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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:
- His mother
- 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)
- His grandmother (including father's and mother's
mothers and all preceding mothers e.g. great
grandmothers )
- His daughter (including granddaughters and beyond )
- His sister (whether full, consanguine or uterine)
- His father's sisters (including paternal grandfather's
sisters)
- His mother's sisters (including maternal
grandmother's sisters)
- His brother's daughters
- His foster mother
- His foster mother's sister
- His sister's daughter
- His foster sister
- His wife's mother
- 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)
- 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:
- 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.
- A man must not marry a woman who is already
married. However this impediment is removed
immediately if the marriage is dissolved either by the
death of her former husband, or by divorce followed by
completion of the period of 'iddah (retreat).
- 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.
- 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. |
