The Book of Sadaq

Book Sadaq (Wedding Gift)

الصَّدَاقِ

The Book of Dhihar

Glossary


Book Sadaq (Wedding Gift)

Anything that is lawful to be a compensation is lawful to be a ṣadâq, whether it is large or small. 1280 This is because of the statement of the

كُلُّ مَا جَازَ أَنْ يَكُوْنَ ثَمَناً، جَازَ أَنْ يَكُوْنَ صَدَاقاً، قَلِيْلاً كَانَ أَوْ كَثِيْرًا، لِقَوْلِ رَسُوْلِ اللهِ لِلَّذِيْ

1280. Introduction

The Definition and Ruling of Ṣadâq

The word ṣadâq will be used frequently here because it has beautiful connotations. It is derived from the same root as ṣidq (truthfulness). It is a demonstration of the groom’s truthful and honest commitment to the marital relationship. There is no good translation for ṣadâq, since the words commonly used for that purpose have some un-Islamic connotations. ‘Dowry’ typically refers to a gift given by the bride to the groom, and this is the opposite of ṣadâq. Also, according to Encyclopaedia Britannica, the dower may refer to “a mourning gift: … a provision accorded by law to a wife for her support in the event that she should ‎survive her husband,” or “a property brought to the marriage by the bride,” or “bride price: property made over to the bride’s family at the time of the wedding… does not pass to the bride ‎herself.”‎ (Encyclopaedia Britannica Online, retrieved July 28, 2009) The ṣadâq in Islam is described by the word niḥlah, as Allah said:

{And give the women [upon marriage] their [bridal] gifts (niḥlah) graciously…} (an-Nisâ’ 4: 4)

وَآتُوا النِّسَاءَ صَدُقَاتِهِنَّ نِحْلَةً

Niḥlah has two meanings: “given gladly and graciously” and “given as an obligation.” Both meanings are applicable here; it is a gift given gladly and graciously by the husband as a show of commitment, and it is also an obligation, since Allah made it so. When ṣadâq is described in some fiqh books as a compensation for the woman’s commitment to marriage, this does not mean that it is a price for the bride herself. In Islam, the bride never becomes the “property” of her husband; she maintains her independent identity, including her family name, as well as her financial independence.
The ṣadâq is an obligation on the man, but it is not a condition for the validity of the marriage. It is the woman’s entitlement; she can either demand it immediately or defer it (all or in part) for an appointed term. She has the right to refuse consummation until she receives the portion of it that is due, but if she accepts consummation before receiving it, then it becomes a debt upon the husband.
Items that are unidentifiable, impermissible to use, or useless may not be given as compensation (prices for other goods) or ṣadâq. Thus, one may not give his wife an unknown item in a box, a herd of pigs, or bottles of wine as ṣadâq; nor may he give her insects or other useless articles.
The Appropriate Amount of Ṣadâq

Considering the varying circumstances of people, Islam did not fix the amount of ṣadâq. The hadith mentioned by the author about the iron ring is given as an example of a very modest ṣadâq. On the other hand, Allah said:

{…and you have given one of them a great amount [in gifts]…} (an-Nisâ’ 4: 20)

وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا

This verse implies the permissibility of giving a great treasure as a ṣadâq. There are two guidelines that we should be aware of in this regard. 1) Ṣadâq should never become an obstacle to marriage. The Messenger of Allah (SA) said:

“The better ṣadâq is the easier one.” (H – from ‘Uqbah ibn ‘Âmir. al-Albâni:Auth)

خير الصداق أيْسَرُه

2) The ease of the ṣadâq does not mean that it is intended to be insignificant.

‘Umar ibn al-Khaṭṭâb said: Do not be excessive concerning the dowries of women, for if that were a sign of honor or piety, then Muhammad (SA) would have preceded you to it. However, he did not give any of his wives, and none of his daughters was given, more than 12 uqiyah (a measure of silver). It may happen that a man increases the dowry to the extent that he feels resentment towards her and says, “You cost me all my belongings, even the hanging string of the water skin.” (Ma. al-Albâni: S)

Messenger of Allah (SA) to the man who asked him to marry him (the man) to a certain woman if the Messenger of Allah (SA) himself was not interested in marrying her, “Seek (something for a dower), even a ring of iron.” 1281

قَالَ لَهُ زَوِّجْنِيْ هَذِهِ الْمَرْأَةَ إِنْ لَمْ يَكُنْ لَكَ بِهَا حَاجَةٌ، "اْلتَمِسْ وَلَوْ خَاتَمًا مِنْ حَدِيْدٍ."

It is valid for a man to give his daughter in marriage for any ṣadâq. Other than the father, no one is allowed to give her in marriage for less than the ṣadâq of her equals, except with her permission. 1282

فَإِذاَ زَوَّجَ الرَّجُلُ ابْنَتَهُ بِأَيِّ صَدَاقٍ كَانَ جَازَ، وَلاَ يَنْقُصُهَا غَيْرَ اْلأَبِ مِنْ مَهْرِ مِثْلِهَا إِلاَّ بِرِضَاهَا.

Note that while the report may be used to warn against extravagance in dowries, it still tells us that the Prophet (SA) gave and received around 12 uqiyah as a ṣadâq for his wives and daughters. Now, what is the value of the 12 uqiyahs? One uqiyah is about 40 dirhams, so 12 uqiyahs are about 480-500 dirhams. Since one dirham is equal to about 3 grams, the 12 uqiyahs are equal to about 1500 grams of silver, which is about $500. This is what is usually mentioned as the value of his ṣadâqs. However, it is not an accurate estimation because the value of money itself differs. To determine the true value of the 500 dirhams, we should find out its buying power during the Prophet’s time. One way we could understand that is by examining the different forms of compensation for mistaken killing (blood money) during his time. The blood money was paid in one of five forms (or six according to Aḥmad): 100 camels, 2000 sheep, 1000 dinars or 10,000 (or 12,000) dirhams. This tells us that one sheep was worth about 5 dirhams. This was not always the case, for sure, because the prices varied. For instance, in the hadith of ‘Urwah al-Bâriqi, the price of one sheep ranged from one to two dinars (= 10-20 dirhams). We can conclude from the examples above that the 500 dirhams given as ṣadâq to the wives and daughters of the Prophet (SA) could have bought them about 25 to 100 sheep, which constituted significant wealth at that time. Finally, we should understand this within the context of their very austere lifestyles. It would not be appropriate for people who live in luxury homes and drive fancy cars to insist on modesty only in their ṣadâqs. [1] (Ag – from Sahl ibn Sa‘d)

1281. (Ag – from Sahl ibn Sa‘d)

1282. The father, being keen on the wellbeing of his daughter, may accept on her behalf less than the ṣadâq of her peers. This is because a father would usually not do that unless, in his estimation, the marriage was still in his daughter’s best interest. If the father is absent and another male relative acts as her wali, he is not permitted to accept less than the ṣadâq of her equals unless she willingly agrees to that. If he does so, the husband will be liable for the difference. In another opinion in the madh-hab, the wali will be liable for the difference.

وَإِذَا أَصْدَقَهَا عَبْدًا بِعَيْنِهِ فَوَجَدَتْهُ مَعِيْبًا، خُيِّرَتْ بَيْنَ أَرْشِهِ وَرَدِّهِ وَأَخْذِ قِيْمَتِهِ، وَإِنْ وَجَدَتْهُ مَغْصُوْبًا أَوْ حُرًّا، فَلَهَا قِيْمَتُهُ، وَإِنْ كَانَتْ عَالِمَةً بِحُرِّيَّتِهِ أَوْ غَصْبِهِ حِيْنَ اْلعَقْدِ، فَلَهَا مَهْرُ مِثْلِهَا، وَإِنْ تَزَوَّجَهَا عَلىٰ أَنْ يَشْتَرِيَ لَهَا عَبْدًا بِعَيْنِهِ، فَلَمْ يَبِعْهُ سَيِّدُهُ أَوْ طَلَبَ بِهِ أَكْثَرَ مِنْ قِيْمَتِهِ، فَلَهَا قِيْمَتُهُ.

Subsection: If he marries her without a ṣadâq, the marriage is valid. 1283
If he divorces her before the consummation, she is entitled only to the mut‘ah (gift of consolation), which should be proportionate to the wealth or poverty of the husband. The highest mut‘ah is a servant, and the lowest is a garment in which she can pray. 1284

فَصْلٌ: وَإِنْ تَزَوَّجَهَا بِغَيْرِ صَدَاقٍ، صَحَّ. فَإِنْ طَلَّقَهَا قَبْلَ الدُّخُوْلِ، لَمْ يَكُنْ لَهَا إِلاَّ الْمُتْعَةَ، عَلىٰ الْمُوْسِعِ قَدَرُهُ وَعَلىٰ الْمُقْتِرِ قَدَرُه، وَأَعْلاَهَا خَادِمٌ، وَأَدْنَاهَا كِسْوَةٌ يَجُوْزُ لَهَا الصَّلاَةُ فِيْهَا.

If one of them dies before the consummation of the marriage and the designation of a ṣadâq, then

إِنْ مَاتَ أَحَدُهُمَا قَبْلَ الدُّخُوْلِ وَاْلفَرْضِ، فُرِضَ لَهَا مَهْرُ نِسَائِهَا،

1283. The ṣadâq is wâjib, but it is not a condition of the validity of the marriage. Thus, if it was not mentioned, the marriage is still valid. Allah said:

{There is no blame upon you if you divorce women you have not touched nor specified for them an obligation…} (al-Baqarah 2: 236)

لَّا جُنَاحَ عَلَيْكُمْ إِن طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً...

1284. In reference to the women divorced before the consummation of the marriage and the designation of the ṣadâq, Allah said:

{…But give them [a gift of] compensation – the wealthy according to his capability and the poor according to his capability – a provision according to what is acceptable, a duty upon the doers of good.} (al-Baqarah 2: 236)

{...وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ}

The examples of mut‘ah given here may not be relevant to our times. In another report in the madh-hab, its amount is left to the judge to determine. Those examples would still be helpful in providing the judge with some reference points. (See the discussion of mut‘ah for other women in the chapter of the maintenance of women observing ‘iddah.)

she will be entitled to the ṣadâq of her equals, no more and no less. 1285 The survivor will be entitled to inheritance, and if the survivor is the woman, she must observe the ‘iddah. This is because the Prophet (SA) decreed, concerning the case of Barwa‘ bint Wâshiq when her husband died before he consummated the marriage with her or designated a ṣadâq for her, that she was entitled to the ṣadâq of her equals, no more and no less; that she was entitled to her share of his inheritance; and that she had to observe the ‘iddah. 1286

لاَ وَكْسَ وَلاَ شَطَطَ، وَلِلْباَقِيْ مِنْهُمَا الْمِيْرَاثُ وَعَلَيْهَا اْلعِدَّةُ لأَنَّ النَّبِيَّ قَضَى فِيْ بَرْوَعَ بِنْتِ وَاشِقٍ، لَمَّا مَاتَ زَوْجُهَا ولم يدخل بها ولم يَفرِضْ لها، أن لها مَهرَ نِسائها لاَ وَكْسَ وَلاَ شَطَطَ، ولها الْمِيْرَاثُ وَعَلَيْهَا اْلعِدَّةُ.

If she demands that he designate a ṣadâq for her before the consummation, she is entitled to that. If he designates for her the ṣadâq of her equals or more, she is entitled to nothing more. 1287 The same is true if he designates less for her and she accepts that. 1288

وَلَوْ طَالَبَتْهُ قَبْلَ الدُّخُوْلِ أَنْ يَفْرِضَ لَهَا، فَلَهَا ذٰلِكَ، فَإِنْ فَرَضَ لَهَا مَهْرَ نِسَائِهَا أَوْ أَكْثَرَ، فَلَيْسَ لَهَا غَيْرُهُ، وَكَذٰلِكَ لَوْ فَرَضَ لَهَا أَقَلَّ مِنْهُ فَرَضِيَتْ.

Subsection: On the Separation Caused by the Woman before Consummation The ṣadâq is dropped in all cases where separation is caused by the woman before consummation, such as her conversion to Islam, 1289 apostasy,

فَصْلٌ: كُلُّ فُرْقَــةٍ جَـــاءَتْ مِنَ الْمَــرْأَةِ قَبْلَ الدُّخُــوْلِ وَكُلُّ فُرْقَــةٍ جَـــاءَتْ مِنَ الْمَــرْأَةِ، قَبْلَ الدُّخُــوْلِ، كَإِسْـــلاَمِهَا، أَوِ ارْتِدَادِهَا، أَوْ

1285. The ṣadâq becomes all due upon consummation, an actual seclusion (khalwah), or the death of either party, regardless of whether the death was before or after consummation. Note that in the case of separation by divorce before the consummation of marriage, she only gets half of the ṣadâq.

1286. (D, from Ibn Mas‘ood. Auth)

1287. If this was before the contract, she may ask for more than the ṣadâq of her equals, and she may refuse to proceed with the marriage if he did not give her what she demanded. However, if they performed the contract without designating the ṣadâq, she will only be entitled to the ṣadâq of her equals.

1288. She may demand that her ṣadâq be designated, and she may refuse to consummate the marriage until she receives her ṣadâq.

1289. If she is married to a non-Muslim and then converts, she cannot proceed with the marriage. He is not liable for the ṣadâq since it was her action (conversion to Islam) that made the marriage null.

breastfeeding, or defect. 1290 The same applies if annulment was caused by a defect of the husband’s, his lack of means, or her emancipation.

إِرْضَاعِهَا، أَوْ فَسْـخٍ لِعَيْبِهَــا أَوْ فَسْـخِهَا لِعَيْبِهِ، وْإِعْسَــارِهِ، أَوْ عِتْقِهَــا، يَسْقُطُ بِهِ مَهْرُهَــا.

If it (separation before consummation) comes from the side of the husband, as when he divorces her or grants her khul‘, then her deserved dower is halved, unless he exempts her (by paying the full bridal dower) or she exempts him (by forgoing the deserved half), assuming that she is rasheedah (mature). 1291

وَإِنْ جَـاءَتْ مِنَ الزَّوْجِ، كَطَـلاَقِهِ وَخُلْعِهِ، تَنَصَّفَ بِهِ مَهْرُهَا بَيْنَهُمَا، إِلاَّ أَنْ يَعْفُوَ لَهَا عَنْ نِصْفِهِ أَوْ تَعْفُوَ هِيَ عَنْ حَقِّهَا وَهِيَ رَشِيْدَةٌ، فيُكْمَلُ الصَّدَاقُ لِلآخَرِ.

If the separation is caused by a third party, the husband will owe half of the ṣadâq, but he can claim it from the party that separated them. 1292

وَإِنْ جَاءَتْ مِنْ أَجْنَبِيٍّ فعلى الزوج نِصفُ المَهْرِ يَرْجِعُ بِهِ عَلَى مَنْ فَرَّقَ بَينَهُما.

If the ṣadâq is halved, and it is a particular item whose value does not change, 1293 it will be divided

وَمَتَى تَنَصَّفَ الْمَهْرُ وَكَانَ مُعَيَّنًا بَاقِيًا لَمْ تَتَغَيَّرْ قِيْمَتُهُ، صَارَ

1290. For example, if she breastfeeds his infant wife, she is no longer permissible for him to marry. In these cases, where she causes the marriage to be annulled, she will not be entitled to the ṣadâq.

1291. Allah said:

{And if you divorce them before you have touched them and you have already specified for them an obligation, then [give] half of what you specified – unless they forgo the right or the one in whose hand is the marriage contract forgoes it. And to forgo it is nearer to righteousness. And do not forget graciousness between you. Indeed Allah, of whatever you do, is Seeing.} (al-Baqarah 2: 237)

وَإِن طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ إِلَّا أَن يَعْفُونَ أَوْ يَعْفُوَ الَّذِي بِيَدِهِ عُقْدَةُ النِّكَاحِ وَأَن تَعْفُوا أَقْرَبُ لِلتَّقْوَىٰ وَلَا تَنسَوُا الْفَضْلَ بَيْنَكُمْ إِنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ

1292. A third party can result in voiding the marriage. For example, if he is contracted to marry an infant, and then his sister breastfeeds her, she becomes forbidden to him since she is now his niece through breastfeeding. He will have to pay half of the ṣadâq to the now ex-wife, and he may demand that amount from the third party (his sister) who ruined his marriage.

between them.

صَارَ بَيْنَهُمَا نِصْفَيْنِ.

If the (value of the) ṣadâq increases, and that increase is separate from the original item, such as when a sheep gives birth to a baby lamb, the increase belongs to her. The original sheep will be divided between them. If the increase is attached to the original item, such as when a sheep gains weight, she can choose to return half of the larger sheep or to return half of the sheep’s value as of the day of the contract. 1294

وَإِنْ زَادَ زِيَادَةُ مُنْفَصِلَةً، كَغَنَمٍ وَلَدَتْ، فَالزِّيَادَةُ لَهَا وَاْلغَنَمُ بَيْنَهُمَا، وَإِنْ زَادَ زِيَادَةً مُتَّصِلَةً، مِثْلُ إِنْ سَمِنَتِ اْلغَنَمُ، خُيِّرَتْ بَيْنَ دَفْعِ نِصْفِهَا زَائِدًا وَبَيْنَ دَفْعِ نِصْفِ قِيْمَتِهَا يَوْمَ اْلعَقْد.

1293. Fungible and Non-Fungible Ṣadâqs The ṣadâq may be a specific (non-fungible) item, like a particular camel or piece of furniture. It may be also something substitutable (fungible), like 20 dirhams, two tons of a certain brand of wheat, etc. The rulings below will mostly pertain to non-fungible ṣadâqs.

1294. The Rulings on the Increase or Decrease of the Ṣadâq

The principle here, and in the following examples, is that the ṣadâq belongs to the wife (its ownership is transferred to her) from the time of the contract, so any growth and/or gain from it also belongs to her. After she receives it, she is liable for any loss.
The Rulings of Fungible Ṣadâqs

A fungible ṣadâq is the responsibility of the one who has it in his or her possession. Any profit that emanates from it belongs to him or her, and any loss incurred is his or her liability. If the agreed-upon ṣadâq is 2000 dirhams, the husband must give the wife 1000 dirhams if divorce takes place before consummation and he has not already given her the ṣadâq. If she has already received the 2000, then she must return 1000, regardless of the loss incurred or profit accrued.
The Rulings on Non-Fungible Ṣadâqs (Particular Items) Vary

In the case of an increase:

If it decreases, 1295 she [he] 1296 can choose to take half of the diminished property or half of its value as of the day of the contract. If the item has been damaged, he is entitled to half of its value as of the day of the marriage contract.

وَإِنْ نَقَصَتْ، فَلَهَا [فله] الخِيَارُ بَيْنَ أَخْذِ نِصْفِه نَاقِصًا وَبَيْنَ أَخْذِ نِصْفِ قِيْمَتِه يَوْمَ اْلعَقْدِ. وَإِنْ تَلِفَتْ، فَلَهُ نِصْفُ قِيْمَتِهَا يَوْمَ اْلعَقْدِ.

Once he consummates the marriage with her, the mahr (ṣadâq) becomes entirely binding on him, and it will never be annulled.

وَمَتَى دَخَلَ بِهَا، اسْتَقَرَّ الْمَهْرُ وَلَمْ يَسْقُطْ بِشَيْءٍ.

After the contract, any increase belongs to the wife, since the ṣadâq is now her property in its entirety (regardless of who is actually in possession of it). If she needs to return half of it because a divorce takes place before the consummation, she returns half of the original ṣadâq, keeping the other half as well as any growth/profit that emanated from it. If this growth can easily be separated from the original ṣadâq, such as in the case of livestock giving birth, then she returns half of the livestock he gave her, and she keeps the other half, along with all of the newborns. If the gain of the original ṣadâq is not easily separated from the original, such as when livestock gain weight, she has the option of returning half of the value of the original ṣadâq or half of the existing (fatter) livestock.
In the case of decrease:

If the woman demands the ṣadâq but the man procrastinates, and then the value of the ṣadâq is diminished or completely wiped out, he is liable for it. This means that if divorce happens after the contract but before consummation, he will have to pay her half of the original value of that ṣadâq.
If she does not request it, then it is in his possession as a trust, and the rulings of trusts will apply. He is only liable for the loss if it results from negligence or wrongdoing on his part.
If she receives it, and then it is diminished or completely lost, she is liable. In the case of divorce before consummation, she must return to him half of the original value of the ṣadâq, unless he agrees to taking half of the diminished Ṣadâq (like an emaciated cow).

1295. For example, the value of the livestock decreases or some of them die.

1296. There may be an error in the Arabic original. Note that the right position of the madh-hab, as explained above, is that she will be liable for the loss of the ṣadâq after receiving it. Therefore, the choice here should be his, not hers, as in the copy verified by Shaykh al-Bassâm.

If he has been in seclusion with her after the contract, but he says, “I did not have intercourse with her,” and she confirms his statement, the mahr is still binding on him, 1197 and the waiting period is binding on her. 1198

وَإِنْ خَلاَ بِهَا بَعْدَ اْلعَقْدِ، وَقَالَ لَمْ أَطَأْهَا، وَصَدَّقَتْهُ، اسْتَقَرَّ الْمَهْرُ وَوَجَبَتِ اْلعِدَّةُ.

If the two spouses disagree about the ṣadâq or its exact amount, then the accepted claim will be that of the one who claims an amount comparable to the customary mahr for her equals, along with his or her oath. 1199

وَإِنِ اخْتَلَفَ الزَّوْجَانِ فِيْ الصَّدَاقِ أَوْ قَدْرِهِ، فَاْلقَوْلُ قَوْلُ مَنْ يَدَّعِيْ مَهْرَ اْلمِثْلِ مِنْهُمَا مَعَ يَمِيْنِهِ.

1297. (A) + (+H, +s-old)

(a) + (-M, -S): The whole mahr is binding only upon intercourse, so if they both deny it, the mere seclusion in itself does not entitle her to the entire ṣadâq. The position of (S) in this matter and the following is supported by the apparent meanings of the verses:

{And if you divorce them before you have touched them and you have already specified for them an obligation, then [give] half of what you specified...} (al-Baqarah 2: 237)

{وَإِن طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ ...}

The proof for the majority is the fatwas of the four caliphs, reported by ad-Dâraquṭni from Zurârah ibn Awfâ, that whenever seclusion takes place, the ṣadâq becomes binding and the woman must observe the ‘iddah. Seclusion is used in place of intercourse here because of the difficulty of verifying the latter. For instance, if the husband states that intercourse did not take place, the woman may be shy about contradicting him.

1298. (A) + (+H, +M): The waiting period is binding on her after the khalwah, even if they both deny intercourse.

1299. The default here is the ṣadâq of the bride’s equals. If they disagree over the amount of ṣadâq he designated for her, then the ṣadâq of her equals will be the reference point. For example, if the ṣadâq of her equals is 5000 dollars, and she claims that he promised her 5000 or less, her claim will be accepted. If he claims that he promised her 5000 dollars or more, his claim will be accepted.
(A/SM) and (A/Iqnâ‘): The husband’s claim is accepted (as long as it is realistic). This is because he acknowledged a certain amount and she claimed more, so the burden of proof is on her.

Book Sadaq (Wedding Gift)

( Page : no 116)