The Mahr (Dowry)
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 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
On
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 on of the Companions who was poor and wished to marry, the Prophet (peace 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 dowries 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. 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:
"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 be upon him) said:
"Search
for something. " He said: I have nothing. He (peace 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
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.
موضوع: The Mahr (Dowry) 
الإثنين أبريل 19, 2010 12:48 am
