Alhassanain(p) Network for Heritage and Islamic Thought

Matrimonial Guardianship

Wilayah in marriage implies the legal authority granted to a competent guardian to be exercised over one under a legal disability for his or her advantage. This discussion comprises the following issues:

Wilayah over a Mature and Sane Girl

The Shafi'i, the Maliki and the Hanbali schools are of the opinion that the wali (guardian) has the sole authority with respect to the marriage of his sane and major female ward if she is a maiden. But if she is a thayyib (that is, a girl who has had sexual intercourse), his authority is contingent on her consent. Neither he can exercise his authority without her consent, nor she can contract marriage without his permission. It is wajib that the wali take the responsibility of concluding the contract, which would not conclude if the woman recites it, though it is essential that she consent.

The Hanafis regard a sane, grown-up female as competent to choose her husband and to contract marriage, irrespective of her being a maiden or a thayyib. No one has any authority over her, nor any right to object, provided she chooses one her equal and does not stipulate less than a proper dower (mahr al-mithl) for the marriage. If she marries someone who is not her equal, the wali has the right to object and demand the annulment of the contract by the qadi, and if she marries her equal but for less than the proper dower, the wali has the right to demand annulment if the husband does not agree to a proper dower. (Abu Zuhrah, al-'Ahwal al-shakhsiyyah)

Most of the Imamiyyah scholars are of the view that a sane girl of full age, on maturing, is fully competent to decide her contractual as well as non-contractual affairs and this includes marriage, regardless of her being a maiden or thayyib. Therefore, it is valid for her to contract for herself or on behalf of others, directly or by appointing a deputy, by making an offer or giving her acceptance, and irrespective of her having or not having a father, a grandfather, or other relatives. It is of no consequence whether the father agrees or not. The social status of the girl, higher or lower, and whether she marries a respectable or an abject person, is of no consequence. No one has a right of objection in this regard. Thus, she is in all respects on a par with a male, without any difference whatsoever. The scholars support this argument by quoting the following verse of the Qur'an:

فَلَا تَعْضُلُوهُنَّ أَنْ يَنْكِحْنَ أَزْوَاجَهُنَّ

... Then do not prevent them from marrying their husbands... (2:232)

The following tradition of the Prophet(S) narrated by Ibn al-'Abbas also supports their view:

الأيم أحق بنفسها من وليها

An aym has more authority over him/herself than his/her guardian.

'Aym' is one who is without a mate, man or woman; a maiden or thayyib.

The scholars have also put forth a rational argument and observed that reason dictates that every human being has total liberty regarding his own affairs and no other person, regardless of his being a near or distant relative, has any authority over him. Ibn al-Qayyim has well observed when he says: "How can it be legitimate for a father to marry his daughter without her consent to anyone of his choice, while she disapproves such a marriage and regards him as the most detestable person in the world, and yet he should forcefully marry her and hand her over as a captive to him!..."

Wilayah in Cases of Minority, Insanity and Idiocy

The legal schools concur that the guardian is authorized to contract marriage on behalf of his minor or insane ward (male or female). But the Shafi’i and the Hanbali schools have limited this authority to the case of a minor maiden, and as regards a ward who is minor thayyib, they do not recognize any such authority for the guardian. (al-Mughni, vol. 6, Chapter on Marriage)

The Imamiyyah and the Shafi’i schools consider only the father and the paternal grandfather as competent to contract marriage on behalf of a minor ward. The Malikis and the Hanbalis further limit it to the father. The Hanafi School extends it to other relatives, even if it be a brother or an uncle.

The Hanafi, the Imamiyyah, and the Shafi’i schools regard a contract of marriage with an idiot as invalid without the consent of his guardian. The Maliki and the Hanbali schools consider it valid, and the consent of the guardian is not required. (al-Tadhkirah, vol. 2; al-Mughni, vol. 2, chapter on hijr)

The Order of Priority in Guardianship

The Hanafis give priority to the son as regards wilayah over his mother, even if he be an illegitimate one. After the son, his son is given the right to wilayah and then follow: the father, the paternal grandfather, the full brother, the half-brother (paternal), the full brother's son, the half-brother's son, the paternal uncle, the paternal uncle's son, and so on.

From this it is clear that the executor of the ward's father's will does not have matrimonial guardianship even if he has been explicitly given this authority.

The Malikis give priority to the father and after him the wilayah goes to the executor of his will. Then comes the turn of the son, even if he be an illegitimate one. Thereafter come the brother, the brother's son, the paternal grandfather, the paternal uncle... and so on. On this order being exhausted the wilayah will finally lie with the hakim.

The Shafi'i scholars give the father priority in exercising wilayah. After him, the paternal grandfather, the full brother, the half-brother (paternal), the brother's son, the paternal uncle, the paternal uncle's son, and so on, will exercise wilayah in the descending order till it finally reaches the hakim.

The Hanbalis regard the father, and after him the executor of his will, as those competent to exercise wilayah. After these two, the order follows the pattern of inheritance till it finally reaches the hakim.

According to the Imamiyyah, only the father and the paternal grandfather-and on some occasion, the hakim -are those authorized to exercise wilayah with respect to marriage. Both the father and the grandfather are independent in the exercise of their wilayah over a minor (girl or boy) or over an adult whose lunacy or idiocy precedes his adulthood. That is, when he/she has been a lunatic or an idiot when a minor and this state has continued into adulthood. But if lunacy or idiocy has resulted after maturity, the father and the grandfather have no authority for contracting marriage on behalf of such an adult. In this case the hakim will exercise his wilayah despite the presence of the father and the grandfather.

When the father chooses one mate and the grandfather another, the latter's choice shall prevail.

The marriage contracted by the wali -be it the father, the grandfather or the hakim-comes into effect if it is not against the interests of the ward. If it is, the ward has the option of dissolving the marriage on attaining maturity.

The Hanafis have observed; When the father or the grandfather of a minor girl marries her to a person who is not her equal or for less than mahr al-mithl, the marriage will be valid unless it is evident that there has been a misuse of authority. But if such a marriage is concluded on behalf of a minor girl by her wali who is neither her father nor her grandfather, the marriage will be considered void ab initio.

The Hanbali and the Maliki schools have said: The father may give his daughter in marriage for less than mahr al-mithl. The Shafi’i school says that he may not, and if he does so, the daughter has the right to claim mahr al-mithl.

The Imamiyyah have said; If the wali gives his minor female ward in marriage for less than mahr al-mithl or contracts marriage on behalf of his minor male ward for more than such mahr, the contract and the mahr will both be valid on there being a good reason for doing so. In the absence of such a reason, only the contract will be valid and the validity of the mahr will depend upon the ward's agreeing to it after maturity. If the ward does not agree the mahr will be reduced to the mahr al-mithl.

There is consensus among the schools that a just ruler (hakim) can contract marriage on behalf of a lunatic, male or female, if he/she has no wait from among their relatives. This consensus is based on the following tradition:

السلطان ولي من لا ولي له

The ruler is the wali of him who has no wali.

The Imamiyyah and the Shafi’i schools do not consider the hakim competent to exercise wilayah over a minor girl. The Hanafi School gives this authority to the hakim, but does not consider the contract so concluded as binding. Therefore, the girl can set it aside on maturity. Thus the position of the Hanafis is in fact similar to that of the Imamiyyah and the Shafi’i schools because the hakim becomes redundant in this matter. According to the Maliki school, the hakim is competent to contract marriage on behalf of a minor or a lunatic (male or female) with their equals on their not having any relative to act as wali. The hakim is also given competence to conclude marriage on behalf of a sane grown-up girl, with her consent.

The schools concur that it is necessary for a wali: that he be an adult Muslim male. As to the condition of 'adalah (justice), it is required in the hakim who is acting as wali, not for a relative acting as such, except by the Hanbali school which considers 'adalah as necessary for every wali regardless of his being a relative or a hakim.

Al-Kafa'ah (Equality)

The meaning of "al-Kafa'ah'', according to those who consider it as consequential in marriage, is that the man be an 'equal' of the woman in certain things. Moreover, they require kafa'ah of men only, because it is not something dis-approvable for a man to marry a woman lower in status as against a woman doing the same.

The Hanafi, the Shafi’i and the Hanbali schools concur in requiring kafa'ah in religion (Islam), freedom1 (i.e. in his not being a slave), profession and lineage. These schools differ regarding kafa'ah in prosperity and wealth. The Hanafi and the Hanbali schools recognize it, while the Shafi’i school does not.

The Imamiyyah and the Maliki schools do not accept the notion of kafa'ah except in religion, in accordance with the following tradition:

إذا جاءكم من ترضون دينه وخلقه فزوجوه إلا تفعلوه تكن فتنة في الأرض وفساد كبير

When someone, whose faith and conduct is acceptable to you, comes to you with a proposal, then marry him. If you don't, it will result in corruption upon the earth and great discord.

In any case, the condition of kafaah in marriage does not harmonize with the following verse of the Qur'an:

إِنَّ أَكْرَمَكُمْ عِنْدَ اللَّهِ أَتْقَاكُمْ

...Surely the most honorable amongst you in God 's sight is the most pious amongst you... (49:13)

The condition of kafa’ah contradicts a basic principle of Islam which says:

لا فضل لعربي على عجمي إلا بالتقوى

There is no superiority for an Arab over a non-Arab except on the basis of taqwa(piety).

Also, it is opposed to the practice (sunnah) of the Prophet (S), who ordered Fatimah bint Qays to marry Zayd ibn Usamah and ordered Banu Bayadah to marry Abu Hind, who was a cupper. That is why we see a group of eminent scholars, such as Sufyan al-Thawri, al-Hasan al-Basri, 'al-Karkhi among the Hanafis and Abu Bakr al-Jassas and the followers of these two among the scholars of Iraq' (Ibn 'Abidin, vol. 2, chapter on marriage) disregarding kafa'ah as a condition in marriage.

Notes

1. By including freedom' as one of the conditions of al-kafa'ah, the Hanafi school contradicts one of its own fundamental principles. This school allows the death penalty of a freeman for murdering a slave and that of a slave for murdering a freeman, whereas the other schools, including the Imamiyyah, have said: A freeman may not be killed for killing a slave, but a slave will be killed for killing a freeman. Apart from this, the Hanafis do not consider it necessary that a guardian, in a contract of marriage, be a freeman, and this is contrary to the opinion of some other schools.

Al-'Uyub (Defects)

Is it possible for one of the spouses to dissolve the marriage on finding a certain defect in the other? The schools have differed regarding the defects which justify the dissolution of the marriage and also regarding the rules that apply in these circumstances.

Al-'Anan (Impotence)

Al-'anan is a disease which renders a man incapable of sexual intercourse. All the five schools give the wife the right to dissolve the marriage in such a situation. But in a situation where the husband's inability is limited to his wife and he is capable of intercourse with any other, the schools have different views regarding the wife's right of dissolving the marriage.

The Imamiyyah have said: The wife's right to dissolve the marriage is not ascertained unless the husband is incapable of having intercourse with any woman whatsoever. Therefore, on his inability being limited to his wife and not others, the right of dissolving the marriage does not accrue,1 because the source of this right is a rule which gives the power of dissolving marriage to the wife of an impotent man; one who is capable of having intercourse with other women is not considered impotent in the true sense of the word. This is so because impotence is a bodily defect which renders a man incapable of intercourse with any woman, exactly like a blind man who cannot see anything.

In a case where a person is incapable of intercourse, with his wife and not others, then the reason is necessarily an external cause apart from an innate physical defect. The reason could be shyness or fear or a quality of the wife which makes her detestable, or something else. It has also been observed that there are such criminals whose dislike of legitimate (sexual) relations has reached such a degree that they are unable to perform it. On the contrary, their inclination towards haram is such that it gives them the required strength and the pleasure of performing it.

According to the Shafi’i, the Hanbali and the Hanafi schools, a person's inability to copulate with his wife gives her the right to dissolve the marriage despite his being capable of it with other women, because in such a case he will be considered impotent with respect to her. Besides, they point out, of what benefit is to the wife if he is capable of having intercourse with other women!

However, there is consensus among the schools that when a woman pleads the impotence of her husband and he denies the charge, the burden of proof will rest on her to prove that he is impotent. On no proof being offered2 it will be seen whether she was a maiden prior to marriage or not. If she had been one, she will be referred to female specialists to determine her present condition, and their opinion will be acted upon. In a case where the wife is not a maiden, the husband will be made to take an oath because it is he who denies the charge made by the wife claiming the presence of a defect sufficient for dissolving the marriage. If he takes the oath, the wife's claim will be dismissed. But on his abstaining from taking the oath, the wife will take the oath and then the qadi will give him a lunar years’ time.

When this period also does not yield any benefit for the wife, the qadi will grant her the option of remaining with him or of dissolving the marriage. If she elects to remain with him, the choice is hers and if she desires dissolution, she will herself annul the marriage or the hakim on her request. According to the Imamiyyah, the Shafi'i and the Hanbali schools, she does not require a divorce for the separation. The Malikis have said: She will divorce herself by the order of the qadi. This observation of the Malikis does in fact mean annulment. The Hanafi school is of the opinion that the qadi will order the husband to pronounce the divorce and on his refusal the qadi will pronounce the divorce.

The Hanafis, in such a case, regard the payment of the full mahr as necessary: the Imamiyyah consider the payment of half the mahr as sufficient. The Maliki, the Shafi’i and the Hanbali schools are of the opinion that she will not be entitled to receive any mahr.

If the husband's impotence is subsequent to the consummation (al-'aqd wa al-dukhul) of marriage, the wife will not have the choice of dissolving the marriage. However, if impotence occurs after the contract but before the consummation of marriage, she will have the choice of annulment in the same manner as when impotence precedes the contract.3

Al-Jabb and al-Khisa'

Al-jabb means; the state of mutilation of the male organ and by al-khisa' is meant castration, either by the removal or by the crushing of both testicles. Both, al-jabb and al-khisa, if present before the consummation of marriage, give the wife the immediate right to annul the contract. But if these two defects occur after the consummation of marriage, the right to annul the marriage will not result.

The Hanafis have observed that if the castrated person has the capacity of erection, the right to annul the marriage does not arise, even though ejaculation be absent. The other schools regard ejaculation as a necessary condition regardless of erection, because the inability to ejaculate is a defect similar to impotence.

Al-Shahid al-Thani, in the chapter on marriage of his book al-Masalik, volume 1, has narrated that a castrated person can penetrate and have orgasm, and his condition during the act is more intense than a normal male, although he does not ejaculate. This inability is sufficient for rescinding the contract, because the traditions prove the right of the wife of a castrated person to opt for separation.

The Hanafi have said: When the contract is rescinded as a result of any of these two defects, the wife shall be entitled to full mahr. The other schools have observed that. if the contract is annulled as a consequence of al-jabb, no mahr need be paid because marriage has not been consummated. But if al-khisa be the cause for rescinding the contract, she will receive mahr only when consummation has occurred.

The Hanafi School does not recognize any ground on which the husband may annul the contract, even though there may be tens of defects in the wife. On the contrary, the wife has the right of annulling the marriage on the basis of any of the three above-mentioned defects, i.e. al-'anan, al-jabb and al-khisa. Therefore, the Hanafis have nothing to say about the forthcoming defects.

Insanity

The Maliki, the Shafi’i and the Hanbali schools concur that the insanity of one spouse gives the other the right to annul the marriage. But these schools differ regarding the details. The Shafi’i and the Hanbali schools have granted the right of annulment irrespective of whether madness results before or after marriage, and even after consummation. There is no period of waiting before annulment, as required in the case of impotence.

According to the Malikis, if the insanity occurs before marriage, the right to annul the contract results for the sane spouse, on the condition that he or she suffers harm in living with the other. But if the insanity results after marriage, only the wife has the right to annul the marriage after a probationary period of a year granted by the judge. The husband cannot annul the marriage if his wife loses sanity after marriage.

According to the Imamiyyah, the husband will not annul the marriage where the wife has become insane after marriage, because he has the option of divorce. The wife, on the contrary, can annul the marriage on the husband's insanity, regardless of its preceding the marriage or occurring afterwards, and even after consummation.

The Imamiyyah, the Hanbali, the Shafii and the Maliki schools concur that the wife is entitled to receive full mahr if the marriage has been consummated, and nothing if not.

Leprosy and Leukoderma

According to the Imamiyyah, leprosy and leukoderma are among defects that give the husband, not the wife, the right to annul the marriage on condition that such disease be antecedent to the marriage without the husband's knowledge. The right to annul the marriage does not exist for the wife if her husband suffers from any of these two diseases.

The Shafi'i, the Maliki and the Hanbali schools regard these two diseases among the causes that give both the man and the woman an equal right to annul marriage. On one of the spouses suffering from any of these two diseases, the other acquires the right to annul the contract. According to the Shafi’i and the Hanbali schools, the rule that applies in the case of insanity applies here as well.

The Malikis are of the opinion that the wife has the right of annulment equally whether the husband's leprosy antedates the marriage or follows it. As regard the husband's right. he can do so on the wife's being leprous before marriage or at the time of marriage. Regarding leukoderma, both the spouses have the choice of annulment if the disease precedes marriage, and if it occurs after marriage. Only the wife can exercise her choice and not the husband. The milder forms of leukoderma, on their appearance after marriage, do not give rise to any right. The judge gives a probationary period of one lunar year for those suffering from these two diseases for there is a possibility of cure.

Al-Ratq, al-Qarn, al-'Afal & al-'Ijda

...These four defects,4 which occur only among women give the husband according to the Malikis and the Hanbalis the right to annul the marriage contract. According to the Shafi'is, only in case of either al-ratq or al-qarn the husband has such a right; not when the wife suffers from al-'ifda or al-'afal. According to the Imamiyyah, such a legal effect follows only in the case of al-qarn or al-'ifda', not in the case of al-rarq or al-'afal. They also state that the husband, if he wishes, can annul the marriage contract when he finds blindness or visible lameness in the wife after the conclusion of the contract if he had no knowledge of it before. But either of the defects when found in the husband does not give such a right to the wife.

In our opinion, any disease, regardless of its being peculiar to one of the sexes or its being common to both of them, that is capable of being diagnosed and cured without leaving behind any deformity or defect, does not give rise to any legal right and its occurrence, like its non-occurrence, is legally without any effect. The reason behind this opinion is that, when a disease becomes curable, it becomes similar to any other ordinary disease that may affect any person. The time-honored significance attached by the legists to the above-mentioned defects is because they could not be treated surgically during the past.

Immediacy (al-Fawriyyah)

According to the Imamiyyah School, the choice of annulling the marriage exists so long as it is exercised immediately. Therefore, if the man or the woman, on knowing the defect, does not initiate the proceedings for annulling the marriage, the contract will become binding. The same rule applies for annulling the marriage in a case of deception

The author of al-Jawahir has said that ignorance regarding the right to annul the marriage, and even immediacy, is a good excuse, considering that this right has been given without imposing any conditions. He has also observed that the annulment of marriage, in all its forms does not depend on the judge. He has only the power to grant a probationary period in the case of impotence.

Notes

1. Al-Shahid al-Thani, in al-Masalik, quotes al-Shaykh al-Mufid: The criterion regarding the annulment of marriage by a woman is that her husband be incapable of intercourse with her irrespective of his ability regarding other women. The general notion supports this view.

2. A case of similar nature was brought before me and I referred the respondent tor medical check-up. The reply given was: Medical science has not yet devised any method for diagnosing impotence and the inability to have sexual intercourse is the only method of proving it.

3. After this, in the original Arabic text, the author in a note discusses the opinion of the Imami author of al-Jawahir relating to a case of allegation of impotence against the husband. This note, which extends over a page of the book, has been deleted in this translation. (Trans.)

4. Al-ratq means the presence of obstruction in the vaginal opening making intercourse difficult. al-qarn (lit. horn) means the presence of a horn-like protrusion inside the vaginal passage: Al-'afal means a fleshy obstruction in it. Al-'ifda · means the condition of merging of anal and vaginal passages. (Trans.)

The Option to Include Conditions (Khayar al-Shari)

The difference between shart al-khayar and khayar al-shari is that in the first the option to annul the marriage be included in the contract. For example, when the bride making the offer says, "I marry myself to you on the condition that I shall have the choice of annulling the marriage within three days," and the groom accepts with a qabiltu, or when the bride says, "I marry myself to you." and the groom, while accepting. says, "I accept on the condition that I shall have the choice to annul the marriage within such and such a time;" we see that in both the cases the option to annul the marriage is mentioned in the contract itself, and this, as has been mentioned earlier, results in the contract becoming null and void, according to all the five schools.

But in khayar al-shari(the option to annul the marriage is not mentioned as a condition per se in the contract. That which is mentioned as a condition in this case, is a particular quality-such as the bride's virginity or the groom's possessing a university degree-in a manner that if the said quality is not found to exist the other shall have the right to annul the contract. The schools have a difference of opinion in this regard.

The Hanafi’s have said: If a spouse mentions a negative condition in the contract, such as the absence of blindness or a disease, or a positive condition, such as presence of beauty, virginity, etc., and then the opposite of it comes to light, the contract will be valid. Regarding the condition, it will not apply except when the wife lays down a condition related to al-kafa'ah; such as a condition regarding lineage, profession or wealth. Here she has the right to annul the contract. But as regards the husband, any similar condition laid down by him will not be considered applicable because al-kafa'ah, as mentioned earlier, is a condition with reference to the husband, not the wife.

The Maliki, the Shafi’i, the Imamiyyah and the Hanbali schools have said: The condition is valid and if not satisfied results in the spouse laying the condition acquiring the option of either upholding or annulling the contract. The following tradition is cited in support of this view:

المسلمون عند شروطهمز

The Muslims are bound to (fulfil) their conditions.

Furthermore, they state, therefore said conditions are not against the spirit of the contract and do not contradict the Qur'an or the Prophet's Sunnah; neither they amount to changing halal into haram nor vice versa.

Deceit (Tadlis)

The Imamiyyah have discussed under this head the deception of the groom by the bride by either hiding a defect or by claiming a merit which is absent. In the first case, i.e., her hiding a defect and not mentioning it. The right to annul the contract will not accrue if he has not mentioned the absence of such a condition specifically in some way or another. A tradition is narrated from al-'Imam al-Sadiq ('a) which says:

في الرجل يتزوج إلى قوم فإذا امرأته عوراء ولم يبينوا له قال: لا ترد

About a person who marries i n a family and finds his wife to be one-eyed while they have not revealed it to him. The Imam said: The contract will not be withdrawn.

This is the opinion of all the schools.

As regards the second form of deceit i.e., where she claims a merit which in fact she does not possess-if the claimed merit has been mentioned as a condition in the contract, as said earlier, the condition will hold good according to all except the Hanafis. But if the claimed merit has not been mentioned in the contract as a condition-i.e., it has either been mentioned simply as a quality in the contract, or has been mentioned before the contract and the contract has been recited on that basis-then two different situations arise:

1. The merit has been mentioned in the contract as a quality, such as when the bride's attorney says, "I marry this maiden to you." or, "I marry this girl who is free from any defect to you." The Imamiyyah state that when it is known that she does not possess the mentioned merit, the husband has the choice to annul the contract.

2. The merit has neither been mentioned as a condition nor as a quality in the contract, but has been mentioned during the course of the marriage negotiations, such as when she herself or her attorney says that she is a virgin and has no defect, and then the contract is recited on the basis of this statement, so that it is understood that the contract has been recited on the girl's possessing this particular quality. In the legal sources that I have referred to, I have not come across anyone who has discussed this particular aspect except the Imamiyyah, among whom there is a difference of opinion as to whether in such a case the husband has an option of annulment. Some of them, including al-Sayyid Abu al-Hasan al-Ishfahani, in al-Wasilah, uphold the husband's option, because they point out, the negotiations of the contracting parties regarding a particular quality followed by the conclusion of the contract on their basis, makes this quality similar to an implicit condition. Others, who oppose this view, have said that it will have no effect unless the quality is mentioned in the contract or its presence in the contract established in some way or another. Al-Shahid al-Thani, in al-Masalik, holds the same opinion, on the basis that a contract is binding unless there is categorical proof of its invalidity and such a proof is not present in this case.

To summarize, if the quality has been recognized in the contract in one of the three ways (i.e., as a condition, as a quality mentioned in the contract. or when mentioned during pre-contract negotiations), the husband has the option to annul or retain the contract. If he retains it, he will not have any right of reducing her mahr, whatever the defect except when the condition was virginity. According to the Imamiyyah, in this case, the husband may reduce the mahr by an amount equal to the difference between a maiden's mahr and that of a woman who is not a maiden.

If he chooses to annul the contract, she will not be entitled to receive any mahr if marriage has not been consummated according to the Imamiyyah and those of the four schools who permit the option of annulment in case of deceit. On the marriage being annulled after consummation, she will receive the mahr al-mithl, and, according to the Shafi’i school. The husband paying such mahr will not claim it from the person responsible for the deceit.

The Imamiyyah observe: It depends upon who is responsible for the fraud. If it is the bride, she will not be entitled to any mahr, even after consummation. If someone else, then she will receive her full mahr, and the husband will claim this amount from the deceiver in accordance with the rule, 'the deceived will level his claim against the deceiver.'

Supplementary Issue

1. If after marriage, one of the spouses finds a defect in the other and claims that the contract was concluded after freedom from such defect was understood through one of the three above-mentioned modes, the other refuting, the burden of proof will lie with the claimant. If the claimant furnishes the proof, the judge will grant him/her the right to dissolve the marriage. If the claimant is unable to prove his/her claim, the respondent will take an oath and the case will be dismissed by the judge.

2. When a person marries a woman after it has been understood, through one of the three mentioned ways, that she is a virgin, and then finds her to be otherwise, he will not be entitled to dissolve the marriage, unless it is proved that her loss of virginity preceded the contract. This can be proved, either by her confession, or through evidence, or any such circumstantial evidence a may lead to certain knowledge-such as when after the marriage, intercourse takes place within a period during which the chances of her losing her virginity (due to other causes) do not exist.

If the issue stays unsettled and it cannot be proved in any of the said ways, whether she lost her virginity before the marriage or after it the right to dissolve the marriage will not accrue to the husband, because the presumption is that her loss of virginity does not precede the marriage, and also because the possibility of her having lost it due to an unknown reason-such as riding or jumping- also exists (al-Masalik of al-Shahid al-Thani. vol. 2, Chapter on Marriage in Imamiyyah Fiqh).

3. Al-Sayyid Abu al-Hasan al-Isfahani. in al-Wasilah. the chapter on marriage. writes: If a man marries a girl without virginity being mentioned in the negotiations previous to the marriage without the contract being based on it. and without it being included as a condition or a quality in the contract, but only believing her to be so because of her not having married anyone before him. He will not have the right to dissolve the marriage if it is later proved that she was not a virgin. But he has the right to partly reduce her mahr. This reduction will be proportional to the difference between the mahr of her like if a virgin and if not a virgin. Therefore, if her mahr be fixed at 100 and the mahr of a virgin like her is 80 and a non-maiden like her is 60, he will reduce from 100 a fourth part, i.e. 25, with 75 remaining as mahr.

Accordingly, al-Sayyid al-'Isfahani envisages four possible conditions regarding virginity:

i. Where virginity is mentioned m the contract as a condition:

ii. Where it is mentioned in the contract as a quality:

iii. Where it is mentioned during settlement of marriage and the contract is based upon it;

iv. Where he marries her believing her to be a virgin and does not mention it, neither before the contract nor in the contract.

In the first three conditions, the husband has the choice to annul the marriage; in the fourth, he has no such choice, but can reduce a part of the mahr in the above-mentioned manner.