What Women can Stipulate Before Marriage #2

Fatwa Contribution Number Four: Taken from the 32nd Volume, Page 164-165.

He, Rahimahullah, was asked…

He was asked about a man who during his pre-marriage negotiations was told that the bride to be stipulates and puts as a condition in her prenuptial (pre-marriage) contract that he is not to seek another wife while married to the her. As well, he was not to take his wife (to be) out of her (own) home. He was also informed that the wife (to be) had a young daughter and that she would be living with her mother and him as long as she remained.

He entered into all of this knowingly. Is he bound to fulfill these conditions/stipulations (later on in life). If he was to break one (or more of) these conditions would the wife have the power to demand annulment? Or is the answer no?

He (rh) answered:

Alhamdulillah.

Yes, these conditions are valid as well as others that are similar to them in the Madh’hab of al-Imam Ahmed and others from amongst the Sahaba, Tabi‘een and those who followed them. (From those who recognised such stipulations) were ‘Umar bin al-Khattab, ‘Amr bin al-‘Aas, Shurayh the Judge, al-Awza‘i and Ishaq.

Due to this we see that during this era we have the Sidaqat (dowry stipulations) of the People of Maghrib sanctioned these Shooroot because they are (still) upon the understanding the Madh’hab of al-Awza‘I from the days his Madh’hab governed them.

The Madh’hab 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.

These is (built upon) what has been reported by the two Shaykhs (Bukhari and Muslim) that an-Nabi ﷺ 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). (Bukhari Eng: 3:882-O.B)

Umar bin al-Khattab (ra) said:

“The absolute rights are (established with their) stipulations.”

As such we see that Rasul ul Allah ﷺ made the most deserving of conditions to be honoured/fulfilled are those which sexual relations are built upon. They are deemed more deserving than all other conditions. This narration is relevant to these very matters (you are asking about). Since we know that according to the Ijma‘ that the only conditions that are mentioned are as-Sidaq (dowry) and verbal (agreement). This shows that these could be (some) of the implied conditions (meant by Rasul ul Allah).

As for the stipulation of her child residing with her and that the man is to provide for this child then this can be seen as an increasement in her (demand) for Sidaq (dowry).^[1]

If, at anytime, he does not fulfil her stipulations and marries another then she can annul her marriage with him (when she wishes).

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Footnote

[1] He (rh) began discussing the difference between Sidaq and wages. I have elected to exclude them from this discussion.

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