Stipulations Regarding Dowry & Mahr al-Mithl
Question:
I have been married for 2 years but unfortunately things are not working out… we are going through a very turbulent period where we have already decided to part ways. However, her family says that a condition which they put forward at the time of marriage was that I would pay her (my wife) a large sum of money (5 figures) should I divorce her in the future. I do not recall ever accepting such conditions. On the contrary I have always disagreed to having any conditions placed on my marriage. I cannot afford such figures now nor am I willing to accept this condition. Am I wrong? Or am I being wronged by the other party? Is this request of theirs acceptable in Shariah; a contract within the Nikah for a large sum? Please could you enlighten me with some guidance?
Answer:
If the dowry (mahr) was not stipulated in the contract of marriage, then the husband is obliged to pay what is “typically” received as marriage payment by similar brides (mahr al-mithl), if the marriage was consummated.
Imam al-Mawsili (Allah have mercy on him) states:
“If one did not fix dowry for her or one made a condition that she will not receive any dowry, she will receive what is typically received by similar brides (mahr al-mithl), if after consummation of marriage or death. She will receive a small gift (mut’a) in case of divorce before consummation.” (al-Ikhtiyar li ta’lil al-Mukhtar, 2/126)
Therefore, if you did not fix or stipulate an amount as dowry (mahr) when marrying, then if you have consummated your marriage (which I’m sure you have, for you state being married for two years), you will be required to pay an amount which is typically received as dowry by similar brides (mahr al-mithl).
Now, mahr al-mithl is that which is customarily received as dowry by brides from the wife’s father’s side, such as her sisters, paternal aunties, paternal auntie’s daughters, etc. Her mother and maternal aunties will not be taken into consideration unless they are from her father’s family. If no woman similar to her is found on her father’s side, then one will look at other non-related women.
With regards to similarity, one will consider age, beauty, virginity, place (city, country), time (era) and wealth. In other words, you will consider women from your wife’s father’s side who are similar in the abovementioned things to your wife, and then give your wife similar to what they received as dowry. (See: al-Ikhtiyar li ta’lil al-Mukhtar, 2/133-134)
As far as the large sum your in-laws are demanding from you is concerned, if you did not agree to this in the contract of marriage, then you are not obliged to pay it. You are only responsible to pay your wife the dowry, for that is her right.
Try to solve this matter with gentleness, politeness and coming to a mutual agreement. A local scholar’s or a family friend’s (whom both parties respect) involvement may be beneficial.
And Allah knows best
[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK