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Islam's Ruling on Marriage

All of the scholars are in agreement that marriage is something recommended (Mustahab) and called for in Islam. Some took it to the level of obligatory (wajib) for those with the ability based on the Prophet's statement: "Whoever has the ability should marry for it is better in lowering the gaze and guarding one's chastity. Whoever is not able, let him fast for it is for him a restraint." [Al-Bukhari] Without doubt, marriage is part of the social agenda of Islam and the objective is to maximize marriage and to combat "single-hood" as much as possible. This means that if marriage begins decreasing for whatever reason such as exorbitant dowries, economic injustice, etc. then these evils must be combated in defense of marriage. If polygamy is neglected and not done sufficiently, this will create a number of single women and a situation which requires social effort to correct. Likewise, if polygamy is done to excess by some individuals, it will produce an excess of single men another situation which must be corrected. The raising of children must be done in such a way which promotes marriage and raises both men and women knowledgeable of their roles and duties within the family. All of this can be found in Allah's command to the Muslims as a whole to maximize marriage among us: "And marry off the single among you and the righteous ones among your male and female slaves. If they are poor, Allah will enrichen them from His bounties and Allah is expansive, knowing." [Noble Quran 24:32]

Benefits of Marriage

Children The love of Allah is sought in seeking to have children. Allah has decreed this as the means by which mankind generally and this Ummah specifically will continue to exist. Allah said: "Mothers nurse their babies two whole years for those who wish to complete their nursing. Upon the one for whom the baby was born is her food and her clothing in equitable and proper terms. No soul will be emburdened beyond its ability. No mother may be harmed on account of her child nor any father by his child and the heir is chargeable in the same way. If the two [parents] decide on weaning by mutual agreement and consultation, there is no blame on them. And if you decide on a wet-nurse for your children, there is no blame on you provided you pay what you offered equitably and properly. And fear Allah and know that Allah sees well all that you do." [Noble Quran 2:233]

The love of Allah's Messenger (peace and blessings be upon him) is also sought in seeking to have children because he (peace and blessings be upon him) said: "Marry the loving and the fertile for I will outdo the nations with you [r numbers]. (In another version: "...for I will outdo the prophets with you [r numbers] on Qiyama.") With seeking children is also the seeking of the great blessing of a righteous offspring who makes du'a for you after your death or the intercession of a child who dies before reaching adulthood. "When a person dies, his works come to an end (are cut off) except from three sources: except from an ongoing charity which he established or knowledge from which benefit is taken or a righteous offspring who makes du'a for him." From Abi Sa'id that the women said to the Prophet (peace and blessings be upon him), "Reserve for us a day." So he (peace and blessings be upon him) preached to them and said, "Any woman who had three children die will find them to be a protection for them from the fire." One woman asked, "And two?" He (peace and blessings be upon him) said, "And two [as well]."

Other Benefits of Marriage

Protecting oneself from Shaytan by satisfying one's desires and giving oneself rest and relief from the world by the two spouses enjoying each other's company. Division of labor. When one lives alone, much of his time will be taken up by cooking and tending to his domicile and will not be able to dedicate time to knowledge and other good deeds. A righteous wife is an aid to her husband in this regard. She is primarily responsible for the keeping of the house and children while he is responsible for supplying their needs. In addition to going out to seek their sustenance, he should fulfill his duties in the area of da'wah, enjoining right and forbidding wrong, jihad, etc. Practice of self-discipline and combating the nafs training it in responsibility and custody by fulfilling all obligations toward one's family, being patient and forbearing with their character and putting up with their annoyances. In addition to this, the Muslim man must struggle and strive for their improvement in Islam and guiding them to the straight path of the deen. He must struggle to earn from the lawful for their sake and to participate in the raising of the children on the best of character. These are acts of very high status and of very high reward from Allah. The Prophet (peace and blessings be upon him) said: "Anything you spend on your family will be a source of reward [from Allah], even a morsel of food which you raise to your wife's mouth."

"A dinar you spent in Allah's path, a dinar you spent in freeing a slave, a dinar which you gave in charity to a needy person and a dinar which you spent on your family. The greatest of them in reward is the one you spent on your family."

Considerations in Choosing a Wife

Her religion. This is by far the most important consideration and above all others. If she does not have good Islam, she will corrupt her husband. The Prophet (peace and blessings be upon him) said: "Women are married for four: her wealth, her family, her beauty and her religion. So succeed with the one with religion, may your hands be in the dust (i.e., may you be impoverished if you ignore this warning). Character. Bad character is harmful to the individual and those around them. Beauty. This is something desirable, even if it ranks after religion in importance, because it is one of the things which makes the marriage strong and protects the man from wrongdoing. For this reason, the Prophet (peace and blessings be upon him) ordered men seeking marriage to get a look at the woman before marrying her. Some people used to refuse to consider this nor intend it. It is reported that Imam Ahmad chose a cross-eyed woman over her sister. But this is rare and human nature is at odds with it.

From Al-Mughira ibn Shu'ba that he sought to marry a woman and the Prophet (peace and blessings be upon him) said to him: "Look at her for it is more assuring that it should last between you." An easy (smaller) dowry. Said ibn Al-Musayyib married his daughter for two dirhams (about $2.00). The Prophet's dowries were generally much larger than that and there are no specific limits put on the dowry other than that they should be reasonable and not represent an undue obstacle to marriage. From Umm Habibah that she was under Ubaidullah ibn Jahsh when he went to Ethiopia ... and he died [there]. Allah's Messenger (peace and blessings be upon him) married Umm Habibah while she was in Ethiopia. An-Najashi married her to him and her dowry was four thousand and he gave her provision from his wealth and sent her to Allah's Messenger (peace and blessings be upon him) with Sharhabil ibn Hasana and all of her provision was from An-Najashi, Allah's Messenger did not send anything to her. And the dowries of the wives of the Prophet (peace and blessings be upon him) were four hundred dirhams. Umar ibn Al-Khattab said: Do not become excessive in the dowries of women for if it (i.e., high dowries) were an honor in this life or piety with Allah, the Messenger of Allah (peace and blessings be upon him) would have been the first of you to do it. But I never knew Allah's Messenger (peace and blessings be upon him) to have married anyone of his wives nor to have married any of his (peace and blessings be upon him) daughters for more than 12 ounces of gold.

Abu Isa (i.e., At-Tirmidhi) said, This is a good, sound hadith ... and the "ounce" is known by the scholars to equal 40 dirhams, so 12 ounces is equal to 480 dirhams. Just as excessive dowries are disliked from the wife's side, it is equally disliked for the man to inquire about her wealth. Ath-Thawri said: "If a man is marrying and he asks, "What does she have?", know that he is a thief." Virginity. Because the Law-giver encouraged that and human nature favors it. This is because she will love her husband more and feel closer to him than a previously married woman. Human nature is inclined toward closeness to the first object of love or familiarity. It is also more favorable to his love for her because there is something which repels one from she who has been touched by others. Fertility. That she be capable of bearing children. The Prophet (peace and blessings be upon him) said: "Marry the friendly and fertile, for I will compete with the other nations with your large numbers." Family. She should be from a family of good religion and character. As we saw in the hadith, it is desirable for the man to look at the woman before marrying her. Also, the guardian of the woman should investigate the religion of the suitor, his character and his conditions for if he marries her to a man of corrupt character or of innovation in his deen, he will have transgressed against her and against himself. A man said to Al-Hassan Al-Basriy: "To whom should I marry my daughter?" Al-Hassan said, "To one who fears Allah for if he comes to love her, he will honor her and if he dislikes her he will not oppress her."

Etiquettes of having children:

Never rejoice at getting a boy or a girl instead of the other one. You have no way of knowing in which Allah may place the greatest good. Pronounce the adhan in the babies right ear and the iqamah in its left right after it is born. Give them a good name. The sunnah is that an individual has only a single name. The rest of his name consists of his father's name which may be followed by his grandfather's name and then by the family or clan name. Nothing but the first name should ever be changed. If the name has a bad meaning such as "'Abdush-Shams" (slave of the sun), it should be changed, but ONLY if it is the individual's FIRST name. The Prophet (peace and blessings be upon him) changed the names of several of the sahabah because of their negative meanings, but there was never any case where the father's name was omitted or changed even where it has a completely reprehensible meaning.

Harb ibn 'Abdush-Shams was one such case. His name became 'Abdur-Rahman ibn 'AbdushShams. Al-Aqiqah. Sacrifice two lambs for a boy and one lamb for a girl. Prepare the food and invite the Muslims to eat. At-Tahnik. Place some mashed date or other sweet item on the roof of the baby's mouth and moving it around with the finger to stimulate eating and make du'a for the baby. This is at 7 days, the same time as the Aqiqah. From Asma': I became pregnant from Abdullah ibn Az-Zubair. I left when nearing full term and went to Al-Medina. After arriving at Quba, I gave birth there. I brought him to the Prophet (peace and blessings be upon him) and put him on his (peace and blessings be upon him) lap. He (peace and blessings be upon him) called for some dates, chewed them and then put them from his (peace and blessings be upon him) mouth to the baby's mouth. So, the first thing to enter his stomach was the saliva of Allah's Messenger (peace and blessings be upon him). Then he did the Tahnik with dates, made du'a for him and asked for blessings upon him. That was the first baby born in Islam. (i.e., in Al-Medina and among the Muhajirin.)

The Marriage Contract

Marriage in Islam is a contract. Thus, as in any contract in Islam, there are elements which are considered essential to its existence, called arkan, 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: arkan) 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: shurut) 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 other 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'ah 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 Arkan of a Marriage Contract

All the scholars agree that "offer and acceptance" (Al-Ijaab wa al-qubul) is among the arkan of a marriage. The Arkan of a Marriage According to the Hanafis Offer and acceptance are arkan of the marriage contract in Hanafi fiqh and the offer/acceptance can begin from either party. The Arkan of a Marriage According to the other Scholars. Offer and acceptance are among the arkan. For most of these scholars, the offer must be from the woman's side and the acceptance from the man.

-The two parties to the contract: the prospective husband and the guardian of the woman. Some also count the following among the arkan, while others count them among the shurut: -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 (peace and blessings be upon him) 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 phraseologies, 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 There opinion is 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 is supported by the following segment of the verse in which Allah mentions all of the categories of women which are halal for the Prophet (peace and blessings be upon him): "...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..." [Noble Quran 33:50] It is also reported that the Prophet (peace and blessings be upon him) himself used the following expression in performing a marriage: "I have put her in your possession for the Quran which you possess." [Al-Bukhari]

The Hanbali and Shafi'i Approach

There opinion is that the marriage is not proper unless it uses forms of the following words which are found in the Quran and hadith: nikah or zawaj. Their response to the above evidence is that since the verse clearly applied to something given specifically to the Prophet (peace and blessings be upon him) it is not applicable here and that the actual words of the hadith are from the narrator who may not have transmitted it exactly. We can conclude by saying: 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 (peace and blessings be upon him) and his companions.

Nikah in the Arabic language

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 zawaj also required that the contract be transacted in Arabic for this reason.

The Different Types of Shurut (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 arkan and the shurut and has full effect in the law. Batil (Void). A contract that has failed to fulfill specific arkan or vital shurut. A contract which is Batil 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.

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

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

Conditions Required for Initiating the Contract (shurut al-in'iqad). These are the conditions that must be present with respect to the arkan or fundamentals of the marriage contract. Conditions Required for the Soundness of the Contract (shurut 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" (Fasid), according to Hanafi fiqh, "void" (Batil) according to the others.

Conditions Required for the Execution of the Contract (shurut an-nifadh). 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" (mauquf) according to Hanafi and Maliki fiqh. For example, a minor girl until she reaches puberty.

Conditions Required for Making the Marriage Binding (shurut al-luzum). 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: Shurut 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: 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. 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. 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. The marriage must be effective immediately. If the wali says "I will marry her to you after one month", there is no marriage and the two remain unmarried.

Note that the custom of saying "I have accepted" three times common in some Muslim cultures has no legal significance. Once the first "I have accepted" has been uttered, everything after that is not necessary.

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'ah 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: The customary practice cannot contravene or contradict anything expressly laid down by the shari'ah. 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. The customary act must be common, well-known and universal and not something practiced only by some portions of the population. 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: Those embodied in the contract even if they are not stated. This includes conditions known from the shari'ah as well as those known from custom as discussed previously. The Prophet (peace and blessings be upon him) said: "Ahaqqu maa aufaitum min ash-shuruti maa istahlaltum bihi al-furuj." "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'ah 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. 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'ah. 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: "...And those who fulfill their pacts when they make one..." [Noble Quran 2:177] "O you who believe fulfill your contracts..." [Noble Quran 5:1] The Prophet (peace and blessings be upon him) said: "Muslims are bound by their stipulations." [Abu Dawud & 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 Sa'ad ibn Abi Waqqas, Mu'awiyah, 'Amr ibn Al-'Aas, Shuraih, 'Umar ibn 'Abdul 'Aziz, Tawus, Al-Awza'i and Is'haq.

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

"Every stipulation 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: "Muslims are bound by their stipulations except for a stipulation which makes the unlawful lawful or makes the lawful unlawful." 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 mentioned that this only applies to the conditions which are essential parts of the nature of the contract itself.

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 her 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.

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: Nikah 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. Nikah Al-Mut'a. Any kind of marriage with a stipulated time limit. Nikah At-Tahlil. A woman who has been divorced three times and wishes to return to her first husband marries a man on the condition that he divorces her.

Second: Conditions for the Soundness of a Marriage Contract There are ten conditions (shurut) in this category. Some are agreed upon by virtually all the scholars while others are the subject of some disagreement. 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 one of the arkan (pillars) or one of the conditions for initiating the contract. In any case, this condition must definitely be met. 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. Two non-discredited witnesses.

There is some difference of opinion on this issue. Ibn Taimiyyah 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 Dhahiris and one opinion reported from Ahmad. (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'i 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 Taimiyyah 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 Taymiyah's opinion which finds the witnesses NOT a requirement must be rejected, because the hadith on this subject has been found to be sahih: "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. Both parties to the contract and the bride have willingly accepted the marriage. In the jahiliya, Arabs used to "inherit" (i.e., forcibly marry) their brothers wives if they died. Allah forbid this saying: "O, you who believe, it is not lawful for you to inherit women against their will..." [Noble Quran 4:19] There are also two sound and very clear hadith on this matter:

"A previously married woman cannot be married until her order is sought and a virgin cannot be married until her permission is sought. They said: How does she give permission? He (peace and blessings be upon him) said: If she keeps quiet." [Bukhari & Muslim] "'An ibn 'Abbasin anna jaariyatan bikran atat an-nabiyya (peace and blessings be upon him) fa dhakarat lahu anna abaha zawwajaha wa hiya kariyatun fa khayyaraha an-nabiyyu (peace and blessings be upon him)" "From Ibn 'Abbas that a virgin girl came to the Prophet (peace and blessings be upon him) and mentioned that her father had married her against her will and so the Prophet (peace and blessings be upon him) gave her the choice." [Abu Dawud & 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. The bride and groom are specifically identified and known. 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. 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. 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. 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. 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. 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 can 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: "O, you who believe, do not commit treachery against Allah and against the Prophet (peace and blessings be upon him) nor betray your trusts though you know." [Noble Quran 8:27] 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.

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 almajlis (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 (peace and blessings be upon him) said: "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 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. 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.

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. That the husband is socially compatible and qualified for the woman. That the dowry is at least equivalent to those similar to her. 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 arkan (pillars) The contract is null and void. This is actually a moot point since in reality there WAS no contract if essential components are missing. Contract fails to meet the conditions for its Initiation The contract is completely void. Contract fails to meet the conditions for its Soundness Hanafi school: the contract is "defective" and hence has some legal effect. Others: The contract is null and void.

Contract fails to meet the conditions for its Execution In Hanafi and Maliki fiqh, such a contract is considered "suspended" or on hold until such conditions are met. Contract fails to meet binding conditions. The contract is sound but non-binding. The affected party has the right to annul the contract. Contract meets all necessary conditions Contract is sound and binding.

Civil Marriages in Countries Which Do Not Apply the shari'ah In the light of what has been discussed, a very important question arises for Muslims living in lands where the shari'ah 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: -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'ah. -The secular law may not require two witnesses, -Witnesses may be required but not qualified such as non-Muslim witnesses. -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.) -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: -If such a marriage was entered into by non-Muslims who later became Muslim, they are considered married and there is no need whatsoever to have another marriage contract.

-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. -If two Muslims marry in such a manner knowingly to avoid certain rules of marriage, then the marriage is null and void.

Dissolution of Marriage in the Shari'a

Why Should Marriages be Terminated?

In order for the institution of marriage to fulfill its goals as described earlier, divorce must be allowed in certain situations. Those religions and/or societies which deviated from this point and imposed the fiction of "till death do us part" in all cases have been responsible for untold human misery and sin. This law is not suited to human nature and Islam does not force us to apply laws which are extreme - neither celibacy, permanent marriage without the possibility of divorce, nor promiscuity and mayhem (the most popular one in our time). Islam gives us two important social goals in this regard: -The "eradication" of single people of marriageable age as much as possible by facilitating marriages -Setting up a social environment where all relations between men and women outside of marriage can be completely eliminated. About the first point, Allah said: "Marry the single among you and the pious among your male slaves and your female slaves. If they are poor, Allah will free them from need from His bounty and Allah is Generous, Knowing." [Noble Quran 24:32] The second point is clear from the fact that Islam prescribed 100 lashes or stoning by death for men or women who commit fornication/adultery. Allah warns us in several places to "stay far away from" this act. Also, the Prophet (peace and blessings be upon him) said in a hadith: "The most fearsome trial from which I fear from you is the trial of women." (If he (peace and blessings be upon him) had been speaking to women, this would have been: "the trial of men"). Obviously, part of facilitating these objectives is not to imprison spouses in a marriage which is not satisfying mentally or physically. Some of them will surely cave under the pressure and seek other outlets for their needs, destroying the moral fiber of society. In such cases, termination of the marriage becomes preferable.

Also, one of the most important goals of marriage is to raise a new generation of Muslims who will carry the message and practice of Islam forward. The family is the first source of guidance and happiness. If they are brought up in a situation where they can easily see the displeasure and unhappiness of their parents - and especially if Shaitan finds a way to connect this in their minds to Islam in some way - the problems in that family may be passed on to the children corrupting their behavior and possibly even their Islam. Divorce and the various other means which Islam provides to terminate a marriage are provided to men and women in Islam in order to further the attainment of these goals - either within an existing marriage or by removing it. Divorce should not be "ugly". When it becomes necessary, it should be done with consideration, dignity and kindness. Allah said: "Then, when they reach the term appointed, either take them back in a good manner or separate from them in a good manner..." [Noble Quran 65:2]

The Means by Which a Marriage May be Terminated

There is a variety of ways in which a marriage becomes terminated in Islamic law either automatically or on the initiative of the husband, the wife or a judge. It is true that the "power" of divorce is in the hands of the husband and not the wife, but this does not mean by any stretch of the imagination that the woman has no ability whatsoever to put an end to the marriage if she is mistreated, unsatisfied or unhappy. Men who convince their wives that they have absolutely no recourse unless they decide to divorce them have deviated in their Islam, misled and oppressed.

The means of terminating a marriage in Islamic law is a very important topic and one about which many Muslims are ignorant or misinformed. Because of this ignorance, many are forced to live miserable lives because they don't realize the options which are available to them. This is true for both Muslim men and Muslim women. The following outline shows the various ways in which a marriage may be terminated: -By the husband -Divorce -Al-Ilaa (an oath not to have relations with her) -Adh-Dhihar (an oath that she has been unfaithful) -Al-li'an where the husband swears an oath four times that she committed adultery

-By the wife -Option of puberty -By empowerment -By mutual consent -Al-Khul'a ("ransom") -Arbitration -By a judge -At the insistence of the husband -The wife has a defect -The wife has a serious character deficit making them "unequal" or inappropriate for each other -At the insistence of the wife -The husband has a defect -The husband has a serious character flaw making them "unequal" -Husband is missing and presumed dead -Husband is not supporting her -Husband mistreats her -Husband fails to perform marital obligations -Husband commits inequality between multiple wives -On his own initiative -Marriage contract has a fatal flaw -Husband refuses to comply with a judge's order to divorce.

The Talaq whereby separation between husband and wife takes place then and there is known as

`TALAQ-E-BAAIN'. The other state when the Talaq comes into effect at the end of the period of `Iddat' which means the waiting period of a divorced woman (or a widow) after which the woman will be free. This is known as `TALAQ-E-RAJAEE'.

- Talaq is permissible, However in certain cases it becomes incumbent on the husband to give the Talaq and relieve the woman of the mental/physical agony such as when the husband is impotent or eunuch in which case he is in capable of fulfilling his sexual obligation and when there is no like hood of his recovery to regain the capability as such. Talaq is of three kinds (1) Ahsan (2) Hassan and (3) Bi'da'ee. 1.talak ul ahsan, In the event that all avenues of saving the marriage have been exhausted, Sharia has given the husband the authority to end the marriage in the following way by pronouncing the words of Talaq (divorce) to his wife only once, whilst she is not in her menstrual cycle. This will count as one revocable divorce. Should the husband change his mind, he still has the option take back the wife during the Iddah period subject to not having pronounced a total of three Talaqs. If the Iddah expires the single revocable Talaq (Talaq Raji) will become a single irrevocable Talaq (Talaq Baa-in) and the husband will now not have the right take the wife back except through a new freely contracted Nikah (marriage) and a new Mahr (Dowry). It should be clear that, although commonly misunderstood, three Talaqs are not required to be pronounced in one go or even separately to affect a Talaq in the Sharia. Indeed doing so is contrary to the Sunnah (guidance of the Prophet peace be upon him) and is considered an innovation. Rather only one Talaq is required to be pronounced as detailed above. 2.Talaq-ul-Hassan, stands for the Talaq given to the wife with whom sexual intercourse has not taken place or the three Talaq given to the intercoursed wife in three periods of her purity provided he has not done the intercourse in these three periods of her purity or when she was in `menses' or he gave three Talaq in three months to the woman who does not have `menses' for example a girl below the age of puberty or the pregnant woman or the woman who has ceased `menses. 3.Talaq-e-Bida'ee, is (i)two or three pronouncements made during a single Tuhr either in one sentence e.g i divorce thee thrice or in separate divorce thee, i divorce thee.i divorce thee or (ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage e.g i divorce thee irrevocably. Talaq-e-Baain given in the period purity becomes Talaq-e-Bida'ee. - If the Talaq is given when she has `menses' then he must return her to restore conjugal relations

as it was a sin to divorce her when she was in menses or in a state of impurity. If he still wants to divorce her, then a purity must pass after the current `menses' when she becomes pure then he can divorce her in this state of purity. - If he divorces his wife whom there is normal sexual contacts, when she is in menses by saying "I give to you Talaq" twice or thrice according to sunnat, then each talaq will occur in each period of purity, the first of which will be in the period of purity in which no intercourse has taken place.

- If he says to the wife who gets menses, at a time when she is in menses `I give you two or three talaqs according to sunnat' then the first talaq will take effect in the first period of purity after the menses.

- If he says to his wife in a state of purity in which he had intercourse, `I give you Two or Three Talaqs according to the sunnat', then the first Talaq will take effect in the first purity after menses - To give Talaq two to three, according to sunnat to a woman who does not experiences her menses but enjoys sexual relation, the first Talaq will take place at once, the second Talaq, in the second month and the third in the third month.

CONDITIONS FOR TALAQ (DIVORCE). These conditions are (1) The husband should be of normal senses (Aqil) and mature in age (Baligh). An under-age (na baligh) or lunatic husband can not give Talaq himself .

- If a drunkard or addict gives Talaq it will be effective as he is considered a man of normal sensibility (Aqil). The Talaq in the state of intoxication or unbalanced sensibility will be effective. No condition can be set forth by a woman in respect of the Talaq in the event ofher being a minor or mentally deranged.

- If some one is forced to drink intoxicant against his wish or under extreme condition when it is the question of survival in all these exceptional cases, the Talaq given by an affected man will not be valid.

- the words of Talaq uttered in jest of joke when no other meaning other than Talaq can be deduced or stretched through arguments etc, will be deemed as willful Talaq.

- If a dumb/mute person gives Talaq by gesture or indication, it will be valid if he cannot write. If he can write, then he must give Talaq in writing. - The man wanted to speak some other word, but the word Talaq was uttered unconsciously, or he uttered word Talaq without realizing its significance or in jest and carelessness or just to intimidate his wife or any one else, in all these cases, the Talaq will occur and it cannot be withdrawn.

- Serious mental diseases like delirium. inflation of the brain( Sarsam) or some other disease which may result in the loss of his senses or if he utters words of Talaq while in a deep sleep, it will not be taken as valid or effective. - If the wife of a minor age husband accept Islam, and the Qazi present Islam to him so that their conjugal relation may remain intact, if he refuses to accept Islam, Talaq will occur between them.

-Any letter written to the wife on his behalf will be effective as Talaq form the date of writing and the Iddat shall also begin. However if he writes that as soon as she receives this letter, she must consider herself divorced immediately after receiving the letter she will be divorced, whether she reads it or not. -If the letter of Talaq gets lost on the way and it does not reach her, the Talaq will not occur. If this letter is received by her father and he tears it and does not inform his daughter, then if the letter was received in the city where she lives, Talaq will take place.

- In the case of written Talaq, it is necessary that there be evidence to point that the husband himself had written the Talaq or got in written by someone else . The similarities of hand writing or his signature are not enough. However if the woman testifies that it is his hand writing, then she is permitted to take it as such and act upon it. But if the husband denies having wrote the Talaq, then recourse to litigation remains the only solutions.

Talaqs are of two kind: (1) Sareeh (clear, unambiguous) (2) Kinayah (by gestures or using figurative language) Sareeh (clear, direct etc) is the word or the expression which clearly and directly states the occurrence of Talaq, it may be in any language. - The word `Sareeh', will be equally applicable for any expression such as (1) (I give you Talaq) (2) (Talaq is on you) (3) (You are divorced) (4)(You are Talaq holder) (5) ( Talaq given) and (6)

(O, the woman who has been divorced / given Talaq). All these utterances signify that it will be one Talaq-e-Rajee (where husband can go back to her to restore conjugal relation, whether he has intented this Talaq or he had Talaq-e-Baa'in in his mind, or he intended more than one Talaq.

- In respect of pronunciation of the word "Talaq" right or wrong the literate and the illiterate are equal. Even if the word is uttered as a threat or intimidation, it will mean Talaq. - If some one asks his friend (just a friendly enquiry), "Have you divorced your wife?" and he says, "Yes! why not?" Talaq will take place, whatever his intention may be. If however he refuses in a clear and definite manner, his refusal will be accepted and the Talaq will not take place.

- A man has given only one `Talaq', but says to the people he has given "Three" (Talaqs), then legally it will be taken as "Three" even if he says he had told a lie.

- Supposing a husband says to his wife (I am giving you Talaq), it becomes a Talaq. If the words are taken to mean "I intend to give you Talaq" then morally(diyanatan) it will not be, though legally(qadaan) it will amount to Talaq. Or if he says (I intend to leave) then it will not be talaq as it is merely an intention.

- The man tells his wife (I intended Talaq for you) or (Talaq is for you) or he said "Allah has destined Talaq for you", In all these cases if his intention is to give Talaq, the Talaq will be Raj'ee. . - If he says to the wife `You are haram on me', it will amount to Talaq-e-Baa'in whether or not his intention was talaq. - If he says `tomorrow is your Talaq', then immediately on the sunrise the next day, Talaq will become effective. Similarly if he names any month (shaban) then on the last day of the current month (Rajab) immediately after sun set, the Talaq will come into effect.

- Sometimes numbers of Talaqs are exaggerated to indicate contempt, such as talaq a thousand

times, three talaq will be the maximum.

- If he says `Full Talaq', it will be one Talaq and if he says `Total Talaq', it will be Three Talaqs.

Talaq of an intercoursed woman.

- If a woman who did not have sexual intercourse, is given "Three Talaqs", it will be taken as such. IF the number is pronounced one by one to make it three, it will be one Ba'in Talaq only. However in the case of a woman who had sexual intercourse , the number of Talaqs spoken one by one to make it three, will be taken as three Talaqs.

- A man who has two or three wives, if he intends to give Talaqs to any one of them, he must mention her name clearly. - If the woman demands three talaq and the man says "Given", it will be Three talaqs. But if he says "I give you Talaq", it will be taken as one Talaq, although his intention may be three Talaqs.

- If the woman says `I give Talaq to myself', and the man agrees then the Talaq is effected.

TALAQ BY ALLUSION OR INDIRECT STATEMENT SUGGESTING TALAQ These are known as Kin'ayah Talaq or indirect indication of Talaq by way of similitude or metaphors. These largely depend upon the words used or gestures instead of using the direct words /phrase which stand for Talaq or divorce. It is necessary that such phrases must indicate to the meaning of Talaq. The words of "Kin'ayah" are of three kinds. (1) In some, the allusion (idea) is to reject the point (of Talaq). (2) In some they seem to indicate vehement refusal in the form of abusing while (3) in some there is neither the allusion nor abuse. In respect of (1) (refusal) the intention (niyeh) is the criterion, without Intention (niyet) no talaq shall take place, while for (2) and (3) the mood of the speaker as the subject matter of discussion already in progress will be the basis or criterion of Talaq. (Note: To be fair, the Talaq by Kin'ayah is more or less the underlying idea behind these phrases expressed in different moods / gestures of the man concerned, while in final analysis lead to no other conclusion but to Talaq!.)

The word / phrases / idioms listed below relate to Talaq-e-Baa'in, which is affirmative or definitive in nature and the separation takes places without much a do . All these words are addressed to the wife their English equivalents are : (1) = Go (away) (2) = Get off (3) = Walk (off) (4) = Get going (5) = Rise up (6) = Stand up (7) = Be in veil (as stranger) (8) = Push away (9) = Leave the place (10) = Vacate the home (11) = Be away (12) = Measure your way (go away) (13) = Go you way (14) = Blacken your face (an expression of utter disgust and contempt) (15) = Be off (at once) (16) = You are separated (17) = You are no more in my company. (18) = Go away (19) = Hurry up to depart (20) = You are separated from me. (Note: These phrases/slangs run to a large number upto 64 in the book and it is said therein that

many other words/phrases/idioms purporting Talaq-e-Ba'in will be considered as such. - From these words of hints or allusion (Kinayah) one Talaq-e-Ba'in shall take place even if the intention (Niyat) is of two Talaq or no number, But if his intention is to give three Talaqs, then it will be so. However in respect of slave woman no more than two Talaqs are permissible. - There are certain specific phrases which if repeated verbatim will not result in Talaq, though the intention may be of Talaq. These are reproduced below with their English equivalents. (1) (I have no need of yours) (2) (I have no concern with you) (3) (I have no work with you) (4) (You have no concern with me) (5) (There is no wish or desire with you) (6) (You are of no service to me) (7) (I have no desire/inclination of yours) (8) (I do not want / love you)

Entrusting (the right) the Talaq. - The man said to his wife, "You have right/authority or your affair is in your hand" and the intention behind this is to give her Talaq, then the woman can announce her Talaq in that meeting, however long the meeting be stretched. But once the meeting is over, the woman cannot do anything. If the woman was not present in the meeting or she did not hear it, then the verdict of that meeting will be accepted. If the husband fixes any time limit and that time limit passes even then the woman cannot exercise that authority (of giving Talaq to herself!). The words spoken by the man must be specific and direct and not suggestive or by hint, because that would be Kinayah and in Kinayah the intentions is the primary condition. If the husband, wants to withdraw his words, he cannot do so in that meeting and if he leaves the woman can give Talaq to herself. The right of Talaq exercised by the woman will be of Raj'ee nature, unless the woman gives Three Talaqs which was also the intention of the man, then it will be three Talaqs. - If the man does not fix the time limit and authorizes her to exercise the right as and when she desires, then the change of meeting will not affect her right, neither the man can withdraw his words.

- The man asks his wife to give Talaq (on his behalf) to his other co-wife, then she can do so any time, it is not restricted to that meeting alone and the man can also resume relations.

Conditions of change of the meeting. The woman was sitting, she stands up, she was busy in some work, she leaves it undone and begins another work, for example, the husbands asks her to bring food, she falls asleep, start taking bath, starts doing some house hold purchasing, she climbs the riding animal, standing animal starts moving, in all these circumstances, the change in postures from one to another, constitutes a change of the meeting (majlis) and the right of exercising the right entrusted by the husband no longer remains valid. In contrast to the above situations there are some other situations in which changes do not bring about change in the meeting (majlis). If she was standing, she sets down. She was standing and starts strolling in the room, or she was sitting and takes a pillows to recline, she was reclining against the pillow, she sits straight or calls for her father and someone else for consultation or herself went to call witnesses so that she may give talaq in their presence when there is none who could call the witnesses or she was riding the animal and stops to give water/fodder to it. In all these situations no change in the meeting takes place.

KHULA Khula is the ending of the marriage (Nikah) whereby the husband consents to the request of the wife to release her from the marriage contract in return for the dowry or some other remuneration to be given to the husband. A khula once issued, counts as one irrevocable divorce (Talaq Bain). Khula` comes from the Arabic kh-la-`a which is used in Arabic for taking off clothes normally. The reason the Sharia has used this word for this kind of Talaq is because the Holy Quran has referred to the intimate and close nature of the relationship between the husband and wife by referring to each one as being clothes of the other partner:

Your wives are garments for you and you are garments for them. By using Khula` to end the Nikah one is removing this garment from oneself. Some people today have seriously misunderstood the concept of Khula` and think a Muslim judge or a Sharia

council can issue Khulas without the consent of the husband. This is will not be Khula according to Islam. As Mufti Taqi Uthmani writes: To the extent we have researched, approximately all the great Jurists (Fuqahaa Mujtahidun) are agreed, and the evidences of the Quran and Sunna support this, that Khula is a mutually agreed transaction between the two sides. (p.12 in Islam Me Khula Ki Haqiqat) The following are some of the texts of the classical Muslim jurists on Khula: Hanafi School The great Hanafi jurist Imam Sarkhasi writes: Khula`is permitted by the ruler and other than the ruler because it is a transaction that is entirely based upon mutual agreement. (Al-Mabsut,vol. 6 p. 173, Matbaa` al-Sa`aadah) Maliki School The scholar Allaamah Abu al-Waleed al-Baaji in his commentary on the Muwatta of Imam Malik: The wife will have to return to him if the husband does not want her separation through Khula` or by some other way. (Al-Muntaqaa, vol. 7 p.61, Matbaa` al-Sa`aadah) Shafi School The great Imam and founder of the school that goes by his name, Imam Shafi writes in Kitab alUmm: the reason is that Khula` is in the ruling of Talaq. Thus no one has the right to divorce on behalf of someone else. This right is not gained by the father, the master, the guardian and not even the ruler. (Kitab al-Umm, vol. 5 p. 200, Maktaba al-Kulliyat al-Azhariyya) Hanbali School The great authority in the Hanbali school Imam Ibn Qudaama states: For Khula` is a transaction, thus the absence of the need of the ruler, just as in sale transactions (Bay`) and the marriage contract (Nikah) and because it stands for the ending of a (marriage) contract by mutual agreement. For this reason it resembles the mutually agreed cancellation of a sale contract (Iqalaah). (Al-Mughni, vol. 7 p. 52, Dar al-Manaar) This view is also the position of Imam Ibn Taymiyya and his famous student ibn al-Qayyim alJawziyya. The latter writes in his work Zad al-Ma`aad: That the Messenger of Allah termed Khula to be fidya (an amount given in exchange for something) is proof that it has the meaning of a transaction and it is for this reason that the agreement of both the husband and wife has been made a condition in it. (Zad al-Ma`aad, vol. 2 p.238)

Can a woman seek a Faskh of Nikah without the grounds for such a Faskh being present as stipulated by the Sharia? It should be clear that a Sharia Council or Muslim judge (Qadhi) does NOT have the legal capacity to decree a Faskh of Nikah where the Sharias defined grounds for Faskh are not present. Any Nikah thus dissolved will remain intact and any new Nikah will be counted as Zina.

A wife who does not have Sharia grounds for Faskh, but still wishes to separate from her husband, may seek Talaq or Khula.

Is it a requirement for a man's issuing of Talaq (divorce) to be considered valid that it be witnessed by a Shariah Council? No. However, it is recommended in Sharia to have such a Talaq witnessed and attested to by qualified individuals to prevent disputes.

According to Islam who is entitled to look after the children if a marriage is dissolved? A mother has the right to custody for her son until he reaches 7 (lunar) years of age. From this age and beyond, it is the right of the father. In the case of a daughter, the mother has the right of custody until the daughter reaches 9 (lunar) years of age and beyond, then the right transfers to the father. However, it is also permissible for the father if he so wishes, to allow the custody of the children to remain with the wife, during his own period of entitlement. If the mother during the period of her entitlement to custody (i.e. up to the age of 7 for a male child and age 9 for a female child), chose to get married again with someone unrelated to the said children, she would in this situation automatically lose her right to custody. The right of custody will now instead transfer to the women folk on the mothers side, such as the maternal grandmother and then the maternal aunty and so on and so forth, in accordance to the Shariah designated order. In the case a Nikah is dissolved is it wrong to prevent the parent of ones children from having access to them? It is the right of the father/mother to see his/her children whenever he/she reasonably so wishes. Each parent must not prevent the other from having access to their children, as that is regarded in the Shariah as zulm (oppression) and very sinful. However, if there is a genuine threat of harm coming to the children by allowing their father or mother to have access to them, then arrangements appropriate to the situation should be made, ideally with the guidance of a religious authority such as a Shariah council. What rights remain upon the father even after the dissolution of the Nikah? The living expenses for the dependent children born during the said marriage will remain the responsibility of the husband, even after divorce. It should be noted that even after divorce, it is still the right and responsibility of the father to arrange for his own daughters marriage as he is still regarded as the wali (Shariah designated guardian) of the daughter, this duty also includes paying for the reasonable expenses of the marriage. If three Talaqs/Divorces are issued in one go, will this count as three Talaqs or one? It will count as three Talaqs.

Irrespective of whether a man pronounced to his wife the words of Talaq in one statement (e.g. I give you Three Talaqs), or in three separate statements (e.g. I give you Talaq, I give you Talaq, I give you Talaq.), according to the unanimous verdict of all Schools of Islamic Law (Hanafi/Shafi/Maliki/Hanbali) that these three Talaqs will be regarded in sharia law as being three Talaqs and a husband will cease to have the right to take back his wife without a sharia based Halalah. A Shariah based Halalah is whereby the wife freely marries someone else after having been divorced thrice and then after consummation of that second marriage is given divorce by the second husband or the second husband passes away, in this situation she may now remarry the first husband with a new marriage contract and with a new mahr (dowry). It should be clear that in the past thirteen hundred years of Islamic history, this ruling has been consistently applied throughout the Muslim lands. It is a fact that for all this time never has an Islamic court or an Islamic Judge ever issued a verdict of one Talaq during the existence of the Khilafah. Furthermore, in recent times, the Islamic courts of Saudi Arabia revisited the issue and after having a team of senior scholars ( ) research the issue, they concluded that according to the majority opinion of the these senior scholars of Saudi Arabia, indeed three Talaqs constitute three and not one based on evidences from the Quran, Sunnah, Ijma, Qiyas and this was the dominant view of the companions of the Prophet peace be upon him. They write: Verily the view that Three Talaqs are three is the view of the majority of the Islamic scholars. Indeed it was accepted by `Umar, `Uthman and `Ali r.a., `Abdullah bin `Abbas, Ibn `Umar, Ibn Mas`ud, `Abdullah bin Zubayr, `Abdullah bin `Amar and other than them from the companions of the Messenger of Allah A formal detailed fatwa to this effect was subsequently issued under the auspices of the Permanent Committee for Islamic Research and Fataawa (al-Lajnah ad-Daa'imah lil-Buhooth al'Ilmiyyah wal-Iftaa) in 1970 corresponding to the Islamic date 1391AH/7/8. The signatories to this fatwa ( legal edict) included such eminent scholars as; Shaikh `Abd al-`Aziz Bin Baz, Shaikh Muhammad al-Amin al-Shanqiti, Shaikh `Abdullah Bin al-Manee` amongst many other reputable scholars