Part 9

The Figh of Marriage

her dower due toa voided marriage, she must even more so be entitled to all of her dower due to a valid marriage.!

(2) The Death of Either Spouse after a Sound Marriage and Even before Consummation, According to the Agreement of Scholars:

If either spouse dies after a sound marriage contract yet before consummation, the woman is entitled to her entire dower according to the agreement of the jurists if the dower was explicitly stated in the contract.3 This is because the marriage contract is not annulled by the death. The contract simply comes to an end due to the death of one of the parties. All the rulings are put into force, therefore, including the dower. The Companions were in agreement that in such a case the woman is entitled to her complete dower.

5 Nail al-Autaar by al-Shaukaani, vol. 6, p. 118. 2 Bidaayab al-Miy fan wa Nibaayal | al- -Magtasid by ibn Rushd, vol. 2, p. 22; Rabat al Ummah fi Ikbtilaaf al-Aimmah, p. 2. ; Uf the wife dies, her heirs are entitled to ite her dower —J; $ Mausooab al -Iimaa al Fi h al-Islaami by Saadi Abu aya a 1 . 980. Qawaaneed ‘al-Abi al-Shariyyah wa Masaail al-Furoo al- -Pabiyyab by ibn

al-Maaliki, p. 227. re +b al-Fugabaa by al-Samargandi, vol. 1, p. 141.

‘The Fight of Marriage

“The Messenger of Allah (peace be upon him) made the same judgment you just made concerning Barwa bint Waashiq.”!

Furthermore, the term of the contract is life. It ends with the death of either. However, what must be given in exchange has already been established, in the same way as when the time of the end of a lease comes up and the person must pay for what preceded it.

The following question has been brought up: Is being killed to be considered the same as death? If one of the spouses is killed by a third party or if one of the spouses kills the other or if one of the spouses commits suicide, then, according to the strongest of the two opinions among scholars, being killed is treated in the same way as death with respect to the dower. However, if the wife intentionally kills her husband, that will cause her to lose her dower. This is because, in this case, her treacherous act brings the marriage contract to an end through a sin. Any time the marriage contract is brought to an end due to a sin on the part of the wife and before consummation, she loses all of her dower, as is true in the case of her apostatizing. And no one has a right to that dower. This is the strongest opinion.”

(3) A True Seclusion

Tbn Abideen has defined this concept of a real or true seclusion as, “This is where, after a sound marriage contract, the spouses are alone together with the ability to completely experience one another, being

| ‘This is a sabib hadith. Recorded by Abu Dawood (#2114, 2115, 2116) in the Book of Marriage, Chapter on one who gets married and the dower is not stated; alTirmidhi (#1145) in the Book of Marriage, chapter on what has been reported concerning a man who gets married and dies before determining the dower; alNasaai (vol. 6, pp. 121-128) in the Book of Marriage, chapter on the permissibility of marrying without stating the dower; ibn Maajah (#1891); Imam Ahmad in alMusnad (#4099, 4100, 4272); ibn Hibbaan (#1263) who declared it sabib; and alHaakim (vol. 2, p. 108). Ibn Hajr has a lengthy discussion of this hadith in Talkbees (vol. 3, pp. 191-192) and he states who considered it authentic and responds to

ose who considered it weak.

ALFigh al-Islaami wa Adillatubu by Wahbah al-Zuhaili, vol. 7, pp. 290-291; alSharh al-Sagheer by al-Dardeer, vol. 2, p. 438.

The Figh of Marriage

safe from anyone entering upon them, and with neither of them having any natural, physical or shareeah obstacle to such enjoyment.”

A “natural impediment” means the presence of another mature person. A “physical impediment” means one of them having an illness that would prevent intercourse, such as a vaginal or scrotal hernia or when the woman’s vagina has been sewn together or cannot be penetrated. A “shareeah impediment” would include one of them fasting during Ramadhan or being in the state of voluntary or obligatory pilgrimage or umrah.

A true seclusion has the same status as consummation with respect to entitling the woman to her entire dower, if the two get divorced or the marriage is annulled before the actual consummation but after said seclusion. This is according to the stronger of the two opinions among the scholars. We shall discuss this issue in greater detail when we discuss the question of paying only half of the dower, Allah willing.

(4) The Wife Staying One Year in the House of the Husband

According to the Malikis, if the wife stays in the house of the husband for one year and he does not have intercourse with her, she is still entitled to her entire dower. In other words, if aman marries a woman and he takes her home ina marriage procession and she stays with him for one year, given that she is adult and able to have sexual intercourse, and they agree not to have sexual intercourse for that year, she is entitled to her entire dower. This is because her stay implies the action or takes the place of the intercourse. However, the Hanafis, Shafi’ees and Hanbalis disagree with this opinion.!

1 AL-Figh al-Islaami wa Adillatubu by Wahbah al-Zuhaili, vol. 7, pp. 292-293.

‘The Figh of Marriage

(5) A Bivorce Said on One’s Deathbed, before Consummation of the Marriage, in Order to Keep the Wife from Inheriting

According to the Hanbalis,! a woman is entitled to her complete dower if she is divorced while her husband is on his deathbed and dies after pronouncing the divorce, even before consummation, if he is trying to keep her from inheriting. She is entitled to her entire dower at the time of his death in the same manner that she must now enter into the mourning period of a widow, as long as she does not [illegally] wed during that time or apostate. The principle is that a new event is ascribed to the most recent time.?

(6) Physically Enjoying One’s Wife in a Manner Less than Sexual Intercourse, such as Kissing and so forth, While Not in Complete Privacy

Ahmad explicitly stated that in such a case, the woman is entitled to her complete dower. In al-Mughni it states, “If he is with her and touches her or hugs her, without being in private with her, she is

AL-Mughni by ibn Qudaamah, vol. 10, p. 157.

Durur _al-Hikaam Sharh Majallah al-Abkaam al-Adalyyab by Ali Haidar (p. 25), article 11 (published by Dar al-Ilm al-Malaayeen, Lebanon). [Here the author has quoted an established figh principle. However, it may not be applicable to the

uestion at hand. Using the same reference the author has noted, the application of this principle would be as follows: If a woman claims that she has been divorced by her husband while he was on his deathbed simply to keep her from inheriting from him and the family claims that he divorced her while he was healthy, given no other evidence, the wife’s claim will be upheld because the divorce was a new event that did not reviously take place and it must therefore be ascribed to the most recent time, which is while the man was near his death. However, the question that the author is dealing with in the text is not quite the same. The issue above is concerned with the woman definitely being divorced while the husband is on his deathbed. is she still entitled to her dower as her husband may have divorced her simply to ke her from getting her dower or inheritance? In other words, in this case it is wellknown that she was divorced while he was on his deathbed and there is no dispute over whether or not she was divorced. Hence, it seems that this fiqh principle quoted by the author is irrelevant here. Allah knows best— JZ]

‘The Figh of Marriage

entitled to her complete dower as he has done with her what is not permissible for others to do.”!

The evidence for this opinion is the following:

First, al-Daaraqutni recorded in his Sunan? from Muhammad ibn Abdul Rahmaan ibn Thaubaan that the Messenger of Allah (peace be upon him) said,

df feo Tidal ale Cory Led jig Tal LA GES oy

“Whoever uncovers the headcovering of a woman and looks at her must pay the dower, whether he consummated with her or not.”

Second, by such actions, he is physically enjoying the woman and so he must pay the entire dower as he would if he had sexual intercourse with her. This is because touching falls under the implication of the verse in the Quran,

fe fe ales poe os bogie poze Ga aoe Hay B al PB By oe peed OF YS Gye Gm peatlb 0} eset ie te “If you divorce them before ‘touching them’ and you have determined their dowers, then they shall receive half of the dowers...” (al-Bagara 237).

However, these two proofs are objected to. First, the hadith contains ibn Laheeah? who is weak and whose narrations cannot be used as evidence. Even if one were to assume that it is authentic, it would be understood to mean that such took place when the two were in private as there is a consensus that if something of that nature takes place in front of others, the dower does not become obligatory.

Al-Mughni by ibn Qudaamah al-Hanbali, vol. 10, p. 157; a/-Insaaffi Marifab alBaajib min “i ilaap by al-Mardaawi, vol. 8, p. 287. Sunan al-Daaraqutni, vol. 3, p. 207, hadith #232, from the chapters on the

gower. Talkhees al-Habeer, vol. 3, p. 193, hadith #1555.