Part 10

The Figh of Marriage

As for the verse, it is not a clear text concerning this issue because the apparent meaning of the word “touch” in the verse is actually sexual intercourse. In other words, it means that the complete dower is not required if no sexual intercourse took place. However, even that action is not required because there is a consensus among the Companions that if the person is completely alone with the woman he must pay the complete dower. As for cases other than being in private with her, the generality of the verse is left as it is [in other words, it applies to sexual intercourse only]. This is the opinion of the majority of the jurists.! Allah knows best.

Paying Half of the Dower

Jurists are agreed? that the wife has a right to only half of her agreed upon dower that was part of a sound marriage contract, if the husband divorces her before consummating the marriage or before being in complete Privacy with her. This is based on the verse,

ose pany PE Arran ica bd tos en aaeel oly ose, 7% ees “Tf you divorce them before ‘touching them’ and you have determined their dowers, then they shall receive half of the dowers...” (al-Bagara 237).

However, the scholars differ concerning what the woman is entitled to if they are separated but not divorced, due to an act by the husband, such as apostasy, or the act of a third person, such as they discover that they have been breastfed by the same woman. [Hence, the separation was not due to any fault of the woman.] The first opinion is that in such a case, the woman is to receive half of her dower. This

3 Al-Mughni, vol. 10, p. 158.

Badaai al-Sanaai, vol. 2, p. 296; al-Sharh al-Sagheer, vol. 2, p. 454; Bidaayah al-Mujtabid, vol, 2, p. 23; al-Mubadbib, vol. 2, p. 59; : Kishaaf ali -Qinaa, vol. 5, pp.

The Figh of Marriage

opinion is based on an analogy with divorce [without sexual intercourse] and because the separation was not caused by her. This is the view of the majority of jurists."

The second opinion is that the woman is not entitled to anything of the dower. This is the opinion of the Dhaahiris (Literalists).2 They adhere to the strict literal meaning of the verse, although it is regarding one who is divorced before consummation and not one whose marriage is dissolved.

The stronger view is that she is deserving of half of her dower. This will lessen her pain and suffering. Furthermore, preventing her from that dower will cause her undue harm for something that was not her fault.

The following question now arises: Does divorce or annulment before consummation but after complete seclusion require half of the dower to be paid or does it take on the same consequences as consummation with respect to requiring the entire dower to be paid? We have already stated that the strongest opinion is that a complete seclusion with the wife requires that all of the dower be paid to her. In order to make this issue clear, it is appropriate for us to quote the statements of jurists on this issue followed by a discussion demonstrating the strongest view.

Jurists are divided into two opinions on this question. The first opinion is that the private seclusion has no effect on the dower, meaning that divorce or annulment before it or after it will still require only half of the dower to be paid [as long as no consummation took place]. This is the opinion of Imam Malik according to one of his two statements,} alShafi’ee in his new opinion,* and Ahmad ibn Hanbal in what is narrated

2 Bidaayab al-Mujtabid wa Nibaayab al-Mugtasid by ibn Rushd, vol. 2, p. 20. 3 ti eaam al-Quran by ibn al-Arabi, vol. 1, p. 218; al-Mudawwanah al-Kubra, vol. bP Qalyoobi wa Umairah ala Sharh al-Minhaaj, vol. 3, p. 278.

The Figh of Marriage

by Yaqoob ibn Bakhtaan.' It is also narrated from ibn Abbaas and ibn Masood.”

The second opinion is that the private seclusion is the same as consummation with respect to establishing the obligation of paying the entire dower. This is the opinion of the Hanafis,> Imam Malik ina second statement from him,‘ al-Shafi’ee according to his old opinion and Ahmad according to the strongest narration from him.5 This has also been narrated from the rightly-guided caliphs (Abu Bakr, Umar, Uthmaan and Ali) as well as from other Companions.

Those who say that being in seclusion with the bride has no effect in establishing the payment of the entire dower cite the following as evidence:

First, Allah says in the Quran,

3ALI-Mughni, vol. 10, p. 153; al-Insaaf, vol. 8, p. 283. 2"4l-Sunan’ al-Kubra by al- |-Baihaqi, vol. 7, bp. 254-255, Chapter on a man who is lone with his wife and then divorces her before touching her. 4 AL-Mabsoot, vol. 5, PR. 64-65. fake Sharb al’ Sagheer by al-Dardeer, vol. 2, p. 238. Abkaam al-Quran by ibn al-Arabi, vol. 1, pp. 218-219.

‘The Figh of Marriage

This argument has been responded to by saying that the text is not definitive in its indication as it could be a case where Allah is indirectly mentioning the causative factor instead of the cause itself, which is being in seclusion with the woman. This interpretation is given a stronger weight because it is consistent with the consensus of the Companions who agreed that private seclusion has the same ruling as consummation with respect to entitling the woman to her complete dower. Imam Ahmad and al-Athram related through their chain of authorities from Ziraadah ibn Abu Aufa who said, “The rightly-guided caliphs ruled that if someone closes the door or pulls the curtain [putting him and his bride in privacy], the dower and waiting period [in case of divorce or death] become obligatory.” The Hanafis also relate the same from Umar and Ali. It is related from Saeed ibn al-Musayyab and Zaid ibn Thaabit that they said, in such cases, that she must observe the waiting period [in case of divorce or death] and she is entitled to her entire dower. Ibn al-Mundhir has also recorded this same opinion from Abdullah ibn Umar, Jaabir and Muadh ibn Jaabir.

This was a well-known question at that time and no one differed with that opinion. Therefore, it was a consensus. It has been narrated that ibn Abbaas held an opposing view to that consensus but such narrations are not authentic. Imam Ahmad stated that such (an opinion from ibn Abbaas] was narrated from Laith and he was not a strong narrator. Handhalah narrated the opposite of what Laith narrated and Handhalah is stronger in narration than Laith. Also, as for what has been narrated from ibn Masood stating that he also differed from the consensus, such narrations have broken chains to them [and are therefore not considered authentic or proofs].

[Those who say she is entitled to half of her dower also quote] Allah’s saying in the Quran,

wee fe eee 2 8 oe ae abe ome” “And how could you take it [the dower back] while you have gone into each other” (a/-Nisaa 21). The argument here is that “gone into each

1 AL Mughni, vol. 10, p. 154.

‘The Figh of Marriage

other” means having sexual intercourse.’ This indicates that the dower is not obligatory except after consummation. This makes it clear that the earlier verse is explaining the case of divorce before consummation while this is explaining the case of divorce after consummation. Obviously, there is no intermediate case. Therefore, being in private does not entitle the woman to her entire dower if there was no consummation.

This argument is responded to by saying that “gone into each other” does not necessarily imply sexual intercourse. It is narrated that al-Farraa [the Arabic language expert] said, “Gone into each other means complete privacy, whether the marriage was consummated or not. This is the correct opinion because the word used in the verse is derived from the word implying ‘an open space’ or a deserted land. In other words, it is as if Allah had said, ‘And you have been alone with each other.’”?

Third, being alone with the wife after the marriage contract could not imply that she is entitled to her entire dower as being alone with a woman outside of marriage does not entitle her to such.3 One may respond to this argument by saying: Being alone after the sound marriage agreement makes the matter of greater importance and it takes on the same ruling as consummation, as opposed to being alone with a woman outside of marriage which has no legal effect.4

Those who say that being in complete privacy with the bride entitles her to her entire dower cite the following as evidence:

First is what is recorded by Abdul Razzaaq in his Musannaf on the authority of Abu Huraira who said that Umar said, “If the curtains are drawn or the doors are locked, the [complete] dower becomes obligatory.”>

} Bidaayab al-Mujtabid, vol. 2, p. 19. sAbug hni, vol. 10, p. 1 154 3 Fath at LOadeer, vol. 2, p. = Athaar Aqd alipa a Share a -Islaami) 143. 5 Al-Sunan al-Kubra bya Baihagi, vol. 7, pp. 255m6; Malik also recorded it in his Munna (vol. 2, p. 528) from Saeed ibn al-Musayyab on the authority of Umar with asal chain.

‘The Figh of Marriage

Second, when the impediments [to sexual intercourse] are removed, she, in essence, has been given over to him and therefore she is deserving of her right in exchange for that.!

Third, the obligation of paying the entire dower is not conditional upon fulfillment with the woman but it is simply conditional upon her being given over to him in the proper way, as in other similar contracts, such as selling or leasing.”

Looking at what both sides have presented as evidence as well as the rebuttals of the evidence for the first opinion, the second opinion is considered the stronger and choice opinion. That is, a true private seclusion with the bride entitles her to her entire dower as long as it was truly private and the result of a sound marriage contract. This is considered the stronger view also due to the fact that the Companions, those who lived at the time of the revelation and who understood its real essence, made such a decree. Furthermore, being in private with the bride is a factor leading to sexual intercourse and the factor itself takes on the same ruling as the act it ieads to.3