Islamic Fiqh > Marriage and family > Mahr (dowry): status, mention and limits > Cases where the equivalent mahr falls or stands
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Updated on 24 September 2026 at 7:46 PM
The dower of the like (mahr al-mithl) is the dower due to the woman when no valid dower has been designated for her. The jurists detailed its cases: those on which the schools agree, those over which they differ, then the situations in which the designated dower lapses entirely, and finally the remission and the gift of the dower by the wife to her husband. Here is the conclusion of this chapter.
The jurists mentioned situations in which the dower of the like becomes obligatory by consensus, and others over which they differ. Here they are in detail.
A. Marriage without a designated dower
The jurists of the four schools and others agree on the validity of the marriage of the woman married without a designated dower (al-mufawwada). According to the majority, contrary to the Malikis as previously mentioned, the marriage remains valid even if the spouses stipulate in the contract the waiving of the dower, its negation, or that there be no dower, due to the words of Allah:
"No blame attaches to you if you divorce women you have not touched, nor specified for them an obligation"
Surah al-Baqarah, 236
Allah established the divorce of a woman without a designated dower, and divorce only occurs in a valid marriage. He thus removed the blame from the one who divorces in a marriage without a designated dower, and divorce only comes after marriage: the validity of marriage without designation is therefore proven.
Alqama and al-Aswad reported that Abdallah ibn Mas'ud (may Allah be pleased with him) was asked about a man who married a woman and then died without consummating the marriage nor designating a dower for her. Ibn Mas'ud remained silent and made them wait a month, then said: "I give my opinion: if it is correct, it is from Allah; if it is wrong, it is from me. I consider that she has the dower of women like her, no less and no more, that she observes the waiting period, and that she has a share of inheritance." Then a man, al-Ashja'i, stood up and said: "The Messenger of Allah (peace and blessings of Allah be upon him) judged in the case of Barwa' bint Washiq in exactly this manner," and Abdallah rejoiced at this and pronounced the declaration of greatness (takbir).
"The Messenger of Allah (peace and blessings of Allah be upon him) judged in the case of Barwa' bint Washiq in exactly this manner"Authentic hadith, reported by Abu Dawud (2214), at-Tirmidhi (1145), Ibn Majah (1891) and Ibn Hibban in his "Sahih" (4100)
The reason is that the purpose of marriage lies in the two spouses themselves, not in the dower: this is why the mention of the two spouses is required in the contract, the counter-value being only accessory. Marriage differs in this from sale, whose purpose is the counter-value, so that the mention of the seller and buyer is not required there when the sale takes place between their two agents (Bada'i' as-Sana'i' 2/274; al-Hidaya 1/204; al-'Inaya 4/472; al-Mughni 7/183; Kashshaf al-qina' 5/174; Mutalib uli an-nuha 5/217).
Imam Ibn Abd al-Barr (may Allah have mercy on him) said: "The Muslim scholars agreed that no one may have intercourse with a private part given to him without his owning the person, nor have intercourse in a marriage without a designated dower, whether a debt or cash; the one who marries without a dower must not consummate before designating one; if consummation takes place, the dower of the like becomes obligatory on him" ("al-Istidhkar" 5/408).
Ibn al-Qattan al-Fasi said: "The woman who was entered upon without a designated dower receives, if intercourse occurred, the dower of women like her, no less and no more, with no dispute among the people of knowledge on this" ("al-Iqna' fi masa'il al-ijma'" 3/1221-1222, no. 2233). Imam Ibn Hazm said: "They agreed that every woman entered upon in a valid marriage without a designated dower has the dower of her like" ("Maratib al-ijma'", p. 69). Shaykh al-Islam Ibn Taymiyya said: "The scholars agreed: whoever marries a woman without fixing a dower for her, his marriage is valid and the dower becomes due to her if he consummates; if he divorces her before consummation, she has no dower, but she has the comfort gift (mut'a) according to the text of the Quran" ("Majmu' al-fatawa" 32/62-63).
The majority of jurists, namely the Hanafis, the Malikis according to the most famous view, the Shafi'is and the Hanbalis, hold that if the designation of the dower is invalid (an unknown object, a forbidden object such as wine or a pig, or what cannot validly constitute a dower) and the husband consummates the marriage or dies, the dower of the like becomes due to the wife for the full amount it reaches. The woman's private part is in fact obligated by the contract and she cannot retrieve it; she is therefore redirected to its value, which is the dower of the like. This is like one who buys a slave against a garment: if the slave dies in his hands and the seller returns a defective garment, restitution of the thing itself having become impossible, he owes the value of the slave.
The original counter-value in this matter is indeed the dower of the like, for it is the value of the woman's private part; one only deviates to the designated dower if the designation is valid and constitutes an assessment of that value. If the designation is invalid or wavering, the assessment is no longer valid, and one returns to the original obligation; likewise, a sale of a thing that has a value is guaranteed by that value, not by the price fixed.
If the husband divorces his wife before consummation, half of the dower of the like is due to her according to the Shafi'is and the Hanbalis in the madhhab; according to the Hanafis, she is entitled to the comfort gift (mut'a).
Imam Ibn Qudama said: "If he divorces her before consummation, she has half of the dower of the like, and this is what al-Shafi'i said. The companions of opinion (the Hanafis) said: she has the comfort gift, for if he had not designated a dower for her, she would have had the comfort gift; likewise if he designated an invalid dower, for such a designation is as if it did not exist" ("al-Mughni" 7/170-171; see also Bada'i' as-Sana'i' 2/277; Bidayat al-mujtahid 2/21; al-Hawi al-kabir 9/394-396; al-Bayan 9/374-375; Mughni al-muhtaj 4/369-370; Kashshaf al-qina' 5/148; Manar as-sabil 3/7).
The qadi (Abu Ya'la) mentioned in "al-Jami'" that there is no difference between the one who did not designate a dower and the one who designated a forbidden one such as wine, or an unknown one such as a garment. Two views are reported there: the first is that she has the comfort gift if she is divorced before consummation, for the rescission of the contract entails the removal of the counter-value it created, as in sale; they only left half of the designated dower in suspense on account of their mutual agreement, and what the two agreed upon takes precedence. The second is that she has half of the dower of the like, for what the marriage contract created is halved by divorce before consummation, and the dower of the like was indeed created by the contract: it is therefore halved like the designated dower.
Al-Khirqi made a distinction: half of the dower of the like in the case of an invalid designated dower, the comfort gift in the case of the woman married without a designated dower, and this is also the madhhab of al-Shafi'i. The woman married without designation in fact was content to live without a counter-value and her private part returned to her intact; imposing half of the dower on her would either combine the two rights (comfort gift and dower) or remove the comfort gift expressly established in the text, and both are invalid. As for the woman who stipulated a dower for herself and accepted nothing less than a counter-value that was not delivered to her, the compensation of what she missed becomes due to her: the dower of the like, or half of it before consummation. For the origin is the obligation of the dower of the like by the contract, as shown by its settling through consummation and death, and this principle is only overridden in the case of the woman married without designation by the text concerning her.
However, the Malikis according to the most famous view and the Hanbalis according to one narration declare invalid the marriage whose dower is a thing whose ownership is forbidden, such as wine, a pig or a free person. They specify that if this is discovered before consummation, the marriage is annulled and she has nothing; if it is discovered after consummation, she has the dower of the like ("al-Ishraf 'ala nakt masa'il al-khilaf" 3/350-351; Bidayat al-mujtahid 2/21; Mawahib al-jalil 5/186; Sharh Mukhtasar Khalil 3/262; al-Sharh al-kabir ma'a hashiyat ad-Dasuqi 3/145; at-Tahbir 3/20; al-Ifsah 2/152).
The jurists of the various schools hold that if the marriage is invalid (a mut'a marriage, a shighar exchange marriage, absence of guardian or witnesses, or any other cause) and it is annulled before consummation, the woman has no dower at all. But if the husband consummated the invalid marriage, the dower becomes due. Imam Ibn Qudama said: "The dower is due to the woman married by a valid contract, the woman entered upon in an invalid marriage, and the woman entered upon by mistake, with no disagreement that we know of" ("al-Mughni" 7/209).
The disagreement then concerns these questions: is the dower of the like due, or the designated dower if one exists? Does the dower of the like reach its full value, or is it capped at the amount of the designated dower?
The Hanafis said: the designation has no effect in an invalid marriage, so the designated dower does not follow from it, for it is not a true marriage; but if consummation takes place, the dower of the like becomes due, and this by the act of intercourse and not by the contract ("Bada'i' as-Sana'i'" 2/287). Imam al-Kasani added that the invalid marriage has no ruling before consummation; after it, rulings attach to it: the establishment of lineage, the obligation of the waiting period, and the obligation of the dower. The principle is that the invalid marriage is not truly a marriage, due to the absence of its legal locus, namely ownership: the benefits of the woman's private part are attached to the parts of the body, and the free person, in all his parts, is not a locus of ownership, for freedom is a complete disposal of oneself that ownership excludes.
Al-Kasani continues: the Sharia removed the consideration of what excludes ownership in the valid marriage, out of necessity, and in the invalid marriage after consummation, out of the necessity of averting the legal punishment, of protecting lineage through the establishment of descent and the waiting period, and of protecting the honored private part from use without fine or penalty that would obligate the dower. The contract is thus deemed concluded for the benefits consumed by this necessity; before the benefits are consumed, that is, before intercourse, there is no necessity, and thus no contract.
Among the proofs of the obligation of the dower of the like after consummation is the hadith of the Messenger of Allah (peace and blessings of Allah be upon him):
"Any woman who marries herself without the permission of her guardians, her marriage is invalid; if he consummates the marriage with her, she has the dower of her like"Authentic hadith, cited earlier in similar wording
The Prophet (peace and blessings of Allah be upon him) fixed for her the dower of the like in what has the status of an invalid marriage, linking it to consummation, which indicates that its obligation is attached to it. The disagreement then concerned the assessment of this dower:
The Malikis said: the invalid marriage, whose invalidity lies either in the contract alone or in the contract and the dower together, whether the invalidity is unanimously recognized or disputed, may be annulled before or after consummation, and in each case a designated dower may or may not exist. If it is annulled after consummation and a valid designated dower exists, the designated dower is due to the wife if it is lawful. If no designated dower exists, as in pure shighar, or if the designated dower is forbidden such as wine, the dower of the like is due reckoned from the day of intercourse, which is the day of consummation and not the day of the contract.
If the marriage is annulled before consummation, both the designated dower and the dower of the like lapse, even in case of disputed invalidity: every marriage annulled before consummation yields nothing, whether the invalidity is unanimous or disputed, concerning the contract, the dower, or both. Annulment before consummation is therefore not like divorce before consummation in a valid marriage. The same applies to death before consummation when the marriage is invalid because of its dower in all its forms: unanimous invalidity such as wine, disputed invalidity such as the runaway slave, or unanimous invalidity of the contract such as the mut'a marriage or the marriage joining a woman and her paternal or maternal aunt, or disputed invalidity affecting a defect of the dower such as the case of the one who marries in order to make a new marriage lawful (al-muhallil), the free status of the child of the slave woman, or the absence of inheritance between the spouses. If the invalidity is disputed without affecting the dower, such as marriage to a woman forbidden by kinship, the dower is due in it ('Uqdat al-jawahir al-thamina 2/481; ad-Dhakhira 4/370; Sharh Mukhtasar Khalil 3/197-198; al-Sharh al-kabir ma'a hashiyat ad-Dasuqi 3/45; at-Tahbir 2/584).
The Shafi'is said: intercourse in an invalid marriage obligates the dower of the like reckoned from the day of intercourse, like intercourse by mistake, and the day of the contract is not considered, for the invalid contract has no sanctity (Rawdat at-talibin 5/148; Asna al-mutalib 3/210).
The Hanbalis said: if the spouses separate in an invalid marriage of disputed invalidity before consummation and seclusion, by divorce, death or another cause such as a difference of religion or breastfeeding, there is neither dower nor comfort gift, whether he divorces her or dies, for the invalid contract is as if it did not exist. If they separate after consummation in the invalid marriage, or after seclusion or what establishes the dower, the designated dower is due by analogy to the valid marriage. In one wording of the hadith of Aisha (may Allah be pleased with her), she reported that the Messenger of Allah (peace and blessings of Allah be upon him) said:
"Any woman married without the permission of her guardian, her marriage is invalid, twice; and she has what he gave her in return for what he attained of her"Reported by Ibn Hibban in his "Sahih" (4074)
The dower of the like is also due to the woman who was subjected to intercourse in a marriage unanimously recognized as invalid, such as marriage with a fifth wife or with a woman in her waiting period, even if the intercourse comes from a madman ("al-Mughni" 7/9; al-Insaf 8/304; Kashshaf al-qina' 5/178; Sharh Muntaha al-iradat 5/279; Mutalib uli an-nuha 5/223; ar-Rawd al-murbi' 2/333-334).
Imam Ibn Qudama said: "Nothing is due to her for mere seclusion in the view of most of the people of knowledge, for the Prophet (peace and blessings of Allah be upon him) fixed her dower for what he made lawful of her private part, whether he attained it or not. The text reported from Ahmad is that the dower settles through seclusion by analogy to the valid contract" ("al-Mughni" 7/9).
Ruling: there is no legal punishment (hadd) for intercourse in an invalid marriage, whether the spouses believed it lawful or forbidden. According to Ahmad, what indicates the obligation of the dower through intercourse in a marriage without a guardian when they believed it forbidden is the choice of as-Sayrafi among the companions of al-Shafi'i, because of what ad-Daraqutni reported with his chain from Abu Hurayra (may Allah be pleased with him):
"Let not a woman give another woman in marriage, nor let a woman marry herself: it is the fornicator who marries herself"Reported by ad-Daraqutni in his "Sunan" with his chain
Also with his chain, from ash-Sha'bi: none of the Companions of the Prophet (peace and blessings of Allah be upon him) was stricter than Ali (may Allah be pleased with him) regarding marriage without a guardian, and he applied flogging in it. Al-Shalanji reported with his chain from Ikrima ibn Khalid that a caravan included among it a previously married woman; a man proposed to her, and a man who was not her guardian married her with a dower and witnesses. When they arrived before Umar (may Allah be pleased with him), the matter was submitted to him: he separated them and had the husband and the one who concluded the marriage flogged.
The Hanbalis reply that this situation is disputed in its lawfulness, so that the legal punishment does not follow from it, like marriage without witnesses. The legal punishment is indeed averted by doubts, and disagreement is the strongest of doubts. The Prophet could call this woman a fornicator at the mere contract, as his words indicate. Umar flogged them as a disciplinary punishment (ta'zir), which is why he flogged the one who concluded the marriage and not the woman, even though they believed in its lawfulness. As for the hadith of Ali, it is a proof against whoever imposes the legal punishment in this matter: Ali was the strictest of people and the matter ended in flogging, which proves that the rest of the people and the Companions did not see flogging in it.
If it is objected that punishment was indeed imposed on the drinker of nabidh despite the disagreement, the answer is that this question is distinct from ours, as shown by the fact that one punishes the one who believes it lawful; a little nabidh leads to much of what is unanimously forbidden, whereas our disputed case does not substitute for the fornication whose prohibition is unanimous. Consequently, whoever believes it lawful commits neither sin nor blameworthy act, for it belongs to the disputed subsidiary matters; whoever believes it forbidden sins and undergoes a disciplinary punishment; and if a child results from it, his lineage is attached to his father in both cases. As for formally invalid marriages, such as the marriage of a woman already married or in her waiting period or the like: if both spouses know the lawfulness and the prohibition, they are both fornicators and incur the legal punishment, and lineage does not attach in it ("al-Mughni" 7/9-10).
There is no disagreement among the Muslim jurists: the woman entered upon by mistake, for example one with whom intercourse occurred while believing her to be his wife, or a slave girl believing her to be his property, must receive the dower. Imam Ibn Abd al-Barr said: "They agreed on the obligation of the dower for the woman entered upon by mistake" ("al-Istidhkar" 6/162; see also "al-Iqna' fi masa'il al-ijma'" 3/1222, no. 2236; tafsir al-Qurtubi 3/122). Imam Ibn Qudama said: "The dower is due to the woman married by a valid contract, the woman entered upon in an invalid marriage, and the woman entered upon by mistake, with no disagreement that we know of" ("al-Mughni" 7/209). What is due is the dower of the like according to the generality of the jurists: it is said in "ash-Sharh al-kabir" that the woman entered upon by mistake must receive the dower of the like, with no disagreement that we know of ("ash-Sharh al-kabir" 8/98; al-Mubdi' 7/173). Al-Buhuti said: "The dower of the like is due to the woman entered upon by mistake, like one who had intercourse with a woman who is neither his wife nor his property, with no disagreement that we know of, like the compensation for a destroyed object" (Kashshaf al-qina' 5/189; Sharh Muntaha al-iradat 5/279; ar-Rawd al-murbi' 2/333-334; al-Insaf 8/306; Mutalib uli an-nuha 5/223).
The majority of jurists, Malikis, Shafi'is and Hanbalis, hold that if the man had intercourse repeatedly on the basis of a single mistake, or in a single invalid marriage, only one dower is due, for it is like a single destruction; the dower does not multiply either through the multiplication of intercourse in an invalid marriage, for she consented in view of a single dower. But if the mistakes multiply, for example intercourse based on one mistake, then that mistake ceases, then intercourse based on another mistake, two dowers are due ('Uqdat al-jawahir al-thamina 2/481; ad-Dhakhira 4/370-371; Rawdat at-talibin 5/148; Mutalib uli an-nuha 5/225).
The Malikis specify that the dower of the like remains unique in repeated mistaken intercourse as long as the mistake is one, like that of the man who repeatedly takes a strange woman for his wife or slave girl, once or more: like the man who has four wives and has intercourse with a free strange woman believing her the first time to be his wife Umm Kulthum, the second time his wife Aisha, the third time Fatima and the fourth time Zaynab. The dower does not multiply, for it is a single type: what comes through marriage forms a single type even if the locus multiplies. This applies if the woman does not know he is a stranger, because she was asleep or believed him to be her husband: only one dower is due from him. If she knew, she undergoes the punishment and has nothing, whether he was mistaken or aware, for she is a fornicator. If the mistakes multiply, each intercourse imposes a dower on him, as if he believed her the first time his wife and the second time his slave girl: the dower multiplies on him through the multiplication of the assumptions ('Uqdat al-jawahir al-thamina 2/481; ad-Dhakhira 4/370-371; Sharh Mukhtasar Khalil 3/277-278; al-Sharh al-kabir ma'a hashiyat ad-Dasuqi 3/167-168; hashiyat as-Sawi 'ala ash-sharh as-saghir 5/124-126).
The Shafi'is said: the dower does not multiply through the multiplication of intercourse under a single mistake: if he had repeated intercourse on the basis of a single mistake or in an invalid marriage, only one dower is due. If a mistake ceases and he then has intercourse on the basis of another mistake, two dowers are due: as if he had intercourse with a woman in an invalid marriage and they were separated, then again in another invalid marriage; or if he entered upon her believing her his wife, then learned the truth, then believed her again his wife and entered upon her; or if he entered upon her once believing her one of his wives and another time believing her his other wife. The dower multiplies through the multiplication of its cause, but the most complete state among the intercourses is counted: if only the intercourse occurring in that state had existed, that dower would have been due, and the other intercourses, requiring no increase, entail no decrease (Rawdat at-talibin 5/148; Asna al-mutalib 3/210).
The Hanbalis said: the dower does not multiply through the multiplication of intercourse under a single mistake, as when the woman entered upon is confused with his wife and that confusion persists through repeated intercourse: only one dower is due, for it is like a single destruction; nor through the multiplication of intercourse in an invalid marriage, for she consented in view of a single dower. The dower multiplies in mistaken intercourse according to the multiplication of the mistake: as if he entered upon her believing her his wife Khadija, then believing her his wife Zaynab, then believing her his slave girl: three dowrs become due; if the mistake is one and the intercourses multiple, only one dower is due. There is no dower for intercourse with the confused woman in the anal passage, nor for sodomy with a male, for it is not guaranteed against anyone: the Sharia did not come with its substitute, and it is not the destruction of a thing; it resembles the kiss and intercourse other than through the private part ("al-Mubdi'" 7/174; al-Insaf 8/309; Kashshaf al-qina' 5/179-180; Sharh Muntaha al-iradat 5/280; Mutalib uli an-nuha 5/225).
Imam al-Qarafi raised a question: if the mistake is one but the circumstances of the intercourse vary (wealth, poverty, health, sickness), which modifies the dower of the like according to those circumstances, is the woman given the choice between the first, the last or the middle intercourse? He reported no transmission from the companions of Malik on this point, and the apparent meaning of their words is that the first circumstance is decisive, whatever it was (ad-Dhakhira 4/370-371). The Shafi'is add that the woman takes the dower of the like reckoned from the most favorable circumstances, the rest lapsing, for all the intercourses belong to her as benefits and she takes whichever she wishes (ad-Dhakhira 4/370-371).
The jurists disagreed about the woman coerced into zina: is the dower of the like due to her or not? The majority of jurists, Malikis, Shafi'is and Hanbalis in the madhhab, hold that she must receive the dower of the like, because of the words of the Prophet (peace and blessings of Allah be upon him): "She has the dower for what he made lawful of her private part." The coercer did indeed make her private part lawful, for making lawful is an act outside the place of lawfulness, according to his words: "None believes in the Quran who makes its prohibitions lawful." This is a proof against the one who instead imposes compensation (arsh), for the Prophet obligated only the dower, without compensation; and because whoever consumed what must be compensated by the mistake owes that compensation, like the destruction of wealth or the eating of another's food.
If the intercourses multiply, a dower is due for each intercourse, for each intercourse, had it occurred after a contract, would have created the dower of the like; the obligation rests here on destruction, which has multiplied. The Hanbalis specify that if the coercion is one and the intercourses multiple, only one dower is due ('Uqdat al-jawahir al-thamina 2/481; ad-Dhakhira 4/370-371; Sharh Mukhtasar Khalil 3/277-278; al-Sharh al-kabir 3/167-168; Rawdat at-talibin 5/148; Asna al-mutalib 3/210; al-Mubdi' 7/174; al-Insaf 8/309; Kashshaf al-qina' 5/179-180; Mutalib uli an-nuha 5/222-225; Manar as-sabil 3/30).
The Hanbalis state explicitly that no dower is due for anal intercourse, for it is not a place of intercourse, nor for sodomy, for it is not guaranteed against anyone: the Sharia did not come with its substitute and it is not the destruction of a thing; it resembles the kiss and intercourse other than through the private part. The compensation for virginity (arsh) is not added to the dower, for it is included in the dower of the like: that dower is assessed on a virgin like her, so that the compensation is not due a second time; whether the woman is a stranger or one of his mahrams, for what is guaranteed for the stranger is guaranteed for the close relative, like wealth.
Imam Ibn Qudama said: "No distinction is established between a stranger or one of his mahrams, and this is the choice of Abu Bakr, the madhhab of al-Nakha'i, Makhul, Abu Hanifa and al-Shafi'i. Another narration is reported from Ahmad: the women who are his mahrams have no dower, which is the view of ash-Sha'bi, for their prohibition is original, so no counter-value can follow from it, like sodomy; this differs from the prohibition by affinity, which is incidental, and likewise the prohibition through breastfeeding. A third narration from Ahmad: the woman whose daughter is forbidden (the mother, the daughter, the sister) has no dower, and the one whose daughter becomes lawful (the paternal aunt and the maternal aunt) has one, for her prohibition is lighter" ("al-Mughni" 7/209-210).
The Hanbalis add: what is guaranteed for the stranger is guaranteed for the close relative, like wealth and the dower of the slave girl; he destroyed by intercourse the benefit of her private part and therefore owes her dower as for the stranger, for it is a locus guaranteed against another for which he is liable, like wealth; sodomy differs, being guaranteed against no one. Ruling: no dower is due for anal intercourse or sodomy. Nor is a dower due to the woman consenting to zina, for she offers what must be compensated to her, so nothing becomes due to her, as if she permitted a man to cut off her hand and he cut it off; unless she is a slave girl: the dower then goes to her master and does not lapse through her offering, for the right belongs to another, just as if she offered the cutting of her hand.
As for the woman whose marriage is invalid by consensus, such as the already-married woman or the woman in her waiting period: if a man marries her and has intercourse with her knowing her situation and the prohibition of intercourse, while she consents knowingly, she has no dower, for it is zina that incurs the legal punishment and she consented to it. If she is ignorant of the prohibition or of her waiting period, the dower is due to her, for it is intercourse by mistake.
Abu Dawud reported with his chain that a man called Basra ibn Aktham married a woman who gave birth after four months: the Prophet (peace and blessings of Allah be upon him) fixed the dower for her, and in one wording:
"She has the dower for what you made lawful of her private part; and when she gives birth, flog her"Reported by Abu Dawud with his chain
Sa'id reported in his "Sunan", from Imran ibn Kathir, that Ubaydallah ibn al-Hurr had married a slave girl of his people called ad-Darda', then left to join Mu'awiya, while the slave girl's master died. Her family married her to a man called Ikrima. Learning of this, Ubaydallah returned and brought the dispute before Ali (may Allah be pleased with him), who had them tell their story and then returned the woman to him, she being pregnant by Ikrima; she gave birth in the custody of a man named 'Adl. The woman said to Ali: "Do I have more right to my money, or Ubaydallah?" He said: "Rather you have the right to your money." She said: "Bear witness that whatever dower was owed to me by Ikrima belongs to him." And when she delivered what she carried, she was returned to Ubaydallah ibn al-Hurr, and the child was attached to its father ("al-Mughni" 7/209-210).
Imam Ibn Abd al-Barr said: the jurists disagreed about the obligation of the dower on the one who coerces a woman into zina. Malik, al-Layth and al-Shafi'i said: the dower and the legal punishment both fall upon him. Abu Hanifa, Abu Yusuf, Muhammad and Sufyan al-Thawri said: the legal punishment falls upon him, without a dower, and this is the view of Ibn Shubruma: in their view, the dower and the legal punishment are not combined. Abu Umar comments that this parallels their position on the thief, upon whom no guarantee is imposed when his hand is cut off, and that the matter of the thief is likewise disputed. The correct view in both matters is the obligation of the dower and of the guarantee, for the legal punishment of Allah does not extinguish the right of a human being: they are two obligations that Allah and His Messenger established, and their combination causes no harm ("al-Istidhkar" 7/146-147).
Imam al-Mawardi reported that al-Shafi'i said: "If he coerces her into zina, the legal punishment falls upon him and not upon her, as well as the dower of her like." The dower is disputed in its obligation: according to the Shafi'i madhhab, he owes her the dower of her like. Abu Hanifa said: no dower upon him, arguing from the prohibition by the Messenger of Allah (peace and blessings of Allah be upon him) of the wage of prostitution, reported with certainty; and prostitution is zina, and this is zina. Also: it is intercourse that brought the punishment upon the one who performed it, so the dower must lapse from it, as in the case of the consenting woman. Further: the punishment is imposed in the absence of a mistake and the dower in the presence of a mistake, so that their combination is impossible.
The counter-proof is the words of the Prophet (peace and blessings of Allah be upon him): "Any woman married without the permission of her guardian, her marriage is invalid; if he touches her, she has the dower for what he made lawful of her private part": this man made her private part lawful, so the dower must be upon him. If it is objected that the dower binds him only in the invalid contract, the answer is that everything guaranteed with compensation in an invalid contract is also guaranteed under coercion, like wealth; and since the dower is due for intercourse in an invalid marriage, it is more fitting for the coerced woman, on two counts: the married woman who knows is a sinner, the coerced woman is not; the married woman enables the intercourse, the coerced woman does not. As for the reply concerning the prohibition of the prostitute's wage, the famous narration speaks of the prostitute (with emphasis), and this woman is not one; nor is there any proof for the reading with softening (zina), for this intercourse is zina for the one who incurs the punishment, and is not zina for the one who does not. As for the analogy with the consenting woman, its meaning is the obligation of the punishment upon her; and the impossibility of a mistake existing and not existing in a single act holds for one person, not for two: thus the punishment is imposed on the man and lapses from the woman. In summary: three rulings concern the man specifically: the punishment, the dower, and lineage. Lineage is assessed by the mistake of the man, not the woman: if he has a mistake, the child is attached to him. The dower is assessed by the mistake of the woman: if she has a mistake, the dower is due to her. The punishment is assessed by the mistake of both: if both have a mistake, the punishment lapses; if neither does, it is imposed on both; if one has a mistake, it is imposed on the one who has none and lapses from the one to whom the confusion accrued ("al-Hawi al-kabir" 13/239-241).
The Hanafis, and Ahmad according to one narration which is also the choice of shaykh al-Islam Ibn Taymiyya, hold that the woman coerced into zina has no dower. Imam Abu Ja'far al-Tahawi said: "Our companions said: if he coerces a woman and fornicates with her, the legal punishment falls upon him without a dower, and this is the view of Ibn Shubruma and al-Thawri. Malik, al-Layth and al-Shafi'i said: the punishment and the dower both fall upon him. They do not disagree about the slave girl who consents to zina: she has no dower, and likewise the free woman under coercion" ("Mukhtasar ikhtilaf al-ulama" 3/298).
Shaykh al-Islam Ibn Taymiyya said: "The dower is not due to the woman coerced into zina: this is a narration reported from Ahmad, the madhhab of Abu Hanifa and the choice of Abu al-Barakat. Abu al-Abbas mentioned elsewhere, from Abu Bakr, the distinction obligating the dower for the virgin and not for the previously married woman, and Ibn Mansur reported it from Ahmad. But the virgin slave girl subjected to intercourse under coercion, by mistake or consenting: the compensation for virginity, that is, the decrease of her value caused by defloration, admits of no disagreement" ("al-Fatawa al-kubra" 4/557-558).
Imam Ibn al-Qayyim said: there is no dispute among the jurists that the free adult and sane woman who enables a man upon herself, and he fornicates with her, has no dower. Two questions were disputed: the free coerced woman, and the consenting slave girl. As for the free woman coerced into zina, four views are explicitly reported from Ahmad: the first, that she has the dower, whether virgin or previously married, and whether intercourse occurred through her private part or the anal passage; the second, that she has no dower if she was previously married and has one if she was a virgin, the addition of the compensation for virginity being subject to two explicit narrations, and this is the choice of Abu Bakr; the third, that she has no dower if she is a mahram and has one if she is a stranger; the fourth, that the woman whose daughter is forbidden (the mother, the daughter, the sister) has no dower, and the one whose daughter becomes lawful (the paternal aunt and the maternal aunt) has one. Abu Hanifa said: no dower for the coerced woman in any case, virgin or married.
Those who obligate the dower say that the Sharia made the dower the value of consuming this benefit; it is not due to the consenting woman because she offers the benefit whose compensation belongs to her, just as if she permitted someone to destroy a limb of her body. Those who do not obligate it say that the Lawgiver only valued this benefit by the dower in a contract or a mistake of contract, and did not value it at all in zina: the analogy of zina to marriage is among the most corrupt of analogies. In exchange for this enjoyment, the Lawgiver instituted the legal punishment and the sanction, which cannot be combined with the liability of the dower. An obligation is only derived from the Lawgiver through a text, a generality, an apparent meaning, an indication, or the meaning of the text, and none of that is established here: at most it is an analogy of zina to marriage, while the gap between the two is immense. The dower is a characteristic proper to marriage in word and meaning, which is why it is attributed only to it: one says dower of marriage, and never dower of zina. The Prophet (peace and blessings of Allah be upon him) used the word dower meaning the contract, as in: "Allah has forbidden the sale of wine, carrion, swine and idols"; and: "the man who sold a free person and consumed his price," and there are many parallels. The early generations say that the principle is that this benefit be valued by the dower: the Lawgiver only waived it for the prostitute who fornicates by choice, and the woman coerced into zina is not a prostitute; one therefore cannot remove from her the compensation for the benefit to whose consumption she was coerced, just as the free man coerced into consuming his benefits owes their compensation, which is, according to the Sharia, the dower: such is the origin of the two views.
The one who distinguishes between the virgin and the previously married woman holds that the one who had intercourse deprives the previously married woman of nothing, the sanction of his act sufficing, this disobedience having no obligatory monetary counterpart, unlike the virgin whose virginity he destroyed: he must guarantee what he destroyed, and this offense is guaranteed by him in its entirety. The one who distinguishes between the mahrams and the others holds that their prohibition being original and their private parts not being a lawful place of intercourse, the consumption of this benefit amounts to an act of forbidden commingling (talwwut), so that it creates no dower: this is the view of ash-Sha'bi, unlike the prohibition by affinity, which is incidental and can cease; the author of "al-Mughni" says the same applies to the prohibition through breastfeeding. The one who distinguishes among the mahrams between the woman whose daughter is forbidden and the one whose daughter is not holds that the latter's prohibition is lighter and resembles the incidental.
If it is asked about the ruling of coercion into anal intercourse, or of the consenting slave girl to it: non-establishment of the dower is more fitting, for it falls under sodomy, for which no dower is due by consensus. The two shaykhs, Abu al-Barakat Ibn Taymiyya and Abu Muhammad Ibn Qudama, disagreed on this question: Abu al-Barakat said in his "Muharrar" that the dower of the like is due to the woman entered upon by mistake and the woman coerced into zina, through the private part or the anal passage; Abu Muhammad said in "al-Mughni" that no dower is due for anal intercourse or sodomy, for the Sharia did not come with their substitute and it is not the destruction of a thing, it resembling the kiss and intercourse other than through the private part. This second view is indisputably correct: the Sharia gave this act no value and fixed no dower for it in any manner; the analogy with intercourse through the private part is among the most corrupt of analogies, and it would obligate its holder to establish a dower for the male victim of sodomy, which no one has ever said ("Zad al-ma'ad" 5/774-777).
Imam Ibn Rushd said: "The woman coerced into zina: does her coercer owe the dower in addition to the legal punishment? Malik, al-Shafi'i and al-Layth said: the dower and the legal punishment both fall upon him. Abu Hanifa and al-Thawri said: the legal punishment without a dower, and this is the view of Ibn Shubruma. Malik's basis is that two rights fall upon him: the right of Allah and the right of a human being, neither of which removes the other, like theft which brings about both the guarantee of the wealth and the cutting of the hand. As for those who do not obligate the dower, they rely on two meanings: the first, that when two rights combine, the right of Allah and that of the creature, the right of the creature lapses in their view" ("Bidayat al-mujtahid" 2/19).
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:
"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).
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).
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).
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).
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.