Marriage With A Kitabiyah

MARRIAGE WITH A KITABIYAH

By TANZIL-UR-RAHMAN, Advocate, High Court of West Pakistan, Karachi
A Muslim male may contract a valid marriage with a Kitabiyah, i.e., with one
who is a believer in a Revealed Book (Al-Nasafi, Abdullah b. Ahmad b.
Mahmood (d. 710 A. H.), Kanz-ud-Daqaiq (Delhi), Kitab-al-Nikah, p. 99.).
Who is Kitabiya?
The term "Ahl-al-Kitab" applies, in general, to the followers of Christianity and
Judaism. If one of the parents is `ahl-al-Kitab' and the other is a 'mushrik'
according to Abu Hanifah, the woman shall be deemed to be Kitabiyah
(Fatawa-i-Alamgiri'yah (Cawnpore), Vol. II. Kitab-al-Nikah, p. 8.). According to
Shafi'i and Ahmad-ibn-i-Hanbal such a woman shall not be deemed to be
Kitabiyah and a Muslim male cannot marry her 3 Marriage with Kitabiyah and
Quran (Ibn-i-Qudamah Maqdisi (d. 620 A. H.) AI-Mughni (Cario, 1367 A. H.)
Vol, VI. p. 593.):
The Holy Quran permits the Muslims to contract marriage, with Kitabiyah. It is
thus laid down in Sura Maidah:
This day are all things
Good and pure made lawful
Unto you. The food
of the people of the Book
is lawful unto you
And yours is lawful.
Unto them.
(Lawful unto you in marriage)
Are (not only) chaste women.
Who are believers, but,
Chaste women among
The People of the Book,
Revealed before your time; (Sura : Maidah 6. Trans. by A. Yousaf Ali)"
View of Abdullah Ibn-i-Umar:
There is no difference of opinion on the point in question amongst the four
Imams viz. Abu Hanifah, Malik, Shafi'i and Ibn-i-Hanbal. It is, however,
reported that Ibn-i-Umar, one of the Companions of the Holy Prophet,
considered the contract of marriage of a Muslim male with a Kitabiyah as
invalid.
There are, on this point, three statements of Ibn-i-Umar:-
(i) There is no harm in taking the food of ahl-al-Kitab, but entering into
marriage contract with their women is undesirable (MAKROH).
(ii) "God, the Almighty, has prohibited Mushrik woman upon the Muslim male,
and I do not know whether there can be any greater `shirk' than considering
Isa Ibn-i-Maryam, or for the matter of that any person as God". This,
Ibn-i-Umar said, when questioned about contracting marriage with Christian
and Jew women.
(iii) In reply to the question of one Maimun b. Mehran to the effect that they
lived in a part of land where they were so interlinked with ahl-al-Kitab that
they had to marry their women and partake their food, Ibn-i-Umar read out
the ayat from Holy Quran permitting the marriage with Kitabiyah and then
read out the ayat from the Holy Quran prohibiting the marriage with
mushrikat.? Maimun responded back by saying that they too had read what
Umar had read out to him, in spite of that, they married the ahl-al-Kitab
women and partook their food. Ibn-i-Umar, in reply, simply read out the said
two verses again.
Abu Bakr Ahmed b. Ali al-Razi al-Jassass in his famous book "Al-Ahkam-al-
Quran" Abi-Bakr Ahmad b. Ali Al-Razi al-Jassass (d. 370 A. H.) Al-Ahkam
al-Qur'an (Cario) Chapter on Nikah-al-Mushrikat, Vol. 1, pp. 332-33 points out
that Ibn-i-Umar's avoidance of a clear reply over the question of marriage with
Kitabiyah and the recitation of the two verses by him repeatedly was a proof
of the fact that he could not make up his mind and form a conclusive opinion
on the point.
Ibn-i-Umar's view that the marriage with a Kitabiyah was undesirable was not
based on prohibition or forbiddance (TEHREEM), but, in fact, relates to the
Kitabiyah of "Dar-ul-Harb" i.e., those ahl-al-Kitab who live outside the
territories of Muslim State where the laws of Shari'at are not in force.
Historical Study of the Question:
Historical study of this question reveals that the Companions of the Holy
Prophet (SAHABA) and Tabi'un, in general, regarded the contracting of
marriage with a Kitabiyah as legal. Nailah, the wife of Uthman, the third Caliph,
was a Christian at the time of marriage. Talha ibn-i-Abdullah also married a
Jew woman of Syria. Huzaifah b. al-?Yaman, as well, married a Jew woman.
Jassass made a pointed reference to the above-said marriages in his book,
Ahkam at-Qur'an. He argued, if marriage with a Kitabiyah was illegal the
Companions of the Holy Prophet would never have entered into such
marriage contracts. Jassass, further, maintained that among the Tabi`un, Hasan
b. Ziyad, Ibrahim Nakh'i and Sha'bi were of the view that marriage with a
Kitabiyah was quite legal, that there was no instance of a single Companion or
Tabi`i who was against such marriage. Therefore, it could not be inferred from
the statements of Ibn-i-Umar that he considered a Muslim's marriage with a
Kitabiyah as illegal. As a matter of fact, he held the view that such a marriage
was undesirable (MUKROH) and that the undesir?ability (KARAHIYA) was not
owing to prohibition (TEHREEM). It was due to apprehension lest the corrupt
Kitabiyah women might pollute the faith and character of Muslims.
View of Ibn-i-Abbas:
According to Ibn-i-Abbas, one of the Companions of the Holy Prophet,
Muslims are permitted to marry only those Kitabiyas who are chaste and are
the subjects of Muslim State. Marriage with Kitabiyah of Dar-al-Harb and
Dar-al-kufr, according to him, is not permitted. He contended that God's
command to marry relates to those Kitabiyah women who lived in Dur-al?-
Islam. He maintained that to love those who were the enemies of God and of
the Holy Prophet could not be the conduct of ahl-al-Iman and so the marriage
with them was not permitted (Al-Qurtabi, abu Abdullah Mohammad b. Ahmad
Tafsir Jame' al Ahkam al-Quran (Cairo, 1936 A. D ) Vol. III, p.? 68-69).
Al-Jassass, in his aforementioned book, rebutting the arguments of
Ibn-i-Abbas stated that the distinction which Ibn-i-Abbas made between
Kitabiyah zimmiyah and Kitabiya Harbiya was without foundation. The verse
made no distinc?tion between them. Ibn-i-Abbas was, therefore, wrong in
particular?rising a general provision of law laid down in the Holy Qur'an. Said
b. Musayyib and Hasan Basri, too, were of the view that the verse was of a
general nature, indicating a general command. There could, therefore, be no
justification for making distinction between zimmiyah and non-zimmiyah, so
far as marriage with Kitabiyah was concerned. The correctness of this view has
been upheld and followed by the Ulama in general.
Besides, the correct answer to the contention of Ibn-i-Abbas can be that the
obligation to kill or fight someone does not make the marriage with that
person illegal. It has, in fact, no bearing on the validity of marriage. If
obligation of killing some-one could be the basis of prohibition, the marriage
with Khawarij and Baghi (outlaws) must have been held to be illegal, according
to the following verse of the Holy Qur'an:
If two parties among
The Believers fall into
A quarrel make ye peace
Between them: but if
One of them transgresses
Beyond the bounds against the other
Then fight ye (all against
The one that transgresses)
Until it complies with?????
The Command of God;???????????
But if it complies, then
Make peace between them
With justice, and be fair
For God loves those
Who are fair (and just)
God has commanded to fight with them. (Sura : Hujrat 9. Trana. by A. Yousaf
Ali.)
Correct position:
The correct position, as it appears to me, is that a Muslim's marriage with
Kitabiyah non-zimmiyah or harbiyah, though legal, is undesirable as it puts in
jeopardy the upbringing of children as Muslims. The children, under the
influence of their mother may adopt un-Islamic ways abhorrent to Islamic
society and culture. This view also finds support from Al-Mabsut of Sarakhsi.
(Shamsuddin Al-Sarakhsi (d. 482 A. H.) AI-Mabsut (Egypt, 1324 A. H.), Vol. V,
p.50) Hozaifah married a Jew lady. Information of this reached Umar, the
second Caliph. He asked Hozaifah to terminate the marriage. On Hozaifah's
inquiry whether the marriage with Kitabiyah was prohibited, Umar in answer
said, "No it is not prohibited, but I fear that you people may fall prey to
shameless and infidel women of ahl-al-Kitab".
Marriage with Kitabiyah and Shia View:
There is a consensus of opinion, among the Sunni School of fiqh that marriage
with Kitabiyah is undesirable though valid. There is, however, difference of
opinion among Shia School of thought. The Usuliyyah and Motazitah go with
Hanafis and consider marriage with Kitabiyah as valid while Akhbari Shias hold
that permanent marriage with a non-Muslim (woman) is not valid. They say
that only Mut'a is permitted with Kitabiyah (Al-Hilb, Najamuddin Jaffer (d. 474
A. H.) Sharai"al-Islam (Iran), Pt. II, p. 181.) In Kafi, Tafsir Majma` al-Bayan and
Tafsir Ayashi, it is stated that, according to Imam Baqar the command of God
in the verse has been abrogated by another command in verse. This view of
Imam Baqar is incorrect for three reasons:-
(i) The second verse as relied upon by Imam Baqar, was revealed concerning
those men and women who migrated to `Dar-al-Islam' from Dar-al-Harb, and
those wives (or husbands) who remained in Dar-al-Harb in the state of Kujr.
The marriage stood dissolved by conversion to Islam or by migration to
Dar-al-Islam from Dar-al-Harb, of either of the spouses. Qur'an, therefore, has
enjoined upon those males who were converted to Islam, not to take custody
of their Kafir women, i.e., not to have conjugal relations with them.
(ii) The term al-kawafir is for mushrikin (MUSHRIKEEN) and Kufar (KUFFAAR)
and not for ahl-al-Kitab. They stand on different footing from ahl-al-Kitab.
(iii) If the command in the second verse, in accordance with Imam Baqar's view
is taken to be correct, it will, then, be just a general direction and Kitabiyahs
will, thus, come under exception.
The view of Akhbari Shias that the marriage of a Muslim male with Kitabiyah is
not legal, is, therefore, contrary to the text of the Holy Quran.
Our Supreme Court in Ali Nawaz Gardezi v. Lt.-Col. S. M. Yousuf reported in P
L D 1963 S C 51 also appears to have the same view. Mr. Justice S. A. Rahman,
who wrote the judgment, observed as follows:--
"In the High Court the validity of the complainant's marriage to Renate in
England was also challenged on the ground that the complainant was a Shia,
and under his personal law, his marriage to a non-Muslim lady was invalid.
Reliance was placed in this connection on the rule of private international law
that the formal validity of a marriage had to be judged by the lex loci
contractus, but that the capacity of the parties to enter into the marriage bond
had to be determined according to the law of the domicile of the party
concerned. (See inter alia, Brook v. Brook Halsbury's Laws of England, Vol. 7, p.
91, para. 165, III Edition). The learned Single Judge as well as the Appellate
Bench held, however, that the marriage of the complainant and Renate, at
Hull, was a perfectly valid one. Syed Amir Ali, in his well?known text-book on
Muhammadan Law, 4th Edition, at p. 327 et seq, has discussed the question of
validity of a Shia Muslim's marriage to a non-Muslim woman of one of the
scriptural sects. He has pointed out that such a marriage would be valid
among Usuli Shias, and a large section of the Akhbari Shias, though one
school of thought represented by the author of the treatise "Sharia-ul-Islam"
(on which Bailie's Digest, Vol. Il is mainly based) has condemned such a
marriage as invalid. The complain?ant in the present case declared on oath
that he followed the Shia faith, but in case of a conflict between a clear.
Quranic injunction and a doctrine of the Fiqh he would follow the Qur'an. He
appears, therefore, to be a member of the Usuli persuasion. The Qur'an clearly
permits a marriage of a Muslim with a woman professing one of the scriptural
religions. In the circumstances, Mr. Mahmood Ali on behalf of the respondent,
did not seriously contest the concurrent findings of the trial Judge and the
Appellate Bench, that the marriage of the complainant with Christa Renate
Sonntag, solemnized in England, was valid. This view we consider to be plainly
right on the facts of this case."
Marriage of a Muslim male with a Kitabiyah in Pakistan.
According to section 4, Christian Marriages Act of 1872, as adapted by
Adaptation of Central Acts and Ordinances Order, 1949 (G. G. O. 4 of 1949)
every marriage between persons one or both of whom is or are a Christian or
Christians shall be solemnized in accordance with the provisions of the
Christian Marriages Act, 1872, and any such marriage solemnized otherwise
than in accordance with the provisions of the said Act shall be void. Section 5
of the said Act lays down that such marriage may be solemnized in Pakistan:-
(1) by any person who .has received episcopal ordination, provided that the
marriage be solemnized according to the rules, rites, ceremonies and customs
of the Church of which he is a Minister;
(2) by any Clergyman of the Church of Scotland, provided that the marriage be
solemnized according to the rules, rites, ceremonies and customs of the
Church of Scotland;
(3) by any Minister of Religion licensed under this Act to solemnize marriages;
(4) by, or in the presence of a Marriage Registrar appointed under this Act;
(5) by any person licensed under this Act to grant certificates of marriages
between Native Christians.
It is apparent from the above provisions of law that if a Muslim in Pakistan
marries a Christian woman it is obligatory that his marriage be solemnized
under the provisions of the Christian Marriages Act of 1872, and if such
marriage is not performed according to the Christian Marriages Act of 1872,
the marriages shall be void. Further, according to section 68 of the said Act
whoever, not being authorized by section 5 of this Act to solemnize marriage,
professes to solemnize the marriage between such persons, one or both of
whom are Christian or Christians, shall be punished with imprisonment which
may extend to 10 years or in lieu of sentence an imprisonment of 7 years or
punishment with transportation of a term of not less than seven years and not
exceeding 10 years and shall also be liable to fine. In the case of Zarina
Tassadaq Hussain v. Qazi Tassadaq Hussain P L D 1953 Lah. 112 the question
arose as to the validity of the marriage of a Muslim with a Christian woman
not solemnized in accordance with the provisions of section 5 of the Christian
Marriages Act, 1872. In this case Mst. Zarina was a Christian at the time of
marriage. She later on accepted Islam. The marriage between the parties took
place on 16th October 1934 in Badshahi Mosque, Lahore, according to Muslim
rites and the Nikah was performed by the Imam of Badshahi Mosque.
According to Islamic Law a Muslim man could marry a Christian woman and
there was nothing in the Islamic Law to prevent such marriages from being
solemnized according to Muslim rites but section 5 of the Christian Marriages
Act of 1872 has altered or abolished the pure Islamic Law and the marriage
according to the provisions of the above Act would be void, if it is not
solemnized in accordance with the provisions of the said Act.
It is a pity that, after a constitutional guarantee that the law of Pakistan would
be in conformity with Qur'an and Sunnah, such a law as the Christian
Marriages Act and other like laws still stand on the statute book of the Islamic
Republic of Pakistan. The law making machinery of Pakistan, in spite of a
decision of our High Court (Zarina Tassadaq Hussain v. Qazi Tassadaq Hussain
P L D Lah. 1953, 112) has made no move so far in this direction.
Should we hope that the Christian Marriages Act, 1872, and such other like
Acts would be reviewed, in the light of the Principles of Law Making as laid
down in the Constitution of Pakistan and that the provision of Islamic Law
would be restored to its proper form and spirit.