“And how could you take it back when you have been intimate with one another?” (al-Nisāʾ 4:21).
He likewise gave an explicit ruling regarding a woman divorced before intercourse, namely that she is entitled to half of the bridal-due. The Exalted said:
“If you divorce them before you have touched them, after you have already fixed for them a bridal-due, then half of what you fixed becomes due.” (al-Baqarah 2:237)
As you can see, this is a clear text covering each of the two situations—before intercourse and after intercourse—and there is no middle state between them. It therefore follows, with evident force, that the dowry becomes obligatory only through intercourse (masīs).
Here the apparent meaning of masīs is actual coitus (jimāʿ), though it may also be taken in its basic lexical sense of mere physical contact, and this is probably the understanding adopted by the Companions. For that reason Mālik said, concerning a husband whose impotence has been granted a deferment (al-ʿinnīn al-muʾajjal), that the dowry falls due to the wife if divorce takes place after a long period of their living together, thereby attributing to mere cohabitation—short of intercourse—a causal effect in establishing the dowry.
As for the rulings transmitted from the Companions, they judged unanimously that once a man closes a door behind them or lowers a curtain, the dowry becomes due; in the judgments they issued there was no disagreement on this point.
Within this same chapter they did, however, differ over a subsidiary matter: when the spouses dispute whether intercourse has in fact occurred—among those who make intercourse a condition—such as when she claims it and he denies it. The well-known position of Mālik is that her word is accepted.
Some say: if the entry was for the purpose of setting up house (dukūl bināʾ) she is believed, but if it was merely a visit (dukūl ziyārah) she is not. Others say: if she is a virgin the women examine her. Thus three opinions exist within the school.
Al-Shāfiʿī and the literalists (Ahl al-Ẓāhir) maintain that his word is accepted, because the claim is being brought against him. Mālik, however, does not base the obligation of an oath on the defendant merely on that ground; rather, he considers whichever side carries the stronger presumption in most cases. For that reason he often makes the claimant’s statement decisive when the claim itself bears the stronger presumption.
This dispute therefore turns on whether imposing an oath upon the defendant is governed by a discernible rationale or not; the same applies to requiring the claimant to produce evidence, and this will be addressed in its proper place.
SECTION THREE: On Halving the Dowry
They are unanimously agreed in general terms that if a man divorces his wife before consummation after a dowry has been stipulated, he must return to her half of that dowry, in accordance with the Almighty’s words: “…then half of what you stipulated” (al-Baqarah 2:237).
The discussion of halving revolves around three foundational issues: (1) the marriages in which it applies; (2) the type of divorce that necessitates it—that is, one occurring before consummation; and (3) the effect of any changes that intervene before the divorce.
With respect to the type of marriage, Mālik holds that it applies only to a valid marriage, meaning that the pre-consummation divorce must occur within a sound contract. As for an irregular (fāsid) marriage, if separation has not yet taken place by annulment (fasḫ) and the husband pronounces divorce before that annulment, there are two opinions.
As for what brings about the halving, it is a divorce initiated by the husband’s own choice and not by hers—for example, a divorce occasioned by her establishing a defect in him. The jurists also differed about a divorce whose cause is her claim for the dowry or maintenance when he is insolvent; in principle there is no distinction between that and a claim based on a defect.
Annulments (fusūkh) that are not divorces are unanimously held not to entail the halving when the annulment originates from