The Qur’anic view is the Mahr also known as the Dower [1] belongs to the woman which is in line with verse (4:20)[1]  and  on a divorce taking place the man should not ask for it back.  The Mahr does not need to be in a monetary form, the only requirement it is clean[2]. The Mahr  can come in many forms which historically included being freed from slavery[3], only requiremnt is that any  form of the Mahr ie the object matter can be identified[4] The purpose of the Mahr was to reflect the intimacy that the one had shared[5] and in the absence of the Mahr being set, it does not stop one arising “It was narrated from Ibn Mas'ud, that he was asked about a man who married a woman but did not name a Mahr or consummate the marriage before he died. Ibn Mas'ud said: "She should have a Mahr like that of women like her, no less and no more; she has to observe the 'Iddah, and she is entitled to inherit." Ma'qil bin Sinan Al-Ashja'i stood up and said: "The Messenger of Allah passed a similar judgment among us concerning Birwa' bint Washiq." And Ibn Masud rejoiced at that.” [6].

The Qur’an see any deprivation of the Mahr as unjust act which was not to be taken back on divorce as the man was given the power to divorce, he is also bound by his relationship with God to do right and act in a socially just manner towards the woman. The Qur’an views the Mahr as an act of compensation to the woman so she would not be placed at socio-economic disadvantage should it be the case that the husband divorces her, this was address what was occurring pre the advent of Islam. The Quranic attitude was to give the woman a footing where she could rebuild her life as she would be released with the Mahr and in the case of those who had been released from bondage it was of more importance that they retained the Mahr.

However there is a caveat for the Mahr  being withheld or demanded back by the husband that being that marriage should  have been consummated[7], reliance is placed upon verse 2:236[8]. However, this has to be read in the light of the following hadith which is considered as Sahih[1] It was narrated from Ibn Mas'ud, that he was asked about a man who married a woman, but did not name a Mahr or consummate the marriage before he died. Ibn Mas'ud said: "She should have a Mahr like that of women like her, no less and no more; she has to observe the 'Iddah, and she is entitled to inherit." Ma'qil bin Sinan Al-Ashja'i stood up and said: "The Messenger of Allah passed a similar judgment among us concerning Birwa' bint Washiq." And Ibn Masud rejoiced at that. - Sunan an-Nasa'i, Vol. 4, Book of Divorce, Hadith 3554. The question that needs to be addressed is that has an abrogation by way of the sunnah taken place by way of a Naskh Al Hukm Wa Al Tilawa?[9]. The sunnah and the Qur’anic verse are at odds and therefore one has to give consideration to an abrogation taking place given this hadith refers to there being no consummation and that the prophet had acted in a similar way before. The Sunni schools view is as per  the hadith that a woman is entitled to the Mahr, but the Shia do not accept it[10]

Where the divorce occurs before consummation, then the woman is entitled to half as per verse 2:237 provided: it was a valid marriage, the Mahr is actually specified, and the divorce is due to an act of the man other than insanity or reaching puberty[11]. The refusal to pay the Mahr is also enforceable as debt and is covered in the article Can you recover the Dower through the courts or not?

The views expressed in this article are the personal views of Yasin M Din- Barrister at Law

References

[1][1] If you wish to replace one wife with another, do not take any of her bride-gift back, even if you have given her a great amount of gold. Take not the least bit of it back: Would ye take it by slander and manifest wrong

[2] So wine, Pigs or not to take another wife Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 89

[3] Narrated Anas bin Malik: Allah's Apostle manumitted Safiyya and regarded her manumission as her Mahr -Sahih al-Bukhari, Vol. 7, Book of Marriage, Hadith 23 - https://muflihun.com/bukhari/62/23

[4] Ibid 3

[5]As reflected by Verse 4:21 “How could you take it when you have lain with each other and they have taken a solemn pledge from you” -   It was narrated from Aishah that : the Messenger of Allah said: “Any woman whose marriage is not arranged by her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. If (the man) has had intercourse with her, then the Mahr belongs to her in return for his intimacy with her. And if there is any dispute then the ruler is the guardian of the one who does not have a guardian - • Sunan Ibn Majah, Vol. 3, Book of Marriage, Hadith 1879- https://muflihun.com/ibnmajah/9/1879  

[6] Sunan an-Nasa'i, Vol. 4, Book of Divorce, Hadith 3554- https://muflihun.com/nasai/27/3554

[7] Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 88

[8] You will not be blamed if you divorce women when you have not yet consummated the marriage or fixed a bride-gift for them, but make fair provision for them, the rich according to his means and the poor according to his– this is a duty for those who do good.

[9] [9] Burton, John, (1977) The Collection of the Qur’ān, Edinburgh University Press (UK), Page 46

[10] Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 95

[11] Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 98

[1] Which is not the same as a dowry, Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 87

[2] If you wish to replace one wife with another, do not take any of her bride-gift back, even if you have given her a great amount of gold. Take not the least bit of it back: Would ye take it by slander and manifest wrong

[3] So wine, Pigs or not to take another wife Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 89

[4] Narrated Anas bin Malik: Allah's Apostle manumitted Safiyya and regarded her manumission as her Mahr -Sahih al-Bukhari, Vol. 7, Book of Marriage, Hadith 23 - https://muflihun.com/bukhari/62/23

[5] Ibid 3

[6]As reflected by Verse 4:21 “How could you take it when you have lain with each other and they have taken a solemn pledge from you” -   It was narrated from Aishah that : the Messenger of Allah said: “Any woman whose marriage is not arranged by her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. If (the man) has had intercourse with her, then the Mahr belongs to her in return for his intimacy with her. And if there is any dispute then the ruler is the guardian of the one who does not have a guardian - • Sunan Ibn Majah, Vol. 3, Book of Marriage, Hadith 1879- https://muflihun.com/ibnmajah/9/1879  

[7] It was narrated from Ibn Mas'ud, that he was asked about a man who married a woman but did not name a Mahr or consummate the marriage before he died. Ibn Mas'ud said: "She should have a Mahr like that of women like her, no less and no more; she has to observe the 'Iddah, and she is entitled to inherit." Ma'qil bin Sinan Al-Ashja'i stood up and said: "The Messenger of Allah passed a similar judgment among us concerning Birwa' bint Washiq." And Ibn Masud rejoiced at that.- Sunan an-Nasa'i, Vol. 4, Book of Divorce, Hadith 3554- https://muflihun.com/nasai/27/3554

[8] Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 88

[9] You will not be blamed if you divorce women when you have not yet consummated the marriage or fixed a bride-gift for them, but make fair provision for them, the rich according to his means and the poor according to his– this is a duty for those who do good.

[10] [10] Burton, John, (1977) The Collection of the Qur’ān, Edinburgh University Press (UK), Page 46

[11] Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 95

[12] Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed, page 98