The Statutes of Marriage; The Dower
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Marata"
A. The Dower (mahr)
Whenever a man marries a woman, he must give her a dower in return for the sexual gratification he is to receive. The dower must consist of a specified amount of property, cash, or profit. It must be ritually pure and owned by the husband. All schools agree that the dower does not have to be mentioned in the contract. If it is mentioned and does not fulfill the conditions required for dowers, the contract is valid but the dower must be corrected.
There are two kinds of dower. The 'specified dower' (al-mahr al-musamma) is one upon which the man and the woman agree. The 'normal dower' (a!-mahr a!-mathal) is what the woman receives if she cannot come to an agreement with her husband over the specified dower, or if for some reason the specified dower should be invalid. The normal dower is the amount of property, in cash or kind, which other women of the same social status, age, beauty, etc., are receiving in the society of the time.
According to four of the schools, as soon as the marriage contract is concluded, the woman becomes the owner of the whole dower; the Malikis maintain that only one-half of the dower belongs to her at this point.1 Should the wife demand the dower from her husband immediately, he must pay it to her; but if he should divorce her before consummation and she has not yet taken the dower, he only has to pay her one-half.
In all schools, consummation of the marriage or the death of one of the spouses necessitates payment of the full dower. The Malikis add that if the wife should live with her husband at least one year, there being no hindrance to consummation of the marriage, he must pay the full dower.2 The Hanafis maintain that it is sufficient for the man to be alone with his wife on one occasion when there is no hindrance to consummation.3 According to the Hanbalis, being alone with the wife, love play, and seeing her private parts are all sufficient cause for the payment of the whole dower.4
Before consummation of the marriage, payment of all or part of the dower may be nullified for the following reasons:
1. One-half is nullified through divorce.
2. If the woman should become an apostate, she loses the whole dower.
3. If the man should become an apostate, the marriage is void, but he still must pay one-half the dower.
4. If the man or woman should annul the marriage because of physical disability or deception by the partner, she forfeits the whole dower; however, the Shi'is hold that if the woman should annul the marriage by reason of the man's impotence, she will be entitled to one-half the dower.5
5. If a man and woman should suddenly become forbidden to each other through the establishment of some relationship, e.g. a foster relationship, where the woman is not at fault, she receives one-half the dower; if she is at fault she loses all of it.
According to the Maliki, Hanbali, and Shi'i schools, if the marriage contract should be invalid but copulation takes place, the woman is entitled to the specified dower.6 The Shafi'is hold that in such a case, she receives the normal dower.7 The Hanafis rule that she will receive whichever of the two dowers is less.8 In a case of 'mistaken intercourse' (waty a!-shubha), where copulation takes place because the man and woman mistakenly believe themselves to be husband and wife, the woman is entitled to the normal dower.
The woman may refrain from sexual intercourse as long as she has not received the dower. In such a case the man may not claim conjugal rights unless it was explicitly stated in the marriage contract that the dower would be paid at some later date. But if the woman should accept intercourse before receiving the dower, from then on she may not refuse her husband, unless it is proven that he has no ability to pay the dower; here the Shi'is take exception, holding that once the marriage is consummated, the wife may not refuse intercourse because of the husband's inability to pay the dower.9 The Hanbalis, Shafi'is, and Malikis say that if the husband's inability to pay is proven before consummation, the woman may annul the marriage; with the exception of the Hanbalis, they hold that she may not do so after consummation, since her willingness to engage in sexual intercourse proves that she accepted the marriage's validity; the Hanbalis say the woman may annul the marriage even after consummation.10 The Hanafis and Shi'is hold that the woman may not annul the marriage, but she may refuse to engage in intercourse.11
If the woman should decide to return part or all of her dower to her husband, he is then free from the obligation to pay it to her.
1. Fiqh, IV, 108.
3. Ibid., III.
5. Sharh al-lum'a, II, 101; Riyad, II, 135.
6. Fiqh, IV, 120-21; Sharh al-lum'a, II,101; Riyad, II, 135.
9. Sharh al-lum'a, v, 371-72; Riyad, II, 149.
10. Fiqh, IV, 165.
11. Ibid., 163; Riyad, II, 109-10.
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