Summary of Feqh - Section 2: Defects in Spouse

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Section 2: Defects in Spouse

1) Definition of defects and the annulment of the marriage contract due to defects:
a) Definition of defects:
i) Linguistically: The word means imperfection and shortcoming.
ii) Islamically: All that which keeps the person away from having intercourse turns the spouse off and causes the spouse to lose the urge to have sex.
b) Ruling on the annulment of the marriage contract due to defects:
i) Annulment of the marriage contract on the basis of defects: The majority of scholars hold the view that the marriage can be annulled on the ground of defects, whether the defects are common [64] Examples of defects that could affect both the man or the woman: madness, elephantiasis (juthaam) and leprosy (baras). The infection of HIV (AIDS) is a defect that can be used to nullify the marriage contract. or specific to either of the spouses. [65] Examples of defects specific to men: Castration, which is the removal of the testicles, lack of erection and impotency, which is the quality of lacking strength or power to copulate. In the case of the latter, the man is given a one-year period to ensure that it is a chronic condition and not temporary condition. Examples of defects specific to women: the absence of the vagina, which makes it not possible for penetration to occur, the case where the meatus of the vagina is sealed by a tissue which prevents penetration (rataq), and the case where there is a protruding tissue or bone that blocks the vagina (Qarn). This is the view of the Maliki, [66] The Maliki Madhab hold the view that if the defects existed before conducing the marriage contract, the affected spouse has the right to annul the contract. However, if the defects came into existence after conducting the marriage, the wife has the right to annul the contract, but the husband does not have the right to annul the contract, because he is able to resort to divorce to separate from her if he is harmed because of those defects. Shafi’i, and Hanbali Madhabs.
ii) Annulment of the marriage contract due to little defects: The scholars are in agreement that trivial and little defects cannot be used to annul the marriage contract. The consensus on this ruling has been transmitted by Ibn ‘Abd al-Barr and Ibn Rushd.
iii) Annulment of the marriage contract because the spouse is a hermaphrodite. [67] A person who has both, a penis and a vagina, or none of them.
(1) Indeterminate hermaphrodite: [68] A person whose body does not confirm to arbitrarily quantified criteria for the male or female body and has confusing sex The four Madhabs agree that the marriage of an indeterminate hermaphrodite is invalid.
(2) Determinate hermaphrodite: [69] A person that shows the signs of manhood like the beard or the emission of semen from the penis; thus, he is deemed a man, or shows signs of womanhood like menses and pregnancy; and thus, deemed a woman. The choice is given to the spouses if the gender of the hermaphrodite has been determined. This is the view of the Hanbali Madhab, one of the views in the Shafi’i Madhab, and the view of Ibn ‘Uthaymeen.

2) Infertility:
a) Definition: The term in Islam refers to the man who cannot have children and the woman who is barren.
b) Separation due to infertility: The scholars differed on the ruling of allowing the separation of the spouses due to infertility. The four Madhabs agree that infertility is not considered a defect in men and women. Hence, the marriage may not be annulled on the ground of infertility. However, Ibn Taymiyyah and Ibn ‘Uthaymeen adopt the view that it is considered a defect that can serve as a valid excuse to request the annulment of the marriage contract.

3) Nature of separation due to defects and the ruling on the bride price:
a) Classification of separation between the spouses due to the existence of defects: The separation between the spouses due to the existence of a defect is deemed an annulment and not a divorce. This is the view of the Shafi’i and Hanbali Madhab and the view of Ibn ‘Uthaymeen.
b) Ruling on the bride price:
i) If annulment occurred and the husband had not been alone with the wife: The majority of scholars hold the view that if the husband did not spend time with his wife alone in privacy, the wife is not entitled to the bride price or any maintenance, whether the defect was in her or in him. This is the view of the Maliki, Shafi’i and Hanbali Madhabs. [70] The Maliki scholars state that if the woman annuls the contract due to a defect in the husband, then she is not entitled to the bride price, whether this annulment and separation takes place by the words of divorce or anything else. Likewise, if the man rejects the wife and annuls the contract due to a defect in her without divorcing her, then the wife is not entitled to any of the bride price. However, if he rejected her by the means of divorce then he must pay her half of the bride price.
ii) If annulment occurred and the husband had been alone with the wife: The woman is entitled to the full bride price if the husband spent time alone with her in privacy. This is the view of the Hanafi and Hanbali Madhab.