Does the option to annul a marriage due to a defect exist for either spouse?
Chapter on Marriage of Polytheists
Al-Mughni
Book of Marriage
Primary text
The option to annul the marriage contract due to a defect found in the spouse is established for both parties generally. This opinion is narrated from Umar ibn al-Khattab, his son, and Ibn Abbas. It is also the position held by Jabir ibn Zayd, Al-Shafi'i, and Ishaq. The evidence for establishing this option is that the disputed defect prevents consummation, thus establishing the option, similar to castration (jabb) or impotence (unn). Furthermore, the wife is one of the counter-values in the marriage contract, so she may be rejected due to a defect, similar to the dower (mahr). Alternatively, since the husband is one of the parties to the contract, the wife has the option due to a defect in the other party, similar to the case for the wife herself.
Supporting text
There are dissenting views. It is narrated from Ali that a free woman is not returned due to a defect. This view is held by Al-Nakha'i, Al-Thawri, and the Ashab al-Ra'i (Hanafi school jurists). Furthermore, Ibn Mas'ud held that the marriage is not annulled due to a defect, which is the position of Abu Hanifa and his companions. However, they make an exception: if the husband is castrated or impotent, the wife has the option. If she chooses separation, the judge separates them with a revocable divorce (*talqa*), and this separation is not considered an annulment (*faskh*), because the mere existence of the defect does not necessitate annulment, similar to blindness, paralysis, and other non-consummation-preventing defects.