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Islamic marital jurisprudence

(Redirected from Islamic marritial jurisprudence)

In Islamic law (sharia), marriage (nikāḥ نکاح) is a legal and social contract between two individuals.[1] Marriage is an act of Islam[2] and is strongly recommended.[1][3] Polygyny is permitted in Islam under some conditions, but polyandry is forbidden.[4]

Types of marriage

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Nikāḥ

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A Muslim bride signing the nikkah nama or marriage certificate, 2006, Pakistan.
Main article: Marriage in Islam

The Nikāḥ (Arabic: نكاح, literally, "to collect and bind together")[5] is the first—and most common—form of marriage for Muslims. It is described in the Qur'an in Surah 4:4.[6]

Regulations:

  • While intended to be a permanent state, it can be terminated by the husband engaging in the Talaq process or the wife seeking a Khula.
  • The couple inherit from each other.
  • A legal contract is signed when entering the marriage. However it is not a requirement that the contract be in writing. It may be oral, especially amongst illiterates; and if an agreed end-date is specified in the nikāḥ contract:
    • In Sunni jurisprudence, the contract is invalid.
    • In Shia jurisprudence, the contract defines a temporary marriage, nikāḥ mut'ah.

Requirement of witnesses:

  • two witnesses from both sides[7]

Permission from Wali:[8]

  • Sunni: Compulsory (Maliki, Shafi'i, Hanbali) or Strongly recommended (Hanafi)
  • Shia: Depending on the scholar, it is either obligatory or obligatory based on precaution.

Nikah Halala

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Main article: Nikah Halala

Nikah halala is also known as tahleel marriage[9] and is a practice in which a woman, after being divorced by a final divorce, marries another man, consummates the marriage, and divorces immediately for the sole purpose of remarrying her former husband. It is prohibited in Islamic law.[10]

Nikāḥ Ijtimaa

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Main article: Nikah Ijtimah

Nikah ijtimaa, or combined marriage, is a form of marriage practiced in pre-Islamic Arabia, in which multiple men would have intercourse with a woman, and if she bore a child, she would choose one of the men to be the father of the child.[11] This form of marriage was outlawed by Islam, and traditional jurisprudence requires that any man and woman be married prior to sexual intercourse.[12]

Nikah Istibdaa

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Nikah Istibdaa is a marriage ( نکاح استبضاع) in which a husband would send his wife to another person, usually of noble lineage, to have sexual relations with him. The husband would refrain from sexual relations with his wife until she became pregnant by the other man. Afterwards, the man would claim paternity of the conceived child. This was done to get a child of noble breed. It was eradicated by Islam.[13]

Nikāḥ Misyar

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Main article: Nikah Misyar

Nikāḥ Misyaar is a nikāḥ for Sunnis carried out via the normal contractual procedure, with the specificity that the husband and wife give up several rights by their own free will, such as living together, equal division of nights between wives in cases of polygamy, the wife's rights to housing, and maintenance money ("nafaqa"), and the husband's right of homekeeping, and access etc.[14] The difference between this and Mut'ah is that Mut'ah has the condition of a definite time period and a separation date prior to a marriage contract. Sunnah scholars have said it is permissible to marry a woman with the intention of getting divorced, if the wife is not informed or expecting a divorce during a marriage contract.[15]

Nikāḥ ‘urfī

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Nikāḥ Mut‘ah

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Main article: Nikah Mut‘ah

Nikah mut'ah[16][17] Arabic: نكاح المتعة, romanized: nikāḥ al-mutʿah, literally "pleasure marriage"; temporary marriage[18]: 1045  or sigheh[19] (Persian: صیغه ، ازدواج موقت) is a private and verbal temporary marriage contract that is practiced in Twelver Shia Islam[20] in which the duration of the marriage and the mahr must be specified and agreed upon in advance.[16][21][22]: 242 [23]: 47–53  It is a private contract made in a verbal or written format. A declaration of the intent to marry and an acceptance of the terms are required as in other forms of marriage in Islam.[24]

According to Shia Muslims, Muhammad sanctioned nikah mut'ah (fixed-term marriage, called muta'a in Iraq and sigheh in Iran), which has instead been used as a legitimizing cover for sex workers in a culture where prostitution is otherwise forbidden. Some Western writers have argued that mut'ah approximates prostitution.[25]

Some sources say the Nikah mut'ah has no prescribed minimum or maximum duration,[26] but others, such as The Oxford Dictionary of Islam, indicate the minimum duration of the marriage is debatable and durations of at least three days, three months or one year have been suggested.[16]

Some Muslims and Western scholars have stated that both Nikah mut'ah[27] and Nikah misyar[28] are Islamically void attempts to religiously sanction prostitution which is otherwise forbidden.[29] The Zaidi Shia reject Mutah marriage.[citation needed]

Nikāḥ Shighār

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Nikāḥ Shighā is marriage (نکاح شغار) in which two men would exchange their daughters, sisters or other close women for marriage without paying mahr. It was prohibited by Muhammad.[30]

Interfaith marriage

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Main article: Interfaith marriage in Islam

Interfaith marriages are recognized between Muslims and Non-Muslim People of the Book (usually enumerated as Jews, Christians, and Sabians).[31] Historically, in Islamic culture and traditional Islamic law Muslim women have been forbidden from marrying Christian or Jewish men, whereas Muslim men have been permitted to marry Christian or Jewish women.[32][33]

Although historically Sunni Islam prohibited Muslim women to marry Non-Muslim men in interfaith marriages, in various parts of the world interfaith marriages between Muslim women and Non-Muslim men take place at substantial rates, contravening the traditional Sunni understanding of ijma.[33] For example, in the United States, about 10% of Muslim women are married to Non-Muslim men.[34] The tradition of reformist and progressive Islam does permit marriage between Muslim women and Non-Muslim men;[33] Islamic scholars opining this view include Hassan Al-Turabi, and some others.[35]

Restrictions on marriage

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Polygyny

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Main article: Polygyny in Islam

Muslim men are allowed to practise polygyny, that is, they can have more than one wife at the same time, up to four, per Sura 4 Verse 3.

Polyandry, the practice of a woman having more than one husband, by contrast, is not permitted. One of the main reasons for this would be the potential questioning of paternal lineage.

Permissible age

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Sahih Muslim permits marriage once a person reaches sexual maturity (i.e.: menstruation, voice changing, wet dreams) (baligh).[citation needed] Sexual maturity in Sharia law is typically understood to mean puberty.[36] At the same time, intercourse is forbidden until they are able to physically bear it.[37]

Other religions

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Main articles: Interfaith marriage in Islam and Marital conversion § Islam

Traditionally, Muslim jurists hold that Muslim women may only enter into marriage with Muslim men. The Qur'an explicitly allows Muslim men to marry chaste women of the People of the Book, a term which includes Jews and Christians.[38][39]

Arranged and forced marriages

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An engagement may be arranged between families for their children, but Islamic requirements for a legal marriage include the requirement that both parties, bride, groom and guardian for the bride (wali), give their legal consent. A marriage without the consent of the bride or performed under coercion is illegal according to the majority of scholars.

If a girl has not attained the age of puberty, the vast majority of scholars hold that she cannot be married; and many stipulate that it must be in her best interest in order to be considered a valid marriage. There is some dispute as to whether or not an under-age bride can leave her family's custody and be transferred to her husband's custody, if she has not yet reached puberty. Some evidence supporting both sides can be seen in the following narrations from Muhammad:

Sahih Bukhari Volume 7, Book 62, Number 65 Narrated 'Aisha: that the Prophet married her when she was six years old and he consummated his marriage when she was nine years old. Hisham said: I have been informed that 'Aisha remained with the Prophet for nine years (i.e. till his death).

Sahih Bukhari 7.18 Narrated 'Ursa: The Prophet asked Abu Bakr for 'Aisha's hand in marriage. Abu Bakr said "But I am your brother." The Prophet said, "You are my brother in Allah's religion and His Book, but she (Aisha) is lawful for me to marry."

However, evidence from other Islamic sources seems to suggest that this is not something allowed for all Muslims; rather specifically for Muhammad. The evidence for this view is as follows:

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 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 once 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]

It appears that the permission of an under-age bride is indeed necessary for her marriage to be considered valid; the above narrations seem to clearly make the approval of the bride a condition for a valid marriage contract.

Fornicators

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Islam does not give fornicatorous men the right to marry a chaste woman, nor may a fornicatorous woman marry a chaste man, except if the matter has not gone to court and the two purify themselves of this sin by sincere repentance.[40][41]

Women of purity are for men of purity, and men of purity are for women of purity

— Quran 24:26

Other

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A woman or man may propose marriage directly or through an intermediary (matchmaker).

Homosexual marriage between Muslims is not recognized within Islamic law, based on explicit verses of the Qur'an and the traditional view of homosexual practices as illicit.

Wedding rings were not widespread across Muslim cultures in antiquity; however, many Muslims today have adopted the tradition of wearing a wedding band alongside other practices originated from European tradition.

Mahr

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Main article: Mahr

Mahr is a mandatory gift given by the groom to the bride. Unlike a bride price, however, it is given directly to the bride and not to her father. Although the gift is often money, it can be anything agreed upon by bride and groom such as a house or viable business that is put in her name and can be run and owned entirely by her if she chooses.

Islamic marriage contract

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Main article: Islamic marriage contract

A Muslim marriage is not a sacrament, but a simple, legal agreement in which either partner is free to include conditions. These conditions are stipulated in a written contract. Violating any of the conditions stipulated in this contract is legal grounds for a partner seeking divorce. The first part of the Nikah, "marriage ceremony", is the signing of the marriage contract itself.

Various traditions may differ in how Nikah is performed because different groups accept different texts as authoritative. Therefore, Sunnis will likely accept the hadith of Muhammad al-Bukhari, while Shia will have their own collections, for example Furu al-Kafi, thus producing different procedures. This contract requires the consent of both parties. There is a tradition, outside of the religion, in some Muslim countries to pre-arrange a marriage for young children. However, the marriage still requires consent for the wedding to legally take place.

Divorce is not forbidden as a last resort, but the dissolution of the contract Talaq, is often described as the most disliked of permissible things in Islam and should be used as a last resort.

Walima

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Main article: Walima

The Walima is a dinner given by the groom's side of the family to celebrate the welcoming of the bride to the family. It is a strong sunnah (the repetition of an action of Muhammad) and it is recommended to be held the earliest possible day after the Nikah.

Behavior within marriage

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Spousal rights and obligations

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Main article: Rights and obligations of spouses in Islam

Islam advocates a role-based relationship between husband and wife.

Abd Allah ibn Umar narrated:

The Prophet said, "All of you are guardians and are responsible for your wards. The ruler is a guardian and the man is a guardian of his family; the lady is a guardian and is responsible for her husband's house and his offspring; and so all of you are guardians and are responsible for your wards."

— Sahih al-Bukhari: Volume 7, Book 62, Number 128

It puts the main responsibility of earning over the husband. Both are obliged to fulfill the other's sexual needs. Both are obliged to treat each other with kindness.

Separate accommodation for wife

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The wife has the right to live in separate accommodation with her husband and children, if she does not want to share it with anyone like her in-law or relatives. This is the view of most of the Hanafi, Shaafa'i and Hanbali fuqaha. She also has the right to refuse to live with her husband's father, mother and siblings.

Narrated Abdullah bin Umar: That he heard Allah's Apostle saying, "Everyone of you is a guardian and is responsible for his charge; the ruler is a guardian and is responsible for his subjects; the man is a guardian in his family and responsible for his charges; a woman is a guardian of her husband's house and responsible for her charges; and the servant is a guardian of his master's property and is responsible for his charge." I definitely heard the above from the Prophet and think that the Prophet also said, "A man is a guardian of his father's property and responsible for his charges; so everyone of you is a guardian and responsible for his charges." [Sahih Bukhari]

This indicates that a wife is responsible for the house of her husband. Also that a man should be the guardian of his family, i.e., after his marriage he moves out of his father's house, and runs his own family affairs and is guardian of his family. In a joint family, typically the head is either the father of the husband, or mother of the husband. This also indicates that a husband should look after his parents' house, as "a man is a guardian of his father's property". So the wife should not object to her husband when he is looking after affairs of his parents.[42]

Sexuality

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Sexuality in Islam is largely described by the Qur'an, Islamic tradition, and religious leaders both past and present as being confined to marital relationships between men and women. While most traditions discourage celibacy, all encourage strict chastity and modesty (see haya) with regards to any relationships across gender lines, holding forth that intimacy as perceived within Islam (encompassing a swath of life more broad than strictly sex) is to be reserved for marriage.

Abd Allah ibn Mas'ud narrated:

We were with the Prophet while we were young and had no wealth whatever. So Allah's Apostle said, "O young people! Whoever among you can marry, should marry, because it helps him lower his gaze and guard his modesty (i.e., his private parts from committing illegal sexual intercourse etc.), and whoever is not able to marry, should fast, as fasting diminishes his sexual desire."

— Volume 7, Book 62, Number 4:[43]

While adulterous relationships are strictly forbidden, permissible sexual relationships within marriage are described in Islamic sources as great wells of love and closeness for the couple involved. Sexual relationship between married couples are even source of rewards from God as doing the opposite, i.e., satisfying sexual needs through illicit means, has punishment. Specific occasions (most notably daytime fasting (see sawm) and menstruation) are times forbidden for intercourse, though not for other ways of touching and being close to one another. Anal sex with one's wife is also strictly prohibited.

Islam has an open and playful approach to sex[44][45] so long as it is within marriage, free of lewdness, fornication and adultery.

Gender roles

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The Qur'an asserts that there are innate differences between women and men.[46] Therefore, Islam places different rights over the husband and wife.

Some similar rights which both the husband and wife owe to each other are:

  • The right to enjoy each other.
  • The right to inherit from each other.
  • The right of confirmation of the lineage of their children.

Some rights which the husband owes to his wife are:

To treat her like an equal human being.

Some rights which the wife owes to her husband are:

  • Being head of the household
  • To be obeyed in all that is not disobedience to Allah
  • Marital relations
  • That she not allow anyone in the house of whom he disapproves
  • That she not leave the house without his permission
  • That she protect his property
  • To be thanked for his efforts
  • That she can only undertake a voluntary fast with his permission

These are some of the rights which spouses owe one another.[47][48]

See also

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References

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  1. ^ a b "Importance of Marriage in Islam". al-islam.org. 22 October 2012. Retrieved 10 June 2015.
  2. ^ "The Quran, sura 4, verse 4". www.perseus.tufts.edu.
  3. ^ "Muslim character. Marriage is the Prophet's sunnah". onislam.net. Retrieved 20 April 2023.
  4. ^ "Women in polygamous marriages suffering psychological torture - Arab News". Archived from the original on 11 March 2011. Retrieved 12 March 2011.
  5. ^ "Nikah.com : Definition of Nikah (Islamic marriage)". nikah.com.
  6. ^ Quran 4:4
  7. ^ "Witnesses for Marriage". Archived from the original on 10 November 2005.
  8. ^ "Central-Mosque.com redirector to the new design". www.central-mosque.com. Archived from the original on 8 July 2011.
  9. ^ Ali, Shaheen Sardar; Griffiths, Anne (15 April 2016). From Transnational Relations to Transnational Laws: Northern European Laws at the Crossroads. Routledge. ISBN 9781317131588.
  10. ^ Singh, Vatsala (24 July 2018). "What Does Quran Say About Nikah Halala? Will Banning it Help?". The Quint. Bloomberg LP. Retrieved 20 May 2019.
  11. ^ Although the Salafi Islamic scholar, Muhsin Khan, did not translate it in the English, the original Arabic text has Ayesha (Sahih Bukhari, Volume 2 Chapter 37, pages 44-45) "Answering-Ansar.org :: Mu'awiya". Archived from the original on 9 February 2006. Retrieved 31 May 2020.
  12. ^ Although the Salafi Islamic scholar, Muhsin Khan, did not translate it in the English, the original Arabic text has Ayesha (Sahih Bukhari, Volume 2 Chapter 37, pages 44-45) "Answering-Ansar.org :: Mu'awiya". Archived from the original on 9 February 2006. Retrieved 14 February 2006.
  13. ^ Sahih Bukhari 5127
  14. ^ Al-Qaradawi, Yusuf (4 January 2011). "Misyar marriage". Archived from the original on 4 January 2011.
  15. ^ Misyar marriage
  16. ^ a b c Esposito J. "The Oxford Dictionary of Islam." Archived 25 November 2015 at the Wayback Machine Oxford University Press 2003 p221 Accessed 15 March 2014.
  17. ^ "Temporary 'Enjoyment Marriages' in Vogue Again with Some Iraqis". The Washington Post. Archived from the original on 3 March 2017. Retrieved 6 September 2017.
  18. ^ Hans Wehr Dictionary of Modern Written Arabic: a compact version of the internationally recognized fourth edition Archived 19 June 2017 at the Wayback Machine Ed. JM Cowan. New York: Spoken Language Services, Inc., 1994. Print.
  19. ^ Sciolino, Elaine (4 October 2000). "Love Finds a Way in Iran: 'Temporary Marriage'". The New York Times. Archived from the original on 13 September 2017. Retrieved 6 September 2017.
  20. ^ Mahmood, Shabnam; Nye, Catrin (13 May 2013). "I do, for now anyway". BBC News.
  21. ^ Berg H. "Method and theory in the study of Islamic origins". Archived 9 May 2016 at the Wayback Machine Brill 2003 ISBN 9004126023, 9789004126022. Accessed at Google Books 15 March 2014. pp. 167-171,176
  22. ^ Hughes T. A Dictionary of Islam. Archived 23 April 2016 at the Wayback Machine Asian Educational Services 1 December 1995. Accessed 15 April 2014.
  23. ^ Pohl F. "Muslim world: modern muslim societies." Archived 24 June 2016 at the Wayback Machine Marshall Cavendish, 2010. ISBN 0761479279, 1780761479277 Accessed at Google Books 15 March 2014.
  24. ^ "I do... for now. UK Muslims revive temporary marriages". BBC News. 13 May 2013. Archived from the original on 22 July 2018. Retrieved 21 July 2018.
  25. ^ İlkkaracan, Pınar (2008). Deconstructing Sexuality in the Middle East: Challenges and Discourses. Ashgate Publishing, Ltd. p. 36. ISBN 9780754672357.
  26. ^ Labi, Nadya. "Married for a Minute". Mother Jones. Archived from the original on 14 June 2014. Retrieved 22 June 2014.
  27. ^ Meri, Josef W.; Bacharach, Jere L. (1 January 2006). Medieval Islamic Civilization: L-Z, index. Taylor & Francis. ISBN 9780415966924.
  28. ^ Pohl, Florian (1 September 2010). Muslim World: Modern Muslim Societies. Marshall Cavendish. pp. 52–53. ISBN 9780761479277. Retrieved 5 April 2013.
  29. ^ Turner, Bryan S. (1 January 2003). Islam: Islam, gender and family. Taylor & Francis US. p. 157. ISBN 9780415123501.
  30. ^ Sahih Bukhari 6960
  31. ^ John L. Esposito, ed. (2014). "Ahl al-Kitab". The Oxford Dictionary of Islam. Oxford: Oxford University Press. doi:10.1093/acref/9780195125580.001.0001. ISBN 9780195125580.
  32. ^ Elmali-Karakaya, Ayse (2020). "Being Married to a Non-Muslim Husband: Religious Identity in Muslim Women's Interfaith Marriages". In Hood, Ralph W.; Cheruvallil-Contractor, Sariya (eds.). Research in the Social Scientific Study of Religion: A Diversity of Paradigms. Vol. 31. Leiden and Boston: Brill Publishers. pp. 388–410. doi:10.1163/9789004443969_020. ISBN 978-90-04-44348-8. ISSN 1046-8064. S2CID 234539750.
  33. ^ a b c Leeman, A. B. (Spring 2009). "Interfaith Marriage in Islam: An Examination of the Legal Theory Behind the Traditional and Reformist Positions" (PDF). Indiana Law Journal. 84 (2). Bloomington, Indiana: Indiana University Maurer School of Law: 743–772. ISSN 0019-6665. S2CID 52224503. Archived (PDF) from the original on 23 November 2018. Retrieved 25 August 2021.
  34. ^ "Roughly one-in-ten married Muslims have a non-Muslim spouse". The Pew Forum on Religion & Public Life. Washington, D.C.: Pew Research Center. 25 July 2017. Archived from the original on 16 October 2018. Retrieved 25 August 2021.
  35. ^ Jahangir, Junaid (21 March 2017). "Muslim Women Can Marry Outside The Faith". The Huffington Post. Archived from the original on 25 March 2017. Retrieved 25 August 2021.
  36. ^ Islam and the Everyday World: Public Policy Dilemmas – Page 102, Sohrab Behdad, Farhad Nomani, Farhad Nomani – 2006
  37. ^ "Requirement for Marriage". Archived from the original on 9 May 2015.
  38. ^ Quran 5:5
  39. ^ El Fadl, Abou (2006). "On Christian Men marrying Muslim Women". Scholar of the House. Retrieved 20 January 2008.
  40. ^ Quran 24:3, Quran 2:221
  41. ^ Javed Ahmed Ghamidi, Mizan, Chapter:The Social Law of Islam, Al-Mawrid
  42. ^ "yl6809永利·主頁(欢迎您)". learndeen.com.
  43. ^ "Wedlock, Marriage (Nikaah)". Archived from the original on 14 June 2007.
  44. ^ "What Muslim women really want in the bedroom". www.telegraph.co.uk. 2 May 2013. Retrieved 29 June 2023.
  45. ^ http://facts.randomhistory.com/islam-facts.html , 100 Interesting Facts About …
  46. ^ "Surah Ali 'Imran - 36". Quran.com.
  47. ^ "Islams Women - Fiqh of Marriage - Rights and Duties". www.islamswomen.com.
  48. ^ "See Section 18". Archived from the original on 9 May 2015.

Further reading

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  • Ali, Kecia (2010). Marriage and Slavery in Early Islam. Harvard University Press. ISBN 978-0-674-05059-4.
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