Allah has created men and women as company for one
another, and so that they can procreate and live in peace and
tranquillity according to the commandments of Allah and the
directions of His Messenger. The Qur'an says:
And among His signs is this, that He created for you
mates from among yourselves, that you may dwell in
tranquillity with them, and He has put love and mercy
between your hearts. Undoubtedly in these are signs for
those who reflect. (30:21)
And Allah has made for you your mates of your own
nature, and made for you, out of them, sons and daughters
and grandchildren, and provided for you sustenance of the
best. (16:72)
These verses of the Noble Qur'an clearly show that in
contrast to other religions like Christianity, Buddhism,
Judaism etc. which consider celibacy or monasticism as a
great virtue and a means of salvation, Islam considers
marriage as one of the most virtuous and approved
institutions. The Messenger of Allah (peace be upon him)
declared, "There is no monasticism in Islam." He
further ordained,
"O you young men! Whoever is able to marry should marry,
for that will help him to lower his gaze and guard his
modesty." (Al-Bukhari)
Modesty was regarded as a great virtue by the Prophet. He
said, "Modesty is part of faith." (Al-Bukhari)
The importance of the institution or marriage receives its
greatest emphasis from the following hadith of the Prophet,
"Marriage is my sunna. Whosoever keeps away from it is
not from me."
With these Qur'anic injunctions and the guidance from the
Prophet (peace be upon him) in mind, we shall examine the
institution of marriage in the Shari'ah.
The word zawaj is used in the Qur'an to signify a
pair or a mate. But in common parlance it stands for
marriage. Since the family is the nucleus of Islamic society,
and marriage is the only way to bring families into
existence, the Prophet (peace be upon him) insisted upon his
followers entering into marriage The Shari'ah prescribes
rules to regulate the functioning of the family so that both
spouses can live together in love, security, and tranquillity.
Marriage in Islam has aspects of both 'ibadah (worship) of
Allah and mu'amalah (transactions between human beings).
In its 'ibadah aspect, marriage is
an act pleasing to Allah because it is in accordance
with his commandments that husband and wife love each other
and help each other to make efforts to continue the human
race and rear and nurse their children to become true
servants of Allah.
In its mu'amalah aspect, marriage being a lawful response
to the basic biological instinct to have sexual intercourse
and to procreate children, the Shari'ah has prescribed
detailed rules for translating this response into a living
human institution reinforced by a whole framework of legally
enforceable rights and duties, not only of the spouses, but
also of their offspring.
These aspects are beautifully explained in a tradition of
the Prophet. It is narrated by Anas that the Messenger of
Allah (peace be upon him) said,
"When a man marries, he has fulfilled half of his
religion, so let him fear Allah regarding the remaining
half."
The Prophet considered marriage for a Muslim as half of
his religion because it shields him from promiscuity,
adultery, fornication, homosexuality etc., which ultimately
lead to many other evils like slander, quarreling, homicide,
loss of property and disintegration of the family. According
to the Prophet (peace be upon him) the remaining half of the
faith can be saved by taqwa.
Conditions of Marriage
Careful consideration of the Qur'anic injunctions and the
traditions of the Prophet (peace be upon him) clearly show
that marriage is compulsory (wajib) for a man who has the
means to easily pay the mahr (dowry) and to support a wife
and children, and is healthy, and fears that if does not
marry, he may be tempted to commit fornication (zina). It is
also compulsory for a woman who has no other means of
maintaining herself and who fears that her sexual urge may
push her into fornication. But even for a person who has a
strong will to control his sexual desire, who has no wish to
have children, and who feels that marriage will keep him away
from his devotion to Allah, it is commendable (mandub).
However, according to the Maliki school, under certain
conditions it is obligatory (fard) for a Muslim to marry even
if he is not in a position to earn his living:
- If he fears that by not marrying he will commit
fornication (zina).
- If he is unable to fast to control his passions or his
fasting does not help him to refrain from zina.
- Even if he is unable to find a slave girl or a
destitute girl to marry.
However some jurists suggest that if a man cannot procure
a lawful livelihood, he must not marry because if he marries
without any hope of getting lawful bread, he may commit
theft, and in order to avoid one evil (his passions) he may
become the victim of another (theft).
The Hanafi school considers marriage as obligatory (fard)
for a man:
- If he is sure that he will commit zina if he does not
marry.
- If he cannot fast to control his passions or even if he
can fast, his fast does not help him to control his
passion.
- If he cannot get a slave-girl to marry.
- If he is able to pay the dowry (mahr) and to earn a
lawful livelihood.
Marriage is forbidden (haram) to a man, according to the
Hanafi school, if he does not possess the means to maintain
his wife and children or if he suffers from an illness,
serious enough to affect his wife and progeny.
It is not desirable (makruh) for a man who possesses no
sexual desire at all or who has no love for children or who
is sure to be slackened in his religious obligations as a
result of marriage.
In a beautiful tradition the Prophet (peace be upon him)
has given the most important point that should weigh with
every Muslim in selecting his bride:
"Whoever marries a woman solely for her power and
position, Allah will only increase him in humiliation.
Whoever marries a woman solely for her wealth, Allah will
only increase him in poverty. Whoever marries a woman
because of her beauty, Allah will only increase him in
ugliness. But whoever marries a woman in order that he may
restrain his eyes, observe cautiousness, and treat his
relations kindly, Allah puts a blessing in her for him and
in him for her."
In order that problems should not arise after marriage the
Prophet (peace be upon him) recommended that, in the
selection of his bride, a man should see her before betrothal
lest blindness of choice or an error of judgment should
defeat the very purpose of marriage. But this "seeing" is not
to be taken as a substitute for the "courtship" of the West.
The man should not gaze passionately at his bride-to-be, but
only have a critical look at her face and hands to acquaint
himself with her personality and beauty. However, if a man so
desires, he may appoint a woman to go and interview the
proposed bride, so that she may fully describe the type of
girl she is.
Since believing men and women are referred to in the
Qur'an, a woman also has the right to look at her potential
husband.
The special permission for men and women to see each other
with a view to matrimony does not contravene the code of
conduct for believing men and women to lower their gaze and
be modest which is laid down in the Holy Qur'an.
Ijbar: A Safety Valve
The consent of both the man and the women is an essential
element of marriage, and the Qur'an gives women a substantial
role in choosing their own life partners. It lays down:
Do not prevent them from marrying their husbands when
they agree between themselves in a lawful manner. (2: 232)
However, Imam Malik, one of the four great Imams of the
Sunni schools of Islamic jurisprudence, gives a slightly
restrictive interpretation to this verse and makes the choice
of partner by a Muslim girl subject to the over-ruling power
or ijbar of her father or guardian in the interests of the
girl herself.
It may sometimes happen that in her immaturity or
over-zealousness, a girl may want to marry a man about whom
she has distorted information or who does not possess good
character or who lacks proper means of livelihood. In such a
case, it is better, or rather incumbent upon the girl's
father or guardian, that, in the wider interests of the girl,
he restrains her from marrying such a worthless man and finds
a suitable person to be her husband. Generally speaking, such
marriages arranged by fathers and guardians work better than
a marriage brought about through western courtship.
The case of Abu Juham bin Hudhaifah and Mu'awiyah ibn Abu
Sufyan is relevant here. They proposed marriage to Fatimah
bint Ghaith. The Prophet (peace be upon him) advised Fatimah
not to marry either of them on the grounds that Mu'awiyah was
then a pauper and Abu Juham was cruel and harsh. So she
married Usamah.
The Free Consent of the
Parties
The Qur'an (4:21) refers to marriage as a mithaq, i.e.
a solemn covenant or agreement between husband and wife, and
enjoins that it be put down in writing. Since no
agreement can be reached between the parties unless they give
their consent to it, marriage can be contracted only with the
free consent of the two parties. The Prophet (peace be upon
him) said,
"The widow and the divorced woman shall not be married
until their order is obtained, and the virgin shall not be
married until her consent is obtained." (AlBukhari)
This aspect is greatly emphasized by Imam Bukhari. He, in
fact, gave one of the chapters in his Sahih the significant
title:
"When a man gives his daughter in marriage and she
dislikes it, the marriage shall be annulled." Once a virgin
girl came to the Prophet (peace be upon him) and said that
her father had married her to a man against her wishes. The
Prophet gave her the right to repudiate the marriage. (Abu
Dawud).
Divorced women are also given freedom to contract a second
marriage. The Holy Qur'an says,
And when you divorce women, and they have come to the
end of their waiting period, hinder them not from marrying
other men if they have agreed with each other in a fair
manner. (2: 232)
With regard to widows, the Qur'an says,
And if any of you die and leave behind wives, they
bequeath thereby to their widows (the right to) one year's
maintenance without their being obliged to leave (their
husband's home), but if they leave (the residence) of their
own accord, there is no blame on you for what they do with
themselves in a lawful manner. (2:234)
Thus widows are also at liberty to re-marry, even within
the period mentioned above; and if they do so they must forgo
their claim to traditional maintenance during the remainder
of the year. However, it must be remembered that the power of
ijbar given to the a father or the guardian by the Maliki
school over their selection of life- partner obtains in all
the situations considered above, namely, whether the daughter
or the ward is a virgin or divorcee or widow.
Prohibited
Marriage Partners
Under the Shari'ah, marriages between men and women
standing in a certain relationship to one another are
prohibited. These prohibited degrees are either of a
permanent nature or a temporary. The permanently prohibited
degrees of marriage are laid down in the Holy Qur'an :
And marry not those women whom your fathers married,
except what has already happened (of that nature) in the
past. Lo! it was ever lewdness and abomination, and an evil
way. Forbidden unto you are your mothers and your
daughters, and your sisters and your father's sisters and
your mother's sisters, and your brother's daughters and
your sister's daughters, and your foster-mothers and your
foster-sisters, and your mothers-in-law and your
step-daughters who are under your mother-in-law and your
step-daughters who are under your protection (born) of your
women unto whom you have gone into -- but if you have not
gone into them, then it is no sin for you (to marry their
daughters) -- and the wives of your sons from your own
loins, and that you should have two sisters together,
except what has already happened (of that nature) in the
past. Allah is ever-Forgiving, Merciful. (4:22 - 24)
From the above verses, it is clear that a Muslim must
never marry the following:
- His mother
- His step-mother (this practice continues in Yoruba land
in Nigeria, where in some cases the eldest son inherits the
youngest wife of his father)
- His grandmother (including father's and mother's
mothers and all preceding mothers e.g. great grandmothers )
- His daughter (including granddaughters and beyond )
- His sister (whether full, consanguine or uterine)
- His father's sisters (including paternal grandfather's
sisters)
- His mother's sisters (including maternal grandmother's
sisters)
- His brother's daughters
- His foster mother
- His foster mother's sister
- His sister's daughter
- His foster sister
- His wife's mother
- His step-daughter (i.e. a daughter by a former husband
of a woman he has married if the marriage has been
consummated. However, if such a marriage was not
consummated, there is no prohibition)
- His real son's wife
A great wisdom lies behind these prohibitions on the
grounds of consanguinity, affinity, and fosterage. No social
cohesion can exist if people do not keep these prohibitions
in their minds while contracting marriages.
Temporary prohibitions are those which arise only on
account of certain special circumstances in which the parties
are placed. If the circumstances change, the prohibition also
disappears. They are as follows:
- A man must not have two sisters as wives at the same
time nor can he marry a girl and her aunt at the same time.
- A man must not marry a woman who is already married.
However this impediment is removed immediately the marriage
is dissolved either by the death of her former husband, or
by divorce followed by completion of the period of 'iddah
(retreat).
- A man must not have more than four wives at one time.
This impediment is, of course, removed as soon as one of
the wives dies or is divorced.
- A man must not marry a woman during her 'iddah.
Regarding this last prohibition, the Qur'an expects
Muslims to act with the utmost propriety and righteousness.
It lays down:
...but do not make a secret contract with them except in
honourable terms, nor resolve on the tie of marriage till
the term prescribed is fulfilled. (2:235)
This means that a man must not make a specific proposal of
marriage to a woman during the time of her 'iddah after the
death of her husband or an irrevocable divorce. However, he
can send a message saying, for instance, "I wish to find a
woman of good character". But if a woman is in the 'iddah of
a divorce which is revocable where raja' (return) is
possible, a man must not send her even an implied invitation
to marry him, because she is still considered as the lawful
wife of the first husband. In fact, this restriction is most
beneficial because it prevents a man from becoming an
instrument of breaking up a family where there are still
chances of reconciliation between the wife and husband even
though they are moving away from each other.
Two Suitors Seeking to Marry
the Same Girl
The Prophet (peace be upon him) disapproved of two persons
competing with one another to secure marriage with the same
girl. This is because such a situation is likely to develop
bitter enmity between two Muslim brothers.
The Prophet said,
"A believer is a brother of a believer. Hence it is not
lawful for him to bargain upon the bargain of a brother,
nor propose for (the hand of a girl) after the marriage
proposal of his brother, until the latter (voluntarily)
withdraws the proposal."
Imam Abu Hanifa, Imam Shafi'i, and Imam Malik, all hold
the view that it is a sin to put a proposal of marriage
against the proposal of another Muslim brother. However, if a
marriage is contracted in this wrongful way it will be
sufficient if the second suitor who was successful seeks the
forgiveness of the first suitor and of Allah. But Imam
Dhahiri considers such a marriage void. It is respectfully
submitted that the former view is more rational and sound.