Islamic Marriage Contract
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- When a couple decides to marry, they draw up a Marriage contract. In Sunni Islam, this contract must have two male witnesses or, in the Hanafi school of jurisprudence, one man and two women. In one narration, a case was brought to Umar about a marriage which had only been witnessed by one man and one woman He said:
- "This is a secret marriage and I do not permit it. Had I been the first to come upon it, I would have ordered them to be stoned." (muwatta 28.11.26)
While it is customary for marriage contracts to be written down, particularly when the bride and groom wish to make any stipulations, classical jurists required only oral offer and acceptance for the contract's validity.
Shias believe that Umar said that only since Umar forbade Nikah Mut'ah, and wanted to make sure that nobody engaged in it, so he demanded witness for all marriage. Shia deem it as sufficient that the couple agree to it orally and point out that the Quran only requires two wittiness for Talaq and makes no mention of it for marriage.
- Among the things that can be included in this contract is a prohibition on the husband marrying other women or rules that can include giving up, or demanding, some responsibilities. It can also be used to regulate the physical relationship of the couple.
- An important feature of a Marriage Contract is that which makes sexual intercourse legal. This is supported by many Haidths. According to the greatest Sunni hadith collection, the Sahih Bukhari, Volume 7, Book 62, Number 81,
- Narrated 'Uqba:
- The Prophet said: "The stipulations (in the marriage contract) most entitled to be abided by are those with which you are given the right to enjoy the (women's) private parts."
And in Al-Mughni by Ibn Qudaamah, part 7, Kitaab al-Nikaah [1], Muhammad is quoted: The most deserving of conditions to be fulfilled are those by means of which sexual intercourse becomes permissible for you
What makes intercourse legal is the giving of mahr. This is shown by, according to one lesser hadith collection, (Sunaan Abu Dawud, Book 11, Number 2121), Muhammed prohibited sexual relations with his daughter until she was given something.
- Narrated A man from the Companion of the Prophet:
- Muhammad ibn Abdur-Rahman ibn Thawban reported on the authority of a man from the Companions of the Prophet (pbuh): When Ali married Fatimah, daughter of the Apostle of Allah (pbuh), he intended to have intercourse with her. The Apostle of Allah (pbuh) prohibited him to do so until he gave her something. Ali said: I have nothing with me, Apostle of Allah. The Prophet (pbuh) said: Give her your coat of mail. So he gave her his coat of mail, and then cohabited with her.
It is also clear from the works of modern scholarship and traditional Sunni thought, for instance the Encyclopaedia of Islam states in the entry on mahr,
- "According to a tradition in Bukhari the mahr is an essential condition for the legality of the marriage 'Every marriage without mahr is null and void'."
- If a wife has stipulated that her husband is not to marry other woman, but he does anyway, she has the right to annul the marriage.
- It is reported that its mustahab (recommended) for a woman to unveil herself to the man she intends to marry, and also that Muhammad commanded (once?). Ibn Taymiya was of the opinion that it is mustahab (recommended) for the would-be husband to see his future bride's head, face, hands and feet. However, Ibn Taymiya deemed it not permissible if he was alone with her. Rather, her father, or brother, or someone else must be with them. He based it on Muhammad having said:
- "A man must never be alone with a woman unless there is someone who is a Mahram with them." (Bukhari, Muslim)
and:
- "A man must never be alone with a woman, for verily the Satan is their third." (At-Tirmithee and Ahmad)
