Обсуждение:Брачный дар

Encyclopaedia of the Qurʾān / Bridewealth

The obligatory payment of a sum of money by the groom to the bride as stipulated in the marriage contract, a sum which in turn becomes her property. Modern English usage has shown a preference for the term bridewealth or marriage payment over the earlier term “dowry” (cf. Encyclopaedia Britannica 1996, s.v. “bridewealth” and “dowry”). In the Qurʾān three different words are used for the concept: ajr (reward), farīḍa (legal obligation) and ṣaduqa (nuptial gift).

Several aspects of bridewealth are treated in the Qurʾān: (1) The payment of bridewealth is a prerequisite of marriage (the term used is ajr in q 4:24, 25; 5:5; 33:50) In q 60:10, for instance, it is stated that “There is no fault for you to marry them ¶ when you have given them their rewards.” (2) The bridewealth becomes the property of the bride. This is an obvious conclusion from q 4:4 where men are asked to “give the women their nuptial gifts ( ṣaduqāt) as a present ( niḥlatan)” to which they no longer have any rights except any portion voluntarily renounced by the woman (cf. also q 4:20). Such possible post-marriage arrangements between spouses concerning the bridewealth are also mentioned in q 4:24 and 2:237. (3) There is a relation between bridewealth and marital intercourse ( q 4:21 and 24). According to q 2:236-7 the full amount of the bridewealth has to be given only when marital intercourse has occurred (see marriage and divorce ).

The qurʾānic concept of bridewealth and the terms used for it differ substantially from pre-Islamic Arab custom (see pre-islamic arabia and the qurʾān ). In old Arabic poetry (see poets and poetry ) the bridewealth is called mahr and was given to the father or male relatives of the bride (cf. also q 60:10 and Farrāʾ, Maʿānī, i, 256). The bride may also have received from the groom a gift called ṣadāq which was, however, of much lesser value. Similar customs were known in ancient Israel (cf. Gen 34:12; Exod 22:16; 1 Sam 18:25). The Qurʾān, on the contrary, reserves the bridewealth for the married woman herself and gives her the sole right of disposal. This must have constituted an innovation in Arabic-Islamic society, as suggested by two facts: 1) the avoidance of the term mahr in the extensive terminology concerning bridewealth in the Qurʾān; and 2) the qurʾānic idea that the bridewealth is a compensation for the permission to have sexual intercourse (not a compensation for the loss of a potentially productive member of a clan as mahr was probably considered in pre-Islamic Arab tribal society) and, related to this idea, the choice of the term ajr (reward).

¶ The amount to be given as bridewealth is not stipulated in the Qurʾān. In Arab society it depended on the bride's social status. It is unknown whether the qinṭār (of silver or gold?) mentioned in q 4:20 should be considered as an average measure of bridewealth among the wealthier followers of Muḥammad or as a very large one (cf. ʿAbd al-Razzāq, al-Muṣannaf, vi, no. 10420).

In early Islamic legal discussion on bridewealth the qurʾānic discussion of the subject forms the point of departure (see law and the qurʾān ). In this discussion, however, many questions left unanswered in the Qurʾān are also tackled, such as the lower and upper limits of bridewealth, the date of payment, the possibility of payment by installments and so on. It is remarkable that in early legal discussions the qurʾānic terms for bridewealth are not used at all. The most favored term is ṣadāq (bridewealth) with mahr as a synonym occurring less frequently.

Bibliography

Primary

ʿAbd al-Razzāq, Muṣannaf, vi, K. al-Nikāḥ

Farrāʾ, Maʿānī

Mālik, Muwaṭṭaʾ, chap. 28

Ṭabarī, Tafsīr, ad loc

Secondary

A.M. al-Ḥūfī, al-Marʾa fī l-shiʿr al-jāhilī, Cairo, 2nd ed., n.d. [1964], i, 190-6

G. Jacob, Altarabisches Beduinenleben, Berlin 1897, 57, 213

H. Motzki, Geschlechtsreife und Legitimation zur Zeugung im frühen Islam, in E.W. Müller (ed.), Geschlechtsreife und Legitimation zur Zeugung, Freiburg/München 1985, 527-30

W. Robertson Smith, Kinship and marriage in early Arabia, Boston 18851, 19032, 93, 96, 105-6, 111, 113, 119, 151 (cf. the review by Th. Nöldeke in zdmg 40 [1886], 154)

O. Spies, Mahr, in ei2, vi, 78-80

J. Wellhausen, Die Ehe bei den Arabern, in Nachrichten von der Königlichen Gesellschaft der Wissenschaften und der Georg-August-Universität zu Göttingen 11 (1893), 431-6

Cite this page

Motzki, Harald, “Bridewealth”, in: Encyclopaedia of the Qurʾān, General Editor: Jane Dammen McAuliffe, Georgetown University, Washington DC. Consulted online on 07 January 2017 <http://dx.doi.org/10.1163/1875-3922_q3_EQSIM_00063>

Encyclopaedia of Islam, Second Edition / Mahr

Hebrew mohar, Syriac mahrā, “bridal gift”, originally “purchase-money”, synonymous with ṣadāḳ which properly means “friendship”, then “present”, a gift given voluntarily and not as a result of a contract, is in Muslim law the gift which the bridegroom has to give the bride when the contract of marriage is made and which becomes the property of the wife.

1. Among the pagan Arabs, the mahr was an essential condition for a legal marriage, and only when a mahr had been given did a proper legal relationship arise. A marriage without a mahr was regarded as shameful and looked upon as concubinage. In the romance of ʿAntar, the Arab women, who are being forced to marry without a mahr, indignantly reject such a marriage as a disgrace. Victors alone married the daughters of the conquered without giving them a mahr.

In the pre-Islamic period, the mahr was handed over ¶ to the walī, i.e. the father, or brother or relative in whose guardianship ( walāʾ ) the girl was. Here the original character of the marriage by purchase is more apparent. In earlier times the bride received none of the mahr. What was usually given to the woman at the betrothal was the ṣadāḳ the mahr, being the purchase price of the bride, was given to the walī.

But in the period shortly before Muḥammad, the mahr, or at least a part of it, seems already to be given to the woman. According to the Ḳurʾan, this is already the prevailing custom. By this amalgamation of mahr and ṣadāḳ, the original significance of the mahr as the purchase price was weakened and became quite lost in the natural course of events. There can be no doubt that the mahr was originally the purchase price. But the transaction of purchasing, in course of long development, had become a mere form. The remains, however, as they survived in the law of marriage in Islam, still bear clear traces of a former marriage by purchase.

2. Muḥammad took over the old Arab patriarchal ceremony of marriage as it stood and developed it in several points. The Ḳurʾān no longer contains the conception of the purchase of the wife and the mahr as the price, but the mahr is in a way a reward, a legitimate compensation which the woman has to claim in all cases. The Ḳurʾān thus demands a bridal gift for a legal marriage: “And give them whom ye have enjoyed their reward as a wedding-gift” (lit. farīḍa “allotment of property”, IV, 24) and again: “And give the women their dowries voluntarily” (IV, 3); cf. also IV, 25, 34; V, 5; IX, 10.

The bridal gift is the property of the wife; it therefore remains her own if the marriage is dissolved. “And if ye wish to exchange one wife for another and have given one a talent, take nothing of it back” (IV, 20). Even if the man divorces the wife before he has cohabited with her, he must leave half the mahr with her (II, 236-7).

Up to the Muslim period, the wife was considered after the death of the husband as part of his estate; the heir simply continued the marriage of the deceased. Such levirate marriages are found in the Old Testament also. Muḥammad abolished this custom, which still remained in his time, by sūra IV, 19; “O ye who are believers, it is not permitted to you to inherit women against their will”. In his social reforms, Muḥammad made the mahr into a settlement in the wife’s favour.

3. There was an ample store of traditions about the mahr, and these pave the way for the theories laid down by the jurists in the fiḳh books. From all the traditions, it is clear that the mahr was an essential part of the contract of marriage. According to a tradition in Buk̲h̲ārī, the mahr is an essential condition for the legality of the marriage: “every marriage without mahr is null and void”. Even if this tradition, so brief and to the point, is not genuine, a number of traditions point to the fact that the mahr was necessary for the marriage, even if it only consisted of some trifling thing. Thus in Ibn Mād̲j̲a and al-Buk̲h̲ārī, traditions are given according to which the Prophet permitted a marriage with only a pair of shoes as mahr and approved of a poor man, who did not even possess an iron ring, giving his wife instruction in the Ḳurʾān as mahr.

A few ḥadīt̲h̲s endeavour to show that the mahr must be neither too high nor too low. From the traditions we also learn what mahr was given in particular cases in the Prophet’s time: for example, the bridal gift of ʿAbd al-Raḥmān b. ʿAwf was an ounce of gold, that of Abū Hurayra 10 ūḳīyas and a dish, that of Sahl b. Saʿd an iron ring.

¶ In the ḥadīt̲h̲s we again frequently find the Ḳurʾānic regulation that in a divorce after cohabitation the woman has the right to the whole mahr.

4. According to Muslim fiḳh-books, marriage is a contract ( ʿaḳd ) made between the bridegroom and the walī of the bride. An essential element in it is the mahr or ṣadāḳ, which the bridegroom binds himself to give to the bride. The marriage is null without a mahr. The jurists themselves are not quite agreed as to the nature of the mahr. Some regard it practically as purchase-money (e.g. K̲h̲alīl: “the mahr is like the purchase-money”) or as equivalent ( ʿiwaḍ ) for the possession of the woman and the right over her, so that it is like the price paid in a contract of sale; while other jurists see in the mahr a symbol, a mark of honour or a proper legal security of property for the woman.

All things can be given as mahr that are things ( māl ) in the legal sense and therefore are possible to deal in, that is, can be the object of an agreement. The mahr may also—but opinions differ on the point—consist in a pledge to do something or in doing something, e.g. instructing the woman in the Ḳurʾan or allowing her to make the pilgrimage. The whole of the mahr can either be given at or shortly after the marriage or it may be paid in instalments. When the latter is the case, it is recommended to give the woman a half or two-thirds before cohabitation and the rest afterwards. The woman may refuse to allow consummation of the marriage before a part is given.

Two kinds of mahr are distinguished:

a. Mahr musammā, “specified mahr ”, the amount of which is exactly laid down in the wedding contract.

b. Mahr al-mit̲h̲l mahr “ of the like”, i.e. unspecified dower, in which the amount is not exactly laid down, but the bridegroom gives a bridal gift befitting the wealth, family and qualities of the bride. This mahr al-mit̲h̲l is also applied in all cases in which nothing definite about the mahr was agreed upon in the contract.

The mahr becomes the property of the wife and she has full right to dispose of it as she likes. In the case of any dispute afterwards as to whether certain things belong to the mahr or not, the man is put upon oath.

The S̲h̲arīʿa lays down no maximum. There is also no upper limit to the mahr: whatever is agreed upon in the contract must be paid. The mahr generally is adjusted to what other women of equal status (sister, daughter, aunt) have received. As regards the minimum for the amount of the mahr, limitations were introduced by the various law-schools; the Ḥanafīs and S̲h̲āfiʿīs insist upon 10 dirhams as a minimum and the Mālikīs three dirhams. The difference in the amount fixed depends on the economic conditions in the different countries where the mad̲h̲habs in question prevail.

If the man pronounces a divorce, the mahr must be paid in every case if cohabitation has taken place; but the bridegroom may withdraw from the marriage before it is consummated; in this case he is bound to give the woman half the mahr.

Bibliography

W. Robertson Smith, Kinship and marriage in early Arabia, Cambridge 1885 (cf. thereon Th. Nöldeke, in ZDMG, xl [1886], 148-9)

Wellhausen, Die Ehe bei den Arabern, in Nachrichten der G. W. zu Gött. (1893), 431 ff.

G. Jacob, Altarabisches Beduinenleben, Berlin 1897

R. Roberts, The social laws of the Qorân, London 1925, 29, 124

Gertrude H. Stern, Marriage in early Islam, London 1939

W. Montgomery Watt, Muhammad at Medina, Oxford 1956, 283, 393.—For the ḥadīt̲h̲s, cf. Wensinck, Handbook, 145

the chapters Nikāḥ and Ṣadāḳ or Mahr in the Fiḳh -books. Further: ¶ Mahomed Yusoof, Mohamedan law relating to marriage, dower, divorce, legitimacy and guardianship of minors according to the Soonees, i-iii, Calcutta 1895-8

Ameer Ali, Mahommadan law, i4, Calcutta 1912, ii5, Calcutta 1929

T. Juynboll, Handbuch des islam. Gesetzes, 181 ff.

E. Sachau, Muhammadanisches Recht, 34 ff.

D. Santillana, Istituzioni di diritto Musulmano Malichita, Rome 1926, p. 168 sqq.

van den Berg, Principes du droit musulman (tr. France de Tersant), Algiers 1896, 75

K̲h̲alīl, Muk̲h̲taṣar, Italian tr. Santillana, Milan 1919, ii, 39 ff., French tr. G.-H. Bousquet, Abrégé, Algiers 1956-62

Tornauw, Moslem. Recht, Leipzig 1855, 74 ff.

G. Bergsträsser, Grundzüge, index

J. Schacht, The origins of Muhammadan jurisprudence, Oxford 1959

idem, An introduction to Islamic law, Oxford 1964, 167-8

Asaf A. A. Fyzee, Outlines of Muhammadan law 3, Oxford 1964, 126-38,4 Delhi 1974, 132-45

N. J. Coulson, A history of Islamic law, Edinburgh 1964, 40, 137-8, 207-8

see also the works of Milliot, Bousquet, Linant de Bellefonds and Brunschvig.

Cite this page

Spies, O., “Mahr”, in: Encyclopaedia of Islam, Second Edition, Edited by: P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.P. Heinrichs. Consulted online on 28 January 2017 <http://dx.doi.org/10.1163/1573-3912_islam_SIM_4806>