Does a wife's right to seek dissolution of marriage (Faskh) due to non-consummation lapse if she refrains from demanding it after it becomes obligatory?
General Chapter
Al-Mughni
Book of the Oath of Abstention (Ila')
Primary text
One opinion among our associates states that the wife's right to demand dissolution of marriage lapses if she refrains from demanding it after the right has been established. This view aligns with the established school position, as her forbearance implies consent to relinquish the right to dissolution based on the non-consummation, similar to a wife agreeing to the husband's impotence (in the context of 'in'an).
Supporting text
An alternative view holds that her right does not lapse, and she may demand dissolution whenever she wishes. This is the position of Al-Shafi'i. The evidence supporting this is that the right is established to prevent harm arising from a continuing situation, granting her the right to revert, analogous to a case where she refrains from demanding dissolution due to lack of maintenance payments but later demands it. Furthermore, because the dissolution due to non-consummation is based on a defect, if she consents to the defect, her right falls, similar to a buyer waiving the right concerning a defect in purchased goods. If she remains silent about the demand and later asserts it, she maintains that right because the right is established on a deferred basis and is not negated merely by delaying the demand, similar to the entitlement to maintenance.