What is the ruling regarding the dissolution of marriage before consummation when the wife possesses a hidden defect?
Chapter on Marriage of Polytheists
Al-Mughni
Book of Marriage
Primary text
If the dissolution (Faskh) occurs before consummation, the wife is not entitled to any Mahr (dower), regardless of whether the dissolution was initiated by the husband or the wife. This is the position held by Al-Shafi'i. If the dissolution originates from the wife, her right to Mahr is forfeited, analogous to her dissolving the marriage due to nursing relationship with another of the husband's wives. If the dissolution originates from the husband due to a defect in the wife that she concealed through misrepresentation, the dissolution is treated as if it originated from her.
Supporting text
If it is argued that the dissolution due to the defect should be treated as originating from the husband because it resulted from his misrepresentation (tadlis), the response is that the compensation (Mahr) from the husband is in exchange for her benefits (manafi'). If she chooses to dissolve the contract while the subject of the contract remains sound (i.e., the defect is established), the compensation returns to the contracting party with her. Her right to dissolution stems from harm inflicted upon her, not from the inability to obtain what she deserved in return for a compensation.