What Women can Stipulate Before
Marriage
Contract-II
by Shaykhu-l-Islaam Ibn Taymiyyah
(d. 728 AH / 1328 CE)
Translated by Yahya Adel Ibrahim Fatwa Contribution Number Four: Taken from the 32nd Volume, Page 164-165.
Source: islaam.net
He, Rahimahullah, was asked...
He was asked about a man who during
his pre-marriage negotiations was told that the bride to be stipulates
and puts as a condition in her prenuptial (pre-marriage) contract that
he is not to seek another wife while married to the her. As well, he was
not to take his wife (to be) out of her (own) home. He was also informed
that the wife (to be) had a young daughter and that she would be living
with her mother and him as long as she remained.
He entered into all of this knowingly. Is he bound to fulfill these
conditions/stipulations (later on in life). If he was to break one (or
more of) these conditions would the wife have the power to demand
annulment? Or is the answer no?
He (Rh) answered:
Alhamdulillah.
Yes, these conditions are valid as well as others that are similar to
them in the Madh’hab of al-Imam Ahmed and others from amongst the Sahâbah, Tabi‘een and those who followed them. (From those who
recognized such stipulations) were ‘Umar bin al-Khattab, ‘Amr bin
al-‘Aas, Shurayh the Judge, al-Awza‘i and Ishaq.
Due to this we see that during this era we have the Sidaqat (dowry
stipulations) of the People of Maghrib sanctioned these Shooroot because
they are (still) upon the understanding the Madh’hab of al-Awza‘i
from the days his Madh'hab governed them.
The Madh’hab of Malik validates a stipulation upon a man in which
it is stipulated that he is not to marry another women while in marriage
with the first (wife) or else she will be given the order (power) in her
hand (to annul the marriage). She would be given the power to separate
from him at her choice.
This position of Malik is similar in meaning to the position of
al-Imaam Ahmed.
These is (built upon) what has been reported by the two Shaykhs
(Bukhari and Muslim) that an-Nabi (saw) said: “The most deserving of conditions to
be honoured/fulfilled are those which the genitalia are deemed Halaal by
them (Marriage is built upon their acceptance).”
(Bukhari Eng: 3:882-O.B)
‘Umar bin al-Khattab (ra) said:
“The absolute rights are
(established with their) stipulations.”
As such we see that Rasul ul Allah
(saw) made the most deserving of conditions to be honoured/fulfilled are
those which sexual relations are built upon. They are deemed more
deserving than all other conditions. This narration is relevant to these
very matters (you are asking about). Since we know that according to the
Ijma‘ that the only conditions that are mentioned are as-Sidaq (dowry)
and verbal (agreement). This shows that these could be (some) of the
implied conditions (meant by Rasul ul Allah).
As for the stipulation of her child residing with her and that the
man is to provide for this child then this can be seen as an
increasement in her (demand) for Sidaq (dowry). [1]
If, at anytime, he does not fulfill her stipulations and marries another then
she can annul her marriage with him (when she wishes).
Footnote
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