Does physical intimacy short of sexual intercourse, such as kissing or touching below the private parts without seclusion, obligate the full dowry (Sadaq)?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
The established opinion from Ahmad is that the full dowry is due if a man engages in physical intimacy with his wife, such as touching or embracing her, provided he has accessed something exclusively permissible to him but without seclusion. This ruling is based on the premise that any act establishing a forbidden relationship through affinity (musaharah) requires the full dower. This view is supported by the narration reported by Al-Daraqutni, from Muhammad ibn Abd al-Rahman ibn Thawban, where the Messenger of Allah, peace be upon him, stated: "Whoever uncovers a woman's veil and looks at her, the dowry becomes obligatory, whether he has consummated the marriage or not." Furthermore, this act is considered physical contact (masees) and thus falls under the meaning of the Almighty's saying, "before you have touched them" (Quran 2:237). It is also complete enjoyment of his wife, similar to sexual intercourse, thus necessitating the full dowry.
Supporting text
Another opinion, held by the majority of jurists, maintains that the full dowry is not completed by such acts. This is because the apparent meaning of "touching them" in the verse {before you have touched them} (Quran 2:236) refers to sexual intercourse. Consequently, the implication of the verse {And if you divorce them before you have touched them} (Quran 2:237) is that the full dowry is not due to one who has not had intercourse with her, nor is a waiting period incumbent upon her. The general scope concerning seclusion is restricted by the consensus (Ijima') from the Companions, leaving the remaining cases under the ruling derived from the general text.