Thus, the Prophet, may Allah bless him and grant him peace, declared the stipulations by which marital intimacy becomes lawful more deserving of fulfilment than other stipulations. This explicitly addresses stipulations of this kind, since no stipulation is unanimously agreed to require fulfilment other than the dower and the spoken terms. These stipulations must therefore be what is intended.

As for stipulating that her child remain with her and that he provide for the child, this is comparable to increasing the dower. According to Ahmad’s explicit position—which is also the position of Abū Hanīfa and Mālik—a degree of uncertainty is permissible in the dower that would not be permissible in a sale price or a wage. Any uncertainty less than that involved in determining the customary dower for a woman of comparable standing is all the more deserving of being permitted.

Moreover, an arrangement of this kind is permissible in hiring and similar contracts according to Ahmad’s school and others: a worker may be hired in return for his food and clothing, with customary practice determining what these entail. All the more, then, should customary practice determine the maintenance stipulated for her child.

If he fails to fulfil these stipulations, marrying another woman and taking a concubine, she has the right to annul the marriage. There is, however, disagreement over whether this requires a judge’s ruling, since it is a right of annulment subject to juristic disagreement, like the right arising from impotence or defects.

Alternatively, it may be argued that establishing this right requires no exercise of juristic judgment, even if annulment on its basis is disputed. It is comparable to the right of choice afforded to an emancipated woman: those who recognize that right hold that it applies without a judge’s ruling even in disputed cases, such as exercising annulment after a delay.

The underlying question is whether requiring a judicial ruling for annulment is also due to the need for juristic judgment in establishing the ruling, or whether it is because particular caution is required in matters of marital separation. The stronger view is that an annulment whose validity is disputed, such as annulment on grounds of impotence, does not require a judge’s ruling. However, if it is brought before a judge who considers it valid, he upholds it; if he considers it invalid, he sets it aside. And Allah knows best.