SL 1202:

ISLAMIC FAMILY
LAW

Kgm paralegal organization| 2021

© Karim G. Mussa

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The Role of Family in Society:
The role of a family in the society is form the basic component of what a society needs
people. Every society is built by people with different functions in order to make it
survive, from public workers to educators and religious clergy.

It has been said that the family is the bedrock of society and can be proven by the fact
that all over the world every society is structured by the same pattern. A man and woman
marry and form a family. This process is repeated multiple times making multiple
families which form villages, regions, and eventually countries. When several countries
come together, they form a continent and all of the continents make up the world. The
foundation of this entire process is the family. The family has a crucial role in society by
being a model of love in three different aspects; love for the children, love between
husband and wife, and finally love in promoting moral values.

As people we are created to be visual with a need to see illustrated models of things that
are important to our lives, especially the love relationship between children and their
parents. As children we learn everything by watching the examples or models of others
such as eating and walking. The family functions the same way. For example, sons who
have seen their parent’s abuse alcohol or show extreme violence towards one another,
practice these same activities. The role of the family is to give a good model so that
others within the society can imitate resulting in the edification of the society. One of the
most important roles of the family in society is to show the much-needed model of love
between husband and wife.

During this crucial time in history while moral values are declining, the family must love
moral values by living according to and promoting them throughout the easily misguided
society. Many values could be listed but the focus will be kept on the ones that are hot
topics in the world today being: sexual immorality, homosexuality, and abortion. The
family must be a model and demonstrate the fact that the sexual relationship has a place
only in marriage between a husband and wife. Mothers and fathers must teach their
children about the importance of maintaining their virginity until marriage and that there
is no such thing as safe sex outside of marriage. The family must promote marriage as

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being between one man and one woman and that any other marital relationship outside of
this is harmful as well as dangerous. Families must discourage abortion because it is
taking innocent lives. If society aborts its future generations then who will be here to
welcome the future?

The family has a decisive role having the capacity and responsibility to impact the entire
society by its positive example. The parents must show love towards their children by
spending time with them and building intimate, personal relationships. Spouses must love
each other. In order to fulfill its role in society the family will educate children in moral
values so that they will mature and pass on these values to the future generations making
society a safe and happy place for all people to live and enjoy.

What is the importance of family in modern society?

Life has changed so much for most of us in the modern world. With the advancement of
technology, changing cultural norms, new priorities, and new forms of communication
fueled by the Internet, it's natural to wonder what the importance of the family is. Is it a
dying institution that has no place in modern life? Well, of course not. Family is just as
relevant as it ever was if not more. No matter how much life changes in the future, it will
probably continue to be needed in one form or another.

The definition of family has evolved, but its importance remains

The traditional definition of "family" entailed one man and one woman who were married,
and their children. A grandparent might live with and be a part of the family, too,
although that practice isn't as popular in recent times. In the 1950s, the ideal family was a
father, a mother, and two offspring. The current definition is somewhat open and
inclusive. A family might be two parents of any gender, married or not. Some people
even have a family with more than three parents. The children may have been born to one
of the parents, both parents, or adopted.

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The change of manhood. What are these new 21st century requirements?

A few decades ago, men were considered to be providers and protectors; today, a lot of
discussions are centered around gender equality, and nowadays women around the world
are fighting fiercely to make sure their rights are respected. It may seem that the
traditional notion of male is dying out as women today have equal career opportunities,
are able to provide for a family, and their interests are not limited to creating a cozy home
for their husbands. Even more, the amount of stay-at-home dads has significantly
increased as women are pursuing their careers and even military field is available for
them these days.

Today, more women are earning higher salaries and can afford to be pickier while
choosing a partner, and often ladies are the initiators of divorce. Still, sexism is present in
every day acts like cat calling, inappropriate jokes at the office, and many more.

Nowadays, women make up the majority of college and grad school students, while not
all men are fans of continuing education and read books in their spare time. Areas in
science and technology, traditionally considered to be men’s domains, now belong to
women. Best universities are open for women, and men should catch up in order not to be
left behind. It is vital for men to become better and stronger to prove their ability to
remain protectors. Improving own skills, setting and achieving goals, being masculine –
this is what expected from men.

Expectations are getting higher, and students should do their best to be successful in
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Man’s role in the family

Up until this century, men’s and women’s roles were fairly well-defined: woman was
expected to be a mother and a wife, taking care of husband’s well-being and raising
children and man had to provide for his family. Today, the line between male’s and
female’s roles is becoming more blurred as women tend to be as ambitious in business
word as men.

Role of a man in a family included the following functions:

 A protector;
 A leader;
 A teacher,

But even this can be handled by women today. So, who is a man today? A hunter and
protector or the nurturer, who takes a maternity leave and lives with a bread-winning wife?

Our modern society gives men a chance to be much more connected with their families
and women are, finally, getting an opportunity to develop identities that are not defined
solely by motherhood. Still, a lot of women prefer a man to play the role of a leader. So,
what a modern man should do for self-improvement, to prove that he can be a leader not
only in business world but in his own family?
 It will be useful to learn a new language. It can be used in your work or for
travelling;
 Read more in order to be interesting to talk to. Watch less TV;
 Start sport training;
 Create a healthy diet;
 Improve your relationship with your wife or family.
 Improve your working performance, aim for promotion;
 Make a budget;
 Try improving your confidence;
 Know how to say “no;”
 Invest in your education, health, and appearance.
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Importance of a father figure in child’s and family’s life

Parenting involves two people raising children together, but, nowadays, children in
developed countries tend to be growing up in fatherless homes. It is known that children
from single-parent families tend to have more difficulties in grown up life and some
studies suggest that kids, that were raised without a father and had no father figure in
their lives, are more likely to be aggressive and quick to anger, involved in illegal
activities, be dropped out of schools and universities due to lack of effort and motivation
and having psychological and emotional problems stopping them from creating own
families.

On the other hand, children raised by caring fathers have better educational outcomes,
better verbal skills, intellectual functioning, and many other advantages. No matter what
the current state of manhood is, the role of a husband and a father is invaluable and will
never be substituted. Traditional values are worth fighting for and deserve for existence
in order to create healthy generations.

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Definition & Types of Marriages in Islam

The Definition of Marriage (Nikah)

The original meaning of the word Marriage (Nikah) is the physical relationship between
man and woman. It is also used secondarily to refer to the contract of marriage which
makes that relationship lawful. Which of the two meanings is intended can be determined
by the context in which it is used.

Marriage in Islam is a contract between two consenting individuals referred to as a nikah.

As part of the formalities, a husband is to provide his wife with a sum of money or
property known as her mahr.

As for the definition of marriage in fiqh, the simple definition would go something like
this: "A contract that results in the two parties physically enjoying each other in the
manner allowed by the Shari'ah."

Since this only focuses on one aspect of the marriage contract, Muhammad Abu Zahrah
(a modern scholar) defines it like this: "A contract that results in the man and woman
living with each other and supporting each other within the limits of what has been laid
down for them in terms of rights and obligations."

Ibn 'Uthaimin ('Uthaymin) takes an even more comprehensive view of the institution of
marriage in his definition of it as: "It is a mutual contract between a man and a woman
whose goal is for each to enjoy the other, become a pious family and a sound society."

The Purpose and Goals of Marriage

Like anything a Muslim does, marriage should only be undertaken after gaining an
understanding of all that Allah has prescribed in terms of rights and obligations as well as
gaining an understanding of the wisdom behind this institution. Nearly all peoples and all
societies practice marriage in some form, just as they practice business (buying and
selling). 'Umar ibn Al-Khattab used to expel people from the marketplace in Medina
who were not knowledgeable of the fiqh of buying and selling. Likewise, a Muslim
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should not engage in something as important as marriage without having understanding
of the purpose of marriage in Islam as well as a comprehensive understanding of the
rights and obligations which it brings about.

One of the principles of Islamic Jurisprudence says that: "The default state of all things is
lawfulness until some evidence shows otherwise." Based on this, if new foods are
discovered, they are considered lawful, unless there is some specific reason or attribute
which would make it forbidden for example if it is causes intoxication. Relations between
men and women do not follow this general principle and in fact are opposite to it. The
principle is that: "Relations between men and women are forbidden until some evidence
shows otherwise."

Procreation (Children)

One of the most important purposes of marriage is to continue and increase the
population of the Muslims. Clearly, this goal could be achieved without marriage, but
when actions are undertaken in disobedience to Allah, they do not receive the blessing of
Allah and the whole society is corrupted. The Prophet (peace and blessings be upon him)
said: "Marry, for I will outnumber the other nations by you on Qiyama."1 [Ibn Majah -
Sahih]

It should be stressed that the goal is not simply to produce any child that will live in the
next generation. It is to produce righteous children who will be obedient to Allah and
who will be a source of reward for their parents after they die. The Prophet (peace and
blessings be upon him) will NOT be boasting before the other nations on the day of
Qiyama with children of Muslim parents who left the path of Islam. Thus it is the
responsibility of Muslim parents to seek the means of giving their children the training
and education they need not just to grow, but to succeed as Muslims worshipping and
obeying Allah. This obligation may include migration (hijrah), establishing of Muslim
communities and schools and other obligations. As the scholars have said in another
principle of fiqh:

1
[Ibn Majah - Sahih].
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"That without which an obligation cannot be fulfilled is itself obligatory."

Pleasure

Islam is the religion of the fitrah - the religion which is consistent with the natural
instincts and needs of mankind. It is not like the man-made (of modified) religions which
set unnatural constraints on people whether self-inflicted prohibition of marriage (nuns
and monks, etc.), prohibition of divorce or monogamy. Men are inclined toward women
and women are inclined toward men. Marriage is the institution which fulfills this desire
and channels it in ways pleasing to Allah Most High. Allah mentions this attraction:

"The love of the desires for women, sons, ... has been made attractive to people." [Noble
Quran 3:14]

The Messenger of Allah himself made clear that the attraction between the sexes is
something natural and not something to be denied or suppressed - only channeled in the
ways pleasing to Allah Most High, saying:

"Women and perfume have been made beloved to me of this world of yours and my peace
of mind is in the prayer." [Ahmad & others - sahih]

The desire of men and women for each other is an urge which needs to be fulfilled. If it is
left unfulfilled, it will be a source of discord and disruption in society. For this reason, the
Prophet (peace and blessings be upon him) ordered all men who are capable of meeting
the responsibilities of marriage to do it:

"Whichever of you is capable should marry for it will aid him in lowering his gaze and
guarding his body (from sin). As for the one who is not capable, fasting is his protection."
[An-Nasa'i - Sahih].

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ASSIGMENT NO 1

The Ruling Concerning Marriage

Different Rulings for Different Cases?

What is the status of marriage in the Shari'ah? Is it obligatory or merely allowed? Some
of the Hanafi scholars have broken this question down into different cases:

If a person feels certain that he will commit something forbidden if he does not marry and
he has the financial ability to marry, then marriage is in his case fardh (the highest level
of the obligatory in Hanafi terminology).

If a person has the ability to marry and treat his wife properly and fears (strong
probability) that he will engage in unlawful acts if he doesn't, then marriage in his case is
obligatory (wajib).

If a person does not have the financial or physical means to marry or feels certain that he
will not treat his wife properly then marriage in his case is forbidden (haram).

If a person has the means to marry, but feels strongly that he will not treat his wife
properly, marriage in his case is disliked (makruh).

If a person has the means to marry and has no fear of mistreating his wife or of
committing the unlawful if he doesn't marry, then marriage in his case is preferred
(mustahab).

This last opinion is widely regarded as the "default" (al-asl) ruling in this question i.e.,
marriage, generally speaking is the preferred but not obligatory way and only becomes
obligatory, forbidden, etc. in the exceptional cases.

Since the man is normally the one who goes looking for a spouse and proposes to her
family, etc., these discussions normally focus on him. Every point in the above discussion,
however, applies to women equally as it does to men.

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The Literalist (Dhahiriy) Opinion

In the Literalist school of thought, marriage is considered fardh 'ain - an absolute and
individual obligation. Among the evidence they cite are the following verse from the
Quran and hadith of the Prophet (peace and blessings be upon him):

"And marry off the single among you and among the righteous of your male and female
slaves. If they are poor then Allah will supply their needs from His generosity. And Allah
is expansive, knowing. And let those who do not find marriage hold back until Allah
grants them of His generosity." [Noble Quran 24:32-33]

The following hadith of the Prophet (peace and blessings be upon him) seems to be a
blanket "order" to all those with the capability to get married:

"O young men, whoever among you has the ability, let him marry." [Bukhari & Muslim]

Types of Marriages in Islam:

Marriage or Nikkah is the most important institution in Islam. There are three types of
Marriages in Islam;

1. Valid or Sahih
2. Irregular or Fasid
3. Void or Batil

Valid or Sahih Marriage:

Under the Muslim law, a valid marriage is that which has been constituted in
accordance with the essential conditioned prescribed earlier. It confers upon the wife;
the right of dower, maintenance and residence, imposes on her obligation to be
faithful and obedient to her husband, admit sexual intercourse with him and observe
Iddat.

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Effect of Marriage (Sahih)

The lawful obligations which arise after marriage are as follows:

1. Mutual intercourse legalized and the children so born are legitimate.

2. The wife gets power to get ‘Mahr’.
3. The wife entitles to get maintenance.
4. The husband gets right to guide and prohibit the wife’s movement (for valid
reasons only).
5. Right of succession develops.
6. Prohibition of marriage due to affinity.
7. Women bound to complete Iddat period and not to marry during Iddat period;
after divorce or death of husband.

The obligations and rights set between the two parties during and after the marriage
are to be enforced till legality. On the basis of a marriage husband and wife do not get
the right on one another’s property.

Irregular or Fasid Marriage:

Those marriages which are outcome of failures on part of parties in non fulfillment
of prerequisites but then also are marriages; to be terminated by one of the party is
termed to be Irregular marriages. They are outcome of:

a. A marriage without witness (Not under Shia Law)

b. Marriage with fifth wife.
c. Marriage with a women undergoing Iddat.
d. Marriage with a fire-worshipper.
e. Marriage outcome of bar of unlawful conjunction.
f. An irregular marriage has no legal effect before consummation but when
consummated give rise to several rights and obligations.

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Void or Batil Marriage:

A marriage which is unlawful from its beginning. It does not create any civil rights or
obligations between the parties. The offspring of a void marriage is illegitimate. They are
outcome of:

a. Marriage through forced consent.

b. Plurality of husband.
c. Marriage prohibited on the ground of consanguinity.
d. Marriage prohibited on the ground of affinity.
e. Marriage prohibited on the ground of fosterage.

Nature and Concept of Marriage in Islam

Legally speaking, Muslim-marriage is a contract. Therefore, its legal nature is

contractual.

Besides being a civil contract, the marriage in Islam is also a social and religious
institution. A court of law may not take into account its social or religious aspects but
a curious student of Muslim law must examine also about these aspects. Without
study of all the aspects of the Muslim marriage, its true nature cannot be understood.

Legal Aspect:

Legally, a Muslim marriage is considered as a contract because the elements which

constitute a marriage and the manner in which it is completed, is almost similar to
that of a civil contract. The contractual nature of a Muslim marriage has been
explained on the basis of the following facts:

a. Like contract, the parties to the marriage also must be competent.

b. Like contract, the marriage is not complete without offer, acceptance and free
consent of the parties or of their guardians.
c. Like a civil contract, the terms of marriage-contract, within legal limits, may be
settled by the parties themselves.
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d. Just as there are rules for regulating the rights and duties of the parties upon the
breach of a contract, there are also provisions for respective right and duties of
husband and wife on divorce or dissolution of marriage.

Social Aspect:

Nikah is a social institution by which a definite and dignified status has been
conferred upon the women. Through Islam the Prophet brought about a reform in the
society. No social reform was possible without giving equal status to the females. A
definite institution or an established law was, therefore, required to give equality and
freedom to the females.

With this object in mind, the Prophet introduced Nikah through which the females
could be placed on a footing of perfect equality with males. It is, therefore, submitted
that Nikah is a well established social institution which gives to the women a separate
and dignified status in the society. That a Muslim marriage is not simply a contract
but also a social institution may be explained on the basis of the following
arguments:

a. In every Muslim-marriage dower must be given or promised to be given by

husband to wife as a mark of respect towards her. In civil contracts a general
rule is that there is no liability to pay consideration if it has not been specified or
referred in the contract. But, in a Muslim marriage even if the amount of dower
has not been specified, the law requires that something (proper dower) must be
paid by husband to the wife as a mark of respect towards her.
b. There is limited polygamy under Muslim law and a person is not allowed to
marry with more than four wives at a time. In civil contracts, one may enter
into as many contracts at a time as he likes.
c. There is prohibition in the marriage between certain close relatives. Has
marriage been purely a civil contract, the relationship of the parties to the
marriage would not have been a relevant factor; A brother cannot marry his real
sister; but he can legally enter into a contract with his sister for the sale of a house.

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d. Moreover, there are certain circumstances in which the Muslim law
disapproves the contract of marriage. For example, a Shia Muslim is not
allowed to marry during a religious journey (Haj). Similarly, there are other
circumstances which are called the relative prohibitions in marriage. There are no
such prohibitions in the civil contracts. The contract by a person for sale of a
watch etc. during Haj is perfectly valid, but a marriage during Haj is void under
Shia law.

It is clear that marriage among Muslims is not an ordinary contract. More truly, it is a
powerful social institution for the uplift of women and, promotes the development of
a healthy society, free from evils.

Religious Aspect:

Quran, which is a collection of the words of God, directs every Muslim to marry a
suitable woman of his liking. It is, therefore, a religious duty of every Muslim to
contract a marriage according to the rules of Islam. A person, who remains bachelor
without any reasonable excuse, disobeys the words of God. Moreover, marriage is
also the tradition (Sunnat) of the Prophet. It is believed in Islam that marriage is a
Sunnat muakkidah. This means that it is an act of such a nature that if a person does it
he gets religious benefits; if he abstains from doing it, then he commits a sin.

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Marriage Preliminaries: Choice of a Marriage Partner.

Making sure that Muslims are well-matched to their spouses is one of the most important
and potentially difficult functions in Muslim society. The individual seeking marriage
must have his/her priorities straight and be clear on what characteristics are most
important to be sought in a spouse in order to have a successful marriage. There are many
characteristics that are important in a husband or a wife but some are much more
important than others. Overemphasizing the wrong qualities can lead to disaster down the
road just as being neglectful of certain considerations can do likewise. When we come to
understand the goals and priorities of marriage in Islam, we may be guided to the Islamic
methodology of seeking marriage in Islam and stop blindly following the disbelievers in
their ignorant notions of the importance of "getting to know each other" and other such
concepts which in reality contribute nothing to and more often sabotage a successful
marriage.

The Prophet (peace and blessings be upon him) taught us in many hadith about the
various characteristics which one looks for in a spouse and their relative importance and
which ones determine success insha'Allah and Allah's blessing on a marriage. Among
those hadith:

"A woman is married for her deen, her wealth or her beauty. You must go for the one
with deen, may your hands be in the dust! (if you fail to heed)" [Muslim]

"Choose carefully for your seed. Marry those who are equivalent (or "qualified") and
give to them in marriage." (Ibn Majah and others and it is sahih).

Religion

In the previous hadith, the Prophet (peace and blessings be upon him) mentioned various
characteristics that people, by their nature and custom, look for in a spouse. He did not
advocate any of them, but merely stated them as facts of human nature except for the
issue of "deen", i.e., a prospective spouse’s piety and practice of Islam - their fulfilling of
the wajib and their avoidance of the haram. About this characteristic, the Prophet (peace
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and blessings be upon him) said or "it is upon you to seek the one of piety"( alaikum bi
dhaati ad-deen). This is an order and quite different from the general statement at the
beginning of the hadith which says "a woman IS MARRIED for..." and separates the
issue of deen from the other mundane issues and puts it in a category by itself. Also,
when the Prophet (peace and blessings be upon him) says at the end of the hadith "may
your hands be in the dust", invoking this negative outcome on those who disregard his
order, it can only refer to the order to seen the spouse with piety, since that is the only
order in the hadith.

Character and Behavior

In the previous hadith addressed to those in charge of the marital affairs of Muslim
women and girls, the Prophet (peace and blessings be upon him) commanded them to
facilitate their marriage when they are satisfied with two issues: the faith of the suitor and
his character.

Character is of extreme importance in Islam and goes hand in hand with faith and piety.
The Prophet (peace and blessings be upon him) has even described it as the purpose of
his mission to mankind as we can see from the following hadith:

"I have only been sent to complete good character." [Al-Hakim and others (sahih)]

"I am a guarantor of a house in the highest part of Paradise for one who makes his
character good." [Abu Dawud and it is hassan]

"Righteousness is good character." [Muslim]

"The believers with the most complete iman are those with the best character." [Abu
Dawud and it is sahih]

In An-Nur verse 26, Allah establishes the relation of this issue to marriage:

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"Bad women are for bad men and bad men are for bad women. And good women are for
good men and good men are for good women."2

The word khabith translated as "bad" above means filthy, unclean and despicable. It is a
very strong word. The word tayyib translated as good, connotes clean and pure as well as
good.

One of the important issues of character in the spouses is the quality of wudd. This means
kindness and lovingness and compassion. The Prophet (peace and blessings be upon him)
said:

"Marry the loving/friendly, the child-bearing for I shall outstrip the other nations with
your numbers on Qiyamah." Ahmad, Abu Dawud and others and it is [Sahih]

Therefore, the prospective spouses must ask and find out about the other person's
behavior and manners. As a sign also, one may look at the other person's family's
manners and behavior and many times (but no always) the behavior of people of the same
family are similar. In other words, some characteristics tend to run in some families
whether they be good or bad characters such as anger, politeness, stinginess, generosity,
lying, truthfulness and so forth.

Child-Bearing

As we saw in the previous hadith, the Prophet (peace and blessings be upon him)
recommended men to marry those women who are child-bearing. This characteristic is
related to some of the goals and purposes of marriage that were mentioned earlier such as
procreating the Muslim Ummah, raising a pious family as a cornerstone of society and so
forth.

The scholars mention that a man can look at a woman's female relatives to get an idea
whether she is apt to get pregnant easily and often or not. This attribute should also apply
to the man. For example a man who say before Islam had a vasectomy would not be an
appropriate husband for a Muslim girl getting married for the first time.

2
[Noble Quran 24:26]
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Virginity

There are many hadith which recommend a man marry a virgin woman such as the
following:

"Marry virgins for they have sweeter mouths, more productive wombs and are more
pleased with less." [At-Tabarani and it is hassan]

Other narrations indicate that she is more likely to be pleased by a man and less likely to
be devious and deceiving. Once, when Jabir married an older and previously married
woman, the Prophet (peace and blessings be upon him) said to him:

"Why not a virgin? You could have played with her and she with you."

The scholars have stressed that this good attribute applies to the husband just as it applies
to the wife. One of them wrote: "Similarly, it is preferred for a person not to marry his
daughter except to a virgin man if she has never been married before." 'Umar ibn Al-
Khattab once heard about a woman who was married to an elderly man and he said: "O
people, fear Allah and marry a man to a woman who is similar to him and marry a
woman to a man who is similar to her."

Beauty

This characteristic has a certain role to play since one of the purposes of marriage is to
keep both spouses from sins. The best way to do this is to have a strong attraction
between the spouses. Although this is something which surely grows over time, initial
impressions can income cases become an obstacle to a successful marriage. The Prophet
(peace and blessings be upon him) separated Qais ibn Shamas from his wife in the
famous case of Khul'a and her stated reason was that he was exceedingly displeasing to
her. There are many hadith which urge the prospective spouse to get a look at the other
before undertaking the marriage. Once a companion told him (peace and blessings be
upon him) that he was going to get married. The Prophet (peace and blessings be upon
him) asked if he had seen her. When the man said no, he (peace and blessings be upon
him) said:
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"Go and look at her for it is more likely to engender love between the two of you."
[Ahmad and others and it is sahih]

'Umar ibn Al-Khattab once said: "Do not force your young girls to marry an ugly man,
for they also love what you love." Ibn Abidin (a famous faqih from last century) said:
"The woman should choose a man who is religious, of good character, generous and of
ample wealth. She should not marry an evildoer. A person should not marry his young
daughter to an old man and an ugly man but he should marry her to one similar."

Beauty has its role, but remember that it is way down on the priority list under piety,
character and deen. When a person puts beauty above all else, the results can be
disastrous. This is one of the big reasons that young people seeking to get married must
be helped by more mature family members in making their choice.

Looking at a Prospective Spouse

As we have seen, the Prophet (peace and blessings be upon him) encouraged men
considering marriage to a particular woman to get a look at her. He (peace and blessings
be upon him) said in another hadith:

"If one of you proposes to a woman and if he is able to look at of her that which
motivates him to marry her, let him do so." [Abu Dawud & others (hassan)]

Note that this hadith does not abrogate the limits of what a woman may expose to non-
maharim. She must continue to be well covered except for her face and hands in front of
all of them and the prospective husband, even if he has proposed, is no exception to this.

Even such a one is still only permitted to see what anyone else is permitted to see. The
difference is that he is allowed to take a good look - if it were not for the proposal of
marriage, both would be required to avert their eyes after the first glance. As the Prophet
(peace and blessings be upon him) said to Ali about the look at a non-mahram woman:
"The first is for you, the second is against you."

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There are several opinions about how much of the woman is lawful to be seen in this
context as follows: He can see what anyone else can see i.e., he can look at her when she
is dressed in the proper outdoor dress of a Muslim woman. This is the mainstream
opinion, the safest one and the one which agrees with all of the evidence.

Women looking at a prospective husband

The woman also has a right to look at her prospective husband. Many scholars have
stated that "The women like the same things we like." Some have even said that it is
MORE important for the woman to see the man. This is because the man holds the right
of instant and unconditional divorce in case he is displeased with his wife. It is not so
easy for the woman to get out of a marriage and so she must have priority in this issue.

Touching

Obviously, since those "engaged" to be married have no legal relationship beyond any
other strange man and woman, obviously any form of touching between them is not
allowed. The Prophet (peace and blessings be upon him) said:

"For one of you to be stabbed in the head with an iron needle is better for him than to
touch a woman who is not permissible to him." [At-Tabarani - Sahih]

Phone Calls

All the scholars have pointed out that it is not proper or acceptable to be alone together or
to have numerous encounters for the purpose of "getting to know each other". In fact, this
is a horrible innovation that has spread among the Muslims. It must always be
remembered that until they are married, they are like any other unrelated men and women
to each other and their actions must reflect that fact.

Obviously, it is not allowed to be alone with, have telephone conversations or internet

"chats" with unrelated men or women in order to "get to know each other". Those
intending marriage but as yet unmarried are in the exact same position.

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Elements of Contract in Marriage

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 the majority (of the scholars), a rukn is the thing upon which something and its
existence rests, it cannot be in reality without it or it is something which is a must. Their
famous expression is "It is a thing by which the shari'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."

The following example will demonstrate the difference between the Hanafi approach and
that of the rest of the schools of thought. The actual existence of the girl that is to be wed

22
is something external to the process of the marriage contract. Therefore, since it is
external, the Hanafis would not call it a rukn although, obviously, no marriage would
actually take place without her existence. This makes it a shart in their terminology. In
the other schools of thought, the fact that no marriage can occur without the existence of
the girl getting married is sufficient to call her existence a rukn of the marriage contract
even though her existence is external to the actual contract process itself.

The 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. There is a difference of opinion concerning the other arkan as
discussed below:

The Arkan of a Marriage According to the Hanafis

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

The Arkan of a Marriage According to the Majority of Scholars (Jamhur)

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, although the majority of these scholars
count them among the shurut:

The presence of witnesses.

Dowry.

Two non-discredited witnesses.

23
There is some difference of opinion on this issue, but in the final analysis, the hadith is
clear.

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

24
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.

The Hanafis say that this is not a condition, but their position is unacceptable and rejected
because of ample evidence from the Quran and the Sunnah to the contrary. In the jahiliya,
Arabs used to "inherit" (i.e., forcibly marry) their brothers wives if they died. Allah
forbid this saying:

"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. This position is clearly unacceptable and
rejected based on the above verse and ahadith.

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The bride and groom are specifically identified and known.

Neither of the two contracting parties are in a state of ihram.

The marriage must be with a dowry (mahr).

It does not have to be exactly specified nor does it have to change hands, but it has to be
there. More is coming on this subject later.

The parties and witnesses are not bound to keep it quiet.

It is not allowed to make attempts to keep a marriage a secret. The universal custom of
the Arabs before Islam was to have marriages very publicly where all around became
aware of its existence. Islam confirmed this practice and it is the only acceptable way of
marrying. As we have seen, the Maliki school takes this so seriously that they separate
the two parties permanently. Some other scholars said that it was a wrong practice, but
didn't necessarily invalidate the marriage.

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. The wali is an absolute requirement for a marriage, and any marriage done
without him is null and void according to the following hadith:

"Laa Nikaha illa bi waliyyin wa as-sultanu waliyyu man laa waliyya lahaa."
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"No marriage except with a guardian and the ruler is the guardian of she who has no
guardian." [Abu Dawud & others - Sahih]

"If any woman marries without the permission of her guardian, then her marriage is void,
then her marriage is void, then her marriage is void." [Abu Dawud & others - Sahih]

It is the job of the wali to marry her to the best possible husband. He must not be guided
by his desires nor by her desires. If the person is acceptable in both his religion and his
character and appropriate to her in some other way discussed by the scholars, then he
must facilitate the marriage and not refuse it for his own desires or biases. If the
conditions are not right, then he must refuse the marriage, even if both the woman under
his charge and the man desire it. This is a grave trust and he must do his best to fulfill it
properly and not bring harm to the woman and/or to society. Allah said:

"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.

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The Dowry (Mahr)

The dowry (mahr) is something that is paid by the man to his wife. It is paid to the wife
and to her only as an honor and a respect given to her and to show that he has a serious
desire to marry her and is not simply entering into the marriage contract without any
sense of responsibility and obligation or effort on his part.

It has been referred to by many names in the texts and the books of fiqh:

* Gift (An-Nihla)
* Prescribed amount or obligation (Al-Faridha)
* Gift or present (Al-Hibaa)
* Payment or compensation (Al-Ajr)
* Indemnity (Al-'Uqr)
* Precious things, provision (Al-'Alaa'iq)
* Sincere gift or charity (As-Sadaqa)
* Ability (At-Tawl)
* Marriage (An-Nikah)

One of the more common names for it is Al-Sadaq which comes from the word sidq
meaning honesty or sincerity. As-San'ani (Book: Subul As-Salaam) explains its
significance: "It indicates the sincerity of the husband's desire for his wife. In the
religious laws before us the dowry used to go to the guardians."

Proof that the Mahr is Obligatory

Allah says in the Qur'an:

"And give the women their dowries with a good heart..." [Noble Quran 4:4]

This verse is addressed to either the husbands or the guardians. It is addressed to the
husbands because it is their responsibility to pay the dowry. It could also be addressed to
the guardians, not because they have to pay the dowry, but because in pre-Islamic jahiliya
(and in much of today's "post-Islamic" jahiliya), they used to take the dowry of the
28
women and not give it to them. This verse shows that the dowry must be given to the
women and not kept by the guardians. The following verses also shows the obligatory
nature of paying the dowry to the women:

"...So for that pleasure which you have enjoyed from them, give them their prescribed
compensation.. " [Noble Quran 4:24]

"...All others have been made lawful for you provided you seek (them in marriage) with
your property..." [Noble Quran 4:24]

Regarding one of the Companions who was poor and wished to marry, the Prophet (peace
and blessings be upon him) said to him:

"Search for something, even if it is just a ring made from iron." [Bukhari & Muslim]

Conjugal Rights and Duties of Spouses

Four of such rights have been identified by Islamic law and they are:

1. Rights of Allah.
2. Rights mutual to the spouses or parties.
3. Rights of husband alone.
4. Rights of wife alone.

1. Rights of Allah

In a marriage according to Islam certain rights are recognized as the rights of the
Almighty Allah and they are:

a) Affinity prohibition.

Allah (S.W.T) has declared in chapter 4, verse No. 23 that marriage relationship
creates some prohibition in marriage within a particular range. This is Allah’s
right which cannot be waived by anybody.

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 b) Right of Inheritance

By virtue of marriage, the right of inheritance is also created between the spouses,
and if any, the descendants of the spouses. This right is given by Allah’s in
chapter 4, verse No. 12 and like (a) above, it cannot be compromised or waived.

c) Right to Iddat or waiting period

By virtue of marriage, the right to Iddat is recognized. Whenever the wife is

divorced or in the event of death of the husband the wife must observe the
prescribed Iddat period as the case may be. This right is given by Allah in chapter
2, verse No.228 and 231 on the Iddat of divorce and death respectively.

d) Paternity or legitimacy.

The right of legitimacy of children of a valid marriage is given by Allah. Nobody

can refute that right, and the issue or children of the marriage shall to all intents
and purposes, bear the name of their father. This right is given by Allah in chapter
No. 33 verse No. 4 – 5.

2. The rights of the wife which are hers alone:

a) The mahr (dowry). This is the money to which the wife is entitled from her
husband when the marriage contract is completed or when the marriage is
consummated. It is a right which the man is obliged to pay to the woman. Allaah
says:

“And give to the women (whom you marry) their Mahr (obligatory bridal-money
given by the husband to his wife at the time of marriage) with a good heart” [al-
Nisaa’ 4:4]

The mahr is not a condition or essential part of the marriage-contract, according to

the majority of fuqahaa’; rather it is one of the consequences of the contract.

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b) Spending. The scholars of Islam are agreed that it is obligatory for husbands to
spend on their wives, on the condition that the wife makes herself available to her
husband. If she refuses him or rebels, then she is not entitled to that spending.

The Prophet (peace and blessings of Allaah be upon him) said to Hind bint ‘Utbah
– the wife of Abu Sufyaan – who had complained that he did not spend on her:
“Take what is sufficient for you and your children, on a reasonable basis.”

c) Accommodation. This is also one of the wife’s rights, which means that her
husband should prepare for her accommodation according to his means and
ability. Allaah says (interpretation of the meaning):

“Lodge them (the divorced women) where you dwell, according to your means”
[al-Talaaq 65:6]

d) Fair treatment of co-wives. One of the rights that a wife has over her husband is
that she and her co-wives should be treated equally, if the husband has other
wives, with regard to nights spent with them, spending and clothing.

e) Kind treatment. The husband must have a good attitude towards his wife and be
kind to her, and offer her everything that may soften her heart towards him,
because Allaah says (interpretation of the meaning):

“and live with them honourably” [An-Nisa'a 4:19]

“And they (women) have rights (over their husbands as regards living
expenses) similar (to those of their husbands) over them (as regards
obedience and respect) to what is reasonable” [al-Baqarah 2:228]

f) Not harming one’s wife.

This is one of the basic principles of Islam. Because harming others is haraam in
the case of strangers, it is even more so in the case of harming one’s wife.

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 It was narrated from ‘Ubaadah ibn al-Saamit that the Messenger of Allaah (peace
and blessings of Allaah be upon him) ruled, “There should be no harming nor
reciprocating harm.” (Narrated by Ibn Maajah,, 2340)

The husband’s rights over his wife

The rights of the husband over his wife are among the greatest rights; indeed his rights
over her are greater than her rights over him, because Allaah says:

“And they (women) have rights (over their husbands as regards living expenses) similar
(to those of their husbands) over them (as regards obedience and respect) to what is
reasonable, but men have a degree (of responsibility) over them” [al-Baqarah 2:228]

These rights include:

(a) The obligation of obedience. Allaah has made the man a qawwaam (protector and
maintainer) of the woman by commanding, directing and taking care of her, just as
guardians take care of their charges, by virtue of the physical and mental faculties
that Allaah has given only to men and the financial obligations that He has enjoined
upon them. Allaah says (interpretation of the meaning):

“Men are the protectors and maintainers of women, because Allaah has made one of
them to excel the other, and because they spend (to support them) from their means”
[al-Nisaa’ 4:34]

b) Making herself available to her husband. One of the rights that the husband has
over his wife is that he should be able to enjoy her (physically). If he marries a
woman and she is able to have intercourse, she is obliged to submit herself to him
according to the contract, if he asks her. That is after he gives her the immediate
mahr, and gives her some time – two or three days, if she asks for that – to sort
herself out, because that is something that she needs, and because that is not too
long and is customary.

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 If a wife refuses to respond to her husband’s request for intercourse, she has done
something haraam and has committed a major sin, unless she has a valid shar’i
excuse such as menses, obligatory fasting, sickness, etc.

c) Not admitting anyone whom the husband dislikes. One of the rights that the
husband has over his wife is that she should not permit anyone whom he dislikes
to enter his house.

It was narrated from Abu Hurayrah (may Allaah be pleased with him) that the
Messenger of Allaah (peace and blessings of Allaah be upon him) said: “It is not
permitted for a woman to fast when her husband is present without his permission,
or to admit anyone into his house without his permission. And whatever she
spends (in charity) of his wealth without his consent, ….” (Narrated by al-
Bukhaari, 4899; Muslim, 1026)

d) Not going out of the house except with the husband’s permission. One of the
rights of the husband over his wife is that she should not go out of the house
except with his permission.

The Shaafa’is and Hanbalis said: she does not have the right to visit (even) her
sick father except with the permission of her husband, and he has the right to
prevent her from doing that… because obedience to the husband is obligatory,
and it is not permitted to neglect an obligatory action for something that is not
obligatory.

e) Discipline. The husband has the right to discipline his wife if she disobeys him in
something good, not if she disobeys him in something sinful, because Allaah has
enjoined disciplining women by forsaking them in bed and by hitting them, when
they do not obey. The Hanafis mentioned four situations in which a husband is
permitted to discipline his wife by hitting her. These are: not adorning herself
when he wants her to; not responding when he calls her to bed and she is taahirah
(pure, i.e., not menstruating); not praying; and going out of the house without his
permission.

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 f) The wife serving her husband. There is a great deal of evidence (daleel) for this,
some of which has been mentioned above.

Shaykh al-Islam Ibn Taymiyah said:

She is obliged to serve her husband according to what is reasonable among people
of similar standing. That varies according to circumstances: the way in which a
Bedouin woman serves (her husband) will not be like the way of a town-dweller,
and the way of a strong woman will not be like the way of a weak woman. (al-
Fataawa al-Kubraa, 4/561)

g) Submitting herself to him. Once the conditions of the marriage-contract have

been fulfilled and it is valid, then the woman is obliged to submit herself to her
husband and allow him to enjoy her (physically), because once the contract is
completed, he is allowed in return to enjoy her, and the wife is entitled to the
compensation which is the mahr.

h) The wife should treat her husband in a good manner, because Allaah says
(interpretation of the meaning):

“And they (women) have rights (over their husbands as regards living expenses)
similar (to those of their husbands) over them (as regards obedience and respect)
to what is reasonable” [al-Baqarah 2:228]

The rights and responsibilities that pertain to both husband and wife:

The rights and responsibilities that pertain to both husband and wife are as follows:

1. Sociability:
Wives and husbands must behave properly with one another and observe
fine etiquette. The Quran declares:
“And consort with them (your wives) in honor and equity [ma‘ruf] (Nisa’
4:19)

34
Husbands and wives must be kind, well-mannered, cordial, cheerful, compassionate,
helpful, sympathetic, courteous, just, truthful, supportive, trustworthy, loyal, well-
wishing, and polite with one other. Various Hadith also emphasize sociability and
geniality between spouses. The Prophet of Islam (S) has stated:

“The most complete persons in faith are those who have the best manners and the good
among you are those who are good with their wives”

2. Attracting the Attentions of one’s spouse.

Husbands and wives must observe each other’s desires in cleanliness, clothing,
the style of their hair and beard, etc. Islam advises women at home to apply
cosmetics and adorn themselves for their husbands, wear their best clothes, be
neat and clean, and apply fragrant perfumes. Imam Sadiq (‘a) has declared:

A woman came to the Prophet of Allah (S) and asked, ‘What are the rights of a
husband regarding his wife?’ He replied, ‘Her duty is to perfume herself with the
best scenting of her perfumes, and to dress in the nicest of her attires, and adorn
herself with the finest of her adornments, and thus offer herself to her husband
morning and night; and more than these are his rights regarding her.

A man also has these responsibilities toward his wife; he must be neat and clean,
perfumed and well-dressed, he must style his hair and face regularly, and make
himself handsome for his wife. Imam Ja‘far ibn Muhammad (‘a) has cited the
Prophet of Allah (S) through his fathers.

‘Each of you must prepare yourselves for your wives; just as your wives prepare
themselves for you.’ Then Imam Ja‘far (‘a) stated, ‘This means that each of you
must be neat and clean”.

35
The Prophet of Allah has stated:

“The rights of a wife regarding her husband are that he must provide her nourishment
and clothing and must not appear to her with an ugly appearance. If he does these, by
Allah, surely he has satisfied her rights”.

3. Pleasure and Gratification

Even though seeking pleasure and sexual gratification is not the whole aim of
marriage, it is one of the chief goals and initial motivators for marriage and has a
considerable effect in strengthening the structure of the family and preserving a
good relationship between spouses. Hence, gratification is one of the
responsibilities of husbands and wives. Husbands and wives must be prepared to
give each other sexual pleasure and gratification. Whenever one party is inclined
to sexual acts, the other must prepare themselves and not bring excuses. The
Prophet of Islam (S) would instruct women as follows:
Do not lengthen your Salat to forestall your husbands (from sexual pleasure).

Husbands and wives must not only think about their own pleasure in lovemaking;
rather, they must also consider their partner’s pleasure and gratification. This is
because regular sexual satisfaction has a significant effect on good relations
between spouses and bolsters the constitution of their family. Addressing men,
Amir al-Mu’minin (‘a) has declared:
“Whenever you approach your wives, do not hurry (in lovemaking)”.

4. Rearing and edifying children.

Caring for children, providing for their health, training their bodies and souls, and
educating them in knowledge and morality are shared duties of fathers and
mothers. This necessitates their cooperation and mutual deliberation and diligence.
A father has a greater responsibility in this matter, but the role of a mother is more
sensitive and constructive

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Mutual rights of the spouses

Certain rights are to be commonly shared and exercised by the spouses. They are as
follow: Sexual Intercourse

This is a right to which both spouses have equal right. But consideration must be
made for ill-health and other emotional states. The right is available to both
spouses by the Quran in chapter 23 verse No. 1 – 5 where is read:

“The believer must eventually win through, those who … and who abstain from
sex except with those joined to them in the marriage”.

And also chapter 2 verse No. 187 of the Holly Quran the spouses are described as
garments to each other in the sense that they envelop each other during sexual
intercourse.

g) Kind treatment

Both spouses must treat each other with kindness and respect. This right is
reciprocal between them. The right is summed up in the Quran in chapter 2 verse
No. 228 where is reads in part:

“A woman shall have rights similar to the rights against them according to what
is equitable and just”.

This verse has made the rights of the spouse’s reciprocally even though they may
vary according to needs and circumstances. What is essential to remember here is
that, sexual intercourse per se is not the ultimate aim of marriage, but the general
feeling of love, affection, satisfaction, security, etc, all constitute of central core.

37
 Divorce

It is natural that sometimes there will be some misunderstanding between the spouses
which will be so deep and serious that they can loose hope and confidence in each other.
This is the particularly true, where the relationship between the spouses becomes too sour
and intolerable. In such of a situation, Islam would not force the parties to continue in
that bad mode, if the reconciliation fails. Instead, the parties may be separated as the last
resort, but will be given the right to reconcile and return to full marital life, if they so
desire and are willing to be fair and just to each other. This right of divorce is divinely
given by Allah which reads:
“Oh! Prophet when you divorce women, divorce them when their Iddah (prescribed
periods) and count (accurately) their Iddah (periods). And fear Allah your Loard” (65: 1)
Similarly, the right is given in chapter 4 verse no. 19. Divorce cannot be rushed into
because all possible means of reconciliation must first be explored and exhausted as in
chapter 4 verse no. 128, and chapter 4 verse no. 35.
And where all efforts, prove abortive, then the last resort is divorce. Divorce is
denounced by Allah as one of the worst things in His sight as in the hadith of the Prophet
(S.A.W.) which reads:
“The worst lawful act denounced by Allah is divorce”.
Ordinarily, it is the husband who can pronounce divorce, even though in some extreme
cases, like arrangement for khul’u, the marriage becomes automatically dissolved without
any pronouncement. The mode of the husband while pronouncing divorce (Talaq) must
be voluntary. This is because a divorce under compulsion is invalid. But the jurists are
unanimous in their agreement that a divorce announced in joke stands binding and valid.
This is based on the hadith of the Prophet (S.A.W.) which says:
“Three things is done uprightly are valid and even it done jokingly are also valid, they
are marriage, divorce and freeing of a slave”
But they are divided in their opinions on divorce pronounced by drunker. Furthermore, a
divorce may be declared orally, in writing, and by signs and gestures if they are capable
of being interpreted as such.

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Ground of Divorce
A marriage can be dissolved for the following reasons:
1. Lack of maintenance. Where the husband has proved enable to maintain the wife
that will give rise to a valid ground for divorce. Maintenance here is interpreted to
include feeding, clothing and shelter.
2. Absence of husband and fear illicit relationship.
Where the husband is away for a long time and the wife fears indulgence in
adultery because of the prolonged absence of the husband, she can sue for divorce.
What is the reasonable time here is a question of fact and the jurists are divided as
to what duration may be considered reasonable for this purpose. Some put it at six
months, others at one year, and to some whom yet other goes to the extreme of
two year.
3. Bodily defects.
Both parties shall have the right to petition for divorce on the ground of bodily
defect, which is contagious. Some of these are mutual, while some either
exclusively affect the husband alone or the wife alone.
The bodily defects which are peculiar to both parties are:
1. Insanity
2. Leprosy
3. Elephantiasis

Bodily defects peculiar to the husband alone are:

1. Castration
2. A cut penis
3. Impotency
4. Lack of erection
5. Nervousness during sexual intercourse

Defects peculiar to the wife alone are:

1. Al-Qarn – Something like born protruding from her organ.
2. Ratq. This is the closure or blockage of the opening into her organ
3. Bakhar – it is the bad smell or odour issuing from the female organ which is
too disturbing.
39
 4. Ali Afal – It is an infection on the outer gullets of the female organ.
5. Al-Ifa’a. It is the removal of the inner membrane, separating the female organ
from the anus.
All of these are grounds for divorce.
4. Harm.
Harm of any nature to the woman by the husband provides a valid ground for
divorce. It may be physical or psychological.

Types of Divorce:
Divorce is for the purpose in classified into two.
1. Revocable raji’i
2. Irrevocable.

Each is to be further discussed below:

Revocable Divorce.
Any number of divorce short of three divorces with the exception of (Khul’u divorce,
divorce based consideration), is revocable. This means that a single divorce or two
divorce pronouncements are revocable and the parties may return to each other as
husband as wife. Revocable divorce excludes a divorce founded on the grounds of lian or
cursed wedlock. Revocable divorce is provided for in the Quran in chapter 2 verse no.
229 – 231.
Irrevocable divorce:
This is where a woman is divorced thrice either in a single breath or at different intervals.
Here the chance for the parties to resume wedlock is blocked until the happening of an
event; that is that she shall marry another man, have the marriage consummated, and
subsequently gets divorced by him at his own instance.
The major distinction between the two forms of divorce revocable and irrevocable is that
in revocable divorce the wife is still considered the husband’s wife until her iddat expires,
whereas in the second irrevocable the wife totally lost or divorced.
For religious consideration, divorce is further classified into two:
Talaq Al Sunni. This is where the divorce is in accordance with the laid down procedure
in the Sunnah of the Prophet (S.A.W.) in the sense that:
1. It is a single divorce
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 2. Pronounced during purity
3. It is revocable.

Talaq Bida’i. This is a divorce outside of the conditions in talaq al-Sunni e.g.
1. Where is a thrice either in a single breath or at the different intervals.
2. It is pronounced while she is in her menstrual period.

Furthermore, divorce is classified into:

a) Bain al-Bainunat Sugrah. Where the parties have gone too not far to resume and
return as husband and wife is in sunni divorce.
b) Bain Bainunat Kubrah. This is where the parties in the divorce case are separated
so far apart that they cannot return, until the marries another person. This an in
talaq al-Bida’i and Khul’u divorce.
c)

Khul’u Divorce:

This is a form of divorce based on mutual arrangement between the spouses, where the
wife shall have the right to seek divorce for a consideration she will finish to her husband.
Khul’u is resorted to where the wife wants divorce and she does not have a valid or
genuine ground for divorce.
As soon as the parties agree to any consideration, the marriage becomes dissolved
whether the consideration has passed or not. This kind of divorce is irrevocable, but they
can re-marry at the expiration of the iddat. This form of divorce does not require any
pronouncement either by the husband or the court. Khul’u is permitted by the Quran:

“The divorce is twice, after that, either you retain her own reasonable terms or release
her with kindness. And it is not lawful for you (men) to take back (from your wives) any of
your mahr which you have given them, except when both parties fear that they would be
unable to keep the limits ordained by Allah, so do not transgress them ...”. (2: 229

41
 IDDAT
This is a waiting period to be observed by a divorced woman, or a woman whose
husband is dead. The Iddat varies accordingly, even that of divorce, and it is based on
different considerations as follow:
1. Iddat of divorced woman who observes her menstrual cycle in three (3) menstrual
cycles.
“Divorced women shall wait concerning themselves for three monthly periods”
(2:228)
2. Iddat of woman who is divorced but is not observing her menses, either because
of old age, or because of she is too young to start menses, is three (3) months
from the date of divorce.
“And such of your women as have passed the age of monthly courses, for them the
prescribed period, if ye have any doubts, is three months, and for those who have
no courses”. (65:4)
3. Iddat of a pregnant woman divorced during pregnancy, is until she delivers.
“For those who are pregnant the period is until they deliver their burdens”. (65:4)

Note that in all these, the iddat of a slave girl is half of the stated period in iddat of
woman who is divorced but is not observing her menses and two menstrual cycles
in iddat of divorced woman who observes her menstrual cycle in three (3)
menstrual cycles. However, with regard to iddat of pregnant woman divorced
during pregnancy, is until she delivers her iddat too lapses at delivery.

Iddat of death:
Where the husband dies, the wife (widow) has to observe an iddat for fixed of period of 4
months and 10 days. This is stated in the Quran:
“And those of you who die and leave wives behind them, they (the wives) shall wait (as
regards their marriage) for four months and ten days”. (2:234)

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Condition of Iddat:
Where an iddat of divorce (revocable) conflicts with that of death, e.g. where the woman
is divorced revocable and before the expiration of her iddat, the husband die, some jurists
are of the view that her iddat for divorce will overlap with that of death, or it may
overtake it in case of a pregnant widow if she delivers before the expiration of ten month
and 10 days from the date of the death of the husband.

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 Polygamy in Islam

Definition of Polygamy

Polygamy means a system of marriage wherein one person has more than one spouse.
Polygamy can be of two types; one is polygyny wherein a man marries more than one
woman, and the other is polyandry, wherein a woman marries more than one man. Islam
permits limited polygyny while prohibiting polyandry completely.

Legal Position of Polygamy in Islam

Muslims derive the permissibility of polygamy in Islam from the Qur’anic verse:

“If you fear that you shall not be able to deal justly with the orphans, marry women of
your choice, two, or three, or four; but if you fear that you shall not be able to deal justly
(with them), then (marry) only one…” [Al-Qur’an 4:3]

From this verse, it is evident that polygamy is neither mandatory, nor encouraged, but
merely permitted. The Qur’an also warns about the difficulty of dealing justly between
multiple wives:

“Ye are never able to be fair and just as between women, even if it is your ardent desire:
But turn not away (from a woman) altogether, so as to leave her (as it were) hanging (in
the air). If ye come to a friendly understanding, and practice self-restraint, Allah is Oft-
forgiving, most Merciful”. [Al-Qur’an 4:129]

“Nevertheless, it made fair and equitable dealing with wives an obligation. If one is not
sure of being able to deal justly with wives, the Qur’an says: “then (marry) only one”
(Qur’an 4:3).

The Qur’anic injunction, thus, made polygamy restrictive, when compared with the
prevalent practice in the world.

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Islam allows polygamy and permits men, under specific circumstances, to have at most
four wives at any given time.

Polygamy was customary before Islam and was not abrogated with the coming of Islam;
instead, Islam has corrected and set various conditions for the practice. The principle was
permitted, but polygamy was limited to four wives.

In authorizing polygamy, Islam does not have the intention of siding with men and
encouraging them to form harems or overindulge in sexual desires and debauchery or to
overlook the rights of women and oppress them. Rather, Islam’s aim is to uphold a range
of women’s natural rights—the right to marriage, forming a family, and having and
rearing legitimate children. Of course, the rights of men have also been kept in mind. The
permitting of polygamy, while observing prescribed conditions, is a social necessity and
in the ultimate interests of both women and men and in order to elucidate this matter, the
following two premises are indicated.

First premise: Even though female births are not more than that of males, statistics show
that the number of women who are available for marriage is often more than men. There
are two reasons for this:

First, the fatalities of men, especially young men, exceed fatalities of girls and women.
This becomes evident by referring to the casualties of incidents such as war, falling from
heights, getting buried under debris, drowning, mine and industry mortalities, car
accidents, work related accidents, etc. Because of these accidents, which are not few, the
equilibrium between men and women is lost and the ratio of women to men increases.

Second, some scientists hold that women’s resistance to diseases is higher than that of
men. Studies of the deaths of children, adolescents, and young adults affirm this theory.
The average lifespan of women is longer than men. Statistics show a higher rate of
widowed women than widower men.

Thus, the number of single women who want and need to marry is higher than the
number of single men who need and desire marriage. We all have seen many widowed

45
women who wish to remarry a desirable man but cannot due to the circumstances. On the
other hand, there are not many unmarried men who wish to marry that cannot find a
woman willing to marry.

Second premise: One of the natural rights of all human beings is the right to marriage
and formation of a family; just as humans have the right to have jobs, homes, health and
hygiene, food, and clothes, they also have the right to marriage. All humans, both males
and females, have the right to marry, enjoy familial peace and love, develop lasting
emotional attachments, and bring forth and raise legitimate children. As human beings,
women have this right. Thus, social laws must be regulated in such a manner that this
natural right is readily available to all.

In short, in every society there are a large number of unmarried women who need and
desire to marry and if they do not, they may be driven to deviation and corruption. The
number of single men who are willing to marry widows is not high enough to appease the
requirements of every society, due to the fact that young men usually prefer to marry
previously unmarried women, who are already more than enough to satisfy their numbers.
On this account, what must widows who wish to remarry do? In this case, the society
must either accede to sexual freedom, corruption, and unrestraint, such as has been
accepted in the West or, as in Islam, must follow a polygamous system.

In order to resolve this problem to the advantage of widowed women, who wish to marry
and perhaps start a family, and prevent social corruption and sexual deviations, Islam has
allowed polygamy.

Another justification for polygamy is sterility or incapacity of a man’s spouse. In the

event that a woman is completely sterile or pregnancy is harmful to her due to an
incurable illness, and her husband feels the need for a child, both reason and conscience
give assent to his right to remarry.

Additionally, if one’s wife is ill and cannot satiate the sexual needs of her husband,
remarrying becomes a necessity for the man. In order to resolve this problem, the man
either has to divorce his first wife or marry again without divorcing her. The second

46
option is to the advantage of the first wife because she does not become destitute and
alone in her illness.

Nevertheless, it must be stressed that in light of the fact that the most important benefit of
marriage is familial love, tranquility, and affection, monogamy is far preferable to
polygamy. Moreover, Islam does not encourage men to remarry to appease their
concupiscence and to sacrifice familial love and peace for evanescent pleasure. The
reason that Islam acquiesces to polygamy is due to a social necessity and in order to
protect the rights of widowed women and women who need to marry.

Conditions of time, place, societies, and personal resources and facilities differ regarding
this issue. If there is no personal or social necessity for polygamy, monogamy is
preferable and if polygamy is required in a society or for some persons, women and men
must cooperate in attaining this goal. A man who intends to remarry for one of these
reasons must adhere to his financial and physical means and in the event that he does not
have the means to manage two households, he must forego remarriage. Then, if he has
the means, he must discuss the issue with his wife and prove to her the necessity for
remarriage, assure her that he will observe justice and equality among his wives, and
obtain her consent in any fair manner possible.

The duty of such a wife is self-sacrifice in order to ensure personal and social necessities;
she must set aside harsh emotions, mind the predicament and needs of her husband or
widowed women, and above all else, she must think of God’s satisfaction and thus, allow
her husband, his legitimate request.

If remarriage results through mutual consent of husband and wife, it will be far less
problematic for everyone involved.

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Conditions for Polygamy

Islam tolerates polygamy; however, it has placed various conditions for it that, in practice,
is very difficult to observe. These are as follows:

1. Possession of sufficient financial resources to provide all expenses of each family

2. Physical prowess for completely satisfying the sexual desires of each wife

3. Observance of complete justice and equality among each family in every way without
any favoritism. Allah, the Almighty has declared in the Quran:

‫َ َدِح اْ حِ اُْ ل اْ َدال َ د اْ حَُلَاا َد دَ ح‬

...‫اَِدًة‬ ‫َاء دَْاَدى دَثلاد د‬
‫َ دَ لَُدا د‬ ‫اَ ُد لُْ ح ََّد اُ حَّ د‬
‫َ د‬‫َدان حُ لَُاا دَا د‬...

“…then marry [other] women, who seem virtuous to you, two or three or four; and if
you fear that you cannot do them justice, then one [only]…”1

This verse gives permission for polygamy on the condition that there is no likelihood of
refraining to observe fairness and justice, which is rather unfeasible and very hard to
attain.

A man who has more than one wife is obligated to observe equality, justice, and fairness
among his wives in the amount, type, and quality of nafaqah, sexual enjoyment and
intercourse, and even in mannerism. It is the duty of polygamous men to behave
comparably in all events, even if their wives are different in age, beauty, character, social
status, and other virtues and perfections.

It is clear that completely adhering to justice and fairness is quite challenging and few
men can be sure about their ability to shoulder such heavy responsibilities whereas the
Quran makes it quite clear that if they doubt their ability to behave equally and justly
with their wives, they should suffice themselves with one wife.

Consequently, polygamy in Islam is a very onerous and high-liability undertaking,

something that most men are not competent enough to accomplish.

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 Prohibited Degree of Marriage (‫)اُمُرَات ََ اُزَاج‬

a) Permanent Prohibition

After having been granted permission to betroth, a suitor will have to explore further
whether there exists any form of prohibition between him and the betrothed woman or
girl.

Such prohibitions may either of a permanent, or temporary in nature. The permanent

prohibitions to marriage are as follows:

1. Consanguinity or Blood Relationship

Islam has prohibits marriage between parties where there exists a blood relationship of
consanguinity. This prohibition as far as ascendancy is concerned is absolute. For
instance, one cannot marry his mother, mother’s mother. Similarly, a woman cannot
marry her father, father’s father how high soever.

These prohibited degrees are mentioned specifically in the Quran in chapter 4, verse No.
23 which reads:

“Prohibited to you to marry your mothers, daughters, sister, and your father’s sister
(paternal aunts) mother’s sister, brother’s daughters, and sister’s daughters”. (4:23).

From the above verse, marriage is permanently prohibited between a man and his

a) Mother. This includes his grandmothers how soever, both paternal and material.
b) His descendants. This means his direct daughters and their descendants how low
soever. It is also includes his grand daughters both from his daughters and son
how low soever.
c) Parent’s descendants. This means his sisters, either germane or consanguine, and
it also includes uterine sisters and their descendants how low soever. But it should
be noted here that the prohibition is within the first degree only. It does not affect
their descendants who can marry within their own degree, e.g. His sister’s son can
49
 marry his son’s daughter, i.e., second cousins can marry each other and this
follows down the descendacy how low soever.
d) Grandparent’s descendants. One cannot marry his aunt, that is, his father’s sister.
But this too is only the first degree. He can marry his aunt’s daughter how low
soever.

2. Prohibition affinity

Affinity relationship is a relationship created by marriage. The above quoted verse No. 23
of chapter 4 continues as follows:

“Prohibited to you for marriage are … your wives mothers, your step-daughters under
your guardianship, born of your wives to whom you have consummated marriage and if
not (consummated) they are lawful to you, and also prohibited to you are the wives of
your son’s descendants …” (4:23)

This means that one cannot marry:

a) His wife’s ascendants, such as his mother- in- low, his grandmother-in-low how
high soever. This is so whether it is from the mother’s or father’s side, how high
soever. Even by a mere marriage contract the ascendants of the wife whose
marriage is not consummated by him is prohibit to a man for marriage.
b) Descendants of his wife, whose marriage is consummated by him. But if he has
not consummated the marriage with the wife, he can marry any of their
descendants, e.g. daughter from another man or her grand daughters how soever.
c) His descendant’s wife or wives. A man is prohibited to marry any woman married
by his descendants and their descendants how long soever, e.g. one cannot marry
a woman once married by his son, son’s son how low soever.
d) Ascendant’s wives. One is prohibited from marring any woman once married by
his father, father’s father how high soever. But one is not prohibited from marring
a woman married before by his uncle-paternal and maternal. This form of
prohibition is founded on the basic of the provision of chapter 4 verse No. 22 of
the Holly Quran.

50
 “And marry not women whom your fathers married. Except what is past …”
(4:22).
But if the father’s wife (besides one’s mother) or the wife of the grandfather has a
daughter by another man, one can marry such daughter how low soever the
descendant of that wife, even they live in the same house.

b) Prohibition on the basis of Foster Relationship

This is where one has been suckled together with others by a woman. Those whom he has
been suckled together become his foster brothers and sisters. Therefore, legally, they are
to him, as far as prohibition to marry is concerned, like his blood brothers and sisters.
This applies to both male and female. This prohibition is prescribed by chapter 4, verse
No. 23 of the Holly Quran:

““Prohibited to you for marriage are … your wives mothers, your step-daughters under
your guardianship, born of your wives to whom you have consummated marriage and if
not (consummated) they are lawful to you, and also prohibited to you are the wives of
your son’s descendants …” (4:23)

On the foster mother herself, the prohibition here follows her ascendants and descendants
as well. It is also follows her affine relationships. For instance, one cannot marry his
foster mother’s mother. Nor can he marry his foster step mother. Nor can he marry his
foster step mothers, i.e. the wives of the husband of his foster mother as he is to him like
his biological or real father. If a woman she cannot marry her foster mother’s husband.

The verse in chapter 4 verse No. 23 reads in part:

“Prohibited for you to marry are … your foster mothers (who suckled you) your foster
sisters etc.”

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Temporary Prohibitions to Marriage:

Beside the permanent legal prohibitions to marriage the Sharia has further imposed some
other prohibitions which is classifies as temporary. And by its being temporary is meant
that the said prohibitions might be removed later on at the expiration of a fixed term or
happening of an event.

These prohibitions are as follows:

1. Married woman:
Islam Islam has prohibited marriage with a woman already married to another,
and whose marriage is still subsisting. This is provided in the Holly Quran in
chapter 4, verse No. 22 where is reads in part “Also (prohibited to you in
marriage) are woman already married”. (4:22)
2. Woman under Iddat:
A woman under her iddat (waiting period) either following her divorce or the
death of her husband cannot remarry until after the expiration of her iddat. The
period with regard to a divorced woman either three menstrual cycles or three
months as the case may be, or half of that in case of slave woman, and four
months ten days in the case of a woman whose husband has died. This prohibition
is based on the provision of the Holly Quran where is read in chapter 22, verse No.
235 thus, “… nor resolve on the (contract of) marriage till the term prescribed is
fulfilled”.

3. A woman who does not believe in any revealed religion:

A magian or woman who is polytheist is not lawful to a Muslim for marriage.
This is based on the Quranic provision in chapter 2, verse No. 221, where is read
in part:
“Do not marry unbelieving women (idolatresses), until they believe”. (2:221)
But a woman who believes in any of the revealed religions can be legally married
to a Muslim as stated in the Holly Quran:

52
 “This day are (all) things good and pure made lawful to on to you … lawful to you
to marry too are chaste women among the people of the Book revealed before
time”. (5:5)

4. A non-Muslim male:
A non-Muslim male even if he is a follower of a revealed religion cannot marry a
Muslim woman, until he embraces Islam.
“… then send them not back to the unbelievers. They are not lawful wives for the
unbelievers, nor are the unbelievers lawful husbands to them”. (60:10)
5. To join two sisters:
It is prohibited temporarily to join two sisters at the same time under the same
husband. This prohibition is based on the provision of the Holly Quran:
“Prohibited to you are … to join two sisters at a single wedlock at one and the
same time”. (4:23).
A Muslim cannot also marry a woman together with her aunt. Nor can be marry
either her sister or her aunt during her iddat following divorce from him, if the
divorce is revocable (raji’i). But where the divorce is (Bain or irrevocable)
nothing precludes him from doing so. This is the view of Malik and Shafi’i
schools.

6. Triple Divorce:
A man who divorces his wife his wife thrice cannot remarry her until after her
iddat is over and she also remarries another husband who, after consummating the
marriage willfully divorces her. And even after that, he cannot remarry her (the
first husband) until after the expiration of her iddat from the second divorce. This
prohibition is based on the Quranic provision:
“And if the husband divorces his wife after that (the second divorce), he cannot
remarry her until after she has married another husband and he has divorced her.
In that case, there is no blame in either of them, if they re-unite …”. (2:229)

And where either the woman or her former husband arranged with another to
marry her on condition that he will divorce her immediately without
53
 consummation of the marriage, for him to remarry her (as is very common among
the influential people in the society today who arrange for such kinds of marriages
with their attendants), the Prophet (S.A.W.) has said:
“Allah (S.W.T) has cursed anybody who is a party to such an arrangement
whereby a woman will be married to another so as to legalise her first husband
after three divorces, without consummating the subsequent marriage”.

7. During Ihram:
When a man or woman is in ihram, or he has put on the garb showing that he has
intended Pilgrimage to Mecca (Hajj) or lesser Hajj (Umrah) he or she cannot
marry, nor he or she be married. The wisdom behind this prohibition is that one is
supposed during Ihram, to concentrate his emotions and attention to his rituals,
and secondly, to save the Hajj session or Umrah from being converted into merry-
making session as it is used to be during the Jahiliyyah period or period of
ignorance. Such marriages entered into during ihram either for Hajj or Umrah are
void but nothing stops the parties from marring again after the session is over as
the prohibition is only temporary during that religious ritual only.
8. Marriage during a serious illness:
Where one is seriously sick, he is prohibited during that illness from contracting a
marriage for himself. The wisdom is that the marriage if allowed will only
succeed in suffering the sick husband who cannot enjoy the benefits derivable
from it. The wife will be in constant fear that perhaps the new husband will soon
pass away, and the heirs of the man, will look at the new wife as an opportunists
who has come to benefit from his estate believing that he cannot regain his health.

9. During the Iddat of one of his divorced wife out of the four wives:
Where one is married to four wives and he divorces any of them or all of them in
a revocable divorce, he cannot remarry until after the Iddat of that divorced wife
or that if any of the four wives is over. This is because during the Iddat of the
revocable divorce, a woman is still considered her husband’s wife. Therefore, to
marry any other woman during that period is like having the fifth wife, which is
prohibited in Islam.
54