7. DEFECTS IN THE SPOUSE PERMITTING ANNULMENT OF MARRIAGE
DEFECTS IN THE SPOUSE PERMITTING ANNULMENT OF MARRIAGE
In any of the following circumstances, the husband or wife has the option to annul the marriage agreement immediately, if this is done in the presence of the Islamic magistrate (or a third party chosen to judge between them, provided that he is a mujtahid and there is no Islamic judge), even when the partner annulling the marriage has the same defect whose existence in the spouse has motivated him or her to annul it (as when, for example, both are insane):
1. one finds that the spouse is not sane, or has elephantiasis or leprosy;
2. the husband finds that the wife’s vagina is closed or nearly so because of an abnormal growth of flesh or bone;
3. or the wife finds that the husband is impotent, or that his penis has been dissevered.
The agreement may also be annulled when the defect occurs after making the marriage agreement, except when a husband’s impotence occurs after he has had sexual intercourse with his wife, in which case annulment is no longer possible. When a husband (impotent from the beginning) acknowledges his impotence, the magistrate postpones action on the case for one year from the day it is first submitted to his consideration. If the husband has intercourse with her during the year, then she is not entitled to annul the marriage, though if he does not, then she may annul it. In cases of impotence, her above-mentioned prerogative of annulling the marriage “immediately” means after this period of one year.
When a marriage is annulled before sexual intercourse, the woman does not receive her marriage payment (mahr) (no matter whether the defect is in her or in him (as opposed to divorce before sexual intercourse).
When a marriage is annulled after intercourse because of a defect that occurred after it, the full marriage payment stipulated by their agreement must be paid to her.
When a marriage is annulled (after sexual intercourse) because of a defect that occurred before intercourse (whether simultaneously with the marriage agreement or after it but before intercourse), then the bride is only given the amount typically received as marriage payment by similar brides.
If any of the following occurs before intercourse has taken place, then the marriage is immediately annulled:
1. one of a couple who are idolators becomes a Muslim;
2. one of a Zoroastrian couple becomes Muslim;
3. the wife of a Jew or Christian becomes a Muslim;
4. both husband and wife leave Islam;
5. or one of them does.
But when one of the above things. happens after intercourse, then a waiting period must intervene before the marriage is annulled. If both husband and wife (are, or) become Muslim before the waiting period finishes, then their marriage continues. And if not, then the marriage is considered to have been over since the change of religion first took place.
When a (non-Muslim) man who has more than four wives becomes Muslim, he is obliged to choose just four of them (and the others’ marriages are annulled).
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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