her silence, where he has accepted a dower equal to or greater than her customary dower, even if she does not approve of the amount, since she has no say in approving the dower when she has a testamentary guardian. In a marriage contracted without specifying a dower, he may agree with the husband upon an amount equal to or greater than her customary dower. This agreement is valid and binding upon her, and the agreed amount becomes her dower, half of which is due upon divorce and all of which is due upon death or consummation, whether she approves or not. If he does not approve of the amount but she does, it does not become her dower except by a judicial ruling. According to Mālik—may Allah Most High have mercy on him—he may not agree with the husband upon less than her customary dower. This differs from Ibn al-Qāsim’s position, which permits him to do so in her interests, though he stipulates her consent. This aspect of his opinion is open to question. And Allah grants success.
Section
If the husband consummates the marriage before a dower has been agreed upon, she becomes entitled to her customary dower by virtue of consummation. The same applies to a virgin whose father is her guardian. According to Mālik and his companions, neither the father nor the testamentary guardian may agree to less than that amount. This is explicitly stated by someone other than Ibn al-Qāsim in the chapter on marriage contracted without specifying a dower. A statement by Mālik in that chapter appears to allow the father, after consummation, to agree to less than the customary dower, but this contradicts his established position.
As for a virgin who has neither a father nor a testamentary guardian but has another guardian, that guardian likewise may not marry her off after puberty for less than her customary dower. There is disagreement concerning a dower equal to or greater than her customary dower. One view is that approval of her marriage for that amount rests with him rather than her; this is Ibn Habīb’s position in al-Wādiha. Another view is that it rests with her rather than him. Fadl reported this opinion from ‘Īsā ibn Dīnār and attributed it to al-Mustakhraja, but we have not found it reported from him there. The ruling by analogy, if they disagree over this, is that an amount accepted by either one of them should not be established as the dower until the judge has considered the matter. Recognizing an amount they have both accepted as the dower without the judge’s consideration rests solely on juristic preference. And Allah, glorified and exalted is He, grants success.
Section
A non-virgin woman is either legally independent or remains under the guardianship of a father or testamentary guardian. As for a legally independent woman, her guardian’s authority over her is confined to