An Introduction
Nature has so arranged that man and woman are attracted towards each other. This natural attraction binds them together and leads them to live a common life and form a family. This natural tendency like any other instinct, should be guided to the right direction so that it may be utilised in the service of humanity. This instinct develops into a sort of deep spiritual and sentimental, social and economic relationship. This is what we call Matrimony.
In the wake of keen desire to establish matrimony between themselves, man and woman enter into contract known as Marriage. A contract has great importance in human life, for it unites two people in different ways. It lays the foundation of the life of human and deeply influences its body, life and thought and future actions. That is why a marriage contract is regarded as a sacred by various nations and enough attention has been paid in different legal systems to the questions connected with it.
Importance of Marriage – An Islamic Point of View
Islam has also attached great importance to the question of marriage in its social system. In the Holy Qur’an and the sayings of the 14 Ma’sumeen (A) we find that marriage has been greatly encouraged. The Holy Prophet (S) says , ” No institution of Islam is liked by Allah more than that of a Marriage.”
Basic Object of Marriage
Securing comfortable atmosphere for husband and wife, with regard to this the Holy Qur’an says:
“One of His signs is that He created for you spouses of your own species, so that you may find comfort with them, and He put mutual love and affection in your hearts. Surely in this there are lessons for the thinking people.” (ar-Room, 30:21)
Man has got a protective role whereas the woman an emotional role.
Man and woman have an instinct to administer and rule. Thus, when they marry, the house gives them the role of administration and therefore both are brought in a family system so that they can rule and administer; and if house organisation is good and successful, tomorrow ruling a nation will be successful. Thus, Islam gives them an opportunity to administer.
A girl since young age has got an instinct of motherhood and therefore when she is young will often pretend to be a mummy. A woman feels satisfied when she is a mother. Islam fulfils her desires of becoming a mother.
Producing a new generation and bringing up healthy, faithful and virtuous children. In regard to this the Holy Qur’an says:
“…. He has given you partners from among yourselves, and similarly made the cattle and also males and females. This is how He multiplies you. Nothing can be compared to Him….” (ash-Shura, 42 : 11)
The Holy Prophet (S) has said:
“Marry each other and produce new offspring so that your numbers may increase.”
Generally if there is no attraction between man and woman, both will be forced to carry out the duties, bring children, etc. It is due to natural love that the mother brings up her children and father to take care of them. So we see that what begins as a sexual relationship is in fact far above mere sexual enjoyment – it is a means to bring up a good and pure society; build up a small unit in the society – one good family plus another good family build up a good society. If these families are not good, naturally the society formed is also not good.
Selection of a Spouse
In the last lesson, we learnt that it will take two good individuals to raise their offspring in a good environment and raise them as good practising Muslims. And therefore the selection of the ‘right person’ is very important. Often it takes quite a while to enquire about a spouse, his/her family background, etc. but it is, most of the time, an important process which results in a successful Marriage. So this ‘homework’ is essential.
Orders regarding Marriage
In Islamic Law TWO kinds of marriage are permissible by which a woman becomes lawful for a man. These are :
1. Permanent Marriage (‘Aqd ad-da’im’)
No time-limit is mentioned and it is forever unless terminated by divorce. Aqd means contract. A contract is made between a man and a woman to become life-partners and to fulfil all the responsibilities and enjoy those rights which the sharia has laid down for them.
2. Fixed-time Marriage (‘Mut’a’)
The length and period of the marriage is specified e.g. a day, a month, a year or more.
IMPORTANT LAWS
In a marriage, be it permanent or temporary, a contract (or a marriage formula) must be read. This marriage formula is called Seegha. Therefore, simply for the man and woman to be willing is NOT enough and the Aqd (contract) must be recited by the man and woman themselves, or by someone appointed by them (their Wakeel’ or agent) to recite it for them.
In order to recite the Aqd (contract) of permanent or temporary marriage, one person can become Wakeel of both the parties (and a man can become the Wakeel of the woman and also recite the Aqd himself), but it is Ehtiyate Wajib for two people to recite the contract, if possible.
Aqd means contract. In permanent marriage, a solemn contract is made between a man and a woman to become life-partners and to fulfil all the responsibilities and enjoy those rights which the Shariah has laid down for them. There are preconditions for the validity of the contract:
It must not take place during the Ihram period of the hajj.
The man and woman must give their free permission to marry each other, and the marriage is invalid if their permission is obtained under compulsion. If it is known that a woman is satisfied with the marriage (even though she does not openly state her satisfaction) the marriage contract is still valid. If the marriage is performed without the permission of the woman or the man (very unlikely in this day and age), but later that permission is given by the individuals concerned, the contract is valid.
A woman who is marrying for the first time can marry of her own accord, but a woman who is a virgin must, as an Obligatory Precaution (Ehtiyate-Wajib), obtain permission of her father or paternal grandfather.
The man must give, or promise to give, an amount of money to the wife as a Dowry (Mahr). The Mahr is the Wajib wedding-gift which the bridegroom undertakes to give the bride. It is a token of friendship, a mark of honour for the woman, and security for her. It becomes the property of the wife and she has full rights to dispose of it as she likes. Anything with a value can be given as a Mahr, and there is no specified amount. It should not be so high as to be beyond the financial status of the husband; it may be given at, or immediately after, the marriage, or at any time later on; it may be paid in one or several instalments.
The Holy Qur’an says:
“….. The men shall have benefit of what they earn and the women shall have the benefit of what they (men) earn.” (an-Nisa, 4:430)
If the preconditions above are satisfied, we can look at the actual recitations and the conditions that go with it.
Conditions of the Marriage Contract (Aqd)
That it is recited in valid Arabic, and if the man and woman themselves cannot recite the correct Arabic, then, assuming it is possible, it is Ehtiyat-e-Wajib to appoint for themselves as Wakeel who can recite the Arabic properly. And if this also is not possible, they can recite the contract themselves other than in Arabic, but words must be recited that convey the meaning of the Arabic.
That whoever recites the contract has the correct intention. Naturally, if the man and woman recite themselves then the words of the contract will vary compared to if recited by Wakeels (This should become clear later)
The person reciting the contract is adult and sane.
If the contract is recited other than by the man and woman themselves, i.e. if a Wakeel represents one or both parties, then the names of the man and woman are specified.
That the man and woman approve (agree) to the marriage.
Contracting a Permanent Marriage
The permanent marriage (‘aqd ad da’im) consists of the recital of the formula (Seegha) which contain the consent of the bride and the acceptance of the bridegroom. For the marriage to be valid the mere consent of the two parties is not enough, the marriage contract must be performed. The conditions stated in the previous page are relevant here too.
One who is reciting the ‘aqd formula should be sane, adult & practising Muslim. The reciter should have the solemn intention of reciting it for the marriage, and the bride and bridegroom must be specified. There may be a representative for each of the bride and groom, or one person can recite the formula as the representative of both bride and bridegroom, and the representative can be either male or female, but it is recommended that the ‘aqd formula should be performed by two righteous persons, one representing the bride and the other the bridegroom.
You will now be provided with the actual recitations (loose sheets – please obtain from teacher). There is a difference in the recitations depending on whether the Permanent Marriage is being performed with two representatives or with no representatives. Please go through it thoroughly and bear the two different situations in mind. A Khutba, which is normally recited before the marriage formula, is also provided.
Fixed-term Marriage (Mut’a)
In this type of marriage, a fixed period for the marriage is specified. There is no specific time-limit for this type of marriage. A validly contracted Mut’a need not include sexual gratification; indeed a woman can make it a condition of the contract that no sexual relationship of any type will take place. Mut’a is often contracted when the object is to establish a Mahram relationship.
Note :
Although the recitation for this type of marriage is not given, it is suffice to say that it is different from the recitation of a Permanent marriage.
Those whom it is Forbidden to Marry (Mahram)
In Islam it is forbidden to marry very near blood or foster relations, near blood relations of one’s spouse, and those who become forbidden as a punishment for unlawful sexual relations.
Mahram for a Male:
Mother, Grandmothers, Daughter, Granddaughters, Sister, Nieces, Paternal and Maternal aunts (Fui and Masi), Wife’s mother, Son’s wife, Father’s wife, Wife’s grandmothers.
Mahram for a Female:
Father, Grandfathers, Son, Grandsons, Brother, Nephews, Paternal and Maternal uncles (Chacha and Mama), Husband’s father, Daughter’s husband, Mother’s husband, Husband’s grandfathers.
The difference between Mahram and Na-Mahram must be clearly understood. From this you will see that cousins of the opposite sex are Na-Mahram!
Laws of Looking at the Opposite Sex
It is Haraam for men to look at the bodies of Na-mahram women and girls (even those who are not yet nine years old but who understand good and bad). And the same applies to looking at their hair, whether looking for pleasure or not. Looking at their hands and faces for pleasure is Haraam. Even without the intention of pleasure, to look fully without necessity is forbidden.
For women to look at the bodies of Na-mahram men is also Haraam. Women must cover their bodies and hair from non-mahram men and the obligatory precaution (Ehtiyate Wajib) is that they even cover themselves from boys who are not yet mature but who understand the difference between good and bad.
TALAQ – (Divorce)
In certain circumstances, divorce becomes the only course that a couple can take. Before this stage is reached every attempt must be made by the couple, their family and friends to try to reconcile their differences. According to Hadith, Talaq is the one allowable act that is displeasing to Allah.
In Islamic Law a married man automatically has the right to divorce his wife, but a woman only has that right if she makes it a precondition at the time of making the marriage contract. In certain cases, when it becomes evident that a husband is not fulfilling his responsibilities and is treating his wife unjustly, she can get a divorce with or without the husband’s consent.
If a husband divorces his wife, there are preconditions for the validity of the divorce. The man must be sane and adult, and should not be forced by anyone else to divorce his wife. He must pronounce the divorce with the intention of divorcing; thus, if he pronounces the formula in a jokeful manner, it will not be an effective divorce. The guardian of an insane person can pronounce a divorce on his behalf.
Another important condition is that at the time of divorce the woman should not be in a state Haidh (menstruation) or Nifas. Any divorced pronounced during this period is void.
Just like the process of Marriage, there are preconditions before a Divorce can be conducted and announced :
1. The formula of divorce must be uttered in correct Arabic.
2. The word Talaq (divorce) must be said.
3. Two good and righteous witnesses must be present for the divorce to be valid.
Iddah:
Iddah is the prescribed period of waiting after the dissolution (conduction of divorce) of a marriage during which a widow or divorced woman may not arrange another fixed-term or permanent marriage. Its purpose is to :
Leave no doubt about the paternity of a child born after the dissolution of the marriage.
It also gives the man an opportunity to change his decision if it was taken in haste or under stress.
For a widow, the Iddah is four months and ten days. If she is pregnant she should observe an Iddah equal to the time between the death of her husband and the birth of a child, or four months and ten days, whichever is the longer.
The Iddah for a woman whose fixed-term marriage has terminated due to the end of the specified time or because the husband has waived the rest of the time, is two menstrual periods. Thereafter, as soon as she gets her third period her Iddah comes to an end and she can marry again. If she has no menstruation, she should wait for 45 days. If she is pregnant, Iddah lasts until the child is born. The same rules are relevant of the Iddah for a divorced woman (from a permanent marriage).
It is important to realise that most kinds of divorce are reversible, if the man and woman settle their differences and return to each other within the Iddah. No Nikah would be necessary if that happened. During the Iddah the woman continues to live in her husband’s house and is supported by him financially. She also has to obey him and not leave the house without his permission. However, the husband and wife cannot have a sexual relationship, unless the husband decides to revoke (cancel) the divorce. If the man informs the woman of his intention to revoke the divorce, or makes it clear by gesture that he has done so, they will become husband and wife again.
Note:
There is a specific Divorce formula (not given in these notes) which is recited on the occasion (when the permanent marriage is terminated). The time of the Iddah of divorce commences when the pronouncing of the formula of divorce is completed.
Also, a fixed-time marriage is cancelled automatically once the specified period is over and therefore recitation of the Divorce formula is not necessary but Iddah has to be observed by the woman (as explained on the previous page).