Is the husband entitled to recover the dower (mahr) from the party who deceived him regarding defects in the wife?

Chapter on Marriage of Polytheists

Al-Mughni

Book of Marriage

Book 35 · Issue 1 · Bab 3

Open in Qurani

Primary text

The husband is entitled to recover the dower from the deceiver. This position is supported by Ahmad ibn Hanbal, who ultimately adopted the view of Umar, stating that if a man marries a woman with leprosy, vitiligo, or madness, and consummates the marriage, she is entitled to her dower, and her guardian (wali) is liable for the dower. This view is also held by Al-Zuhri, Qatadah, Malik, and Al-Shafi'i in his old opinion (al-Qadim). The evidence cited is the narration from Malik, based on Yahya ibn Sa'id, from Sa'id ibn al-Musayyab, who reported that 'Umar ibn Al-Khattab ruled: Any man who marries a woman afflicted with insanity, leprosy, or vitiligo, and has intimate relations with her, she is entitled to her dower, and this is a claim (ghurm) for her husband against her guardian.

Supporting text

A dissenting view, supported by 'Ali, Abu Hanifa, and Al-Shafi'i in his new opinion (al-Jadid), holds that the husband cannot recover the dower. The reasoning is that he has received the equivalent benefit, which is consummation (al-watu'), and therefore cannot seek recovery from another party, similar to someone who consumes a defective purchased item.