Marriage is a religious duty and can also be regarded as a social necessity. The reason for terming it as a social necessity is because it acts as a means of establishing families and, as we know, the family is the fundamental unit of society. Such a pure bond of love must not be tainted with things that may ruin the marital life. That’s why Islam emphasizes that both partners are put in clear picture about the facts that are vital to the survival of their relationship.
According to Islam, marriage involves two people sharing feelings of love, kindness and mercy. If either of the spouses displays a definite sign of an incurable disease, is the other spouse allowed to file for an annulment of the marriage contract or not? Muslim jurists have differed over this case. They are of three views:
Firstly, neither of the married couple has a choice to annul the marriage if he or she discovers a defect in the other, whether this defect arises before or after contracting the marriage and whether it is the husband or the wife that suffers from it. This view is held by Az-Zaheriyyah.
Secondly, either spouse is allowed to ask for separation on account of specific defects. This is the view upheld by the Hanafis, Malikis, Shafi`ies and Hanbalis. However, the Hanafis maintain that separation should only be due to defects induced by disease in the husband specifically, though they differ as regards the number of these defects. Conversely, jurists of the school of Malik, Ash-Shafi`i, Ahmad, Zayd and Ja`far are of the opinion that filing for separation is admissible, whether it is the husband or the wife who suffer from defects. Yet, these jurists, too, failed to agree on the number of defects making separation suit admissible.
Thirdly, both parties are allowed to file for an annulment due to any physical or disease-induced defect. This is the opinion of Shurayh, Ibn Shehaab, Az-Zuhri and Abu Thawr. This view is also supported by erudite scholar, Ibn Al-Qayyim in his Zaad Al-Ma`aad (Provision for the Hereafter), vol. 4, p. 58-9. It is the view believed to be most correct in the school of Ahmad Ibn Hanbal, as cited in Ibn Qudamah’s Al-Mughni (vol. 7, p. 587).
If a husband discovers, after consummating the marriage, some defect in his wife that he did not know of and cannot accept, he is permitted to ask the person who deceived him for a refund of the dowry he paid. The wife’s guardian stands surely for the dowry. This is the opinion of Imam Malik, Ash-Shafi`i, Az-Zuhri and Qatadah. It goes in line with a narrated tradition traced back to `Umar Ibn Al Khattaab, may Allah be pleased with him. Abu Haneefah and Ash-Shafi`i maintain that the husband is not entitled to any refund, because he gets his rights the moment he consummates the marriage. This conforms to what `Ali Ibn Abi Taalib, may Allah be pleased with him, said regarding a similar case.
Courts in Egypt issue rulings on such cases according to the Fiqh of Imam Abu Haneefah, article no. 280 in the Shari`ah courts regulations, decreed by law no. 78 for the year 1931. According to this school, a husband is not to file for an annulment should he discover some defect in his wife, since he has the right to divorce her if the defect turns out incurable. This is due to the fact that marriage is based on the right of mutual pleasure. According to Fath Al-Qadeer (vol. 3, p. 268), if a wife suffers from any kind of defect, a husband has no right to annul the marriage. This is explained by the fact that should a husband fail to enjoy all his conjugal rights on account of his wife’s health, he is still not entitled to annul the marriage and the dowry is not to be refunded. Therefore, a husband getting only some, but not all, of his rights is all the more reason why he is not to annul the marriage contract. Claiming one’s conjugal rights is only a consequence of marriage. Failing to effect the consequence of marriage has no impact on the contract. If a husband is barred from his rights because of such defects as bad breath, malodor or excessive wounds, he is still not allowed to annul the marriage. What he is indisputably entitled to is consummating the marriage, which he does so long as the wife’s labia are apart.
In Fiqh Al-Madhaahib Al-Arba`ah (Islamic Jurisprudence according to the Four Schools) (vol. 4,p. 189) second edition, “a husband is not to annul the marriage on account of any defect in the wife’s sexual organ, such as her labia being conjoined, or anything of the sort. However, he has the right to force her to fix the problem through surgery or treatment. Should the defect turn out to be incurable, the husband has a right to divorce her, because marriage is based on the concept of pleasure. So divorcing the wife because of an incurable disease without defaming her is in fact having mercy on her. This being the case, in addition to the fact that according to the Shari`ah, whenever a marriage contract satisfies all legal conditions, as explained in books of Fiqh, it becomes legally and correctly binding. All results and consequences should therefore follow, namely the rights and duties of each of the spouses. The validity of the marriage does not hence hinge on the possibility of engaging in sexual intercourse with the wife.
Consequently, if a husband is to discover a certain defect in his wife, he can either choose to continue living with her and consort with her in kindness or divorce her if the defect is incurable. Hence, a wife in that case is entitled to all of her legitimate rights which the divorce entails, including her deferred dowry”