[A Woman’s Entitlement to What Is Mentioned in the Contract—even if Intended for Someone Else]

Answer—and Allah grants success: According to the madhhab, the woman is entitled to everything mentioned in the contract—even if it was originally intended for someone else. They excluded from this what is mentioned in the contract for a known purpose—such as hospitality expenses—for she does not become entitled to that even if written into the contract. They also said: Whatever is stipulated before the contract counts as a permissive grant (ibāḥah). One may retract it so long as it remains, or reclaim its value after it is consumed if, by custom, it is of things expected to remain like clothing. If it is of things customarily consumed like livestock or food, then after it is consumed there is no claim—provided it was consumed in the customary time of consumption—except that if they then refuse the marriage, its value is reclaimed in all cases. After the contract, such items are treated as a gift or present according to the circumstances—or a bribe if they would hand them over only for that. So stated the scholars of the madhhab in the marginalia on Sharḥ al-Azhār.
I say: It is as though by their words “whatever is stipulated before the contract …” to the end of the discussion, they intend what is stipulated for other than the bride.
Yes: What appears to me is that the woman is entitled to—and owns—the gold, whether it was stipulated for her in the contract or stipulated for her before the contract and the contract was then concluded on the basis of that prior stipulation.
Thus, if the guardian and the groom agreed that the groom must give his intended wife such-and-such amount of gold jewelry, such-and-such number of garments, a wristwatch, and on the wedding night such-and-such a fattishah (as they call it), and the contract was then concluded on the basis of those agreed terms and the husband consummated the marriage—then she is entitled to all that was stipulated for her, whether it was labeled “dowry,” “fattishah,” or any other name.
The proof is His saying: “And if you have given one of them a great amount, then do not take back from it anything …” [an-Nisāʾ:20]. And this is apparent.
It may be said: Jewelry and clothing are given to the wife so she may beautify herself for her husband; therefore, she is entitled to them only so long as she remains in his bond. If he divorces her, he may reclaim all of it.
We reply: The purpose of the jewelry and clothing is adornment; that is why the guardian stipulates them for the woman. But the fact of that purpose does not mean the items remain the husband’s property. Analogous cases indicate the contrary: whoever clothes another, by default the clothing departs his ownership.
If it is said: Custom dictates that the gold and clothing belong to the husband. People have long proceeded on that basis—that if the husband divorces his wife he reclaims the gold, even if he is the party who dislikes (her).
Indicating this is that, if the wife were to sell some of her jewelry or clothing, her husband and her guardian would object.
We reply: If the custom is truly thus, and both wife and husband are aware that the gold is understood to belong exclusively to the husband, then matters follow that custom. Yet a difficulty remains: were the husband to take the gold from his wife and dispose of it without her permission, she would object and demand its return—and the woman’s family would likewise object and demand the gold, perhaps even keeping her from him until he returned it. If the gold were the husband’s, such objection would not arise.
If it is said: The objection arises only, because he has breached what he undertook—namely that she be adorned so long as she is his wife.
We reply: Once she is entitled, by virtue of the marriage, to what was stipulated for her, that becomes her property, akin to the dowry. By “her ownership of the gold,” we mean precisely this.
In conclusion, the safest and most prudent course is to leave the gold with the wife if the husband divorces her and he is the one who dislikes (her).
Source : Min Thimār al-ʿIlm wa al-Ḥikmah vol.1