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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.
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.
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 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.
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:
1.
His mother
2.
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)
3.
His grandmother (including father's and mother's
mothers and all preceding mothers e.g. great
grandmothers )
4.
His daughter (including granddaughters and beyond
)
5.
His sister (whether full, consanguine or uterine)
6.
His father's sisters (including paternal
grandfather's sisters)
7.
His mother's sisters (including maternal
grandmother's sisters)
8.
His brother's daughters
9.
His foster mother
10.
His foster mother's sister
11.
His sister's daughter
12.
His foster sister
13.
His wife's mother
14.
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)
15.
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:
1.
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.
2.
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).
3.
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.
4.
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.
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. |