The Mahr (Dowry) Goals of this Chapter To understand the concept of the mahr, its obligatory nature and its relationship to the marriage contract itself. To understand the discussion concerning the minimum and maximum amounts for the dowry. To understand when the woman is entitled to all of her dowry, half of it or none of it. Introduction The 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 my many names in the texts and the books of fiqh: Term Root Meaning An-Nihla Gift Al-Fareedha Prescribed amount or obligation Al-Hibaa Gift or present Al-Ajr Payment or compensation Al-Uqr Indemnity Al-Alaaiq Precious things, provision As-Sadaqa Sincere gift or charity At-Tawl Ability An-Nikah Marriage On of the more common names for it is Al-Sadaaq which comes from the word sidq meaning honesty or sincerity. As-Sanaani (Book: Subul As-Salaam) explains its significance: It indicates the sincerity of the husbands 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 Quran: {Wa aatoo an-nisaaa saduqaatihinna nihlatan...} {And give the women their dowries with a good heart...} An-Nisaa: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 todays 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: {...Fa ma istamtatum bihi minhunn fa aatoohunna ujoorahunna fareedha...} {...So for that pleasure which you have enjoyed from them, give them their prescribed compensation..} An-Nisaa:24 {...Wa uhilla lakum ma waraaa dhalikum an tabtaghoo bi amwaalikum...} {...All others have been made lawful for you provided you seek (them in marriage) with your property...} An-Nisaa:24 Regarding on of the Companions who was poor and wished to marry, the Prophet (sas) said to him: Iltamis wa lau khaatiman min hadeed... 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 specfication and agreement on its amount) is one of the arkaan or the shuroot of the marriage contract. In other words, is it valid to have a marriage contrct in which the dowry is not stated? Apparently, the dowryis 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 Qurran 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. {La junaha alaikum in tallaqtum an-nisaaa ma lam tamassoohunna au tafridhoo lahunna fareedha wa mattioohunna alaa al-moosii qadarohu wa alaa al-muqtiri qadaruhu mataaan bi al-maroofi haqqan alaa al-muhsineen.} {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.} Al-Baqarah: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 wth 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 dont 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 Quran with the following words: {Wa in aradtum istibdaala zaujin makaana zaujin wa aataitum ihdaahunna qintaaran falaa takhudhoo minhu shaian. A takhudhoonaha buhtaanan wa ithman mubeenan?} {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?} An-Nisaa:20 The word qintaar 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: La mahra aqallu min asharati dirham. 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 sharia which can be handed over to the wife. It must be a specified amount. There 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: {Wa man lam yastiti minkum taulan an yankiha al-muhsanaati al-muminaati fa min ma malakat aymaanukum min fatayaatikum al-muminaat...} {And whoever of you does not have the means to wed free believing women, so from the believing women that your right hands possess...} An-Nisaa: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 Shafiis, Hanbalis, Dhahiris, Ibn Wahb of the Malikis, Al-Hassan Al-Basri and others. It is supported by the verse: {...Wa uhilla lakum ma waraaa dhalikum an tabtaghoo bi amwaalikum...} {...All others have been made lawful for you provided you seek (them in marriage) with your property...} An-Nisaa:24 The Fourth Opinion Anything which can be called shaian (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 (sas) said: Iltamis shaian. Qaala ma ajidu shaian. Qaala: Iltamis wa lau khaatiman min hadeed... Search for something. He said: I have nothing. He (sas) 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 Talhas embracing of Islam as her mahr. On another occasion, the Prophet (sas) acceepted as dowry what a person knew of the Quran saying: Idh-hab faqad mallaktukahaa bima maaka min al-quran Go, for I have put her under your charge with what you have of the Quran. Bukhari & Muslim In other words, his mahr was to teach the woman what he knew of the Quran. Source:- java-man/pages/marriage/marriage06.html
Posted on: Fri, 23 Jan 2015 13:35:40 +0000
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