What is the ruling when the wife disposes of the dowry through a non-binding contract that does not transfer ownership?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
Dispositions that are non-binding and do not transfer ownership, such as bequests (Wasiyyah), partnership (Shirakah), or profit-sharing management (Mudharabah), do not invalidate the husband's right to reclaim half of the asset, rendering the disposition as if it never occurred because it did not transfer ownership nor prevent the owner from disposing of it, similar to a deposit (Iida') or a loan for use ('Ariyah).
Supporting text
If the wife designates the asset for manumission upon her death (Tadbir), the apparent ruling of the school is that this does not prevent the husband's right to reclaim, as it is either a bequest or the suspension of half the asset, neither of which prevents reclamation, and it does not prevent sale, unlike a bequest. The husband is not compelled to reclaim half the asset itself, but rather has the choice between reclaiming half the asset in its diminished state or taking half its value, because a shared status regarding a Tadbir might lead to legal complications in a Hanafi court regarding its manumission. If the asset is a female slave (Ama), the ruling depends on two narrations: if she is sold for debt, she is treated like a male slave; if she is not sold for debt, the husband is not compelled to reclaim half of her. If the female or male slave enters into a Kitabah contract, the husband is not compelled to reclaim half of the slave if the Kitabah constitutes a diminution of value. If the husband chooses reclamation, and the Kitabah is deemed to prevent sale, reclamation is prevented. If the Kitabah is deemed not to prevent sale, it is uncertain: it might not prevent reclamation like Tadbir, or it might prevent it because Kitabah is a binding contract intended to remove ownership, thus preventing reclamation like a pledge.