If a husband is unable to pay the advanced payment of dower or the expenditure of his wife, is it permissible for the wife to ask for the annulment of the marriage contract or not?

It has two cases:

The first case is: A husband would have a proof to his insolvency or his wife believes him, and in this case, scholars differed according to two views:

The first view is the view of the Hanafi school of Fiqh and the correct view of Imam Ahmad and the view of the Shafi`i scholars who said: If a husband is unable to pay dower or expenditure, there is no right for the wife to annul the marriage for that reason but she has the right to prevent herself from him and not to abide by his permission during travel and going out. She may take debts and he has to pay it, and he has to let her work to spend on the house and spend on herself because locking her without giving her maintenance will be harmful to her.

Those who do not consider the annulment of marriage by insolvency held the following as proofs:

Allah (Glory be to Him) says: "Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allâh has given him. Allâh puts no burden on any person beyond what He has given him." (2)

They said: If Allah does not charge him with expenditure in case of insolvency, he has left what is not obligatory on him and then he shall not be sinful if he has left it, hence it will not be a cause for separation between them.

They said also: If a husband became insolvent and he could not find a means of sustenance, there is no charge on him according to the Ayah.

This is answered by: We did not burden him with expenditure in the case of insolvency, but we pushed away the harm from his wife to earn her living and to marry another man who can support her.

- Imam Muslim reported in his Sahih from the Hadith Abu Az-Zubayr on the authority of Jabir ibn `Abdullah (Allah be pleased with him) reported: Abu Bakr (Allah be pleased with him) came and sought permission to see Allah's Messenger (peace be upon him). He found some people sitting at his door and none amongst them had been granted permission, but it was granted to Abu Bakr and he went in. Then came `Umar and he sought permission and it was granted to him, and he found Allah's Messenger (peace be upon him) sitting sad and silent with his wives around him. He (`Umar) said: I would say something which would make the Prophet (peace be upon him) laugh, so he said: O Messenger of Allah, I wish you had seen (the treatment meted out to) the daughter of Kharijah when you asked me some money, and I got up and slapped her on her neck. Thereupon, Allah's Messenger (peace be upon him) laughed and said: They are around me as you see, asking for extra money. Abu Bakr (Allah be pleased with him) then got up and went to `A'ishah (may Allah be pleased with her) and slapped her on the neck, and `Umar stood up before Hafsah and slapped her saying: You ask Allah's Messenger (peace be upon him) which he does not possess. They said: By Allah, we do not ask Allah's Messenger (peace be upon him) for anything he does not possess. Then he withdrew from them for a month or for twenty-nine days...

They said: Abu Bakr and `Umar (may Allah be pleased with them) slapped their daughters in the presence of the Messenger of Allah (peace be upon him) when they asked him for an expenditure that he could not afford. It is impossible that they would slap them if they were asking for their rights, moreover the Prophet (peace be upon him) approved their actions which indicated that they had no right in what they asked for during insolvency. If the matter was as such, the wife has no right to ask for the annulment of marriage for asking for something that is not entitled to her.

This may be answered by the following: Rebuking them was for taking the inferior position toward the Prophet (peace be upon him) rather than observing patience for hardship so as to be his wives in Paradise.

Rebuking them to ask for what the Prophet (peace be upon him) could not provide does not indicate the impermissibility of annulment for insolvency, and they did not ask for it. How would it be while the Prophet (peace be upon him) gave them the choice and they accepted to stay with him.

It was answered also that their wives did not lose total expenditure because the Prophet (peace be upon him) invoked Allah against extreme poverty, and perhaps the complaint was about extra expenditure.

- Allah (Glory be to Him) commanded a creditor to give a respite to an insolvent until the time of ease, and expenditure is a debt that a husband should pay, and a wife is commanded to wait for the availability of expenditure according to the Qur'an. If expenditure is an obligation on the husband which he must pay or it is dropped by the passage of time, annulment is not imaginable.

They said: Allah (may He be Exalted) commanded the owner of the right to observe patience for an insolvent and commanded him to drop the debt and consider it as a charity on the insolvent, so anything else is not permissible. We say to the wife who asks for the annulment of marriage for that reason either you give him a respite or drop your right and you have no other right.

- Scholars said: There were many insolvent Companions, however the Prophet (peace be upon him) did not give the right to any woman to ask for the annulment of her marriage because of the insolvency of her husband and did not inform them that they have the right to ask for the annulment of marriage if they want. Suppose that all wives dropped their rights of annulment, there was no single woman asked for her right while his own wives who were the best women of mankind asked him for alimony until they irritated him and he swore not to approach them for one month for that. So, if it is had been established in his Shari`ah that a wife owns the right of annulment for the insolvency of her husband, the case of the like would be submitted to him even from a single wife, which did not happen.

This was answered by: The wives of the Companions (may Allah be pleased with them) were seeking the reward of the Hereafter and did not think of the world, so they did not care for the insolvency of their husbands because their husbands also were seeking the Hereafter. As for today's women, they marry for the world, expenditure, and clothing, so it has become a custom like the conditions of a contract that must be fulfilled as it was the case in the time of the Companions.

- Scholars said: Allah made poverty and richness means to the servants, so if everyone had become insolvent and his wife asked for the annulment of marriage, ordeals will prevail, evil will become intensified, marriage contracts will be annulled, and wives would control the marriage contract.

This is answered by: This is out of the controversial point.

The second view is: The Maliki, the Shafi`y, and the Hanbaly schools of Fiqh said: If a husband fails to pay dower because of his insolvency, if a wife observes patience for him, it will be better otherwise she has the right of annulment according to the following conditions:

The first is: A wife should be a free woman not a slave because a slave girl has no right in annulment for the insolvency of her master.

The second is: The wife must be fully competent, so if she is young, she has no right to ask for the annulment, but her guardian is entitled to ask on her behalf unlike the view of the Maliki school of Fiqh; the same ruling goes to the insane wife.

The third is: A wife has the right to ask for the annulment of marriage even after the commencement of marriage unlike the view of the Maliki and the Shafi`i school of Fiqh to remove the harm from her.

The fourth is: A wife should not be aware of his insolvency before marriage, but if she marries him while she is aware of his insolvency, she has no right to ask for the annulment of marriage unlike the view of the Shafi`i.

The fifth is: The insolvency of the husband is proven by admission or submitting a proof before the judge, otherwise there will be no annulment.

The sixth is: The annulment is given by a judge because a woman has no right to annul the marriage by herself. If the matter is submitted to the judge and it was proved that the husband is insolvent, the husband shall not be obliged to pay but will be given a respite until the time of ease. As for the period of respite, it is fixed by the judge who may give him one year, less or more, according to the conditions of the husband. There is no difference between a husband who is temporarily insolvent or perpetually insolvent because richness is bound by conditions, so we cannot decide that, but if he remains insolvent after the respite, the judge may issue a verdict of annulment.

This series were written by

Dr. Ilham Badr Al Jabry

________________________

(1) See: Al `Inayah Sharh Al Hidayah 6/211, Al Fawakih of Ad-Dawany 3/1077, Al Umm 5/88-91,  Al Majmu` Sharh Al Muhadhdhab 18/267, I`anat At-Talibin 4/93, Hashiyat Ar-Rawd Al Murbi` 7/125, Majmu` Al Fatawa 30/57, Zad Al Ma`ad 5/511, and Al Fiqh `Ala Al Madhahib Al Arba`ah 4/86.

(2) Surat At-Talaq: 7.

Add comment