Fiqh of Marriage – The Mahr (Dowry)

wedding-ringsThe mahr (dowry) is something that is paid by the man to his wife. It is paid to the wife and to her only as an honor and a respect given to her and to show that he has a serious desire to marry her and is not simply entering into the marriage contract without any sense of responsibility and obligation or effort on his part.

It has been referred to by many names in the texts and the books of fiqh:

* An-Nihla : Gift
* Al-Faridha : Prescribed amount or obligation
* Al-Hibaa’ : Gift or present
* Al-Ajr : Payment or compensation
* Al-‘Uqr : Indemnity
* Al-‘Alaa’iq : Precious things, provision
* As-Sadaqa : Sincere gift or charity
* At-Tawl : Ability
* An-Nikah : Marriage

One of the more common names for it is Al-Sadaq which comes from the word sidq meaning honesty or sincerity. As-San’ani (Book: Subul As-Salaam) explains its significance: “It indicates the sincerity of the husband’s desire for his wife. In the religious laws before us the dowry used to go to the guardians.”

Proof that the Mahr is Obligatory

Allah says in the Qur’an:

“And give the women their dowries with a good heart…” [Noble Quran 4:4]

This verse is addressed to either the husbands or the guardians. It is addressed to the husbands because it is their responsibility to pay the dowry. It could also be addressed to the guardians, not because they have to pay the dowry, but because in pre-Islamic jahiliya (and in much of today’s “post-Islamic” jahiliya), they used to take the dowry of the women and not give it to them. This verse shows that the dowry must be given to the women and not kept by the guardians. The following verses also shows the obligatory nature of paying the dowry to the women:

“…So for that pleasure which you have enjoyed from them, give them their prescribed compensation.. ” [Noble Quran 4:24]

“…All others have been made lawful for you provided you seek (them in marriage) with your property…” [Noble Quran 4:24]

Regarding one of the Companions who was poor and wished to marry, the Prophet (peace and blessings be upon him) said to him:

“Search for something, even if it is just a ring made from iron.” [Bukhari & Muslim]

Is the Dowry a Part of the Marriage Contract?

The above has established that the dowry is obligatory. Now the question arises as to whether or not it (i.e., its specification and agreement on its amount) is one of the arkaan or the shurut of the marriage contract. In other words, is it valid to have a marriage contract in which the dowry is not stated? Apparently, the dowry is the right of the wife but does not form part of the marriage contract itself. This is based on the following clear verse in the Qur’an in which divorce is mentioned in a case where no dowry was agreed upon. Obviously, there can be no divorce if there was no marriage in the first place.

“There is no sin upon you if you divorce women before touching them or assigning for them a dowry. And give them provision – upon the wealthy what is appropriate and upon he of limited resources what is appropriate – a provision based on the best (the “known”), an obligation upon the doers of good.” [Noble Quran 2:236]

This does not mean that it is recommended or preferable not to mention the dowry at the time of the marriage contract. Ibn Taimia, for example, mentions that the amount of the mahr should be mentioned at the time of the marriage in order to eliminate the chance for dispute later. This part of his argument should be extremely clear and obvious to all. His opinion was that the dowry is a shart or rukn of the marriage, in agreement with the Maliki school, as stated earlier. That seems to be the weaker of the opinions, however. In short, there are three distinct cases:

A case where the parties agree not to pay any dowry. This is not permissible and the contract is either valid with the man being forced to pay an appropriate dowry, or it is completely invalid (the Maliki opinion).

A case where the dowry is mentioned and agreed upon at the time of the marriage contract. This is clearly the best approach and is agreed upon by all as the most complete and perfect form. The main benefit of this approach is that it greatly reduces the possibility of dispute in the future.

A case where no dowry is mentioned or agreed upon at the time of the contract. This contract is sound and valid and the woman is entitled to the dowry that they agree upon later. If they don’t specifically agree on a dowry, then she is entitled to “mahru al-mithl ” which means: “the dowry which is given to women similar to her.”

The Maximum and Minimum Amount of the Dowry

There are no authentic hadith or reports explicitly stating a minimum or maximum amount of dowry. All hadith which explicitly state such things are weak narrations. However, some scholars have relied on implicit conclusions from specific reports to determine an answer to the question of there being a minimum or maximum.

There is no maximum limit for the dowry. Allah described the dowry in the Qur’an with the following words:

“And if you wish to replace a wife with another and you have given one of them a heap of gold, do not take anything from it. Would you take it as a fraud and a clear sin?” [Noble Quran 4:20]

The word qintar means a very large amount of gold and if it is permissible to give such as mahr, this shows that there is no maximum limit to the amount one may give as mahr.

The Story of Umar Intending to Limit Dowries

The famous and widely heard story about Umar ibn Al-Khattab attempting to prohibit large dowries from the minbar and being corrected by one of the women Companions with the above verse is a weak hadith which has no validity. What is authentic is that Umar advised people not to be excessive in dowries, but not that he prohibited people from agreeing among themselves on dowries of any amount.

The Minimum Amount of the Dowry

There are five distinct opinions concerning the minimum amount required for something to be considered acceptable as a dowry.

The First Opinion

The minimum dowry is ten dirham (somewhere around ten dollars or the price of a goat today). This is based on the hadith:

“There is no mahr less then ten dirhams.” While Ibn Hajr found this hadith to be “hassan”, most other scholars of hadith judged it as weak. Also, it is in contradiction to the hadith cited earlier about the iron ring – which would not have been worth that amount.

The Second Opinion

According to the Malikis, the minimum required for a dowry is three dirhams. It must be something legal according to the shari’a which can be handed over to the wife. It must be a specified amount. Their argument, also, is that in their school, this is the minimum amount for which the thief gets the punishment of cutting. They also cite the verse:

“And whoever of you does not have the means to wed free believing women, so from the believing women that your right hands possess… ” [Noble Quran 4:25]

Their argument is that at-taul means wealth and one who does not have three dirhams is not considered as possession any wealth. However, there are other interpretations about what the word means in this verse.

The Third Opinion

This opinion states that anything that can be called “wealth ” (maal) and is accepted by the parties is permissible as the dowry. In essence, this opinion states that there is no minimum for the dowry. This is the opinion of the Shafi’is, Hanbalis, Dhahiris, Ibn Wahb of the Malikis, Al-Hassan Al-Basri and others. It is supported by the verse:

“…All others have been made lawful for you provided you seek (them in marriage) with your property… ” [Noble Quran 4:24]

The Fourth Opinion

Anything which can be called shai’an (a “thing “) is acceptable as dowry. This is the opinion of Ibn Hazm and is based on the first part of the hadith about the ring of iron where the Prophet (peace and blessings be upon him) said:

“Search for something. ” He said: I have nothing. He (peace and blessings be upon him) said: “Search for something, even if it is just a ring made from iron.” [Bukhari & Muslim]

The Fifth Opinion

Anything which has value, regardless of whether it be something material or something non-material, is acceptable as dowry. According to Ibn Al-Qayyim, this is the strongest opinion. In fact, it seems to be the only opinion which takes into consideration all of the different hadith related to the subject. For example, Umm Sulaim accepted Abu Talha’s embracing of Islam as her mahr. On another occasion, the Prophet (peace and blessings be upon him) accepted as dowry what a person knew of the Qur’an saying: “Go, for I have put her under your charge with what you have of the Qur’an. ” [Bukhari & Muslim]

In other words, his mahr was to teach the woman what he knew of the Qur’an.

via – islamswomen.com
– women in islam fb

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