that it overrides the presumption.
Thus, if a wife who is living in her husband’s home claims that he has not provided for her, her claim is rejected, because the custom-based circumstantial evidence belies her assertion.
Likewise, if the spouses dispute ownership of the household furnishings, the basic presumption is that they share them equally; yet the indication that each normally possesses what is suited to him or her is stronger than that presumption. Consequently, whatever is fit for the husband is deemed his, and whatever is fit for the wife is deemed hers.
Here, too, preponderant probability is preferred whenever reaching certainty is difficult. The scholars have been satisfied with relying on predominant likelihood in several matters—among them estimating what one has performed in prayer, in ṭawāf, in sa‘y, and the like—according to the soundest scholarly view.
Twenty-first Maxim: “Conciliation is permissible among Muslims except a conciliation that renders lawful what Allah has forbidden or forbids what He has made lawful; and Muslims are bound by their conditions unless a condition renders lawful what is forbidden or forbids what is lawful.”
Explanation: These two principles are the very wording of two hadiths that many leading hadith scholars have authenticated, and the Muslim community has received them with approval because they carry the luminance of Prophetic speech in its concision and clarity.
The first hadith indicates that any settlement concluded between Muslims—whether concerning blood-money, property, the rulings of marriage, or anything else—is valid and enforceable between the parties, unless the settlement makes permissible something Allah has prohibited or prohibits something He has permitted; in that case the settlement is invalid and of no effect, for it contravenes Allah’s intent. There are many examples of both valid and invalid settlements.
The second principle states that every condition stipulated by either of the two contracting parties is binding upon the party on whom it is imposed—whether in marriage contracts, commercial transactions, treaties, or other agreements. Such conditions are sound and obligatory so long as they do not legalize what is prohibited,