Consequences when a free woman purchases her husband (who is a slave) or acquires him through gift or other means.
General Chapter
Al-Mughni
Book of Marriage
Primary text
If a free woman purchases her husband (a slave), or acquires him through a gift or other means, the marriage is dissolved because the right of marriage (nikah) and the right of ownership of a captive (milku al-yamin) are incompatible, as it is impossible for a person to own their own owner. Furthermore, conflicting claims arise: the wife demands maintenance because she is his wife, and she claims the right to travel with him because he is her slave, while he demands maintenance because he is her slave, and he claims the right to travel with her because she is his wife. The stronger right, ownership of the captive, prevails, and the marriage is dissolved as the weaker contract. She is entitled to the dower if consummation occurred, and he is entitled to the purchase price. If both claims are debts of the same kind, they offset each other; if unequal, the lesser is canceled by the equal part of the greater, and the remainder stands. If the types of claims differ, they do not offset, and each must deliver what is due to the other.
Supporting text
Al-Shafi'i, in one narration, holds that her dower is nullified because it becomes a debt in the slave's liability, and it is impermissible for her to establish a debt against her own slave. This relies on the premise that the dower is tied to the slave's liability, whereas the established view is that it is tied to the master's liability, meaning the slave's subsequent ownership does not nullify it. Another view suggests it is nullified because the liability rests on the master as a consequence of the slave's liability, similar to a guarantor's debt being dropped if the principal debtor's obligation lapses. However, the established position is that the dower is not nullified after consummation. If the purchase occurs before consummation, half the dower is dropped, similar to divorce before entry. There are two views on whether the remaining half is dropped: one says no, as the nullification stems from the seller's action (the slave becoming her property), and the other says yes, as the nullification is completed by the woman's purchase, resembling dissolution due to a defect.