Chapter: The Right of Option, Sexual Fulfilment, and the Slave’s Marriage

When either spouse discovers in the other insanity, leprosy, or leucoderma, or when the husband discovers that the wife has an imperforate hymen (ratq) or a bony growth that blocks intercourse (qarn), or when the wife finds him impotent (ʿinnīn) or castrated, the right of option (khiyār) to annul the marriage is established. One view holds that if the complaining spouse is afflicted with an identical defect, no option exists; and if she finds him to be a manifest hermaphrodite, she likewise has no option according to the sounder opinion.

If a defect arises in the husband after the contract, the wife of an impotent man may exercise her option once intercourse has taken place; if the defect arises in her, the husband has that option according to the new opinion. A guardian has no option on account of a subsequent defect, nor with respect to pre-existing castration or impotence, but he does have the right of option for pre-existing insanity—and, on the sounder view, for pre-existing leprosy or leucoderma.

The option must be exercised immediately. Dissolution before consummation cancels the dowry. After consummation, the sounder view is that the customary equivalent dowry becomes due when the annulment is prompted by a defect that was present at the time of the contract or that arose between the contract and intercourse but was unknown to the spouse who consummated the marriage; the named dowry remains due when the defect appears after intercourse. If the marriage is dissolved because of apostasy after intercourse, the named dowry is likewise due. According to the new opinion, once the marriage is annulled the husband may not reclaim the dowry from the person who deceived him.

In cases of impotence—and, on the sounder view, in all other defects—the matter must be referred to a judge. Impotence is established by the husband’s own admission, by testimony to such an admission, and, on the sounder view, by the wife’s oath after his refusal to swear. Once impotence is established, the judge, at her request, grants the husband one year. When that year expires, she brings the matter back to the judge: if the husband claims to have had intercourse, he must swear; if he refuses, she swears. Should she swear or he admit to impotence, she may annul the marriage on her own. Another view requires the judge’s permission or his own pronouncement of annulment.

If, during that year, she keeps away from him, falls ill, or is imprisoned, that period is not counted. If, having initiated the claim, she later agrees to remain with him, her right lapses, and the same applies—according to the correct opinion—if she grants him an extension. And if he marries on condition