Question on conditions for nikkah

[zawjatunjadidatun]

Salam Alaykum,may Allah answer your dua and have mercy on you.Jazakalahukhayran for the class.
My question is:In a situation where a woman only requested for some conditions [like her husband should memorize the quran within a specified limit]as her mahr.What happens if they are now married and the specified limit is over but the husband has not fulfilled the conditions

[Abu Ubaydah]

As salaam 'alaykum wa rahmatu Allahi wa barakaatuh,

This portion of the topic has not yet been discussed in class. Insha'Allah, next week, the rulings on Maher will be discussed and you could pose this question again.

I'm just trying to filter the questions to the right time so that the shaykh has enough time to answer the relevant questions about what has been already taught in class first.

Jazakum Allahu Khairan
Was salaam 'alaykum wa rahmatu Allahi wa barakaatuh

[zawjatunjadidatun]

Jazakumlahukhayran,He mentioned something on this in class[you remember when he was talking about people who only ask for recitation of the quran and the companion who only knew some surahs ]thats why i'm asking,but inshaAllah,i'll try to ask again.

[Abu Ubaydah]

I believe this question was answered in class during one of the Q/A sessions. If you don't mind, could you please share the answer with the rest of the students?

Jazakum Allahu Khairan
Was salaam 'alaykum wa rahmatu Allahi wa barakaatuh

[alisalaah]

please share :)

[Abu_Hamza]

Assalamu alaikum,

If a limit of time has been specified in the marriage contract for the mahr, and the husband does not provide the mahr to the wife by the specified time, the wife has the legal right to ask for khul'a [divorce]. However, if she chooses to, she can forgive him for that and the contract will remain valid.

This is what I understood from the class. It doesn't matter what type of mahr it is - i.e. monetary, qur'an, etc.

Wallahu a'lam.

[alisalaah]

what if the mahr was say hajj on a specific year but they obviously didn't go because of conditions beyond the husband's conrol? or maybe lik a dollar amount but it was due to poverty not neglect?

is khula' still an option in those cases, r is he simply given more time?

[Abu Ubaydah]

As salaam 'alaykum wa rahmatu Allahi wa barakaatuh,

Based on my understanding from the class, and I could very well be wrong, Maher is her right. However, specification of the Maher is the husband's right. So, the husband should choose the Maher wisely and once it is accepted by both the parties, it becomes binding on the husband to provide the Maher under the conditions agreed upon. So, if the husband fails to do so, irrespective of what the reasons may be, the wife has the right to ask for Khula'. However, it is better for the family structure that she work with him, understand his issues, and if possible give him more time (if time was a specific condition). Allahu 'Alam.

Jazakum Allahu Khairan
Was salaam 'alaykum wa rahmatu Allahi wa barakaatuh

[alisalaah]

jazakallahu khair... i undrstood everything and was assuming exactly what you said but it was doubtful, i feel more firm on the answer now but im sure after FOL ill be even more rooted

[Tazkiyah]

Assalamu alaikum,

If a limit of time has been specified in the marriage contract for the mahr, and the husband does not provide the mahr to the wife by the specified time, the wife has the legal right to ask for khul'a [divorce]. However, if she chooses to, she can forgive him for that and the contract will remain valid.

This is what I understood from the class. It doesn't matter what type of mahr it is - i.e. monetary, qur'an, etc.

Wallahu a'lam.

A follow up from Abu Hamza reply..What he says from my understanding is right and the following...

If the husband does not give the amount of mahr that is normally given beforehand, the wife has the right to refuse him to engage in sexual intercourse with her until he pays that amount. If they engaged in intercourse once, she still has the right of refusing him the next time or the following time if he does not pay the mahr. If he wishes to take her to another city or country, she has the right of not going unless her mahr is paid. Similarly, if the mahr is not paid and the woman wishes to travel to another city or country, or wishes to go to her parents home, and there is a mahram who can take her, then the husband does not have the right to stop her. But once he pays the mahr, she does not have the right to do any of these things without her husband's permission. It is not permissible for her to go anywhere without his consent. As for the husband, he can take her wherever he wishes. It is not permissible for her to refuse him.

[alisalaah]

jazakallahu khair, i learned something... alhamdulilah who has given us a perfect way of life

[Abu_Hamza]

Assalamu alaikum wa rahmatullah,

I did a search on Google for the portion of Tazkiyah's post quoted below. It seems to be taken from the book Bahishti Zevar. You can find it in the chapter of Nikah, in the section of Mahr, paragraph #19.

[MOD EDIT: Link removed]

Just for y'all's information.

Wallahu a'lam.



If the husband does not give the amount of mahr that is normally given beforehand, the wife has the right to refuse him to engage in sexual intercourse with her until he pays that amount. If they engaged in intercourse once, she still has the right of refusing him the next time or the following time if he does not pay the mahr. If he wishes to take her to another city or country, she has the right of not going unless her mahr is paid. Similarly, if the mahr is not paid and the woman wishes to travel to another city or country, or wishes to go to her parents home, and there is a mahram who can take her, then the husband does not have the right to stop her. But once he pays the mahr, she does not have the right to do any of these things without her husband's permission. It is not permissible for her to go anywhere without his consent. As for the husband, he can take her wherever he wishes. It is not permissible for her to refuse him.

[Nazia Awan]

Assalaamu'alaikum Wa Rahmatullah,

I can see my post being deleted, but I'll still ask:

Since somebody brought up the book Bahishti Zevar, I was wondering about it's authenticity? When I went to Pakistan, my cousin told me I had to buy the book (along with "A Gift for Women"). However, there were some parts in the book that were very different, for example, the style of praying. The book explains the 2 very different ways of praying for men and women, and SUBHANALLAH, when I first came to U of H, this was the confusion of my life. Why are men and women praying the same?

Is it in the fiqh of Imam Abu Hanifah that states a man and woman must pray differently?

If you know, please help.

Wasalaamu'alaikum Wa Rahmatullah

[Abu Ubaydah]

Assalaamu'alaikum Wa Rahmatullah,

...

Is it in the fiqh of Imam Abu Hanifah that states a man and woman must pray differently?

Wa 'alaykum as salaam wa rahmatu Allahi wa barakaatuh,

The Fiqh of the madhab of Imam Abu Haneefah regarding the prayer of women is different then that of men.

It is based, mostly, on the practice of the Sahabiyyat and the verdicts of the Sahabah that the scholars of Ahnaaf consider to be authentic. Also, they have statements of various scholars - in fact, the book that I was reading quoted statements from Imam Ahmad as reported in Ibn Qudaamah's al-Mughni - supporting such differences.

Basically, all the differences revolve around the assertion that women should perform the Salaah in such a way that it is more concealing for them and in turn more modest - so, they ask them to draw closer in Sajdah and tashahhud etc. A good read on their Fiqh with their proofs is "The Salaah of the Believer in the Qur'aan and Sunnah" by Shaykh Abu Yusuf Riyadhul Haq.

After reading this book, it seems most of the proofs are from the statements of the Sahabah, Tabioon and the scholars of the later generations. It must also be noted that I've no idea as to the authenticity of any of these statements as they are mostly quoted from classical works of Hanafi Fiqh. As to what that implies regarding the position of the Ahnaaf, Allahu 'Alam. I've no clue. But, they have the differences in the Fiqh and it is not something that people just attribute to them.

Jazakum Allahu Khairan
Was salaam 'alaykum wa rahmatu Allahi wa barakaatuh

[Nazia Awan]

Assalaamu'alaikum Wa Rahmatullah,

JazakAllah Khair brother. I will check out that book in shaa Allah, as this issue has been bothering me for quite some time.

When you say "his books", are you referring to Abu Yusuf Riyadhul Haq? What other books have you read by him?

One of my friends had 2 lectures by him. One lecture was solely dedicated to the legacy of 'Abdullah ibn Mas'ood simply because of the confusion of takbeerat (or the lack of) in the prayer of the Hanafi Madhab. Ma shaa Allah, it was an outstanding lecture and very informative, and at the end he stated the hadith where 'Abdullah ibn Mas'ood (ra) reported that the Prophet (saw) prayed and did not do takbeerat more than once.

wAllahu 'Alam.

Wasalaamu'alaikum Wa Rahmatullah

[Abu Ubaydah]

Wa 'alaykum as salaam wa rahmatu Allahi wa barakaatuh,

Wa iyyakee.

Regarding what I said about "his books," I apologize, that is a typo. I meant to say "this book" rather than "his books." I corrected it in my initial post.

In anycase, I have not read any of his other books. But, as you pointed out, he seems very knowledgeable in what he speaks about and he does back up his statements with Qur'aan and Sunnah, alhamdulillah. He is alhamdulillah an excellent speaker - I've heard some other tapes of his.

I looked in this another book I've on Hanafi Fiqh: the Sharh of Muwatta Imam Maalik by Imam Muhammad ibn al-Hasan ash-Shaybaani and Imam Muhammad does not address this issue at all - may be because it is just a Sharh of the Muwatta.

However, I had spoken with a local Hanafi shaykh (or mufti) sometime ago regarding this when I was talking to my sister about it and he had promised to give me the detailed proofs for this. Insha'Allah, I can post them here once I get them from him.

Jazakum Allahu Khairan
Was salaam 'alaykum wa rahmatu Allahi wa barakaatuh

[alisalaah]

A follow up from Abu Hamza reply..What he says from my understanding is right and the following...

If the husband does not give the amount of mahr that is normally given beforehand, the wife has the right to refuse him to engage in sexual intercourse with her until he pays that amount. If they engaged in intercourse once, she still has the right of refusing him the next time or the following time if he does not pay the mahr. If he wishes to take her to another city or country, she has the right of not going unless her mahr is paid. Similarly, if the mahr is not paid and the woman wishes to travel to another city or country, or wishes to go to her parents home, and there is a mahram who can take her, then the husband does not have the right to stop her. But once he pays the mahr, she does not have the right to do any of these things without her husband's permission. It is not permissible for her to go anywhere without his consent. As for the husband, he can take her wherever he wishes. It is not permissible for her to refuse him.
follow up question... if a couple had been married two years and the mahr was to bring his wife on hajj the first year of the marriage... they both have not went on hajj yet. Can she annul the marriage if she wants to now?

[Tazkiyah]

follow up question... if a couple had been married two years and the mahr was to bring his wife on hajj the first year of the marriage... they both have not went on hajj yet. Can she annul the marriage if she wants to now?
According to Hanafi Fiqh if the husband is unable to pay the mahr the wife is not entitled to divorce. Imam Malik..Imam Shafi..Imam Ahmed have different views but I am not familer with the other views.

and Allah Ta'ala Knows Best

[AbdulHasib]

A follow up from Abu Hamza reply..What he says from my understanding is right and the following...

If the husband does not give the amount of mahr that is normally given beforehand, the wife has the right to refuse him to engage in sexual intercourse with her until he pays that amount. If they engaged in intercourse once, she still has the right of refusing him the next time or the following time if he does not pay the mahr. If he wishes to take her to another city or country, she has the right of not going unless her mahr is paid. Similarly, if the mahr is not paid and the woman wishes to travel to another city or country, or wishes to go to her parents home, and there is a mahram who can take her, then the husband does not have the right to stop her. But once he pays the mahr, she does not have the right to do any of these things without her husband's permission. It is not permissible for her to go anywhere without his consent. As for the husband, he can take her wherever he wishes. It is not permissible for her to refuse him.
Assalaamu'alaikum wa rahmatAllah akhi,

What are the proofs from the Ahnaaf if this is the opinion?
I couldn't find them in the link the brother provided,

is it Qiyaas taking in terms that the husband did not pay the mahr so the wife has a legal right to the mahr thus when the mahr is paid the consummation of marriage is then allowable but if not, the woman still has full right?
What are the evidences? Just to complete my notes inshAllah, since the shiekh didn't mention this in class...

WAllahu A'lam

[AbdulHasib]

Assalaamu'alaikum wa rahmatAllah akhi,

What are the proofs from the Ahnaaf if this is the opinion?
I couldn't find them in the link the brother provided,

is it Qiyaas taking in terms that the husband did not pay the mahr so the wife has a legal right to the mahr thus when the mahr is paid the consummation of marriage is then allowable but if not, the woman still has full right?
What are the evidences? Just to complete my notes inshAllah, since the shiekh didn't mention this in class...

WAllahu A'lamI found the answer (partially) in the website:

"The Wife's Right to Refuse Her Conjugal Society

There is consensus among the schools that the wife, simply after the creation of the contract, has the right to demand her full specified dowry immediately and to refuse her conjugal society until the dowry is paid. But, if she agrees once willingly without demanding the dowry, she loses her right of refusal; all concur on this issue except Abu Hanifah. He notes: She has the right to refuse even after surrender. Abu Hanifah's disciples, Muhammad and Abu Yúsuf dissent.

The wife is entitled to receive maintenance if she refuses her conjugal society until the payment of Dowry; because her refusal in such a case is legally valid. But if she refuses to fulfill her conjugal duties after receiving Dowry or after voluntary surrender, she shall not be entitled to maintenance except according to Abu Hanifah.

If the wife be a minor unfit for marital relations and the husband an adult, it is up to her guardianto demand the Dowry; it is not necessary that he wait until her maturity. Similarly, if the wife be a major and the husband a minor, the wife has the right to demand the Dowry from his guardian, and it is not necessary for her to wait until his maturity.

The Imámi and the Sháfi`í schools state: If a dispute arises between the couple, with the wife refusing to surrender until payment of Dowry and the husband refusing payment until her surrender, the husband shall be compelled to deposit the Dowry with a trustee and the wife will be asked to surrender. Then if she surrenders, she shall receive her Dowry and be entitled to maintenance. But if she refuses, she shall not receive the Dowry and will not be entitled to any maintenance. If the husband refuses to deposit the Dowry, he will be ordered by a judge to pay her maintenance on her demanding it.

The Hanafi and the Maliki schools state: The payment of Dowry has precedence over the woman's surrender, and the man may not say, "I will not pay the Dowry until she surrenders". If he insists on this, he shall be ordered to pay her maintenance, and if she, after receiving the Dowry, refuses her conjugal society, the husband is not entitled to recover it.

According to the \anbalí school, the husband shall be first compelled to pay the Dowry.

This opinion concurs with the Hanafi view except that according to the \anbalís, if she refuses her conjugal society after receiving the Dowry, he has the right to recover it from her. (Maqsad al-nabíh, Majma` al- 'anhur, and al-Fiqh `alá al-madháhib al- 'arba`ah) "

[MOD EDIT: Link removed]

ok but does this indicate that the a'imma used qiyaas or the site fails to mention the evidences?

WAllahu A'lam

[Tazkiyah]

I found the answer (partially) in the website:

"The Wife's Right to Refuse Her Conjugal Society
There is consensus among the schools that the wife, simply after the creation of the contract, has the right to demand her full specified dowry immediately and to refuse her conjugal society until the dowry is paid. But, if she agrees once willingly without demanding the dowry, she loses her right of refusal; all concur on this issue except Abu Hanifah. He notes: She has the right to refuse even after surrender. Abu Hanifah's disciples, Muhammad and Abu Yúsuf dissent.
The wife is entitled to receive maintenance if she refuses her conjugal society until the payment of Dowry; because her refusal in such a case is legally valid. But if she refuses to fulfill her conjugal duties after receiving Dowry or after voluntary surrender, she shall not be entitled to maintenance except according to Abu Hanifah.
If the wife be a minor unfit for marital relations and the husband an adult, it is up to her guardianto demand the Dowry; it is not necessary that he wait until her maturity. Similarly, if the wife be a major and the husband a minor, the wife has the right to demand the Dowry from his guardian, and it is not necessary for her to wait until his maturity.
The Imámi and the Sháfi`í schools state: If a dispute arises between the couple, with the wife refusing to surrender until payment of Dowry and the husband refusing payment until her surrender, the husband shall be compelled to deposit the Dowry with a trustee and the wife will be asked to surrender. Then if she surrenders, she shall receive her Dowry and be entitled to maintenance. But if she refuses, she shall not receive the Dowry and will not be entitled to any maintenance. If the husband refuses to deposit the Dowry, he will be ordered by a judge to pay her maintenance on her demanding it.
The Hanafi and the Maliki schools state: The payment of Dowry has precedence over the woman's surrender, and the man may not say, "I will not pay the Dowry until she surrenders". If he insists on this, he shall be ordered to pay her maintenance, and if she, after receiving the Dowry, refuses her conjugal society, the husband is not entitled to recover it.
According to the \anbalí school, the husband shall be first compelled to pay the Dowry.
This opinion concurs with the Hanafi view except that according to the \anbalís, if she refuses her conjugal society after receiving the Dowry, he has the right to recover it from her. (Maqsad al-nabíh, Majma` al- 'anhur, and al-Fiqh `alá al-madháhib al- 'arba`ah) "



[MOD EDIT: Links removed]


ok but does this indicate that the a'imma used qiyaas or the site fails to mention the evidences?

WAllahu A'lamQiyaas is used.. there isn't much evidences to show. If you can find evidences definetly show me. That would be of great help.

[Abu Ubaydah]

However, I had spoken with a local Hanafi shaykh (or mufti) sometime ago regarding this when I was talking to my sister about it and he had promised to give me the detailed proofs for this. Insha'Allah, I can post them here once I get them from him. As salaam 'alaykum wa rahmatu Allahi wa barakaatuh,

I know this is reviving an old thread and kind of off topic but, as stated above, I had promised to post the following details in this thread earlier. May be the friendly admin can move out the related posts into Fiqh al-'Ibaadah folder?

Here is what I was given by the shaykh. Following are from al-Musannaf li-ibn Abee Shaybaa. Al-Musannaf is a classical work of Hanafee Fiqh. However, please do note that all the quotes provided are from the companions radi Allahu 'anhum.

[MOD EDIT: Link removed]

المصنف (http://feqh.al-islam.com/Bookhier.asp?Mode=0&DocID=4&MaksamID=1) > كتاب الصلاة (http://feqh.al-islam.com/Bookhier.asp?Mode=0&DocID=4&MaksamID=240) > في المرأة إذا افتتحت الصلاة إلى أين ترفع يديها

في المرأة إذا افتتحت الصلاة إلى أين ترفع يديها‏
‏( 1 ) حدثنا أبو بكر قال نا إسماعيل بن عياش عن عبد ربه بن زيتون قال رأيت أم الدرداء ترفع كفيها حذو منكبيها حين تفتتح الصلاة فإذا قال الإمام سمع الله لمن حمده رفعت يديها قالت اللهم ربنا لك الحمد‏.‏
‏‏( 2 ) حدثنا هشيم قال أنا شيخ لنا قال سمعت عطاء سئل عن المرأة كيف ترفع يديها في الصلاة قال حذو ثدييها‏.‏
‏( 3 ) حدثنا رواد بن الجراح عن الأوزاعي عن الزهري قال ترفع يديها حذو منكبيها.‏
‏( 4 ) حدثنا خالد بن حيان عن عيسى بن كثير عن حماد أنه كان يقول في المرأة إذا استفتحت الصلاة ترفع يديها إلى ثدييها .‏
‏( 5 )‏ حدثنا محمد بن بكر عن ابن جريج قال قلت لعطاء تشير المرأة بيديها بالتكبير كالرجل قال لا ترفع بذلك يديها كالرجل وأشار فخفض يديه جدا وجمعهما إليه جدا وقال إن للمرأة هيئة ليست للرجل وإن تركت ذلك فلا حرج .‏
‏( 6 ) حدثنا يونس بن محمد قال حدثني يحيى بن ميمون قال حدثني عاصم الأحول قال رأيت حفصة بنت سيرين كبرت في الصلاة وأومأت حذو ثدييها ووصف يحيى فرفع يديه جمعا.‏

I'll do a rough translation based on what the shaykh told me and little understanding of Arabic. It is a very rough translation - way too rough!

Above is the chapter in al-Musannaf: when a women begins prayer, upto where should she raise her hands.

1. Abd Rabbih Ibn Zaitoon: I saw Umm Darda radi Allahu 'anha raise her hands to her shoulders when she began her prayer...
2. Ata was asked how when a woman should raise her hands in the prayer and he said, she should raise it up to her chest.
3. 'Awzai: She should raise her hands up to her shoulders.
4. Hammad (teacher of Abu Hanifa): She should raise her hands up to her chest.
5. Ibnu Juraij: I asked 'Ata about women raising their hands and he said it is not like men. 'Ata said it is different but if she omits it, then it is fine.
6. 'Asim al-Ahwal said that he saw Hafsah bintu Seereen begin praying and she raised her hands keeping them close to her body (basically I think that's what it means).

If somebody can actually translate it, please do so. It will be of much benefit.

Following is another chapter on how a woman should be in Sajdah.

المصنف > كتاب الصلاة > المرأة كيف تكون في سجودها

‏( 43 ) المرأة كيف تكون في سجودها ؟
‏( 1 ) حدثنا أبو بكر قال : حدثنا أبو الأحوص عن أبي إسحاق عن الحارث عن علي قال : إذا سجدت المرأة فلتحتفر ولتضم فخذيها .‏
‏( 2 ) حدثنا أبو بكر قال : نا أبو عبد الرحمن المقري عن سعيد بن أيوب عن يزيد بن حبيب عن بكير بن عبد الله بن الأشج عن ابن عباس أنه سئل عن صلاة المرأة فقال : تجتمع وتحتفر .‏
‏( 3 ) حدثنا أبو بكر قال : نا أبو الأحوص عن مغيرة عن إبراهيم قال : إذا سجدت المرأة فلتضم فخذيها ولتضع بطنها عليهما .‏
‏( 4 ) حدثنا أبو بكر قال : نا جرير عن ليث عن مجاهد أنه كان يكره أن يضع الرجل بطنه على فخذيه إذا سجد كما تضع المرأة
‏( 5 ) حدثنا أبو بكر قال : نا ابن مبارك عن هشام عن الحسن قال : المرأة تضطم في السجود .‏
‏( 6 ) حدثنا أبو بكر قال : نا وكيع عن سفيان عن منصور عن إبراهيم قال : إذا سجدت المرأة فلتلزق بطنها بفخذيها ولا ترفع عجيزتها ولا تجافي كما يجافي الرجل


Somebody can insha'Allah translate it. It is a little late now. If nobody does it, then I'll give it a try tomorrow - but somebody else can do a much better job insha'Allah. Just to give the readers an idea, it basically states that a woman should draw herself close when bowing in the Sajdah and differ from men.

wa Allahu 'Alam.

Also, please note, I have no clue about the authenticity of these statements. They are just found in al-Musannaf which is a classical Hanafi book of Fiqh. It is also to be noted that Imam Abu Bakr Ibn Abee Shaybah is one of the well respected and well known Hanafee Fuqahaa.

Also, regarding the differences in prayer between men and women, Imam al-Bayhaqi has mentioned a principle which forms the basis of such differences.

He says:

"The separating factor between the laws of salah of males and females is that of concealment . A woman is commanded to do all those actions which are more concealing for her. " (as-Sunan al-Kubra alil-Bayhaqi: vol. 2 p 222).

wa Allahu 'Alam.

Finally, I would like to add one point. As we tend to get a little emotional sometimes, I think it is important to note that I'm not taking any sides. So, please keep that in mind before replying.

Also, I think the issue is far more complex than just pointing out certain things in one book. It is very interesting to read Sh. Albani's book and read his commentary on some of the sayings used here. Furthermore, it is very interesting as well to read the contemporary Hanafi students of knowledge and their commentary on the same ahaadeeth that Sh. Albani uses. So, the issue is a lot more complex and I just wanted to remind all of us about that. Let us keep our conversations civil insha'Allah.

Jazakum Allahu Khairan
Was salaam 'alaykum wa rahmatu Allahi wa barakaatuh

[Nazia Awan]

Assalaamu'alaikum,

JazakAllahu Khair, that was very beneficial! I'm looking forward to the translations, in shaa Allah.

[Abu Ubaydah]

If nobody does it, then I'll give it a try tomorrow - but somebody else can do a much better job insha'Allah. I was going to attempt to translate the second paragraph in my previous post but I can't find suitable/modest words for an accurate translation. Insha'Allah, somebody else with a better command of both the languages can do it.

Jazakum Allahu Khairan
Was salaam 'alaykum wa rahmatu Allahi wa barakaatuh