This post has been contributed by Professor Mashood A. Baderin, Module Convenor for Introduction to Islamic law.
The above media report stated that at a nikāh ceremony in Nigeria held on 15 February 2020, the bride rejected the dower (mahr) offered by the groom and requested instead that the groom should promise her not to marry another wife while their marriage subsisted. The bride’s request took the groom by surprise as this has, apparently, not been discussed with him before the nikāh ceremony. The groom eventually consulted with his parents and thereafter accepted to make the promise requested by the bride as substitute for the mahr. This interesting scenario raises four possible legal questions under Islamic family law as follows:
1. Can the bride legally waive the mahr?
The mahr is an enjoined legal obligation on the husband and a legally claimable right of the wife. It is an essential condition of a marriage under Islamic law and cannot be legally waived or rejected by the bride. However, the bride can of her own good pleasure remit it back to the husband after receiving it. This is reflected in Q4:4 – “And give women [upon marriage] their dower as an outright gift but if they, of their own good pleasure, remit any part of it to you, then take it and enjoy it with satisfaction and pleasure”. This is reflected in both classical Islamic jurisprudence and in the modern Family Codes in Muslim-majority countries today.
2. Is the nikāh still valid where the bride rejects the mahr?
According to the majority of jurists, the rejection of the mahr by the bride during the nikāh would not invalidate the nikāh. The nikāh is still valid and the groom would be legally entitled to a standard mahr (mahr mithl). However, Imam Malik is of the view that the marriage would not be valid if the mahr is expressly excluded from it. As Nigeria is a predominantly Maliki jurisdiction, the bride would have to accept a standard mahr (mahr mithr), otherwise the nikāh would be invalid under Maliki jurisprudence.
3. Can the mahr be substituted by the groom’s promise not to marry another wife?
Under classical Islamic jurisprudence, the mahr must be in money, some tangible property or service of value which must be in existence at the time of the marriage contract. Speculations such as future produce of certain trees or lands or what may be in the womb of flocks are not legitimate objects of mahr. While a promise that the husband would not take another wife could be a valid stipulation in a marriage contract, it cannot replace the mahr, and the bride would be entitled to a standard mahr. However, article 28 of the Morocco Family Code (Mudawwanah) 2004 states that “Anything that constitutes a source of legal commitment can serve as dower”, so it could be argued that under this Code, such a promise being a “legal commitment” can serve as mahr.
4. What is the legal consequence of the groom’s promise not to marry another wife?
The groom’s promise not to take another wife constitutes a stipulation in the marriage contract. The permissibility of stipulations in a marriage contract is validated by reference to Q34:17 “And fulfil the promises because every promise will be enquired into”. However, the jurists disagree on the scope of valid and invalid stipulations in a marriage contract. One of such areas of disagreement is on whether a stipulation that a husband would not take another wife is a valid stipulation. The Hanbali jurists consider such stipulation as valid and the wife can request for judicial dissolution of the marriage if the husband violates his promise. This position is adopted in some modern Muslim Family Codes such as article 37(a) of the Jordan Personal Status Law, 2010, which provides that “If the wife inserts a stipulation on her husband … not to marry another wife apart from her …; these are valid stipulations. However, such a stipulation is considered invalid under classical Hanafi jurisprudence and the Maliki jurists also consider it as an improper stipulation that would not be binding on the husband if it causes him hardship.