1186 - Issue: He said: "If she chooses to remain with him before consummation or after it, then the dowry belongs to the master. If she chooses to separate from him before consummation, she has no dowry; and if she chooses [to separate] after consummation, the dowry belongs to the master."

The essence of this is that if the emancipated woman chooses to remain with her husband before consummation or after it, or chooses to annul [the marriage] after consummation, the dowry is obligatory because it became obligatory through the contract. Thus, if she chooses to remain, there is no nullifying factor for it; and if she annuls it after consummation, it has already been established by consummation, so it does not lapse due to anything. It belongs to the master in both cases because it was rendered obligatory by the contract while she was in his possession, and the specified obligation exists in both cases, whether the consummation was before the emancipation or after it. The companions of al-Shafi'i said: If the consummation was before the emancipation, the specified obligation applies; but if it was after, then the obligation is the dowry of a peer (mahr al-mithl), because the annulment is retroactively applied to the state of emancipation, making the sexual act one that occurred within an invalid marriage. Our argument is that it is a valid contract, containing a valid specified amount, to which consummation was joined before the annulment, thereby necessitating the specified amount, just as if it had not been annulled. Furthermore, if it were to become obligatory due to intercourse after annulment, the dowry would belong to her, because she is free at that time. Their claim that the intercourse is in an invalid marriage is incorrect; for it was valid, and there was nothing found to invalidate it. The rulings of intercourse in a valid marriage are established therein, such as making her lawful for the first husband, [the status of] ihsan (being a married person who can commit adultery), and its status as lawful. As for if she chooses annulment before consummation, she has no dowry. Ahmad stated this explicitly, and it is the view of al-Shafi'i. There is another narration from Ahmad that the master is entitled to half the dowry because it became obligatory for the master, and it cannot lapse due to the action of someone else. Our response is that the separation came from her side, so her dowry lapsed, just as if she had converted to Islam, committed apostasy, or nursed someone whose suckling would annul her marriage. As for his statement that "it became obligatory for the master," we say: yet it was via her, and this is why half of it lapses by her annulment, and all of it [lapses] by her conversion to Islam or her apostasy.