Part 3

In Zaad al-Maseer, ibn al-Jauzi stated, “The verse indicates that it is allowed to have a marriage contract without stating the dower.”?

It is confirmed in the sunnah from Ugqbah ibn Aamir who narrated that the Messenger of Allah (peace be upon him) said to a man, “Would you be pleased if I were to marry you to so and so?” He said, “Yes.” Then he said to the woman, “Would you be pleased if I were to marry you to so and so?” She said, “Yes.” So he married the two of them together. Uqbah consummated the marriage and did not establish any dower for her. When he was about to die, he said, “The Messenger of Allah (peace be upon him) married me to so and so and he did not state a dower for her and I did not give her anything. Therefore, I give her as the dower my share [of the war booty] in Khaibar.” She took it and sold it for two hundred thousand [dinars].

' Kashaaf al-Qinaa, vol. 5, p. 144; al-Badaai, vol. 2, p. 274; al-Mubadbib, vol. 2, pp. 55 and 60; al-Sharh al-Sagheer, vol. 2, P 449; and al-Figh al-Islaami wa 4dillatubu by Wahba al-Zuhaili, vol. 7, pp. 23 and 254. 5 Zaad al-Maseer, vol. 1, p. 279.

Recorded by Abu Dawood (#2117), The Book on Marriage, Chapter on one who marries and did not determine a dower until he dies. Its chain is basan. Al-Haakim

‘The Figh of Marriage

Based on that, “if two spouses agree to get married without a dower, the marriage is valid according to the majority of the scholars, save the Malikis. When the marriage is consummated or when the man dies, she has the right to a dower that is comparable to the dower given to those women who are similar to her. According to the Malikis, if two agree to get married with a dower, the marriage is not valid.”!

To state the dower at the time of the marriage contract is neither an essential component nor a condition for the validity of the marriage contract. This is because the dower is a resultant ruling that follows from the contract and it is not necessary to mention the rulings that are the result of the contract when the contract is actually being stated. This is also based on the previous evidence given. In al-Mughni it states, “Marriage is sound without the stating of the dower according to the vast majority of the scholars.”2

However, ibn Taimiya has concluded that one should state the dower at the time of the marriage contract in order to avoid any dispute or confrontation. He also concluded that the dower is an essential component of the marriage and that the dower must be mentioned or she is to be given what is given to women similar to her. He wrote,

Those who state that the dower is not a goal in itself are making a statement that has no truth to it. It is, in fact, an essential component of the marriage and it being a condition of it makes it a more important condition than the price [in a sale] for the Messenger of Allah (peace be upon him) said, “The conditions that have the most right to be fulfilled are those conditions that make the private

recorded it in al-Mustadrak (vol. 2, p. 182), and he declared it sabib. Al-Dhahabi greed with his assessment.

Bidaayah al-Mujtahid, vol. 2, p. 52. Al-Mughni, vol. 6, pp. 680-681.

‘The Figh of Marriage

parts lawful.” Wealth is permissible in exchange for other wealth. However, the private parts are not permissible for another except with the dower. A marriage can be enacted without stating or fixing the amount of dower but it cannot be enacted while negating the dower. For the marriage in which the dower is not stated, the dower then becomes the dower ofa similar woman... What is confirmed in the Quran, sunnah and consensus is that a marriage can be enacted without fixing the dower. But it cannot be enacted while negating the dower. In fact, Allah has_ said, “Indeed, We know what We have enjoined upon them concerning their wives and whom their right hands possess” (al-Ahzaab 50). [Since the preceding portion of the verse] states that the Prophet (peace be upon him) may marry without a dower, it was made obligatory upon them to marry with a dower. This is what the Quran indicates in more than one place. There must be either a stated dower or a non-stated dower [but there cannot be a marriage if there is a refusal to accept the payment of a dower].?

Therefore, there are three possible scenarios:

One case is where the two agree upon not having a dower. This is not allowed and such a marriage contract is not valid.

A. second case is where the dower is clearly stated at the time of the marriage contract. This is the normal, most complete [and best] case.

A third case is where the dower is not mentioned at the time of the contract. This is permissible and the women will then receive what women similar to her receive or whatever they may later agree upon.

' Recorded by al-Bukhari (#5151), The Book on Conditions, Chapter on conditions for the dower at the time of the marriage contract, and by Muslim (#1418), The Book on Marriage, Chapter on fulfilling conditions and marriage.

Majmoo Fatawa Shaikh al-Islaam ibn Taimiya, vol. 29, . 344. [The above is not a translation of what is found in Sadlaan’s work because the text has typographical errors that completely distort the meaning of ibn Taimiya’s words. Hence, the passage was translated directly from the new edition of Majmoo Fatawa, vol. 15, part

The Figh of Marriage

The Maximum Amount of Dower Allowed!

The jurists agree that there is no maximum limit to the dower, since there is nothing stated in the shareeah mentioning an upper limit. Allah says in the Quran,

CO wae oe 9 ee eo mE Wythe CANE) BIT g 95 OKA g 93 lteseal S94! OLy Viet ly Vid 4 ET ee ade 1 yb “But if you intend to replace a wife by another and you have given one a qintaar (large amount of gold), take not the least bit back of it. Would you take it wrongfully without a right and in manifest sin?” (al-Nisaa 20).

The mention of a qintaar is not meant to place an upper limit to the dower but it is simply “a figurative expression implying a great amount.” It that were meant to state the greater limit to the dower, Allah would have prohibited us from going beyond that.

The Minimum Amount Allowable for a Dower

Concerning the minimum amount permissible for a dower, there are five well-known opinions.

' The jurists have stated the maximum and minimum allowed dower in terms of dirhams and dinars because they were the monetary units common among the people in the past. Therefore, it would be to discuss their origins and their weights in modern terms. Dirham is originally a Greek work, drachma, and it is a word for a silver coin that is equivalent to seven-tenths of a dinar. Therefore, in order to know the weight of a dirham, one must know the weight of a dinar. Dinar comes from a Latin-Greek term, dinariyus, and it was one of the most important coins used in the Islamic lands. Its weight in grams is 4.25 s. Since a dirham is seventenths of that, its weight is 2.975 grams. See Figh al-Zakaat by Dr. Yusuf alaradhawi, vol. 1, p. 259 (Muassasat al-Risalah, Lebanon, eighth edition, 1405 A.H.). Sadan’ yen actual states 9.975, but that is obviously simply a typographical Or —

Nail al-Maraam min Tafseer Ayaat al-Abkaam by Muhammad Sideeq Khaan, p. 137 (Daar al-Raaid, Lebanon).

‘The Figh of Marriage

The first opinion is that a proper dower cannot be less than ten dirhams. This is the opinion of the Hanafis.1

The second opinion is that the minimum acceptable for a dower is three dirhams, a quarter of a dinar or what is equivalent in value to that of goods or of something pure and not impure, something that is considered wealth, assets or property from a shareeah perspective, something that may be permissibly benefited from, and not like a lute [which has no value according to the shareeah]. It must be something that one can hand over to the wife, whose amount, type and term is known and fixed. This is the opinion of the Malikis.?

A third opinion is that the dower is valid as long as anything which can be called wealth or its equivalent is given, as long as the parties mutually consent to it. This is the opinion of the Shafi’ees, Hanbalis, ibn Wahb of the Malikis, Ishaaq ibn Rahawaih, Abu Thaur, the jurists of the Madinah at the time of the Followers, al-Hasan alBasri, al-Thauri, al-Auzaa’ee and Saeed ibn al-Musayyab.3

A fourth opinion is that anything which may be called “a thing”, even if it is just a grain of barley, is acceptable as the dower. This was the opinion of ibn Hazm.*

A fifth opinion is that the dower is valid by anything which has value, either material or non-material.

Those of the first opinion, that the minimum dower is ten dirhams, support their view with the following evidence:

First is what is recorded by al-Daaraqutni and al-Baihaqi from Jaabir ibn Abdullah that the Messenger of Allah (peace be upon him) said,

3 Fath al-Qadeer, vol. 2, pp. 435-436; Nail al-Autaar, vol. 6, p. 167.

3Al. Shar! al Saghecr, vol. 2, p. 28; al-Mudawanab al-Kubra, vol. 2, pp. 173-174. 3 Ab. I-Majmoo Sharh al-Mubadbib, vol. 5, ' 482.

fi -Muballa Sharh al-Majallab by ibn Hazm, the Dhaahiri, vol. 11, pp. 96-97, issue 1850.

"The Figh of Marriage

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“No one is to marry women off except the guardians. They are not to be married except to those who are suitable. There is no dower less than ten dirhams.”!

This hadith has been objected to because it is weak. Therefore, it is not proper to use it as evidence. It was narrated by Mubashir ibn Ubaid, and he is weak, from al-Hajaaj ibn Arta‘ah and he committed tadlees.?

Second is what is recorded by al-Baihaqi through the chain of Shuraik on the authority of Dawood al-Audee on the authority of alShaabi on the authority of Ali (may Allah be pleased with him) who said, “The minimum that makes the private parts [of the wife] permissible is ten dirhams.” This proof is refuted because Dawood alAudee is not trustworthy. Ibn Maeen said about him, “He is not worth anything.”