Is it possible for one of the spouses to dissolve the marriage upon finding a certain defcet in the other?
Jurists differ regarding the defects which justify the dissolution of the marriage and also regarding the rules that apply in these circumstances.
Impotence (Al-`anan) is a disease which renders a man incapable of sexual intercourse. All jurists of the five schools give the wife the right to dissolve the marriagc in such a situation. But in a situation where the hushand's inability is limited to his wife and he is capable of intercourse with any other, the schools have different views regarding the wife's right of dissolving the marriage.
The Imámis say: The wife's right to dissolve the marriagc is not ascertained unless the husband is incapable of having intercourse with any woman whatsoever. Thercfore, on his inability being limitcd to his wife and not others, the right of dissolving the marriage does not accrue. Because the source of this right is a rule which gives the power of dissolving marriage to the wife of an impotent man: one who is capable of having intercourse with other women is not considered impotent in the true sense of the word. This is so because impotence is a bodily defect which renders a man incapable of intercourse with any woman, exactly like a blind man who cannot see anything. In a case where a person is incapable of intercourse, with his wife and not others, then the reason is necessarily an external cause apart from an innate physical defect. The reason could be shyness or fear or a quality of the wife which makes her detestable, or something else. It has also been observed that there are such criminals whose dislike of legitimate (sexual) relations has reached such a degree that they are unable to perform it. On the contrary, their inclination towards haram is such that it gives them the required strength and the pleasure of performing it.
According to the Sháfi`í, the \anbalí and the Hanafi schools, a person's inability to copulate with his wife gives her the right to dissolve the marriage despite his being capable of it with other women, because in such a case he will be considered impotent with respect to her. IN such a case, they point out, of what benefit is it to the wife if he is capable of having intercourse with other women!
However, there is consensus among jurists of all the schools that when a woman pleads the impotence of her husband and he denies the charge, the burden of proof will rest on her to prove that he is impotent. Upon her failure to provide the proof , it will be seen whether she was a maiden prior to marriage or not. If she had been one, she will be referred to female specialists to determine her present condition, and their opinion will be acted upon. In a case where the wife is not a maiden, the husband will be made to take an oath because it is he who denies the charge made by the wife claiming the presence of a defect sufficient for dissolving the marriage. If he takes the oath, the wife's claim will be dismissed. But if refuses to take the oath, the wife will take the oath and then the judge will give him one lunar year's time. When this period also does not yield any benefit for the wife, the judge will grant her the option of remaining with him or of dissolving the marriage. If she elects to remain with him, the choice is hers, and if she desires dissolution, she will annul the marriage herself or she can request that the governor does so. According to the Imámi, the Sháfi`í and the \anbalí schools, she does not require a divorce for the separation. The Málikís say: She will divorce herself by the order of the judge. This observation of the Málikís does in fact mean annulment.
The Hanafi school is of the opinion that the judge will order the husband to pronounce the divorce and if he refuses the judge will pronounce the divorce.
The \anafís , in such a case, regard the payment of the full dower as necessary. the Imámis consider the payment of half the dowery as sufficient.
The Máliki, the Sháfi`í and the \anbalí schools are of the opinion that she will not be entitled to receive any dowry.
If the husband's impotence is subsequent to the contracting and consummation of marriage, the wife will not have the choice of dissolving the marriage. However, if impotence occurs after the contract but before the consummation of marriage, she will have the choice of annulment in the same manner as when impotence precedes the contract.
The author of the Book al-Jawáhir, vol. 5, chapter on marriage, on the issue of impotence says:
If the husband confirms his impotence to engage in sexual intercourse with his wife and the judge offers him one year time period before pronouncing a decision after which he claims the sexual potency while the wife refites it; in such a case, the claim of the husband shall be accepted after he takes the oath as if he did not confirm the impotence in the first place.
The author introduced a number of proofs hardly anyone pays attention to it. That is because the new claim by the husband of his abilities after he confirmed their absence would not be accepted because of his presumtuous new claim. The scholar however has an indepth perspective to be limited by the presumtive. The following are some of his arguments:
The confirmation of impotence before the lapse of the time does not prove the defect. That is because an instantaneous defect could be temporary or permanent. But since the existence of the general does not prove the existence of the particular, as is the case where one says I wrote with the pen does not indicate if the pen was ink pen or a pencil, the same goes for the inability to perform which is not necessarily indicative of the particular defect. That could be due biological causes or due to external factors. Hence the coupling of the inability and impotence does not prove impotence unless accompanied by the confirming proof .
The defendant is the one who --if no charges were brought against him-- would not bring any charges and the plaintiff is the one who --if no charges were brought against him-- would still bring forth charges. In one word, the plaintiff is the one who grabs from the neck and starts the wars; while the defendant is the one who asks for peace and reconciliation. In our case there is no doubt that if the wife did not claim the impotence of the husband, the husband would not say a thing. If the husband did not bring any claim however, she still may claim his impotence. Given this, she shall be considered the plaintiff thus must present proof, whereas him being the defendant liable to take the oath.
The following Prophetic tradition made it very clear that the man is the one to take the oath and did not make a distinction based on who comes first with the claim of impotence.
If a man marries a Thayyib woman and she claims that he is impotent, then the say is his, he must swear that he had sexual intercourse with her.
Mutilation and Castration
(Al-Jabb and al-Khisá')
Al-jabb means the state of mutilation of the male organ and by al-khisá' is meant castration, either by the removal or by the crushing of both testicles. Both, al-jabb and al-khisá', if present before the consummation of marriage, give the wife the immediate right to annul the contract. But if these two defects occur after the consummation of marriage, the right to annul the marriage will not result.
The \anafís say that if the castrated person has the capacity of erection, the right to annul the marriage does not arise, even though ejaculation be absent. Jurists of the other schools regard ejaculation as a necessary condition regardless of erection, because the inability to ejaculate is a defect similar to impotence.
Al-Shahíd al-Thání in the chapter on marriage of his book al-Masálik, volume 1, narrates that a castrated person can penetrate and have orgasm, and his condition during the act is more intense than a normal male, although he does not ejaculate. This inability is sufticient for rescinding the contract, because the traditions prove the right of the wife of a castrated person to opt for separation.
The \anafís say: When the contract is rescinded as a result of any of these two defects, the wife shall be entitled to full dowery. The other schools have observed that, if the contract is annulled as a consequence of mutilation, no dowery need be paid because marriage has not been consummated. But if castration be the cause for rescinding the contract, she will receive dowery only when consummation has occurred.
The \anafi school does not recognize any ground on which the husband may annul the contract, even though there may be tens of defects in the wife. On the contrary, the wife has the right of annulling the marriage on the basis of any of the three above-mentioned defects, i.e. impotence, mutilation, and castration. Therefore, the \anafís have nothing to say about the forthcoming defects.
The Maliki, the Sháfi`í and the Hanbali schools concur that the insanity of one spouse gives the other the right to annul the marriage. But these schools differ regarding the details. The Shafi`i and the \anbalí schools have granted the right of annulment irrespective of whether madness results before or after marriage, and even after consummation. There is no period of waiting before annulment, as required in the case of impotence.
According to the Málikís, if the insanity occurs before marriage, the right to annul the contract results for the sane spouse, on the condition that he or she suffers harm in living with the other. But if the insanity results after marriage, only the wife has the right to annul the marriage after a probationary period of a year granted by the judge. The husband cannot annul the marriage if his wife loses sanity after marriage.
According to the Imámis, the husband will not annul the marriage where the wife has become insane after marriage, because he has the option of divorce. The wife, on the contrary, can annul the marriage on the husband's insanity, regardless of its preceding the marriage or occurring afterwards, and even after consummation.
The Imámi, the \anbalí , the Sháfi`í and the Maliki schools concur that the wife is entitled to receive full dowery if the marriage has been consummated, and nothing otherwise.
Leprosy and Leucoderma
According to the Imámis, leprosy and leucoderma are among defects that give the husband, not the wife, the right to annul the marriage on condition that such disease be antecedent to the marriage without the husband's knowledge. The right to annul the marriage does not exist for the wife if her husband suffers from any of these two diseases.
The Sháfi`í, the Máliki and the \anbalí schools regard these two diseases among the causes that give both the man and the woman an equal right to annul marriage. Once one of the spouses suffers from any of these two diseases, the other acquires the right to annul the contract. According to the Sháfi`í and the \anbalí schools, the rule that applies in the case of insanity applies here as well.
The Málikís are of the opinion that the wife has the right of annulment equally whether the husband's leprosy antedates the marriage or follows it. As regards the husband's right, he can do so on the wife's being leprous before marriage or at the time of marriage. Regarding leucoderma, both spouses have the choice of annulment if the disease precedes marriage, and if it occurs after marriage, only the wife can exercise her option and not the husband. The milder forms of leucoderma, on their appearance after marriage, do not give rise to any right. The judge gives a probationary period of one lunar year for those suffering from these two diseases, for there is a possibility of cure.
Al-Ratq, al-Qarn, al-`afal & al-'if_á'
These four defects which occur only among women, give the husband, according to the Málikís and the \anbalís , the right to annul the marriage contract. According to the Sháfi`ís , only in case of either al-ratq or al-qarn the husband has such a right; not when the wife suffers from al-'ifdá' or al-'afal. According to the Imámis, such a legal effect follows only in the case of al-qarn or al-'if_a not in the case of al-ratq or al-'afal. They also state that the husband, if he wishes, can annul the marriage contract when he finds blindness or visible lameness in the wife after the conclusion of the contract if he had no knowledge of it before. But either of the defects when found in the husband does not give such a right to the wife.
In our opinion, any disease, regardless of its being peculiar to one of the sexes or its being common to both of them, that is capable of being diagnosed and cured without leaving behind any deformity or defect, does not give rise to any legal right and its occurrence, like its non-occurrence, is legally without any effect. The reason behind this opinion is that, when a disease becomes curable, it becomes similar to any other ordinary disease that may affect any person. The time-honoured significance attached by the legists to the above-mentioned defects is because they could not be treated surgically during the past.
According to the Imámi school, the choice of annulling the marriage exists as long as it is exercised immediately. Therefore, if the man or the woman, on knowing the defect, does not initiate the proceedings for annulling the marriage, the contract will become binding. The same rule applies for annulling the marriage in a case of deception.
The author of al-Jawáhir has said that ignorance regarding the right to annul the marriage, and even immediacy, is a good excuse, considering that this right has been given without imposing any conditions. He has also observed that the annulment of marriage, in all its forms, does not depend on the Judge. He has only the power to grant a probationary period in the case of impotence.
The Option to Include Conditions
The difference between shar> al-khayár and khayár al-shar> is that in the first the option to annul the marriage be included in the text of the contract. For example, when the bride making the offer says: "I marry myself to you on the condition that I shall have the choice of annulling the marriage within three days" and the groom accepts saying: “qabiltu”, or when the bride says, "I marry myself to you" and the groom, while accepting, says, "I accept on the condition that I shall have the choice to annul the marriage within such and such a time", we see that in both cases the option to annul the marriage is mentioned in the contract itself, and this, as has been mentioned earlier, results in the contract becoming null and void, according to all jurists of the five schools.
But in khayár al-shar>, the option to annul the marriage is not mentioned as a condition per se in the contract. That which is mentioned as a condition in this case, is a particular quality--such as the bride's virginity or the groom's possessing a university degree--in a manner that if the said quality is not found to exist the other shall have the right to annul the contract. The schools have a difference of opinion in this regard.
The Hanafis say: If a spouse mentions a negative condition in the contract, such as the absence of blindness or a disease, or a positive condition, such as presence of beauty, virginity, etc., and then the opposite of it comes to light, the contract will be valid. Regarding the condition, it will not apply except when the wife lays down a condition related to al-kafá'ah; such as a condition regarding lineage, profession or wealth. In such a case she has the right to annul the contract. But as regards the husband, any similar condition laid down by him will not be considered applicable because al-kafá'ah, as mentioned earlier, is a condition with reference to the husband, not the wife.
The Maliki, the Shafi`i, the Imámi and the Hanbali schools say: The condition is valid and if not satisfied results in the spouse laying the condition acquiring the option of either upholding or annulling the contract. The following tradition is cited in support of this view:
The Muslims are bound to (fulfil) their conditions.
Furthermore, they state, the aforesaid conditions are not against the spirit of the contract and do not contradict the Qur'án or the Prophet's Sunnah; neither they amount to changing lawful into unlawful nor vice versa.
The Imámis have discussed under this section the deception(tadlís) of the groom by the bride by either hiding a defect or by claiming a merit which is absent. In the first case, i.e., her hiding a defect and not mentioning it, the right to annul the contract will not accrue if he has not mentioned the absence of such a condition specifically in some way or another. A tradition is narrated from al-'Imám al-@ádiq (A) which says:
Asked about a person who marries in a family and finds his wife to be one-eyed for they have not revealed it to him, the Imám said: The contract will not be withdrawn.
This is the opinion held by all jurists of all the schools.
As regards the second form of deceit--i.e., where she claims a merit which in fact she does not possess--if the claimed merit has been mentioned as a condition in the contract, as said earlier, the condition will be valid according to all except the Hanafis. But if the claimed merit has not been mentioned in the contract as a condition--i.e., it has either been mentioned simply as a quality in the contract, or has been mentioned before the contract and the contract has been recited on that basis--then two different situations
The merit has been mentioned in the contract as a quality, such as when the bride's attorney says, "I marry this maiden to you," or, "I marry this girl who is free from any defect to you." The Imámis state that when it is known that she does not possess the mentioned merit, the husband has the choice to annul the contract.
The merit has neither been mentioned as a condition nor as a quality in the contract, but has been mentioned during the course of the marriage negotiations, such as when she herself or her attorney says that she is a virgin and has no defect, and then the contract is recited on the basis of this statement, so that it is understood that the contract has been recited on the girl's possessing this particular quality. In the legal sources that I have referred to, I have not come across anyone who has discussed this particular aspect except the Imámis among whom there is a difference of opinion as to whether in such a case the husband has an option of annulment. Some of them, including al-Sayyid Abu al-Hasan al-'isfahání, in al-Wasílah, uphold the husband's option, because, they point out, the negotiations of the contracting parties regarding a particular quality followed by the conclusion of the contract on their basis, makes this quality similar to an implicit condition. Others, who oppose this view, have said that it will have no effect unless the quality is mentioned in the contract or its presence in the contract established in some way or another. Al-Shahíd al-Thání, in al-Masálik, holds the same opinion, on the basis that a contract is not binding unless there is categorical proof of its invalidity, and such a proof is not present in this case.
To summarize, if the quality has been recognized in the contract in one of the three ways (i.e., as a condition, as a quality mentioned in the contract, or when mentioned during pre-contract negotiations), the husband has the option to annul or retain the contract. If he retains it, he will not have any right of reducing her dowery, whatever the defect, except when the condition was virginity. According to the Imámis, in this case, the husband may reduce the dowery by an amount equal to the difference between a maiden's dowery and that of a woman who is not a maiden.
If he chooses to annul the contract, she will not be entitled to receive any dowery if marriage has not been consummated, according to the Imámis and those of the four schools who permit the option of annulment in case of deceit. Once the marriage is annulled after consummation, she will receive the fair dowery, and, according to the Shafi`i school, the husband paying such dowery will not claim it from the person responsible for the deceit.
The Imámis say: It depends upon who is responsible for the fraud. If it is the bride, she will not be entitled to any dowery, even after consummation. If someone else, then she will receive her full dowery, and the husband will claim this amount from the deceiver in accordance with the rule, “the deceived will level his claim against the deceiver.”
If after marriage, one of the spouses finds a defect in the other and claims that the contract was concluded after freedom from such defect was understood, through one of the three above-mentioned ways, the other refuting, the burden of proof will lie with the claimant. If the claimant furnishes the proof, the judge will grant him/her the right to dissolve the marriage. If the claimant is unable to prove his/her claim, the respondent will take an oath and the case will be dismissed by the judge.
When a person marries a woman after it has been understood, through one of the three mentioned ways, that she is a virgin, and then finds her to be otherwise, he will not be entitled to dissolve the marriage, unless it is proved that her loss of virginity preceded the contract. This can be proved, either by her confession, or through evidence, or any such circumstantial evidence as may lead to certain knowledge--such as when after the marriage, intercourse takes place within a period during which the chances of her losing her virginity (due to other causes) do not exist. If the issue stays unsettled and it cannot be proved in any of the said ways, whether she lost her virginity before the marriage or after it, the right to dissolve the marriage will not accrue to the husband, because the presumption is that her loss of virginity does not precede the marriage, and also because the possibility of her having lost it due to an unknown reason --such as riding or jumping-- also exists (al-Masálik of al-Shahíd al-Thání, vol. 2, Chapter on Marriage in Imámi Fiqh).
Al-Sayyid Abu al-Hasan al-'i#fahání, in al-Wasílah, the chapter on marriage writes:
If a man marries a girl, without virginity being mentioned in the negotiations previous to the marriage, without the contract being based on it, and without it being included as a condition or a quality in the contract, but only believing her to be so because of her not having married anyone before him, he will not have the right to dissolve the marriage if it is later proved that she was not a virgin. But he has the right to partly reduce her dowery. This reduction will be proportional to the difference between the dowery of her like if a virgin and if not a virgin. Therefore, if her dowery be fixed at 100 and the dowery of a virgin like her is 80 and a non-maiden like her is 60, he will reduce from 100 a fourth part, i.e. 25, with 75 remaining as dowery.
Accordingly, al-Sayyid al-'isfahání envisages four possible conditions regarding virginity:
Where virginity is mentioned in the contract as a condition;
Where it is mentioned in the contract as a quality;
Where it is mentioned during settlement of marriage and the contract is based upon it;
Where he marries her believing her to be a virgin and does not mention it, neither before the contract nor in the contract.
In the first three conditions, the husband has the choice to annul the marriage; in the fourth, he has no such choice, but can reduce a part of the dowery in the above-mentioned manner.