The cases in which the dower lapses entirely

This part belongs to the full section: All sections of this part.

The cases in which the dower lapses entirely

The jurists agreed that the dower lapses entirely in certain situations, and disagreed about others. The first is the following.

A. Annulment of the marriage before consummation

The majority of the jurists of the four schools, Hanafis, Malikis, Shafi'is and Hanbalis, state that separation occurring on the part of the wife before consummation, whether the annulment of the marriage for a defect of the husband, or a separation not from her act but because of her, such as annulment for her own defect, causes the designated dower to lapse ab initio, as well as the validly fixed dower after the contract and the dower of the like. If she annuls, she chose separation: it is as if she destroyed the counter-value before delivery, so the counter-value lapses, just as if she destroyed the sold item before delivery. If he annuls because of her defect, it is as if she herself annulled, just as if she apostatized or annulled through manumission, a defect, or because she breastfed a minor wife of his (Bada'i' as-Sana'i' 2/336; 'Uqdat al-jawahir al-thamina 2/482-483; al-Bayan 9/404-405; Rawdat at-talibin 5/149; an-Najm al-wahhaj 7/341; Mughni al-muhtaj 4/384; ad-Dibaj 3/332; Tuhfat al-muhtaj 9/115-117; Sharh az-Zarkashi 2/407; al-Qawa'id al-fiqhiyya, p. 382; al-Mubdi' 7/161; al-Insaf 8/279-280; Kashshaf al-qina' 5/166; Manar as-sabil 3/18).

Imam al-Kasani said: "The dower lapses entirely for four causes. Among them: separation without divorce before consummation and before seclusion. Any separation without divorce occurring before consummation and seclusion causes the entire dower to lapse, whether it comes from the woman or the husband, for separation without divorce is an annulment of the contract, and the annulment of the contract before consummation entails the lapse of the whole dower: the annulment cancelled the contract from its root, as if it never existed" ("Bada'i' as-Sana'i'" 2/295). Among the examples of this kind of separation among the Hanafis is the choice made by the woman herself of the defects of the husband: the tied tongue (al-jabb), impotence (al-'unna), castration and hermaphroditism (Bada'i' as-Sana'i' 2/336; al-Hidaya 2/27; al-Ikhtiyar 3/142; al-Jawhara al-nayyira 4/352-353; al-'Inaya 6/90; al-Lubab 2/51; al-Fatawa al-hindiyya 1/523). Ibn Shas said: "The entire dower does not lapse before insertion (al-masis) except through annulment, or through her choice to return him for his defect; her choice to return him for her own defect is disputed, for he is then deceived" ('Uqdat al-jawahir al-thamina 2/482-483).

The Shafi'is said: if the separation comes from her or is caused by her, because she embraces Islam, apostatizes, annuls the marriage through manumission or a defect, breastfeeds a minor wife of his, or he annuls the marriage for her defect, the entire dower lapses. The private part was indeed destroyed before consummation by a cause from her side, and what faces it lapses, like the sold item destroyed before its receipt (al-Bayan 9/404-405; Rawdat at-talibin 5/149; an-Najm al-wahhaj 7/341; Mughni al-muhtaj 4/384; ad-Dibaj 3/332; Tuhfat al-muhtaj 9/115-117).

The Hanbalis said: every separation coming from the wife before consummation causes her dower to lapse: her Islam under a disbeliever and his sending her back; her breastfeeding of someone whose breastfeeding dissolves her marriage, as if she breastfed a minor wife of his; her own being breastfed in her childhood by his mother or sister; her annulment for the defect of the husband, such as cleft palate or scrofula; her annulment for his insolvency regarding the dower, maintenance or otherwise; her manumission while she was his slave; his annulment for her defect; his annulment for the absence of a stipulated quality, as if he stipulated her a virgin and she proved previously married. If the annulment occurs before consummation, her dower lapses, as well as her comfort gift if she was married without a designated dower or with an invalid dower, for she destroyed the counter-value before delivering it and the entire compensation lapses, like the seller who destroys the sold item before delivering it.

Likewise, her annulment for a valid condition stipulated in the contract: if he marries her on condition of not taking another wife, of not taking a concubine, or of not removing her from her home, and he fails to fulfill it, she has neither dower nor comfort gift. The separation by mutual imprecation (li'an) causes the entire dower to lapse, for the annulment comes from her: it only occurs upon the completion of her imprecation ("al-Mughni" 7/143-145; Sharh az-Zarkashi 2/407; al-Qawa'id al-fiqhiyya, p. 382; al-Mubdi' 7/161; al-Insaf 8/279-280; Kashshaf al-qina' 5/166; Manar as-sabil 3/18).

Imam Ibn Qudama said: "If he annuls before insertion (al-masis), there is no dower; if he annuls after it and claims he did not know, he swears, the annulment is permitted to him, the dower is upon him, and it is recovered from the one who deceived him." The discussion divides into four parts:

• First part: if the annulment occurs before consummation, no dower is due, whether it comes from the husband or the wife: this is the view of al-Shafi'i. If it comes from either of them, the separation comes from the wife's side and her dower lapses, as if she annulled through the breastfeeding of another wife of his; if it comes from him, it is because he annulled for a defect in her which she concealed from him: the annulment is therefore as if it came from her.
• Second part: if the annulment occurs after consummation, the dower is due to her, for the dower is created by the contract and settles through consummation, without lapsing through a later event; this is why it does not lapse through her return to him, nor through an annulment from her side, and the designated dower is due. The qadi mentioned in "al-Mujarrad" two narrations: the designated dower is due, or the dower of the like, based on the two narrations concerning the invalid contract. Al-Shafi'i said that what is due is the dower of the like, for the annulment refers back to the contract, which becomes like an invalid contract. The Hanbali answer: it is a separation after consummation in a valid marriage containing a valid designated dower, so the designated dower is due, except for the one whose defect was the cause, like the woman manumitted while her husband is a slave. The proof of the marriage's validity is that it took place with its conditions and pillars: it is valid as if he had not annulled it, and its rulings attach to it, the establishment of chastity, lawfulness for the first husband, and the rest of the rulings of validity; if it were invalid, it would not have been permitted to keep it and its annulment would have been obligatory. What they advanced is not correct: the annulment takes effect at its time, without retroactive effect, and what occurred under one quality cannot have occurred under another; likewise if a sale is annulled for a defect, the contract does not become invalid and the increase does not belong to anyone but the buyer; and if the sold item was a slave girl whom he entered upon, her dower does not become due: the same applies to marriage.
• Third part: if he knew of the defect at the time of the contract or after, and then contentment or an indication from his side occurred, such as consummating the marriage or enabling her for intercourse, the annulment is not established for him, for he consented to relinquishing his right, like the buyer who knows the defect and consents to it; if they disagree about the knowledge, the word is that of the denier, the principle being non-existence.
• Fourth part: the dower is recovered from the one who deceived. Abu Bakr said that two narrations are reported: with recovery, or without recovery. The correct view is that the madhhab rests on a single narration, with recovery: Ahmad said: "I used to hold Ali's view, who forgave him, then I inclined to Umar's view: if he marries her and discovers leprosy or vitiligo, she has the dower upon consummation, and her guardian guarantees the dower." This proves that he returned to this view, held by az-Zuhri, Qatada, Malik and al-Shafi'i in the old position. It is reported from Ali that there is no recovery, and this is the view of Abu Hanifa and of al-Shafi'i in the new position, for he guaranteed what he consumed the substitute of, namely intercourse, without recovery from another, like the defective object he consumed. The Hanbali proof is what Malik reported from Yahya ibn Sa'id, from Sa'id ibn al-Musayyib: Umar ibn al-Khattab said: "Any man who marries a woman afflicted with madness, leprosy or vitiligo and touches her: she has her dower, and it is for the husband a debt for which her guardian answers." He was indeed deceived in the marriage by what establishes the option, so the dower falls upon him, as if he had been deceived about the free status of a slave girl.

"Any man who marries a woman afflicted with madness, leprosy or vitiligo and touches her: she has her dower, and it is for the husband a debt for which her guardian answers"Umar ibn al-Khattab, reported by Malik from Yahya ibn Sa'id, from Sa'id ibn al-Musayyib

Consequently, if the guardian knew, he bears the debt; if he did not know, the deception comes from the woman and the entire dower is recovered from her. If they disagree about the guardian's knowledge: an established proof of his admission of knowledge burdens him; otherwise his word is retained with his oath. Az-Zuhri and Qatada said: if the guardian knew, he bears it; otherwise, he is made to swear by Allah the Great that he did not know, and then it falls upon the husband. The qadi said: if he is the father, the grandfather, or one permitted to see her, the deception comes from him, whether he knew or not; if he is one not permitted to see her, such as the paternal cousin or the freedman, and he knew, he bears it; if he denies it and no proof of admission is established, his word is retained and the recovery is against the woman for the entire dower: this is the view of Malik, who specifies, however, that if the woman returns what she took, he leaves her what may lawfully be given to her, lest she become like a donee. Al-Shafi'i has two views, that of Malik and that of the qadi.

The Hanbalis answer concerning the guardian who did not know that the deception does not come from him, as with the paternal cousin; and concerning the recovery of the entire dower, that the man was deceived by her, as if the guardian had deceived him. Their claim that "it is not hidden from whoever sees her" is not correct: the defects of the private part cannot be inspected and he is not permitted to see it, nor the defects under the clothes; he is therefore like the one who does not see her, except in madness, which hardly escapes the sight of the one who sees her, unless she is absent. As for the recovery concerning the dower, it has for its part another cause: it amounts to what she would have given him, and not to the gift.

Ruling: if he divorces her before consummation and then learns that she had a defect, half of the dower is upon him without recovery, for he consented to bearing that half. If she dies or he dies before knowing of the defect, the complete dower is due, without recovery from anyone: the cause of the recovery is the annulment, which did not occur, and the dower settled through death ("al-Mughni" 7/143-145).

B. The wife's conversion to Islam before consummation

There is no disagreement among the jurists: if the husband consummated the marriage and then embraced Islam, the dower is due from him. Ibn Abd al-Barr said: "There is no disagreement on its obligation in case of consummation" ("al-Istidhkar" 5/523). The disagreement concerns the wife who embraces Islam before consummation: does her dower lapse or not?

The Hanafis said: if the wife embraces Islam and her husband refuses to do so, if it is before consummation, half of the dower is upon him; if it is after, she has the entire dower, for it is confirmed by consummation and does not lapse afterwards through separation. Imam Abu Ja'far al-Tahawi said: "Our companions said: if one of the two spouses refuses Islam after the presentation, in what does not confirm him, they are separated: if it is the husband who refuses before consummation, half of the dower is upon him; if it is the woman, she has nothing: this is the view of al-Thawri" ("Mukhtasar ikhtilaf al-ulama" 2/360-361; al-Hidaya 1/220; al-'Inaya 5/102-103; al-Jawhara al-nayyira 4/358; al-Lubab 2/53-54).

The majority of the jurists, Malikis, Shafi'is and Hanbalis, hold that if the woman embraces Islam under a disbeliever before consummation, her dower lapses, for her private part was destroyed before consummation by a cause from her side, and what faces it lapses, like the sold item destroyed before its receipt (al-Bayan 9/404-405; Rawdat at-talibin 5/149; an-Najm al-wahhaj 7/341; Mughni al-muhtaj 4/384; ad-Dibaj 3/332; Tuhfat al-muhtaj 9/117; al-Mughni 7/211; al-Kafi 3/97; al-Mubdi' 7/160; al-Insaf 8/278; Kashshaf al-qina' 5/166; Manar as-sabil 3/18).

Ibn Abd al-Barr reported that Ibn Abi Uways heard Malik say: "Our position concerning the woman who embraces Islam while her husband is a disbeliever, before he enters upon her, is that she has no dower, designated or not, and that her husband has no return over her, for she has no waiting period. If he entered upon her, he has a return over her if he embraces Islam during her waiting period, and she has her complete dower: whatever remains of her dower owed by him is due to her, whether he embraces Islam during her waiting period or not." Malik said about the Zoroastrian woman married by a Zoroastrian and then one of the two embracing Islam without consummation, with a designated dower or not: she has no dower if she embraced Islam before him and he refused, or if he embraced Islam before her and she refused, in both ways. Abu Umar comments that according to Malik she has no return if the husband does not embrace Islam during her waiting period: the people of knowledge liken the Islam of the husband or the wife to divorce, and subordinate the return after Islam to consummation ("al-Istidhkar" 5/523-524; at-Tamhid 12/30).

C. The wife's apostasy before consummation

The majority of the jurists, Hanafis, Malikis in the madhhab, Shafi'is and Hanbalis, hold that if the wife apostatizes (may Allah preserve us from it) before consummation, she has no dower, for she withheld her private part by her apostasy and becomes like the seller who destroys the sold item before its receipt. If she apostatizes after consummation, she has the entire dower, for it settled through consummation (al-Jawhara al-nayyira 4/362-363; al-Lubab 2/56-57; at-Tawdih 4/78; Mawahib al-jalil 5/131; al-Hawi al-kabir 11/482; al-Bayan 9/404-405; Rawdat at-talibin 5/149; an-Najm al-wahhaj 7/341; Mughni al-muhtaj 4/384; ad-Dibaj 3/332; Tuhfat al-muhtaj 9/117; al-Mughni 7/211; al-Kafi 3/97; al-Mubdi' 7/160; al-Insaf 8/278; Kashshaf al-qina' 5/166; Manar as-sabil 3/18). Abd al-Malik ibn al-Majishun, of the Malikis, held for his part that if the woman apostatizes before consummation, half of the dower is due to her (Mawahib al-jalil 5/131).

D. The wife's remission of the dower (al-ibra')

The majority of the jurists, Hanafis, Shafi'is and Hanbalis, state explicitly the validity of the wife remitting her husband the dower he owes when it is a debt, for remission applies only to a debt. The Hanafis said: the remission of the entire dower, before or after consummation, when the dower is a debt, causes the whole dower to lapse, for remission is a waiver, and a waiver emanating from the one entitled to waive, upon an object admitting waiver, produces the lapse (Bada'i' as-Sana'i' 2/295). The Shafi'is said: if the dower is a debt owed by her husband and she remits it to him, then he divorces her before consummation, the remission is valid and the dower lapses, with no recovery against her according to the sound view of the madhhab, for she received no wealth from him and acquired nothing; like two witnesses who testify to a debt upon which the judge rules, then the condemned remits the claimant, then the witnesses retract: they owe the condemned nothing (al-Bayan 9/434-439; Rawdat at-talibin 5/174-179; Kifayat al-akhyar, p. 425; an-Najm al-wahhaj 7/355; Mughni al-muhtaj 4/393; Tuhfat al-muhtaj 9/138-139; ad-Dibaj 3/340).

The Hanbalis said: if she remits her dower and then he divorces her before consummation, the remission is valid, the husband is freed of it, without requiring her acceptance, but the husband has a recovery against her for half: the return of half the dower to the husband by divorce indeed has not the same cause as that for which the dower was owed to him originally, like the one who remits someone a debt and then becomes creditor of an equivalent debt for another cause, the two not cancelling each other. If she remits half of it, or gifts him half of the dower, and the husband then divorces her before consummation, he has a recovery for the remaining half, for he found intact half of what he gave her as dower, as if she had not given it to him.

If a woman married without a designated dower, she who married on whatever she wished or on what Zayd wished or the like, remits the dower, it is valid; likewise the remission of the dower by the woman who married without a dower, or by the one for whom an invalid dower was designated, such as wine or an unknown object: the remission is valid before and after consummation, for the cause of its obligation has occurred, namely the marriage contract, like the pardon of retribution after the wound and before healing. If the husband then divorces the woman married without a designated dower or the one for whom an invalid dower was designated, after the remission and before consummation, the divorcing husband has a recovery for half of the dower of the like, which is what the contract created; it is as if she had remitted him the designated dower and he divorced her and everything lapsed. It is also said that she has the comfort gift. If the remission concerned half and he then divorced her before consummation, he has a recovery for half of the dower of the like remaining after the half lapsed by the remission, without comfort gift according to the first view; according to the second, the half does not lapse. If the one who had remitted the dower apostatizes before consummation, the husband has a recovery against her for the entire dower, just as he would for the half if it had been divided ("al-Mughni" 7/204-205; al-Kafi 3/92; Kashshaf al-qina' 5/162-173; Mutalib uli an-nuha 5/199; Manar as-sabil 3/16-17).

Imam Ibn Qudama said: if the woman pardons her husband her dower, or part of it, or gives it to him after receiving it, while she is capable of disposing of her wealth, that is permitted and valid, with no known disagreement, due to the words of Allah:

"unless they give it up willingly"

Surah al-Baqarah, 237

referring to the wives; and His words:

"Then if they willingly give up to you anything of it, take it in satisfaction and ease"

Surah an-Nisa, 4

Allah designated by other than the word dower what the woman gives to her husband. Alqama said to his wife: "Give me of the lawful and pleasant," meaning her dower. Can the woman retract what she gave to her husband? Two narrations are reported from Ahmad, with a disagreement among the people of knowledge already mentioned.

Ruling: if she is divorced before consummation and the dower has been divided between them, it is necessarily either a debt or a specific object. If it is a debt, it lies either in the liability of the husband who has not delivered it to her, or in hers, if she received it and disposed of it or it perished in her hands; in both cases, the creditor may relinquish his right by saying: "I relinquish my right to the dower, I let it lapse, I remit you of it, I grant you its ownership, I gift it to you, or I leave it to you": whatever the wording, the dower lapses and the other is freed of it, even without acceptance, for it is the relinquishment of a right which needs no acceptance, like the relinquishment of retribution, of pre-emption, of manumission and of divorce. This is why remission by the deceased is valid without acceptance, and if the other retracts, it does not return and he is freed of it.

If he wishes to pardon the dower remaining in his own liability, the pardon is not valid: if the dower is in the husband's liability, he is already freed of it by divorce; if it is in the wife's, only the half owed to the husband is in it, the woman's half being her right which she has disposed of. The whole was indeed her property which she disposed of, and the husband's ownership of the half is renewed only by his divorce: nothing else is therefore established in her liability. Whichever of the two wishes to complete the dower for its owner must renew a fresh gift to him. If the dower is a specific object in the hand of one of them, the one holding it may pardon it to the other: it is a gift, valid through the wording of pardon, of gift or of granting ownership, but not through the wording of remission or waiver, and it requires receipt where receipt is required; if one pardons the other what is not in his hand, it is valid through these wordings and requires the passage of a time allowing receipt, if the gift is of what requires receipt ("al-Mughni" 7/196-197).

E. The woman's gift of her dower to her husband

The generality of the jurists state that if the wife gifts her dower to her husband, it is valid and her dower lapses entirely according to the sound view among them. Imam al-Qurtubi said that the scholars agreed: the woman in control of her affairs who gifts her dower to her husband, it takes effect against her with no possibility of retraction; but Shurayh allowed retraction, arguing by the words of Allah: "Then if they willingly give up to you anything of it": yet if she is seeking restitution, she could not be content with it willingly. Ibn al-Arabi replied that this statement is invalid: she was indeed content and he has consumed it, so she has nothing to say; for what is meant is not the physical form of consuming, but a metaphor for lawfulness: this is evident ("al-Jami' li-ahkam al-Qur'an" 5/25).

The Hanafis said: if the woman gifts the entirety of the dower before receipt, whether a specific object or a debt, and after receipt if it is a specific object, it is valid and her dower lapses. Imam al-Kasani summarized the matter: the dower is either a specific object (a designated thing whose designation is valid) or a debt (what lies in liability, such as dirhams and dinars, designated or not, measures and weights, an animal such as the slave or the horse, or cloth such as the cloak of Herat); the state is prior or posterior to receipt, and she gives the whole or a part. If she gives the whole dower before receipt and he then divorces her before consummation, he has nothing against her according to the three companions, whether the dower is an object or a debt. Zufar said he has a recovery against her for half if it is a debt, and al-Shafi'i adopted this view. Zufar's argument: by the gift, she disposed of the dower by waiver, and the waiver of a debt amounts to its consumption, which implies receipt, as if she had received and then given.

The Hanafi reply: what the husband obtains by divorce before receipt returned to him from her through a cause that does not entail liability; he obtains half of the dower which returned to him through the gift, and the gift does not entail liability, so he has no recovery for that half. If she gives after receipt: if the gift is a specific object he received and which she then gave to him, he has no recovery, for what she obtains by divorce before consummation is half of that very object, which returned to him through a contract not entailing liability. If the dower was a debt in liability, an animal or cloth, likewise, no recovery, for what she obtains by divorce is half of that very thing. If it was dirhams or dinars, designated or not, or measures and weights other than dirhams and dinars, which she received and part of which she gave before the divorce, he has a recovery against her for the equivalent of half, for what is owed by divorce is not the very thing given but its equivalent, as shown by the choice left to her in payment: what returns is therefore not the very object owed by divorce, as if she had given other wealth, hence the recovery for the equivalent of half the dower. Zufar holds that for designated dirhams and dinars, received and then given before the divorce, there is no recovery, for in his view they become designated by the contract and by annulment like goods; among the Hanafis, they become designated neither by the contract nor by the annulment.

If the dower was a debt of which she received the whole and then gave a part, the husband may recover half of what was received, for he may recover if she had given the whole, a fortiori a part. If she received half and then gave the other half, or gave the whole and he divorced her before consummation, Abu Hanifa holds that he has no recovery, and Abu Yusuf and Muhammad hold that he has one for a quarter of the dower. Their argument: what the husband obtains by divorce before consummation is half of the dower; if she received half, he obtains that half in undivided share in his liability and in what she received, half of the half (a quarter of the whole) being in his liability and the other in what she received; but if she only gives after the divorce, no recovery, for his claim was set off by what he owes her, and if she gives, his right remains in half of what she received, namely the quarter. Abu Hanifa's argument: what the husband obtains by divorce before consummation is what lies in his liability, as shown by the fact that without the gift he would have no recovery; what was in his liability returned to him through a cause not entailing liability, the gift, hence no recovery.

If the dower was a slave girl who gave birth after receipt or yielded a benefit requiring compensation, or a tree that bore fruit or developed a defect, and she then gave it and he divorced her before consummation, he has a recovery for half of its value, for the husband's right detached from the thing through these events. If the increase concerned her own body and she gave herself and he divorced her, he may obtain its guarantee according to Abu Yusuf and Abu Hanifa, against Muhammad, for the attached increase does not prevent division in half in their view, but prevents it in his. If she sold the dower or gave it against compensation and he divorced her, he has a recovery for the equivalent of half of what has an equivalent, and for half of the value of what has none: the dower returned to the husband through a cause entailing liability, so the recovery is established, as if she sold it to a stranger and the husband then bought it from that stranger; if she sold before receipt, she owes half of the value on the day of the sale, for the wealth entered her liability through the sale; if she received and then sold, half of the value on the day of receipt, for it entered her liability through the receipt ("Bada'i' as-Sana'i'" 2/295-296).

The Malikis said: the wife in control of her affairs who gifts her designated dower to her husband before consummation, or gives him that with which he will marry her and he acts accordingly, the gift is valid, but he is compelled to pay her from his wealth the minimum dower before consummating the marriage, namely a quarter of a dinar or three pure dirhams, for collusion on abandoning the dower is feared, which would strip the private part of the dower entirely. Nothing is upon him if he divorces before consummation, as long as she has not received the dower; if she received it and then gave it, he is not compelled to pay its minimum, as with a gift after consummation. If she gives her husband the whole or part of her dower after consummation and he then divorces her, she has no recovery. If she gives part of her dower before consummation, the remaining part constitutes the dower: if it reaches a quarter of a dinar, the three pure dirhams or the equivalent, no issue; if it is less, he is compelled to complete it if he wishes to consummate, otherwise he divorces and gives her half of what remains after the gift, as if he had married her from the outset with less than the legal minimum dower.

Unless she gives it in return for the permanence of companionship: the gift is then not as if nonexistent. If the woman gives her dower or part of it to her husband, before or after consummation, in return for the permanence or the goodness of companionship, and he then divorces her or the marriage proves invalid and is annulled before her purpose is achieved, the gift is not as if nonexistent but is returned to her and she takes it back from him, as if she had given her husband wealth other than the dower in return for the permanence of companionship and the marriage proved invalid: she has a recovery against him for what she gave, her purpose not having been achieved, a fortiori if he divorced by choice. This applies if the separation is near; if it is distant enough that her purpose has been achieved, no recovery; in between, recovery in proportion, unless the separation comes from an oath she did not intend: then no recovery, against al-Lakhmi. The same applies to what the husband gave her after consummation: according to Asbagh, if he gave her something before consummating, he has nothing, even if he finds her intact, for the gift reached him; if he gave her something after consummation and the marriage is annulled by an event, he may take back what he gave, for he gave it against the stability of the situation and companionship; if the annulment occurs after two long years or more, he has nothing, even if he finds her intact, for what was given to him has settled and he benefited from it: the annulment is then like a divorce occurring after the fact.

As for the prodigal woman who gives her wealth to a man so that he marries her through her guardian and he does so: the marriage is established, but he must pay her from his wealth the equivalent of what she gave and return it to her, for her gift is invalid; if he married her with a dower whose merit was proven, he must pay her its equivalent, provided what she gave reaches the dower of the like or exceeds it; if it is less, it apparently behooves him to complete her dower of the like, for none other than the father may marry his ward without the dower of the like (Sharh Mukhtasar Khalil 3/288-289; at-Tahbir 3/62-63).

The Shafi'is said: if the wife gifts her husband her designated dower and he divorces her before consummation after receiving it, does he have a recovery against her? Two views: the more apparent among the generality is that he has a recovery for half of its compensation, equivalent or value, for the dower returned to him through a contract, which does not prevent him from recovering half of its compensation, as if he had bought it from her or she had given it to a stranger who then gave it to the husband; the second is that he has no recovery, for what he obtains by divorce was advanced to him before its term and is no longer owed at its term, like the deferred debt paid before its due date. If she gave him the dower before receiving it: two paths, no recovery at all, or the madhhab contains two views, whether she received it or not. If the dower was a debt owed by her husband which she remitted to him and he then divorced her before consummation, the remission is valid, the dower lapses and he has no recovery according to the sound view of the madhhab.

If he had dowered her a debt which she received and part of which she gave, two views, as for the gift of the object; it is also said he has a recovery for the quarter definitively. If she received half of the dower and then gave the other half before the divorce: if one holds that there is recovery in case of a gift of the whole dower, he has here too a recovery for half; if one holds no recovery in that case, two views here: in "al-Umm", al-Shafi'i held that he has no recovery, for he only recovers half, and that half was advanced to him; in "al-Imla'", he held that he recovers half of the remainder, for if she had given him the whole, he would have no recovery; if she gave half of it, that belongs to her right and his, their right being in undivided share over the whole. If one holds this last view, three manners of recovery are advanced: recovering the remaining half, for half is owed to him and he found it; recovering half of the remaining half and the value of half of the gift, their right being in undivided share over the whole, the gift being as if destroyed; or he chooses between recovering the remaining half, or half of the remaining half and half the value of the gift, his right having been apportioned. If the wife gives her dower to her husband or remits it to him and then apostatizes before consummation, the recovery is for the entire dower, like the recovery of half upon divorce, for he is entitled to the recovery of the whole upon her return to him as he is entitled to the recovery of half upon divorce (al-Hawi al-kabir 9/521-523; al-Muhadhdhab 2/59; al-Bayan 9/434-439; Rawdat at-talibin 5/174-179; Kifayat al-akhyar, p. 425; an-Najm al-wahhaj 7/354-355; Mughni al-muhtaj 4/393; Tuhfat al-muhtaj 9/138-139; ad-Dibaj 3/340).

The Hanbalis bring the gift of the dower back to the remission with the consequences already detailed: if she gives her dower to her husband or remits it to him and he divorces her before consummation, it is valid, her dower lapses and the husband has a recovery against her for half. They add: if a stranger pays the dower gratuitously on behalf of the husband, and the dower then lapses through the woman's return or is divided through a divorce before consummation, the recovery of the dower belongs to the husband, for the stranger gave it to the husband by paying it on his behalf; when the right returns for a cause other than the first, it returns to the husband, as if he had paid it from his own wealth.

If the husband concludes a mutual release (khul') with her for half of her dower before consummation, it is valid and the entire dower returns to him: half through the divorce, half through the release as compensation. If he concludes the release before consummation for the equivalent of half the dower remaining in his liability while she has not received it, it is valid and the entire dower lapses from him: half through the divorce, half through compensation, wherever it is found according to its conditions. If the woman says to her husband, before consummation and before receipt of the dower: "Release yourself from me for what is delivered to me of my dower," or "Release yourself from me on condition that you do not sell my dower," and he acts accordingly, the release is valid, for it amounts to her requesting release for half of the dower, and the husband is freed of the whole: half through the release, half through his having made it his compensation. If he concludes the release before consummation for the equivalent of the entire dower remaining in her liability, or releases himself with her entire dower, the release is valid for issuing from its rightful people in its proper place: he has a recovery for half and the entire dower lapses from him ("al-Mughni" 7/204-205; al-Kafi 3/92; Kashshaf al-qina' 5/162-173; Mutalib uli an-nuha 5/199-212; Manar as-sabil 3/16-17).

Imam Ibn Rushd said: "They disagreed, in this chapter, about the woman who gifts her dower to her husband and is then divorced before consummation: Malik held that he has no recovery against her, and al-Shafi'i that he has a recovery for half of the dower. The cause of the disagreement is whether the half owed to the husband by divorce lies in the very object of the dower or in the woman's liability: those who place it in the object say he has no recovery, for he received the entire dower; those who place it in the woman's liability say he has a recovery even if she gave it to him, as if she had given him other wealth. Abu Hanifa, in this question, distinguished between receipt and non-receipt: if she received it, half is owed to him; if she did not receive it before giving, he has nothing, as if he saw the right in the object as long as there was no receipt, and then in the liability" ("Bidayat al-mujtahid" 2/19). The ruling of the woman's gift to her husband, of the gift of her dower, and of her right of retraction was set out in detail in the book of gifts.