Monday, February 13, 2012

Q&A: Is Mahr a condition of the marriage contract?

The following is a translation from Arabic.

Question:

In the Social System book (Arabic, page no. 121), certain conditions are stipulated for contracting of marriage which if not complied with, render the marriage null & void. While 0n page no. 122, there are conditions which if not complied with, corrupt the marriage contract, however, I have not found the Mahr (Dower) mentioned. If Mahr is neither a condition for contracting of marriage nor a condition for its authenticity, then what is the status of Mahr in the marriage contract?

Answer:
Concerning the Mahr, indeed, it is neither a condition for contracting of marriage nor a condition for its authenticity, which means that if a marriage contract complies with the contracting conditions as well as those conditions which render it authentic, then such a contract is correct even if Mahr is not mentioned. However, the Shari'ah laws are of two categories:

Laid down rules, which include cause and conditions..., and mandatory rules, which include the prohibited and the obligatory... Then there are the rules pertaining to Shara'i issues which are not derived from these two. Such rules may either be covered under the mandatory rules and thus may be obligatory (Fardh), recommended (Mandoob), permitted (Mubah), disliked (Makrooh) or prohibited (Haram); or these may be covered under the laid down rules and thus they may be either valid (sahih), invalid (Baatil), corrupt (Faasid), conditional (Shart), causative (Sabab) or prohibitive (Mani'an)... and so on.

By studying the issue of Mahr, it becomes clear that it indeed falls under the mandatory rules, thus Mahr is obligatory on the groom in favour of the bride. If it is mentioned, then it is as per what is mentioned, and if it is not mentioned, then Mahr al Mithl (prevailing) is binding.

As to why Mahr is obligatory, Bukhari has narrated on the authority of Sahl ibn Sa'ad that:

فَقَالَ رَجُلٌ مِنْ أَصْحَابِ رسول الله صلى الله عليه وسلم  زَوِّجْنِيهَا يَا رَسُولَ اللَّهِ قَالَ أَعِنْدَكَ مِنْ شَيْءٍ قَالَ مَا عِنْدِي مِنْ شَيْءٍ قَالَ وَلَا خَاتَمٌ مِنْ حَدِيدٍ قَالَ وَلَا خَاتَمٌ مِنْ حَدِيدٍ وَلَكِنْ أَشُقُّ بُرْدَتِي هَذِهِ فَأُعْطِيهَا النِّصْفَ وَآخُذُ النِّصْفَ قَالَ لَا هَلْ مَعَكَ مِنْ الْقُرْآنِ شَيْءٌ قَالَ نَعَمْ قَالَ اذْهَبْ فَقَدْ زَوَّجْتُكَهَا بِمَا مَعَكَ مِنْ الْقُرْآنِ
"A man said (to the Prophet) "Please marry her to me." The Prophet said (to him), "Give her a garment." The man said, "I cannot afford it." The Prophet said, "Give her anything, even if it were an iron ring." The man apologized again. The Prophet then asked him, "What do you know by heart of the Qur'an?" He replied, "I know such-and-such portion of the Qur'an (by heart)." The Prophet said, "Then I marry her to you for that much of the Qur'an which you know by heart."

An-Nasai has also reported similarly in Sunan al Kubra, and the narration is:

وَلَكِنْ هَذَا إِزَارِي قَالَ سَهْلٌ مَا لَهُ رِدَاءٌ فَلَهَا نِصْفُهُ فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مَا تَصْنَعُ بِإِزَارِكَ إِنْ لَبِسْتَهُ لَمْ يَكُنْ عَلَيْهَا مِنْهُ شَيْءٌ وَإِنْ لَبِسَتْهُ لَمْ يَكُنْ عَلَيْكَ مِنْهُ شَيْءٌ
Thus the Prophet (saw) demanded from the man who intended that the Prophet (saw) marry him to one of the women to pay some Mahr, even if it were a ring made of iron, and when the man was unable to pay the same since he only possessed his trousers (Izaar), he was given the choice of splitting his Izaar into two pieces and give one piece to his wife as Mahr. But the Izaar was not enough to cover the husband and the wife, asked him to teach her whatever portion of Quran he knew, so that the reward of teaching will be for the woman as her Mahr. All these are decisive evidences with regard to Mahr.

As for the Mahr being al Mithl (prevailing) if it is not mentioned, it is reported in Tirmidhi on the authority of Abdullah ibn Mas'oud in a Hadith which Saheeh Hasan:

 أَنَّهُ سُئِلَ عَنْ رَجُلٍ تَزَوَّجَ امْرَأَةً وَلَمْ يَفْرِضْ لَهَا صَدَاقًا وَلَمْ يَدْخُلْ بِهَا حَتَّى مَاتَ فَقَالَ ابْنُ مَسْعُودٍ لَهَا مِثْلُ صَدَاقِ نِسَائِهَا لَا وَكْسَ وَلَا شَطَطَ وَعَلَيْهَا الْعِدَّةُ وَلَهَا الْمِيرَاثُ فَقَامَ مَعْقِلُ بْنُ سِنَانٍ الْأَشْجَعِيُّ فَقَالَ قَضَى رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فِي بِرْوَعَ بِنْتِ وَاشِقٍ امْرَأَةٍ مِنَّا مِثْلَ الَّذِي قَضَيْتَ فَفَرِحَ بِهَا ابْنُ مَسْعُودٍ
He was asked about a man who had married a woman but had neither stipulated her Mahr nor consummated his marriage until his death. Abdullah ibn Mas'oud said She should receive the full dower (as given to women of her class), observe the waiting period ('Iddah), and have her share of inheritance. Thereupon Ma'qil ibn Sinan al-Ashja'ii said: I heard the Apostle of Allah (peace be upon him) giving the same decision regarding Birwa' daughter of Washiq (as the decision you have given). Abu Dawood has reported a similar narration in his Sunan.

Thus the Prophet (saw) decreed that if a woman has married without her Mahr being stipulated, then her Mahr would be similar to women of her class.

Thus, even if Mahr is not a contracting condition, or a condition for its validity, it is obligatory on the husband for the wife under his charge and it should be paid. If he does not pay the Mahr, he is sinful for it and the Islamic State would forcefully apportion any right that he owes to the wife. And if he is able to afford it and yet does not pay, then the Islamic State will penalise him for harassing the wife and for her to eat from her right.

In Conclusion: The Mahr is not a condition but it is obligatory for the husband towards his wife, i.e. the Mahr falls under the mandatory rules and is not part of the laid down rules (أحكام الوضع).

10 comments:

zeb said...

salam alaikum

please also mention the quantity of Mahr detail with evidences from Quran and Sunnah

Jzk

Anonymous said...

Thus the Prophet (saw) decreed that if a woman has married without her Mahr being stipulated, then her Mahr would be similar to women of her class.

Please elaborate the above line, especially "...then her Mahr would be similar to women of her class".

Foiz said...

From the 1st Hadith which you have mentioned it is clear to us that Prophet (SAW) offered the man to pay Mahr before marry, whatever he can . He (Saw) not offered him to marry the woman and to pay Mahr latter. Rather he (Saw) told him to teach her Quranic verses which was also before marry. Than is it permitted to marry based on such contract that Mahr will be paid letter.

Islamic Revival said...

"The women of her class" means the norm of women from a similar economic background as her.

Islamic Revival said...

@zeb: Please re-read the Q&A as it mentions the ahadith that indicate that the quantity for mahr has not been stipulated, it is what is agreed upon between the two parties - so it can even be the teaching of a particular portion of the Quran.

Foiz said...

Salam Brother, Pls ans to my Question.

Foiz said...

Salam Brother, My another Ques.: Could human mind understand the purpose of Mahr?

Anonymous said...

salam brother,

though it doesn't affect the argument of the article,

there seems to be some inconsistency in the translation of the hadith of Sahl ibn Sa'ad i.e. another version should be there.....would you please re-check?

al rhazes said...

Asslamu alaikum,

I've a critical problem. One of my friend was proposed by a boy to marry, and she unintentionally (not in a serious mood) just said yes. There was no presence of mahr, wali, kazi, witness or any paper agreement. can we call that a marriage?

Anonymous said...

Assalamu alaikum.
Brother, is letting the wife to hear memorized Quran it allowed now a dayz as a mohr?