that she be Muslim, or that either of them possess a particular lineage, free status, or some other attribute, and the condition later proves false, the sounder opinion is that the marriage itself remains valid. If what subsequently appears is better than what was stipulated, neither spouse may annul; but if it is inferior, she may annul, and—according to the stronger view—so may he.
If the husband merely assumed that she was Muslim or free, and she turns out to be a Jewish or Christian woman or a slave, while still lawful for him, no right of option exists according to the sounder view. Likewise, if she authorized her guardian to marry her to someone she believed to be her equal and he then proves to be openly immoral, of low lineage, or of a disreputable trade, she has no option.
I say: should the husband prove to have a bodily defect or to be a slave, she does have the right of option. Allah knows best.
Whenever the marriage is dissolved because a condition has been breached, the rules governing the dowry and the right of recourse against the deceiver are the same as those set forth under defects: what counts is deception that accompanied the contract. If a man was deceived into believing a slave woman was free and we rule the marriage valid, any child born before the deception is discovered is free; the deceived husband must pay her value to her owner and may recover it from the deceiver. Such deception cannot come from the owner himself, but only from his agent or from the woman; if it is from her, the liability attaches to her estate. If the child is delivered dead without anyone’s fault, nothing is owed for it.
A woman who is emancipated while married to a slave, or to someone partially enslaved, may choose to annul the marriage, and the sounder view is that this option must be exercised immediately. If she says, “I did not know I had been freed,” she is believed on oath when that is plausible, such as when the emancipator was absent; the same applies, on the stronger view, if she says she was unaware of having an option. If she annuls before intercourse, no dowry is due. After intercourse, if the emancipation occurred afterwards, the named dowry becomes due; if the freedom preceded intercourse, the customary equivalent dowry is due—though another opinion holds that the named dowry applies. If only part of her is emancipated, or she enters into a contract of manumission, or a slave husband becomes free while married to a slave wife, no option arises.
Section
According to the prevailing opinion, a son is obliged to provide sexual fulfilment (iʿfaf) for his father and paternal grandfathers. He may do so by giving him the dowry of a free woman, by saying, “Marry and I will cover the dowry,” by contracting a marriage on his behalf with his permission and paying the dowry, or by giving him ownership of a slave woman or her price—after which he must cover her maintenance. The father, however, may not insist on marriage with a free woman rather than concubinage, nor on one of high social rank. If they agree on a dowry, its precise determination belongs to the father. Renewal of this duty is required if the woman dies, if the marriage is dissolved because of apostasy, if it is annulled on account of a defect, and likewise if he divorces her for a legitimate reason, according to the sounder view. Sexual fulfilment becomes obligatory only