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Gifts given During Engagement

Answered by Shaykh Muhammad ibn Adam al-Kawthari

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QUESTION: I was going to marry someone, but it did not happen. This man gave me money many times. He also gave me a lot of gifts. Now our relationship has been cut. I want to know, should I pay him this money back or not? It’s a big amount by the way for me not for him.

ANSWER: In the name of Allah, Most Compassionate, Most Merciful,

The renowned Hanafi jurist (faqih), Imam al-Haskafi (Allah have mercy on him) sheds light on this very issue in his Durr al-Mukhtar. He states:

“One proposed (and got engaged) to the daughter of a man and then sent her things, but the girl’s father did not marry her off (to him), then in such a case, whatever he sent as dowry (mahr) he may take back, but only the actual items (m: which he sent) even if they had changed due to them being used, or he may take back their value if they no longer exist.

The reason being is that these items (or item) were given as a return (m: because dowry is considered a return for the woman coming into one’s marriage), and this return (m: of the woman coming into the marriage) was not complete, hence it will be permitted to take back (m: what was given as dowry). Similarly, one may take back that which was given as a gift provided it still exists, not that which is destroyed or consumed, because it is a form of gift.” (Durr al-Mukhtar)

The commentator of Imam al-Haskafi’s work Durr al-Mukhtar, Allama Ibn Abidin (Allah have mercy on him) adds in the explanation of the above text that whatever both parties agreed upon to be the dowry, the man can take back. Also, no matter how old or used these items become, the man cannot demand their value. The cost and value of the items can only be demanded when these items (given as dowry) no longer remain, either by being destroyed or disposed off in some other way. He also states that, besides what is given as dowry is considered a gift, hence being destroyed or consumption of these items (given as gift) prevent the necessity of returning them. (See: Radd al-Muhtar ala al-Durr al-Mukhtar, 3/153. The same has, more or less, been stated in al-Fatawa al-Hindiyya, 1/328 & Tahtawi ala al-Durr, 2/66)

The meaning of the above explanations given by Imam al-Haskafi and Imam Ibn Abidin (Allah have mercy on them both) is that, there are two situations here:

a) If something was given as dowry, the man is permitted to take it back, regardless of whether the item remains with the woman or it is destroyed by being used or disposed off in some other manner. If the item is still with the woman, the man will take it back as it is, even if it becomes old due to being used, and if the item no longer remains with the woman, then she will have to give back its value in cash or another similar item.

The reason behind this ruling is that, dowry (mahr) is given as a return for marriage, thus due to the fact that marriage did not take place, the man is eligible to receive back what he gave as dowry.

b) The second situation is that, the man gave some item or cash as a gift. In this case, he is entitled to receive it back, but only if the item or cash remains with the woman. If it got destroyed or she used it (such as she spent the cash), then she does not have to give it back to him.

The reason being is that it was given to her as a gift, hence a gift can only be taken back (in this context) if she still has it in her possession.

However, one must remember here that the above ruling (in both situations) is in the case where the woman or her family broke off the engagement. If, however, the man refused to marry her, then she does not have to return anything regardless of whether it was given as dowry or gift, and regardless of whether she still has the item/s in her possession or otherwise.

This is understood by Imam al-Haskafi’s statement “but the girl’s father did not marry her off (to him)” and Imam Ibn Abidin’s addition here “similarly if the girl herself refused to marry and she is mature” hence if the man or his family broke off the engagement, then the woman does not have to return anything.

In other words, there are two conditions which necessitate the woman returning what was given to her by the man:

1) She or her family broke off the marriage engagement,

2) It was given to her as dowry, or it was given as a gift and she still has it in her possession,

Now, this leaves us with the question, what is the solution in case of both parties disagreeing on the nature of what was given? What would the ruling be if the man says that it was given as dowry and the woman says it was given as a gift?

The answer to this question is answered by Imam al-Haskafi and Imam Ibn Abidin (Allah have mercy on them both), in the text which precedes the abovementioned text of Durr al-Mukhtar, that in the case of such disagreement, the man’s word will be taken provided he takes an oath stating that it was dowry. And in the case of both parties providing evidence, the evidence of the woman will be preferred and accepted. (Radd al-Muhtar, 3/151)

In conclusion, you state that you were expected to marry this brother and that he gave you a big sum of money, after which you did not end up marrying him. Thus in light of the above explanation, if the money was given to you as dowry, then you will have to return it to him, provided you or your family cancelled the engagement. If he or his family broke off the engagement, then you do not have to return it.

However, if he gave you the money as a gift, then if you still have the money with you, only then will you have to return it otherwise not. This also provided you or your family cancelled the engagement. If he broke off the engagement, then you do not have to return anything to him.

And Allah knows best

Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK

[Source: SunniPath]


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