Islamic Fiqh > Marriage and family > Mahr (dowry): status, mention and limits > The preliminaries of intercourse
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The jurists differed: if a man marries a woman, kisses her, touches her or has intercourse short of the vagina, is the dowry completed thereby or not? The question follows the previous disagreement: those who hold that seclusion makes the full dowry due say that if he touches her, kisses her or enjoys her, the full dowry is due upon him: these are the Hanafis and the Hanbalis according to the school (Bada'i' al-Sana'i', 2/291, 294; al-Ikhtiyar, 3/129; al-Jawhara al-Nayyira, 4/321, 323; al-Lubab, 2/38, 34; Al-Mughni, 7/193; Kashshaf al-Qina', 5/169-170; Sharh Muntaha al-Iradat, 5/266; Manar al-Sabil, 3/19). Those who hold that seclusion does not make the full dowry due say that if he kisses her, touches her short of the vagina or sees her undressed and then divorces her, only half the dowry is due to her: this is the view of the Malikis, the Shafi'is and some Hanbalis.
The Malikis said: kissing, touching, undressing and intercourse short of the vagina do not make the dowry due upon him (Mawahib al-Jalil, 5/165). If he enjoys his wife and takes pleasure in her without intercourse, the period not being long, such as a year or thereabouts, and then divorces her, the dowry is not completed for her; but if his residence is prolonged for about a year and he enjoyed her, the full dowry is due (al-Taj wa-l-Iklil, 2/579; al-Jami' li-masa'il al-Mudawwana, 9/303; 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).
The Shafi'is said: the dowry does not become fixed by touching short of the vagina, nor by the retention of seed even in the vulva, nor by the breaking of the hymen without the organ of intercourse; if he divorces her after the hymen was broken without the organ, she has the half, without the indemnity (arsh) of virginity; if the marriage is annulled and no dowry is due to her, the indemnity of virginity is due (Mughni al-Muhtaj, 4/369; Nihayat al-Zayn, 315). Al-'Amrani, may Allah have mercy on him, said: if he has intercourse short of the vagina and his seed reaches her vagina, the waiting period is due from her by one single view, for her womb has been occupied by his seed; and if she gives birth from that, his lineage is attached to the child; does her dowry become fixed thereby? Two views: one, that it becomes fixed, for her womb has been occupied by his seed, as if he had consummated; the other, that the dowry does not become fixed, for complete intercourse did not occur, as if his seed had not reached her vagina. If the woman retains the seed of someone other than her husband while believing it to be her husband's, no ruling is established for him, for the doubtful semblance is considered in the man (Al-Bayan, 9/403-404).
The Hanbalis said: the dowry is established in full if he touches his wife with desire, or looks at her vagina with desire, or kisses her, even in the presence of people; for that is a form of enjoyment which makes the dowry due like intercourse; and because he obtained what is not lawful for another; by the implied meaning of the saying of Allah (Surah 2, verse 237); and the reality of touching is the meeting of two skins. The dowry is not established by looking at her short of her vagina: it is neither explicitly mentioned nor within the meaning of what is explicit; nor is it established by her retaining her husband's seed without seclusion or intercourse, for there is no enjoyment for him in it; but lineage is established by her retaining his seed: if she conceives from his seed and gives birth to a child of six months or more, his lineage is attached to the child (Kashshaf al-Qina', 5/169-170; Sharh Muntaha al-Iradat, 5/266; Manar al-Sabil, 3/19). Ibn Qudama, may Allah have mercy on him, said: if he enjoys his wife by touching short of the vagina without seclusion, such as kissing and the like, the explicit text from Ahmad is that the dowry is completed thereby: he said: if he takes her, touches her and embraces her without secluding with her, she has the full dowry if he obtained from her something not lawful for another; and he said, in the version of Muhanna: if he marries a woman and looks at her undressed while she bathes, the dowry becomes obligatory upon him; and it is narrated from Ibrahim: if he views of her what is unlawful for another, the dowry is upon him, for it is a form of enjoyment, like the kiss. Al-Qadi said: this may rest upon the establishment of the prohibition of affinity through it, concerning which there are two versions: the completion of the dowry thereby thus has two views (Kashshaf al-Qina', 5/169-170; Sharh Muntaha al-Iradat, 5/266; Manar al-Sabil, 3/19).
Two views clash over the completion of the dowry by the breaking of the hymen without the organ of intercourse. One: the dowry is completed, by what ad-Daraqutni narrated from Muhammad ibn Abd ar-Rahman ibn Thawban:
The Messenger of Allah (peace and blessings be upon him) said: 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 because it is a touching, falling under the saying of Allah "before you have touched them" (Surah 2, verse 237); and because it is enjoyment of his wife, so the dowry is completed thereby as by intercourse. The other view: the dowry is not completed; this is the view of most jurists; for the saying of Allah "touched them" (Surah 2, verse 237) manifestly means intercourse; and the implied meaning of His saying "if you divorce them before you have touched them" is that the dowry is not completed for one who did not consummate and that no waiting period is due: its generality is set aside for those who seclude with them, by the consensus of the Companions; there remains, beyond it, whatever the generality covers (Al-Mughni, 7/193).
The breaking of the hymen without the organ of intercourse, by the husband or by another: the Hanafis said: if he breaks her hymen with a stone or the like, she has the full dowry; contrary to breaking it by a push (daf'), where half is due if he divorces her before entry. If a stranger pushes her and her hymen breaks, and she is divorced before entry, half the named dowry is due upon the husband and half the dowry of her peers upon the stranger: thus said Ibn Nujaym (al-Bahr al-Ra'iq, 3/153-154).
Ibn Abidin, may Allah have mercy on him, said: what appears to me is that this falls under what precedes, the seclusion; for custom has it that the breaking of the hymen with a stone or the like, such as a finger, occurs only in seclusion: the full dowry is therefore due, contrary to breaking it by a push, which means it occurred outside seclusion. Then I saw what indicates this in the crimes section of Al-Fatawa al-Hindiyya, from Al-Muhit: if he pushes his wife without entering upon her and her hymen disappears, then divorces her, half the dowry is upon him; and if he pushes another's wife, her hymen disappears, then marries her and enters upon her, two dowries are due for her: one by entry, by the ruling of marriage, and one by the breaking of the hymen through the push, as in the crimes of Al-Khaniyya.
His statement "if he pushes his wife without entering upon her" is mentioned likewise in the crimes of Al-Khaniyya and likewise in Al-Fath here: it is explicit as to what we said about the push, and indicates that the question of the stone belongs to seclusion, since no difference appears between breaking it by a stone alone or by a push; and it indicates that the purport of imposing half the dowry in the question of the push is that the husband bears no liability for the breaking of his wife's hymen, whatever its cause: for the obligation of half the dowry upon him occurs only by the ruling of divorce before entry; otherwise another dowry would be due upon him for breaking it by the push, as in the case of another's wife. And it is known that the obligation of the full dowry if he breaks it with a stone occurs only by the ruling of divorce after seclusion, not by the cause of breaking it with the stone; otherwise two dowries would be due upon him, to the point that if he had struck her with a stone without seclusion and broken her hymen, nothing would be incumbent upon him for breaking the hymen; if he divorces her before the seclusion as well, half the dowry is upon him by the ruling of divorce, as in the push.
Also indicating what we said, the absence of difference between breaking it by stone or by push, is the explicit statement of Al-Khaniyya: if he pushes a foreign virgin, young or grown, and her hymen breaks, the dowry is incumbent upon him; and likewise if he breaks it with a stone or the like: no difference between push and stone in the case of the stranger; the difference between them in the case of the wife therefore lies in seclusion or its absence: nothing is upon the husband for the mere breaking by push, for he owns it by the contract, so no liability is conceivable, contrary to the stranger; and since nothing is incumbent upon him for the mere push, nothing is incumbent upon him either for the mere breaking with a stone or the like: no difference between one instrument and another in this breaking; the push is thus not a restriction. Then I saw in Jinayat ahkam as-sighar the explicit statement: if the husband breaks her hymen with the finger, he bears no liability but is reprimanded. Its purport is that it is merely disliked. Is the dislike removed by his inability to reach her while still a virgin? The apparent view is that it is not: for he thereby becomes impotent, and she has the right to judicial dissolution of the marriage; were that permitted, his impotence would not be established by that inability. And Allah knows best; understand (Hashiyat Ibn Abidin, 3/103).
Imam al-Tahawi, may Allah have mercy on him, said, concerning one who removes the woman's hymen without intercourse: Muhammad said in Al-Imla': if he pushes his wife and removes her hymen before the seclusion, then divorces her, she has half the dowry according to Abu Hanifa; according to Abu Yusuf and Muhammad, the whole dowry, as if he had consummated with her. He said: if a stranger pushes her and removes her hymen, the dowry of her peers is upon him according to Abu Hanifa; and if her husband divorces her before entry, half the dowry is upon him according to all. If her husband and a stranger push her together and both remove her hymen, half the dowry of her peers is upon the stranger; if her husband divorces her before entry, half of the dowry he married her upon is upon him according to all. Al-Hasan, from Zufar, said concerning a man who pushed his wife before entering upon her, removed her hymen and then divorced her before entry: the dowry is upon him. Abu Yusuf said: half the dowry. Zufar said: if he and another push her before he enters upon her and they remove her hymen, then he divorces her before entry: three quarters of the dowry are upon the husband and half upon the stranger. And Abu Yusuf said: half upon the husband and half upon the stranger (Mukhtasar Ikhtilaf al-'Ulama, 2/357-358).
The Malikis said: if the husband breaks his wife's hymen with his finger: if he divorces her before having intercourse with her, she has half the dowry together with the indemnity of virginity; and according to Ibn al-Qasim in Al-Mawwaziyya, the full dowry is due for her. If he divorces her after having consummated the marriage, she has only the dowry, and the indemnity falls under the dowry: for intercourse is possible only after its removal, so it is among the concomitants of intercourse; and breaking the hymen with the finger is unlawful: the husband is reprimanded for it (Sharh Mukhtasar Khalil, 8/41; Tahbir al-Mukhtasar, 5/281; Hashiyat al-'Adawi, 2/114; Hashiyat al-Sawi on ash-Sharh as-Saghir, 10/144).
Al-Hattab, may Allah have mercy on him, said: question: whoever pushes a woman and her hymen falls owes what she thereby loses among husbands, and the reprimand is upon him; likewise if he breaks it with his finger, and the reprimand here is stronger; whether he did so as a man, a boy or a woman. This concerns one other than the husband; as for the husband, his ruling in the push is like that of others: he owes what she loses before others, even if he divorces her and does not retain her. If he does that with his finger, there is disagreement: does the dowry become due thereby, or is only owed what she loses before other husbands if he divorces her without retaining her? Two views... He said in At-Tawdih: if he reaches her with his finger and divorces her: if she is a previously married woman, nothing is due to her; if she is a virgin and he broke her hymen with it, it is said that the whole dowry is incumbent upon him; and it is said that what diminishes her, together with half, is owed; and it is said that if it appears that she can only marry thereafter with a dowry, it is like the first; otherwise like the second; Asbagh inclined to the second, which al-Lakhmi approved. He said in An-Nawadir: no reprimand is upon him; and if someone other than her husband did that to her, the reprimand and the diminution are upon him; this was mentioned earlier in the discussion of the Utbiyya (Mawahib al-Jalil, 5/165-166).
The Shafi'is said: the dowry does not become fixed by the breaking of the hymen without the organ of intercourse; if he divorces her after breaking it without the organ, she has the half, without the indemnity of virginity; if he annuls the marriage and no dowry is due to her, the indemnity of virginity is due (Mughni al-Muhtaj, 4/369; Nihayat al-Zayn, 315). Imam Ibn Hajar al-Haytami was asked about a man who broke his wife's hymen without his member, then divorced her before entry: is anything besides half her dowry incumbent upon him for causing the loss of her virginity? He answered: nothing is incumbent upon him for breaking the hymen, for he is entitled to it; but he is reprimanded, for he harmed her by breaking it without the member; and Allah knows best (Al-Fatawa al-Fiqhiyya al-Kubra, 4/220).
As for the Hanbalis: Ibn Qudama, may Allah have mercy on him, said: if he pushes his wife and removes her hymen, then divorces her before entry, only half her dowry is upon him. Abu Yusuf and Muhammad said: the whole dowry is upon him, for he removed her hymen within a valid marriage, so the full dowry is due, as if he had consummated with her. Our argument: the saying of Allah (Surah 2, verse 237), which is absolute before the touching, as if he had not pushed her; and because he destroyed what he is entitled to destroy by the contract, so he does not guarantee it to another, just as if he had destroyed the hymen of his slave girl. It is inferred from it that the full dowry is due: for Ahmad said that if a stranger does it, the dowry is upon him; all the more so if the husband does it; for what makes the dowry due from the outset is more worthy of establishing the dowry; and Ahmad stated explicitly, concerning one who takes his wife and embraces her, and concerning one who looks at her undressed: the full dowry is upon him; this is therefore all the more so.
Section: if he pushes a foreign woman and removes her hymen, or does so with his finger or otherwise: Ahmad said: she has the dowry of her peers; and he said: if he marries a virgin woman, then he and his brother push her and both remove her hymen, then he divorces her before entry: half the dowry is upon the husband and half the contractual counterpart upon the brother; and this is narrated from Ali, from his son al-Hasan, from Abdallah ibn Ma'qil and from Abd al-Malik ibn Marwan. Al-Shafi'i said: only the indemnity of her virginity is upon him: for it is the destruction of a part whose compensation the Law did not intend to estimate; its indemnity is therefore referred to the authority, like everything not estimated; for if the dowry is not completed thereby with respect to the husband, all the more so with respect to the stranger.
Our argument: what Sa'id narrated, that Hushaym reported to us from Mughira, from Ibrahim: a man had an orphan girl in his care; his wife feared he would marry her, so she sought the help of women who restrained the girl for him, spoiled her hymen and told her husband: she is unchaste. He informed Ali, who summoned his wife and the women; when they came, they soon confessed what they had done. He said to al-Hasan ibn Ali: judge in this matter, O Hasan. He said: the legal punishment upon the one who slandered her, and the indemnity of breaking upon her and upon the women who restrained her. Ali said: if camels were charged with grinding, they would grind; and no camel grinds on that day. He also narrated: Hushaym said: Isma'il ibn Salim reported to us from al-Sha'bi concerning four slave girls: one of them said: she is a man; another said: she is a woman; the third said: she is the mother of the one claimed to be a man; the fourth said: she is the mother of the one claimed to be a woman; the one who claimed to be the man's mother proposed to the one said to be the woman's mother, and they married her to her; she set upon her and spoiled her hymen with her finger; the matter was brought to Abd al-Malik ibn Marwan, who divided the dowry into quarters among them and annulled the share of the one who had allowed herself; the matter reached Abdallah ibn Ma'qil, who said: had I been in charge, I would have placed the dowry upon the one who spoiled the slave girl alone; these are stories that circulated without being rejected, so they are like consensus; and because the destruction of the hymen is earned by the marriage contract: if a stranger destroys it, the dowry is due, like the benefit of the private part (Al-Mughni, 7/194; al-Furu', 5/225; al-Mubdi', 7/174-175; Al-Insaf, 8/309-310; Kashshaf al-Qina', 5/181).
The situations in which half the dowry is due: there is no disagreement among the jurists that the dowry is halved in certain circumstances, among which the following. a) If he divorces her before entry or seclusion, after fixing a valid dowry for her: the people of knowledge agreed that if a man concludes a valid contract with a woman, fixes a dowry for her, then divorces her before entry or seclusion, half the named 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
Imam Ibn Rushd, may Allah have mercy on him, said: they agreed in general terms that if he divorces her before entry, having appointed a dowry, he takes back half of it, by His saying "half of what you appointed" (Bidayat al-Mujtahid, 2/18). There is no disagreement among them that the virgin and the previously married woman are alike in this. Imam Ibn Abd al-Barr, may Allah have mercy on him, said: the Muslims agreed that the previously married woman and the virgin are equal in the entitlement to half the dowry upon divorce before entry; then He said: "unless they waive it": and it is likewise for the virgin and the one who is not (Al-Istidhkar, 5/430; see Al-Iqna' fi masa'il al-ijma', 3/1222 (2237); Bada'i' al-Sana'i', 2/296-297; 'Aqd al-Jawahir al-Thamina, 2/482; al-Taj wa-l-Iklil, 2/602; Sharh Mukhtasar Khalil, 3/280-281; Tahbir al-Mukhtasar, 3/52; al-Hawi al-Kabir, 9/548; Al-Bayan, 9/408-409; al-Najm al-Wahhaj, 7/341; Mughni al-Muhtaj, 4/383-384; Al-Mughni, 7/173; al-Kafi, 3/97; Manar al-Sabil, 3/18).
The text then preserves the end of section (b), on the dowry not validly named: the dowry of equivalence is there assimilated to the named dowry by way of consideration, attaching the thing to what resembles it in meaning. The Hanafis and, in one version, the Hanbalis hold, however, that the half is not due in this case and that only the mut'a (compensation) is due to the wife: for this marriage is bare of naming, so the mut'a becomes due as if no dowry had been fixed; and because the cause (the half) is specified in the text for the dowry fixed in the contract (Surah 2, verse 237), and what is fixed afterwards does not fall within its meaning (Ahkam al-Qur'an by al-Jassas, 1/206; Ahkam al-Qur'an by Ibn al-Arabi, 1/292; al-Taj wa-l-Iklil, 2/594; Sharh Mukhtasar Khalil, 3/274; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/163; Tahbir al-Mukhtasar, 3/44; al-Hawi al-Kabir, 9/548; al-Najm al-Wahhaj, 7/332; Mughni al-Muhtaj, 4/379; al-Dibaj, 3/327; Al-Mughni, 7/184).
The jurists differed: if a man concludes a khul' with his wife before entry, is the dowry halved or does it lapse entirely? The Shafi'is and the Hanbalis hold that the separation coming from the husband's side, like khul' before entry, makes half the named dowry due; by the saying of Allah (Surah 2, verse 237); and the rest of what the husband has solely in his power was analogized to it, for it falls within its meaning; the dowry is halved in khul' because the predominant side in it is the husband's, as shown by its validity coming from her as from others: the husband thus became like the one holding it solely.
The Shafi'is said: the dowry is bisected by divorce and khul' before entry, even by the wife's choice: as if he had delegated divorce to her and she had divorced herself, or suspended it upon her act and she had done it, as if he had suspended her divorce upon her entering the house and she had entered. If he concludes khul' with his wife before entry against something other than the dowry, he keeps the named dowry against which the khul' was concluded, and she has half the dowry. If he concludes khul' against her dowry itself, he has concluded it against his property and against hers: for half the dowry returns to him by khul'; separation is thus accomplished and the naming becomes void in his share as in hers; and the husband has the option if he did not know of the bisection and the separation: if he annuls it, he takes back the dowry of equivalence according to the apparent view, and according to another view the named substitute, the equivalent if it is a fungible thing or its value; if he accepts it, he takes back half the dowry of equivalence according to the apparent view, and according to the other view the equivalent of half the dowry or its value (al-Hawi al-Kabir, 9/521, 523; al-Muhadhdhab, 2/59; Al-Bayan, 9/434, 439; Rawdat al-Talibin, 5/149, 179; Kifayat al-Akhyar, 425; al-Najm al-Wahhaj, 7/341; Mughni al-Muhtaj, 4/383-384).
The Hanbalis said: the separation coming from the husband's side, like khul' before entry, makes half the named dowry due, by the verse and by the indicated analogy. If the husband concludes khul' against half her dowry before entry, that is valid and the whole dowry becomes his: half by divorce and half by khul', as compensation for him. If he concludes khul' before entry against the equivalent of half the dowry upon the wife, while she has not received the dowry from him, that is valid and the whole dowry lapses from him: half by divorce and half by offset, wherever it is found fulfilling its conditions.
If the woman says to her husband before entry and before taking the dowry: "Release me from the marriage for what of my dowry is delivered to me, or divorce me on condition that I do not sell you the dowry", and he acts thus, the khul' is valid: for it amounts to asking khul' against half the dowry, and the husband is freed from all of it: half by khul' and half by its being established as compensation for him. If he concludes khul' before entry against the equivalent of the whole dowry upon himself, or concludes khul' against her whole dowry, the khul' is valid: for it comes from its people in its place; he takes back half of it from her and the dowry lapses from him.
If the husband grants his wife the option and she chooses herself, or if he delegates divorce to her and she divorces herself, it is like his own divorce: her dowry does not lapse; for the woman, even though she handles the divorce, is his deputy and his agent: the agent's act is like the principal's, as if it issued from his own doing. If he suspends her divorce upon an act from her, her dowry does not lapse: for the cause is from him and she only fulfilled his condition; the ruling is attributed to the holder of the cause. Shaykh al-Islam Ibn Taymiyya, may Allah have mercy on him, said: if he suspends her divorce upon a characteristic of her act that brings her a compensation, such as her entering a stranger's house, and she does it before entry, no dowry is due to her; Ibn Rajab strengthened this view (Al-Mughni, 7/204, 205, 211; al-Kafi, 3/92; Al-Insaf, 8/278; Kashshaf al-Qina', 5/163, 166; Mataleb Uli al-Nuha, 5/212; Manar al-Sabil, 3/18).
The Hanafis and the Malikis, generally speaking with detail among them, hold that if the woman concludes khul' with her husband before entry, she has nothing and the dowry is not halved. The Hanafis said: if she is released by khul' before entry against a thousand, while her dowry is a thousand and she has received nothing, analogy requires that five hundred be due from her to the husband: for five hundred of the dowry lapsed by divorce before entry, and the woman committed herself to the thousand, and half the thousand lapsed from her liability by way of offset; for she has upon the husband five hundred remaining after the lapse of half the dowry: five hundred more are therefore due from her, completing the thousand to which she committed herself. According to istihsan: nothing is due from her; for the husband's aim is the lapse of the whole dowry from his liability, which has occurred: nothing beyond it is therefore incumbent upon her. As for the case where she received the whole dowry: according to analogy, the woman returns a thousand and five hundred: the thousand as khul' compensation and five hundred, half the dowry, for the divorce before entry; according to istihsan: she returns only the thousand: five hundred as khul' compensation and five hundred for the divorce before entry (Al-'Inaya, 5/500).
Al-Kasani, may Allah have mercy on him, said: as for explaining what causes the whole dowry to lapse: among that is khul' against the dowry, before or after entry: if the dowry had not been received, it lapses from the husband; if it had been received, she returns it to him; if he concluded khul' against property other than the dowry, that property is obligatory upon her, and the husband is freed from every right that became due to her by the marriage, such as the dowry and past maintenance, according to Abu Hanifa; for khul', although a divorce with compensation in our view, contains the meaning of acquittal (Bada'i' al-Sana'i', 2/295).
There is among them another detail, mentioned by Imam al-Haddad, may Allah have mercy on him, in Al-Jawhara: his statement "and the mubara'a is like khul'": its form is that he say: "You are quit of the marriage between me and you against a thousand", and she accept. His statement "khul' and mubara'a cause every right of each of the spouses against the other, connected to the marriage, to lapse according to Abu Hanifa": meaning the marriage existing at the time of the mubara'a; as for what preceded it, its rights do not lapse. Abu Yusuf said, for mubara'a, like Abu Hanifa's statement; as for khul', it is like divorce against property: nothing lapses except what they named. Muhammad said for both: nothing lapses except what they named.
The form of the question: she is released against a named thing, a commodity or a debt, while the dowry is other than that and upon the husband, whether he entered upon her or not: what she named is obligatory upon her, and she has nothing of dowry against him according to Abu Hanifa; according to the two others, she may demand from him the dowry if he entered upon her, or half of it otherwise; and if she had received the dowry and then he concluded mubara'a or khul' before entering upon her against something, that is permitted, the whole dowry is hers, and neither follows the other after the khul' and the mubara'a with anything of the dowry. Likewise if she had received half the dowry, or less, or more, then is released against named dirhams before he enters upon her: the husband has what she named, and neither of the two has against the other anything of the dowry in his possession.
In At-Tatimma: if he concludes khul' against known property without mentioning the dowry and she accepts, does the dowry lapse? This is a point of disagreement: according to Abu Hanifa it lapses; according to the two it does not lapse, and she may demand it if he entered upon her, or half of it otherwise. In its commentary: if he concludes khul' or mubara'a against a slave, a garment or dirhams, while the dowry is other, he has nothing other than that; if he had given her the dowry, he takes back nothing from her; if it was before entry and he gave her nothing of it, she has nothing against him: this is Abu Hanifa's view; Abu Yusuf followed him in mubara'a; as for khul', he did not follow him and said: khul' does not cause that. Muhammad said for both: it is like divorce against property. Abu Yusuf is thus with Muhammad in khul', and with Abu Hanifa in mubara'a.
It is said in Al-Yanabi': if the khul' was concluded with the word "khul'", the husband is freed from every right that became due to her by the marriage, such as the dowry, past maintenance and past clothing; the maintenance of the waiting period does not lapse from him; and if it was concluded with the word "mubara'a", it is the same according to Abu Hanifa: if she had received her dowry, he hands it over to her; if she had not received it, she has nothing against the husband, before or after entry. Abu Yusuf said: if it is with the word mubara'a, as Abu Hanifa said; if it is with the word khul', nothing lapses except what they named at the khul'. Muhammad said: nothing lapses except what they named, whether with the word khul' or the word mubara'a; according to him: if it took place before entry and she had received her dowry, she must return half of it; if it was after entry, it is hers, and he has against her all that she named. They agreed: if one of the two has against the other a debt other than the dowry for another cause, it does not lapse: this is what the Shaykh guarded by his statement "of the rights of marriage" (Al-Jawhara al-Nayyira, 4/252-253; al-Lubab, 2/120).
The Malikis said: the woman of sound judgment, if she concludes khul' with her husband before consummation by saying to him: "Release me for such a thing", this has two forms: either she says: "Release me for such a thing, ten dinars for example, of my dowry, or divorce me for ten of my dowry": she has half of what remains after he takes the ten; as if her dowry were thirty and she said: "Release me for ten of my dowry": she has half of the remainder, that is, ten out of twenty. Or she says: "Release me for such a thing, ten dinars for example", without saying "of my dowry": she then has no half of the dowry and deserves nothing of it: for the word khul' implies giving up everything owed to her of her rights, and she gives what she concluded the khul' upon of her property in addition to the dowry; and if she had received it, she returns it and gives the mentioned property in addition. And if she says: "Divorce me for ten", without saying "of my dowry", and he divorces her: she has the whole half and gives only that upon which the divorce occurred (al-Taj wa-l-Iklil, 2/611-612; Sharh Mukhtasar Khalil, 3/289-290; Tahbir al-Mukhtasar, 3/64; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/181-182).
The jurists differed: if the man converts to Islam before entry, while married to a polytheist woman who is not of the People of the Book, is the dowry halved or not? The Shafi'is and the Hanbalis according to the school hold that if the husband converts before entry, half the named dowry is due to the wife: for the annulment of the marriage for difference of religion takes place by his conversion; he has spoiled another's marriage by his conversion, even though it is obligatory upon him, like the parallel case of the obligatory breastfeeding (Rawdat al-Talibin, 5/149; al-Najm al-Wahhaj, 7/341; Mughni al-Muhtaj, 4/384; al-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', 5/165; Manar al-Sabil, 3/18).
The Hanafis, the Malikis and Ahmad in one version hold that if he marries a polytheist woman and converts before entering upon her, no dowry nor anything else is due from him: for he did what was obligatory upon him, and the separation occurred through her refusal to follow him in the obligatory: it therefore comes from her; and because the separation is from her side and the dowry was not confirmed: like apostasy and the apostate woman (al-Hidaya, 1/220; Al-'Inaya, 5/102-103; Al-Jawhara al-Nayyira, 4/358; al-Lubab, 2/53-54; al-Kafi, 3/97).
Imam Abu Ja'far al-Tahawi, may Allah have mercy on him, said: our companions said: if one of the spouses refuses Islam after it was proposed to him, in what is not permitted to him, they are separated: if the husband who refused did so before entry, half the dowry is upon him; if it is the wife who refused, she has nothing: this is the view of al-Thawri. Malik said: whichever of the two converts and they are separated before entry: no dowry is due to the wife, for it is an annulment by invalidity. Ibn Shubruma said, concerning the Magian whose wife converts while he has not entered upon her: the bond is cut and no dowry is due to her; if he converts without entering and she does not convert before her waiting period expires, half the dowry is due to her; if she converts before the expiry of the waiting period, they remain married. Al-Shafi'i said, in the Muzani: if the polytheist husband converts, having a wife like him, before entry: half the dowry is due to her; if she converts before him, no dowry is due to her: for the annulment comes from her side (Mukhtasar Ikhtilaf al-'Ulama, 2/360-361).
Imam Ibn Abd al-Barr, may Allah have mercy on him, said: they differed concerning the two polytheists when the husband converts before entry, Islam is proposed to the wife and she refuses: nothing of the dowry is due to her. Al-Shafi'i said in the Muzani: if the husband converts before entry, half the dowry is due to his wife, whether she is a Magian or a polytheist; if she converts before him, no dowry is due to her: for the annulment comes from her side. Abu Umar said: because there is no waiting period for the woman who was not entered upon and who awaits him. Abu Hanifa and his companions said: if Islam is proposed to the one of the two spouses who has not converted and he refuses, they are separated; unless the wife is of the People of the Book: the man converts and his wife refuses, he then remains in his marriage with her. If the husband is the one who refused before entry, half the dowry is upon him; if it is the wife who refused, she has nothing: this is the view of al-Thawri. Ibn Shubruma said, concerning the Magian whose wife converts without his having entered upon her: the bond is cut between them and no dowry is due to her; if he converts without entering and she does not convert before the waiting period expires, half the dowry is due to her; if she converts before the expiry of the waiting period, they remain married.
Abu Umar said: as for the one who did not consider half the dowry due to the wife if she converts before her husband, while he has not converted and has not entered upon her: it is because the annulment comes from her side, so nothing of the dowry is due to her. Whoever grants her half the dowry claims that she did a lawful act that Allah accepts from her: when her husband refused to convert, he became like the one who separates and divorces: half the dowry is therefore due upon him. As for the husband converting before his wife without entering upon her: if she is of the People of the Book, he remains with her; if she is a Magian or a polytheist: the reasoning of whoever grants half the dowry if she refuses Islam is that he leaves her by his conversion, while they had contracted their marriage upon their religion; and whoever says "she has nothing" bases his act and statement on what preceded: for he did what is his duty; had she converted, she would have remained at peace with him; when she refused, she was the one who brought about the separation: it therefore comes from her side, and nothing of the dowry is due to her (Al-Istidhkar, 5/524-525).