The crux of their disagreement—namely, between those who oblige the customary dowry of her peers without giving the husband any choice once he divorces her after she has demanded that a dowry be fixed, and those who do not—goes back to their divergent readings of the Almighty’s words:

“There is no blame upon you if you divorce women before touching them or assigning them a bridal-due.” (al-Baqarah 2:236)

Is this to be taken as a general ruling that the dowry drops altogether, whether or not the divorce itself arose from a dispute over fixing the dowry? And does the removal of blame in the verse necessarily imply that the dowry is waived in every circumstance, or not? Both interpretations are possible, though the more apparent sense is that it is waived in all situations, because the Almighty also says:

“Provide them with a gift: the affluent according to his means and the one of limited means according to his means.” (al-Baqarah 2:236)

To the best of my knowledge there is no difference of opinion that, if the husband initiates divorce outright, nothing becomes due from him. Hence anyone who obligates the parting gift together with half of the named dowry when divorce precedes consummation in a marriage with a stipulated dowry, and who obligates the customary dowry in a marriage lacking stipulation (tafwīḍ), must likewise oblige—alongside the gift—half of that customary dowry here as well. The verse, by its wording, does not speak of annulling the dowry in a marriage of tafwīḍ; it merely permits divorce prior to stipulation. If such a marriage entails the customary dowry once the wife demands it, that dowry must be halved upon divorce just as a named dowry is halved. For this reason Mālik said that no customary dowry is binding so long as the husband retains the option.

As for the second question—when the husband dies before naming a dowry and before consummation—Mālik, his school, and al-Awzāʿī held that she is owed no dowry, though she is entitled to the parting gift and to the inheritance. Abū Ḥanīfah maintained that she receives the customary dowry along with the inheritance; this was also the opinion of Aḥmad and Dāwūd. Both views are transmitted from al-Shāfiʿī, but the position deemed authoritative by his followers concurs with Mālik.

The cause of their divergence is the tension between analogy (qiyās) and transmitted proof (athar). The proof is the report that Ibn Masʿūd, when consulted on this matter, said, “I will give you my opinion; if it is correct it is from Allah, and if it is mistaken it is from me. I judge that she is entitled to the dowry of a woman of her rank—neither reduced nor excessive—she must observe the waiting period, and she inherits.” Maʿqil ibn Sinān al-Ashjaʿī then stood and said, “I testify that you have ruled exactly as the Messenger of Allah (peace and blessings be upon him) ruled concerning Barwāʿ bint Wāshiq.” This ḥadīth was recorded by Abū Dāwūd, al-Nasāʾī, and al-Tirmidhī, who graded it authentic.

The counter-analogy holds that the dowry is a consideration (ʿiwaḍ); because the consideration (the wife’s benefit) has not yet been received, no compensation becomes due, by analogy with a sale in which the object has not been delivered.

Al-Muzanī relates that al-Shāfiʿī said about this question: “If the ḥadīth of Barwāʿ is established, no one’s opinion can stand against the Sunnah; what it determines is the correct view. Allah knows best.”

Fifth Section: Invalid Dowries

A dowry may be invalid either in itself or by reason of an attribute arising from ignorance or excuse. That which is invalid in itself includes wine, pork, and anything else that may not be lawfully owned. What is invalid on account of ignorance or excuse is governed by the rulings of sales contracts, and there are five well-known issues in this regard: