In Islam, marriage is a legal contract (Literary Arabic: عقد القران ʻaqd al-qirān, “matrimony contract”; Urdu: نکاح نامہ / ALA-LC: Nikāḥ-nāmah) between two people. The bride is to consent to the marriage of her own free will. 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 is permitted and can be initiated by either party. The actual rules of marriage and divorce (often part of Personal Status Laws) can differ widely from country to country, based on codified law and the school of jurisprudence that is largely followed in that country.
In addition to the usual marriage until death or divorce, there is a different fixed-term marriage known as zawāj al-mutʻah(“temporary marriage”) permitted only by the Twelver branch of Shia Islam for a pre-fixed period. There is also Nikah Misyar, a non-temporary marriage with the removal of some conditions permitted by some Sunni Muslims, which usually amount to the wife waiving her right to sustenance from her husband.
In Islam, marriage is not compulsory and a Muslim has the right to live a single life if he or she wishes to. One example isProphet Isa, who neither married nor had any children. However, marriage is an act of Sunnah in Islam and is highly recommended.
Pre-Islamic Arabia
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 purchase, marriage by inheritance and “Mot’a” or temporary marriage.
Prior to Islam, 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. If they got divorced, women were not legally allowed to go by their maiden name again. They could not own or inherit property or objects, even if they were facing poverty or harsh living conditions. Women were treated less like people and more like possessions of men. They, however, could be inherited and moved from home to home depending on the wants and needs of their husband and his family. Essentially, women were slaves to men and made no decisions on anything, whether it be something that directly impacted them or not. If their husband died, his son from a previous marriage was entitled to his wife if the son wanted her. The woman had no choice in the matter unless she was able to pay him for freedom, which was, in most cases, impossible.
One of the most extroadinary practices that took place was that if a husband died, his son could inherit his wife (his own mother) to be his own wife. Marriage by inheritance, and incestuous relationships between a son and his own mother was “a widespread custom throughout Arabia, including Medina and Mecca”. If the son of a deceased husband (his deceased father) did not want his wife (own mother), the woman was forced to leave her home and live in a hut for one year. The hut that the women lived in was kept dark with very poor air circulation. After one year, the woman was allowed to come out of the hut, and people were permitted to heave camel excrement at her. People in Mecca would blame her for refusing to sleep with her own son.
In 586 AD women were acknowledged to be human. Although this appears to be a change in the status of women in Arabia, they were only acknowledged as human with the sole purpose of serving men. They were considered human, but were not given the same rights as men and were not treated equally in respect to men. In fact, it was common for a new father to be outraged upon learning that his baby was a female. It was believed that the birth of a girl was a bad omen, and men thought that daughters would bring disgrace to the family. Because baby girls were thought to be evil, many of them were sold or buried alive.
Marriage by agreement
The first of four common marriages that existed in pre-Islamic Arabia was marriage by agreement. This consisted of an agreement between a man and his future wife’s family. This marriage could be within the tribe or between two families of different tribes. In the case that involved a man and woman of two different tribes, the woman would leave her family and permanently reside within her husband. The tribe of the husband then kept the couples children, unless a different arrangement was previously made which returned the children to their mother’s tribe. In other cases women were forbidden from marrying outside of the tribe and had to either marry another member or a stranger who would agree to live within her tribe. The reason for inter-tribal marriages was to ensure the protection and possession of the children the couple would produce. Women in inter-tribal marriages received more freedom and retained the right to dismiss or divorce their husbands at any time. The women had precise rituals they used to inform their husbands of their dismissal, such as this: “if they lived in a tent they turned it around, so that if the door faced east, it now faced west, and when the man saw this, he knew that he was dismissed and did not enter”.
Marriage by capture
The second of four common marriage practices that existed in pre-Islamic Arabia was marriage by capture, or “Ba’al”, as it was known in Arabic. Most often taking place during times of war, marriage by capture occurred when women were taken captive by men from other tribes and placed on the slave market of Mecca. From the slave market these women were sold into marriage or slavery. In captive marriages men bought their wives and therefore had complete control over them. Women in these marriages had no freedom and were subjected to following their husband’s orders and bearing his children. These women became their husbands property and had no rights to divorce or dismissal of her husband and therefore completely lost any previous freedom. Her husband had absolute authority over her, including the exclusive right to divorce. The husbands of these marriages were classified as their wife’s lord or owner and had complete rights to his wife and her actions.
Marriage by purchase
The third of four common marriage practices that existed in pre-Islamic Arabia was “marriage by purchase.” This was a more traditional marriage practice. These marriages consisted of the groom or groom’s father paying the bride “Mahr“, or a dowry; to marry them. The dowry usually consisted of items like camels and horses. Women in “purchased” marriages faced the same oppression as the women who were forced into marriages by capture. This practice may have led to a decrease in female infanticide due to the profit a family could incur for selling their daughter. Women in these marriages were subject to their husbands control and had very little rights or freedom of their own.
Marriage by inheritance
The fourth and last of four common marriage practices that existed in pre-Islamic Arabia was “marriage by inheritance”. This kind of marriage would thus result in aincestuous relationship between a son and his own mother. Such “marriages” was “a widespread custom throughout Arabia, including Medina and Mecca”. This practice involved the possession of a deceased man’s wife being passed down to his son. In such a case, the son has several different options. He could keep her (own mother) as his wife, arrange a marriage by purchase for her to enter into from which he would receive a dowry for her, or he could simply dismiss her and had the right to forbid her to remarry. In these cases, as in the majority of marriage practices at this time, the woman had little or no rights and was subjected to follow the orders of her inheritor.
Reforms after Islam
See also: Islamic marital jurisprudence
Prophet 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)” and “marriage by capture” were reformed and a strict set of rules and regulations were put in place. The practices of “marriage by purchase” and “marriage by inheritance” were forbidden. Several chapters and verses from the Quran were revealed which banned such practices.
Under the Arabian pre-Islamic law, no limitations were set on men’s rights to marry or to obtain a divorce. Islamic law, however, restricted polygamy ([Quran 4:3])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’ 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. A man was not allowed to leave his wife and marry someone else just because the other women pleased him more. 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.”
Conditions
Islamic marriages require acceptance, in Arabic: قبول qubūl, of the groom, the bride and the consent of the custodian (wali) of the bride. The contract of anIslamic marriage is concluded between the guardian (wali) of the bride and bridegroom, not between bridegroom and bride. The wali of the bride is normally a male relative of the bride, preferable her father. Guardian (wali) of the bride can only be a free Muslim. The bride normally is present at the signing of the marriage contract, but this is not mandatory.
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 “force”, is used. But just as English words have multiple meanings under different context, so does the word “wali”. 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.
If the conditions are met and a mahr and contract are agreed upon, an Islamic marriage ceremony, or wedding, can take place. Nowadays the marital contract often is also signed by the bride, whereas technically it only requires verbal agreement by both parties, wali and bridegroom. The consent of the bride is mandatory even though in some areas of the world the local culture dictates it as not to be so if her wali,her father or paternal grandfather (wali mujbir), agrees to the marriage.Hadith 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. Bridegroom can himself deliver the sermon in presence of representatives of both sides if he is religiously so educated as the story goes about Imam Muhammad bin Ali around 829 CE and recently in Kashmir in 2013 by Muhammad Aasif bin Ali after more than eleven centuries. 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[Quran 24:33]. The Quran asserts that marriage is a legitimate way to satisfy one’s sexual desire. 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 doesn’t marry, then marriage in his case is mustahabb (preferred).”
Prerequisites
The Qur’an outlines some conditions for a marriage to take place:[Quran 4:24]
- The marriage contract is concluded between the guardian (wali) of the bride and the bridegroom.
- 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 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 practice but borrowed from other religions into some Muslim cultures, notably in the Indian Subcontinent. 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.
- 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. There is no express prohibition in the Qur’an or elsewhere about a Muslim woman marrying a kitabi (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. The movement of Islamic jurists and imams that do not agree on this interpretation is growing.
- 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:6455]. 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. 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. 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.
Rights and obligations of spouses
According to Islam, both men and woman have rights over each other when they enter into a marriage contract 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. 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.” [4:36]
Mahr, dowry and gifts
Mahr (donatio propter nuptias ) differs from a marriage dowry or gift in Western countries, in that it is mandatory for a Muslim marriage. 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. 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.” If the marriage contract fails to contain an exact, specified mahr, the husband must still pay the wife a judicially determined sum.
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, 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 amu’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.
Quran [4:4] “You shall give the women their due dowries, equitably.”
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.”
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.”
Spousal support and mahr
Another general confusion among some people is the idea that, in the case of divorce, the Mahr is the only recourse the wife is entitled. When there are children involved, the Quran specifies that the husband has a duty to provide for their support and maintenance until they are weaned. This duty has been extended in current times by courts in many Muslim countries until the children complete their education. There is a modern movement to seek financial support for the woman as well, if she is unable to maintain herself by working due to age, or commitments of child rearing, or disability. The wife is entitled to an equitable financial support from the husband determined by a judge in a court of law. Some Muslim feminist in Western countries have been inclined to argue from the verse “For divorced women a provision in kindness: a duty for those who ward off (evil)” Qu’ran [2:241], that this requires husbands to support the wife financially if, for example a wife spent years of her life supporting (financially and otherwise) a husband while he is studying and/or sponsoring his migration or citizenship, then a divorce takes place and the husband thinks that all that he owes her is the postponed Mahr. It is however not a widely accepted interpretation of that verse, as the verse itself implies it is a duty to those who do not want to stray into sin by being mean or cruel, not a stated requirement.
The application of financial support from the man (when there are no children involved) is only when he has chosen unilaterally to divorce the wife and not when the wife is the divorce petitioner for Khula. In such situations the wife is required to forfeit all or part of the postponed Mahr and/or return the advanced Mahr as part of a divorce settlement. The husband may also demand return of other gifts and expenditures during the course of the marriage (apart from that he was obliged to provide such as food, clothing, shelter etc.), in order to release the woman from the marriage bond. If however the husband had 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, and courts will enforce the woman’s right to keep her own property.
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 even against her proclaimed will; according to most scholars.
The notable exception to this is the Hanafi school, (the first and still 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.
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]
Source: ‘Al-Masaa’il Al-Maardeeniyyah’ by: Imaam Ibn Taymiyyah.