What is the ruling if a pregnant female slave was given as dower and subsequently gives birth?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
If a pregnant female slave was designated as dower and subsequently gives birth, the husband has essentially contracted for both the slave and her child. If divorce occurs and the wife agrees to surrender half the value of both the mother and the child, the husband is compelled to accept this division because the child represents an indistinguishable increase in his possession. If she does not consent to the division, the husband cannot retract his claim on half of the mother due to the impossibility of separating her from her offspring, nor can he retract his claim on half of the child due to its subsequent increase in her possession after the contract. He is entitled to half the value of the mother.
Supporting text
There are differing opinions regarding entitlement to half the value of the child. One view states the husband is not entitled to half the child's value because it had no inherent value at the time of the contract, and its current value is an increase in her possession after the contract, which the husband cannot claim. Another view holds that he is entitled to half the value because he contracted for two entities (mother and child) and cannot retract on one without the other, and the child's value is assessed at the time of separation, as that is the first time its value can be definitively assessed. A third view is that the fetus/child has no legal standing [in the initial dower contract], rendering it equivalent to an event occurring after the contract.