The jurists ultimately restricted the actionable defects to four:
- insanity; 2. leprosy; 3. vitiligo; and 4. a genital disorder that renders intercourse impossible—whether an imperforate or occluded vagina (qaran or ratq) in the woman, or impotence (ʿinnah) or castration in the man.
Malik’s followers then disagreed about four additional conditions—pronounced hyper-pigmentation, alopecia, an offensive genital odor, and halitosis. Some held that any of these would justify annulment, while others denied that they do.
Abu Hanifah, his associates, and al-Thawri maintained that a wife may only be ‘returned’—that is, the marriage may only be dissolved—for two defects: qaran and ratq.
As for the procedural rulings, all who allow annulment agree that if the husband discovers the defect before consummation he may divorce her and owes nothing. They differ, however, when he learns of it after intercourse.
Malik says: if the guardian who gave her in marriage is a close relative—such as the father or brother—who is presumed to have known of the defect, he is deemed to have deceived (ghar) the groom; the husband may therefore recoup the dowry from that guardian, and he may not claim anything from the woman herself. If the guardian is a more distant relative, the husband may recover the entire dowry from the woman, save only one-quarter of a dinar.
Al-Shafiʿi holds that once intercourse has taken place the whole dowry is incumbent upon the husband; he has no right of recourse against either the wife or her guardian.
The root of their disagreement is whether the present dissolution should be likened to rescission for defect in a sale, or to the annulment of an invalid marriage in which intercourse has occurred. All concur that in void marriages the dowry becomes obligatory by virtue of intercourse, relying on the Prophet’s statement ﷺ: “Any woman who marries without her master’s permission, her marriage is invalid, yet she is entitled to the bridal-gift by virtue of what he has taken from her.”
Hence the point of contention is whether this case falls under the rules for defect-related rescission in sales, or under the rules for marriages that are annulled after consummation.
Those who permit the dissolution of the marriage of an impotent husband further agree that it is not to be annulled until he has been granted a year’s respite in which he is left alone with her with no impediment.
Malik’s school also differed over why annulment was limited to the four core defects. One view: the ruling is a prescript with no underlying rationale. Another: those defects are hidden, whereas others are usually obvious. A third: they may be transmitted to offspring; on this reasoning, hyper-pigmentation and alopecia would also justify annulment, while on the first view any defect unknown to the husband would suffice.
[Chapter Two: The Option Arising from Inability to Pay the Dower or Provide Maintenance]
They disagreed about insolvency with respect to the dower. Al-Shafiʿi—and Malik likewise—held that, before consummation, the wife may choose whether to remain or annul. Malik’s companions then differed over how long he may be allowed to find the money: some said there is no fixed term; others one year; still others two years.
Abu Hanifah likened her to an ordinary creditor: the marriage is not dissolved, the husband is compelled to provide maintenance, and she may withhold herself until he pays the dower.
The cause of the disagreement is whether the contract’s resemblance to a sale should prevail, or the harm to the woman caused by deprivation of intercourse—by analogy to ʿīlāʾ and impotence.
Concerning insolvency in maintenance, Malik, al-Shafiʿi, and Ahmad