What is the ruling regarding the wife's disposition of the dowry (Sadaq) after an irrevocable divorce (Talaq) before consummation, when the disposition removes ownership from the principal asset?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
If the wife disposes of the dowry by a contract that removes ownership from the principal asset, such as sale, gift, or manumission (Ataq), this prevents the husband from reclaiming the asset, and he is entitled to half of its value. This ruling is based on the removal of her ownership and the cessation of her ability to deal with the asset. If the asset returns to her possession before the divorce, the husband may reclaim half of the asset itself, as he finds it in its original state, analogous to a case where the asset was never removed from her possession. This differs from a father's gift to his son, where if the gifted item leaves and returns to the son, the father cannot reclaim it, as the father's right is entirely forfeited upon the item leaving the son's possession, evidenced by the father not being required to demand its return. The husband's right is not entirely forfeited, as he may claim half the value if the asset is unavailable. If the asset is available, reclaiming the asset itself is preferable. Pledging (Rahn) and conditional manumission (Kitabah) are considered analogous to these dispositions because pledging is intended for sale (which removes ownership), and Kitabah is intended for manumission (which removes ownership); thus, reclaiming the original asset would invalidate the lien holder's right in the case of Rahn, and Kitabah is a binding contract. If the divorce occurs before the acceptance of the gift or pledge, or during the option period of a sale, there are two views: one holds that she is not compelled to return half of it because she contracted regarding her property, and since ownership has left, she cannot reclaim what is no longer hers, similar to a binding contract. The second view holds that she is compelled to surrender half of it because she is capable of doing so, and there is no increase or decrease in that obligation. Al-Shafi'i holds two opinions corresponding to these two views. If the divorce occurs after the acceptance of the gift or pledge, or after the finalization of the sale, and the husband has not yet taken the value of half the asset, he cannot reclaim half of the asset itself, but his right is established in its value.
Supporting text
If the divorce occurs before the wife accepts the gift or pledge, or during the option period in a sale, another view states that she is compelled to surrender half of the asset because she is capable of doing so, and this is an unconditional obligation.