Part 11

However, if the act of being in private with the bride is not, in reality, a completed act that could lead to sexual intercourse due to some impediment, whether it be a shareeah, physical or natural impediment, the woman is then entitled only to half of her dower. This is because the dower is a matter related to wealth and such matters are not established on the basis of doubts or conjectures.* The exception to this is if the woman claims that she had been “touched” by him even though the impediments were present. In this case, she will be entitled to her entire dower if she makes an oath stating that her claim is true. Allah knows best.

2 Fath al-Qadeer, vol. 2, pp. 445-446.

Al-Mugni, vol. 10, p. 154.

The Figh of Marriage

The Question of Being Alone with One’s Fiancee before the Actual Contracting of the Marriage

This practice of the man being alone with his betrothed, so that they may experience and know each other as a means leading to love between them, is an evil practice and a terrible phenomenon that exists in many Muslim lands.

This distasteful custom has slowly crept over Muslim societies and has now become a blind custom that people follow and that is supported by the evildoers and ignorant people in the name of “civilization’—— the deceitful civilization that is fighting us in our religion, morals and ways. We have become such prisoners to this way that the betrothed mix with one another in a most shameful and disgusting way, without anything watching over them, neither a chaperone, conscience, family or religion.

The engaged man and woman get together before the marriage has taken place and go out together [on dates] to clubs and places of forbidden enjoyment based on the argument that they are going to be husband and wife. They remain alone together and both his and her family know about that but they put up no objection whatsoever. After the viper [the man] has exhausted what he can from her and becomes bored with the woman, he will flee from her due to any flimsy excuse and, due to him, she will have to face disgrace and dishonor. Due to such practices, a great deal of evil spreads, such as illicit sexual relations, and the woman is then not able to find a husband in the future.

In the newspapers and media we hear of things that are very embarrassing and shameful that exist in the Muslim world as the result of this evil practice. In fact, in some of those lands it has become commonplace for the woman to lose her virginity before marriage and for the people’s honor to be lost. We ask Allah only for safety and wellbeing.

In their ignorance of the laws of Islam, they claim, and they are completely wrong, that when the two are engaged and on the road to getting married, then the things that are permissible under marriage

The Figh of Marriage

become permissible for them. That is why they allow the two to be in complete privacy with one another. They claim that in this way they will get to know one another and begin to love one another. However, they are completely and dangerously mistaken. The nature of engagement is completely different from the state of being married. Nothing of what becomes legal due to the marriage contract becomes legal simply due to an engagement. Furthermore, no matter how much the man is in the company of his fiancée, he will never actually discover her true nature [from such experiences]. In the same way, she will not discover his true nature by such meetings. This is because in such meetings, they both present themselves in ways that are different from how they customarily are. They try their best to show their good side and hide anything evil they may possess.

If one really wants to know about the other’s character, nature and manners, the best and safest way to do so is by asking [those people who know that man or woman well]. May Allah guide all to what is beloved and pleasing to Him and provide us all with understanding of the laws of the religion and the ability to act according to the shareeah of Islam.

Yes, it is true that Islam allows the man, if his intention is strong and he has taken the normal, proper path to marriage, to look at the potential bride but it must be according to certain conditions and ina specific way as spelled out in detail in their proper place [in the books of fiqh]. However, if the matter reaches a point where the people are doing what Allah has forbidden, then its result will be loss and harm.

We will not prosper unless the young ladies return to their protected status and customs that keep them from being treated like cheap commodities that may be used and abused. She should be protected in her proper attire and manners and in that way the wolves among men will not be able to reach her. In that way, she will be sought after in the right manner with all due respect and proper treatment.

‘The Figh of Marriage

Cases Wherein the Man is Not Obliged to Pay Any

Portion of the Dower

The obligation of giving the dower is completely dropped in the following four cases:!

(1) Separation other than Divorce and before Consummation or before Complete Privacy with the Wife

Any type of separation, other than divorce, before consummation or complete privacy means that the man does not have to pay any portion of the dower. This is the case whether the separation was from the wife’s side or from the husband’s side. For example, if the woman apostatizes from Islam or if the man refuses to become Muslim while the wife embraces Islam, the man does not have to pay any portion of the dower. Other examples include the wife choosing to dissolve the marriage due to a defect in the husband or the guardian of the wife dissolving the marriage because the husband is not qualified. In these cases, in which the marriage is completely annulled and there is no consummation, the obligation of the dower is completely dropped. This is because separation other than divorce annuls the contract. Annulling the contract before consummation necessitates that the entire dower also be annulled. In other words, annulling the contract makes it as though the contract never occurred in the first place.

The Malikis say that if the husband annuls the marriage or returns the wife due to some defect or problem with her before consummation, then he is not obliged to pay any portion of the dower. Furthermore, she is not entitled to anything in the case of a marriage by proxy if the husband dies or if he divorces her before consummation.”

The Shafi’ees? and the Hanbalis! distinguish between the case where the separation is due to a cause from the wife and when it is due

Badaai al-Sanaai. fi Tarteeb al-Sharaai, vol. 2, p. 295. 3 4l-Qawaaneen al-Fighiyyab, p. 203; al-Sharb al-Sagheer, vol. 2, p. 437. Mughni al-Mubtaaj, vol. 3, p. 234.

The Figh of Marriage

not to any fault or cause of her own. If the separation takes place before consummation and due to the wife, then she is not entitled to any of the dower, regardless of the nature of the dower. This would include the following cases: she becomes Muslim [and not her husband]; one of her parents becomes Muslim [and she is still underage]; the husband annuls the marriage due to a defect or problem with her; she apostatizes; or if she had been breastfed by one of her husband’s wives while she was small.

When the separation takes place before consummation and is not caused by the wife, she is entitled to half of her dower. This would include divorce or khula,? even if it were by her own choice, such as when she is empowered with the right of divorce and she gets herself divorced or if the husband makes a conditional divorce conditioned by an act that she performs. It also includes the cases where the husband becomes Muslim}, apostatizes, separates from her due to accusing her of illegal sexual intercourse, or in the case where she was breastfed by his mother or he was breastfed by her mother when he was small. In the case of divorce, though, the previously mentioned verse, “If you divorce them before ‘touching’ them...” takes effect.

(2) In the Case of hula", Either before or after Consummation, Wherein the Wife Agrees to Return Her Dower

If the two are separated through khula wherein they agree that the woman will return her entire dower, then the obligation to pay the dower is dropped. If the dower was one that the woman had not previously taken possession of, then the husband is freed from any

[Kbula is considered different from divorce by many scholars while others treat it as a type of divorce. In khula, the wife agrees to pay something to the husband in der to be released from the marriage —J2) [This would be true only if the wife were neither a Christian or a Jew—JZ] [Kbula is considered different from divorce by many scholars while others treat it as a type of divorce. In kbula, the wife agrees to pay something to the husband in order to be released from the marriage —J.

The Fight of Marriage

responsibility to now pay it. If the woman had taken possession of the dower, she is to return it to the husband. If the khula is made wherein it is agreed that she is to pay some wealth other than the dower to the husband, she must pay that wealth that they agreed upon. After khula, the husband is free of any obligation that was the result of the marriage contract, including maintenance and the dower. This is because in the case of khula, although it is a type of divorce based on compensation, there is the implied meaning of freeing him from any responsibility.

(3) When the Wife Frees the Husband of the Obligation of the Dower, Either before or after Consummation

If the wife is from those people who can donate wealth and the dower is one that the husband has to pay in the future, such as money or specific weight or amount of some item and not something specific that was a purpose in itself, she is allowed to free him from that obligation. This is because she is in a position where she has the right to drop that obligation from the husband.

(4) When the Wife Gives the Entire Dower as a Gift to the Husband