Introduction to the Fiqh of Marriage : the mahr

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-'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-Sadaaq which comes from the
word sidq meaning honesty or sincerity.  As-San'aani (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:

{Wa aatoo an-nisaa'a 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 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:

{...Fa ma istamta'tum 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 waraa'a 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
Qurr'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.

{La junaha 'alaikum in tallaqtum an-nisaa'a ma lam tamassoohunna au
tafridhoo lahunna fareedha wa matti'oohunna 'alaa al-moosi'i
qadarohu wa 'alaa al-muqtiri qadaruhu mataa'an bi al-ma'roofi
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:

1.     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).

2.     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.

3.     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:

{Wa in aradtum istibdaala zaujin makaana zaujin wa aataitum
ihdaahunna qintaaran falaa ta'khudhoo minhu shai'an.  A
ta'khudhoonaha 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 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:

{Wa man lam yastiti' minkum taulan an yankiha al-muhsanaati al-
mu'minaati fa min ma malakat aymaanukum min fatayaatikum al-
mu'minaat...}
{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 Shafi'is, Hanbalis, Dhahiris, Ibn
Wahb of the Malikis, Al-Hassan Al-Basri and others.  It is supported
by the verse:

{...Wa uhilla lakum ma waraa'a 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 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 (sas)
said:

"Iltamis shai'an.  Qaala ma ajidu shai'an.  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 Talha's embracing of Islam as her mahr.  On
another occasion, the Prophet (sas) acceepted as dowry what a person
knew of the Qur'an saying:

"Idh-hab faqad mallaktukahaa bima ma'aka min al-qur'an"
"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.



Introduction to the Fiqh of Marriage  :By Jamal Zarabozo