Compiled By: SHADAB SHAIKH (Chemical Engg.) firstname.lastname@example.org Mob: +91-9329669919
1) LOOKING AT THE WOMAN INTENDED FOR MERRIAGE AND IT’S CONDITIONS
Ibn Qudaamah said: “Whoever desires to marry a woman then it is permissible for him to look at her without being alone with her. We don’t know any differing amongst the people of knowledge regarding the permissibility of looking at the woman intended for marriage based upon the Hadeeth of Jaabir Ibn ‘Abdullaah that the Messenger, May the Salat and Salaam of Allaah be upon him, said: “If one of you proposes to a woman and he has the ability to look at her, then he should do so” For the Prophet ordered us to look and it was left general.
Imaam Ahmad said: “He is to look at her face and this is not to be done lustfully or out of pleasure. He has the right to look more than once and to observe her beauty because the goal cannot be achieved except through this.” So there is no difference of opinion amongst the ‘Ulamaa in reference to the permissibility of looking at the face of the woman, and that is because the face is not ‘Awrah, rather is the place where her beauty is gathered and it is not permissible for him to look at what normally shows of the woman. There is a difference of opinion amongst the scholars regarding other than the face like the hands and the feet and other than this which the woman would display normally. The first: It is not permissible to look at because it is considered her to be her ‘Awrah just like the other parts of the body due to the Hadeeth of ‘Abdullaaah Ibn Mas’ood where the prophet said: “The entire woman is ‘Awrah.”
This Hadeeth is Hassan. For the necessity of looking at anything else is removed by looking at the face and everything else remains in its legislative origin of impressibility.
The Second: It is permissible to look at other than the face just as Imaam Ahmad said: “There is nothing wrong with looking at her face and at what will encourage him to marry her whether it is the hand or what normally shows and the likes of this.”
Imaam Shafi’ee said: “He is to look at her face and hands.” Then he mentioned the story of ‘Umar Ibn Al Khataab when he proposed to the daughter of ‘Ali Ibn Abi Talib (Umm Kulthum). ‘Ali sent her to ‘Umar for him to look at her and ‘Umar was pleased with what he saw and as she was walking away ‘Umar looked at her shin and she said to him: “If it wasn’t for the fact that you were the Leader of the Believers I would hit you in both of your eyes!” Al Mughni Vol.7 P.453
Imaam An Nawwawi said after mentioning the Hadeeth of Abu Hurairah where he said: “I was with the Messenger of Allaah when a man came to him and said: “I married a woman from the Ansaar” so the Prophet said to him: “Did you look at her? For indeed there is something in the eyes of the women of the Ansar.” “In this Hadeeth is a recommendation to look at the face of the woman that is intended for marriage. This is our Mathhab (as Imaam An Nawwawi followed the Mathhab of Imaam Ash Shafi’ee) and it is the Mathhab of Imaam Malik, Abu Haneefah and the rest of the scholars from Kufah (Iraq), Imaam Ahmad and the great majority of the ‘Ulamaa, that it is permissible to look at the face and hands only because they are not her ‘Awrah and because the face points to her beauty and it’s opposite and the hands point to the richness of her shin or otherwise. This is the Mathhab of the great majority of scholars.
Imaam Al Awzaa’ee said: “It is permissible for him to look at her without her (over) garment." Dawud (ADH Dhahiri) said:
“He can look at all of her body.” This is a clear misconception and it is in opposition to the foundations of the Sunnah and the Consensus (of the ‘Ulamaa) and in opposition to our Mathhab and that of Maalik, Ahmad and the Jamhoor (great majority of the scholars)” Sarh Sahih Muslim Vol.9 P.214
Ibn Rushd said: “As for looking at the woman at the time of proposal of marriage then Imaam Malik says it is permissible to look at the face and the two hands only, and Abu Haneefah said the feet the face and the hands as Allaah says: “And not to show off their adornment except only that which is apparent (i.e. eyes and hands)” (24: 31) Bidayah tul Mujtahid Vol. 2 P.114
Shaykh Saaleh Al Fawzaan said: “It is permissible for the man who desires to propose to a woman to look at her with three conditions: The First: He is almost positive that he is going to marry her; The Second: He is to look at what is not considered to be her ‘Awrah, that which is normally apparent; The Third: This all being done without being in seclusion or alone with her. Based upon the statement of the Messenger: “If one of you proposes to a woman and he has the ability to see what will encourage him to marry her then he should do so" Sharh Zaad ul Mustaqni' Vol.3 P.4383
Shaykh Muhammad Ibn Saaleh Al ‘Uthaymeen was asked: I am not married but if a pilgrim arrives at Saudi Arabia and he performs the Hajj, is it permissible afterwards for him to look at the woman he has proposed to and wants to settle a contract of marriage with? Is it permissible if I give her half of the dowry but we have not concluded the contract? We desire some clarity from you may Allaah give you success.
The Shaykh replied: Looking at the woman intended for marriage is permissible with the conditions that: Firstly: You don't seclude yourself with her, meaning you are not to be alone with her in a place where there is no one other than the two of you; Secondly: That there is no Fitnah involved; Thirdly: You looking at her is not to be lustfully nor out of desire; Fourthly: You are almost positive that she is going to marry you because sitting with her and talking frivolously to her is not permissible, for in that case there is nothing necessitating him to look at her. For there is reason behind looking which is to cause harmony and accord between the two and for him to ultimately marry her based upon sound desire. But just sitting with her and talking to her or to be alone with her then this is not permissible.
2) ABOUT PEOPLE WITH WHOM MATRIMONY IS PROHIBITED
1: If a man commits adultery with a woman, then it is not permissible for him to marry her mother or her daughters.
2: If a woman out of sexual passion and with evil intent commits sexual intercourse with a man, then it is not permissible for the mother or daughters of that woman to merry that man. In the same way, the man who committed sexual intercourse with a woman, because prohibited for her mother and daughters.
3: If a man gets up in the night to waken his wife but commits sexual intercourse with his daughter of mother-in law by mistake, but with sexual passion taking her to be his wife, then that man becomes prohibited for his own wife for ever. Now there is no way out to make her valid for him and hence divorce becomes necessary.
4: If a boy commits sexual intercourse with his step-mother with bad intent, then woman become prohibited for her husband. Now she can in no way become valid for him. And if the step-mother does so with her step-son, then the same rule will apply.
5: If a woman who has no husband becomes pregnant by adultery, her matrimony is also proper. But to indulge in sexual intercourse before the birth of the child is not proper. But if she performs matrimony with the same person who had committed adultery with her, then sexual intercourse with him is also permissible.
ABOUT NIKAH (MATRIMONY) OR THE KAFIRS (NON-BELIEVERS)
1: If the woman adopts Islam but the man remained a non-believer, then the woman cannot marry another man unless she passes the whole period of three menses.
1: After being informed of matrimony, when it is necessary to approve it with tongue, she did not do so, but when her husband met her she did not refuse sexual intercourse with him, then also the matrimony become proper.
2 : If in the matrimony of a girl (who has not yet attained her puberty) is being performed with someone by anyone other than her father and grandfather, and the girl was well-informed about her matrimony; and she attained her puberty and remained without sexual intercourse with her husband as yet; then if
she expresses her disapproval just at the time of attaining puberty and says that she does not want to kee0p this matrimony and even if none is present there, her matrimony will not break unless she does not go to religious authority and he makes her matrimony break. But if after attaining puberty she remains silent even for a moment, then she will forfeit her right to breaking her matrimony. But if she was not informed if her matrimony, then she should express her disapproval just at the moment she attains puberty, otherwise her right to break her matrimony will be forfeited.
3 : Of one attains her puberty after sexual intercourse by her husband, then refusal is not necessary just after reaching puberty, rather one has a right to accept or reject till her inclination be comes clear; no matter how much time is passed. But if she tells in clear words that she does approve of the relation or any indication regarding approval is found such as her living with her husband in privacy like 'husband and wife' then her right to refuse her matrimony is forfeited and matrimony becomes inevitable.
ABOUT MAIH'R (MONEY SETTLED UPON THE WIFE)
1: If one got fixed rupees then or twenty or a hundred of something according to his monetary position, as 'Maih'r' and brought his wife home and indulged in sexual intercourse with her or did not do so, but both the husband and wife lived together in such a place where there was nothing to stop him form committing sexual intercourse, then the entire 'Maih'r' fixed, has to be paid. And if nothing happened as mentioned above and in such a state the husband or the wife died, then also the entire amount of 'Maih'r' will have to be paid. And in case, no sexual relation got established nor there was chance for the same and the husband divorced his wife, then half of the amount of 'Maih'r' will have to be paid. In short, the husband and wife had such a privacy as mentioned above or any one of them died, then the whole 'Maih'r' become compulsory. But if divorce took place before such a privacy as mentioned above come to them, then half of the Maih'r become compulsory.
2: If one of the two (husband or wife) was sick or was in a state of 'Saum' (fasting) of Ramadan or was donning 'Ehram' (pilgrim's robe during Hajj) or the wife had menses or anybody would peep into the enclosure; such a privacy does not make the entire Maih'r compulsory. If she gets divorce, she is entitled to half of the Maih'r. But if the Saum (fast) was not that of Ramadan, rather it was a saum o compensation or of 'Nafil' or 'Naz'r' (ablation) observed by anyone of the two and in such a state she
remained in privacy with her husband, then she is entitled to get the whole of the 'Maih'r. The husband will have the whole Maih'r due on him.
3: If the husband is impotent but the husband and wife remained in privacy with all its conditions then also she would get the whole Maih'r. In the same way, if any eunuch performed matrimony but divorced after remaining together in privacy, then also the Maih'r becomes due and she is entitled to get it.
4: If the husband and wife pass time in privacy, but the girl is so minor that she is not fir for sexual intercourse or the boy is so minor that he can not commit sexual intercourse, then such a privacy does not make Maih'r compulsory.
5: If anyone performs Nikah (matrimony) against the rules and so the husband and wife had to be separated; for example, on e performed Nikah (matrimony) without any knowledge of people or two witnesses or the two witnesses were deaf and hence they could not hear the words uttered during matrimony; or the husband had divorced her or had died and she performed another matrimony without completing the 'Iddat' (probationary period) or any such thing happened against rules and hence the two had to be separated without sexual intercourse committed by the husband, then she is entitled to no Maih'r at all. She will get no Maih'r even if she passed time with her husband in privacy fulfilling all conditions; then the wife is entitled to Maih'r-e- Mis'l (dower in force in the family). But if some Maih'r was settled at the time of matrimony and Maih'r-e-Mis'l is more then that, the Maih'r settled will be given and not the Maih'r-e-Mis'l.
6: If commits sexual intercourse with a woman by mistake, thinking her to be his wife, then he has also to pay Maih'r-e-Mis'l. But such a sexual intercourse is not adultery and hence no sin for that. If, as a result of such a sexual intercourse, the woman becomes pregnant, then the family lineage will also not be affected and the child will not be treated as illegitimate. And when the person comes to know that the woman was not his wife, then she must remain aloof from her and now sexual intercourse with her is not permissible. Now it is necessary for the woman to wait for the 'Iddat' (probationary period); she, now cannot have sexual intercourse with her husband without completing her 'Iddat' (probationary period). The description of 'Iddat' (probationary period) will be come next Iddat Section, Insha-Allah.
7: If the husband could not pay in advance the amount of Maih'r according to family custom, then the wife has a right to refuse sexual intercourse or if sexual intercourse has already been committed once, then also she has a right not to allow sexual intercourse a second or third time or refuse to go abroad without taking advance from Maih'r. In the same way, if the woman goes abroad with any close relative
or from her husband's house to her paternal home, the husband has no right to prevent his from doings so. But when he pays in advance from Maih'r what is customarily due on him, then his wife cannot do anything or to go anywhere without his permission or the husband can take her to any place at his will, and refusal on her part is not proper.
ABOUT PARITY AMONG WIVES
1: Parity in sexual intercourse is not essential. For example, if one commits sexual intercourse with one wife in her turn, it is not necessary that eh must be so when the turn of another wife arrives.
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