Marriage in Islam

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In Islam, marriage is a legal contract between two people. Both the groom and the bride are to consent to the marriage of their own free wills. A formal, binding contract is considered integral to a religiously valid Islamic marriage, and outlines the rights and responsibilities of the groom and bride. There must be two Muslim witnesses of the marriage contract. Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife.

In addition to the usual marriage until death or divorce, there is a different fixed-term marriage known as zawāj al-mutʻah ("pleasure marriage")^[1](p1045) permitted only by the Twelver branch of Shia Islam for a pre-fixed period.^{[2][3](p242)[4]} There is also Nikah Misyar, a non-temporary marriage with the removal of some conditions such as living together, permitted by Sunni Muslims.^[5][6][7] Sunnis also allow Nikah urfi and Nikah halala, both absent in Shia Islam.

Terminology

In Islamic law, marriage is called nikah, an Arabic word whose original literal meaning is "sexual intercourse", but which already in the Quran is used exclusively to refer to the contract of marriage.^[8][9][10] In the Wehr-Cowan Dictionary of Modern Written Arabic, nikah is defined as "marriage; marriage contract; matrimony, wedlock".^[11]

The marriage contract is known by different names: Literary Arabic: عقد القران ʻaqd al-qirān, "matrimony contract"; Urdu: نکاح نامہ‎ / ALA-LC: Nikāḥ-nāmah; Persian (Farsi): ازدواج (ezdevāj) (= marriage) and سند ازدواج or عقدنامه (Sǎnǎde ezdevāj; aqd nāmeh) for the certificate.

History

In Pre-Islamic Arabia a variety of different marriage practices existed. The most common and recognized types of marriage at this time consisted of: marriage by agreement, marriage by capture, marriage by mahr, marriage by inheritance and "Mot'a" or temporary marriage.^[12]

Prior to Islam, in the Arab world, women could not make decisions based on their own beliefs and had little control over their marriages. They were never bound by contract for marriage or custody of children and their consent was never sought. Women were seldom allowed to divorce their husbands and their view was not regarded for either a marriage or divorce.^[13] If they got divorced, women were not legally allowed to go by their maiden name again.^[13] They could not own or inherit property or objects, even if they were facing poverty or harsh living conditions.^[14]

Reforms after Islam

Muhammad had reformed the laws and procedures of the common marriage practices that existed during his prophethood. The rules of "marriage by agreement (marriage through consent)" was reformed and a strict set of rules and regulations were put in place. The practices of "marriage by inheritance" was forbidden. Several chapters and verses from the Quran were revealed which banned such practices.^[15]

Under the Arabian pre-Islamic law, no limitations were set on men's rights to marry or to obtain a divorce.^[16] Islamic law, however, restricted polygamy (^[Quran 4:3])^[17] The institution of marriage, characterized by unquestioned male superiority in the pre-Islamic law of status, was redefined and changed into one in which the woman was somewhat of an interested partner. 'For example, the dowry, previously regarded as a bride-price paid to the father, became a nuptial gift retained by the wife as part of her personal property'^[16][17] Under Islamic law, marriage was no longer viewed as a "status" but rather as a "contract". The essential elements of the marriage contract were now an offer by the man, an acceptance by the woman, and the performance of such conditions as the payment of dowry. The woman's consent was imperative. Furthermore, the offer and acceptance had to be made in the presence of at least two witnesses.^[16][17][18] A married woman also had rights over the husband as stated by Muhammad that "You have your rights upon your wives and they have their rights upon you. Your right is that they shall not allow anyone you dislike, to trample your bed and do not permit those whom you dislike to enter your home. Their right is that you should treat them well in the matter of food and clothing."^[19]

Conditions

Islamic marriages require acceptance, in Arabic: قبول‎‎ qubūl, of the groom, the bride^[20][21] and the consent of the custodian (wali) of the bride. The wali of the bride is normally a male relative of the bride, preferably her father. The guardian (wali) of the bride can only be a free Muslim.^[22] The bride is normally present at the signing of the marriage contract.

The Wali mujbir (Arabic: ولي مجبر‎‎) is a technical term of Islamic law which denotes the guardian of a bride. In traditional Islam, the literal definition of "wali", which means "custodian" or "protector", is used. In this context, it is meant that the silence of the bride is considered consent. In most schools of Islamic law, only the father or the paternal grandfather of the bride can be wali mujbir.^[22]

If the conditions are met and a mahr and contract are agreed upon, an Islamic marriage ceremony, or wedding, can take place. The marital contract is also often signed by the bride. The consent of the bride is mandatory. Hadith^[23] The Islamic marriage is then declared publicly, in Arabic: إعلان‎‎, aa'laan, by a responsible person after delivering a sermon to counsel and guide the couple. It is not required, though customary, that the person marrying the couple should be religiously qualified. The bridegroom can deliver the sermon himself in the presence of representatives of both sides if he is religiously educated, as the story goes about Imam Muhammad bin Ali around 829 AD and recently in Kashmir in 2013 AD by Muhammad Asif bin Ali more than eleven centuries later. It is typically followed by a celebratory reception in line with the couple's or local customs, which could either last a couple of hours or precede the wedding and conclude several days after the ceremony.

The Qur'an tells believers that even if they are poor they should marry to protect themselves from immorality^{[24][Quran 24:33]}. The Quran asserts that marriage is a legitimate way to satisfy one's sexual desire.^[25] Islam recognizes the value of sex and companionship and advocates marriage as the foundation for families and channeling the fulfillment of a base need. Marriage is highly valued and regarded as being half of one's faith, according to a saying of Muhammad. Whether marriage is obligatory or merely allowed has been explored by several scholars, and agreed that "If a person has the means to marry and has no fear of mistreating his wife or of committing the unlawful if he does marry, then marriage in his case is mustahabb (preferred)."^[26]

Prerequisites

The Qur'an outlines some conditions for a marriage to take place:^{[Quran 4:24]}

• A marriage should be conducted through a contract and a mandatory sum of wealth provided to the bride, which here refers to the mahr. Once a mahr has been ascertained with the realization that it is an obligation of a Muslim husband, the groom is required to pay it to the bride at the time of marriage unless he and his bride can mutually agree to delay the time of some of its payment. In 2003, Rubya Mehdi published an article in which the culture of mahr among Muslims was thoroughly reviewed. There is no concept of dowry^[27] as such in Islam, although mahr is often translated into English as dowry in the want of a more accurate word. A dowry as such is a payment to the groom from the bride's family, and is not an Islamic custom. Bride prices are also expressly prohibited.
• Another requisite of marriage is chastity. No fornicator has the right to marry a chaste partner except if the two purify themselves of this sin by sincere repentance.^[28][29]
• Marriage is permitted for a man with a chaste woman either Muslim or from the People of the Book (Arabic Ahl al Kitab, Jews, Sabians and Christians) but not to polytheists (or "idolaters": Yusufali translation or "idolatresses": Pickthal translation). For women, marriage to Jews, Sabians and Christians and to polytheists (Idolatry) (or "idolaters": Yusufali translation or "disbelievers": Pickthall translation) is prohibited; they are only allowed to marry Muslims.^[30][31] There is no express prohibitionin the Qur'an or elsewhere about a Muslim woman marrying a People of the Book. However, the vast majority of Muslim jurists argued that since express permission was given to men, by implication women must be prohibited from doing the same.^[32] The movement of Islamic jurists and imams that do not agree on this interpretation is growing.^[33]
• Spoken consent of the woman is only required if she is not a virgin and her wali is neither her father nor her paternal grandfather. But a virgin may not be married off without her permission. If she is too shy to express her opinion her silence will be considered as implicit agreement [Al Bukhari:6968]. The wali, who can force a bride against her outspoken will into marriage, is called wali mujbir, according to "The Encyclopaedia of Islam". If the woman was forced into a marriage, without the above-mentioned conditions, according to the Hanafi school of Islamic law the decision can be revoked, when the bride comes of age.^[34][35] Binti Khudham says that when she became a widow her father solemnized her marriage. She did not like the decision so she went to Muhammad, who gave her permission to revoke her marriage.^[36] Hence, forced marriages are against Islamic teachings if the woman is a virgin, and those forced into marriages before they have come of age have the right to contest them once they do.^[37]
• The importance of the wali is debated between the different schools of thought. To the Hanafi Sunnis, a male guardian is not required for the bride to become married, even if it is her first marriage. Therefore, the marriage contract is signed between the bride and the groom, not the groom and the wali. To the Hanbali, Shafi'i, and Maliki Sunni schools, a wali is required in order for a virginal woman to marry. In these schools, if a woman has been divorced, she becomes her own guardian and does not need a wali to sign a marriage contract.^[38]

Rights and obligations of spouses

According to Islam, both men and woman have rights over each other when they enter into a marriage contract^[39] with the husband serving as protector and supporter of the family most of the time, from his means.^{[Quran 4:34]} This guardianship has two aspects for both partners:

• The husband is financially responsible for the welfare and maintenance of his wife or wives and any children they produce, to include at a minimum, providing a home, food and clothing. In return, it is the duty of the wife to safeguard the husband's possessions and protect how wealth is spent. If the wife has wealth in her own capacity she is not obliged to spend it upon the husband or children, as she can own property and assets in her own right, so the husband has no right for her property and assets except by her will. A pre-marital agreement of the financial expectation from the husband is in the mahr, given by him to the wife for her exclusive use, which is included as part of his financial responsibility.

Several commentators have stated that the superiority of a husband over his wife is relative, and the obedience of the wife is also restrictive.^[40] The Quran advises men that if they are certain of a rebellious attitude by the woman, they should first admonish her, then refuse to share beds, and finally beat ("darab") her, according to Qur'an 4:34. (Today most Islamic scholars agree that it be without leaving a mark and not on the face). This refers to serious breaches of behaviour such as being promiscuous according to renowned 20th-century scholar Muhammad Hamidullah which is not expected from a dutiful wife, and not for simple disobedience to the husband. In explaining this, Ibn Abbas gives an example of striking with a toothstick.

Women are also reminded that in case the husband is not fulfilling his responsibilities, there is no stigma on them in seeking divorce.^{[Quran 4:128]} The Quran re-emphasizes that justice for the woman includes emotional support, and reminds men that there can be no taking back of the mahr or bridal gifts given to women. In unfortunate cases where the agreement was to postpone payment of the mahr, some husbands will bully their wives and insist on the return of what he gave her in order to agree to the dissolution of the marriage, this is un-Islamic and cruel. "Where the husband has been abusive or neglectful of his responsibilities, he does not have the right to take his wife’s property in exchange for her freedom from him. Unfortunately most couples refuse to go to the judge and binding arbitration for these issues even though the Quran says:

"And if you fear a breach between them, then appoint an arbiter from his folk and an arbiter from her folk. If they (the arbiters) desire reconciliation, Allah will affect it between them. Surely, Allah is All-Knowing, All-Aware." ^{[Quran 4:35]}

Mahr, dowry and gifts

Mahr (donatio propter nuptias^[41]) differs from a marriage dowry or gift in Western countries, in that it is mandatory for a Muslim marriage and is paid by the groom to the bride. The amount of money or possessions of the mahr is paid by the groom to the bride at the time of marriage for her exclusive use.^[42] The mahr does not have to be money, but it must have monetary value. Therefore "it cannot be love, honesty, being faithful, etc., which are anyway traits of righteous people."^[43] If the marriage contract fails to contain an exact, specified mahr, the husband must still pay the wife a judicially determined sum.^[44]

Mahr is mentioned several times in the Quran and Hadith, and there is no maximum limit to the amount the groom may pay as mahr,^[45] but at a minimum it is an amount that would be sufficient for the woman to be able to survive independently if her husband dies or they divorce.

The term dowry (Latin, dos dotis) is inaccurate as strictly speaking it is the money, goods, or estate that a woman brings forth to the marriage, usually provided by her parents or family. In Islam, bride prices and dowries are forbidden. Any assets brought into the union by the wife may only be accepted by the husband after the mahr has been paid by him to her.

With prior mutual agreement, the mahr may also be paid in parts to the bride with an amount given by the groom to the bride at the signing of the marriage contract, also called a mu'qadamm (in Arabic: ‎‎; مقدم, literally translated as forepart presented), and the later portion postponed to a date during the marriage, also called a mu'akhaar (in Arabic: ‎‎ مؤخر, literally translated as delayed). Various Romanized transliterations of mu'qadamm and mu'akhaar are accepted. Such an agreement does not make the full amount of the mahr any less legally required, nor is the husband's obligation to fulfill the agreement waived or lessened while he fulfills his obligations to reasonably house, feed, or cloth the wife (and any children produced from the union) during the marriage.^[46]

Quran [4:4] "You shall give the women their due dowries, equitably."^[43]

Quran [5:5] "Today, all good food is made lawful for you. The food of the people of the scripture is lawful for you. Also, you may marry the chaste women among the believers, as well as the chaste women among the followers of previous scripture, provided you pay them their due dowries. You shall maintain chastity, not committing adultery, nor taking secret lovers. Anyone who rejects faith, all his work will be in vain, and in the Hereafter he will be with the losers."^[43]

Quran [60:10] "O you who believe, when believing women (abandon the enemy and) ask for asylum with you, you shall test them. GOD is fully aware of their belief. Once you establish that they are believers, you shall not return them to the disbelievers. They are not lawful to remain married to them, nor shall the disbelievers be allowed to marry them. Give back the dowries that the disbelievers have paid. You commit no error by marrying them, so long as you pay them their due dowries. Do not keep disbelieving wives (if they wish to join the enemy). You may ask them for the dowry you had paid, and they may ask for what they paid. This is GOD's rule; He rules among you. GOD is Omniscient, Most Wise."^[43]

Marriage contracts and forced/un-consented marriages

The marriage contract is concluded between the wali, or guardian, of the bride and bridegroom, not between bridegroom and bride . The wali of the bride can only be a free Muslim. The wali of the bride is normally a male relative of the bride, preferably her father. If the bride is a virgin, the wali mujbir, that is her father or paternal grandfather, can not force the bride into the marriage against her proclaimed will; according to most scholars. According to Khomeini^[47] and Ali al-Sistani,^[48] both Shia scholars (both having the degrees mujtahid and marja'), and also almost all contemporary scholars, the marriage is invalid without bride's free consent and no obligation can make marriage official and legal.^{[49][50][51][52][53][54]}

The notable example to this is the Hanafi school (the largest of the four classical schools of Islamic thought), which holds that a bride's permission is required if she has reached puberty. They also hold that if a bride was forced into marriage before reaching puberty; then upon attaining puberty, she has the option to nullify the marriage if she wishes. A wali other than the father or the paternal grandfather of the bride, then called wali mukhtar, needs the consent of the bride according to the majority of scholars. If the bride is silent about the issue, i.e. her wali expressed his intention to marry her off to a certain man, and she did not object to it; then consent is assumed via her lack of objection.^[55]

For all schools of Islamic jurisprudence the systematization of their school is the guideline for their decision, not single hadiths, that liberal Muslims often cite . Two of these hadiths are the following:

Abu Hurayrah reported that the Prophet said: "A non-virgin woman may not be married without her command, and a virgin may not be married without her permission; and it is permission enough for her is to remain silent (because of her natural shyness)." [Al-Bukhari:6455, Muslim & Others].

It is reported in a hadith that A'ishah related that she asked the Prophet : "In the case of a young girl whose parents marry her off, should her permission be sought or not?" He replied: "Yes, she must give her permission." She then said: "But a virgin would be shy, O Messenger of Allaah!" He replied: "Her silence is [considered as] her permission." [Al-Bukhari, Muslim, & Others]^[56] ^

Source: 'Al-Masaa’il Al-Maardeeniyyah' by: Imaam Ibn Taymiyyah.

International human rights responses

Children in some Muslim sub-cultures who defy their parents' wishes may in practice, suffer penalties supported by the community. International awareness, campaigns and organizations such as the U.K.'s Forced Marriage Unit have recognized the severity of this human rights issue and their rescue and support services extend beyond the borders of U.K. territories. Some countries have instituted prison time for parents who try to coerce their children into such unions.^[57]

Divorce

Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The theory and practice of divorce in the Islamic world have varied according to time and place.^[58] Historically, the rules of divorce were governed by sharia, as interpreted by traditional Islamic jurisprudence, and they differed depending on the legal school.^[59] Historical practice sometimes diverged from legal theory.^[59] In modern times, as personal status (family) laws were codified, they generally remained "within the orbit of Islamic law", but control over the norms of divorce shifted from traditional jurists to the state.^[58]

Relationships which prohibit marriage

In certain sections of the pre-Islamic Arab tradition, the son could inherit his deceased father's other wives (i.e. not his own mother) as a wife. The Qur'an prohibited this practice.

Marriage between people related in some way is subject to prohibitions based on three kinds of relationship.^[60] The following prohibitions are given from the male perspective for brevity; the analogous counterparts apply from the female perspective; e.g., for "aunt" read "uncle".

Prohibited marriages

Quran States

O ye who believe! It is not lawful for you to inherit women forcefully

(Al-Quran 4:19)

And don't marry women to whom you father has ever married except what has passed. Indeed it was lewdness, disbelief, and a bad way. Prohibited to you are your mothers, your daughters, your sisters, your paternal aunts, your maternal aunts, brother's daughters, sister's daughters, your mothers that are those who suckled you, your sisters from suckling, mothers of your women, your step-daughters in your guardianship from your women you have entered upon but if you have not entered upon them then there is no blame on you, women of your sons from your loins, and that addition of two sisters (in a wedlock) except what has passed. Surely God is All-forgiving All-merciful.

(Al-Quran 4:22-23)

Prohibitions based on consanguinity

Seven relations are prohibited because of consanguinity i.e. kinship or relationship by blood, viz. mothers, daughters, sisters, paternal aunts, maternal aunts and nieces (whether sister's or brother's daughters). In this case, no distinction is made between full and half relations, both being equally prohibited. Distinction is however made with step relations i.e. where both the biological mother and father of a couple wishing to marry are separate individuals for both parties, in which case it is permitted. The word "mother" also connotes the "father’s mother" and "mother’s mother" all the way up. Likewise the word "daughter" also includes the "son’s daughter" and "daughter’s daughter" all the way down. The sister of the maternal grandfather and of the paternal grandmother (great aunts) are also included on equal basis in the application of the directive.^[61]

Prohibitions based on suckling

Marriage to what are sometimes described as foster relations in English are not permitted, although the concept of "fosterage" is not the same as is implied by the English word. The relationship is that formed by suckling from the breast of a wet nurse. This is what is meant by "fosterage" in Islam in the quotation below. In Islam, the infant is regarded as having the same degree of affinity to the wet nurse as in consanguinity, so when the child grows up marriage is prohibited to those related to the wet nurse by the same degree as if to the child's own mother.

Hadith reports confirm that fosterage does not happen by a chance suckling, it refers to the first two years of a child's life before it is weaned^{[62][63][64][65]} Islahi writes that "this relationship is established only with the full intent of those involved. It only comes into being after it is planned and is well thought of".^[66]

Prohibitions based on marriage

The daughter-in-law is prohibited for the father, and the mother-in-law, the wife’s daughter, the wife’s sister and daughters of the wife's siblings (nieces), the maternal and paternal aunts of the wife are all prohibited for the husband. However, these are conditional prohibitions:

1. Only the daughter of that wife is prohibited with whom one has had conjugal contact.
2. Only the daughter-in-law of a real son is prohibited.
3. The sister of a wife, her maternal and paternal aunts and her brother's or sister's daughters (nieces) are only prohibited if the wife is in wedlock with the husband.^[67]

Prohibition based on religion

Quran states "Do not marry (your girls) to unbelievers until they believe: A man slave who believes is better than an unbeliever, even though he allures you. Unbelievers do (but) beckon you to the Fire. But God beckons by His Grace to the Garden (of bliss) and forgiveness, and makes His Signs clear to mankind: That they may celebrate His praise." (Al-Quran 2:221)

O ye who believe! When there come to you believing women refugees, examine (and test) them: God knows best as to their Faith: if ye ascertain that they are Believers, then send them not back to the Unbelievers. They are not lawful wives for the Unbelievers, nor are the Unbelievers lawful husbands for them. (Al-Quran 60:10)

never will Allah give the disbelievers over the believers a way [to overcome them].(Al-Quran 4:141)

it is not lawful by Allah Almighty for Muslim women to marry non Muslim men of any faith. (Quran 2:221 60:10 4:141)
but It is lawful for Muslim men to marry only Jewish or Christian women. (Quran 5:5)

Prohibited marriage partners

• Marriage between people of the same sex
• Marriage between a man and his sister, half-sister, foster sister, mother, stepmother, foster mother, wife's mother, aunt, grandmother, great aunt, great-grandmother, etc.
• Marriage between a woman and her father, stepfather, husband's biological father, uncle, grandfather, great uncle, great-grandfather, etc.
• Marriage of a man with women who are sisters or stepsisters or foster sisters of each other (except if marrying one who was separated from her husband by divorce or death)

Note: Marriage between cousins is not prohibited.

Polygamy

According to sharia law, Muslims are allowed to practice polygyny. According to the Qur'an, a man may have up to four legal wives at any one time.

The husband is required to treat all wives equally. If a man fears that he will not be able to meet these conditions then he is not allowed more than one wife.

"If he fears that he shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if he fear that he shall not be able to deal justly (with them), then only one, or that which your right hands possess. That will be more suitable, to prevent you from doing injustice." (Qur'an 4:3) Yusuf Ali translation.

A bride-to-be may include terms in her marriage contract that require monogamy for her husband or require her consent before he marries another wife.

Polyandry is forbidden. A woman cannot have more than one husband at a time.

Sororal polygyny prohibited

Sororal polygyny is forbidden. A man cannot marry:

• two sisters
• a woman and a descendant of her sibling
• a woman and sibling of her ancestor

Iddah

A woman cannot marry after divorce or death of her husband for a certain period. This period is known as iddah.

• A divorcee cannot marry for three menstrual cycles after divorce
• A divorcee who has no courses cannot marry for three months
• A pregnant woman cannot marry until laying her burden
• A widow cannot remarry for four months and ten days

See also

• Beena marriage, a pre-Islamic form of marriage.
• Divorce in Islam, unilateral divorce at the behest of the husband.
• Iddah, a period following divorce or the death of a husband during which a woman may not marry.
• Islamic adoptional jurisprudence
• Islamic marital jurisprudence.
• Islamic marital practices.
• Islamic sexual jurisprudence.
• Kafa'ah, compatibility of prospective spouses.
• Khula, "extraction"; a dissolution of marriage at behest of wife.
• Ma malakat aymanukum
• Mahr, mandatory payment paid by the groom to the bride at the time of marriage; a concept overlapping with dowry.
• Minangkabau marriage, marriage practices of West Sumatra, Indonesia.
• Nafaqah, "expense"; financial obligations of the husband.
• Nikah Halala, the marriage of a woman to a second man after a triple talaq (divorce).
• Nikah Ijtimah, a pre-Islamic form of marriage.
• Nikah Misyar, a marriage practice in Sunni Islam.
• Nikah mut‘ah or Zawāj mutʻah, "pleasure marriage"; a fixed-term marriage in Shia Islam, also known as sigeh or sigheh in Iran.
• Nikah 'urfi, a "customary" Sunni Muslim marriage contract.
• Polygamy in Islam.
• Rada (fiqh), prohibited marriage due to fosterage (Islamic) or suckling.
• Walima, a marriage banquet offered by the groom the day after the signing of the marriage contract.
• Wives of Muhammad.
• Women in Islam.

References

External links

• (PDF) E-Book: Marriage - A form of Ibada
• (in English) Fiqh of the family on IslamQA.info - A subject-wise complete guideline for Islamic marriage and marital life
• (in English) The marriage process in Islam on ICNA website