Ibn `Umar (may Allah be pleased with him) narrated: The Messenger of Allah (peace be upon him) said: "Do not urge somebody to return what he has already bought (i.e. in optional sale) from another seller so as to sell him your own goods, nor should one demand the hand of a girl who has already been engaged to someone else before her fiancé breaks up with her or gives him permission (because he has the intention to break up with her)." (1)
This forbiddance means prohibition according to the general scholars' opinions. So, whoever does that and the family of the girl accepts, his marriage shall be valid but he will be sinful because he violates the right of her first fiancé. (2)
As for his saying: (until the first fiancé breaks up with her), it means that the prohibition takes place if the fiancée or her guardian declares approval. However, if they refused the first fiancé or he breaks up the betrothal, the betrothal of the second fiancé will not be prohibited. Likewise, it is not prohibited for the second fiancé to ask a girl’s hand if he does not know about her betrothal or the first fiancé gives him permission (3).
Breaking up the betrothal:
Betrothal is a promise of marriage and not a binding contract upon which rights are built. So, if one of them breaks up the betrothal for an excuse or some purpose, he may do so. However, if there is no excuse or purpose, it will be reprehensible because it is breaking of a promise. It will not be prohibited because the right has not been binding upon them yet (4).
The ruling on the gifts that a fiancé gives during the betrothal period:
- Mahr (mandatory gift to a bride from her groom): If a fiancé gives Mahr to his fiancée, he has the right to take it back because Mahr becomes obligatory with the purpose of marriage and marriage was cancelled, therefore a fiancé has the right to take it back.
- Gifts: Scholars have differed regarding gifts according to the following views:
First: The Hanafi school of Fiqh said: Gifts should be returned if their conditions have not yet changed, such as bracelets, rings ...etc. However, if their conditions have changed by loss, selling, eating, or sewing, they will not be returned.
Second: The Maliki school of Fiqh said: If the break up was from the side of a fiancé, nothing of the gifts should be returned to him except Mahr. However, if the break up was from the side of a fiancée, she has to return everything she has taken. If both want to break up, nothing will be returned, but if they decided to return the gifts after they have been vanished or destroyed, they should estimate the value of these gifts on the day of purchase and return the value.
Third: The Shafi`i school of Fiqh said: He may take back what he gave because those gifts were for a purpose which was marriage which did not take place, so he may take back what he offered; and that was the view of Ibn Al Qayyim (may Allah bestow mercy on his soul).
Fourth: The Hanbali school of Fiqh said: It is not permissible for a fiancé to take back his gifts because they are endowments and endowments cannot be returned.
The view which we adopt is the view of the Maliki's because breaking up betrothal contains harm to a fiancée if the breaking up was from the side of a fiancée. Likewise the harm will inflict a fiancée if the break up was from the side of a fiancé unless one of them has a justified and acceptable excuse. As for giving the gifts the same ruling of endowments, this is not acceptable because gifts are different from endowments where gifts are given for something but the endowments are not. Allah knows the best! (5).
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(1) Reported by Al Bukhari, book of marriage, chapter of a person should not ask the hand of someone's fiancée 5142/ 9/198 with the commentary of Fathul-Bary, and Muslim, book of marriage, chapter on the prohibition of asking the hand of someone's fiancée 9/197 with the commentary of An-Nawawy.
(2) See Fathul-Bary 9/199 and the commentary of An-Nawawy to Sahih Muslim 9/197.
(3) See previous reference and Subul As-Salam 3/243 and the footnotes of Ar-Rawd Al Murbi` 6/242.
(4) See: Al Mughny 7/111 in which he gave the ruling of "the one who raised the price of a commodity then refused to sell it" to this issue.
(5) This is the view of the Egyptian law, see the system of family in Islam by Dr. Muhammad `Uqlah 1/233 who ascribed it to the book of personal status of Al Bardisy, p. 11.
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