Pertaining to Marriage

[Athman]

Dear all,

The following is a 3-part inquiry which arises from the foregoing situation parted, of which I was asked to share my opinion. I would like to have your humble views on the same.

A man got married on Friday though had intended to get his wife to his house on Sunday. Out of fate, the man died on Saturday having not fully paid the dowry nor having yet consummated his marriage.

•   Is the wife (of the deceased) eligible for the remaining part of her dowry (Should it be paid to her)? Or, should she return whatever she possesses of the dowry?
•   Should the wife stay an Iddat? Which typical Iddat is that?
•   Is she entitled to inheritance from the deceased’s estate?

Thanks.

Regards,
Athman.

[Duster]

Shalom / peace ... Does the following response from br. Joseph help?

http://quransmessage.com/forum/index.php?topic=2431.msg12686#msg12686

I'm assuming as there is no consummation, there will be no iddat as per the link above. Also all the rights - inheritance etc ..would only be applicable if there was a 'full' marriage bond....So I would say yes, she is entitled to half the dower, there will no iddat as no consummation and no entitlement to inheritance as there is no full marriage bond. I am going on from the response br. Joseph has given in the link above ....

[Athman]

Salaam,

Thanks for your comments Br. Duster. I concur with Br. Joseph’s response in the above referenced thread and the articles referenced therein. However, I find the discourse to be rounded on a context of ‘Divorce.’ Verses 2:236 and 33:49 seem to address the terms associated with a ‘divorce,’ which to me, sounds a ‘consensual’ legal conclusion reached at given some prior unsettled mutual spousal issues followed by some series of attempts to reconciliation – as stipulated by Shari’ah, as opposed to a ‘natural death’ which is inevitable.

I am somehow inclined to treating it differently.

Is it to be treated equally as that of a ‘divorce’ case, or, is it to be assumed a full marital bond - fully consummated – though not the case, given that death is inevitable and that there was no plan of 'divorce' whatsoever prior to the husband’s death, or, are there any other possible alternative approaches to such a case?

Regards,
Athman.
 

[Duster]

Shalom / peace Athman ... I agree. But if a marriage has not had the chance to 'complete' for whatever reason, then how can a full iddat ....full recourse to inheritance rights etc etc apply? At some point, best deduction should apply in the absence of clear verses dealing with a specific situation? Or that the other option could be that as there is no consensus like divorce ... the marriage is nullified totally ... as it didn't complete. Its like a man falling dead during the Nikaah process or straight after he makes his vows... the marriage isn't complete until consummation (unless consummation is not physically possible?). Just some thoughts ...

[Athman]

Dear Br. Duster,

Peace,

Thanks for your input above. I do agree that marriage is a process and one is not expected to set out to create just a ‘partial’ marital bond as Br. Joseph states in the thread above. However, I understand ‘full’ or ‘partial’ marital bonds as terms we refer to those statuses of a marriage situation that come about as a result of attainment or lack of attainment of some expected/required reservations, especially when considering a consensual annulment of the bond.

On the other hand, I see a ‘solemn covenant’ - meethaqan galedhan (4:21) to be established at the point of pronouncement of marriage. To the effect, with 2:234 and 2:240, I don’t see ‘yadharuna azwajan’ as necessarily widows who have undergone a whole marriage process but essentially those formerly having been wedded. The restrictive 2 conditions of marriage consummation and dowry obligation are neither mentioned in the above verses though they do find address with the divorce case (2:237, 33:49). This is despite that particular discourse of chapter 2 addressing both scenarios – ‘divorce’ and ‘widowhood.’

Therefore, in an effort to get the best deduction (39:18, 39:55) as you suggest, I see it possible importing the wisdom imparted by the divorce case especially with regards the 2 conditions above. On the other hand, with no specific address to the 2 conditions by the Qur’anic verses dealing with the ‘widowhood’ case, and considering it is a non-consensual inevitable termination of the marriage by death, I find it a different scenario to be approached somehow differently.

You shared:

‘Its like a man falling dead during the Nikaah process or straight after he makes his vows... the marriage isn't complete until consummation’

I think this is a somehow similar case though remotely acute as compared to the one above. With regards completeness of marriage, I do hope you would appreciate my understanding of a ‘solemn covenant’ above especially as regards ‘when’ it is legally valid, as contrasted to ‘full’ & ‘partial’ marital bond statuses which seem to considered when consensually annulling a marriage.

Looking forward to further insights into the matter.


Regards,
Athman.

[Duster]

On the other hand, I see a ‘solemn covenant’ - meethaqan galedhan (4:21) to be established at the point of pronouncement of marriage.

Shalom / peace ....Just a side note - I would understand that this pronouncement of marriage (meethaqan galedhan) would expect the dowry to be paid and the marriage consummated. A contract is meaningless if it is not carried out. I would say it is the same for marriage, otherwise it will simply be a 'vow'.

[Athman]

Dear Br. Duster,

Peace,

I hope you would agree with me that marriage, being a serious binding covenant between two parties, entails much that is first put into place prior to the point of its pronouncement. With a view to enter into a contract that would last one’s lifetime, I find it that to the point of its pronouncement, the contract legally binds the couple and is valid, with all the necessary deliberations mutually set clear.

You shared:

A contract is meaningless if it is not carried out.

To the point of the marriage pronouncement, with our case above where dowry was partly given, respectfully, I don’t actually grasp the essence of ‘if it is not carried out.’ On the other hand, in my humble opinion, a ‘vow’ in the context of marriage pronouncement is literally accepted as a formal agreement, ceteris paribus, the contract would be assumed binding and valid.


Regards,
Athman.

[Duster]

Shalom / peace brother Athman .....I think you may be missing my point ..... what I am saying is that yes, the contract is binding but if the requirements of that contract such as  dowry / consummation cannot be fulfilled for some reason, the contract is not completed.....The contract is a vow.... but needs to be completed.  That is why there is no iddat if there is no consummation..in other words, nikaah on its own is not full marriage therefore doesn't assume full status......