What financial obligations arise regarding the dowries when a marriage is annulled due to the older wife breastfeeding the younger wife before consummation?

General Chapter

Al-Mughni

Book of Fosterage (Breastfeeding)

Book 45 · Issue 3 · Bab 1

Open in Qurani

Primary text

The husband owes the younger girl half of her stipulated dowry (Mahr al-Musamma). This is because her marriage was annulled before consummation, stemming from an external cause (the breastfeeding). Such annulment, when originating from a cause other than the wife's action, is treated like a divorce initiated by the husband concerning the dowry obligation. The older woman forfeits her dowry if consummation had not occurred because the annulment resulted from an action originating on her side, similar to if she committed apostasy. If consummation with the older woman had occurred, her dowry is established and not forfeited, as establishment via consummation is firm and is not invalidated by subsequent events like apostasy. The husband has the right to reclaim from the older woman the half dowry he paid for the younger girl. This is the view of Al-Shafi'i. The basis for this is that she caused him to pay that amount, and she destroyed the benefit he was entitled to in return, thus she must compensate him, similar to destroying sold goods. Since he is only reimbursed for what he actually paid (half the stipulated dowry), he only claims half of the stipulated dowry, not half the fair market value (Mahr al-Mithl).

Supporting text

Some of Al-Shafi'i's associates state he should reclaim the entire dowry of the younger girl because she destroyed the benefit of the marriage, warranting full compensation. The People of Opinion state that if the nursing mother intended corruption, he reclaims half the dowry; otherwise, he claims nothing. Malik states he reclaims nothing. The view favoring claiming half the stipulated dowry argues that the husband is compensated only for what he actually paid, and the loss of marital rights (Bida') has no measurable value, unlike property. If value were considered, he would claim the full Mahr al-Mithl, which is not limited to half. Furthermore, witnesses in a divorce case before consummation require the husband to pay half the stipulated amount, thus it should be similar here.