Returning the Dowry and Civil Compensations for Nulling Marriage Contract over Hatred in Yemeni Law and Islamic Shari'a: Legal Rooting and Legal Rooting Statement

Abstract

     The Marriage contract is nulled by a verdict issued by judge over hatred due to woman's aversion to her husband for harming her or for widening dissention between them to a degree that their marriage has become impossible or over disharmony of their temperaments. This issue is licit in Yemeni Law and in some religious sects. Accordingly, the wife has the right to ask for revoking the marriage contract. The husband has the right to take compensations for marriage termination provided that the dispute, which makes marriage impossible due to harm from the husband or disobedience and abstention from the wife.

     Most of Shari'a jurists in Egypt and Morocco say it is illegal for husband neither to take compensation religiously or lawfully if the husband is behind dissention but it is legal if the wife is disobedient and there is no negligence from the husband.

     Marriage is a lasting contract and its revocation requires making the couple return to their position before marriage.  As this is impossible, compensation is obligatory; the wife shall give back the dowry, the gold and wedding costs to the husband and everything preconditioned by the wife's guardian. The husband shall be compensated for proved material and moral harm, yet exchanging rate is not included. However, wife's inability to repay what has been ruled to repay due to spoiled thing or her inability does not hinder revocation as making settlement better than compensation. The judge acts of returning the defined dowry even if the husband does not demand it and he may not get verdict other than it only by his request and must provide evidence. As for previous alimony, it is not omitted if reason of hatred is caused by impact from the husband but is omitted if the reason is wife's recalcitrance.

     Yet, the wife is not obliged to give back anything of the aforementioned if it is due to the hatred of the husband. As a result of this, law makes this reason enough for nulling marriage such as the non-alimony, absence, wine addiction, inconformity of religion and morality, madness, leprosy or sexual inability.

Nevertheless, the legal fundamental of nullity is that the order of Allah and teachings of his messenger must be implemented as long as there is necessity of blocking the pretext of keeping the marriage. The contract should be revoked to avoid harms and blight of keeping it. The law did not consider one belief of any Jurist sect only but amalgamating rules from the doctrines of Maliki'ah, Zaidiah and Shafi'iah and the Scholar Shawkani took both of them distinctly.

     The fundamental of legal nulling is the impossibility of implementation due to husband's negligence of honoring his pledges of conviviality and stopping harm or due to wife's disobedience for her inability on continuing cohabitation with the one whom she hates and cannot afford sleeping with him. She is not forced to do it in kind but she is obliged to compensate.