1272. Introduction
In this chapter, Imam Ibn Qudâmah mentions the conditions that constitute grounds for one of the spouses to seek annulment of the marriage contract, as long as they are discovered only afterwards and were not disclosed by the time of the marriage contract. This is a right given to the spouses, who may or may not claim it. If they choose to, they may resolve the issue by mutually agreeing to separate. Litigation should be a last resort; still, the law should make provisions for that outcome. You will notice that there are two groups of conditions: those that prevent good companionship, like insanity, and those that prevent the attainment of sexual pleasure or cause physical aversion, like leprosy and impotence. (a) + (t) added the sterility of the man as grounds for annulment, and this position was later adopted by many Ḥanbalis such as Ibn Rajab and al-Mardâwi. They did not grant the same right to the man since he can have children from another wife.
Many chapters of fiqh mention individual examples, but it is more important to know the rationale behind the ruling than to memorize the specific examples. The examples may not be comprehensive, and they may change according to times and circumstances. (See the appendix on the change of fatwa.)
Are the Defects Limited to Specific Ones?
The four madh-habs agreed, in their formal positions, that they are limited. They disagreed over the exact conditions, with some making them five (H), seven (S), eight (A), thirteen (M), or sixteen (A2).
N.B.: The Ḥanafis say the right to annulment applies to women only if they find a defect in their husbands, since men can always divorce their wives. The majority contended that he may divorce, but if he seeks annulment, he will keep his ṣadâq unless they consummated the marriage. If they did, he cannot take it back from the woman, but he may demand that amount from her guardians who failed to inform him of the defect.
Some scholars, including az-Zuhri, Shurayḥ, Abu Thawr, Muhammad ibn al-Ḥasan, Ibn Taymiyah and Ibn al-Qayyim said they are not limited to those but include any defects that will cause justifiable aversion to the spouse (a). This position has great merits. In Zâd al-Ma‘âd, Imam Ibn al-Qayyim supports it by citing a report in Muṣannaf ‘Abdur-Razzâq that ‘Umar ordered a man to disclose his sterility to his wife and give her the choice; he argues that sterility is not even one of the defects named by the majority. Moreover, you should note that those who said they are fixed still disagreed widely over the individual defects.
