What a Woman may Stipulate in a
Marriage Contract-I
by Imaam Ibn Qudamah al-Maqdisi
Translated by Yahya Adel Ibrahim From al-Mughni of Ibn Qudamah Vol. 9, Page 483:
Issue #1141: Source: islaam.net He said:
"If a man marries her and
(accepted) her stipulations that he shall not remove her from her home
or city (country), then her stipulation is to be honoured/ fulfilled
(from that moment on) due to what has been reported from Rasul ul Allaah
(saws). He said: "The most deserving of conditions to be
honoured/fulfilled are those which the genitalia are deemed Halal by
them (Marriage is built upon their acceptance)."
As well if he marries her and (accepts)
her stipulation that he will not marry another woman while with her then
she is granted the power to abandon him if he marries another."
The summary of (this issue) is that stipulations relating to
Nikaah (pre-nuptiual
agreements) are of three main categories
(Translators note:
Only the first issue is translated):
First: (A condition) that which must be fulfill. It
is a condition wherein its benefit and worth are returned. Examples are
stipulations wherein he (vows) not to remove her from her residence or land, or
that he will not travel with her (to foreign lands), or that he will not take
another wife while with her. All of these are conditions that he would be bound
to fulfilling (if he agreed to them before cohabitation). If he does not honour
the stipulations she is granted the ability (and right) to annul the marriage
(at her will). This is reported as being the opinion of:
‘Umar bin al-Khattab, Sa‘d bin Abi Waqas, Mu‘awiyah, ‘Amr bin al-
‘Aas (radia Allahu ‘Anhom). It was also stated by:
Shurayh, ‘Umar bin ‘Abdul-Aziz, Jabir bin Zayd, Tawus, Al-Awza‘i and
Ishaq."
Those who deemed these conditions unacceptable were:
(none of them Sahabah): az-Zuhari, Qatadah, Hisham bin ‘Urwa, Malik [1],
al-Laith, ath-Thawri, ash-Shafi‘i (in part), ibn al-Mundhir, and the people of
logical deduction and inference.
Abu Hanifah and ash-Shafi‘ee stated:
"(If he breaks one of the
aforementioned conditions she is not entitled to leaving him.) The
original dowry (Mahr) is deemed invalid and she deserves another equal
Mahr to what she has already been given (by her husband).
They use as their proof the statement of Rasul ul Allah
(saws): "Any condition, which is not in
Allaah’s Book, is worthless (invalid). Even if there are a hundred
conditions. Allaah’s decision is more valid and Allaah’s condition is
more binding."
(Agreed upon)
(They say) such a condition is (not sanctioned) in
Allaah’s Book since the
Law does not espouse it.
He (saws) also said, "A Muslims are bound to their
conditions /stipulations. (But) a condition that makes Halaal a Haraam or a
Haraam Halaal is (not from binding conditions)."
(Bukhari, Tirmidhi and others)
This (type of condition) is turning a
Halaal into a Haraam. Taking more than
wife, traveling (are Halaal). As well these conditions do not benefit or improve
the ‘Aqd (marital pre-nuptial contract) and are not integral to it. In fact it
would be similar to stipulating that she is not to present her self (ever) to
him (in copulation)."
End words of Shafi‘ee and Abu Hanifah
For us (our understanding) we have the following (evidence):
"The most deserving of conditions
to be honoured/fulfilled are those which the genitalia are deemed Halaal
by them (Marriage is built upon their acceptance)."
Agreed Upon.
As well his statement (saws):
"Muslims are bound to their
conditions/stipulations." (Previously referenced)
As well we have named many Sahaba who validated these stipulations, and none
from their generation / peers refuted them. Therefore we establish this as being
Ijma‘ (consensual agreement by them all).
It is narrated by al-Athram with his chain of narration that a man married a
woman and (agreed to the stipulation) that she may reside in her (own) home.
Thereafter he sought to transfer her elsewhere. They turned to ‘Umar (Ra) in
disputation.
He (Ra) said "Her condition is to be
fulfilled."
The man replied, "If that is the case then she is to grant the
divorce (he means that she is to relinquish her condition or divorce
him)."
‘Umar (ra) replied, "The absolute rights are (established with
their) stipulations (His right is over-ruled by his agreement to her
stipulation)." [2]
This (as well as the other mentioned stipulations are) valid because there is
only benefit found in it (does not call to deviance) and it is not intended to
depreciate or tarnish what is established by Nikaah. Therefore fulfilling the
condition is obligatory. (These types of stipulations) are the same as if she
stipulated that he increase her Mahr (from his initial offer) or not take her
abroad.
As for Prophet (saws) statement:
"Any condition, which is not in Allaah’s Book, is worthless (invalid)."
This is regarding a condition that is not founded upon
Allaah’s Hukm and Sharee'ah. These (conditions) are substantiated in Sharee'ah. We have shown
precedence for it. Those who seek to oppose this (valid opinion) must bring
forth (explicit) evidence that renders the aforementioned evidence nullified.
As for their (Shafi‘i and Abu
Haneefah) statement: that these stipulations
make a Halaal Haraam then we say that they do not make the Halaal into Haraam.
It merely ensures the right of a woman to decide for herself if she wishes to
remain in that situation or not considering that he has not fulfilled his
pre-marital agreement.[3]
As for their statement: That there is no benefit or improvement in these
stipulations.
We say that we object to this understanding. These (stipulations) are very
beneficial for the woman. The benefit of the stipulator is beneficial as well
for the one being stipulated to (since the man knows what is acceptable and what
is not).
Fasl (Side point):
If she was to stipulate that he was to divorce his other wife then that
condition would be deemed invalid and unacceptable.
Abu Huraira (Ra) reports:
"An-Nabi (saws) forbade a woman
from making it a condition for her husband to divorce her sister (his
other wife)."
Reported by al-Bukhari.
Footnotes
Verification of Athar:
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