What is the ruling regarding a wife's right to seek dissolution (Faskh) of marriage due to the husband's inability to pay the deferred dowry (Mahr)?
General Chapter
Al-Mughni
Book of Maintenance (Nafaqāt)
Primary text
The soundest opinion is that the wife does not have the right to seek dissolution of the marriage due to the husband's inability to pay the deferred dowry. This position is chosen by Ibn Hamid. The primary evidence supporting this is that the dowry is a debt, and inability to pay a debt does not dissolve a marriage contract, analogous to past maintenance payments (Nafaqah Madiyyah). Furthermore, delaying payment of the dowry does not cause an overwhelming harm that necessitates dissolution, unlike mandatory expenses such as the maintenance for a servant or past maintenance which are essential. There is no specific religious text sanctioning dissolution based on insolvency regarding the dowry. It is incorrect to draw an analogy with the price of a sold item because the price is the primary objective of the seller and is usually paid immediately, whereas the dowry is a gift or an excess amount (Fadhlah wa Nuhlah) that is not the core objective of the marriage contract, evidenced by the marriage remaining valid even if the dowry is not mentioned or if it is invalid. Custom dictates deferring it. Unlike a buyer who contracts for an immediate price, it is not typical for a husband marrying with a dowry to be solvent for it immediately. The situation is most analogous to past maintenance payments, as the necessity of maintenance cannot be averted otherwise, unlike the dowry.
Supporting text
There are two alternative views. The second view states that the wife has the right to seek dissolution, supported by the opinion of Abu Bakr. This is argued because when the counter-value (Mahr) is defaulted upon, the wife has the right to reclaim the subject of the contract, similar to when a seller cannot retrieve the sold item due to the buyer's insolvency regarding the price. The third view differentiates based on when the inability occurs: if the husband becomes insolvent before consummation (Dukhul), the wife may seek dissolution, like a buyer defaulting before the sale is finalized. However, if this occurs after consummation, she cannot seek dissolution because the object of the contract has been fulfilled, similar to a buyer defaulting after the item sold is destroyed or partially consumed.