Shighar (exchange marriage without a dower: its definition and the rulings of the four schools)

Shighar, with a kasra on the shin, is in language a marriage of the pre-Islamic period, in which a man gave a woman to another man on condition that the other gave him a woman, with no dower, and each woman's pudendum served as the dower of the other. Some say it applied only to near kin. It was named after a dog lifting its leg to urinate, or after the lack of dower. ¹ For the Hanafis, the Malikis and the Shafi'is, it is a man giving his female dependent to another on condition that the other gives him his, each one's dower being the other's pudendum. For the Hanbalis it is the same exchange, whether or not dowers are named or denied. ² The Malikis say the explicit form is for one to say: I marry you my dependent on condition that you marry me yours, with no dower named. Naming a dower for each is a form of shighar only in part. ²

In Hanafi doctrine the marriage is valid, since it is open-ended and an invalid condition has been added, namely that each pudendum serves as the dower of the other. A condition does not void a marriage. The dower named is invalid, since a pudendum is not property, so each party owes the comparable dower. The prohibition in the report of Ibn 'Umar is read as disliked. Shighar exists only when each makes the other's pudendum the dower and the other accepts; otherwise the marriage is simply valid. ^{2 3}

For the Malikis explicit shighar is an invalid marriage annulled before and after consummation, and after consummation each wife has the comparable dower. If one dower is named but not the other, the named one is annulled before consummation and after consummation the larger of the named dower and the comparable dower is due; this is called the compound of shighar. If each dower is named on condition of the other marriage, it is likewise invalid and this is called the form of shighar. ³

For the Shafi'is the marriage is void in its well-known form, by the prohibiting hadith, because it shares the pudendum between two marriages and carries a sense of suspension. Some say the cause is that it has no dower. If the pudendum is not made a dower, for example by silence, the sounder view is that it is valid, since there is no sharing, and each wife is due the comparable dower. In the cases where a sum is named as well as the pudendum, the sounder view is that the marriage is void because of the sharing; the opposite view holds it valid, since it is not the form of shighar and has a dower. ^{3 5}

For the Hanbalis the marriage is invalid, by the prohibiting hadith, and because each of the two contracts becomes a loan against the other, like saying sell me your garment on condition that I sell you mine. It makes no difference whether each pudendum is made the dower of the other, or they are silent, or they deny a dower; the invalidity comes from linking each contract to the other. If each names a dower, there is no sharing, only an invalid condition; the condition falls and the marriage stands with the named dower, which is the school's view. Al-Kharaqi says the marriage is void, and Abu Bakr says both marriages are void. ^{5 4}