Part 4

Their third argument is that the amount must be something that reflects the greatness of making the private parts allowable. Just any amount of wealth would not meet that requirement. “The shareeah has stated the amount by which a part of the human may be taken and that is

1 ALSunan al-Kubra by al-Baihaqi, vol. 7, p. 132; al-Taleeg al-Mughni ala alDaaraguini, vol. 3, hadith #11, Chapter on the dower.

Nas al-Raayab :-Abaadeeth al-Hidaayah by al-Zaila'ee, vol. 3, p. 196, Chapter on having suitable mates in the book of marriage. [Tadlees (us), lit., deception; with respect to hadith sciences, it has many variations. One of the most common is where Mr. A will say, “On the authority of Mr. X,” while, although Mr, A had heard hadith directly from Mr. X, he did not hear that particular hadith directly from Mr. X but through some intermediary source. If a narrator is known for committing frequent /adlees, his narration will not be accepted unless he explicitly shows that he heard the hadith directly from the one on whose authority he is narrating it. If he uses a vague term, such as an (“on the authority of”), his narration will not be qccepted.]

Al-Sunan al-Kubra by al-Baihaqi, vol. 7, p. 240, the Book of the Dower, Chapter on what is permissible as a dower.

‘The Figh of Marriage

ten dirhams, as in the case of the prescribed punishment for the thief, and it is that amount that must be paid to make the private parts legal.”!

This argument is refuted because the amount for which the hand of a thief is cut off has no relevance here. Marriage is sought for pleasure and love while cutting off the hand of a thief is a type of punishment. [So there is no analogy between the two.] Furthermore, why did they determine the amount [of the dower] according to what requires the hand to be cut off instead of the amount that the Messenger of Allah (peace be upon him) gave his wives as a dower or the minimum amount due to which one must pay zakah, which is two hundred dirhams or twenty dinars?”

The people of the second opinion support their view by the Quran and the sunnah. From the Quran, they quote the following verse:

Wied ipl taint ass OF Yb pte ghd oI 5s ayes utd Se Saf ORL

“And whoever among you has not the means (tau/) to wed free believing women, they may wed believing women from among those whom your right hands possess” (al-Nisaa 25). The argument from this verse is that Allah has laid down the condition of lack of means in order for one to marry a slave-girl, because not everyone possesses the means (which are stated as taul in the above verse). The meaning of faul here is wealth. The word “wealth” is not applied to less than three dirhams. Therefore, what is less than three dirhams does not qualify for a marriage.>

This argument is criticized because the meaning of taul in that verse is not just wealth. Its meaning is wider than that. It also refers to virtuousness and ability in both a spiritual and material sense. A man could have plenty of wealth, more than what is needed for a customary dower of a free woman, but women flee from him due to a shortcoming in his physical being or character and therefore he is not able to marry a

5 Ab-Hidaayab by al-Kaloodhaani al-Hanafi, vol. 2, p. 436. Al-Umm by al-Shafi’ee, vol. 2, p. 144; al-Mughni, vol. 8, p. 5; Bidaayat al-

Suptabid by | in. Rushd, vol. 2, p. 16. -Mugadimaat wa al-Mumabidaat by ibn Rushd, vol. 2, pp. 357-358.

‘The Figh of Marriage

free woman. Furthermore, he may not be able to fulfill the rights of a free woman other than the dower. Free women have many rights, such as maintenance, equality in multiple marriages and so forth. The slave does not have all of those rights. Therefore, lacking tau! can actually manifest itself in many different ways.!

Their evidence from the sunnah is what is narrated from Anas (may Allah be pleased with him) that the Prophet (peace be upon him) saw Abdul Rahmaan ibn Auf wearing dyed clothing. He asked him, “What is this?” He answered, “I married a woman with a nawaah amount of gold [as the dower].” The Messenger of Allah (peace be upon him) told him,

ity Jy of au abi ayy

“May Allah bless you. Give a dinner party, even if with just a sheep.”?

They say that nawaah among the people of Madinah was equivalent to one-quarter of a dinar,>

However, the argument based on this hadith is objected to because there is no evidence that what is stated in the hadith, one-quarter of a dinar, is the minimum for a dower. Just because there was a dower of that amount does not negate the possibility that less is permissible— unless there is a clear statement indicating that less than that is not sufficient but there is no such statement here.

The people of the third opinion, the Shafi’ces and Hanbalis, say that anything that is wealth or that can take the place of wealth is permissible as a dower. They use the Quran and sunnah to support their

view. From the Quran, they quote the verse [that states after declaring which women a man cannot marry],

' Tafseer al-Manaar by Rasheed Ridha, vol. 5, p. 19; al-Muballa, vol. 11, pp. 10001. Recorded by al-Bukhari #167), Book on Marriage, Chapter on a wedding feast

gven with just a sheep; Muslim (#1 D, Book on Marriage, Chapter on the dower. Nail al-Autaar by al-Shaukaani, vol. 6, p. 178.

‘The Figh of Marriage

“and permissible for you is anyone other than those, as long as you seek them by your wealth” (al-Nisaa 24). The argument here is that the word “wealth” is stated in an unconditional sense and inclusive of both a small amount of wealth or a great deal of wealth.!

The objection to this argument is that the Quranic expression indicates that what is not amwaal? is not acceptable as a dower. Therefore, the condition is that the dower must be amwaal. This is the necessary and apparent meaning of the verse. Anyone who has just one or two dirhams cannot be called someone who has amwaal. Therefore, the necessary and apparent meaning of the verse is that the one or two dirhams is not acceptable as a dower.>

From the sunnah, they use the hadith,

eel as poo ese! oy

“Whoever makes [the private parts] permissible by a dirham has made them permissible [in a legal way].”* Al-Haithami said [about the chain of narrators for this nadith], “It contains Yahya ibn Abdul Rahmaan ibn Abi Kabshah who is weak.” This argument has also been objected to by noting that “there is no proof in this evidence as it is a report about having the right to the private parts and does not indicate that nothing else is obligatory concerning it.”¢

Second, [they also use the following hadith as evidence]: AlShafi’ee narrated from Malik on the authority of Abu Haazim from Sahl ibn Saad that a woman came to the Prophet (peace be upon him) and

} ALMughni, vol. 8, p. 5.

[This is the plural of the word maal, meaning wealth. There is no equivalent to such in an ish but since it is a plural, it implies at least three of something in

Abkaam al-Quran by al-Jassaas, vol. 2, p. 170.

Ibn Hajr, in al-Fath, vol. 9, p. 211, ascribes this hadith to ibn Abu Shaibah, in the midst of a number of hadith concerning which he says, "None of them are gonfirmed.”

[The author (may Allah have mercy on him) put that argument in quotes but did not ascribe it to anyone in a footnote. In any case, it is a very weak refutation. The important point is that the hadith is weak and cannot be used as an evidence in the shareeah —JZ]

The Fight of Marriage

said, “O Messenger of Allah, I have offered myself to you [as a wife].” The Prophet (peace be upon him) then stayed standing for a long time. Then a man_ stood and said, “O Messenger of Allah, marry her to me if you are not in need of her.” The Messenger of Allah (peace be upon him) then said, “Do you have anything that you can give as a dower to her?” He replied, “I have nothing but this loin cloth of mine.” The Prophet (peace be upon him) then said, “If you give it to her, you will have to sit without a loin cloth for you. Seek something for her.” He said, “I do not find anything.” He said, “Seek something even if is just a ring made of iron.”!

The argument here is that “the Messenger of Allah (peace be upon him) allowed that man to give a ring made of iron for the dower. This indicates that the dower is proper whenever it is anything which may be called wealth.”?

The objection to this argument is that here the Messenger of Allah (peace be upon him) was simply ordering the man to have part of the dower at the present time. This is what his speech was about. This is because if he were stating what would make the marriage valid, it would have been sufficient for him to tell the man that it is his responsibility to get such in the future. However, he specifically asked him about what he could prepare at the present [as a type of first portion of the dower]. This indicates that he was not stating what would be sufficient to make the marriage sound.>

However, this objection is responded to by referring to the previously mentioned two explanations: It is not allowed to understand what is mentioned in the two hadith as referring to the portion of the dower that is paid in advance because such an understanding goes against the normal case. Furthermore, giving a portion of the dower in advance and delaying the rest was not something known in the early periods of Islam.*

Their third piece of evidence is what is recorded by Abu Dawood and al-Tirmidhi on the authority of Aamir ibn Rabeeah that a

5 This hadith was discussed earlier.

3 Ale -Muballa, vol. 11, pp. 104-105. 4} Abkaam al Quran by al-Jasaas, vol. 3, p. 86.

Athaar Aqd al-Zawaaj fi alShareeab alIslaamiyab, vol. 1, p. 132.

The Figh of Marriage

woman from the tribe of Fazaarah married with a dower of a pair of shoes. The Messenger of Allah (peace be upon him) asked her, “Is your soul and wealth content with a pair of shoes?” She said, “Yes,” so he permitted it.!