Divorce takes effect immediately upon expiry of the period if he has not resumed marital relations. If the husband is impotent or his penis has been amputated, most of them hold that she has the right to rescind the marriage. Yet they say that a woman cannot pronounce divorce. The majority uphold the right to choose whether to rescind on account of insanity, leprosy or vitiligo, as did ʿUmar ibn al-Khattāb. Many of them, however, restricted rescission to defects that preclude marriage, just as they invalidated a marriage containing a stipulation that terminates the contract. A detailed discussion of this belongs elsewhere.

The point here is that the fundamental principles and scriptural texts establish that a stipulation is binding unless it contradicts the Book of Allah. If it is binding, the contract is not binding without its fulfilment.

All Muslims allow a specific item to be stipulated as the dower, such as this slave, this horse or this house. Yet they say that if delivery of the dower becomes impossible, a substitute becomes due, and the woman has no right to rescind, even if the impediment comes from the husband. This is a weak position that contradicts the fundamental principles. Even if one does not regard the contract as precluded, its performance may prove impossible. At the very least, therefore, the woman must be allowed to rescind, for she consented and permitted marital intercourse only in return for this. If it becomes unobtainable, she has the right to rescind.

They say: “The dower is not the primary purpose.”

The reply is that every stipulation serves an intended purpose, and the obligation to provide the dower is more firmly established than the obligation to pay the purchase price. Here, however, the spouses are both the subjects of the contract and the contracting parties, unlike a sale, in which the two parties conclude the contract but are not its subjects. This entails that, if the dower is unavailable, the woman has the choice between rescinding and demanding a substitute, as with defects in a sale. Since the subjects of the contract—the two spouses—remain, what is missing is only part of the subject matter of the contract. It is thus like a defect arising