Husband stole the dowry and refuses to pay for Iddah maintenance

Answer

Wa’alaykum as Salam wa rahmatullahi wa barakatuhu,

• Islamically, the dowry is from the most integral conditions of marriage. A marriage will not be valid without the dowry. It has been categorically stipulated in the most authentic source of Islamic law, the noble Quran, that the husband has to willing pay the dowry. Allah says: (interpretation of the meaning):

وَآتُواْ النِّسَاء صَدُقَاتِهِنَّ نِحْلَةً  (سورة النساء – 4)

“And give to the women (whom you marry) their Mahr (obligatory bridal money given by the husband to his wife at the time of marriage) with a good heart…” [al-Nisaa’ 4:4]

Ibn ‘Abbaas said: “This refers to the Mahr (dowry).”

Due to the great emphasis on dowry, Prophet Muhammad (peace and blessing be upon him) has warned about the great sin and punishment for not discharging the dowry. A companion of his said:

عن ميمون الكردي عن أبيه قال : سمعت النبي لا مرة ولا مرتين ولا ثلاثة حتى بلغ عشر مرار أيما رجل تزوج امرأة بما قل من المهر أو كثر ليس في نفسه أن يؤدي إليها حقها خدعها فمات ولم يؤد إليها حقها لقي الله يوم القيامة وهو زان (أخرجه الطبراني في المعجم الأوسط – 2/ 237)

“I heard the Messenger saying, not just once or twice, but tens of times: ‘Any person that gets married agreeing to pay the dowry, irrespective of whether it was a little or a lot, but then he does not  pay the dowry and deceives his wife, he will be regarded as a fornicator in the court of Allah, the almighty.” (al-Mu’jam al-awsat, 2 / 237)

In our classical books of Islamic rulings, it has been explicitly mentioned that the marriage is not even valid without dowry:

فلا جواز للنكاح بدون المهر عندنا…… قال أصحابنا : إن المهر شرط جواز نكاح المسلم  (بدائع الصنائع – 2/ 559)

“Nikah is not valid without dowry……Our companions state: ‘Dowry is a fundamental condition for the validity of a marriage” (Badaa’i as-Sanaa’I, 2 / 559 – Please bear in mind that this was used as an authoritative book for a student of law under the Ottoman Khilafah)

Such stress has been placed on the dowry, that in an unlikely situation if there were any invalid clauses in the contract of marriage (and hence the marriage is invalid), then too the average dowry is binding:

قوله ( وفي النكاح الفاسد إنما يجب مهر المثل بالوطء ) لأن المهر فيه لا يجب بمجرد العقد لفساده وإنما يجب باستيفاء منافع البضع وكذا بعد الخلوة لأن الخلوة فيه لا يثبت بها التمكن فهي غير صحيحة (البحر الرائق – 3/ 181)         

Being of this nature, when there were countries which followed the Shari’ah constitution, if a female did not receive her dowry, she had the option to sue her husband.

Even in present day Muslim countries, the wife may take the matter to court. Kindly refer to article 19 of the following paper which has been drafted by a certified United Nations agency:

https://www.refworld.org/pdfid/5c7664947.pdf

Leading authorities in Muslim countries, such as Saudi Arabia, have clearly declared that it is the wife’s right to receive her dowry:

https://islamqa.info/en/answers/2378/the-mahr-dowry-is-the-right-of-the-wife

The leading scholar of Syria, Ibn ‘Abideen ash-Shami ruled:

فإن مهر المثل يجب بالعقد فكان حكما (رد المحتار – 3/ 100)

“The average dowry is compulsory as soon as the contract of Nikah takes place.’ (Radd al-Muhtaar, 3/100)

Shaykh Yusuf Ludhwani of Pakistan has declared that a husband who does not discharge the dowry is an oppressor and tyrant, and the government should use force and assist the wife in getting her rights. (refer to Aapke Masaail aur un ka hal, 5/285)

The aforementioned refers to a situation where the husband did not discharge the dowry, to begin with. Regarding the issue at hand, the husband gave the dowry and actually stole it. That essentially means he stole what belongs ENTIRELY to the wife. The obligation of returning the stolen with is emphasized much more.  

• After divorce, a female has to remain in ‘Iddah (waiting period). The objective of this is to determine that she is not pregnant and carrying a child of the ex-husband. Since she is confined to the home, it is mandatory on the ex-husband to take care of the needs of his ex-wife during this period. This is also established from an emphatic commandment of the Noble Quran.

If the husband failed in his responsibility, the ex-wife can claim back the money which she spent on herself, if the following conditions were met:

1. She did not refuse to stay at place the ex-husband has stipulated for her, and there was no valid reason for this rejection.
2. She constantly demanded that he pays (can also be done in the form of sending statements, invoices etc)

If she did not demand or even request for her expenses to be paid, the ex-husband is then not obliged to pay back anything.

والمطلقة إذا لم تطلب نفقتها حتى انقضت عدتها سقطت كالمنكوحة (الاختيار لتعليل المختار- / 9)

If she spent the ‘Iddah in a place that he stipulated for her (or she had a valid reason not to stay there), and did request for her expenditure, but the husband did not discharge it, then the expenses remain as a debt on the husband.

والمعتدة إذا لم تأخذ أو لم يعط الزوج لها النفقة المفروضة حتى مضت العدة قال الإمام الحلواني المختار عدم السقوط (الفتاوى البزازية – 2/ 27)

It is obvious that even if the ex-husband does not take care of her maintenance, she will have to make her own means to survive. Therefore, the obligation does not fall away.

We conclude with a narration of Prophet  Muhammad (peace and blessing be upon him), where he said:

فلا بأس ولينصر الرجل أخاه ظالما أو مظلوما إن كان ظالما فلينهه فإنه له نصر وإن كان مظلوما فلينصر (أخرجه مسلم في صحيحه – 4/ 1998)       

“No matter, let a man help his brother whether he is wrong or being wronged. If he is oppressing others, then stop him, for that is supporting him. If he is being oppressed, then support him.”