is corrupt (fasid): it is annulled before consummation and established after it with the mahr of the like. Their proof: "Lawful to you are all others beyond these, that you seek by means of your wealth, living chastely, not in fornication" (An-Nisa, 24), and: "So give them their bridal due as an obligation" (An-Nisa, 24).
In Majmu' al-Fatawa (32/63), Ibn Taymiyya reports the dispute over this marriage: two positions exist in the madhhab of Ahmad and among others. The first: the marriage is invalid, like Malik's view. The second: it is valid and the mahr of the like is due, like the view of Abu Hanifa and al-Shafi'i. The holders of the first hold it to be the shighar marriage invalidated by the Prophet (peace and blessings of Allah be upon him), because it removes the mahr and makes one of the women the mahr of the other: this is Ahmad ibn Hanbal's explanation elsewhere in his words, and that of most of his early companions, while others validate the shighar marriage like Abu Hanifa. This second view is the closest to that principle, but it contradicts the text and the reports of the Companions: they invalidated the shighar marriage.
Comes the account of Ali (may Allah be pleased with him):
Fatima, daughter of the Prophet (peace and blessings of Allah be upon him), was sought in marriage. A freedwoman said to me: "Do you not know that Fatima is being sought in marriage?" "No," I replied, or "yes." She said: "Then ask for her for yourself." I said: "But what do I have to ask for her?" She kept encouraging me until I entered upon him, we venerating and magnifying him so much that, seated before him, I was as muzzled, unable to speak. "Do you have a need?" he asked me. I kept silent, and he repeated his question three times. "Perhaps you have come to ask for Fatima in marriage?" "Yes, O Messenger of Allah." "Do you have anything with which to make her lawful to you?" "No, by Allah, O Messenger of Allah." "What did you do with the coat of mail with which I equipped you?" "By Allah, it is a battered one worth only four hundred dirhams," I replied. "Go: I have married you to her. Send it to her so as to make her lawful by it."Narrated by al-Bayhaqi in al-Sunan al-Kubra (14351)
Ibn al-Qasim was asked: if the spouses say to the groom "we marry you to so-and-so without a mahr", he answered: if he consummates the marriage, it is established and she has the mahr of the like; if he does not, they are separated. "That is what I consider best, and it reached me from Malik." Others said: the marriage is corrupt absolutely. Others still: the marriage is established absolutely, before or after consummation, with the mahr of the like, and so it is with every corrupt marriage.
Al-'Adawi (may Allah have mercy on him) said: resembling its waiver is her handing him money on condition that he pay her a mahr: the marriage is then annulled before consummation and established after with the mahr of the like. He treated it at length. As for their words "they stipulated its waiver", they are to be understood thus: if they remained silent at the contract, or proceeded on a delegation by word, or on entrusting a third party with determining its amount, there is no corruption; and so it is (Hashiyat al-'Adawi 2/67; al-Ma'una 1/498; al-Taj wa-l-Iklil 2/581; Sharh Mukhtasar Khalil 3/626; al-Sharh al-Kabir with the gloss of al-Dasuqi 3/145; Tathbir al-Mukhtasar 3/20-21).
This Maliki position is the one preferred by the Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him): "What is established by the Book, the Sunna and the consensus is that marriage is concluded without fixing the mahr, that is, without measuring its amount, not with the negation of its existence. Allah said: "We already know what We have made obligatory upon them concerning their wives and those their right hands possess" (Al-Ahzab, 50): having permitted the Prophet (peace and blessings of Allah be upon him) to marry without a mahr, He obligated the others not to marry without a mahr, and the Quran indicates this elsewhere. There must therefore be a mahr: either named, or its fixing left to silence." (Majmu' al-Fatawa 29/344)
He also said: "The marriage is not binding when the negation of the mahr or a corrupt mahr is stipulated in it, for Allah obligated the mahr in it: marriage without a mahr is lawful to none but the Messenger. Whoever marries on condition that no mahr be due has not contracted the marriage Allah permitted, for Allah permitted the contract only to one who seeks by his wealth a chaste union, not fornication. Whoever seeks marriage without a mahr has not done what Allah made lawful, unlike one who holds the mahr necessary without measuring it: Allah says: "There is no blame upon you... and if you divorce them before you have touched them, though you specified for them an obligation" (Al-Baqarah, 236-237): this is the marriage of the known mahr, that is, the mahr of the like." (Majmu' al-Fatawa 24/126)
Imam Ibn Rushd (may Allah have mercy on him) said: as for its ruling, they agreed that it is a condition of validity and that agreement to omit it is not permitted, by "And give the women their dowers graciously" (An-Nisa, 4) and "So marry them with the permission of their families and give them their bridal due" (An-Nisa, 25) (Bidayat al-Mujtahid 2/14).
The jurists differ over the mahr: does it become due and obligatory by the contract itself, or is it established only by consummation? The Hanafis, the Hanbalis and the Shafi'is in one view hold that the mahr is due by the contract itself: the wife acquires the right to demand its payment. If the woman dies before consummation, the mahr of the like is taken from the husband; if the husband dies before consummation, she claims the mahr of the like from his estate.
Their proof: "Lawful to you are all others beyond these, that you seek by means of your wealth, living chastely, not in fornication" (An-Nisa, 24): Allah announces that He made lawful what is beyond that on condition of seeking by wealth, so no marriage is permitted without wealth. The original rule concerning bodies and souls is prohibition: permission is established only by this condition, and the condition being absent, the prohibition remains on the original rule.
Moreover, the ownership of marriage was not legislated for its own sake, but for ends that are reached only through the permanence of marriage and stability upon it, a permanence that holds only through the mahr being due from the contract itself. The causes that drive the husband to divorce, such as estrangement and harshness, must meet this brake: if the mahr were not due by the contract, the husband would rid himself of this ownership at the slightest harshness, there being no cost to dissolving it since he does not fear the obligation of the mahr, and the ends of marriage would not be attained.
It is further required that the benefits and ends of marriage be realized through harmony between the spouses, and harmony occurs only if the woman is dear and honored in the eyes of the husband. That honor requires closing every path of access to her except wealth of weight in his eyes: what is hard to obtain is precious in the eyes, which makes holding her precious; what is easy to obtain is held cheap, which makes holding her cheap. When she becomes cheap in the husband's eyes, estrangement overtakes her, harmony vanishes and the ends of marriage are lost. And the ownership established over her, in her person or in enjoyment, evokes abasement and humiliation: it must therefore be countered by wealth of weight, so that the abasement is compensated where the meaning lies.
The proof of our claim: when she demands from the husband the fixing of the mahr, it becomes due on him; if he refuses, the judge compels him; if he does not comply, the judge appoints someone in his place to fix the mahr. This is the proof of obligation before fixing, for fixing is an assessment, and it is impossible for the assessment of what is not obligatory to be obligatory. She may also confine herself until the mahr is fixed for her and delivered after the fixing: all of this proves that it is due by the contract itself (al-Mabsut 5/62; Bada'i' al-Sana'i' 2/274-275; al-Mughni 7/183; al-Mubda' 7/167-168; Kashshaf al-Qina' 5/174; Sharh Muntaha al-Iradat 5/273; Matalib Uli al-Nuha 5/217).
The Shafi'is within their school hold that the mahr is not due by the contract itself: were it so, it would be halved by divorce before consummation, whereas the Quran shows that she deserves only the mut'a. Moreover the mahr is her right: if she consents that it not be established, it must not be established, just as if she consents that it not remain, it does not remain. She cannot demand a mahr, for none became due to her by the contract, but she may demand that one be fixed for her, either by agreement of the two spouses or by the judge's ruling: after the fixing, the mahr becomes like the one named in the contract. Or the husband consummates the marriage: a mahr then becomes due to her by the consummation (al-Hawi al-Kabir 9/473; Sharh Sahih Muslim 9/213; al-Najm al-Wahhaj 7/328; Mughni al-Muhtaj 4/376; al-Dibaj 3/324; Tuhfat al-Muhtaj 9/100).
If she departs, the husband has no right to take back what she had received: she received it rightfully, what is received being a right due to her, and what is rightfully received admits no annulment. This is when the mahr is immediate, that is, when the woman is married against a dower payable at once (Bada'i' al-Sana'i' 2/288; Mukhtasar Ikhtilaf al-'Ulama' 2/285-286; al-Hidaya 1/211; Tabyin al-Haqa'iq 2/155; Sharh Fath al-Qadir 3/370; al-'Inaya 5/34-35; al-Jawhara al-Nayyira 4/343, 345; al-Bahr al-Ra'iq 3/189; Mukhtasar al-Waqi'a 1/371; al-Durr al-Mukhtar 3/143, 145; al-Taj wa-l-Iklil 2/576-577; Mawahib al-Jalil 5/158-159; Sharh Mukhtasar Khalil 3/257-258; al-Sharh al-Kabir with the gloss of al-Dasuqi 3/136-137; Tathbir al-Mukhtasar 3/12-13; Hashiyat al-Sawi 5/83, 87; al-Hawi al-Kabir 9/530-531; al-Najm al-Wahhaj 7/305; Mughni al-Muhtaj 4/365; Nihayat al-Muhtaj 6/390; al-Dibaj 3/313; al-Mughni 7/200; Matalib Uli al-Nuha 5/228).
Second case: the mahr is immediate and the husband has consummated the marriage. This situation has two types. The first type: he consummates with her consent, she being compliant.
The jurists differ: if the mahr is due, but the woman permitted the husband to consummate before receiving her mahr, may she, after the consummation, withhold herself until she receives her mahr, or is that then forbidden to her? The two companions of Abu Hanifa (Abu Yusuf and Muhammad), the Malikis in the well-known view, and the Shafi'is and Hanbalis within the school, hold that it is not permitted: she may neither abstain from him nor confine herself until she receives her mahr, and she keeps only the right to demand its payment, without confining herself.
The delivery indeed settled the compensation with the consent of the one who delivered herself: it is no longer permitted her to abstain, like the seller who delivered the merchandise. By a single consummation, or by a valid seclusion, she delivered the whole of the subject matter of the contract, willingly and with full capacity of delivery: her right of withholding falls like that of the seller who delivered, there being no doubt about her consent or her capacity. The proof that she delivered the whole: the subject matter of the contract in this chapter has the status of a determined body, which is why the whole of the mahr becomes fixed by a single consummation; yet it is known that the whole of the price is not fixed by the delivery of part of the subject matter. Repeated consummations are annexed to usage: nothing of the mahr corresponds to them.
Moreover: when the rulings of the contract attach to the consummation, they are specific to the first consummation, what follows it being accessory. The first consummation removed the ruling of withholding with respect to it: it must therefore remove it also with respect to its accessory, such as replacement.
Abu Hanifa, some Malikis and Ibn Hamid among the Hanbalis hold that in this case the woman has the right to withhold herself and abstain from the husband until he gives her her mahr. The mahr is indeed the counterpart of all the enjoyments taken in all the consummations occurring in this ownership, not only the first consummation: none of the benefits of the body may be vacated without a counterpart, out of honor for the body and display of its price. By withholding, she therefore refuses to deliver what has a counterpart, and the first consummation gave her the right to withhold him from the first until she takes her mahr, and likewise the second and the third.
Only, the mahr becomes fixed by a single consummation: it is existent and known, what lies beyond it being nonexistent and unknown. When the existent occurs, it necessarily cuts off and becomes a competitor, taking a share of the price: like the slave who commits an offence, whose first must be paid; if he commits a second, it competes with the first in the obligation to pay, likewise the third and the fourth without end, unlike the seller...
Second case: the mahr is deferred. The deferred mahr has several types. The first type: deferral to a known term was stipulated along with the consummation. The jurists of the four schools agree on the validity of a man marrying a woman against a mahr deferred to a known term with the consummation stipulated, for every valid contract over a body or a debt may be immediate or deferred, like sale. When the dower is deferred, she must deliver herself and may not withhold herself from the husband, for she consented to the deferral: having stipulated the consummation, he did not accept delay of his right of enjoyment.
The second type: the mahr is deferred to a known term without the consummation being stipulated. The jurists differ: if the man contracts with a woman naming her a known mahr to a known term, may she withhold herself until she receives it at the term? The majority of the jurists, namely Abu Hanifa and Muhammad, the Malikis, the Shafi'is and the Hanbalis, hold that she may not: by the deferral the woman consented to waiving her right over her person, the husband's right not falling for all that, like the seller who deferred the price losing the right to withhold the merchandise. It would differ were the deferral to a period unknown with gross ignorance: the deferral would then be invalid, the term not established, and the mahr would remain due.
Moreover: the mahr validly deferred has as its ruling that its delivery be after the delivery of the person. Advancing it would establish a right for her, since its early delivery confirms the counterpart requiring equivalence. By deferring it, she therefore waived her right over her person, and the husband's right does not fall, there being no waiver on his part and with his consent to its remaining. It is in this sense that the seller's right of withholding falls by deferring the price: so it is here.
Abu Yusuf holds that the woman may withhold herself, whether the period be short or long, known or unknown with approximate ignorance, like the ignorance of the time of harvest or of the vintage. The mahr has indeed as its ruling that its delivery precedes in every case the delivery of the person: determined or not, it must be advanced. When the husband accepts the deferral, that is consent to the delay of his right of receipt. It differs from the seller who defers the price: he may not withhold the merchandise, for it is not of the ruling of the price that its delivery necessarily precedes that of the merchandise; see the price as a determined body delivered together with the merchandise, so that the buyer's acceptance of the deferral is not a waiver of his right of receipt.
The third type: the term is known and has arrived. The jurists differ: if the woman was married against a mahr deferred to a known term and the term has arrived, may she thereafter withhold herself? Abu Hanifa and Muhammad, the Shafi'is in the sounder view, and the Hanbalis hold that she may not: the right of withholding fell by the deferral, and what has fallen admits no return, like the price in a sale. Her delivery was obligatory upon her and settled before receipt: she first consented that the mahr weigh upon his liability, and delivery was due from her before receipt, so nothing is lifted at the due date.
Abu Yusuf, and the Shafi'is in the view contrary to the sounder one, hold that she may withhold herself: after the due date she is entitled to demand as at the outset; and according to Abu Yusuf, since she may withhold herself before the due date, she may the more so after it (Bada'i' al-Sana'i' 2/289; Mukhtasar Ikhtilaf al-'Ulama' 2/285-286; al-Hidaya 1/211; Tabyin al-Haqa'iq 2/155; Sharh Fath al-Qadir 3/370; al-'Inaya 5/34-35; al-Jawhara al-Nayyira 4/343-345; al-Bahr al-Ra'iq 3/189; Mukhtasar al-Waqi'a 1/371; al-Durr al-Mukhtar 3/143-145; al-Hawi al-Kabir 9/531; al-Najm al-Wahhaj 7/305; Mughni al-Muhtaj 4/365; Nihayat al-Muhtaj 6/390; al-Dibaj 3/313; al-Mughni 7/200).
As for the Malikis, they said: if the determined mahr, such as a slave named specifically, a house or a commodity, or the due dower, is not delivered to her, she may withhold herself from consummation until he delivers it, for she is a seller, and the seller has the right to withhold his goods until he receives the price. If the dower is not determined, she may withhold herself from consummation after entry, provided no consummation nor enabling has occurred. But if she has delivered herself to him, whether he consummated or not, withholding is no longer permitted her, whether the husband be solvent or insolvent: she can only demand the mahr and take it to the judge as a debt. Ibn al-Qasim stated this expressly, while Muhammad ibn al-Muwwaz said she may withhold herself, the first view being the correct one (al-Taj wa-l-Iklil 2/576-577; Mawahib al-Jalil 5/158-159; Sharh Mukhtasar Khalil 3/257-258; al-Sharh al-Kabir with the gloss of al-Dasuqi 3/136-137; Tathbir al-Mukhtasar 3/12-13; Hashiyat al-Sawi 5/83, 87).
The third case: the mahr is in part due and in part deferred. When a man marries a woman against a mahr in part due and in part deferred to a known term, it is permitted to her, by consensus, to refuse to deliver herself until she receives the due part, but she is not permitted to refuse to deliver herself to receive the deferred part. The ruling of the due part is therefore that of a wholly due mahr, and that of the deferred part that of a wholly deferred mahr, according to the previous difference among the scholars (previous sources).
The jurists differ: if the husband becomes insolvent with regard to the mahr, may the woman dissolve the marriage? The Hanafis, as well as the Shafi'is and the Hanbalis in one of their views, hold that if the husband becomes insolvent with regard to the dower, the woman has no right to dissolve the marriage, whether before or after consummation. Imam al-Tahawi (may Allah have mercy on him) said: "The insolvent one with regard to the dower." Our companions answered: "They are not separated," and such is the view of al-Thawri (Mukhtasar Ikhtilaf al-'Ulama' by al-Tahawi 2/367).
The majority of the jurists, namely the Malikis, the Shafi'is within their school and the Hanbalis within their school (with a detailed regime among them), hold that if the husband becomes insolvent before consummation, the woman may dissolve the marriage because of that insolvency. If he becomes insolvent after the consummation, the dissolution no longer takes place according to the Malikis and according to one view of the Shafi'is and the Hanbalis, whereas the Hanbali madhhab, like one Shafi'i view, grants the dissolution both before and after the consummation.
The Malikis say: if he married a woman against a dower and then wishes to consummate before paying her dower, that is not permitted to him without her consent, and she may withhold herself until he gives her her dower; if he has known wealth, it is taken from him and handed to her. If he becomes insolvent before consummating while the dower is due, the judge grants him term after term as he sees fit, with no limit other than the effort of assessment proportioned to what may be hoped of his wealth, trade or otherwise. If he becomes able, failing which they are separated and she pursues his estate for half the dower as a debt upon him; if she finds the means, she takes it.
She has no maintenance from him, for she is not in his waiting period; and were he to pay her maintenance before the union, that would not prevent her from withholding herself on account of her due dower. If he consummated and then becomes insolvent with regard to the dower or its balance, they are not separated and she may not withhold herself from him: the insolvent one is granted a term proportioned to his situation and to what may be hoped of his wealth through trade or craft, with no bounded or fixed term, that being left to the judge's assessment (al-Kafi 1/255; al-Tafri' 2/12-13; al-Tabsira 5/2016-2017).
Among the Shafi'is, the question is detailed by several authors, such as al-Mawardi and al-'Amrani. Al-'Amrani (may Allah have mercy on him) said: when the man becomes insolvent with regard to the dower, does she acquire the option to dissolve the marriage? Three ways are reported, transmitted by Ibn al-Sabbagh.
If the woman married a man knowing of his insolvency with regard to the mahr, and it is argued that she acquires the option when she did not know of it, does she acquire the option here? Two views, reported by Ibn al-Sabbagh. The first: no, for she consented to the delay, unlike the maintenance, which is not owed by the contract; moreover, the insolvent one can discharge the maintenance through earning and effort, not the dower. The second: yes, for he may become solvent after the contract, so that her knowledge of his insolvency is not consent to the delay of the dower, like the maintenance.
If she consented to remain with him after his insolvency, the option then vanishes, the right to the dower not being renewed, unlike the maintenance: such is the doctrine of the Baghdadi scholars. Al-Mas'udi said in al-Ibana: if she consented to his insolvency and then retracted, she may withhold herself before the consummation, not after. And if she consented to remain after his insolvency, her right of dissolution falls, but she is not bound to deliver herself: she may withhold herself until her dower is delivered, for her consent abolishes only the dissolution, not the withholding.
The dissolution for insolvency moreover takes place only through the judge, for it is a ruling by assessment: it resembles the dissolution for defect (al-Bayan 9/453-454; see al-Umm 5/91; al-Hawi al-Kabir 11/461, 463; al-Iqna' 2/488).
The Hanbalis say: if the husband becomes insolvent with regard to the due mahr before the consummation, the dissolution is granted to her, for access to the counterpart of the contract becomes impossible before the delivery of the counter-value, like the buyer's bankruptcy before the delivery of the merchandise. If he becomes insolvent after the consummation, the dissolution is likewise granted to her within the school, for access to the counterpart is impossible for her, resembling the buyer's bankruptcy. In one view, the dissolution does not take place, building on the view that denies her the right of withholding her person, like one who goes bankrupt towards a debt owed to another. The dissolution takes place only by a judge's ruling, for it requires assessment.
Except that if she consented to remain after his insolvency, the dissolution is precluded; likewise if she married him knowing of his insolvency, her consent precludes it: such is the madhhab, it has also been said that the dissolution is granted to her. The one who consented to remain in hardship, or married him knowing of it, keeps the right to withhold herself until she receives her due mahr, for there was not established for him the right of withholding her (al-Mughni 7/201; al-Muharrar fi-l-Fiqh 2/38; al-Furu' 5/222; al-Mubda' 7/177; al-Insaf 8/312, 314; Kashshaf al-Qina' 5/183).
Whoever, of the two spouses or the guardian, swears about his own act swears about the very decision, for it is the basis of the oath. Whoever swears about the act of another, like the heirs, swears about the negation of knowledge, not about the decision (Kashshaf al-Qina' 5/171-172; Sharh Muntaha al-Iradat 5/268; Matalib Uli al-Nuha 5/211; Manar al-Sabil 3/21).
The jurists differ when the two spouses, or their heirs, or the heirs of one of them along with the surviving other, differ over the amount of the mahr: the wife claims it to be one thousand dinars and the husband says "it is five hundred dinars". Is the husband's word accepted, the wife's, or that of whichever of them is closer to the truth?
The Hanafis say: if they differ over the mahr, whether a debt upon the liability or a body due from the conclusion of the marriage, before or after the consummation, or after the divorce and the consummation, as when she says "you married me for two thousand dinars" and the husband answers "I married you for one thousand dinars", the word of whoever produces proof is accepted; if both produce proof, the woman's proof is accepted, for she is more capable of establishing. Absent proof, they mutually swear, and whoever refuses to swear loses the case. The mutual oath does not annul the marriage, for its effect is the annihilation of the naming, which does not prevent the validity of the marriage, the marriage being valid without naming; a mahr of the like is however ruled for her.
If the like equals or exceeds her claim, her word is retained, the appearance favoring her; if it equals or is below the husband's claim, his word is retained; if it falls between the two, the mahr of the like is ruled, the excess not being established in view of his oath, nor the reduction in view of hers. The naming having fallen through the mutual oath, the mahr of the like is considered as if no naming truly existed, and one begins with the husband's oath as with the buyer, for he is the denier. If the husband divorced her before consummating and they then differ, the husband's word is retained for half the mahr; it has also been said that she has the mut'a of her like, for the mut'a is due after the divorce as the mahr of the like before it, and would be ruled in the same way.
All of this, with Abu Hanifa and Muhammad: the word in claims is that of the one attested by the appearance, and the appearance attests the one whose word accords with the mahr of the like, it being the original obligation in the chapter of marriage. Abu Yusuf said: the word is the husband's before and after the divorce, for the woman claims an excess that the husband denies, and the word is that of the denier, with his oath, unless he advances something the appearance belies. The valuation of the benefits of the body is indeed a necessary given, and whenever the assertion of an amount becomes impossible, it is not heeded (al-Ikhtiyar 2/147; al-Hidaya 1/212; al-Bunaya 5/195; al-'Inaya 5/39, 41; Tabyin al-Haqa'iq 2/156; al-Bahr al-Ra'iq 3/196; al-Nahr al-Fa'iq 2/260-261; Hashiyat Ibn Abidin 3/148; Durrar al-Hukkam 4/141-142).
Al-Kasani (may Allah have mercy on him) specifies: if the mahr belongs to the absolute prices and they differ over its amount, the husband saying "I married you for one thousand dirhams" and the woman answering "for two thousand", or the husband "for one hundred dinars" and the woman "for two hundred", they mutually swear, beginning with the husband's oath. If he refuses to swear, he gives her two thousand; if he swears, the woman swears: if she refuses, she receives one thousand; if she swears, the mahr of the like is ruled for her. If it equals or exceeds her claim, she obtains what she said; if it equals or is below the husband's word, she obtains what he said; if it falls between the two, she obtains the mahr of the like. Such is the view of Abu Hanifa and Muhammad.
Abu Yusuf said: no mutual oath; the word is the husband's in all of this, unless he advances something utterly objectionable. In sum, Abu Hanifa and Muhammad rule the mahr of the like and refer the matter to it, whereas Abu Yusuf does not rule it, but retains the husband's word with his oath, save manifest objectionableness. They differed over the meaning of the objectionable: some say it is claiming to have married the woman for less than ten dirhams, an amount objectionable by law, since no lawful mahr is less than ten, a transmission reported from Abu Yusuf. Others say: claiming to have married her for that with which her like is not customarily dowered, an opinion reported from Abu al-Hasan, objectionable by custom; this is the correct interpretation, for they differ over the amount of a named mahr and thus agree on its principle, whereas less than ten has never been known as a lawful mahr without difference among our companions.
It is also reported from Abu Yusuf, concerning two contracting parties differing over the price while the merchandise has perished: the word is the buyer's so long as he advances nothing objectionable. His argument: the word in law is that of the denier, and the denier is the husband, the woman claiming against him an excess of mahr that he denies; the word is therefore his with his oath, as elsewhere. Proof: in hiring, when the contracting parties differ over the named wage, no ruling is made at the rate of the like, but the word is the hirer's with his oath; so it is here.
The argument of the two imams: in law and reason, the word is that attested by the appearance, and the appearance attests the one whose word accords with the mahr of the like. In established customs, people measure the named amount against the mahr of the like and build upon it: the woman and her guardians accept no reduction, so that the naming is an assessment of the mahr of the like. The appearance therefore attests the one attested by the like: if it is two thousand, she obtains them, the appearance favoring her; if it exceeds two thousand, no addition, for she consented to the reduction; if it is one thousand, she obtains one thousand, the appearance attesting the husband; if less, no reduction, the husband having consented to the excess; if it falls between the two claims, the mahr of the like is ruled for her, the original obligation, the naming being but an assessment abandoned only upon proof of the naming being established, failing which one returns to the original obligation.
They mutually swear because each is claimant from one side and denier from the other: the husband, for the woman claims against him one thousand more that he denies; the woman, for the husband claims against her the delivery of her person against the delivery of one thousand, which she denies. Each being thus claimant and denier, they mutually swear, by the word of the Prophet (peace and blessings of Allah be upon him):
The oath is upon the one who denies.Words of the Prophet (peace and blessings of Allah be upon him)
One begins with the husband's oath, for he denies more strongly or earlier than the woman: he denies before and after the delivery of the person, whereas the woman, after delivering herself, no longer denies. And before the delivery he denies first, the woman receiving the mahr first and then delivering herself, then demanding it from him, he who denies: his oath therefore comes first. The mutual oath being required and begun with the husband: if he refuses to swear, he is condemned to two thousand, for refusal to swear is a proof deciding pecuniary claims without difference among our companions. He has no option either to give her dinars instead of the dirhams, for the naming of two thousand is established by the refusal to swear, which counts as acknowledgment, and the named amount admits no substitution without the woman's consent. If he swears, the woman swears: if she refuses, the husband is condemned only to one thousand, with no option for him, for the same reasons.
If she swears, the mahr of the like is ruled: if it is one thousand, she obtains one thousand from the husband, with no option for him, the naming of one thousand having been established by their concordance; if it is two thousand, she obtains two thousand, with an option for him to take one of the two without the other, the naming of only one of the two having been established by their concordance; if it is one thousand five hundred, she obtains one thousand five hundred, with no option for him on the thousand, their concordance having established it, but with an option on the five hundred, whose naming was not established: that sum follows the regime of the mahr of the like. The contract is not dissolved after the mutual oath according to most of the scholars (Bada'i' al-Sana'i' 2/305-306).
The Malikis say: if the spouses differ over the amount of the mahr, its description or its kind, there are two situations: the dispute occurs before the union or what stands in its place, such as death or divorce, or after the union. If they dispute before the union over the amount, one saying ten and the other twenty, or over its description, she saying "for a Byzantine slave" and he "for a Zanj slave", or she "for muhammadiyya dinars" and he "rather yazidiyya", or over its kind, she saying "in gold" and he "in silver", or she "for a slave" and he "for a garment", or she "for a horse" and he "for a donkey", both swear if they are of age and competent, otherwise their guardians, the wife beginning, each swearing over his claim. The marriage is dissolved by a divorce if neither death nor a divorce occurred, the dissolution depending on the judge's ruling; likewise if both refuse to swear, whether they resemble each other in their words or not. If one of the two is accredited, his word is retained with his oath, and if the other refuses to swear, there is no dissolution.
All of that concerns the amount or the description. As for the kind, the dissolution takes place in every case, whether they both swore, one of them, or both refused, whether accredited or not, according to the more probable view, unless one of the two accepts the other's word. The dissolution of the marriage by complete mutual oath resembles that of sale, but it occurs only by a judge's ruling, not by the mere oath: it takes effect outwardly and inwardly, both refusing to swear counts as their swearing, and the judge gives victory to the oath-taker against the refuser. The wife begins with the oath, for she is the seller of her body. If the dispute occurs after the union, the divorce or the death, the husband's word is retained with an oath without condition, whether accredited or not; if he refuses to swear, the wife or her heirs upon death swear, and the word is given to them for the amount or the description, even without resemblance; if they refuse, the husband's word is retained. If the dispute is over the kind after the union, the death or the consummation, the mahr of the like is due to her (al-Taj wa-l-Iklil 2/620-621; Sharh Mukhtasar Khalil 3/299; al-Sharh al-Kabir with the gloss of al-Dasuqi 3/193, 195; Tathbir al-Mukhtasar 3/76-77; Hashiyat al-Sawi on the Sharh al-Saghir 5/196-197).
The Shafi'is say: if the spouses differ, before or after the consummation, whether the marital bond remains or has ended, over the amount of a named mahr, what the husband claims being less, he saying "I married her for one thousand" and she "rather for two thousand", or over its description encompassing the kind, liquidity or deferral and term, she saying "for one thousand dinars" and he "rather one thousand dirhams", or she "for one thousand sound ones" and he "rather broken ones", or she "for a sum immediate" and he "rather deferred", or she "for a deferral of one year" and he "rather two years", with no proof for either or with proofs conflicting, they mutually swear by analogy with sale, each being claimant and claimed against. One begins with the husband, his position being the stronger after the mutual oath, the body remaining his.
If a mahr of the like became due for the corruption of the naming and the two differ over its amount, there is no mutual oath: the husband's word is accepted with his oath, for he is indebted and the principle is the discharge of his debt from any excess. They also mutually swear in the previous dispute when the heirs of both, or the heir of one and the other, dispute, the heir standing in the place of his deceased. But the spouses swear about the decision in negation and affirmation, whereas the heir swears about the decision in affirmation and the negation of knowledge, by the rule of swearing about the act of another: the husband's heir will say "by Allah, I do not know that my deceased married her for one thousand, he married her for five hundred", and the wife's heiress will say "by Allah, I do not know that he married my deceased for five hundred, he married her for one thousand".
After this mutual oath, the named mahr is dissolved, having become unknown through the oath, and a mahr of the like becomes due, even if it exceeds her claim: the mutual oath having been sworn, the restitution of the body becomes required, yet it is impossible, so that its counter-value is due, like the perished merchandise (al-Bayan 9/446; al-Najm al-Wahhaj 7/363-364; Mughni al-Muhtaj 4/396; Tuhfat al-Muhtaj 9/145-146; al-Dibaj 3/344-345).
The Hanbalis say: if the spouses differ, or their heirs, or one of them with the heirs of the other, or their two guardians, or the husband's guardian, such as that of a minor, with the adult wife, with the wife's guardian or with her heirs, over the amount of a dower, he saying "I married you for twenty" and she "rather for thirty", or over its determined body, he saying "this slave" and she "rather this slavegirl", or its description, he saying "a Zanj slave" and she "rather a fair-skinned Byzantine", or its kind, he saying "in silver" and she "in gold", or over that by which the dower is acquired, she claiming a consummation or a seclusion that he denies, the word of the husband, his guardian or his heir is retained with his oath, even if what he claims is not the mahr of the like. He indeed denies what is claimed against him and enters the general scope of the word of the Prophet (peace and blessings of Allah be upon him): "but the oath is upon the one against whom the claim is made", the principle being his innocence of what is claimed against him.
Whoever of the two spouses or guardians has the oath directed at him and swears about his own act swears about the decision, the basis of the oath; unless the oath is directed at the act of another, in which case he swears about the negation of knowledge, which applies only if he did not attend the contract. If he attended it, he may swear about the decision regarding the amount of the dower, its body, its kind and its quality. A narration from Imam Ahmad retains the word of whichever of the two claims the mahr of the like, the appearance attesting the truth of his claim, as the one resembling the denier is preferred in other claims: if the woman claims the mahr of the like or less, her word is accepted; if the husband claims the mahr of the like or more, his word is accepted, the appearance attesting the claimant, with no difference between before or after the consummation, before or after the divorce.
If the husband claims less and she more, one reverts to the mahr of the like: such is the consequence of accepting the word of whoever claims it, without oath, before the judge, for it is a claim within a marriage resembling the claim within the principle of marriage in all situations, whether the husband's word or hers accords with the like or not. According to Abu al-Khattab, the oath is due, for it is a dispute over that whose counter-value is permitted: the oath is therefore required in it as in other pecuniary claims. In al-Mughni: if the husband claims less than the mahr of the like and she more, one reverts to the mahr of the like, and our companions mention no oath; it is more fitting that they mutually swear, for what each of the two says is capable of being true, and one turns from it only by oath, like the denier in other claims; being equal in the absence of proof, the mutual oath is instituted, as in the dispute of two contracting parties. A third narration from Imam Ahmad: they mutually swear; if one swears and the other refuses, what the latter said is established; if both swear, the mahr of the like becomes due (al-Mughni 7/179; al-Kafi 3/112; al-Mubda' 7/163; al-Insaf 8/289; Kashshaf al-Qina' 5/171-172; Sharh Muntaha al-Iradat 5/268; al-Rawd al-Murbi' 2/329; Matalib Uli al-Nuha 5/210; Manar al-Sabil 3/21).
The jurists further differ: the spouses agree on the mahr and its amount, but differ over its receipt, the husband claiming to have paid it and the wife denying having received it. Should the wife's word be accepted, the husband's, or should one revert to custom? The majority of the jurists, namely the Hanafis, the Shafi'is and the Hanbalis within the school, hold that the wife's word is retained with her oath that she did not receive it, for the principle is the absence of receipt and the persistence of the mahr, whether before or after the consummation, before or after the wedding.
Their proof is the word of the Prophet (peace and blessings of Allah be upon him):
The proof is upon the claimant, and the oath upon the one who denies.Words of the Prophet (peace and blessings of Allah be upon him)
The husband being claimant, the proof falls upon him; the wife being denier, she swears. Moreover, the word of one upon whose liability a right of another is established is not accepted to discharge him, as with debts. Custom cannot be taken into account, people's habits therein differing (Mukhtasar Ikhtilaf al-'Ulama' 2/286; al-Hawi al-Kabir 9/500-501; al-Muhadhdhab 2/62; al-Bayan 9/468-469; al-Mughni 7/181; al-Mubda' 7/165; al-Insaf 8/293; Kashshaf al-Qina' 5/172; Sharh Muntaha al-Iradat 5/268; al-Rawd al-Murbi' 2/329; Matalib Uli al-Nuha 5/210; Manar al-Sabil 3/21). A narration from Imam Ahmad accepts the husband's word with his oath (al-Mubda' 7/165).
The Malikis say: if the spouses dispute over the delivery of what was due of the dower, the husband saying "I delivered it to you" and she answering "you did not deliver it, it remains with you", there are two situations, before or after the union. Before the union, the wife's word is retained with her oath if she is of age and competent; otherwise her guardian swears, and if her guardian refuses to swear, he is held liable for having, by his refusal, lost what was due of the dower. After the union, the husband's word is retained with his oath, the norm being that the woman does not deliver her person before receiving her dower; he swears if he is master of his affairs, otherwise his guardian.
That word of the husband is nevertheless subject to four conditions:
As for the dispute over the deferred part of the dower, before or after the union, the word is hers as with other debts: whoever claims the delivery discharges it only by proof or by the creditor's acknowledgment (al-Taj wa-l-Iklil 2/624; Sharh Mukhtasar Khalil 3/300; al-Sharh al-Kabir with the gloss of al-Dasuqi 3/197; Tathbir al-Mukhtasar 3/81; Hashiyat al-Sawi on the Sharh al-Saghir 5/203-204).
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said, concerning the divergence over the receipt of the mahr: the view retained is that if the prevailing habit in such debts or bodies is effective receipt, the word of the one whom custom supports is retained; that accords with our principles and those of Malik in the conflict between principle and custom, and the appearance is that it is preferred. One distinguishes the indication of the general situation from that of the particular situation: if the wife was poor at the time of the contract and is later found with one thousand dirhams, he saying "this is the dower" and she answering "I took it from another", without specifying and without her having received such a sum, it is the analogue of the conditional clause, over which two views exist; likewise the maintenance and clothing for her. In all these cases, if she points to a possible way of receipt, such as receipt from the husband, the word is given to her; otherwise not (al-Fatawa al-Kubra 4/557).
The jurists then differ: if the husband gives his wife a gift, such as gold, a necklace or other, then claims that it was part of the mahr, which she denies, saying "it was a gift", the Hanafis answer that the word is his with his oath, except for what is prepared to be eaten. He is indeed the one effecting the transfer of ownership and thus knows better the intention to transfer, as if he said "I entrusted this thing to you as a deposit" and she answered "you gave it to me as a present": the appearance attests him, for he strives to extinguish what weighs upon him. Except for food prepared to be eaten, such as roast, cooked meat and fruits that do not keep: the word is hers by legal preference (istihsan), custom running in favor of it being gifted, so that the appearance attests her, unlike what is not prepared to be eaten, such as honey, ghee, walnuts and almonds.
It has also been said: what is owed by him, such as a veil or a coverlet and the like, he may not count within the mahr, for the appearance belies him; unlike what is not owed by him, such as leather socks and bed linen. If the word is the husband's, the goods revert to him if they still exist, and she reverts to being owed her mahr, for it is a sale against the mahr, of which the husband does not have sole enjoyment; unlike what was of the kind of the mahr. And if the goods have perished, she does not revert.
If she says "it is part of the mahr" and he "it is a deposit", the word is hers if it is of the same kind as the mahr, and his if it is of another kind. If the husband sends something to his wife and her father sends something to her, then he claims that what he sent was of the mahr: the father may take back what he sent if it came from his own wealth and still exists; if it came from the daughter's wealth with her consent, he may not take it back, for it is a donation from her to her husband, mentioned in al-Dhakhira.
In Fatawa Ahl Samarqand: a man married a woman and sent her gifts, and the woman compensated him in return; then she was led to him in marriage, then he divorced her and claimed "I only sent you a loan for use", seeking to take back his gifts, while the woman sought to take back her compensation: the word is his in the ruling, for he denied the transfer of ownership. When he takes back his goods from her, she may take back what she had compensated him with.
Al-Zayla'i (may Allah have mercy on him) reports from al-Dhakhira: a man equipped his daughter, married her off, then claimed that what he had handed to her was his own wealth, kept with her as a loan for use; she says "it is my wealth, you equipped me with it", or the husband says so after her death: the word of the two spouses is retained against that of the father, the appearance attesting the daughter's ownership, custom requiring that the outfit be handed to her as property. Ali al-Sughdi reports that the word is the father's, that being deduced from his attitude; al-Sarakhsi mentions likewise, and some shaykhs followed him. In al-Waqi'at: if custom is manifest in favor of what resembles that in the outfit, as in our lands, the word is the husband's; if it is shared, the father's.
If the wife released her husband from the mahr or gave it to him, then dies after a while, and the heirs say "she released him on her deathbed", which the husband denies: the word is his. It has been said that it should be the heirs', the husband claiming the lapse of an established right while they deny it. The apparent view: the heirs had no right, it having belonged to the deceased, and they claim it for themselves while the husband denies: the word is therefore his (Tabyin al-Haqa'iq 2/158-159; see al-Mabsut 5/195-196; Bada'i' al-Sana'i' 4/29; al-Hidaya 1/213-214; al-Jawhara al-Nayyira 4/345; al-Bahr al-Ra'iq 3/199; al-Durr al-Mukhtar 3/153-154; al-Fatawa al-Hindiyya 1/322).
The Shafi'is say: if the husband buys jewelry, brocade or other ornament for his wife and adorns her with it, it does not become her property by the mere act of adornment, but only by offer and acceptance between them, or by his intention of donation. If she and her husband differ between gift and loan for use, she claiming that he gave her the jewelry and brocade, he denying and asserting that he placed them with her as a loan, the husband is believed, the principle being the absence of transfer of ownership. His heir resembles him: if she and the husband's heir so differ, the heir is believed.
If the husband gives her money after the contract, she saying "what you gave me is a gift" and he answering "rather, what I gave you is the dower upon my liability", the husband is believed with his oath, even if what was given is of another kind than the dower. What the husband gives his wife as sulh, reconciliation, that is, what is given to appease her anger, or as sabahiyya, what is given on the morning of the marriage, also called subayha, as customary in some lands, becomes hers only by express declaration or intention of donation. It has been said that she becomes its owner: in Fatawa Ibn al-Khayyat, if the husband gives his wife on that occasion after the contract, she becomes its owner with no need of offer or acceptance; likewise what the man gives the woman on the morning of the marriage, called subhiyya in our custom, or what he gives her when she is angry or when he takes another wife: the woman becomes its owner upon delivery (al-Najm al-Wahhaj 5/539; al-Bayan 9/469; Mughni al-Muhtaj 4/399; I'anat al-Talibin 4/135, 137).
If the betrothed gives money to his bride before the contract saying "I make it part of the dower that will become due by the contract, or of the outfit and enabling that will follow", and she answers "rather it is a gift", the retained view credits her, for no indication corroborates his intention here (I'anat al-Talibin 3/643-644).
Imam al-Mawardi (may Allah have mercy on him) reports al-Shafi'i's word: "If the woman says 'what I received is a gift' and the husband says 'rather it is a mahr', she has admitted holding wealth and claimed its ownership: the word is his." Al-Mawardi comments that it is thus when the husband hands money to his wife and they differ, she saying "I received it as a gift, and my dower remains" and he "rather, I handed it as dower": the word is the husband's, whether the sum be of the same kind as the dower or of another, and whether it be customary to gift the wife such a thing or not.
Malik said: if the sum is of the kind the husband is accustomed to gift the wife, such as a garment, a veil, perfume or jewelry, the word is hers with her oath, custom being taken into account, and she may claim her mahr. Al-Mawardi objects that this is an error, for wealth does not transfer to its holders by mere claims; were she to claim the gift after receiving her mahr, her word would not be accepted, and so it is before receipt, and the reply to the customary argument has already been given.
The word being the husband's: if she claims that he expressly declared the gift to her, she may have him swear, and the word is his with his oath; if he refuses to swear, the goods are returned to her, and she wins her case if she swears. If she claims no express declaration but says "he intended it without saying it", no oath falls upon him, for the gift is not valid by mere intention, so no oath binds him over an invalid claim of gift. The word being the husband's, what she received is of two kinds: either of the kind of her dower, dirhams against a dower in dirhams, the sum then coming in deduction of the dower; or of another kind, dirhams against a dower in dinars, the dinars being owed to her and the dower weighing upon him. His word is not accepted that she took the dinars in place of the dower: if he claims so, she has him swear (al-Hawi al-Kabir 9/501-502).
The position of the Malikis and the Hanbalis on whether the husband's gift to his wife counts within the mahr has already been set out above.