Whoever marries a woman and does not fix a dowry, she will be given a dowry like that of her common women, provided that he has had intimate relations with her.
➊ The Prophet ﷺ arranged the marriage of a man and a woman, but the man did not fix a dowry. Then he also consummated the marriage, until, when the time of his death came, he gave his share of Khaybar to the woman as her dowry, making the people witnesses.
[Sahih: Sahih Abi Dawud: 1859, Kitab al-Nikah, Bab: Whoever marries and does not specify a dowry until he dies, Abu Dawud: 2117, Hakim: 181/2]
➋ Alqamah (may Allah have mercy on him) says that Ibn Mas’ud (may Allah be pleased with him) was asked about a man who married a woman but did not fix a dowry for her, and he died before he had consummated the marriage with her. Ibn Mas’ud (may Allah be pleased with him) answered:
لها مثل صداق نسائها لا وكس ولا شطط
“She will receive a dowry like that of the women of her family; there will be neither reduction nor excess.”
This woman must also observe the ‘iddah, and she is entitled to inheritance. On hearing this, Ma’qil ibn Sinan (may Allah be pleased with him), who was present in that gathering, stood up and said that the Prophet ﷺ had made the same ruling regarding a woman of ours, Birwa’ bint Washiq, as you have made. Ibn Mas’ud (may Allah be pleased with him) was very pleased on hearing this.
[Sahih: Sahih Abi Dawud: 1858, Ahmad: 480/3, Abu Dawud: 2116 also, Tirmidhi: 1145, Nasa’i: 121/6, Ibn Majah: 1891, Ibn al-Jarud: 718, Abd al-Razzaq: 10898, Ibn Hibban: 4100, Hakim: 180/2, Bayhaqi: 245/7]
It is known that a woman whose dowry was not fixed will be given a dowry like that of her peers (upon the death of the husband), whether or not he had intercourse with her.
(Ahmad, Abu Hanifah (may Allah have mercy on them)) hold this view. Imam Ibn Sirin, Imam Ibn Abi Layla and Imam Ishaq also hold this position.
(Malik) A woman with whom intercourse did not take place is entitled only to inheritance, not to a dowry, because the dowry is in exchange for sexual intercourse.
According to one narration, this is also the position of Imam al-Shafi’i.
[Nayl al-Awtar: 256/4, al-Hawi: 539/9, al-Mabsut: 94/5, al-Kharshi: 260/3]
(Preferred) The first position is in accordance with the authentic hadiths mentioned earlier.
(Ibn Qudamah) He also holds this view.
[al-Mughni: 149/10]
