What a Woman may Stipulate in a Marriage Contract #1
From al-Mughni of Ibn Qudamah Vol. 9, Page 483:
Issue #1141:
He said:
“If a man marries her and (accepted) her stipulations that he shall not
remove her from her home or city (country), then her stipulation is to
be honoured/fulfilled (from that moment on) due to what has been
reported from Rasul ul Allah (saaw). He said: “The most deserving of
conditions to be honoured/fulfilled are those which the genitalia are
deemed Halal by them (Marriage is built upon their acceptance).”
As well if he marries her and (accepts) her stipulation that he will not
marry another woman while with her then she is granted the power to
abandon him if he marries another.”
The summary of (this issue) is that stipulations relating to Nikah
(pre-nuptiual agreements) are of three main categories (Translators
note: Only the first issue is translated):
First: (A condition) that which must be fulfill. It is a condition
wherein its benefit and worth are returned. Examples are stipulations
wherein he (vows) not to remove her from her residence or land, or that
he will not travel with her (to foreign lands), or that he will not take
another wife while with her. All of these are conditions that he would
be bound to fulfilling (if he agreed to them before cohabitation). If he
does not honour the stipulations she is granted the ability (and right)
to annul the marriage (at her will). This is reported as being the
opinion of:
Umar bin al-Khattab, Sad bin Abi Waqas, Muawiyah, Amr bin al-
Aas
(radia Allahu Anhom). It was also stated by:
Shurayh, Umar bin Abdul-Aziz, Jabir bin Zayd, Tawus, Al-Awzai and Ishaq.”
Those who deemed these conditions unacceptable were:
(none of them Sahabah):
az-Zuhari, Qatadah, Hisham bin Urwa, Malik [1], al-Laith,
ath-Thawri, ash-Shafii (in part), ibn al-Mundhir, and the people of
logical deduction and inference.
Abu Hanifah and ash-Shafiee stated:
“(If he breaks one of the aforementioned conditions she is not entitled
to leaving him.) The original dowry (Mahr) is deemed invalid and she
deserves another equal Mahr to what she has already been given (by her
husband).
They use as their proof the statement of Rasul ul Allah (saaw):
“Any
condition, which is not in Allahs Book, is worthless (invalid). Even if
there are a hundred conditions. Allahs decision is more valid and
Allahs condition is more binding.”
(Agreed upon)
(They say) such a condition is (not sanctioned) in Allahs Book since
the Law does not espouse it.
He (saaw) also said,
“A Muslims are bound to their
conditions/stipulations. (But) a condition that makes Halal a Haram or
a Haraam Halaal is (not from binding conditions).”
(Bukhari, Tirmithi
and others)
This (type of condition) is turning a Halal into a Haram. Taking more
than wife, traveling (are Halal). As well these conditions do not
benefit or improve the Aqd (marital pre-nuptial contract) and are not
integral to it. In fact it would be similar to stipulating that she is
not to present her self (ever) to him (in copulation).”
End words of Shafiee and Abu Hanifah
For us (our understanding) we have the following (evidence):
<p An-Nabi (saaw) said: “The most deserving of conditions to be
honoured/fulfilled are those which the genitalia are deemed Halaal by
them (Marriage is built upon their acceptance).”
Agreed Upon.
As well his statement (saaw):
“Muslims are bound to their conditions/stipulations.” (Previously
referenced)
As well we have named many Sahaba who validated these stipulations, and
none from their generation / peers refuted them. Therefore we establish
this as being Ijma (consensual agreement by them all).
It is narrated by al-Athram with his chain of narration that a man
married a woman and (agreed to the stipulation) that she may reside in
her (own) home. Thereafter he sought to transfer her elsewhere. They
turned to Umar (ra) in disputation.
He (ra) said
“Her condition is to be fulfilled.”
The man replied, “If that is the case then she is to grant the divorce
(he means that she is to relinquish her condition or divorce him).”
Umar (ra) replied, “The absolute rights are (established with their)
stipulations (His right is over-ruled by his agreement to her
stipulation).” [2]
This (as well as the other mentioned stipulations are) valid because
there is only benefit found in it (does not call to deviance) and it is
not intended to depreciate or tarnish what is established by Nikah.
Therefore fulfilling the condition is obligatory. (These types of
stipulations) are the same as if she stipulated that he increase her
Mahr (from his initial offer) or not take her abroad.
As for his (saaw) statement:
“Any condition, which is not in Allahs
Book, is worthless (invalid).”
This is regarding a condition that is not founded upon Allahs Hukm and
Shariah. These (conditions) are substantiated in Shariah. We have
shown precedence for it. Those who seek to oppose this (valid opinion)
must bring forth (explicit) evidence that renders the aforementioned
evidence nullified.
As for their (Shafii and Abu Hanifah) statement: that these
stipulations make a Halal Haram then we say that they do not make the
Halal into Haram.
It merely ensures the right of a woman to decide for herself if she
wishes to remain in that situation or not considering that he has not
fulfilled his pre-marital agreement.[3]
As for their statement: That there is no benefit or improvement in these
stipulations.
We say that we object to this understanding. These (stipulations) are
very beneficial for the woman. The benefit of the stipulator is
beneficial as well for the one being stipulated to (since the man knows
what is acceptable and what is not).
Fasl(Side point):
If she was to stipulate that he was to divorce his other wife then that
condition would be deemed invalid and unacceptable.
Abu Huraira (ra) reports:
“An-Nabi (saaw) forbade a woman from making it a condition for her
husband to divorce her sister (his other wife).”
Reported by al-Bukhari.
Footnotes
Verification of Athar:
[1] The Madhhab of Malik validates a stipulation upon a man
in which it is stipulated that he is not to marry another women while in
marriage with the first (wife) or else she will be given the order
(power) in her hand (to annul the marriage). She would be given the
power to separate from him at her choice. This position of Malik is
similar in meaning to the position of al-Imam Ahmed. (Fatawa of Ibn
Taymiyyah 32nd Volume, Page 164-165)
[2] Reported by Ibn Abi Shaybah in his Musaanaf (Vol. 4 pages 199). As
well it is found in the Sunnan of Saeed bin Mansour (Vo1. 1, Pg. 185)
[3] It is important to note that the second wife is legal for the man to
wed. The issue is whether the first wife wants to remain in that
situation or not. Many people mistakenly think that this stipulation
makes it illegal for the husband to take the second or third wife. That
is not the case at all. It is merely to ensure that the first wife is
able to leave the marital relationship if she cannot deal with the new
situation.