Is the legitimate privacy that occurred between the spouses before consummation, which included kissing and touching, considered as consummation that waives the necessity of a new marriage contract and dowry after an uncompleted divorce, and based on which the wife is returned?
If a valid seclusion () occurs between spouses, it takes the place of consummation (dukhool) in several matters, including: the obligation to complete the dowry, the obligation of the waiting period (), and the husband's right of return (rajah) if he divorces her fewer than three times. The majority of jurists hold that a valid seclusion confirms the dowry. So, if a husband secludes himself with his wife in a valid seclusion, and then divorces her before consummation, he is obligated to pay the stipulated dowry, or the full equivalent dowry (mahr al-mithl) if no dowry was stipulated. This is based on the Almighty's saying: "And how could you take it while you have gone into each other?" (Quran 4:21), and on the Prophet, peace and blessings be upon him, saying: "Whoever uncovers his wife's veil and looks at her, the dowry becomes obligatory, whether he has consummated with her or not."
Summary from Ftawy's records · added here
Reviewed by El Fatwa's sharia committee.
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