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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 138

Translation · EN

He said: "The Messenger of Allah - may Allah bless him and grant him peace - decreed regarding Barwa' bint Washiq, a woman from among us, the same as what you have decreed." Reported by Abu Dawud and al-Tirmidhi, who said: It is a hasan sahih (good and authentic) hadith. This is because the purpose of marriage is companionship and enjoyment, not the dowry, so it is valid without mentioning it, just like maintenance. It is the same whether they both leave out mentioning the dowry or they stipulate its negation, such as his saying: "I have married you without a dowry." It is accepted likewise. Even if he said: "I have married you without a dowry now, nor in the future," it is also valid. Some Shafi'is said: It is not valid in this form because she would be like a woman gifted [without a dowry]. This is incorrect, because it has been validated in the case where he says: "I have married you without a dowry." Therefore, it is valid here as well, because their meaning is the same, and what is valid in one of the two equal cases is valid in the other. She is not like a woman gifted, because the condition [of negation] becomes corrupt, and the dowry [of a similar woman] becomes mandatory. When this is established, the woman married without a dowry is called a "mufawwidah" (one who has relegated the matter), both with the kasrah and the fathah on the waw. Whoever uses the kasrah attributes the action to her as the active agent, like "muqawwimah" (one who appraises), and whoever uses the fathah attributes it to her guardian. The meaning of "tafwid" (relegation) is neglect, as if she has neglected the matter of the dowry by not naming it. From this is the saying of the poet:

People do not prosper if they are neglected, without leaders among them, and there are no leaders when their ignorant ones prevail.

Meaning, neglected. Tafwid is of two types: delegation of the person (tafwid al-bud') and delegation of the dowry (tafwid al-mahr). As for the delegation of the person, it is what al-Khiraqi mentioned and what we have explained, and it is what the unqualified term "tafwid" refers to. As for the delegation of the dowry, it is when they make the dowry subject to the opinion of one of them or an outsider, such as saying: "I have married you for whatever you wish," or "upon your ruling," or "upon my ruling," or "her ruling," or "the ruling of an outsider," and the like. For this woman, she is entitled to the dowry of a similar woman according to the apparent statement of al-Khiraqi, because she did not marry herself except with a dowry, but it was unknown, so it lapsed due to its ambiguity and the dowry of a similar woman became mandatory.

Notes

(4) Its verification has preceded in: 9/192. (5) He is al-Afwah al-Awdi. The verse is in his diwan (al-Tara'if al-Adabiyyah) 10. (6) In A and M: "yaj'alu" (he makes). (7) Omitted from: the original, A, and B.

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