FIQH

OF MARRIAGE
Laws pertaining to Nikah (Marriage) in Islam

Introduction

Nikah (Marriage) in Islam

First of all, Nikah is a Hukm (command) of Allah and second of all, it is from the Sunnah of
the prophet, Muhammad (S). The Quran as well as the Ahadith have explained the
importance of Nikah in Islam.

When one marries with the intention of fulfilling the command of Allah and following the
Sunnah (practise) of the prophet, Muhammad (S) then this will become a means of reward
(Thawab) for them.

Marriage in Islam forms one of the most, if not the most important relationship a person
could have in this world, it forms the basis of all other licit relationships which are founded
upon it.

Allah mentions in the Quran “He is the one who has created you from a single soul, and out
of him created his wife, so that he may find comfort in her.” (Quran 7:189)

Getting ready for Marriage

• The Intention – correcting ones intention (Niyyat)
• Who to consult when intending Nikah
• Avenue to seek when looking for a spouse
• Engagement
• Istikharah
• Marriage ceremony
• Walimah
• Rights of the Husband and Wife
• Children
• Disputes in Marriage and how to deal with them
• And much more....





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The five categories

1. When does Nikah become Fardh

(obligatory)?................................................................................................................................
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2. When does Nikah become Wajib

(Necessary)?................................................................................................................................
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3. When does Nikah become Sunnah (Emphasised Practise) of the Prophet, Muhammad
(S)?..............................................................................................................................................
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4. When does Nikah become Makruh Tahrimi (Prohibitively

disliked)?.....................................................................................................................................
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5. When does Nikah become Haram

(Unlawful)?.................................................................................................................................
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The contract and its condition

• Nikah is contracted by proposal and acceptance, in two statements - both of them

expressing the past tense, or - one of them expressing the past and the other the
future.

• Marriage is contracted by the words of marriage, wedding, and transfer of
possession, gift, or charity.

• If a man marries a woman off without her permission, or [marries off] a man without
his permission, [the marriage is contingent on their acceptance].

• The marriage of Muslims is not contracted without the presence of two free, adult,
sane, Muslim [male] witnesses, or one man and two women, [whether they be]
morally upright or not, or [even] inflicted with the prescribed punishment for slander.


Prohibited persons

Marriage is prohibited between two people in various cases. Hereunder are conditions that
prevent a valid marriage.

Prohibition by Kinship

• His mother, nor his maternal or paternal grandmothers,

• His daughter, nor his granddaughters, and lower
• His sister
• His [niece]: his sister’s daughter or his brother’s daughter
• His paternal aunt
• His maternal aunt
• His wife’s mother, whether he has consummated with her daughter or not

Prohibition by Marriage Ties

• The daughter of his wife with whom he has consummated, whether she is under
his guardianship or the guardianship of someone else.
• His father’s or grandfather’s wife.
• His son’s or grandson’s wife.
• Whoever commits fornication with a woman, her mother and daughter become
unlawful to him.
• An ex-wife (whom he has divorced three times) unless she has since
consummated another marriage.
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Prohibition by Suckling

• His foster-mother
• His foster sister

Prohibition of Combination

• He may not combine two sisters in marriage, nor as slave-girls for intercourse if a

man divorced his wife with an irrevocable (Ba’in) divorce, it is not permissible for him
to marry her sister until [his wife’s] waiting period (Iddah) is over.

• He may not combine a woman with her paternal or maternal aunt, nor with her

[niece:] sister’s daughter or brother’s daughter.

• He may not combine two women [who are such that], if one of them were a man, it

would not be permissible for her to marry the other.

• There is no objection to combining a woman with a step daughter of her previous
marriage.

• A free man may marry up to four - free women. If a free man divorces one of the

four with an irrevocable divorce, it is not permissible for him to marry a [new] fourth
[wife] until the waiting-period of [the other] is completed.

Prohibition by Religion

• It is permissible [but disliked for a Muslim man] to marry women of the People of the
Book, but it is not permissible to marry Zoroastrian (ancient pre Islamic religion)
women, nor idolatrous women.

• It is impermissible for a Muslim woman to marry anyone other than a Muslim man.

• It is permissible to marry Sabean women if they believe in a prophet and affirm a
scripture, but if they worship the planets, and have no scripture, then it is not
permissible to marry them.

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The Wali
Precedence for Wilayah

• The Wali (Guardian) is a paternal male relative.

• A slave, minor, insane person, or a disbeliever, has no Wilayah (guardian ship) over a
Muslim woman.

• It is valid for non-male relatives to marry women [if males are not available]. If the
immediate Wali is disjointedly absent, then it is valid for someone beneath him to
marry [the women off]. I.e. her brother.

A disjointed absence is when he is in a location where it is difficult to travel to make it for
the Nikah and act as a Wali.


Compatibility (Kufwu)

Compatibility in marriage is taken into consideration. So, if a woman marries an

incompatible [man], the Wali has the right to separate them.

Compatibility is considered in:

• Lineage.
• Religion.
• Profession.
• Wealth, which is that he, be in possession of the Mahr and maintenance.

Authority of the Wali

• The marriage of a free, adult, sane woman is contracted with her consent, even if
there is no wali who can perform the contract for her, whether she is a virgin or not.


• It is not permissible for the wali to coerce (force or pressure) an adult virgin to marry
[someone]. If he asks for her permission, and she remains silent, or giggles, that is
[indicative of] her permission. But, if she refuses, he may not marry her off.


• If the husband says: The marriage [proposal] reached you, and you remained silent,’
but she says, ‘No, I refused it.’ then the word is hers, and there is no oath due on her.


• If he asks the permission of a non-virgin, her consent in words is essential. If her

virginity was removed by jumping, or menstruation, or an injury, then she is

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considered to be a virgin. If it was removed by fornication, then the same ruling
applies according to Abu Hanifah.


• The marriage of a minor male or female is valid if the wali marries them off, whether
the minor girl is a virgin or not but she has the right to cancel the marriage after
maturity.

• If [two minors] were married off by the father or grandfather, then the marriage is

binding after reaching maturity. But, if other than the father or grandfather married
them off, then each of them has the choice when they reach adulthood: if he wishes,
he may continue in the marriage, and if he wishes he may annul it.

• If a woman marries and keeps her mahr lower [than her peers] then the wali has the
right to object to that, according to Abu Hanifah, until [the husband] makes up the
mahr of her peers or separates from her.

• If a father marries off his minor daughter and keeps her Mahr lower [than her peers],

or [marries off] his minor son and exceeds in the mahr of his wife, that is valid for
them. But that is not permissible for other than the father and grandfather.

• It is valid for a paternal uncle’s son to marry the daughter of his paternal uncle to

himself. (Cousin sister)

• If the woman gives permission to a man to marry her to himself in the presence of

two witnesses, [the contract] is valid.

Mahr (Marriage Payment To The Bride)

Specification

• The marriage is valid if the Mahr was mentioned in it, and it is also valid [even] if no
Mahr was named in it. However, the woman is entitled to the Mahr of her peers.


• The minimum Mahr is 10 dirham, but if he (the groom) named less than 10, she is
entitled to 10. If a Muslim marries [a woman] on [a Mahr of] wine, or pork, then the
marriage is valid, but she is entitled to the Mahr of her peers.


• If he marries her on [a Mahr of] an animal without a description of it, the naming is
valid, but she is entitled to a medium one. The husband has a choice: if he wishes, he
may give her that, or if he wishes, he may give her its value [in money].


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• If he marries her on [a Mahr of] a garment without any description of it, then she is
entitled to the Mahr of her peers. If a free man marries a woman on [a Mahr of]
service to her for a year, or for teaching her the Quran, then she is entitled to the
Mahr of her peers.

• The Mahr of her peers is reckoned (stipulated) by the [consideration of] her sisters,
paternal aunt and paternal uncle’s daughters. It is not reckoned with reference to her
mother and maternal aunt if they are not of her tribe.

That which is taken into account in [ascertaining] the Mahr of her peers is: that the two
women are equivalent in age, beauty, modesty, wealth, intelligence, religiousness, country
and time.

• If he added to [the amount of] her Mahr after the contract, he is obliged to [pay] the
additional amount, but it is waived by divorce before consummation.


• If she waived [some] of her Mahr from him, this is valid.

Entitlement

• If a man is secluded with his wife, and there is no hindrance from intercourse, and
then he divorces her, then she is entitled to the complete Mahr. But, if one of them is
ill, or fasting in Ramadan, or in ihram for obligatory or supererogatory hajj or `Umrah,
or she is menstruating, then it is not a valid seclusion.

• If a castrated man (no testicles) is in seclusion with his wife, and then divorces her,
then she is entitled to the complete Mahr according to Abu Hanifah.

• Whoever names a Mahr of 10 [dirhams] or more is obliged [to pay] the named
[amount] if he consummates with her or dies leaving her.

• If he divorces her before consummation and seclusion, then she is entitled to half of
the named amount.

• If he marries her and does not name a Mahr, or he marries her on condition that she
will have no Mahr, then she is entitled to the Mahr of her peers if he consummates
with her or dies leaving her.

• If he divorces her before consummation, then she is entitled to compensation, which
is three garments of her peer’s usage.

• If he marries her and does not name a Mahr, and then they mutually agree to name a
Mahr, then she is entitled to it if they consummate or he dies leaving her.
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If he divorces her before consummation then she is entitled to compensation.

• It is recommended [for a man to give] compensation to every divorced woman
except one [for whom it is essential,] and that is the one he divorced before
consummation and for whom he did not name a Mahr.


• If the Wali guarantees the Mahr, his guarantee is valid, and the woman has a choice
between demanding [it] from her husband or [from] her wali.


• If [a man] marries a woman on [a Mahr of] one thousand [being less than the Mahr
of her peers] on the condition that he will not take her out of the country, or on the
condition that he will not marry over her, then if he fulfils the condition she is
entitled to the named [Mahr]. But, if he marries over her, or takes her out of the
country, then she is entitled to the Mahr of her peers.

Validations of a Marriage

• It is valid for a man and woman in Ihram to marry one another in the state of Ihram.

• Mut’ah marriage and time-limited marriage are invalid.

• If the judge separates the two spouses of an unsound marriage before
consummation, then she is not entitled to a Mahr. However, if the marriage has been
consummated then she is entitled to the Mahr of her peers (Mahrul-Mithl), however
it may not exceed the named [Mahr].

The waiting period is due upon her, and the lineage of her child is established.

• Whoever marries two women in one contract, one of them not being lawful to him to
marry, the marriage of the one who is lawful for him to marry is valid, and the
marriage of the other is invalidated.

Embracement of Islam

• If a woman embraces Islam and her husband is an unbeliever, the judge presents
Islam to him. Then, if he accepts Islam, she is [still] his wife, but if he refuses [the
judge] separates them, and that is an irrevocable divorce.

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• If a husband embraces Islam with a Zoroastrian woman under him, [the judge]
presents Islam to her. Then, if she embraces Islam, she is [still] his wife, but if she
refuses, the judge separates them. This separation is not a divorce, but if he had
consummated with her she is entitled to the Mahr. If he had not consummated with
her then there is no Mahr for her.

• If a woman embraces Islam in Dar al-Harb, separation does not take effect on her
until she has menstruated three menstrual periods. Then, she becomes separated
from her husband.

• If the husband of a Kitabi woman embraces Islam, they continue upon their
marriage.

• If an unbeliever married without witnesses, or in the waiting period of an unbeliever,
and that is legitimate according to their religion, and then they both embrace Islam,
they are asserted in it. But if a Zoroastrian married his mother, or his daughter, and
then they both embraced Islam, they are separated.

Apostasy

• If one of the two spouses from Islam becomes an apostate, separation occurs
between them without divorce.

If the husband becomes an apostate, and consummates the marriage then she is
entitled to the entire Mahr. If the woman becomes an apostate before consummation,
then there is no Mahr for her. But, if the apostasy is after consummation, she is entitled
to the mahr.

• If they both spouses become apostates together and [then] embrace Islam together
then they [continue] in their marriage.

• It is not permissible for an apostate to marry a Muslim woman, nor an unbelieving
woman, nor an apostate woman. Similarly, an apostate woman may not be married
by a Muslim man, or an unbeliever or an apostate.


• If one of the spouses is Muslim, then the child [continues] upon his religion. Similarly,
if one of the two [spouses] embraces Islam and has a minor child, his child becomes
Muslim by his [parent’s] Islam.

Treatment of wives

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A man may marry up to four wives at any one given time however, if a man has more than
one free-woman wives, it is obligatory upon him to be just with them in division of:

• Nights
• Clothing
• Food
• Companionship

Whether they were virgin s, or not, or one a virgin and the other a non-virgin.
They have no right to division in the circumstance of travel. The husband may travel with
whomever he wishes, but the more appropriate procedure is that he draws lots between
them, and then travel with whichever [wife] has her lot drawn.


If one of the wives consents to forgo her share for her co-wife, it is valid, but she is entitled
to revoke that.

Establishing foster relationship

• A little and a lot of suckling is the same as far as regulation. If it occurs in the period
of suckling (thirty months after birth of child), then the foster relationship is
established.

• Then, when the period of suckling has expired, then the foster relationship cannot be
established.

• In suckling, the testimony of women alone is not accepted. Suckling is only
established by the testimony of two men, or a man and two women.

• If milk is mixed with water, and the milk is predominant, then the foster relationship
is established, but if the water is predominant then the foster relationship is not
established.

• If milk is mixed with food then the foster relationship is not established, even if the
milk is predominant.

• If [milk] is mixed with medicine and [the milk] is predominant, then the foster
relationship is established.

• If milk is mixed with the milk of a sheep, and the [human] milk is predominant, then
the foster relationship is established, but if the sheep milk is predominant, then the
foster relationship is not established.

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• If the milk of two women is mixed, then the foster relationship is established with
both of them.

• If milk is extracted from a woman after her death, and an infant is fed with it, then

the foster relationship is established.

• If milk comes forth from a virgin, and she then suckles an infant with it, then the
foster relationship is established.

• If milk comes forth from a man, and he then suckles an infant with it, then the foster
relationship is not established.

Marriages through a foster relationship

• Suckling prohibits all that which kinship makes prohibited, except for:

a. The mother of his foster-sister.

b. The sister of his foster-son.

• The wife of his foster-son.

• The wife of his foster-father.

• A man may marry the sister of his foster-brother.

• For any two infants that have been suckled by one woman, it is not permissible for
one of them to marry the other.

• It is not permissible for a suckled girl to marry any one of the sons of the woman who
suckled her, nor her son’s sons.

• A suckled boy may not marry the sister of the foster woman’s husband, because she
is his foster-aunt.








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The Fiqh of Divorce

Talaq (Divorce) is one of those things in the Shariah that is the most detestable (to Allah)
though it is something which can be carried out lawfully (depending on the circumstance).
It is therefore extremely important that those who have the power of giving Talaq think it
over before going towards that direction.

Talaq
• If a man (who is mature), not a mad person, divorces his wife, the divorce will come
into effect. As for the husband who is not mature, who is not in his senses, he is mad
then, by divorcing his wife, the divorce will not come into effect.
• A sleeping man’s divorcing his wife will also not come into effect.
• A man who is threatened and forced by gunpoint to give his wife divorce, even then
the divorce will not come into effect.
• A man who is under the influence of alcohol or any other intoxicant gives his wife a
divorce and later regretted his action after coming to his senses, even then his
divorce will come into effect, the same applies to a man who gives his wife a divorce
in a state of anger.
• Apart from the husband no one has the right of giving divorce. However if a man
orders someone to give a divorce on behalf of him (to his wife), then the divorce will
come into effect.
• A woman cannot divorce her husband, when her husband divorces her; she has no
choice in it.
• A man cannot divorce his wife more than three times.
• If a man divorces his wife by saying “I have divorced my wife” in such a tone that he
is able to hear it; then the divorce come into effect even though she did not hear him
say it.

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Divorce is of three types
1. Talaq ul-Ba’in (Irrevocable/irreversible Divorce): If this type of Talaq is intended by
the husband then both the couple will have to perform a fresh Nikah if they wish to
stay in the marriage.

2. Talaq ul-Raj’ee (Revocable/reversible Divorce): If this type of Talaq is intended by
the husband both the couple will stay in the marriage if they so wish to, as long as
the Husband has not given a third divorce.

3. Talaq ul-Mughallazah (Triple/Irrevocable Divorce): this (scenario) is when the
husband has given a third Talaq to his wife. In this instance they cannot remarry
unless the wife goes through a process called Halalah (the process of becoming Halal)

There are two ways of pronouncing Divorce

1. The first way: is that the husband gives Talaq using clear words, e.g. the husband
says “I divorce you.” Or he says “I divorce my wife.” This is known as Talaq ul-Sareeh
(divorce using clear words). This has two types: a) Sareeh Raj’ee and b) Sareeh
Ba’in.

In both these above circumstances divorce will come into effect.

2. The second way: is that the husband uses vague indirect words when giving divorce
such as the husband saying “I take an oath that you are not my wife”, “you are not
my wife”, “I am not your husband”, “There is no Nikah between the two of us.” “I
have not married you”, “There is no Nikah between us”, “I have no need for you”,
“Go away.” “Get out.” etc. This is known as Talaq ul-Kinayah (divorce using vague
words)

In such instances divorce will not take place however; if there is an accompanying intention
of divorce with these vague words then divorce will come into effect otherwise not.

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There are three ways of giving Divorce
First of all, it should be known that there are three types of divorce: (1) Ahsan (most
preferred), (2) Sunnah (preferred) and (3) Bid’a (sinful & unlawful innovation).

The Ahsan (most preferred) divorce is to make one pronouncement of divorce to the wife,
in an interval between menstruations (Tuhr), in which no sexual intercourse with the wife
has taken place. After which she is left until her waiting period (Iddah) is over.

The Sunnah (preferred) divorce is to pronounce three divorces in three separate intervals of
Tuhr, in which no sexual intercourse with the wife has taken place.

The Bid’a (sinful and unlawful innovation) divorce consists of either making a
pronouncement of divorce during the woman’s menstruation period (Haid) or to pronounce
two or three divorces at once or to issue a divorce in a Tuhr (purity) in which sexual
intercourse with the wife took place.

From the above we can see that, if a man pronounces three divorces at once, either by saying:
“I give you three divorces” or by saying: “I divorce you” three times, it is considered an
unlawful act and innovation. One will be sinful by divorcing the wife in such a way.

The reason for this prohibition is that, if divorce is pronounced in the period of purity (tuhr)
in which sexual intercourse took place, there is a possibility that the woman may have
conceived. This will prolong the waiting period for the woman, (which is until she gives birth),
thus placing hardship and difficulty upon the woman, which is disliked by Shariah. Also the
husband may regret giving the divorce after seeing his wife conceive.

Continuing with Talaq

• If a man gives one divorce to his wife and then gives another and a third divorce
while she is in Iddah (waiting period from the first divorce that he had issued), the 2nd
and 3rd divorce will come into effect.

• If a man says to his wife “I will divorce you.” The divorce will not take place. Similarly,
if he says: “If you carry out a particular action, I will divorce you.” The divorce will not
take place irrespective of whether she carries out the action or not.

• If a man says to his wife “I divorce you”, then immediately thereafter says, “In sha
Allah” the divorce will not come into effect. Even if he said, “In sha Allah I divorce
you”, even then divorce will not come into effect.

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However, If he said “I divorce you”, and then waits for a while and then says “In sha
Allah”, the divorce will come into effect.

• If a man says to his wife “Divorcee” then this will come into effect even if he says this
jokingly.

• If a man says to his wife “When you go to ‘so and so place’ you are divorced. Divorce
will not take place as long as she doesn’t go the place her husband has mentioned.
However, if she does go to the named placed she will e divorced.


• A man did not clearly mention the words of divorce. Instead, he issued the divorce in
vague words and terms. If at the time of uttering these words, he had the intention
of divorce, then divorce will take place. In such a case, the first type of divorce will
take place i.e. Talaq ul-Ba’in.

However if he did not have the intention of divorce in mind when uttering these words
then divorce will not come into effect.

• If a man says (to his wife) “I divorce you, I divorce you, I divorce you”, then three
divorces take effect. The same applies to if he had used vague words but meant
divorce all three times.

The rulings of Khula’ and its method

Khula’ is also a method of effecting a Talaaq. This occurs where the wife finds it difficult to
live with her husband and for some reason or the other he refuses to issue a Talaq, then
she may gain her freedom by means of a Khula’. The husband’s consent is necessary for
Khula’.

Khula’ is from the root word Khala’ (which means to remove, to take off etc.)

The rulings of Faskh ul-Nikah (Annulment of Marriage) and its method

An annulment is a legal procedure which cancels a marriage. In Shari’ah terms, it is when
the husband refuses to give a Divorce or agree to a Khula’ then the only option is for the
wife is to present the case to a Shari’ah court, or to a committee of Ulama (Scholars).

Faskh is from the root word Fasakha (which means cancel, to nullify etc.)
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The rulings of Iddah and its method
Iddah (period of waiting) is the period a woman must observe after the death of her
husband or after a divorce, during which she may not marry another man. Its purpose is to
ensure that the male parent of any offspring produced after the termination of a Nikah
(marriage) would be known.

Miscellaneous
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The End

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