as with a pledge, possession, knowledge of a lost item’s container and tying cord, and similar indications. Ibn Habīb understood Umar ibn al-Khattāb’s statement—may Allah be pleased with him—in this sense: “Once the curtains have been drawn, the dower becomes due.” Its apparent meaning, however, is otherwise: drawing the curtains makes the dower payable even if no intercourse occurred. This is the position of Abū Hanīfa and his companions: legally valid seclusion makes the entire dower payable, whether intercourse occurred or not, and whether the woman alleges it or not, provided there was no impediment to intercourse, such as menstruation, being in the state of ihrām, fasting, or the like.
Section
When the woman’s account is to be accepted regarding her allegation of intercourse, must she swear an oath, or is she believed without one? There is disagreement on this. Ibn al-Mawwāz’s book states that her account is accepted upon her oath, as does Ibn al-Jahm’s book. This is also Īsā’s transmission from Ibn al-Qāsim in the Book of Prescribed Punishments, concerning a man who forcibly takes a woman into seclusion, where this is proven against him and she alleges intercourse.
Some later scholars held that she need not swear an oath, drawing an analogy with Ashhab’s transmission from Mālik in the Book of Usurpation concerning a beautiful slave woman who, while bleeding, seizes hold of a man and alleges that he raped her: her account is accepted without an oath. This analogy is far-fetched, however, for her account was accepted without an oath only because of the public disgrace she had brought upon herself, together with the fact that she was bleeding. The reasoning is that these two indications were treated as equivalent to two witnesses, thus dispensing with her oath; either indication alone would have been like a single witness, requiring her to swear an oath. The correct position, however, is what Ibn Habīb related in al-Wādiha: she must swear an oath. A wife has even more reason to be required to swear, since alleging intercourse with her husband brings her no disgrace.
Whether the woman is a virgin or previously married, an orphan or has a living father, free or enslaved, Muslim or Christian, an adult or a minor—provided she has reached an age at which girls like her can have intercourse—she is entitled to the full dower only if she alleges intercourse. If she acknowledges that he did not have intercourse with her, her statement is binding upon her, and she is entitled only to half the dower. An exception is where the husband acknowledges intercourse but she denies it, while she is enslaved or under legal guardianship. Mutarrif and Sahnūn said that her statement is not accepted as grounds for waiving half the dower; her guardian or master may collect that amount from him on the strength of his acknowledgment.