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CONDITIONAL MAHR (DOWRY) AND ISLAMIC POLYGYNY

Legality or Otherwise of an Islāmic Marriage Conducted with a Promise of Perpetual Monogamy as Mahr (Dowry): Setting the Ball Rolling for an Academic Discussion



By
Ibn Abdillaah As-sudaisiy Al-Iloori

There are several research topics begging for attention in our society. Instead of stealing projects completed by other people in othe Ir schools and pretend to be the real owner, we should begin to champion the cause of originality in scholarship for community development. Some people even steal researches within the same school and even the same department. As long as it is an old work, it is often difficult for the school to detect a research stolen from within. Many schools in our society still lack adequate tools to detect intellectual fraud that are committed even within their own nuclear system.

By what has been treding online since yesterday, the research topic that crossed my mind this morning was: "Legality or Otherwise of an Islām Marriage Conducted with a Promise of Perpetual Monogamy as Mahr (Dowry). 

Yesterday, I was informed that a marriage was conducted at Offa where the wife stipulated that the kind of mahr (dowry) she wanted from her husband was a pledge not to marry another wife as long as she lives. This issue reminds me of the first assignment Justice SM AbdulBaaki (may Allāh forgive and have mercy on him) gave us at the College of Arabic and Islamic Legal Studies in 2003. 

Someone sought my view on it and I opined that the matter falls under Khiyār ush Shart (option of stipulation) in a marriage contract. When we were given that assignment then, I went to my brother and teacher, Ustadh Isma'eel Ibn Raaji حفظه الله and he gave me some pages he photocopied from a book, the title of which I can't recall for now. He patiently took me through those pages with his detailed explanation of what the scholars said about a stipulation of that nature by a would be wife towards a would be husband. 

In that book, I can remember vividly reading that one of the schools of thought stand on the principle that says:

كل شرط ليس في كتاب الله فهو باطل

Any stipulation that is not recognized in the Book of Allāh (and Sunnah) is a nullity.

It was on the basis of this principle that I answered the question then and it was very interesting. It was an exercise that increased our interest to not only study law as a career, but to make sure that it was combined with the shari'ah. It is pertinent to point out that this kind of stipulation is a distasteful one going by the verdict of scholars. It is even a more dangerous case as it is tied to an essential element of a marriage contract (mahr). While I stand to be corrected and educated more on this mas'alah, I observed that this kind of stipulation is a nullity and by extension, the mahr is unlawful in the eye of the law. 

Al-Hāfizh Ibn Hajar رحمه الله said Imam Al Qurtubi رحمه الله said any stipulation that is not in consonance with the shari'ah is a nullity. This is also in line with the words of Ibn Taymiyyah رحمه الله.

That kind of promise is not valid even if the husband accepts to make it. It would mean that he is only accepting it ignorantly. Although as a general rule, a Muslim is bound by his stipulations, but if a man makes this kind of pledge, it is invalid and he is not bound to fulfil it. Anyone who pledges to carry out a promise that is against any aspect of the Sunnah (even if the Sunnah is not mandatory) should not fulfill it. A Sunnah is to be promoted and not to be discouraged. Any act to discourage any aspect of the Sunnah is sinful. This is evident in a Hadith of the Prophet صلى الله عليه وسلم where he said:

مَنْ نَذَرَ أَنْ يُطِيعَ اللَّهَ فَلْيُطِعْهُ، وَمَنْ نَذَرَ أَنْ يَعْصِيَ اللَّهَ فَلاَ يَعْصِهِ ‏"‏

If anyone vows to obey Allah, let him obey Him, but if anyone vows to disobey Him, let him not disobey Him (Abu Dawud).

The implication of this is that it is not permissible to vow or pledge to shy away from a Sunnah. It is sinful to vow to shy away from a Sunnah because the Prophet صلى الله عليه وسلم said anyone who shy away from my Sunnah is not part of me. It is just like a promise not to ever perform the night prayers. Even though night prayer (tahajjud) is optional, a Muslim cannot promise or vow to anyone not to ever observe it because it is a Sunnah. If someone has the power to perform it, it laudable. It is just like the case of Islamic polygyny. If a husband is not willing to do it to emulate the Prophet صلى الله عليه وسلم, he might chose not to do it. There is no sin here. But if he has to go to the extent of vowing or pledging his wife not to do it, there is serious issue. And Allaah knows best.

A husband should not promise his wife that he will not practise polygyny because it is a Sunnah (even though not mandatory). Anything can happen in the future that may warrant him to practise it. Allāh has His reason for making that law and His wisdom over it cannot be questioned. Would he then say: I cannot practise it because I had already promised my wife? This is where there is problem.

However, going by the Hadith that says a Muslim is bound by his stipulations, a number of scholars have ruled that this kind of stipulation is lawful because the woman is not forcing the husband to accept it. If he accepts it, it becomes mandatory upon him. If he breaches it at a later time, the wife would have the option to either waive her right or seek to repudiate the marriage based on that condition. The scholars said one of the most important conditions that is mostly deserve to be fulfilled is that which makes cohabitation lawful between spouse. This is based on a textual proof. This is the position of the likes of Sheikh Ibn Baaz رحمه الله , Sheikh Al 'Uthaymeen رحمه الل and Sheikh Fawzaan حفظه الله.

Secondly, bringing up such a stipulation reflects a kind of hatred or registration of displeasure for a sign or law of Allaah. Polygyny is from what Allaah has legalised, and hating or standing against it by any stretch of imagination may amount to a form of kufr. Allāh's aid is sought. Sheikh Fawzān حفظه الله in his explanation of Nawaaqidul Islaam said it is not even permissible to hate the miswaak, talk more of Sunnah that are higher in rank. Allaah says in Suratu Muhammad:

(ذَٰلِكَ بِأَنَّهُمْ كَرِهُوا مَا أَنْزَلَ اللَّهُ فَأَحْبَطَ أَعْمَالَهُمْ)

That is because they disliked what Allah revealed, so He rendered worthless their deeds [Surat Muhammad, Q47: 9]

This nature of promise can be described as a desperate attempt by a wife to tie her man to herself forever. This is against the position of the shar'iah. It can be said to be a resultant effect of western orientation and civilization in our communities. If Allah has decreed that a man will practise polygyny, there is nothing a woman can do to prevent it. If the reported case is true, those in charge of religious affairs in that community should rise against it and correct the anomaly. It is an expression of hatred for polygyny or jealously taken too far. 

In Islām, there is nothing preventing a man from practising polygyny if he is qualified and all conditions attached are satisfactory met. Many men are not qualified, they just jump at it. These kind of men are the ones making the practice of polygyny displeasing to our women. But proper care has to be taken. However, no matter how beautiful a man can practise polygyny, it will still not be pleasing to some women. If some women can have their ways, they will ban polygyny. They hate it with passion. Where as, it is possible not to like something, and Allāh might put blessing in it. Allāh says:

فَعَسَىٰ أَنْ تَكْرَهُوا شَيْئًا وَيَجْعَلَ اللَّهُ فِيهِ خَيْرًا كَثِيرًا

Perhaps you dislike a thing and Allah makes therein much good.[Surat An-Nisa, Q4:19]

If a man is capable, he can marry more than one wife. If he knows he is not capable, he should stick to one as Allāh had ordained in Q4:3. If a man chose to practise polygyny, he must fear Allāh in his dealings and be just to the best of his ability that Allāh is aware of. As mentioned above, polygyny is a Sunnah, and it is not a mandatory Sunnah. It is for those who want it and have the capacity to practise it. Therefore, in the same manner that a man cannot be forced to practise it, he cannot also be coerced or unduly influenced to reject it. Islām is a religion of moderation. The desire to practice polygyny must be from the fact that the man is willing and he has the capacity to fulfil the conditions attached. 

Thirdly, an important issue that is begging for a clarification from scholars is: if the mahr is faulty by the fact that it is not acceptable to the shariah, what would be the legal implication of the marriage itself? Is the marriage valid or not? If the marriage is not valid, can it be said that the couple would be committing zina if they cohabit after getting married with a detective mahr? Can the marriage be regularised or another nikah has to take place? Someone should make this a research topic and benefit us with solutions to these germane questions. 

According to the most acceptable position of scholars, there is no marriage without a valid mahr. Mahr may even be delayed, but it must be lawful. It can be paid with money or any other thing that is lawful in the eye of the shar'iah. This is a clear indication that marriage under the shari'ah is easy. Allāh does not intend to overburden us. But the shari'ah doesn't envisage a mahr free marriage. Mahr is still an essential ingredient of a marriage contract.

In conclusion, it must be made abundantly clear that any promise that is meant to offend Allāh or make impermissible what Allah has been made permissible is not a valid promise. So, the promise by the husband is not a valid mahr. But can it be said that there is no marriage due to the absence of a valid mahr? So, I leave this for those who are qualified to analyse and rule on it.

 And Allāh knows best.

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