What is the financial recourse for the first husband if the wife chooses him over the second husband?
General Chapter
Al-Mughni
Book of Waiting Periods ('Iddah)
Primary text
If the first husband chooses the wife after the second husband contracted marriage with her, the first husband has the right to reclaim the dowry (Sadaq) from the second husband. This ruling is based on the rulings (Qada') of the Companions (Sahaba) and because the second husband prevented the first husband from his rights through the contract and consummation. A famous opinion, attributed to Abu Bakr, al-Hasan, al-Zuhri, Qatada, and 'Ali ibn al-Madini, holds that the first husband recovers the exact dowry he stipulated for her. This is evidenced by the ruling of 'Ali and 'Uthman, who gave the choice between the wife or the dowry stipulated by the first husband. This is analogized to a witness to divorce retracting their testimony, as the second husband caused the forfeiture of the benefit (the wife) for the first, requiring recompense in value. Consequently, if the first husband had not paid the dowry to the wife, he recovers nothing; if he paid some, he recovers what he paid.
Supporting text
An alternative view suggests the first husband recovers the dowry stipulated by the second husband, as the impediment (impairment of the wife's intimacy/virginity - Bida') originated from the second husband, requiring compensation based on its value, which is only assessable through the marital relation. Therefore, the second stipulated dowry is due, not the first. Furthermore, there is a dispute regarding whether the second husband can recover from the wife what he paid her. One narration states he can, as it is a financial burden incurred due to his consummation, similar to a situation involving deception (Maghrur). The second narration, considered more apparent, states he cannot recover from her, as the Companions did not rule for such recovery.