Pointers on Choosing Marriage
Partners
By Rabi'ah Hakeem
In light of the experience of the past years,
it is time to take stock and try to halt the
ever-mounting tide of divorces among Muslims.
It is not unusual today to find Muslim women
(and even an occasional Muslim man) who, by
the time they are 30 or 35, have been married
three or four times, their children suffering
again and again through the trauma of
fatherless and broken homes. Accordingly, we
may list a few essential points to be
considered by both brothers and sisters in
the process of choosing a partner in life
(although the masculine pronoun has been used
throughout for the sake of simplicity, the
following is generally equally applicable to
both men and women).
1. Du'a. Unceasingly ask help and guidance from Allah, Most High,
in the matter of finding and choosing a mate.
As often as you feel it necessary, pray
Salaah al-Istikhara, Islam's special prayer
for guidance, in order to reach a suitable
decision.
2. Consult your heart. Listen to what your inner voice, the 'radar' which
Allah has given you to guide you, tells you
about the prospective partner. It is likely
to be more correct than your mind, which
often plays tricks and can rationalise almost
any- thing. For many people, first
impressions are often the most accurate.
3. Enquire. Find out the reason why this man wants to marry you. Is he
interested in you as an individual or will
just any person do? Why is he not doing the
logical thing, that is, to marry someone from
his culture? If there is evidence that the
primary reason for this marriage, despite
claims to the contrary, is for convenience (greencard,
money, property, etc.), forget it. This
spells trouble.
4. Get to know your prospective partner, within the limits of what is
permissible in Islam, before deciding on
marriage. Just ' seeing' someone once or
twice in the company of others, who may be
anxious for this marriage to take place, is
simply not enough under today's conditions,
where two per- sons of totally dis-similar
backgrounds are meeting each other without
the safeguards of families. Without violating
Islam's prohibition about being alone, try to
understand his nature, what makes him tick,
his temperament, what he might be like to
live with.
5. Talk to several people who know your
prospective partner,
not just one, or have someone whom you can
trust do this for you. Ask about him from
various people, not just from his friends
because they may conceal facts to do him a
favour. And ask not only about his
background, career, Islamicity, etc., but
about such crucial matters as whether he gets
angry easily; what he does when he is 'mad';
whether he is patient, polite, considerate;
how he gets along with people; how he relates
to the opposite sex; what sort of
relationship he has with his mother and
father; whether he is fond of children; what
his personal habits are, etc. And find out
about his plans for the future from people
who know him. Do they coincide with what he
has told you? Go into as much detail as
possible. Check out his plans for the future
- where you will live and what your lifestyle
will be, his attitudes toward money and
possessions and the like. If you can't get
answers to such crucial questions from people
who know him, ask him yourself and try to
make sure he is not just saying what he knows
you want to hear. Too many people will make
all kinds of promises before marriages in
order to secure the partner they want but
afterwards forget that they ever made them,
(this naturally applies equally to women as
to men).
6. Find out about his family, his relations with his parents,
brothers and sisters. What will his
obligations be to them in the future? How
will this affect where and under what
conditions you will live? What are the
character and temperament of each of his
parents? Will they live with you or you with
them? And are they pleased with his
prospective marriage to you or not? Although
it may not be the case in most Western
marriages, among Muslims such issues are
often crucial to the success or failure of a
marriage, and answers to these questions need
to be satisfactory to ensure a peaceful
married life.
7. Understand each other's expectations. Try to get a sense of your
prospective partner's under- standing of the
marriage relationship, how he will behave in
various situations, and what he wants of you
as his spouse. These are issues which should
be discussed clearly and unambiguously as the
negotiations progress, not left to become
sources of disharmony after the marriage
because they were never brought up
beforehand. If you are too shy to ask certain
questions, have a person you trust do it for
you. At an advanced stage of the
negotiations, such a discussion should
include such matters as birth control, when
children are to be expected, how they are to
be raised, how he feels about helping with
housework and with the children's upbringing,
whether or not you may go to school or work,
relations with his family and yours, and
other vital issues.
8. See him interacting with others in various
situations.
The more varied conditions under which you
are able to observe your prospective partner,
the more clues you will have as to his mode
of dealing with people and circumstances.
9. Find out what his understanding of Islam
is
and whether it is compatible with your own.
This is a very important matter. Is he
expecting you to do many things which you
have not done up to this point? If he
emphasises " Haraams", especially if you are
a new Muslimah, and seems unable to tolerate
your viewpoint, chances are your marriage
will be in trouble unless you are flexible
enough to accommodate yourself to his point
of view and possibly a very restrictive
lifestyle. Let him spell out to you clearly
how he intends to practise Islam and how he
wants you to practise it as his wife so there
will be no misunderstandings later.
10. Don't be in a hurry. So many marriages have broken because
the partners are in such haste that they
don't take time to make such vital checks as
the ones outlined above and rush into things.
Shocking as it may seem, marriages between
Muslims which are contracted and then broken
within a week or a month or a year have
become common place occurrences among us.
Don't add yourself to the list of marriage
casualties because you couldn't take time or
were too desperate for marriage to find out
about or get to know the person with whom you
plan to spend the rest of your life.
11. Ask yourself, Do I want this man/woman to
be the father/mother of my children?
If it doesn't feel just right to you, think it over again.
Remember, marriage is not just for today or
tomorrow but for life, and for the primary
purpose of building a family. If the person
in question doesn't seem like the sort who
would make a good parent, you are likely to
find yourself struggling to raise your
children without any help from him or her -
or even with negative input - in the future.
12. Never allow yourself to be pressured
or talked into a marriage. Your
heart must feel good about it, not someone
else's. Again, allegations of "Islamicity" -
he is pious, has a beard, frequents the
Masjid, knows about Islam; she wears Hijab,
does not talk to men- are not necessarily
guarantees of a good partner for you or of a
good marriage, but are only a part of a total
picture. If an individual practises the
Sunnah only in relation to worship or
externals, chances are he /she has not really
understood and is not really living Islam.
Possessing the affection and Rahmah (mercy)
which Islam enjoins between marriage partners
is vital for a successful relationship, and
these are the important traits to be looked
for in a prospective partner.
13. Never consent to engaging in a marriage
for a fixed period or in exchange for a sum
of money. (Mut'a marriage). Such marriages are
expressly forbidden in Islam and entering
into them is a sinful act, as marriage must
be entered into with a clear intention of it
being permanent, for life, not for a limited
and fixed duration.
If these guidelines are followed, Insha'
Allah the chances of making a mistake which
may mar the remainder of your life may be
minimised.
Choosing a marriage partner is a most serious
matter, perhaps the most serious decision you
will ever make in your life since your
partner can cause you either to be successful
or to fail miserably, in the tests of this
life and, consequently, in the Here- after.
This decision needs to be made with utmost
care and caution, repeatedly seeking guidance
from your Lord.
If everything checks out favourable, well and
good, best wishes for happiness together here
and in the Hereafter. If not, better drop the
matter and wait. Allah your Lord knows all
about you, His servant, and has planned your
destiny and your partner for you. Be sure
that He will bring you together when the time
is right. As the Qur'an enjoins, you must be
patient until He opens a way for you, and for
your part you should actively explore various
marriage leads and possibilities.
Two words addressed to brothers arc In order
here. If you are marrying or have married a
recent convert to Islam, you must be very
patient and supportive with her. Remember,
Islam is new to her, and chances are that she
will not be able to take on the whole of the
Shari'ah at once - nor does Islam require
this, if you look at the history of early
Islam. In your wife 's efforts to conform
herself to her new faith and culture, she
needs time and a great deal of support, love,
help and understanding from you, free of
interference from outsiders. It is best to
let her make changes at her own speed when
her inner being is ready for them rather than
demanding that she do this or that, even if
it means that some time will elapse before
she is ready to follow certain Islamic
injunctions. If the changes come from within
herself, they are likely to be sincere and
permanent; otherwise, if she makes changes
because of pressure from you or from others,
she may always be unhappy with the situation
and may look for ways out of it. You can help
her by being consistent in your own behaviour.
So many Muslims apply those parts of the
Qur'an or Sunnah which suit them and abandon
the rest, with resulting confusion in the
minds of their wives and children. Thus,
while firmly keeping the reins in your hands,
you should look at your own faults, not hers,
and be proud and happy with the efforts she
is making. Make allowances, be considerate,
and show your appreciation of the difficult
task she is carrying out by every possible
means. This will cause her to love and
respect you, your culture, and Islam to grow
infinitely faster than a harsh, dominating,
forceful approach ever could.
Finally, a word of warning. Certain
situations have occurred in which women,
posing as Muslims (or perhaps actually having
made Shahaadah), have deceived and made fools
of numbers of Muslim men. Such women may be
extremely cunning and devious, operating as
poor, lonely individuals in need of help
and/or husbands. The brothers who fall into
this net may be shown false photos, given
false information or promises, cheated in all
sorts of ways, and finally robbed of anything
the conniving lady can manage to take from
them. As was said, it is wise to check out
any prospective partner with local Muslims
who know her.
Keep your eyes open and take your time. Since
marriage is for life, for eternity, hurrying
into it for any reason whatsoever is the act
of a foolish or careless person who has only
himself or herself to blame if things go
wrong. |
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The Crux of this Difference of Opinion
This
discussion boils down to the understanding of two seemingly
contradictory hadith:
"Every stipulation which is not in the book of Allah is void even
if it be one hundred stipulations." Muslim & Bukhari
"The
conditions which you have the most duty to fulfill are those by
which you have made marital relations lawful." Bukhari & Muslim
It
seems clear from the second hadith along with the fatwa of Umar
mentioned earlier that there is some room for adding stipulations
to a marriage contract. It also seems clear from the first hadith
that there are limits on what can be stipulated. Specifically,
any stipulations which go against the basic goals and principles
of the marriage contract and not allowed and, if stated, are null
and void. Thus, the only remaining problem is understanding
exactly how this principle applies in practical situations. For
those scholars who don't accept such external stipulations at
all, they have no effect, are not binding, and don't affect the
validity of the underlying contract. For those who accept them,
they give the woman the option to annul the marriage upon he
request if the condition is violated. We only mention the woman
because the man can divorce at any time with or without a
particular cause and so has no need of such an option. Notice
that even in the fatwa of Umar, he didn't require the man to
fulfill the condition, rather he allowed that she could end the
marriage if she sodemanded.
Conditions for Which there is Agreement that they are Invalid
Even
those who accept these stipulations all agree that certain
conditions are not allowed. Among them are the following:
1.
Nikaah Ash-Shighaar. This is where the two dowries are stolen and
"exchanged". For example a man marries his son to another's
daughter in "exchange" for the other marrying his daughter to the
first one's son. Neither woman receives their dowry.
2.
Nikaah Al-Mut'a. Any kind of marriage with a stipulated time
limit.
3.
Nikaah At-Tahleel. A woman who has been divorced three times and
wishes to return to her first husband marries a man on the
condition that he divorce her. If this is discovered or if this
is her intention, the first husband still does not become lawful
for her in spite of this marriage.
Second: Conditions for the Soundness of a Marriage Contract
There
are ten conditions (shuroot) in this category. Some are agreed
upon by virtually all the scholars while others are the subject
of some disagreement.
1.
The woman is permissible to the man. i.e., that she is not one of
those forbidden to him by relation, nursing or other existing and
conflicting marriage. Some would consider this on of the arkaan
(pillars) or one of the conditions for initiating the contract.
In any case, this condition must definitely be met.
2.
The offer and acceptance is of a permanent nature and not
temporary. All forms of temporary marriage are forbidden in
Islam. If anything stated in the offer and acceptance indicates a
temporary nature, the marriage is not valid.
3.
Two non-discredited witnesses. There is some difference of
opinion on this issue, but in the final analysis, the hadith is
clear. Ibn Taimia 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 Dhaahiris
and one opinion reported from Ahamd.
(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'iy 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
Taimia 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 Taimia's opinion which finds the witnesses NOT a
requirement must be rejected, because the hadith on this subject
has been found to be sahih:
"Laa nikaaha illa bi waliyin wa shaahidaiy 'adlin"
"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 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.
4.
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
Qur'an 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: {Yaa ayyuhaa alladhina
aamanoo, laa yahillu lakum an tarithoo an-nisaa'a karhan...} {O,
you who believe, it is not lawful for you to inherit women
against their will...} An-Nisaa:19
There
are also two sound and very clear hadith on this matter: "Laa
tunkahu al-ayyimu hatta tusta'mara wa laa tunkahu al-bikru hatta
tusta'dhana qaaloo yaa rasoolu Allahi kaifa idhinihaa? Qaala: an
taskut." "A previously married woman cannot be married until her
order is sought and a virgin cannot be married until her
premission is sought. They said: How does she give permission? He
(sas) said: If she keeps quiet." Bukhari & Muslim "'An ibn
Abbasin anna jaariyatan bikran atat an-nabiyya (sas) fa dhakarat
lahu anna abaaha zawwajahaa wa hiya kaariyatun fa khayyarahaa an-nabiyyu
(sas)" "From Ibn Abbas that a virgin girl came to the Prophet (sas)
and mentioned that her father had married her against her will
and so the Prophet (sas) gave her the choice." Abu Daud & 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.
5.
The bride and groom are specifically identified and known.
6.
Neither of the two contracting parties are in a state of ihraam.
7.
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.
8.
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.
9. 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.
10.
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
nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa waliyya
lahaa." "No marriage except with a guardian and the ruler is the
guardian of she who has no guardian." Abu Daud & others (sahih) "Ayyumaa
imra'atin nakahat bi ghairi idhni waliyyihaa fa nikaahuhaa
baatilun fa nikaahuhaa baatilun fa nikaahuhaa baatilun." "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 Daud & 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: {Yaa ayyuhaa alladhina aamanoo laa
takhunoo Allaha wa ar-rasoola wa takhunoo amaanaatikum wa antum
ta'lamoon.} {O, you who believe, do not commit treachery against
Allah and against the Prophet (sas) nor betray your trusts though
you know.} Al-Anfaal: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. A Rejected Opinion of the Hanafi School In the
Hanafi school of thought there is an opinion that the wali is not
a requirement for the validity of the marriage. They even claim
to have an argument from Aisha, the one who narrated the hadith:
"Laa nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa
waliyya lahaa." "No marriage except with a guardian and the ruler
is the guardian of she who has no guardian." Abu Daud & others (sahih)
They say that: "Aisha married the daughter of her brother, Hafsa
bint Abdul Rahman while Abdul Rahman was gone to Sham. When Abdul
Rahman returned he was upset but he did not wish to undo what
Aisha had done do he left his daughter with her groom, Al-Mundhir
ibn Az-Zuhair." Other scholars responded to their argument: It
seem from other narrations of the same incident that Aisha simply
set up the arrangement but did not actually perform the marriage.
Also, it was Aisha herself who said that "Women cannot perform
marriages." In this way, she did not contradict what she herself
narrated from the Prophet (sas).
Being
Serious is NOT a Condition for the Soundness of a Marriage
Contract
Note
that marriage is not a laughing matter and is very serious.
Therefore, the mere words make the marriage happen and
intention is not required. Also, as we have seen, there is no
khiyaar al-majlis (a choice to back out until the sitting is
concluded and the parties part ways) in marriage as there is in
sales and other contracts. The Prophet (sas) said: "Thalaathun
jidduhunna jiddun wa hazluhunna jiddun: an-nikaahu wa at-talaaqu
wa ar-ruj'atu." "Three things which when serious are serious
and when vain are serious: marriage, divorce and returning (to
one's wife after a divorce)." Ahmad & others (sahih).
Third: Conditions for the Execution of a Marriage Contract
1.
The bride and groom must be legally capable for such a marriage,
i.e., sane, conscious, past the age of puberty, etc. The contract
can take place earlier than this, but the execution must wait
until the time that they can actually enter into the marriage
relationship.
2.
The wali who performed the marriage was not a more distant wali
while a closer one was alive and reachable. For example, if the
woman's uncle married her to someone, the marriage would not be
valid unless and until the woman's father's consent was verified.
In such a case, the contract could be executed.
Fourth: Conditions for the Marriage Contract to be Binding If
these conditions are met, neither party has the right to anull
themarriage.
1. If
the marriage of an underage or insane person is done by other
than the father or the grandfather, then the father or
grandfather has the right to annul it.
2.
That the husband is socially compatible and qualified for the
woman.
3.
That the dowry is at least equivalent to those similar to her.
4.
That there is no defect in either spouse. Included in this
category would be the case where the woman was said to be a
virgin but is then discovered to be otherwise or where either
spouse is not physically capable of marital relations.
If, after being married, any of these
conditions are not met, both parties (bride and groom) would have
the right to annul the marriage. The matter would be taken
to a judge or one in authority. However, this is a right or an
option. Once the parties accept the marriage
with the deficiency it contains, they will after that be bound to
such a marriage.
Effects
of the Various Conditions on the Marriage Contract
Based
on which conditions above are or are not fulfilled, the ruling
concerning the validity and legal effect of the marriage contract
differs among different schools of fiqh. In the hanafi school, a
contract may fall into one of five categories: sound and binding,
sound and non-binding, suspended, defective and void. For most of
the other scholars, the marriage contract will fall into one of
three categories: sound and binding, sound and non-binding or
void. The following table describes the effect of failure to meet
certain conditions on the legal effect or conclusion concerning
the contract itself:
Effects on the Marriage Contract of Failing to Meet Conditions
Civil
Marriages in Countries Which Do Not Apply the Shari'a
In
the light of what has been discussed, a very important question
arises for Muslims living in lands where the Shari'a is not the
law of the land. For Muslims to marry in such situations under
the "auspices" of such governments will often involve serious
flaws in both the execution and the legal effects of the
non-Islamic marriage contract.
For
example:
1. No
proper wali. Many such secular laws may not require the woman to
have a wali at all or the one appointed may not be the rightful
one in the Shari'a.
2.
The secular law may not require two witnesses,
3.
Witnesses may be required but not qualified such as non-Muslim
witnesses.
4.
The marriage establishes various property rights, inheritance
rights etc. both during and after the marriage for which Allah
sent no authority. (Avoiding the harm of such issues while living
in a non-Islamic society is a much larger issue and involves many
things besides marriage.)
5.
The civil marriage may cause additional marriages by the husband
to be a crime punishable by a prison sentence.
Because of these and other issues, a secular marriage contract is
not sufficient for two Muslims to be considered married
Islamically. In fact, they should be avoided if possible.
In
any case, it is the Islamic marriage with its prerequisites and
conditions which makes the two married before Allah. Whether or
not a civil marriage should also be undertaken is a case of
weighing the harms and benefits involved.
Regarding these "marriages", the following important points
should be noted:
1. If
such a marriage was entered into by non-Muslims who later became
Muslim, they are considered married and there is not need
whatsoever to have another marriage contract.
2. If
they were Muslim but married in a secular manner out of extreme
ignorance, it would be best for them to redo the marriage.
However, the first marriage could be considered valid and any
children resulting from it would be both of their children
Islamically.
3. If
two Muslims marry in such a manner knowingly, for example to
circumvent the objections of her wali, then the marriage is null
and void and they are committing fornication.
Review Questions
1.
What would be the ruling for the following case: A man and a
woman are married for ten years and then discover that they were
breastfed by the same woman.
2.
What is the ruling concerning a marriage contract in which the
woman did not have a wali? What was the Prophet's (sas) statement
about such a marriage (2 hadith).
3.
Discuss the different opinions concerning whether or not it is
allowed to add stipulations to the marriage contract. For those
who allow them, what exactly is their effect and which conditions
are allowed? Which are not allowed?
4.
Give definitions for the following important fiqh terms: rukn,
shart, sahih, faasid and baatil.
5. Is
it necessary to have witnesses for a marriage contract? What are
some of the different opinions on this matter and what is the
conclusive evidence from the sunnah?
6.
What be the ruling on the following case: A man claims that the
marriage contract he just made is not valid because he was only
joking when he did it?