Does a husband have the right to recover the dowry (mahr) paid if the marriage is nullified due to deception regarding the wife's status (e.g., being a free woman)?
General Chapter
Al-Mughni
Book of Marriage
Primary text
The primary opinion dictates that the husband must be reimbursed for the dowry he paid when deceived. This view is adopted by Al-Khiraqi and one narration from Ahmad. It is also the position held by Al-Shafi'i in his earlier legal opinions (Qadim). The evidence supporting this is based on the precedents set by 'Umar, 'Ali, and Ibn 'Abbas. Furthermore, it is argued that the contracting party guaranteed the validity of the sexual intercourse (watu'), just as they guaranteed the status of the child, thus the reimbursement should cover both the value of the child and the dowry.
Supporting text
A dissenting view, chosen by Abu Bakr, states that the husband does not recover the dowry. This view is held by Al-Thawri, Abu Thawr, the People of Opinion (Ashaab ar-Ra'y), and Al-Shafi'i in his later opinions (Jadid). The rationale is that the dowry was obligated in exchange for a benefit received, namely the consummation, and if that benefit is not fully compensable in the specific context, it cannot be recovered, similar to purchasing a usurped item and consuming it. However, this reasoning does not apply to the value of the child, as the child's freedom belongs to the child, not the father.