What is the wife's entitlement if a prohibited or unknown dower is stipulated and the husband divorces her before consummation?
General Chapter
Al-Mughni
Book of Dowry (Mahr)
Primary text
If the dower is stipulated but void due to prohibition (like wine or an unknown item), and the husband divorces her before consummation, she is entitled to half of the *Mahr al-Mithl* (dower of the like in value). This is the position held by Malik, Al-Shafi'i, Abu Thawr, and the companions of Abu Hanifa, based on the principle that the invalidity of the counter-value requires returning the substituted item, and since the marriage cannot be returned, its value, the *Mahr al-Mithl*, must be returned. Therefore, half of the *Mahr al-Mithl* is due upon divorce before entry.
Supporting text
The companions of Abu Hanifa argue she is entitled only to *Mut'ah* (consolation gift), reasoning that if no dower was named, she gets *Mut'ah*, so the same applies to a void stipulation. Al-Kharqi distinguishes, granting half the *Mahr al-Mithl* for a void stipulation, but granting *Mut'ah* for a dower where the wife was granted no specific dower (*Muawwadah*), arguing that in the latter case, she accepted the marriage with no exchange, and her marital integrity remains intact.