Chapter 5:Marriage Contract: Dower

Definition:

 Dower is the money or property a wife is entitled to receive from her husband as part of the marriage.

 It is required in all Sunni schools of law and cannot be waived to validate a marriage.

Purpose:

 Dower is a symbol of respect and acknowledgment of the wife's worth.

 It provides financial security to the wife.

 It represents the husband’s willingness to take responsibility for the marriage.

 It is not a "bride price" or payment for the wife’s sexual or reproductive rights.

Key Points:

1. Not a Price:

o Early jurists wrongly compared dower to a price in a sales contract.

o Hanafi jurist Kamal In al-Humam stated that dower emphasizes the significance of marriage, not as a
condition for its validity or effectiveness.

2. Dower in Shariah:

o Dower becomes obligatory as soon as the marriage contract is valid, even without consummation.

o If a husband divorces his wife before consummation, he must still pay half the agreed dower (as per
Qur'an 2:236).

o This proves dower is not linked to sexual rights.

3. Contemporary View (Mawlana Waheeduddin Khan):

o Dower symbolizes the husband's lifelong responsibility to care for his wife.

o It is a token of commitment, showing his intent to maintain and protect her throughout the marriage.

5.2 Legitimacy of Dower

Quranic References Supporting Dower as a Condition for Marriage:

1. Verses Emphasizing Payment of Dower:

o Husbands are instructed to pay dower when marrying free women.

o Dower payment is required when marrying a slave girl.

o Dower must also be paid to women of the People of the Book (Jews and Christians).

These verses indicate that dower is obligatory for all categories of women in Islamic marriages.

2. Dower in the Context of Divorce:

Men are forbidden from taking back the dower they have given their wives during divorce.

 "A divorce is only permissible twice... It is not lawful for you to take back any of whatever you
have given to your wives."
 o Even if a husband has given a large amount as dower, he cannot reclaim any of it when divorcing his
wife.

 "If you decide to take one wife in place of another, even if you had given the latter a whole
treasure for dower, take not the least bit of it back."

3. Significance of Dower in Marriage:

o The Quran distinguishes between a proper marriage (nikah) and illicit relationships (sifah or fornication)
by emphasizing dower.

o Dower payment is highlighted as part of lawful and honest marriage.

 "For those whom you desire to enjoy in marriage, you shall give the dowers due to them.

5.3 Nature of Mahr

Definition:

 Mahr (dower) can be anything lawful and of monetary value.

 Items like wine and carrion cannot be used as mahr as they are prohibited in Islam.

Examples from the Prophet’s Teachings:

1. Memorization of the Qur'an as Mahr:

o A man who had no material wealth was permitted by the Prophet to offer his memorization of Qur'anic
verses as dower.

o This shows that non-material but valuable contributions can serve as mahr.

2. A Pair of Sandals as Mahr:

o A man married a woman by offering a pair of sandals as dower.

o The Prophet ensured the wife was satisfied with this arrangement before approving the marriage.

Key Points About Mahr:

 Divorce Cannot Be Mahr:

o It is not permissible to make the divorce of a current wife the dower for marrying another woman.

 Flexibility in Fixing Mahr:

o Mahr does not need to be specified at the time of the marriage contract.

o It can be determined after marriage since it is an effect of the marriage, not a condition for its validity.

5.4 Position of Marriage Without Dower

Validity of Marriage Without Dower:

 A marriage is valid under Islamic law even if the dower is not fixed before or during the marriage ceremony.

 The dower can be determined after marriage.

Quranic Basis:
  Verse 2:236: "There is no blame on you if you divorce women before consummation (sexual intercourse), or the
fixation of their dower..."

o This verse highlights that marriage can occur without specifying a dower.

o Divorce without consummation or dower fixation absolves the husband from paying dower.

Scholars’ Interpretation (Simplified):

 Imam Qurtubi: Marriage without mentioning the dower is allowed based on the Quran. Scholars agree such
marriages are valid. (marriage of tafwid)

 Hanafi View: Marriage is valid without a dower, but if no dower is set, the wife gets a fair amount based on
customs.

 Maliki and Some Shafi’i Views: Marriage isn’t valid if the dower is denied outright. They compare dower to a
price in a sale, which is necessary for the contract to be valid.

5.5 Amount of Mahr

Minimum Amount:

 Hanafi Jurists: Minimum dower should be 10 dirhams, but this is considered a very small amount and not
reflective of love and respect for the wife.

 Maliki Jurists: Minimum dower is a quarter dinar of gold.

 Shafi’i and Hanbali Jurists: No minimum limit; any amount, small or large, is valid based on the Quranic verse
(4:24): "So you seek them with your property in honest wedlock."

Maximum Amount:

 No maximum limit for the dower in any school of thought.

 Umar (r.a.t.a.): Tried to set a cap at 400 dirhams to prevent excessive dowers, but this was not enforced.

Types of Mahr

1. Based on Whether the Amount is Fixed or Not:

 Specified Dower (Mahr Musamma):

o The exact amount of dower is decided during or after the marriage.

 Proper Dower (Mahr Mithl):

o If no amount is fixed, the wife gets a dower similar to what other women of her family (like sisters or
aunts) received.

2. Based on When It’s Paid:

 Prompt Dower:

o Paid immediately at the time of marriage or whenever the wife demands.

 Deferred Dower:

o Paid later, usually if the marriage ends due to divorce or the husband’s death.

Classification of Mahr (Dower):

 Specified Dower (Mahr Musamma): This is agreed upon and fixed either at the time of marriage or later by
mutual agreement.

 Proper Dower (Mahr Mithl): If not fixed, this is decided based on the dower given to women of similar status in
her family, like her sisters or paternal aunts.

2. Based on Time of Payment:

 Prompt Dower: Payable immediately after marriage or when demanded.

 Deferred Dower: Payable later, usually at the end of the marriage due to divorce or the husband's death.

 If not specified as prompt or deferred, it is treated as prompt.

Proper and Specified Dower:

Proper Dower (Mahr Mithl):

This applies in certain cases:

1. If the dower wasn’t specified, and the husband divorces her after consummation, she gets proper dower.
Without consummation, she gets a parting gift instead.

2. If the husband dies before consummation and dower wasn’t fixed, proper dower is due (Hanafi view).

3. If they agreed to marry without fixing dower, proper dower becomes payable.

4. If the fixed dower was something invalid (e.g., alcohol), proper dower is payable.

5. If a woman marries for less than the proper dower, her guardian can demand the proper dower.

Specified Dower:

This is a pre-agreed amount and has two categories:

1. Complete Specified Dower:

o Becomes fully due if consummation occurs or if the couple spends private time together in a way that
could lead to consummation (Hanafi view).

o Also due if either spouse dies, even without consummation.

2. Half Specified Dower:

o If the husband divorces her before consummation, she gets half of the agreed dower.

o This is based on the Quranic verse: “If you divorce them before consummation but after fixing dower,
half of the dower is due unless it’s forgiven.”

In simple terms, proper dower applies when dower wasn’t fixed, while specified dower is based on what was agreed.
Whether full or half dower is paid depends on the stage of marriage and whether consummation occurred.

Similarities Between Valid Retirement and Actual Consummation:

1. Dower becomes due: In both cases, the wife is entitled to dower, whether it was fixed or not.
 2. Iddah (waiting period): If the husband divorces or dies, the wife must observe a waiting period in both cases.

3. Maintenance during Iddah: The husband must provide for the wife during her waiting period after either
retirement or consummation.

4. Prohibition on marrying another wife: The husband can't marry a fifth wife while his divorced wife is in her
waiting period.

Differences Between Valid Retirement and Actual Consummation (Sexual union):

1. Prohibited marriage relationships: After consummation, the husband can't marry the wife’s descendants (like
her daughter). Retirement doesn't create this restriction.

2. Punishment for fornication: If either spouse commits fornication after consummation, the punishment is
stoning. After retirement, it's 100 lashes instead.

3. Divorce type: After consummation, divorce can either be undone or permanent, depending on the situation. But
after retirement, divorce is always permanent.

4. Remarrying after three divorces: After three divorces, if consummation occurred, the wife can remarry the first
husband. This doesn't apply after retirement.

5. Inheritance rights: If the marriage is consummated, the couple can inherit from each other if divorced. This right
doesn’t apply after retirement.

Causes That Forfeit ( lose, give up) the Dower:

1. Separation by the wife before consummation or retirement: If the wife leaves before consummation or valid
retirement, she loses her dower.

2. Wife forgives the dower: If the wife forgives her dower, she loses the right to it.

3. Wife gives up dower for khul (mutual divorce): If the wife agrees to release her dower for a khul divorce, she
forfeits it.

4. Marriage annulled due to insufficient dower: If the marriage is annulled because the dower is too low, and this
happens before consummation or retirement, the wife forfeits her dower.

5. Invalid marriage (fasid): If the marriage is invalid and the couple separates before consummation, the wife loses
her dower.