and at other times it means “to grant.”
Concerning His words,
“the one in whose hand lies the knot of marriage” (al-Baqarah 2:237),
to whom does this pronoun refer—the guardian or the husband?
• Whoever says it refers to the husband understands “yaʿfū” to mean “to grant.”
• Whoever says it refers to the guardian understands “yaʿfū” to mean “to waive.”
A small, anomalous group went further and maintained that any guardian has the right to waive half of the dowry due to the woman.
Both of these grammatical possibilities appear equally allowable in the verse. Yet the view that makes the pronoun refer to the husband introduces no new legal ruling, for his right to forgo is already necessarily known in the Law. The view that makes it refer to the guardian—whether her father or someone else—does introduce a new ruling; accordingly, its proponents must bring proof that the verse is clearer about the guardian than about the husband, and that is difficult to establish.
The majority hold that a minor girl, or a woman under legal interdiction, is not entitled to gift away the half-dowry owed to her. A dissenting minority permitted her to do so in all circumstances, invoking the generality of the Almighty’s words:
“unless they themselves forgo” (al-Baqarah 2:237).
From this same question another dispute arose: if a woman gifts her dowry to her husband and is then divorced before consummation, what is the ruling?
• Mālik said: he may reclaim nothing from her.
• Al-Shāfiʿī said: he may reclaim half of the dowry.
The root of their disagreement is whether the half that becomes the husband’s right upon divorce pertains to the very substance of the dowry, or to a debt owed by the woman.
– Whoever says it pertains to the substance of the dowry holds that he may reclaim nothing, for he has already received it in full.
– Whoever says it is a debt upon the woman holds that he may reclaim it, even though she had gifted it to him, just as if she had gifted him any other property of hers.
Abū Ḥanīfah distinguished here between possession and non-possession: if she had already taken possession, he is entitled to the half; but if she had not yet taken possession when she gifted it to him, he is entitled to nothing. It is as though he considered the right attached to the specific property until she takes possession; once she does, it becomes a debt upon her.
Fourth Topic: Deferred Assignment of the Dowry (tafwīḍ)
The fourth topic concerns tafwīḍ. There is unanimous agreement that a marriage contracted without stipulating a dowry is valid, as the Almighty says:
“There is no blame upon you if you divorce women before touching them or assigning them a bridal-due” (al-Baqarah 2:236).
The jurists nevertheless differed on two related questions:
- When the wife demands that a dowry be fixed and the spouses disagree over its amount.
- When the husband dies without having fixed a dowry—does she then have any dowry or not?
As for the first question—when the woman insists that a dowry be assigned to her—one group said: the judge sets for her the customary dowry of her peers, and the husband has no choice in the matter. If he then divorces her after the ruling, some of them say she receives half the dowry, while others say she receives nothing, because the original assignment was not part of the marriage contract. This is the view of Abū Ḥanīfah and his companions.
Mālik and his associates said: the husband has three alternatives—he may divorce her without fixing a dowry; he may fix the amount she is demanding; or he may fix the customary dowry of her peers and oblige her to accept it.
And the reason