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Dowry


(Al-Mahr)



Dowry is one of the rights of the wife established in the Qur'án and the Sunnah, and on which there is consensus (ijmá`) among Muslims.  There are two kinds of dowery:  The Stated Dowery (al-Mahr al-musammá) and the Fair dowery (al-Mahr al-mithl).



The Stated Dowry

            The Stated Dowry is one agreed upon by the couple and specified by them in the contract.  This dowry does not have any upper limit, by consensus of all jurists of the schools, in accordance with the following verse of the Qur'án:



            And if you wish to take a wife in place of another and have given one of them     a heap of gold, then take not from it a thing [4: 20]



            Jurists however differ regarding the lower limit.

            The Sháfi`ite, the Hanbalite and the Imámite schools say:  Everything which is valid as price in a contract of sale is valid as dowry in a marriage contract, even if it is a single morsel.

            The minimum dowry according to the \anafís is ten Dirhams, and a contract concluded for a lesser amount is valid and the minimum  --i.e. ten Dirhams shall be payable.

            The Málikites say: The minimum is three Dirhams.  Therefore, if something less is specified and later the marriage is consummated, the husband will pay her three dirhams; if it has not been consummated, he has a choice between giving her three dirhams or dissolving the contract by paying her half the Stated Dowry.

Provisions ofof dowry

            It is possible that dowry be specified in terms of currency, jewelry, land, cattle, profit, trade commodities and other things of value.  It is necessary that the value of the dowry be known, either exactly (e.g. a thousand lira) or approximately (e.g. a particular piece of gold or a particular heep of wheat).  If the dowry is totally vague, so that its value is unascertainable in any manner, according to all the schools except the Maliki, the contract is valid and the dowry is void.  The Málikís say:  The contract is invalid and shall be rescinded before consummation, but if consummation has occurred it shall be validated with fair dowry being due.

            As one of the  conditions is the status of dowry itself; being lawful and having pecuniary value in terms of a commodity whose transaction is considered legal by Islamic law.  Consequently, if it is mentioned in terms of liquor, swine or carrion meat (Maytah) or anything else whose ownership is invalid, according to the Málikís, the contract shall be invalid if it has not been consummated, and if consummated, shall be valid and the Fair Dowry shall be payable.  The Sháfi`í,  Hanafi, \anbalí  and most of the Imámi legists have said: The contract is valid and she shall be entitled to fair dowry.  Some Imámi legists have entitled her to fair dowry only if the marriage has been consummated, while others put forth no such condition and are in consonance with jurists of the four schools.

            In case the stated dowryis a usurped property, such as when she is married for a farm as her dowry and later it is known to belong to the groom's father or someone else, the Málikís say: If the farm is known to the two of them and both happen to be sane, the contract shall be invalid if not consummated and if consummated shall be considered valid on the basis of fair dowry.  Sháfi`í and \anbalí  schools regard the contract as valid and entitle her to fair dowry.  The Imámi and the Hanafi schools are of the opinion that the contract is unconditionally valid; but regarding the dowry they observe:  If the owner gives affirmation, she shall receive the farm itself; if the owner desent and offer no ratification, she shall be entitled to receive a similar thing or its value because the stipulate  dowry in this case is capable of being validly owned though ownership is not validated,  in contrast with liquor or swine which cannot be owned at all.

Fair Dowry

            The concept of Far Dowry  is relevant in the following cases:



1.  There is consensus among the schools that Dowry is not an essential pillar (rukn) of a marriage contract, as price is in a contract of sale. On the contrary, Dowry is only one of the incidents (Athar) of a marriage contract, and even without its stipulation the contract is valid. Thus, Fair dowry shall be payable on consummation (in the case where dowry was not specified) and if he divorces her before the consummation of marriage, she shall not be entitled to any dowry, but will receive a gift, which is a gift given by the husband to his wife (at the time of divorce) in accordance with his status, such as a ring or a dress, etc.  If they both agree on this gift, it will suffice; otherwise it will be fixed by the judge. The issue whether the couple's retiring to seclusion (Khalwah) is tantamount to consummation or not, will be discussed later.

            Hanafi and \anbalí  schools observe: If the husband or the wife dies before consummation, full Fair Dowry shall be payable as if the marriage had been consummated (Majma` al-'anhur and al-Mughní, chapters on marriage).    

            According to Málikís and Imámís, no dowry is payable if any of the two dies before consummation (al-Mughní  and al-Wasílah).    

            Sháfi`ís  have two opinions in the matter:

 That the dowry shall be due,

 No dowry shall be paid (Maqsad al-nabíh).    



2.  If the marriage contract is concluded with specification of dowry in terms of a commodity which cannot be owned, e.g. Liquor or swine, as mentioned earlier.



3.  All schools agree that Fair Dowry becomes Wajib as a result of intercourse-by-mistake. Intercourse-by-mistake is intercourse with someone with whom it is not legally permissible, though without the knowledge of it being so;  such as a person marrying a woman without the knowledge of her being his foster sister and coming to know of it later, or his having intercourse with her after both have appointed their deputies for reciting the contract, thinking it to be sufficient for permitting sexual contact.  In other words, intercourse-by-mistake is intercourse without proper marriage, though the presence of a legal excuse which precludes penal action.  On this account the Imámís include under this head intercourse by a person who is either insane or intoxicated or in sleep.



4.  Imámi, Sháfi`í, and \anbalí  schools have said: One who coerces a woman to have intercourse shall have to pay fair dowry; but if she had yielded voluntarily she shall not be entitled to anything.

5.  A marriage concluded on the condition that no dowry shall be paid is valid according to all except the Málikís, who say:  The contract shall be invalid if not consummated, and valid if consummated but with the obligation to pay fair dowry. A large number of Imámi legists have said:  He shall give her something, be it much or little. Traditions from the Ahl al-Bayt (A) support this view.

            According to the Imámi and the Hanafi schools, if an invalid marriage contract with a certain dowry is recited and the marriage is consummated, she shall be entitled to receive the Dowry stipulated even though it was less than the Fair Dowry because of her prior consent. But if the stipulated Dowry is more, she shall receive only the Dowry al mithl, because she is not entitled to receive more than fair dowry.    

            Fair dowry is computed by the \anafís by taking into account the Dowry of her equals from the paternal, not the maternal side. According to the Málikís, her dowry shall be commensurate with her physical and mental qualities. The Sháfi`ís , take the Fair Dowry of the wives of her paternal relatives as reference, i.e. the wife of her brother, that of her paternal uncle, then her sister etc. For the \anbalís, the judge shall determine the fair by taking into account the dowry of her female relations, such as the mother or maternal aunt.    

            The Imámís say: There is no fixed way of determining fair dowry in Islamic law.  It is estimated by those who know her status, descent, and all those aspects which influence the increase or decrease of dowry.  But this dowry shall not exceed the Mahr al-sunnah, which is equal to five hundred Dirhams.



Immediate and Deferred Payment of dowry:

            All the schools concur regarding the validity of deferred payment of dowry, fully or partly, provided that the part be known, either exactly (such as when it is said, "I marry you for a hundred, of which fifty shall be paid immediately and the rest after one year") or in an indeterminate manner (such as when it is said, "The dowry is deferred till death or divorce").The Sháfi`í school disapproves the latter form of deferment.    

            However, if the period is totally vague, such as when it is stated that the payment of dowry shall be made on the return of a certain traveler, the term shall be void.

            The Imámi and the \anbalí  schools have said: If the dowry has been mentioned without specifying whether its payment is immediate or deferred, the entire dowry shall be immediately payable.  

            According to the \anafís, the local custom shall be observed; i.e. the portions to be immediately paid and deferred will follow the local custom.    

            The \anafís also state: If dowry is deferred without mentioning the period of deferment (such as when it is said, "Half of it is immediately payable and the rest deferred"), the full dowryshall be immediately payable.    

            The \anbalís observe: The dowry can be deferred until death or divorce.                  The Málikís are of the opinion that such a marriage is invalid; it is voidable before consummation, though valid after it on the basis of fair dowry.

            The Sháfi`ís  state: If the term is known not exactly but in an indeterminate manner (such as until death or divorce) the dowry stipulated shall become invalid and the fair dowry will be payable (al-Fiqh `alá al-madháhib al-'arba`ah).    



Side Issue:

            The Hanafi and the \anbalí ; schools say: If the bride's father apportions for himself, as a condition, a part of her dowry, the dowry is valid and the condition is binding and must be fulfilled.    

            The Sháfi`ís  say: The stipulated dowry shall become invalid and fair dowry will be due.    

            According to the Málikís, if this condition is included at the time of marriage, the bride shall receive the entire dowry, including her father's share; and if the condition is laid after the marriage, the bride's father shall receive his share (al-Mughní and Bidáyat al-mujtahid).    

            The Imámís observe: If her dowry has been specified with a fixed portion of it mentioned for her father, she shall get her full stipulated dowry and her father will not get the portion appropriated for him.



The Wife's Right to Refuse Her Conjugal Society

            There is consensus among the schools that the wife, simply after the creation of the contract, has the right to demand her full specified dowry immediately and to refuse her conjugal society until the dowry is paid. But, if she agrees once willingly without demanding the dowry, she loses her right of refusal; all concur on this issue except Abu Hanifah.  He notes:  She has the right to refuse even after surrender. Abu Hanifah's disciples, Muhammad and Abu Yúsuf dissent.    

            The wife is entitled to receive maintenance if she refuses her conjugal society until the payment of Dowry; because her refusal in such a case is legally valid. But if she refuses to fulfill her conjugal duties after receiving Dowry or after voluntary surrender, she shall not be entitled to maintenance except according to Abu Hanifah.    

            If the wife be a minor unfit for marital relations and the husband an adult, it is up to her guardianto demand the Dowry; it is not necessary that he wait until her maturity. Similarly, if the wife be a major and the husband a minor, the wife has the right to demand the Dowry from his guardian, and it is not necessary for her to wait until his maturity.

            The Imámi and the Sháfi`í schools state: If a dispute arises between the couple, with the wife refusing to surrender until payment of Dowry and the husband refusing payment until her surrender, the husband shall be compelled to deposit the Dowry with a trustee and the wife will be asked to surrender. Then if she surrenders, she shall receive her Dowry and be entitled to maintenance. But if she refuses, she shall not receive the Dowry and will not be entitled to any maintenance. If the husband refuses to deposit the Dowry, he will be ordered by a judge to pay her maintenance on her demanding it.    

            The Hanafi and the Maliki schools state: The payment of Dowry has precedence over the woman's surrender, and the man may not say, "I will not pay the Dowry until she surrenders". If he insists on this, he shall be ordered to pay her maintenance, and if she, after receiving the Dowry, refuses her conjugal society, the husband is not entitled to recover it.    

            According to the \anbalí  school, the husband shall be first compelled to pay the Dowry.    

            This opinion concurs with the Hanafi view except that according to the \anbalís, if she refuses her conjugal society after receiving the Dowry, he has the right to recover it from her. (Maqsad al-nabíh, Majma` al- 'anhur,  and al-Fiqh `alá al-madháhib al- 'arba`ah)

Inability of the Husband to Pay the Dowry

            The Imámi and the Hanafi schools observe: If the husband is unable to pay the Dowry, the wife is not entitled to rescind the marriage, and the judge, too, cannot pronounce her divorce. But she has the right to deny her conjugal society.    

            The Málikís state: If his inability is established before the consummation of marriage, the judge will grant him time according to his own discretion.    

            If, after the expiration of such period his inability continues, the judge will pronounce divorce, or the wife will divorce herself and the judge shall endorse its validity. But if he has consummated the marriage, she can in no way dissolve it.    

            The Sháfi`í school is of the opinion that if his insolvency is proved while the marriage has not been consummated, she can dissolve it. But if it has been, she cannot dissolve it.    

            The \anbalís state: She may dissolve the marriage even after its consummation, provided she had no knowledge of his insolvency prior the marriage. Therefore, if she had the knowledge, the question of dissolving the marriage does not arise. Even when the marriage is dissolvable, only the judge has the authority to do so.

The Father and His Daughter-in-law's Dowry

            The Sháfi`í, the Maliki and the \anbalí  schools hold that if a father concludes the marriage of his poor son, he shall be liable for payment of Dowry even if the son be a major and the father acts as his agent for the marriage as his son's deputy. If the father dies before Dowry is paid, which was wajib upon him, it shall be paid out of his primary asset.    

            The Hanafi school observe: The payment of Dowry is not an obligation of the father regardless of whether the son is a well-to-do person or a poor one, a major or a minor (al-'ahwál ash-shakhsiyyah by Abú Zuhrah).    

            The Imámís state: If the minor son possesses property and his father arranges his marriage, the Dowry shall be paid from the son's assets and the father shall not be liable at all. But if the minor has no property at the time of marriage, the father shall be liable to pay the Dowry; the husband (son) shall not be liable even if he becomes wealthy later. Also, the father is not required to pay the Dowry of his major son's wife unless he guarantees it on the conclusion of the contract.

Consummation and Dowry

            Sex relations with a woman fall within these three categories:

   

Fornication (zina) to which she surrenders with the knowledge of its being prohibited. In this instance, she will not get any Dowry; rather shall be liable to penal action.

As a result of a misunderstanding on her part such as her being lawful, followed by later knowledge that it was prohibited.  This averts the penal consequences and she is entitled to receive fair dowry, irrespective of the man's knowledge or ignorance of the act being prohibited.    

As a result of a valid marriage. In this case she is entitled to receive the specified dowry if it has been validly stipulated, and the fair dowry if no dowry was specified in the contract or was specified in an invalid form (e.g. in terms of liquor or pork).                  

            If one of the spouses dies before consummation, then, according to the four schools, she is entitled to receive the entire stated dowry.  The Imámi jurists differ.  Some of them, in consonance with the four Sunni schools entitle her to the entire stated dowry, while others (including al-Sayyid Abú al-Hasan al-Isfahání in his al-Wasílah and Sheikh Ahmad Káshif al-Ghitá' in Safinat al-naját) to half the stated dowry as in the case of a woman who has been reputiated.



Crime Against The Husband

            The Sháfi`í, the Maliki and the \anbalí  schools hold:  If a wife kills her husband before the consummation of marriage she shall lose the entire dowry.

            According to the Hanafi and the Imámi schools, she shall not lose her right to dowry, though she loses her right to inherit him.

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