Islamic Fiqh > Marriage and family > Mahr (dowry): status, mention and limits > Is the dowry of equivalence due immediately, or may it be deferred?
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Updated on 25 September 2026 at 3:23 PM
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This chapter of the Encyclopedia of Fiqh (al-Mawsua al-fiqhiyya) deals with the dowry of equivalence (mahr al-mithl): the dowry owed to a wife whose marriage was contracted without a stipulated dowry, based on the customary dowry of women comparable to her. The sheets that follow determine the events that make this dowry due in full or by half: consummation, death, lawful seclusion (khalwa), the preliminaries of intercourse, divorce, khul' and the husband's conversion. The positions of the Hanafi, Maliki, Shafi'i and Hanbali schools are reported together with their classical references.
Her virginity or previous marriage, the purity of her lineage and everything for which the dowry varies are taken into account, as well as her belonging to the people of her town, because the customs of countries differ regarding the dowry. All these qualities were considered because the dowry of equivalence is compensation for a destroyed thing (badal mutalaf), so the qualities intended in it were considered. If among her paternal kinswomen ('asaba) there is no one in a situation similar to hers, the women of her maternal relatives are considered, such as her mother, grandmothers, aunts and their daughters; if none, the people of her town; if none, the women of the towns nearest to her; if only women below her level are found, her dowry is increased in proportion to her superiority; if only women better than her are found, it is reduced in proportion to her deficiency (Al-Mughni, 7/189-190).
Is the dowry of equivalence due immediately, or may its payment be deferred? Most jurists explicitly affirmed that the dowry of equivalence, once due, is due at once and its payment may not be deferred.
The Shafi'is said: the dowry of equivalence is due immediately, in the currency of the country, like the values of compensation, even if she consents to its deferral. If the women are accustomed to deferring the dowry, in whole or in part, it is reduced in return for early payment, that is, by what befits the delay; and if they marry against delivery of goods, these are valued and their value is due in the currency of the country. As-Sumayri said: if their custom in a region is to marry against clothes (goods) and the like, and they are accustomed to it, judgment is given accordingly; but the explicit text is the first view, because it is compensation for a destroyed thing, resembling the other compensations.
If they customarily marry with the dowry entirely deferred, or partly deferred and partly immediate, the judge does not postpone it; rather he reduces from it what befits the delay: if the custom of the women of her paternal kinswomen is to defer the dowry, the dowry is not due deferred but immediate, reduced by the amount corresponding to the postponement, because the values of compensation are not deferred. Al-Mawardi said: except if the dowry of equivalence became due to her and she did not claim it until the expiry of their customary term; then the amount corresponding to their deferral becomes due immediately.
The lapse of time does not cause the loss of the dowry of equivalence, just as the values of property are not extinguished, although ascertaining the qualities becomes difficult as time passes. The wife's dowry in an invalid marriage is assessed at the day of consummation, like intercourse committed under a doubtful semblance of lawfulness (shubha), not at the day of the contract, for the invalid contract has no binding sanctity (Al-Bayan, 9/453; Asna al-Matalib, 3/210; al-Najm al-Wahhaj, 7/338; Mughni al-Muhtaj, 4/381; Nihayat al-Muhtaj, 6/408).
The Hanbalis said: the dowry of equivalence is due immediately, for it is compensation for a destroyed thing, like the values of compensation, and it is due only in the currency of the country when these women have no custom of deferring it. If the custom of their women is to defer the dowry, there are two views: one, that it be imposed immediately; the second, which is the sound one, that it be imposed deferred, because the dowry of equivalence of her peers is deferred; otherwise, absent a custom of deferral, it is imposed immediately, for it is compensation for a destroyed thing and must therefore be immediate, like the values of compensation.
If their customs differ regarding immediacy or deferral, or their dowries differ in smallness or largeness, the middle is taken, for it is justice; and the dowry must be immediate and in the currency of the country; if there are several, the predominant one is taken, for it is compensation for a destroyed thing, like the values of compensation. Ibn Qudama, may Allah have mercy on him, said: if their custom is that they lighten the dowry when marrying from their own kin and increase it when marrying others, that is taken into consideration.
If it is objected: since the dowry of equivalence is compensation for a destroyed thing, it should not vary with the variety of what is destroyed, unlike the other compensations; we say: marriage differs from the other cases of destruction; the other compensations seek only wealth, so they do not vary with the variety of those who suffer the loss, while marriage seeks the very persons of the two spouses, so it varies with them. Moreover, the other compensations do not vary with customs, whereas the dowry varies with customs: if a woman belongs to a people whose custom is to lighten the dowries of their women, the dowry due from them is light, even if she is better and nobler than the women of a people whose custom is to increase the dowry. Likewise, whenever the custom is to lighten for a reason such as nobility or affluence, that is considered, in accordance with their custom (Al-Mughni, 7/189-190; al-Mubdi', 7/171-172; Kashshaf al-Qina', 5/177-178; Sharh Muntaha al-Iradat, 5/277-278; Mataleb Uli al-Nuha, 5/222).
The jurists of Islam agreed that when a man concludes a valid contract with a woman, then enters upon her and consummates the marriage, the full dowry is due to her, by the saying of Allah:
"And if you divorce them before you have touched them, while you had already appointed for them a dowry, then half of what you appointed is due to them"
Surah 2, verse 237
Allah established for the husband the right to take back half the dowry upon divorce before any touching, which indicates that after the touching he takes back nothing of it. And He said in another verse:
"And how could you take it back while you have gone in unto each other?"
Surah 4, verse 21
and "gone in unto each other" (al-ifda') was interpreted as meaning intercourse.
Even if the intercourse is unlawful, as when he has intercourse with her while she is fasting, in ihram, in devotional retreat, menstruating or bleeding after childbirth; for intercourse committed under a doubtful semblance of lawfulness (shubha) establishes the dowry from the outset, so intercourse within marriage is all the more able to establish the obligatory dowry, by the general statement of the Prophet (peace and blessings be upon him):
If he enters upon her, she is entitled to the dowry for what he made lawful of her private part.Authentic hadith, narrated by Abu Dawud (2083), at-Tirmidhi (1102), Ahmad (25365) and Ibn Hibban in his Sahih (4074)
Likewise, intercourse through the anus establishes the dowry in the view of the majority of jurists, for it is a place whose penetration entails the legal punishment: the dowry is therefore established thereby as it is through the vagina. In one view of the Shafi'is, the named dowry is not established thereby for her, because the dowry is the counterpart of what the contract makes owned, and the anus is not owned by the contract, so the dowry is not established by it.
Ibn Rushd, may Allah have mercy on him, said: the scholars agreed that the whole dowry becomes due by entry (Bidayat al-Mujtahid, 2/17; see Bada'i' al-Sana'i', 2/291; al-Taj wa-l-Iklil, 2/579; Sharh Mukhtasar Khalil, 3/260; al-Bayan, 9/400; al-Najm al-Wahhaj, 7/310-311; Mughni al-Muhtaj, 4/368; Tuhfat al-Muhtaj, 9/80; al-Dibaj, 3/316; Nihayat al-Muhtaj, 6/394; Kashshaf al-Qina', 5/168; Sharh Muntaha al-Iradat, 5/264-265; Mataleb Uli al-Nuha, 5/205; Manar al-Sabil, 3/19). Ibn Qudama, may Allah have mercy on him, said: the dowry is due to the woman validly married, the woman consummated with in an invalid marriage and the woman consummated with in doubtful circumstances, without any known disagreement as far as we know (Al-Mughni, 7/209).
The Malikis stipulated that the husband have reached puberty and that the wife be able to bear intercourse (al-Taj wa-l-Iklil, 2/579; Sharh Mukhtasar Khalil, 3/260; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/141; Tahbir al-Mukhtasar, 3/17). The Hanbalis said: the husband must be one capable of intercourse such as his, that is, ten years old, and the wife one capable of intercourse such as hers, that is, nine years old; if he is under ten or she under nine, the dowry is not established, because intercourse is not possible (Kashshaf al-Qina', 5/168; Sharh Muntaha al-Iradat, 5/264-265; Mataleb Uli al-Nuha, 5/205; Manar al-Sabil, 3/19).
The people of knowledge agreed that if one of the spouses dies before entry or seclusion, the dowry is due in full to the wife, or to her heirs if she is the deceased, when the marriage is valid and a dowry had been fixed for her; by the consensus of the Companions, and because the marriage is not validated by it, as shown by the mutual inheritance between the two spouses by consensus; death is rather its termination, and the termination of a contract is like taking possession of the subject of the contract, by the example of hire.
Ibn Rushd, may Allah have mercy on him, said: the scholars agreed that the whole dowry becomes due by death; and I know of no audible evidence on it except the very formation of consensus (Bidayat al-Mujtahid, 2/17). Imam as-Suyuti, may Allah have mercy on him, said: by the death of one of the spouses the dowry becomes fixed by agreement (Jawahir al-'Uqud, 2/38). Imam al-Kasani, may Allah have mercy on him, said: as for its being confirmed by the death of one of the spouses, we say: there is no disagreement that if one of the spouses dies a natural death before entry in a marriage in which a dowry was named, the named sum is confirmed, whether the woman is free or a slave; for the dowry was due by the contract, and the contract was not dissolved by death; rather it reached its end: it is a contract made for a lifetime, so its term ends with the end of life; when it ends, it is confirmed for what has passed and becomes established, like fasting which becomes established with the coming of night.
And since the whole dowry became, by the contract itself, a debt upon him, and death is not known in the foundations of the Law as an extinguisher of debt, nothing of it lapses by death, as with other debts (Bada'i' al-Sana'i', 2/294). The majority of jurists, with some detail among them, hold that the dowry becomes fixed by death, even if one of the two killed himself or killed the other: if the wife kills herself or kills her husband, the dowry becomes fixed by death. The jurists however differed when one of them kills the other: does the dowry become fixed thereby or not?
The Hanafis said: if one of the spouses kills the other, or a stranger kills one of them, or the husband kills himself or the wife kills herself, the dowry is due in full. Al-Kasani, may Allah have mercy on him, said: likewise if one of them is killed, whether by a stranger, or one of the two kills his companion, or the husband kills himself. As for the woman killing herself: if she is free, nothing of the dowry lapses in favor of the husband; rather the dowry is confirmed in our view; for killing becomes forfeiture of the right only at the extinction of the soul; it becomes killing with respect to the subject only at that point, and the dowry at that stage belongs to the heirs, so it cannot lapse by her act, just as if her husband or a stranger had killed her.
Then he said: and because the dowry, at the time the compensation perishes, belongs to the husband and is his right; yet man may dispose of his own property, both taking it and forfeiting it; so it would be open to lapse through the indication of the loss of the compensation, as it would be open to lapse through an explicit waiver (ibra'); and that is the answer to the case where her husband or a stranger kills her: for neither the stranger nor the husband has any right in her dowry, so it cannot lapse through their explicit waiver; how then could it lapse through indication? (Bada'i' al-Sana'i', 2/294)
The Malikis said: the named dowry is fixed upon the husband by the death of one of the spouses or both before entry, even if he is not of age and she is not fit for intercourse, even to the point of including her killing herself unwillingly because of her husband; and whether the death is certain or established by legal presumption, like the missing person (mafqud) in Muslim lands: after the lapse of the customary term of residence, the judge rules his death. If the wife kills her husband, she is treated contrary to her aim: her dowry is not completed according to the sound position of the school, as al-'Adawi and al-Dasuqi considered preferable, because of her presumed guilt, lest this become a means for women to kill their husbands (al-Taj wa-l-Iklil, 2/579; Sharh Mukhtasar Khalil, 3/260; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/141-142; Tahbir al-Mukhtasar, 3/17). The Shafi'is said: the death of the wife after entry does not annul anything of the dowry, whether she dies a natural death or is killed.
If she dies before entry, or her husband or a stranger kills her, her dowry never lapses, without exception; likewise, according to the school, if she kills herself; for it is a separation that occurred by the completion of her term, as if she had died. According to another view: her dowry lapses, because the marriage dissolved for a cause arising from her side, as if she had apostatized (Al-Bayan, 9/406; Rawdat al-Talibin, 5/80; al-Bayan, 9/400; al-Najm al-Wahhaj, 7/310, 312; Mughni al-Muhtaj, 4/358, 368; Tuhfat al-Muhtaj, 9/80; al-Dibaj, 3/316; Nihayat al-Muhtaj, 6/394). The Hanbalis said: the named dowry becomes fixed, to the point of including the case where one of the spouses kills the other or one of them kills himself; the whole dowry then becomes fixed; for it is a separation that occurred by death and the end of the marriage, which does not cause the dowry to lapse, just as if she had died a natural death; and because the marriage has reached its end, which stands in place of the benefit being taken (Al-Mughni, 7/211; Manar al-Sabil, 3/19). The dowry becomes fixed by death only if the marriage is valid; if it is invalid, the dowry is not fixed, by consensus (al-Najm al-Wahhaj, 7/312).
If one of the spouses dies before entry without fixing a dowry, or after denying it in the contract or waiving it: the Hanafis, the Shafi'is according to the apparent view (the one favored by al-Nawawi and others), and the Hanbalis according to the school hold that if the husband dies, the full dowry is due upon him, and the dowry of equivalence of her peers is completed for her, by the report transmitted from Alqama and al-Aswad, from Abdallah ibn Mas'ud (may Allah be pleased with him):
A man came to ask Abdallah ibn Mas'ud (may Allah be pleased with him) about a man who had married a woman and then died without having consummated the marriage with her or fixed a dowry for her. He said nothing and turned them away for a month; then he said: I give my own opinion; if it is correct, it is from Allah, and if it is wrong, it is from me: I consider that she is entitled to the dowry of her peers, neither in excess nor in deficiency; the waiting period is due from her and she has a share of the inheritance. Then al-Ashja'i stood up and said: the Messenger of Allah (peace and blessings be upon him) judged the same for Barwa' bint Washiq. Abdallah rejoiced at that and pronounced the greatness of Allah.Authentic report, narrated by Abu Dawud (2214), at-Tirmidhi (1145), Ibn Majah (1891) and Ibn Hibban in his Sahih (4100)
This report is explicit at the very point of dispute; and because death is a cause by which the named dowry is completed, so that the dowry of equivalence is completed for the woman left without appointment just as by entry; and the analogy of death to divorce is unsound: death completes the marriage and thereby completes the dowry, whereas divorce cuts it off and removes it before its completion; that is why the waiting period becomes due by death before entry but not by divorce, and the named dowry is completed by death but not by divorce. And because what is due by the contract in such a case is the dowry of equivalence, which is why she may claim it from him before entry; it is confirmed and established by the death of one of the two or by entry, as mentioned for the named dowry. Likewise the protected non-Muslim woman (dhimmi), according to the Shafi'is and Hanbalis, is like the Muslim woman, or as if a dowry had been named for her; for the Muslim and the dhimmi woman do not differ anywhere regarding the dowry, so they must not differ here (al-Muwatta in the version of Muhammad ibn al-Hasan, 2/462; Bada'i' al-Sana'i', 2/275; al-Ikhtiyar, 3/127; al-Jawhara al-Nayyira, 4/317; al-Lubab, 2/36; Sharh Fath al-Qadir, 3/325; Tabyin al-Haqa'iq, 2/139; Ikhtilaf al-'Ulama, 1/142-143; Al-Mughni, 7/189; al-Kafi, 3/105; Sharh al-Zarkashi, 2/433; Majmu' al-Fatawa, 32/63; al-Mubdi', 7/168-169; Al-Insaf, 8/297-298).
Imam Ahmad held, in one version, that the dowry is halved upon her death: half the dowry of equivalence of her peers is then due to her; for the woman for whom a dowry was appointed differs, in divorce, from the one for whom none was appointed, so it is possible that she differs after death as well; and because it is a separation that came upon a valid delegation before appointment and before any touching, the dowry of equivalence is not due to her, like the separation of divorce; unless the judge fixed it for her: it is then not halved, for the appointment makes it like the named dowry; had he named the dowry and then died, all of it would be due; likewise if he fixed it (Al-Mughni, 7/189; al-Kafi, 3/105; Sharh al-Zarkashi, 2/433; al-Mubdi', 7/168-169; Al-Insaf, 8/297-298).
The Malikis and the Shafi'is, according to the apparent view, hold that if a man marries a woman without fixing a dowry and dies before entry, or she dies before entry without a named dowry, she has no dowry and no compensation (mut'a, according to the Malikis); for it is a separation that came upon a valid delegation before appointment and touching, so no dowry is due thereby, like divorce; and because the dowry is a compensation, the compensation is not due when the thing compensated was not obtained, by analogy to sale. And by what Malik narrated in the Muwatta from Nafi':
The daughter of Abdallah ibn Umar and her mother, the daughter of Zayd ibn al-Khattab, was the wife of a son of Abdallah ibn Umar; he died without having consummated the marriage with her or named a dowry for her. Her mother sought her dowry, and Abdallah ibn Umar said: she has no dowry; if she had one, we would not have withheld it nor wronged her. Her mother refused to accept that; they took Zayd ibn Thabit as arbiter, and he judged: she has no dowry, and she has a share of the inheritance.Authentic report, narrated by Malik in the Muwatta (1098)
And by what is narrated from the Prophet (peace and blessings be upon him):
Settle the rights of the women left in suspense (al-alaq). It was said: and what are the al-alaq, Messenger of Allah? He said: that upon which the families have agreed.Very weak report, narrated by Sa'id ibn Mansur in his Sunan (619) and Ibn Abi Shayba (16361, 36168)
which indicates that what is earned by the contract is only what the families agreed upon, to the exclusion of anything else. And by analogy: it is the separation of a woman without a fixed dowry, before appointment and before consummation, so no dowry is earned thereby, as with divorce; and because death is a cause by which separation occurs, no dowry is due by it, as with breastfeeding and apostasy; and because the woman whose dowry is not halved by divorce does not acquire the whole dowry by death, like the one who waived her dowry in favor of her husband; and because everything not halved by divorce is not completed by death, like the excess over the dowry of equivalence. As for the report of Barwa', its authenticity has been disputed (Al-Istidhkar, 5/424, 426; Bidayat al-Mujtahid, 2/20; Al-Bayan wa-l-Tahsil).
The jurists differed: if a man concludes a valid contract with a woman and remains alone with her in a valid seclusion, without any legal or natural impediment, then divorces her, is the full dowry due upon him, or does she have only half the dowry? The Hanafis, al-Shafi'i according to the earlier position, the Hanbalis according to the school, and al-Qurtubi among the Malikis hold that if a man marries a woman and remains with her in a valid seclusion, without any legal or natural impediment, then divorces her before entry, the full dowry is due upon him if he had named it, or the full dowry of equivalence if the contract contained no naming; and the waiting period is due from her even without intercourse; this is the view of the rightly guided caliphs, of Zayd and of Ibn Umar (Tafsir al-Qurtubi, 3/198-199; al-Qawanin al-fiqhiyya, 136; Sharh al-Zarqani, 3/170; al-Hawi al-Kabir, 9/480; Rawdat al-Talibin, 5/142-143; al-Najm al-Wahhaj, 7/332-333; Mughni al-Muhtaj, 4/379; Tuhfat al-Muhtaj, 9/106; Nihayat al-Muhtaj, 6/405; al-Dibaj, 3/327).
It is narrated from Zurara ibn Awfa that he said: "The rightly guided caliphs judged that whoever closes a door or lowers a curtain, the dowry and the waiting period become due" (authentic reports: Ibn Abi Shayba in his Musannaf (16960) for the caliphs, Abd al-Razzaq in his Musannaf (10866) for Zayd, Ibn Abi Shayba (16966) for Ibn Umar; and for the report of Zurara: Abd al-Razzaq (10875), Ibn Abi Shayba (16695), Sa'id ibn Mansur in his Sunan (762) and al-Bayhaqi in as-Sunan al-Kubra (14261)); these are famous judgments which no one in their time contradicted, so they are like consensus.
And by what is narrated from the Prophet (peace and blessings be upon him):
Whoever uncovers a woman's head-covering and looks at her, the dowry becomes due, whether he consummates the marriage with her or not.Weak report, narrated by ad-Daraqutni (3824) and al-Bayhaqi in as-Sunan al-Kubra (14264)
And by the saying of Allah (Surah 4, verses 20-21):
"And if you wish to replace a wife with another and you have given one of them a qintar, take nothing from it. Would you take it by way of slander and manifest sin, while you have gone in unto each other?"
Surah 4, verses 20-21
Allah forbade the husband there to take back anything of the dowry he had given her at the time of divorce, and made clear the meaning of the prohibition by the existence of seclusion. Al-Farra said: "gone in unto each other" means seclusion, whether he consummates the marriage or not; and the wording of the text proves that valid seclusion is meant: the term is derived from the open expanse of the earth, a place with no vegetation, building or barrier preventing one from perceiving what is in it; the seclusion meant is therefore of this kind, with no impediment to enjoyment. The apparent text thus implies that nothing of the dowry lapses by divorce; however, the lapse of half upon divorce before entry and before seclusion, in a marriage with a named dowry, and the establishment of the mut'a in place of half the dowry of equivalence in a marriage without naming, are established by another proof; the case after seclusion therefore remains upon the apparent meaning of the text.
And because the dowry became due by the contract itself: once it became her property by the contract, property established for a person cannot pass away except by the owner's removal or his inability to benefit from the owned thing, whether for a reason attached to the owner or to the subject; none of that exists here, so it lapses only upon divorce before entry and before seclusion; and the lapse of half by the Law's removal is conceivable only through divorce; for divorce is the act of the husband, and the dowry is her property, and a person cannot cancel another's right upon himself.
And because she delivered herself in the delivery due from her: her dowry becomes fixed; the required delivery having taken place from her side, the compensation becomes fixed, as if he had consummated the marriage, or as if she had rented out her house or sold it and delivered it. And because, when the door is closed and the curtain lowered over the woman, the predominant outcome is the occurrence of intercourse: presumption was established in place of certainty, because souls in such a situation are by nature hardly able to refrain from intercourse, given the predominance of desire and the presence of the prompter (Bada'i' al-Sana'i', 2/291, 294; al-Ikhtiyar, 3/129; al-Jawhara al-Nayyira, 4/321, 323; al-Lubab, 2/38, 34; Sharh Fath al-Qadir, 5/331, 332; Tabyin al-Haqa'iq, 2/142; al-Bahr al-Ra'iq, 3/162, 163; Tafsir al-Qurtubi, 5/102; Al-Mughni, 7/191; al-Kafi, 3/95; Sharh al-Zarkashi, 2/434; al-Mubdi', 8/107-108; Kashshaf al-Qina', 5/168-169; Sharh Muntaha al-Iradat, 5/265; Mataleb Uli al-Nuha, 5/205; Manar al-Sabil, 3/19-20; Fath al-Bari, 9/495).
Definition of valid seclusion according to the Hanafis: there must be no impediment to intercourse, whether real, legal or natural.
The real impediment is:
The legal impediment is:
For all of that makes intercourse unlawful and is thus a legal impediment to it; and menstruation and bleeding after childbirth also prevent it naturally, for they are a harm, and sound nature recoils from the use of harm.
The natural impediment is: the presence of a third person with them; for a man dislikes having intercourse with his wife in the presence of a third: he feels shame and shrinks from intercourse under his gaze, whether that third person can see or is blind, awake or asleep, of age or a child possessed of reason, a man or an unrelated woman, or the man's own wife; for the blind man, though not seeing, perceives; the sleeper may wake at any moment, and man shrinks from intercourse in his presence; the child of reason is like the man, before whom one feels modesty; if he lacks reason he is like the beasts, before whose presence man does not refrain from intercourse nor turn to look; man feels shame before an unrelated woman, and she likewise may not look at them, so they shrink because of her; and if he has another wife, or has married two women and remains alone with them both, she may not look at them and he shrinks. They said: it is not lawful for a man to have intercourse with his wife in the presence of another woman.
There is no valid seclusion in the mosque, on the public road, in the desert, or on a roof without covering; for the mosque gathers people for prayer and one is not safe from their entering at any moment; likewise intercourse in the mosque is unlawful, by the saying of Allah:
"And do not approach them while you are in devotional retreat in the mosques"
Surah 2, verse 187
The road is the passage of people from which they are by custom never absent, which causes shrinking and prevents intercourse; the same applies to the desert and the uncovered roof: man shrinks from intercourse in such places because a third may be present there or someone may see him, as custom makes known. If he remains alone with her in an enclosure or a domed structure and lowers the curtain over it, the seclusion is valid, for it is in the meaning of a house. There is no valid seclusion in an invalid marriage; for intercourse in it is unlawful, so the legal impediment remains; and because seclusion is among that by which the dowry is confirmed, and its confirmation occurs only after it has become due, while nothing is due by an invalid marriage, confirmation is inconceivable.
In every place where seclusion is valid and the dowry confirmed, the waiting period is due; for valid seclusion, which renders the full dowry due, is all the more able to render the waiting period due: the dowry is purely a human right, while in the waiting period there is also the right of Allah, which calls for precaution. In every place where the seclusion is invalid, the full dowry is not due: is the waiting period due? This is examined: if the invalidity arises from a real impediment, it is not due, for intercourse is inconceivable while the real impediment is present; if the impediment is legal or natural, it is due, for intercourse remains possible with this kind of impediment, so both are suspected of intercourse, and the waiting period is due upon divorce, as a precaution (Bada'i' al-Sana'i', 2/291, 294; al-Ikhtiyar, 3/129; al-Jawhara al-Nayyira, 4/321, 323; al-Lubab, 2/38, 34).
As for the Hanbalis: Ibn Qudama, may Allah have mercy on him, said: "It is the same whether he remains alone with her while both are in ihram or fasting, or she is menstruating, or both are free of these things." The version narrated from Ahmad differs when the seclusion takes place while an impediment to intercourse affects both spouses or one of them, such as ihram, fasting, menstruation or bleeding after childbirth, or a real impediment such as castration, impotence ('unna) or the seal in the woman. According to him, the dowry becomes fixed in every case; 'Ata', Ibn Abi Layla and al-Thawri said the same, by the generality of the consensus mentioned. And Umar said concerning the impotent men: "He is granted a year; if he then manages to have intercourse with her, otherwise she takes the full dowry, they are separated and the waiting period is due from her." And because the delivery required of her has taken place, while menstruation, ihram and the seal do not come from her side, they do not affect the dowry, just as they do not affect the cancellation of maintenance. It is also narrated that the dowry is not completed thereby: this is the view of Shurayh and Abu Thawr; for he was not able to take possession of her, so she does not deserve a dowry from him on account of her prevention, as if she had refused to deliver herself to him; its proof: prevention from delivery makes no difference whether it comes from a stranger or from the contracting party, as in hire.
A third version from Ahmad: if both fast the month of Ramadan, the dowry is not completed; if it is another fast, it is completed. Abu Dawud said: I heard Ahmad being asked about a man who entered upon his wife while both were fasting other than Ramadan, closing the door and lowering the curtain; he said: the dowry is due. It was said to him: and the month of Ramadan? He said: the month of Ramadan is different from this. It was said to him: and if he was travelling during Ramadan? He said: that one may break the fast, meaning the dowry is due. This shows that whenever the impediment is certain, such as ihram and the fast of Ramadan, the dowry is not completed. Al-Qadi said: if the impediment does not exclude the occasions of intercourse, such as castration, impotence, the seal, illness, menstruation and bleeding after childbirth, the dowry is due; if it excludes its occasions, such as ihram and the obligatory fast, there are two versions. Abu Hanifa said: if the impediment comes from her side, the dowry does not become fixed; if it comes from his side, such as the obligatory fast or ihram, the dowry does not become fixed; if it is castration or impotence, the dowry is completed; for the impediment is from his side and does not prevent the required delivery from coming from her, so her right is completed, just as the maintenance of his wife is obligatory upon the minor if she delivered herself to him.
Section: if he remains alone with her while she is too young to be penetrated, or grown and she withholds herself from him, or he is blind and did not know of her entry upon him, her dowry is not completed. Ahmad stated this explicitly concerning the blind man who marries a woman brought in to him, the curtain lowered and the door closed: if he does not know of her entry upon him, she has half the dowry; and he indicated that if she is disobedient to him or withholds herself, her dowry is not completed; Ibn Hamid mentioned it. The reason is that the enabling did not take place from her side, as if he had not remained alone with her; likewise if he remains alone with her while he is a child incapable of intercourse, the dowry is not completed, for he is like the young girl in the inability to have intercourse.
Section: seclusion in an invalid marriage entails nothing of the dowry; for the dowry did not become due by the contract: it is intercourse that makes it due, and it did not occur; that is why it is not halved by divorce before entry: it resembles seclusion with a stranger. What is narrated from Ahmad indicates that seclusion in it is like seclusion in the valid marriage; for initiating with seclusion in it is like doing so in the valid marriage, so the dowry is established thereby as in the valid case; the first view is sounder (Al-Mughni, 7/191, 193; al-Kafi, 3/95; Sharh al-Zarkashi, 2/434; al-Mubdi', 8/107-108; Kashshaf al-Qina', 5/168-169; Sharh Muntaha al-Iradat, 5/265; Mataleb Uli al-Nuha, 5/205; Manar al-Sabil, 3/19-20).
The Malikis, the Shafi'is according to the school, and Ahmad in one version hold that seclusion does not make the full dowry due: if he remains alone with his wife without having intercourse with her and then divorces her, and she does not claim that he consummated the marriage, only half the dowry is due, and the waiting period is not due from her, whether he enjoyed her through embracing or kissing or not; by the saying of Allah (Surah 2, verse 237): Allah informs that the woman, upon divorce before any touching, is entitled to half of what was fixed for her, and He made the waiting period due by the touching; now seclusion without intercourse is not known as a touching.
"Touching" (al-mass) denotes intercourse for three reasons: the first: it is what is narrated in the tafsir from Ibn Abbas and Ibn Mas'ud (may Allah be pleased with them). The second: touching is an allusion to what would be indecent to state explicitly; seclusion has no indecent formulation and is therefore not alluded to, whereas intercourse does, so it is alluded to by "touching". The third: touching does not carry the completion of the dowry according to the two schools; for if he remains alone with her without touching her, the dowry is completed for them; if he consummates the marriage without seclusion, the full dowry is due upon him; if he touches her without seclusion or intercourse, the dowry is not completed: interpreting touching as the intercourse that carries the ruling is therefore sounder than interpreting it otherwise; divorce before touching, which is intercourse, thus causes half the dowry to become due.
And by analogy: it is a divorce before consummation, so the dowry is not completed by it, like divorce before seclusion; and because it is a seclusion devoid of consummation, the dowry is not completed by it, like seclusion when one of the two is in ihram or fasting an obligatory fast; and what does not require the major ablution does not require the completion of the dowry, like a kiss without seclusion; and since seclusion does not stand in place of consummation with respect to her, it does not stand in place of it with respect to him, like looking; the proof is that if he remains alone with her, the rights of the vow of abstinence (ila') and of impotence do not lapse thereby; and what does not establish the right of delivery on one side of the contract does not establish it on the other side, by analogy to the delivery of the sold or hired thing when an impediment less than possession intervenes.
And because intercourse has rulings specific to it: the liability to the legal punishment, the major ablution, the establishment of chastity and lawfulness for the first husband, the lapse of impotence, the ruling of the vow of abstinence, the invalidation of worship and the obligation of expiation, the dowry in the invalid marriage and its completion in the valid marriage, and the obligation of the waiting period in both; seclusion being devoid of all these rulings except the completion of the dowry and the waiting period, it is devoid of these two as well, in consideration of the other rulings. And its adjustment by analogy: it is a ruling among the rulings of intercourse, so it must be absent from seclusion, as we mentioned; and because whatever the dowry is not due by in an invalid marriage does not become fixed in a valid marriage, its origin being touching without enjoyment (Al-Ishraf 'ala nukat masa'il al-khilaf, 3/363, 365 (1199); Sharh Sahih al-Bukhari by Ibn Battal, 7/521-522; al-Kafi, 1/254; al-Taj wa-l-Iklil, 2/580; Sharh Mukhtasar Khalil, 3/260, 262; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/142, 144; Tahbir al-Mukhtasar, 3/17-18; Hashiyat al-Sawi, 5/93, 95; al-Hawi al-Kabir, 9/540, 543; Al-Bayan, 9/401, 403; al-Najm al-Wahhaj, 7/312, 313; Mughni al-Muhtaj, 4/369; Tuhfat al-Muhtaj, 9/80-81; al-Dibaj, 3/316).
The Malikis and the Shafi'is differ on two points. The first: prolonged seclusion. The Malikis said: if the wife remains with her husband for a year or thereabouts after he entered upon her, that is, the seclusion, without having intercourse with her, and they agree that there was no intercourse, the full dowry is due to her; for the mentioned residence stands in place of intercourse, on condition that he is of age and she fit for intercourse. It has been said: this is determined by custom: what is long establishes the dowry, otherwise not. And it has been said: she has only half the dowry, even if the period is long (al-Taj wa-l-Iklil, 2/579; Sharh Mukhtasar Khalil, 3/260; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/142; Tahbir al-Mukhtasar, 3/17; Hashiyat al-Sawi, 5/93, 95).
As for the Shafi'is: Imam al-Shafi'i, may Allah be pleased with him, said: whether he closed a door upon her or lowered a curtain or not, whether his stay with her was long or short, the waiting period is not due from her and the dowry is not completed if she is divorced, except by the intercourse itself (Al-Umm, 5/247). Al-Mawardi, may Allah have mercy on him, said: al-Shafi'i said: "Whether his stay with her is long or short, the dowry and the waiting period are due only by the touching itself." Al-Muzani, may Allah have mercy on him, said: the meaning of al-Shafi'i's statement came from Ibn Mas'ud and Ibn Abbas, and it is the apparent meaning of the Quran. Al-Mawardi said: al-Shafi'i said this only in response to Malik, who claimed that if the seclusion takes place in the husband's house, the claim of the one alleging consummation prevails; and if it takes place in the wife's house and is prolonged until modesty departs between them, the claim of the claimant prevails; if it is brief and modesty remains, the view of the denier prevails, relying on the practice of the judges of Medina; and this is unsound: for if seclusion makes the full dowry due, the ruling of the long and the short is identical, and its taking place in his house or hers is like consummation; and if it does not make the full dowry due, it is so in all its states; consummation may occur in a short seclusion and not in a long one, and in the seclusion of her house and not of his; this distinction therefore has no meaning requiring it, no rationale indicating it, and no basis to which to return; and the practice of the judges of Medina is no proof unless accompanied by evidence (al-Hawi al-Kabir, 9/544).
The second point: if she claims he consummated the marriage and he denies it. The Malikis said: if the seclusion took place and she claims that he consummated the marriage while he denies intercourse, she is believed on her oath if it was a seclusion of recognition (ihtida'), that is, he was alone between her and himself, a word derived from calm and stillness: each of the two spouses finds calm and reassurance in the other; the seclusion of recognition is the one known by the lowering of curtains, even if there is a legal impediment to intercourse, as when she is fasting, in ihram, in devotional retreat, menstruating or bleeding after childbirth; for such a thing cannot be witnessed nor proven by producing evidence, and the principles have been laid down that, for what concerns the wife of this kind, the word regarding its occurrence is hers: necessity calls for trusting her in it, even if it results in the loss of a right of the husband and in something becoming due upon him, like the waiting period; and because, once the enabling has occurred and the dispute concerns the act, the word belongs to the one claiming its establishment against the denier, as with the impotent man when he becomes capable with his wife, claims he consummated and she denies it; and because custom testifies to her claim: the predominant state of a man alone with a new wife, healthy and of sound senses, is that he consummates; the word therefore belongs to the one whom custom confirms; and because, when the cause of one of two litigants is strengthened by the testimony of custom in his favor or by anything that prevails over his opponent, the oath lies on his side, the origin being the holder of evidence.
It makes no difference whether she is a previously married woman or a virgin, nor whether the husband is righteous or not; she swears to her claim if she is grown or prodigal; for this is a matter her guardian does not know; if she swears, she takes the full dowry; if she retracts, the husband swears; if he retracts, he pays the full dowry. If she is young, it is the husband who swears to repel her claim and pays half the dowry; upon reaching maturity she swears if she wishes and takes the remainder of the dowry; if she retracts, she can no longer make the husband swear. If it is the husband who retracts, he pays the whole dowry, and she may not swear upon reaching maturity; the whole became incumbent upon him by his retraction, for seclusion is like a witness and his retraction like another witness, which suffices in matters of property; and if the young wife dies before maturity, her heir inherits from her and swears what she would have sworn. She is also believed in the claim of denying intercourse, in the seclusion of recognition, if the husband concurs in the denial; otherwise it is his word.
The visitor between them is believed both on intercourse and on its absence: if he visits her in her house and she says "he consummated the marriage with me" while he says "I did not consummate it with her", the word is his; for the habit is that a man lacks vigor outside his home. If she visits him in his house, and she says "he consummated it with me" and he says "I did not", the word is hers, whether she is a virgin or not; for the habit is that a man is vigorous in his own house. Likewise if she is the visitor and claims the absence of intercourse while he calls her a liar: if each of them is a visitor, the husband is believed; if they are alone in a house in which no one is present, the woman is believed, for he is vigorous there. And if he remains alone with his wife in a seclusion of recognition or of visit, or no seclusion is known between them, and he admits having consummated the marriage while she says "he did not consummate it with me", he is bound by his admission and the whole dowry becomes due if the woman is prodigal, a slave or young. If the husband admits having consummated the marriage with his wife of sound judgment and she says he did not and persists in her denial, there are two interpretations (Sharh Sahih al-Bukhari by Ibn Battal, 7/521-522; al-Kafi, 1/254; Al-Ishraf 'ala nukat masa'il al-khilaf, 3/365 (2000); al-Taj wa-l-Iklil, 2/580; Sharh Mukhtasar Khalil, 3/260, 262; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/142, 144; Tahbir al-Mukhtasar, 3/17-18; Hashiyat al-Sawi, 5/93, 95).
Al-Qadi Abd al-Wahhab said in Al-Mu'una (1/585-586): there are three versions: the first, that the word is entirely the wife's, without distinction; the second, if it took place in her home, the word is the husband's with his oath so long as there was no settling into a dwelling; if it was in his home, the word is the wife's with her oath; the third, if she is a previously married woman, the word is hers with her oath; if she is a virgin, the women examine her: if they see a mark of opening, the husband is believed; otherwise she has only half the dowry. The rationale of the first: she did what delivery and enabling required of her, and cannot be accused of negligence for failing to secure witnesses of what she cannot secure; if she were not believed, no dowry would be established upon anyone through intercourse except by his own admission, and the dowries and the compensations of enjoyment would be lost. The second: the dispute is referred to whichever litigant custom confirms: a man shrinks in another's house as a visitor, without reassurance, and is shy before her family and her household, so his word prevails that he did not consummate; and the opposite if he has lodged her: the wife's word prevails that he consummated; likewise if he remains alone with her in his own house, custom is with her, for man relaxes in his house and does not shrink. The third: when a path to certainty exists, it is preferable to conjecture and to acting upon an appearance whose truth is unknown; that is possible in the virgin through the examination by the women, and it is permitted out of necessity, as with defects; it not being possible in the previously married woman, one returns to her word; and whoever is given the word must swear.
As for the Shafi'is: al-Mawardi, may Allah have mercy on him, said: the state of the spouses after their seclusion is never without one of four states. The first: they agree upon consummation: the dowry is completed, the waiting period becomes due, and the taking back (raj'a: the husband's right to take his wife back) is earned, by the consensus of all views. The second state: they agree upon the absence of consummation: according to al-Shafi'i's later position (jadid) and Al-Imla', the dowry is not completed, the waiting period is not due and the taking back is not earned. On this basis: if she gives birth to a child of six months or more from the time of the contract, while they agreed that there was no consummation, the child is attributed to him, for she is his bed. As for the completion of the dowry according to the later position and Al-Imla', there are two views: one, that the dowry is completed, for the birth of the child proves a prior consummation; the other, that the dowry is not completed and she has only half of it, for it is possible that she retained his seed and conceived without consummation. As for his earlier position, there are two views among our companions: one, that the dowry is full, the waiting period due and the taking back earned, in consideration of the ruling of seclusion; the second, which is the view of Abu Ali ibn Abi Hurayra: the dowry is not completed, the waiting period is not due and the taking back is not earned, in consideration of the absence of consummation.
The third state: the wife claims consummation and the husband denies it: the waiting period becomes due upon her by her admission according to all views, except one of the two views of the earlier position; as for the completion of the dowry: according to the earlier position she completes it without an oath; according to his position in Al-Imla' she completes it only with an oath, for he considers seclusion a form of evidence; and according to his later position, the word is the husband's with his oath, and she has only half the dowry. If the wife produces evidence of the husband's admission of consummation, it is received with one man and two women, or with one man and an oath; for it is evidence for the establishment of property.
The fourth state: the husband claims consummation and the wife denies it: his claim aims only at the waiting period becoming due and the taking back being earned: according to his earlier position, the word is the husband's without an oath; according to his position in Al-Imla', the word is his with his oath, and it is ruled that the waiting period is due from her and that the taking back is earned by him; according to his later position, the word is the wife's with her oath, no waiting period is due from her and no taking back is due to the husband. As for the dowry: she completes it according to the earlier position; according to the later position and Al-Imla' she has only half; however, if the dowry is in her possession, the husband cannot reclaim half of it, for he does not claim it; and if it is in the husband's possession, she may not demand it except for half, for she denies the entitlement to all of it. If the husband produces evidence of her admission of consummation, the taking back and the waiting period are established for him, with two just male witnesses, and not with one man and two women; for it does not concern property (al-Hawi al-Kabir, 9/544-545; see Al-Umm, 5/247).
Imam Ibn Rushd, may Allah have mercy on him, explained the cause of the scholars' disagreement: they differed whether "touching" is a condition for the dowry becoming due through entry, or whether that is not a condition and the dowry is due by entry and seclusion, which they designate by the lowering of curtains. Malik, al-Shafi'i and Dawud said: only half the dowry is due by the lowering of curtains, so long as the touching has not occurred. Abu Hanifa said: the dowry is due by the seclusion itself, unless he is in ihram, ill, fasting in Ramadan, or the woman is menstruating. Ibn Abi Layla said: the whole dowry is due by entry, without any condition being required.
The cause of their disagreement is the confrontation between the ruling of the Companions and the apparent meaning of the Book: Allah explicitly stated, concerning the wife who has been entered upon, that nothing of her dowry may be taken back (Surah 4, verse 21); and He explicitly stated, concerning the woman divorced before touching, that she is entitled to half the dowry (Surah 2, verse 237): two texts, each for one of the two states, before and after the touching, with no middle between them: it follows apparently that the dowry is due only by touching; the touching here, apparently, is intercourse, but it may be interpreted according to its primary linguistic meaning, touching; perhaps this is what the Companions interpreted; that is why Malik said, concerning the impotent man given a deferral, that the dowry becomes due upon him if divorce occurs because of the length of his stay with her: he gave his stay, without intercourse, an effect in making the dowry due. As for the rulings narrated from the Companions: "whoever closes a door or lowers a curtain, the dowry is due upon him", they are not known to have contradicted one another in what they judged. They differed within this chapter on a branch: their disagreement over the touching, among those who require it: she claims the touching and he denies it: the well-known view from Malik is that the word is the wife's. It has been said: if there was a settling into the dwelling, she is believed; if it was a visit, she is not. And it has been said: if she is a virgin, the women examine her; the school thus contains three views on this. Al-Shafi'i and the literalists said: the word is the husband's, for he is the defendant; Malik does not consider, in imposing the oath upon the defendant, the fact that he is the defendant, but the fact that he holds the stronger likelihood in the majority of cases: that is why he assigns the word, in many places, to the claimant when he has the stronger likelihood. This disagreement comes down to whether imposing the oath upon the defendant is based on a rationale or not; likewise the position on imposing evidence upon the claimant (Bidayat al-Mujtahid, 2/17-18).