Fiqh oif Nikah (Marriage)

DEFINITION OF MARRIAGE 

Nikah is an Arabic term used for marriage. It means “contract”. (“Aqd in Arabic). The Quran specifically refers to marriage as “mithaqun Ghalithun,”. Which means “a strong agreement”. “and they have taken a strong pledge (Mithaqun Ghalithun) from you?” (Quran 4:21)

The seriousness of this covenant becomes very obvious when one finds the same tern i.e., Mithaqun Ghalithun, being used for the agreement made between Allah and the Prophet before granting them the responsibility of the Prophethood. (Quran 33:7)

The Quran also uses the Arabic word “Hisn”, suggesting “fortress” for marriage. Marriage is considered the fortress of chastity.

PURPOSE OF MARRIAGE 

Nature has so arranged that man and woman are attracted to each other. This natural attraction brings them together and they lead a common life and form a family. This natural tendency, the instinct of sex, should be guided to the right direction so that it may be utilized in the service of humanity. Though the common life of a husband and wife originates from the sexual instinct, it gradually develops into a seep, spiritual, sentimental, social and economic relationship. That is what Islam calls matrimony.

Islam has attached great importance to the question of marriage in its social system. In the Holy Quran and the sayings of the Holy Prophet we find that marriage has been greatly encouraged. Prophet Muhammad (s.a.w.) said: ‘No institution of Islam is liked by Allah more than that of marriage.

The basic objectives of marriage in Islam are, first, securing a comfortable atmosphere for a husband and wife and, second, producing a new generation of healthy, faithful and virtuous children. With regard to the first objective, the Holy Quran says: “One of His signs is that He created for you spouses of your own species, so that you might find comfort with them. And He put mutual love and affection in your hearts. Surely in this there are lessons for the thinking people” (30:21)

A Muslim husband and wife who follow the teachings of the Holy Quran should always be a source of comfort for each other. Their relationship should reach far above that of mere sexual enjoyment and should reach the stage of cordial friendship accompanied by mutual benevolence.

With regard to the second objective, the Holy Quran says: “He is the Creator of the heavens and the each. He has given you partners from among yourselves and, similarly, made the cattle also males and females. That is how he multiplies you. Nothing can be compared to Him, He is the All-hearing, the All-seeing.” (43:11)

The second criterion is morality. The Holy Prophet said. “As soon as a suitor, who is religious and who has manners that satisfy you comes to you asking for a matrimonial alliance, take action to join in marriage with him. If you do not do so, you will have deviated from the right path and may be faced with a great crisis.

The third criterion is financial competence. A Muslim man must provide means of living to his wife and children, even if the wife is wealthy or earn a salary. The fourth criterion is compatibility and similarity in the ideas and goals of the husband and wife.

Muslim men and women who walk upon the straight path of Allah, implementing Divine law and justice, recognize marriage to be one of the Divine laws. Once this Divine union is established, the Muslim community begins to form. A satisfactory and happy married life can be achieved if the partners realize the concept of human marriage. They must be benevolent friends and faithful associates, deem it necessary to cooperate with each other in every respect, refrain from every kind of arrogance and haughtiness in their mutual dealings and finally, and most important, respect their reciprocate rights and try to please each other by obeying Allah in every aspect of their relationship.

The Holy Quran says: “And one of His signs is that He created mates for you from your own species that you may find comfort in them and He put between you and them love and compassion. Most surely there are signs in this for people who reflect” (30:21). From this verse, it can be seen that a couple can attain inner peace and calmness through the love that Allah has put in their hearts. But this love is different from the concept of love in the non-Muslim world, especially in Western culture. This love between a man and a woman includes a very important factor, the love of Allah and the love to serve Him. This is the love That remains through difficult times. It gives each spouse strength and encouragement and the will to sacrifice, not only to please the spouse or children, but mainly to please Allah, Who will take account of every action done in His way.

The human being is, however, weak by nature, so things may not always work out well and in favor of the well-being of each member of the family. Although divorce is very much disliked by Allah, it is still permitted in Islam at times, when there is absolutely no other alternative or a family’s productivity and participation in the Islamic community is hindered by couple’s unwillingness to be together.

Islam teaches the human-being to be responsible in all his decisions and actions. The Holy Quran and the saying of Prophet Muhammad (s.a.w.) continuously remind Muslims of their duties and obligation to one another. The application of these teachings begins in the home, among members of the family. This is why the institution of marriage is so highly regarded in Islam. The Holy Prophet said: “When a person marries, he has completed half of his religious obligations.”

 Importance of Marriage in Islam

Allah has created men and women as company for one another, and so that they can procreate and live in peace and tranquility according to the commandments of Allah and the directions of His Messenger. The Qur’an says: “Marry those among you who are single and (marry) your slaves, male and female, that are righteous” (Quran 24:32)
And among His signs is this, that He created for you mates from among yourselves, that you may dwell in tranquility with them, and He has put love and mercy between your hearts. Undoubtedly in these are signs for those who reflect. (Quran : 30:21) And Allah has made for you your mates of your own nature, and made for you, out of them, sons and daughters and grandchildren, and provided for you sustenance of the best. (16:72)

These verses of the Noble Qur’an clearly show that in contrast to other religions like Christianity, Buddhism, Judaism etc. which consider celibacy or monasticism as a great virtue and a means of salvation, Islam considers marriage as one of the most virtuous and approved institutions. The Messenger of Allah (peace be upon him) declared, “There is no monasticism in Islam.” He further ordained, “O you young men! Whoever is able to marry should marry, for that will help him to lower his gaze and guard his modesty.” (Al-Bukhari)

Modesty was regarded as a great virtue by the Prophet. He said, “Modesty is part of faith.” (Al-Bukhari)

Marriage, in fact, is specifically considered the tradition (sunnah) of Prophet Muhammad (S) when he declared: “Marriage is my Sunnah, whoever disregards my (sunnah) path is not from among us”. (ibn Majah)

With these Qur’anic injunctions and the guidance from the Prophet (peace be upon him) in mind, we shall examine the institution of marriage in the Shari’ah.

The word zawaj is used in the Qur’an to signify a pair or a mate. But in common parlance it stands for marriage. Since the family is the nucleus of Islamic society, and marriage is the only way to bring families into existence, the Prophet (peace be upon him) insisted upon his followers entering into marriage The Shari’ah prescribes rules to regulate the functioning of the family so that both spouses can live together in love, security, and tranquillity. Marriage in Islam has aspects of both ‘ibadah (worship) of Allah and mu’amalah (transactions between human beings).

In its ‘ibadah aspect, marriage is an act pleasing to Allah because it is in accordance with his commandments that husband and wife love each other and help each other to make efforts to continue the human race and rear and nurse their children to become true servants of Allah.

In its mu’amalah aspect, marriage being a lawful response to the basic biological instinct to have sexual intercourse and to procreate children, the Shari’ah has prescribed detailed rules for translating this response into a living human institution reinforced by a whole framework of legally enforceable rights and duties, not only of the spouses, but also of their offspring.

These aspects are beautifully explained in a tradition of the Prophet. It is narrated by Anas that the Messenger of Allah (peace be upon him) said, “When a man marries, he has fulfilled half of his religion, so let him fear Allah regarding the remaining half.”

The Prophet considered marriage for a Muslim as half of his religion because it shields him from promiscuity, adultery, fornication, homosexuality etc., which ultimately lead to many other evils like slander, quarreling, homicide, loss of property and disintegration of the family. According to the Prophet (peace be upon him) the remaining half of the faith can be saved by taqwa.

Prophet Muhammad (S) declared: “When the servant of Allah marries, he has fulfilled half the (responsibilities laid on him by the) faith; so let him be God conscious with respect to the other half”. (Mishkat)

Marriage has also been commended as the way of the prophets.

“We indeed sent messengers before you (O Muhammad), and We assigned them wives and children” (Quran 13:38)

Conditions of Marriage

Careful consideration of the Qur’anic injunctions and the traditions of the Prophet (peace be upon him) clearly show that marriage is compulsory (wajib) for a man who has the means to easily pay the mahr (dowry) and to support a wife and children, and is healthy, and fears that if does not marry, he may be tempted to commit fornication (zina). It is also compulsory for a woman who has no other means of maintaining herself and who fears that her sexual urge may push her into fornication. But even for a person who has a strong will to control his sexual desire, who has no wish to have children, and who feels that marriage will keep him away from his devotion to Allah, it is commendable (mandub).

However, according to the Maliki school, under certain conditions it is obligatory (fard) for a Muslim to marry even if he is not in a position to earn his living:

  • If he fears that by not marrying he will commit fornication (zina).
  • If he is unable to fast to control his passions or his fasting does not help him to refrain from zina.
  • Even if he is unable to find a slave girl or a destitute girl to marry.

However some jurists suggest that if a man cannot procure a lawful livelihood, he must not marry because if he marries without any hope of getting lawful bread, he may commit theft, and in order to avoid one evil (his passions) he may become the victim of another (theft).

The Hanafi school considers marriage as obligatory (fard) for a man:

  • If he is sure that he will commit zina if he does not marry.
  • If he cannot fast to control his passions or even if he can fast, his fast does not help him to control his passion.
  • If he cannot get a slave-girl to marry.
  • If he is able to pay the dowry (mahr) and to earn a lawful livelihood.

Marriage is forbidden (haram) to a man, according to the Hanafi school, if he does not possess the means to maintain his wife and children or if he suffers from an illness, serious enough to affect his wife and progeny.

It is not desirable (makruh) for a man who possesses no sexual desire at all or who has no love for children or who is sure to be slackened in his religious obligations as a result of marriage.

In a beautiful tradition the Prophet (peace be upon him) has given the most important point that should weigh with every Muslim in selecting his bride: “Whoever marries a woman solely for her power and position, Allah will only increase him in humiliation. Whoever marries a woman solely for her wealth, Allah will only increase him in poverty. Whoever marries a woman because of her beauty, Allah will only increase him in ugliness. But whoever marries a woman in order that he may restrain his eyes, observe cautiousness, and treat his relations kindly, Allah puts a blessing in her for him and in him for her.”

In order that problems should not arise after marriage the Prophet (peace be upon him) recommended that, in the selection of his bride, a man should see her before betrothal lest blindness of choice or an error of judgment should defeat the very purpose of marriage. But this “seeing” is not to be taken as a substitute for the “courtship” of the West. The man should not gaze passionately at his bride-to-be, but only have a critical look at her face and hands to acquaint himself with her personality and beauty. However, if a man so desires, he may appoint a woman to go and interview the proposed bride, so that she may fully describe the type of girl she is.

Since believing men and women are referred to in the Qur’an, a woman also has the right to look at her potential husband.

The special permission for men and women to see each other with a view to matrimony does not contravene the code of conduct for believing men and women to lower their gaze and be modest which is laid down in the Holy Qur’an.

The Marriage Contract

Goals of this Chapter

Definition of some important fiqh terms including arkaan, shuroot, sahih, baatil and faasid.

The different conditions and/or prerequisites needed for a marriage contract to be considered valid, enforceable and binding.

In particular, the importance of the guardian (wali), witnesses (shuhood) and the dowry (mahr).

General concepts concerning conditions or stipulations in any type of contract and the ruling regarding adding such stipulations into a marriage contract in particular.

The ramifications and effect on the contract when certain conditions are not properly met.

Introduction

Marriage in Islam is a contract.  Thus, as in any contract in Islam, there are elements which are considered essential to its existence, called arkaan, the possibility of stipulations of different kinds, legal effects of the contract, etc.    Each of these should be understood properly in order to ensure that the marriage has been performed in the proper manner and the rightful effects of the marriage are granted to each of the participating partners.

Definition of Rukn and Shart

Rukn (plural: arkaan) can be translated as “pillar” and is an essential part of the legal reality of something.   Without it, that legal reality does not exist.

Shart (plural: shuroot) can be translated as “prerequisite” or “condition” is a requirement for the legal reality/validity of something but 1) is external to it and/or 2) does not completely void the legal reality if not found.

Az-Zuhaili writes: “According to the Hanafis, a rukn is something upon which the existence of something else is dependent, however it is also part of that thing which is dependent on it.  A shart for them is a prerequisite upon which the existence of something else depends but it does not form a part of that other thing… For the majority (of the scholars), a rukn is the thing upon which something and its existence rests, it cannot be in reality without it or it is something which is a must.  Their famous expression is “It is a thing by which the shari’a reality of a thing will not exist except with it.”  That is the case regardless of whether it be an actual part of the thing or something separate from it.  A shart for them is something upon which another thing is dependent but which does not form part of it.”  (Wahbah Az-Zuhaili, Al-Fiqh Al-Islami wa Adillatuhu (Berut: Dar Al-Fikr, 1985) vol. 7 p. 36)… The following example will demonstrate the different between the Hanafi approach and that of the rest of the schools of thought.  The actual existence of the girl that is to be wed is something external to the process of the marriage contract.   Therefore, since it is external, the Hanafis would not call it a rukn although, obviously, no marriage would actually take place without her existence.   This makes it a shart in their terminology.  In the other schools of thought, the fact that no marriage can occur without the existence of the girl getting married is sufficient to call her existence a rukn of the marriage contract even though her existence is external to the actual contract process itself.

The Arkaan of a Marriage Contract

All the scholars agree that “offer and acceptance” (Al-Ijaab wa al-qubool) is among the arkaan of a marriage.  There is a difference of opinion concerning the other arkaan as discussed below:

The Arkaan of a Marriage According to the Hanafis

Offer and acceptance are the only arkaan of the marriage contract in Hanafi fiqh due to their definition of rukn as explained above. Furthermore, in Hanafi fiqh, the offer/acceptance can begin from either party.

The Arkaan of a Marriage According to the Jamhoor (Majority of Scholars)

1.     Offer and acceptance are among the arkaan.  For most of these scholars, the offer must be from the woman’s side and the acceptance from the man.

2.     The two parties to the contract: the prospective husband and the guardian of the woman.

Some also count the following among the arkaan, although the majority of these scholars count them among the shuroot:

  • The presence of witnesses.
  • Dowry.

The Wording of the Contract

There are a variety of opinions as to exactly which phrases are valid in the transaction of the marriage contract.  Of all these opinions, it seems clear that the best of them is that any wording that makes the intent of the contract clear to all involved should be considered a valid marriage, while the best format would be that actually used by the Prophet (sas) and his companions.  Also, it is considered best if the contract is executed in spoken form.  However, due to need or necessity, it may be done through writing or signing.

Among the different possible phraseology, the very clear terms such as “I marry you” as accepted by all.  Anything which indicates a temporary nature of the contract is forbidden.  In others there is some difference of opinion such as “I present to you”, “I give to you”, “I sell to you”, etc.

The Hanafi and Maliki Approach

This opinion says that any term which is clear by itself or by the context and in this way implies marriage would be considered valid if the witnesses and the parties understand it as such.  This supported by the following segment of along verse in which Allah mentions all of the categories of women which are halal for the Prophet (sas): {…Wa imra’atan in wahabat nafsahaa lin Nabiy in araada an-nabiy an yastankihahaa khaalistan laka min duni al-mu’mineen…} {…and a woman who gives herself to the Prophet if the Prophet wishes to marry her – exclusively for you and not the [rest of the] believers…}  Al-Ahzaab:50

It is also reported that the Prophet (sas) himself used the following expression in performing a marriage: “Qad mallaktukahaa bima ma’aka min al-qur’an.” “I have put her in your possession for the Qur’an which you possess.”  Al-Bukhari

The Hanbali and Shafi’iy Approach

This opinion says that the marriage is not proper unless it uses forms of the following words which are found in the Qur’an and hadith:  nikah or zawaaj.   Their response to the above evdience is that since the verse clearly applied to something given specifically to the Prophet (sas) it is not applicable here and that the actual words of the hadith are from the narrator who may not have transmitted it exactly.   Bottom line:  Marriage is a contract and, like any other contract if the intention and goal of the contract is clear to all parties, there need not be any additional restrictions on the actual words used.  On the other hand, due to the seriousness of this contract, there is no hardship in sticking to the original words used most commonly by the Prophet (sas) and his companions.

Does it Have to be in Arabic?

According to the majority of the scholars, it is not necessary for the marriage contract to be transacted in Arabic, even for those who have the ability to speak Arabic.  Those in the Hanbali school who required the use of forms of the words nikah or zawaaj also required that the contract be transacted in Arabic for this reason.

The Different Types of Shuroot (Conditions or Prerequisites)

At this point, we need to learn the definition of some general terms in Islamic fiqh which come up in many subject areas, including the one at hand.

Sahih (Sound).  A contract which fulfills all of the arkaan and the shuroot and has full effect in the law.

Baatil (Void).  A contract that has failed to fulfill specific arkaan or vital shuroot.  A contract which is baatil is the opposite of one which is sahih and has no legal effect at all.  If a marriage contract is found to be void, even if it is only discovered after consummation, the legal condition will be as if it never happened at all.  The lineage of the father will not be established and there is no waiting period (‘iddah) upon the woman.  An example of this would be if a man married a woman who was married to someone else at the time.

Faasid (Defective).  This is a contract which fails to fulfill some of the shuroot, but not the arkaan.  For non-Hanafis, faasid and baatil have the same meaning.  In Hanafi fiqh, a marriage which was faasid has some legal ramifications, especially if it was consummated.

With respect to marriage, there are four different kinds of conditions which must be met:

  1. Conditions Required for Initiating the Contract (shuroot al-in’iqaad).   These are the conditions that must be present with respect to the arkaan or fundamentals of the marriage contract.
  2. Conditions Required for the Soundness of the Contract (shuroot as-sihha).   These are conditions which must be fulfilled in order for the marriage to have its proper legal effect.  If these conditions are not met, the contract is “defective” (faasid), according to Hanafi fiqh, “void” (baatil) according to the others.
  3. Conditions Required for the Execution of the Contract (shuroot an-nifaadh).   These are conditions which must be met for the marriage to have actual practical effect.  If these conditions are not met, then the marriage is “suspended” (mauqoof) according to Hanafi and Maliki fiqh.   For example, a minor girl until she reaches puberty.
  4. Conditions Required for Making the Marriage Binding (shuroot al-luzoom).   If these conditions are not met, then the marriage is non-binding meaning that either of the two parties or others may have the right to anull the marriage.   If they accept the marriage with such shortcomings, it becomes binding.

First:  Shuroot Required for Initiating the Contract

In this category, there are conditions concerning the two who are getting married as well as the form in which the contract takes place.

Concerning the Two Getting Married

The two people must meet the qualification of legal competence, i.e, they must be adult and sane.  If they are not, the marriage will be invalid.

Secondly, the woman cannot be from those categories of women that are forbidden for a man to marry.  For example, suppose a man married a woman and later discovered that they had been breastfed by the same woman.  In this case, it is as if the marriage never took place because those two were not qualified or allowed to marry each other and the marriage becomes null and void.

Concerning the Contract

There is near complete agreement on the following conditions relating to the transaction of the marriage contract:

  1. The offer and acceptance must be done in one sitting.  In general, this means that the response must be immediate.  Exactly what is considered a “sitting” depends on custom and related factors.
  2. The acceptance must correspond to what is being offered.  If the guardian says:   “I marry you to Khadijah”, a response of “I accept Fatimah as my wife” would not constitute a valid contract.  An exception to this is if the wali mentions a specific dowry amount and the groom responds with a higher amount.  It is regarded that there is no reason for dispute since it is assumed that a higher dowry will be acceptable.
  3. The wali cannot rescind the offer.  Unlike transactions of selling, neither party can say “I have changed my mind” once they have uttered the offer/acceptance.  It is immediately binding.  In a sale, they both continue to have the option to change their mind until the “sitting” is over and they part.
  4. The marriage must be effective immediately.  If the wali says “I will marry her to you after one month”, there is not marriage and the two remain unmarried.

Note that the custom of saying “I accept” three times common in some Muslim cultures has no legal significance.  Once the first “I accept” has been uttered, everything after that is meaningless – whether positive or negative.

Adding Stipulations to the Marriage Contract

This is where one party states a stipulation binding on the other party for specific reasons or goals.  The offer/acceptance are tied to this stipulation by mention.   There is a difference of opinion among the scholars concerning the validity of conditions of this nature.

Conditions of contracts are two types:  1) those imposed directly by the shari’a and 2) those drawn up by one or more of the parties.  When any contract is entered into, the first type of conditions are covered automatically even if they are not stated in the contract.

Understood Conditions Based on what is Customary

It is a general principle in fiqh that customs can take the status of law.   It becomes understood that people are going to behave in a certain fashion.   Since that is understood, one party has the right to ask it of the other even if it is not stated in the contract.  In the area of marriage, there are some stipulations that are known by custom.  These do not have to be mentioned in the contract to be considered binding.  However, there are some strict conditions that must be met before a customary act is considered something equivalent to a legal stipulation.   These conditions are as follows:

  1. The customary practice cannot contravene or contradict anything expressly laid down by the shari’a.  For example, it is custom in some parts of the world for the woman to pay dowry to the man.  In other parts, it is customary to prepare two or three times amount of food that the guests could possibly eat at the walima (wedding feast).  Neither party has the right to demand of the other the fulfillment of such customs.
  2. The customary act must be common, well-known and universal and not something practiced only by some portions of the population.
  3. The custom must have been in existence and known before the marriage contract took place.

Other conditions Laid Down by the Two Parties

Any condition which contradicts, compromises or nullifies the main goals and purposes of the marriage contract itself are rejected and, even if stated, are of no legal consequence.  For example conditions which state that the woman receives no dowry or that he does not have to support her or that they will not consummate the marriage are all null and void and of no effect whatsoever.

Such conditions must be stipulated and agreed upon at or before the time of the offer/acceptance.  Even those scholars who accept such stipulations do not accept them if they are made after the offer/acceptance.

Sound and Acceptable Stipulations

There are two types of sound and acceptable stipulations:

  1. Those embodied in the contract even if they are not stated. This includes conditions known from the shari’a as well as those known from custom as discussed previously.  The Prophet (sas) said: “Ahaqqu maa aufaitum min ash-shurooti maa istahlaltum bihi al-furooj.” “The conditions which you have the most duty to fulfill are those by which you have made marital relations lawful.”  Bukhari & Muslim… Many scholars understand this hadith to be referring to these kinds of conditions only, that is, those that are covered by the shari’a in the first place.   This is the view of the shafi’i school.  They do no allow any additional stipulations to be added to the marriage contract.
  2. Those conditions not covered by the essential nature of the contract but which are agreed upon by the contracting parties.  These are those stipulations that do not contradict the general goals of the contract, do not bring harm to anyone and which apply to things which are permissible and within the right of the person to agree – that is something that does not go against the shari’a.  They are laid out in the beginning to avoid any conflict or hardship in the future.

In General, Muslims Must Fulfill Their Agreements

Generally speaking, Muslims must comply with any agreements that they make.  Allah said about the believers: {…Wa al-moofoona fi ‘ahdihim idhaa ‘aahadoo…} {…And those who fulfill their pacts when they make one…}  Al-Baqara:177 {Yaa ayyuhaa alladhina aamanoo aufoo bi al-‘uqood…} {O you who believe fulfill your contracts…} Al-Ma’idah:1

The Prophet (sas) said: “Al-muslimoona ‘alaa shurootihim.” “Muslims are bound by their stipulations.”  Abu Daud & Al-Hakim (sahih)

During the time of Umar ibn Al-Khattab, a man married a woman upon the condition that he would not move her from his house.  The time came when he wanted to move her.   They took their dispute to Umar and he said:  “She has the right to her stipulation.”  The man said, “In that case, they will certainly end the marriage.”  He said, “The rights are broken off due to the stipulations.”  This was the view of many of the Companions, Followers and scholars including Saad ibn Abi Waqqas, Mu’awiyah, Amr ibn Al-Aas, Shuraih, Umar ibn Abdul Aziz, Tawoos, Al-Awzaa’i and Ishaq.

There is another opinion which says that external stipulations – those not covered by the nature of the contract itself – carry no weight and need not be met.  This was the opinion of Abu Hanifa, Ash-Shafi’i, Malik, Az-Zuhri, Qatada, Al-Laith, Ath-Thauri, Ibn Al-Mundhir and has been narrated from Ali.

The Proofs of Those Who Say that Such Stipulations are Neither Binding nor Valid

“Kullu shartin laisa fiy kitaabi Allahi fahuwa baatil wa in kaana mi’atu shartin.” “Every stipultion which is not in the book of Allah is void even if it be one hundred stipulations.”  Muslim & Bukhari

They also cite the following extension to the hadith mentioned earlier about stipulations:

“Al-Muslimoon ‘alaa shurootihim illa shartin ahalla haraaman au harrama halaalan.” “Muslims are bound by their stipulations except for a stipulation which makes the unlawful lawful or makes the lawful unlawful.”

However, this version of the hadith with the added sentence is weak and cannot be used as evidence.  As for the hadith mentioned earlier that “The conditions which you have the most duty to fulfill are those by which you have made marital relations lawful.”, they claim that this only applies to the conditions which are essential parts of the nature of the contract itself.

Response to Those Arguments

The scholars who permit such stipulations in the marriage contract have responded to the above.  As for the hadith “Every stipulations which is not in the book of Allah…”, they say that for a woman’s wali to make some conditions to her advantage is something permissible and does not go against the Book of Allah.

Actually, such conditions do not violate the Book of Allah and do not make anything forbidden permissible, etc.  They simply give the woman the right to annul the marriage if the condition is not satisfied.

Also, there remains no real meaning to the hadith “The conditions which you have the most duty to fulfill…” if one says that it only applies to conditions that are already in force due to the nature of the contract anyway.

The Crux of this Difference of Opinion

This discussion boils down to the understanding of two seemingly contradictory hadith: “Every stipulation which is not in the book of Allah is void even if it be one hundred stipulations.”  Muslim & Bukhari .. “The conditions which you have the most duty to fulfill are those by which you have made marital relations lawful.”  Bukhari & Muslim

It seems clear from the second hadith along with the fatwa of Umar mentioned earlier that there is some room for adding stipulations to a marriage contract.  It also seems clear from the first hadith that there are limits on what can be stipulated.   Specifically, any stipulations which go against the basic goals and principles of the marriage contract and not allowed and, if stated, are null and void.  Thus, the only remaining problem is understanding exactly how this principle applies in practical situations.

For those scholars who don’t accept such external stipulations at all, they have no effect, are not binding, and don’t affect the validity of the underlying contract.   For those who accept them, they give the woman the option to annul the marriage upon he request if the condition is violated.  We only mention the woman because the man can divorce at any time with or without a particular cause and so has no need of such an option.  Notice that even in the fatwa of Umar, he didn’t require the man to fulfill the condition, rather he allowed that she could end the marriage if she so demanded.

Conditions for Which there is Agreement that they are Invalid

Even those who accept these stipulations all agree that certain conditions are not allowed.  Among them are the following:

  1. Nikaah Ash-Shighaar.  This is where the two dowries are stolen and “exchanged”.  For example a man marries his son to another’s daughter in “exchange” for the other marrying his daughter to the first one’s son.   Neither woman receives their dowry.
  2. Nikaah Al-Mut’a.  Any kind of marriage with a stipulated time limit.
  3. Nikaah At-Tahleel.  A woman who has been divorced three times and wishes to return to her first husband marries a man on the condition that he divorce her.   If this is discovered or if this is her intention, the first husband still does not become lawful for her in spite of this marriage.

Second:  Conditions for the Soundness of a Marriage Contract

There are ten conditions (shuroot) in this category.  Some are agreed upon by virtually all the scholars while others are the subject of some disagreement.

  1. The woman is permissible to the man. i.e., that she is not one of those forbidden to him by relation, nursing or other existing and conflicting marriage.  Some would consider this on of the arkaan (pillars) or one of the conditions for initiating the contract.  In any case, this condition must definitely be met.
  2. The offer and acceptance is of a permanent nature and not temporary.

    All forms of temporary marriage are forbidden in Islam.  If anything stated in the offer and acceptance indicates a temporary nature, the marriage is not valid.

  3. Two non-discredited witnesses. There is some difference of opinion on this issue, but in the final analysis, the hadith is clear. Ibn Taimia mentioned four existing opinions on this issue:

    (1) The marriage must be announced and made public, regardless of whether the contract was actually witnessed or not.  This was the opinion of Malik as well as the scholars of hadith, the Dhaahiris and one opinion reported from Ahamd.(2) It is obligatory to have witnesses, regardless of whether the marriage contract is made public or not.  This was the view of Abu Hanifah, Ash-Shafi’iy and another opinion reported from Ahmad. (3) Both witnesses and a public announcement are necessary.  This is a third narration from Ahmad. (4) Either one of the two is necessary.  This is a fourth narration from Ahmad. Ibn Taimia himself felt that the second opinion (only witnesses required) is weak.   He claimed that there was no authentic source for same and that it was not widely known among the Muslims.  Instead, what is required is the public pronouncement letting the people know that the parties got married.  He says that if a marriage takes place without witnesses or public announcement it is definitely invalid, if it takes place with witnesses but no announcement it is questionable and if it takes place with both it is definitely valid.

    The portion of Ibn Taimia’s opinion which finds the witnesses NOT a requirement must be rejected, because the hadith on this subject has been found to be sahih: “Laa nikaaha illa bi waliyin wa shaahidaiy ‘adlin”

    “No marriage except with a guardian and two non-discredited witnesses.”

    So the bottom line here is that BOTH the witnesses AND the public announcement are required.  In fact, regarding public announcement, the Maliki school says that if the other parties ask the witnesses to keep it silent that the marriage is not valid and the two are to be separated – PERMANENTLY!  The Hanbali school holds that such a marriage is not invalid although it is disliked to do so.  The witnesses must be two adult and sane Muslim men whose testimony has not been previously discredited.

  4. Both parties to the contract and the bride have willingly accepted the marriage.

    The Hanafis say that this is not a condition, but their position is unacceptable and rejected because of ample evidence from the Qur’an and the Sunnah to the contrary.   In the jahiliya, Arabs used to “inherit” (i.e., forcibly marry) their brothers wives if they died.  Allah forbid this saying: {Yaa ayyuhaa alladhina aamanoo, laa yahillu lakum an tarithoo an-nisaa’a karhan…}

    {O, you who believe, it is not lawful for you to inherit women against their will…}  An-Nisaa:19 .. There are also two sound and very clear hadith on this matter: “Laa tunkahu al-ayyimu hatta tusta’mara wa laa tunkahu al-bikru hatta tusta’dhana qaaloo yaa rasoolu Allahi kaifa idhinihaa?  Qaala: an taskut.” “A previously married woman cannot be married until her order is sought and a virgin cannot be married until her premission is sought.  They said:  How does she give permission?  He (sas) said:  If she keeps quiet.”  Bukhari & Muslim “‘An ibn Abbasin anna jaariyatan bikran atat an-nabiyya (sas) fa dhakarat lahu anna abaaha zawwajahaa wa hiya kaariyatun fa khayyarahaa an-nabiyyu (sas)” “From Ibn Abbas that a virgin girl came to the Prophet (sas) and mentioned that her father had married her against her will and so the Prophet (sas) gave her the choice.”  Abu Daud & others (sahih) ..
    Many early scholars  allowed this in only one case:  a father or grandfather marrying a girl below the age of puberty without her consent.  According to them, she has no right to refuse the marriage upon becoming mature.  This position is clearly unacceptable and rejected based on the above verse and ahadith.

  5. The bride and groom are specifically identified and known.
  6. Neither of the two contracting parties are in a state of ihraam.
  7. The marriage must be with a dowry (mahr). It does not have to be exactly specified nor does it have to change hands, but it has to be there.  More is coming on this subject later.
  8. The parties and witnesses are not bound to keep it quiet. It is not allowed to make attempts to keep a marriage a secret.  The universal custom of the Arabs before Islam was to have marriages very publicly where all around became aware of its existence.  Islam confirmed this practice and it is the only acceptable way of marrying.  As we have seen, the Maliki school takes this so seriously that they separate the two parties permanently.  Some other scholars said that it was a wrong practice, but didn’t necessarily invalidate the marriage.
  9. No party is on his/her deathbed. The “parties” intended here are the bride and the groom.  This is because of possible injury to the heirs because of another person becoming entitled to inheritance.
  10. The presence of the guardian or representative (wali) of the woman.The wali is a Muslim man charged with marrying the one under his charge to a man who will be good for her.  There is no disagreement that the first wali is her natural father if he is Muslim and that the last in line is the ruler.   Between those two, there is some disagreement about the order but agreement that they come from the girl’s fathers relatives – no one from her mother’s side enters into the picture.  The order, according to many is:  father, paternal grandfather, son, grandson, full brother, paternal half-brother, paternal uncle.  The wali is an absolute requirement for a marriage, and any marriage done without him is null and void according to the following hadith: “Laa nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa waliyya lahaa.” “No marriage except with a guardian and the ruler is the guardian of she who has no guardian.”  Abu Daud & others (sahih) “Ayyumaa imra’atin nakahat bi ghairi idhni waliyyihaa fa nikaahuhaa baatilun fa nikaahuhaa baatilun fa nikaahuhaa baatilun.” “If any woman marries without the permission of her guardian, then her marriage is void, then her marriage is void, then her marriage is void.”  Abu Daud & others (sahih) It is the job of the wali to marry her to the best possible husband.   He must not be guided by his desires nor by her desires.  If the person is acceptable in both his religion and his character and appropriate to her in some other way discussed by the scholars, then he must facilitate the marriage and not refuse it for his own desires or biases.  If the conditions are not right, then he must refuse the marriage, even if both the woman under his charge and the man desire it.  This is a grave trust and he must do his best to fulfill it properly and not bring harm to the woman and/or to society.  Allah said: {Yaa ayyuhaa alladhina aamanoo laa takhunoo Allaha wa ar-rasoola wa takhunoo amaanaatikum wa antum ta’lamoon.} {O, you who believe, do not commit treachery against Allah and against the Prophet (sas) nor betray your trusts though you know.}  Al-Anfaal:27.. What about the case where the wali refuses someone on a non-Islamic basis?   As was stated earlier, it is the job of the wali to act in the best interest of the woman according to the standards established by Islam.  If a qualified person asks to marry the woman and he turns him down, then he is not doing his job.  In such a case, the woman can complain to the judge or ruler and have her wali “fired” (removed).  The scholars then differ as to who becomes her new wali, the next male relative in line or the ruler. The wali must be the same religion as the woman.  A non-Muslim father cannot be the wali for his Muslim daughter.

A Rejected Opinion of the Hanafi School

In the Hanafi school of thought there is an opinion that the wali is not a requirement for the validity of the marriage.  They even claim to have an argument from Aisha, the one who narrated the hadith:

“Laa nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa waliyya lahaa.”

“No marriage except with a guardian and the ruler is the guardian of she who has no guardian.”  Abu Daud & others (sahih)

They say that:  “Aisha married the daughter of her brother, Hafsa bint Abdul Rahman while Abdul Rahman was gone to Sham.  When Abdul Rahman returned he was upset but he did not wish to undo what Aisha had done do he left his daughter with her groom, Al-Mundhir ibn Az-Zuhair.”

Other scholars responded to their argument:  It seem from other narrations of the same incident that Aisha simply set up the arrangement but did not actually perform the marriage.  Also, it was Aisha herself who said that “Women cannot perform marriages.”  In this way, she did not contradict what she herself narrated from the Prophet (sas).

Being Serious is NOT a Condition for the Soundness of a Marriage Contract

Note that marriage is not a laughing matter and is very serious.  Therefore, the mere words make the marriage happen and intention is not required.  Also, as we have seen, there is no khiyaar al-majlis (a choice to back out until the sitting is concluded and the parties part ways) in marriage as there is in sales and other contracts.   The Prophet (sas) said:

“Thalaathun jidduhunna jiddun wa hazluhunna jiddun: an-nikaahu wa at-talaaqu wa ar-ruj’atu.”“Three things which when serious are serious and when vain are serious:   marriage, divorce and returning (to one’s wife after a divorce).”  Ahmad & others (sahih).

Third:  Conditions for the Execution of a Marriage Contract

  1. The bride and groom must be legally capable for such a marriage, i.e., sane, conscious, past the age of puberty, etc.  The contract can take place earlier than this, but the execution must wait until the time that they can actually enter into the marriage relationship.
  2. The wali who performed the marriage was not a more distant wali while a closer one was alive and reachable.  For example, if the woman’s uncle married her to someone, the marriage would not be valid unless and until the woman’s father’s consent was verified.  In such a case, the contract could be executed.

Fourth:  Conditions for the Marriage Contract to be Binding

If these conditions are met, neither party has the right to anull the marriage.

  1. If the marriage of an underage or insane person is done by other than the father or the grandfather, then the father or grandfather has the right to annul it.
  2. That the husband is socially compatible and qualified for the woman.
  3. That the dowry is at least equivalent to those similar to her.
  4. That there is no defect in either spouse.  Included in this category would be the case where the woman was said to be a virgin but is then discovered to be otherwise or where either spouse is not physically capable of marital relations.

If, after being married, any of these conditions are not met, both parties (bride and groom) would have the right to annul the marriage.  The matter would be taken to a judge or one in authority.  However, this is a right or an option.  Once the parties accept the marriage with the deficiency it contains, they will after that be bound to such a marriage.

Effects of the Various Conditions on the Marriage Contract

Based on which conditions above are or are not fulfilled, the ruling concerning the validity and legal effect of the marriage contract differs among different schools of fiqh.   In the hanafi school, a contract may fall into one of five categories:   sound and binding, sound and non-binding, suspended, defective and void.  For most of the other scholars, the marriage contract will fall into one of three categories:   sound and binding, sound and non-binding or void.

The following table describes the effect of failure to meet certain conditions on the legal effect or conclusion concerning the contract itself:

Effects on the Marriage Contract of Failing to Meet Conditions

Contract fails to meet the arkaan (pillars)

Contract fails to meet the conditions for its Initiation

Contract fails to meet the conditions for its Soundness

Contract fails to meet the conditions for its Execution

Contract fails to meet binding conditions.

Contract meets all necessary conditions

   

   

   

   

   

   

The contract is null and void. This is actually a moot point since in reality there WAS no contract if essential components are missing.

The contract is completely void.

Hanafi school: the contract is “defective” and hence has some legal effect.

In Hanafi and Maliki fiqh, such a contract is considered “suspended” or on hold until such conditions are met.

The contract is sound but non-binding.  The affected party has the right to annul the contract.

Contract is sound and binding.

Others:  The contract is null and void.

Civil Marriages in Countries Which Do Not Apply the Shari’a

In the light of what has been discussed, a very important question arises for Muslims living in lands where the Shari’a is not the law of the land.  For Muslims to marry in such situations under the “auspices” of such governments will often involve serious flaws in both the execution and the legal effects of the non-Islamic marriage contract.  For example:

  1. No proper wali.  Many such secular laws may not require the woman to have a wali at all or the one appointed may not be the rightful one in the Shari’a.
  2. The secular law may not require two witnesses,
  3. Witnesses may be required but not qualified such as non-Muslim witnesses.
  4. The marriage establishes various property rights, inheritance rights etc. both during and after the marriage for which Allah sent no authority.  (Avoiding the harm of such issues while living in a non-Islamic society is a much larger issue and involves many things besides marriage.)
  5. The civil marriage may cause additional marriages by the husband to be a crime punishable by a prison sentence.

Because of these and other issues, a secular marriage contract is not sufficient for two Muslims to be considered married Islamically.  In fact, they should be avoided if possible.  In any case, it is the Islamic marriage with its prerequisites and conditions which makes the two married before Allah.  Whether or not a civil marriage should also be undertaken is a case of weighing the harms and benefits involved. 

Regarding these “marriages”, the following important points should be noted:

  1. If such a marriage was entered into by non-Muslims who later became Muslim, they are considered married and there is not need whatsoever to have another marriage contract.
  2. If they were Muslim but married in a secular manner out of extreme ignorance, it would be best for them to redo the marriage.  However, the first marriage could be considered valid and any children resulting from it would be both of their children Islamically.
  3. If two Muslims marry in such a manner knowingly, for example to circumvent the objections of her wali, then the marriage is null and void and they are committing fornication.

Review Questions

  1. What would be the ruling for the following case:  A man and a woman are married for ten years and then discover that they were breastfed by the same woman.
  2. What is the ruling concerning a marriage contract in which the woman did not have a wali?   What was the Prophet’s (sas) statement about such a marriage (2 hadith).
  3. Discuss the different opinions concerning whether or not it is allowed to add stipulations to the marriage contract.  For those who allow them, what exactly is their effect and which conditions are allowed?  Which are not allowed?
  4. Give definitions for the following important fiqh terms:  rukn, shart, sahih, faasid and baatil.
  5. Is it necessary to have witnesses for a marriage contract?  What are some of the different opinions on this matter and what is the conclusive evidence from the sunnah?
  6. What be the ruling on the following case:  A man claims that the marriage contract he just made is not valid because he was only joking when he did it?

Divorce in Islam

The first point this chapter must make is that divorce is contrary to the laws of nature. The annulling of the marriage-bond and the separation of those who should be life-partners is a denial of the true nature of man as created and as at his best. Any society in which divorces become numerous, with the consequent break-up of families, evidences its deviation from nature and her requirements.

Psychologists, jurists and sociologists, concerned by the effects of divorce on the moral and juridical personality of those involved, have gone deep into the subject, and given it as their considered verdict that the ejection of a man and wife, let alone the children, from the warmth of home-life into the cold unwelcome of any substitute establishment they may find, deals a mortal blow to their spirits and exposes their children to the onset of moral ailments and psychic traumas against which family life had immunised and protected them. These scientists further hold, almost to a man, that for these reasons divorce should be rendered practically impossible by severe sanctions, except in a few cases where some cause, generally from outside, like the onslaught of insanity or criminality, makes an exception to the rule.

But what should be done in cases of irreparable breakdown of relationships? Must the partners stay in the hell they have made? Or may a way-out be found for them? Christianity says blankly. “No divorce!” But Islam more realistically faces the consequences of irreparable breakdown as a fact, and provides a way-out. Every possible safeguard is laid down in the statute book to prevent such a way-out by divorce being abused. But it is clear that the bankruptcy of the relationship is only worsened by forcing the partners to stick together; and their misery is only increased. Hence divorce, though stigmatised as ” the most loathsome of states in the eyes of the Lord” is made possible when it is the better of two bad roads. It may even be that the very separation removes the cause of the irritation between man and wife, while the lapse of time in absence softens the hearts and recalls the good points which had been lost under the pains of discord; so that the couple seek reunion, and in some cases actually start the same partnership up again in pardon and joy.

Since Islam’s aim is the firm establishment of marriages, in the interests of this objective certain liberties are denied. The right of divorce is given to the man only, except in very exceptional cases. This is to safeguard the best interests of women and save them from falling victim to passions. Manifestly, if two people both have the right to institute divorce proceedings, the basis of confidence is made very shaky on both sides. What better safeguard can there be, therefore, than to give the right of divorce proceedings primarily to the one who has by nature more subjection to the powers of reason, and patience in the face of lack of tenderness; and who stands to lose the sum he has given as a marriage portion, as well as having to undertake the financial burdens of the children’s upbringing?

The differences in the constitution of a man and woman are manifest. The head takes first place in the man’s decisions and the heart in the woman’s. Reason and emotion are the gifts given to each respectively in their creation. As Dr. Alexis Carrel puts it: “The differences between men and women are, obviously, the physical ones : and then, less obviously, the internal ones like the dispositions of the nerves, the different mental and emotional talents, both of which are of supreme importance for the future of civilisation. Partisans of Women’s Liberation aim at a false conception of equality,. as if that desirable condition meant precise similarity and identity in upbringing, employment, responsibilities and duties.” (“Man, the Unknown” pp. 84-87).

It is for these reasons that Islam’s Feqh lays down: “Divorce is in the hand of the man.” And it is in consideration of the woman’s delicacy of spirit that the power of ending a shared life is not granted to her. Islam, in addition to the manifold measures it has taken to make it easier for people to enter the married state and start families, also makes it more difficult to break up the home. Everything possible is done to ensure happy sound home-life, for the sake of the family’s members and of the society to which they belong. It is therefore that it is written in Sura IV: Nisa’a -“The Women”, verse 19. “O men, live with your wives in kindness and equity. If you dislike anything in them, that may be the very point which God will use to bring about much blessing.”

In order to take away such feelings of dislike and prevent their turning to hatred, and to remove their discomfort, Islam awakens the man’s conscience to live in kindness and equity with patience, and not to cast off a wife who is temporarily in disfavour, since it may be that goodness and blessing may come through those very wives; so that it would be stupid to end the relationship hastily. As is written in the same Sura IV Nisa’a -“The Women”, verse 128: “If a wife fears cruelty or desertion on her husband’s part, there is no obstacle to their arranging an amicable settlement between them for which the wife must renounce some of her rights. But if they return through reconciliation and peace through such unselfishness, such a settlement is better than separation and divorce.”

The same dislike of divorce, as the most detestable of extreme measures to be adopted only in the direst emergency, is advanced by all Islam’s greatest jurist-consults and leaders, an attitude summed up in the sentence in the book “Mustadrak” (Vol. 3, p.2): “Any woman who seeks to be divorced from her husband, save in cases of extreme necessity, falls out of the grace and mercy of the Lord.” Or again in Vol. 3 of the “Vassa’el” (p.144): “Enter upon matrimony. but do not divorce your wives, since divorce shakes the very throne Of God.”

Islam fences in the man’s power of divorce with many limiting safeguards. A man may not put away his wife by violence, harassment, injury or in a way which may drive her to a life of immorality and corruption. Thus Islam has for centuries surpassed anything yet achieved in Western countries, in its initiative to remove differences and restore understanding in family life. This is particularly true of the family courts, where well-meaning relatives have a large say and everything is done to bring about reconciliation. Causes of differences are deeply studied; and, as relatives, they are able to go deep into confidential matters without either of the couple feeling that their private secrets are being exposed or their feelings excoriated in too public an ambience. When the causes of the difference have been brought into the light of day the members of the family court exert all their powers of sincerity and’ heart and affection to bring about reconciliation and to quench the fires of temper, exhorting both sides to unselfishness, tolerance, and an effort to understand each other’s point of view. Since both man and wife respect these elders and have full confidence in their compassionate affection, they frequently accept the family court’ s recommendations for adjustments they should make in their relationships and behaviour towards each other. As it is written in Sura IV. Nisa’a-“The Women” (verse 35): “Should you fear that division will arise amongst them, appoint an arbitrator on the husband’s side and an arbitrator on the wife’s side from amongst their relatives and send them to them. As soon as they desire peace and reconciliation the Lord will vouchsafe it to them for He is all-knowing and all-wise.”

Should the causes and roots of the initiation of divorce proceedings prove to be too deep, so that there is an irreparable breakdown in marital relationships, and all the efforts of the relatives fail to bring about any sort of hope of reconciliation, Islam in its realism recognises that each party must take their own road. It must be plain that such a family court is far more likely to succeed than all the public courts of law or marriage guidance clinics. In fact these only too often, being strangers to the family and not privy to their inmost secrets, merely increase the rift, because of the clumsiness of their well-meaning efforts. A public court has the duty to hear the evidences produced by both sides; and then, in the cold dry heartless atmosphere in which only exact truth and not mercy or clemency reigns, decide which side has most right and give verdict accordingly. It has neither the heart nor the spiritual influence of relatives to press for reconciliation, and cure the causes of the quarrel. In the Qur’an, Sura LXV “Talaq” -“Divorce” ordains in verse 2: “Two just persons from amongst yourselves shall bear witness to the evidence before God when a divorce is settled.” Without these two witnesses, there is no legal divorce. An advantage of their appointment is that they can exert every pressure of affection and wisdom to avert the final catastrophe for quite a period before reluctantly, if they have to do so, agreeing that there is no other way out. They frequently succeed in the better course.

It is further laid down that no divorce may be made absolute save after the woman’ s period of purification after menstruation or childbirth is completed. This need to wait awhile often proves a breathing-space in which the man’s feelings of tenderness once more assert themselves over his irritations, and make him decide against divorce.

Further when a man finds sharing his life with a particular woman wearisome and irksome and decides on divorce, this decision of his does not suffice in itself to end their living together not does it become effective until the expiry of the “Iddat”, i.e. the period fixed by the Feqh during which a divorced or widowed woman may not be married to another man: and this period also gives a breathing-space which frequently results in the man’s change of heart and decision to continue the married bond with the wife he planned to divorce.

Finally, after the execution of the formalities for a “revocable divorce” (Talaq-i-raj’) a man may not expel his wife from the home until the termination of the period of the “iddat” which may last anything up to three months, nor may the wife quit their joint home except in a desperately exceptional case during that period. As the Sura LXV “Talaq” “Divorce” enacts (verse 1): “You may not expel women from their houses, nor may they themselves quit, except if they have been proven guilty of some open lewdness (during the “iddat” period). These are limits set by God. Should any man transgress these limits he does so at the peril of his own soul, and to his own harm : for you know not whether God may bring about some new situation later (than the decision to divorce).”

No formalities are necessary to abrogate a revocable divorce during these months. A mere indication of desire for renewal of the marriage relationship by the man suffices.

Should the wife feel such hatred for her husband that she repays him the statutory portion of marriage settlement he had given her, or a portion of her own property, that counts as her divorcing him; but this type of divorce is revocable within the stated period, so that if she changes her mind, and her husband agrees, he can still take her back into their home.

By these many means Islam safeguards the holy estate of matrimony from shipwreck on the rock of hasty decisions onto which emotional storms may drive some couples.

Islam had also done much to protect the wife’s rights and to save her from having to continue to live in an unhappy environment. Among beneficent measures are the following:

1. the wife can insert a clause in the marriage contract ensuring that

(a) incompatibility of temperament
(b) maltreatment
(c) refusal of maintenance
(d) unannounced journeys
(e) the taking of another wife without consultation

are so provided against that if any of the above five conditions is broken she can approach a lawyer to obtain a divorce for her through the courts.

2. the wife can make it impossible for her husband not to divorce her by being intolerably refractory, vexatiously shrewish or deliberately incompatible in relationships, familial, sexual or social;

3. the wife can resort to the courts if the husband has been incapable or negligent in supplying her with maintenance or has put obstacles in the way of her obtaining it ; or if either partner deprives the other of conjugal rights or fails in marital duties; the Muslim Qadhi, if the woman’ s plea is proved, can compel the husband to treat her right, to be reconciled, to disburse the proper sums, to confer her rights upon her in every form : and if the husband proves recalcitrant, or refuses to obey the judge’s orders, the judge can then compel him to divorce his wife;

4. the wife can enter a plea in the Islamic court and obtain an injunction if the husband accuses her of lewdness, unchastity or unfaithfulness, or denies his own paternity of her child : if the husband cannot prove his case the judge will order the husband to separate himself from his wife in accordance with the relevant legislation;

5. the wife may, in the case of intolerable revulsion or aversion, in a simple fashion bring about a discontinuance of their union by renouncing a large part of her marriage portion, while freeing her husband from his obligation to pay her alimony during the “Iddat” breathing-space period;

6 the wife, if the husband absents himself so that no news of him reaches her and she falls into financial or other difficulties, can resort to the courts and request a divorce. the judge will then perform the necessary formalities to annul her marriage contract.

It is written in Sura II: “Baqara” -“The Heifer” (verse 229): “A divorce is only permissible twice : after that the parties should either hold together in equity or separate in kindness. It is not lawful for you men to take back from your wives any of that portion which you have given them except when both parties fear that they would be unable to keep the God-ordained limits. If you judges have reason to fear that the parties will be unable to keep the God-ordained limits, so decree, for there will be no blame on either of them if she hands over a sum in exchange for her freedom. These limits are God-ordained so do not transgress them since that is to wrong yourself as well as others.”

In the “Exegetical Collection” it is related in Volume I on page 167 that Ibn Abbas reported that Jameelé, wife of Thabit bin Qais, sought audience of the Prophet and complained to him: “O Apostle of God! I cannot stand one moment more of life with Thabit bin Qais, nor shall my head ever rest again on the same pillow as his.” After a pause she added : “I am not accusing him of a lack of faith or of moral and marital virtues: but I am afraid that I myself will fall into infidelity and blasphemy if I have to spend another minute with him. I turned up the tent-skirting and my eye fell on my husband in the middle of a crowd of other men. He looked so ugly, a black-avised, dwarfish runt, and I hated him, and I can’t go on. …!” She ran on thus, and the Prophet, after absorbing her outpouring, tried to advise and admonish her, but she paid him no heed. So he sent for Thabit bin Qais and laid the situation before him. Thabit was deeply attached to Jameelé, but self-sacrificingly and for her sake agreed to take back the marriage portion he had settled upon her – a beautiful garden – and give her a khul’ divorce.

There are cases in which resort to the court by the wife is statutory. There are also cases in which she can divorce her husband without legal aid, as in cases of certain grave chronic diseases like leprosy or elephantiasis; or because of the onset of lunacy, or of physical defects which prevent marital intercourse, like impotence or castration of the husband. For these Feqh gives the wife haqq-i-faskh – the right to the rescinding or annulment of the marriage, which “faskh” is not the same as the khul’ divorce, and does not involve the same financial renunciations by the wife as khul’ does.

Germany and Switzerland, in Europe, also recognise lunacy as grounds for the annulment of a marriage or for separation. France does not admit either grave chronic disease or lunacy as an adequate ground, and insists that the healthy spouse must care for the leprous or lunatic partner. Undoubtedly such longsuffering and lovingkindness is highly praise worthy. while extolling it as a counsel of perfection, Islamic realism prefers to leave the partners free to choose separation or continued care, according to their own conscience.

The West is suffering terribly from the laxity it has allowed in the break-up of marriages and the violently increasing incidence of divorce. These disasters are really reactions to over-pressure by the churches, which prohibited and condemned divorce one hundred percent for many centuries, while the secular governments gave recognition to it. For instance, divorce was totally prohibited in France until the French Revolution of October 1789. In 1804, in response to popular demand, divorce was legalised; but in the following 12 years it increased so appallingly that the religious bodies brought renewed pressure to bear, until in 1816 the law legalising divorce was rescinded though physical separation of the parties was permitted. However, public pressure built up again so much that in 1884 divorce within certain limits was legalised once more.

Here follow the conditions on which in Western lands divorce for wife and husband was legal until recent times:

1. a criminal act committed by either party which involves the penalty of life-imprisonment, exile, loss of civil rights or temporary imprisonment with hard labour.

2. physical violence, mercenary prostitution, and a few other similar criminal acts of the one partner against the other.

3. adultery by either partner – though in such cases the wife has the right of divorce only if the man commits adultery with another woman in the house which belongs to his wife and himself.

The following is the road by which a wife’s infidelity was proved : note it well! “The infidelity of a wife must be proved completely in the eyes of the police. The wife or the husband plan to be in different places for however a short time. They must agree about some third person to be cited as co-respondent and this person must be prepared to undertake this service. And then at the stated hour the wife must be caught in flagrante delictu with the third party’, and the husband must have the police on the spot to catch her out and so prove her infidelity. Thus the police accompany the husband to the trysting-place; and when they catch the wife in flagrante delictu this is accounted adequate grounds for her husband divorcing her.” (The Law of Divorce and Renewal of Marriage p.99).

See what a mass of further impurities the impurity which wrought the need for divorce in the first place has carried in its train. And this is the “civilised” world of the West, which allows women entry into public and political life, and with the other hand takes away her honour, her femininity and the high standards which it should be her privilege to set, and turns her chastity into a mercenary bargaining-point. It must be admitted that since I first put pen to paper on this matter, efforts have been made in many Western lands to eradicate the worst of these abominations.

America makes divorce easier for both parties. It is not surprising, therefore, that American divorce figures are the highest of all.

The wise tremble at the results : the wisdom of Islamic dispositions shines by contrast like the sun in darkness. At a conference in Strasburg, statistics of one year’s divorces which could be attributed to the overwhelming desire of wives to be “in the fashion” “a la mode”, “comme il faut” and to “keep up with the Joneses” in modernity of garb and guise were quoted as being:

1. in France, 27% of all divorces;
2. in Germany, 33%;
3. in Holland, 36%;
4. in Sweden, 17%.

Not every Parisienne is an excessive slave of fashion. Nonetheless it is reckoned that the costs of unnecessary purchases made by women simply to keep up with “mode” come to no less than 5,000 tomans per head (£300-£400 per head per annum). Yet all this expenditure adds nothing to the woman’s natural beauty, moral stature, ease of spirit or calm mind!

European statesmen, and responsible thinkers everywhere, are well aware of the danger, and fear it acutely. All who possess the slightest sense of philanthropy must seek the means of stemming the sweeping tide of this flood of evil through the world.

Islam offers its regulations on family life, matrimony, and the respective positions of men and women, as a way which all nations might do well to follow remembering that it was a Westerner Voltaire, who said: “The Prophet Muhammad reduced the unlimited harems of unfortunate women maintained by pre-Islamic potentates to a maximum of four wives: and his legislation on marriages and divorces is the most noble and effective ever conceived, formulated and enacted by any authority at any time in the world’s history, religious, political or social.”

 
 


 

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3 comments on “Fiqh oif Nikah (Marriage)

  1. [...] : The Quran Blog – Enlighten Yourself Etiketler: Fiqh, Marriage, nikah Bu yazı Perşembe, 24 Haziran 2010, 10:05 tarihinde English [...]

  2. [...] : Comments for The Quran Blog – Enlighten Yourself Etiketler: Comment, Fiqh, İslamiyet, Marriage, nikah, sitesi Bu yazı Perşembe, 24 Haziran [...]

  3. [...] : Comments for The Quran Blog – Enlighten Yourself Etiketler: Comment, Fiqh, İslamiyet, Marriage, nikah, sitesi Bu yazı Cuma, 25 Haziran 2010, [...]

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