(az-Zawáj)
The Marriage Contract and its conditions
They (the five schools) concur that marriage would be formed by the
agreement that includes Offer (Ííájáb) and
acceptance (qabúl) from the Fiancee (Makhtúbah) and the fiancé
(Khátib) or the one who may represent each of them as the Agent (Wakíl)
and guardien (walí). Marriage cannot be performed simply by consent
without a contract.
They concur also that the contract is valid if the formula “I give
myself in marriage...” (zawwajtu) or (anka<tu) is said by the woman (Makhtúbah)
or whoever represents her, and “I concur” (qabiltu) or “I accepted” (ra_ítu)
on the part of the fiancé (Khátib) or whoever represents him.
They differ regarding the validity of the contract which it is not
formulated in the past tense or which
words are not derived from marriage and wedding materials.
According to the \anafís, the contract is valid through any
expression that indicates the desire of marriage even with the terms of
ownership (tamlík), gifting (hibah), selling (bayc), giving (catá’),
permittinging (ibá<ah), and lecensing (i<lál) if the
contract is accompanied by evidence indicating marriage.
But the contract shall be invalid when formulated under the terms of hire
(ijárah) or rent (icárah) because those terms do not convey the
continuity and permanence. They justified that with what was reported in
(#a<í< Bukhárí and #ahí< Muslim)
where it is reported that a woman came to the Prophet and said to him: `O!
prophet of God, I came to offer myself to you in marriage.’
The Prophet looked down and did not answer her.
One among the present people said: ‘If you have no interest in her,
marry her to me’. The Prophet asked him: “Do you have any thing?”
He replied: “No.” The Prophet asked again:
“How much do you memorize out of the Qur'án?” he answered: “So
and so.” The Prophet then said: “I therby transfer her ownership to you in
exchange for her learning the Qur’an.”1
The view of the Málikís and \anbalís is:
It is legal with the terms of wedlock (nikáh) and marriage (zawáj)
and whatever is derived from them. It
is legalized also by terms of hibah
with the condition of linking it to the mentioning of thedowry (Mahr). It is not legal with any other terms. They justified the legality of the contract on the terms of
hibah with the verse: "and a believing women who offered (wahabet) herself
to the prophet if he wishes to marry her ..." [al-A<záb:50]2
Sháficís’ view: The
formula must be derived from the words tazwíj and niká< only
and marriage is not valid without the use of such words.
Imámís’ view: The
offer (íjáb) must be stated using the words zawwajtu and
anka<tu in the perfect tense. The
marriage is not valid if other terms were used, and so it is if other formulas
besides al-Zawáj and al-Nikáh were used. Because the two formulae
express the intention edimologically, and the perfect tense expresses resolve
(al-Jazm). The Qur’án
mentioned the two terms:
“After Zaiyd has married her for a while we
married (zawwajnákaha) her to you...”
“Urídu an ankahuki (I would like to marry you)...”
The most reliable interpretation is the prohibition in the situation of
lack of consensus and agreement. They
also concur that acceptance (Qabúl) is valid with the formula
“qabiltu” (I accept) or “radhítu” (I
agree) in the perfect tense.
Imámís, Sháfi'ís, and \anbalís concur
that the immediacy (fawr) is a necessary condition for the contract to be valid.
That is; Acceptance must be stated immediatly following the Offer.
Málikís do not mind a short break; as is the case of a
short speech between the two or something similar.
\anafís state that fawr is not a condition.
For instance if a man sent a letter to a woman proposing to her while he
is absent and upon the receipt of the letter the women gathers witnesses and
reads the letter and says: "zawajtuhu nafsí"
(I give him myself in marriage), the marriage is valid.3
All schools of thought concur that the contract may be in a language
other than Arabic if no one can speaks it, but they differ in case of the
presence of one who speaks Arabic: \anafís
Málikís, and \anbalís say it is valid.
Sháfi`ís say it is invalid.4
Imámís agree.
Imámís, \anbalís, and Sháfi'ís concur
that the contract is not valid if it is written.
\anafís state that written contracts are valid if the two parties
(the man and the woman) are not in the same locale.
All five Schools concur that the mute person (akhra#) will be only
required to signal (ishára) his intention of marriage if he is unable to
write. But if he knows how to write
then it is preferable to combine both means:
Signaling and writing.
\anbalís and \anafís state: If the husband and the wife
stipulate (shar>) in the contract the option of voiding the contract, the
original contract is valid and the stipulation is void.
Málikís argue: It
depends; if the marriage was not
yet comsummated (dukhúl), the contract as well as the stipulation are
void. But if they had consummated
the marriage, the contract is considered valid but the stipulation is void.
Sháfi'ís and Imámís concur:
Both; the contract and the stipulation are void regardless of occurance
or non-occurance of consummation of marriage.5
Generally, the Offer must be stated by the woman and the Acceptance must
be stated by the man. She says:
"zawwajtuk" (I
marry you). And he says: "qabiltu"
(I accept).
Is the contract valid if the order was reversed.
For example the man asks the guardian (walí): "zawajníha"
(marry her to me). And the guardian
replies: "zwaajtukaha" (I marry her to you)?
Imámís and the three concur: it is valid.
\anbalís disagree6
Al-\illí, an Imámí scholar, says in his book,
al-Tahdkirah: "The marriage contract cannot be subjected to conditions but
it is only valid with jazm. It is
considered invalid if it is left open depending on time or description.
Example: If the women says: “I
will marry you on the beginning of the coming month.” And the man says: “I accept.” The
contract is invalid. Sháfi`ís
agree with this view.
The \anafí scholar, Abu Zuhra, states in his book: al-A<wál
ash-Shakhsiyyah: "Marriage must be immediatly effective because it is a
contract. And incidents of the contract cannot be delayed depending on its
triggers. It cannot begin in the
future. It is reported in a`lám
al-Muwaqqi`ín on the authority of Imám A<mad the possibility of
linking the marriage to a condition."
Note:
It is reported in al-Fiqh `ala al-Madháhib al-'arba`ah, vol. 4
that the \anafís and the Sháfi'ís state:
If an ordinary individual says "jawwaztu" instead of
"zawwajtu" the contract is valid.
The Imámí scholar Abu al-\asan al-Asfahání
agrees and so states in his book: wasílat al-Naját in the section
about marriage.
Witnesses of the contract
Sháfi`ís , \anafís, and \anbalís concur that
marriage contract cannot be formed unless there are witnesses to be present.
The \anafís say it suffice to have two men witnesses or a man and
two women. They did not make
trustworthiness (cadl) of witnesses as a condition.
According to them also, women cannot be accepted as witnesses unless they
are together.
Sháfi`ís and
\anbalís say: It is mandatory that the witnesses are males, Muslims, and
trustworthy.
Málikís say: no
witnesses needed during the time of contracting but it is necessary during
consummation. If the contract is formed without the presence of any
witness, it is valid. But if the
husband wants consummation he must provide two witnesses.
If he consummates without witnesses, they are forced to seperate.
This rescision is like an irrovacable
repudiation (>aláq bá’in). [see bidáyat
al-Mujtahid by Ibn Rushd, and maqsad al-Nabíh by Ibn Jama`at al-Sháfi`í].
Imámís say: It
is recommended to have witnesses for the contract but that is not necessary7 .
Conditions over the two contractors
They agree on the necessity of the mental capacity and puberty in the
case of marriage except in the situation where the guardian --whom we were going
to talk about -- and on the clearance of the couple from genealogical impedance
be it permanent or temporary that bars marriage.
We are to study it in the section concerning the Interdictions
(Mu<arramát).
They agree also on the necessity to designate; for instance, it is not
permitted to say: “I marry you
one of these two girls”, or “I offer myself in marriage to one of these two
men.”
They agree on requiring Concent and Choice and on invalidating marriage
under compulsion. Except the \anafís
who permit forced marriage. (al-Fiqh `ala al-Madháhib al-’arba`ah, vol.
4)8
From amongst the Imámís, Shaykh Murta~a al-’an#árí
in his book al-Makásib mentions that Choice (Ikhtiyár) as a
condition. He writes:
The contemporary Imámi scholars agree with
the widespread view that says “if
the enforced person (mukrah) is pleased with what he or she is doing then it
(marriage) is valid.
Further in the book al-\ada’iq wa al-Riyá_ it is mentioned that
they (scholars) concur on this matter.
Amongst the Imámís again, Seyed Abú al-Hassan
al-I#fahání, in his book al-Wasílah, in the chapter on
marriage he says:
It is required for the validity of the contract that
the couple had the Choice (ikhtiyár).
If the two were forced, or one of them was forced, the contract is not
valid. Yes if it is followed by the
acceptance (ri_a), then it shall be accepted according to the stronger opinion.
Accordingly, if a woman claims that she was forced to contract, or the
man claims that he was forced to contract, but they live as any married couple
would live, and they become comfortable as a wedded couple, or she takes the
dowry or any thing of this nature that would indicate the acceptance (ri_a),
then the claim of ikráh by either party would be dissmissed.
He should not be heard nor should any proof presented after the fact of
subsquent consent has been established be considered.
The four Sunni schools of thought consider in jest marriage to be valid:
For instance if a woman jokes saying “I marry you my self” and he
says “I accept”, the marriage is formed.
And so could happen in the case of divorce or manumission (`atq).
They provide the following supporting <adíth:
Three things are effective regardless of their being
made in jest or in fact: Marriage,
Divorce, and Manumission.
Imámís view every joke as nugatory talk (laghw) because of
the lack of intention. They submit
that the above mentioned <adíth’s narrator is not reliable.
\anafís and \anbalís regard the marriage of a idiot person
(safíh) to be valid, regardless of the guardian’s permission or absence
thereof. Imámís and Sháfi`ís
require the permission of the guardian.
Imámís and \anafís say that marriage is valid
provided that the contractors are mentally competent and have reached puberty.
They provide the following supporting <adíth:
Decision of the mentally competent ones regarding
their own affairs is permitted (já’iz).
Imám Sháfi`ís goes further to assert in his later
teachgings that if an adult woman confirms (‘qrár) the marriage and the
husband corraborates her claim, then the marriage is valid.
Because it is within the rights of the two parties.
Imám Málik distinguishes whether the couple are living
abroad out of their homeland or not. In
that first case the marriage is valid based on their statements.
In the second case, if they
are living in their homeland, they will be required to present witnesses since
that would be easy to provide. Initially,
this was the view of Sháfi’í also.
(see at-Tadhkirah of al-Allámah al-\illí).
Adulthood
They agreed that menstruation and pregnancy indicate adulthood (Bulúgh)
of the female.
As for pregnancy: because the embryo is initiated by combining the sperm
of the man and the ovum of the woman. As
for menstruation because it is for woman like sperm for man.
Imámís, Málikís, Sháfi`ís , and
\anbalís say: the appearance
of thick hair indicates the age of
adulthood.
\anafís disagree arguing that such hair is just like any other
hair.
Sháfi`ís and
\anbalís say that physical maturity is evident by the age of fifteen
years for boys and girls.
Málikís say seventeen years for both.
\anafís say: eighteen
for boys and seventeen for girls. (see
al-Mughní, by Ibn Qudámah, vol. 4, chapter on al-\ajr).
Imámís say fifteen years for the boys, and nine for the
girls as reported in the tradition narrated by Ibn Sinán:
If the girl reaches nine years, her property would
be paid to her, her marriage
affairs are hers, and all rules should be
applied for her and against her.
Experience has shown that
she can be pregnated at nine. The
possibility of pregnancy is like pragnancy for that matter.
Note:
What was indicated above by the \anafís is a determination of the
maximum limit of age. The minimum
limit for them is twelve years for the boys and nine for the girls. Because impregnation, having wet dreams and ejaculation are
possible for boys at this age. And
so is having wet dreams, menstruation, and pregnancy in the case of nine years
old girls. (See Ibn `ábidín,
pp. 100, Vol. 5, 1326 H. edition, chapter al-\ajr).
Stipulation of Conditions (Proviso) Set by the Wife
\anbalís say:
If a condition has been set by which effect the husband cannot take her
out of her homeland, nor take her out of her home, nor take her along on a
journey, nor take another woman besides her in marriage; the contract and the
condition are both valid. He is
obligated to fullfil these terms, otherwise, she shall have the right to void
the marriage contract.
\anafís , Sháfi`ís
, and Málikís say: The
condition shall be invalid while the contract shall be considered valid.
Sháfi`ís and
\anafís however, ordained for her Fair Dowry not the Stated Dowry
(al-Mahr al-Musamma) (al-Mughní
by Ibn Qudámah, vol. 6, chapter al-Zawáj).
\anafís say:
If the man puts forth a condition giving the power of divorce to the
woman as is in the case where he tells her:
“I marry you on the condition that you can divorce yourself.”
The condition shall be considered void.
However if she sets such a condition saying:
“I give you myself in marriage on the condition that the divorce
decision is in my hand.” after
which he says: “I accept.”
The contract as well as the condition are valid.
She shall be able to divorce herself whenever she desires.
Imámís say: If
--during the making of the contract-- the woman stipulates a condition by which
effect he can no longer marry another woman besides her, nor can he divorce her,
nor can he prevent her from leaving the house any time to go anywhere she
wishes, or that the divorce decision be in her hand, or that he shall not
inherit her and other conditions that contradicts the spirit of the contract; in
such a case, the condition is void while the contract is valid.
But if she stipulates as a
condition that he shall not take her out of her homeland, or that he shall not
have her live in a particular home, or that he shall not have her travel with
him; in any of these cases the contract and the condition are valid.
However, if he does otherwise, she cannot rescind the marriage contract,
but if she refuses to relocate with him then she shall remain entitled to all
marital rights like alamony (Nafaqah) etc.
If the wife claims that she had stipulated in the text of the contract an
explicit condition, but the husband refutes her claim then she must provide a
proof , because her claim is regarding something that is additional to the
contract. If she fails to provide
proof, then he must take an oath in the effect that there was no condition
because he is the defendent.
Alleged
Marriage
If a man claims to be married to a woman while she denies his claim, or
if she makes the claim while he denies it; then the plaintiff must provide proof
while the defendant is required to take an oath.
Jurists agree that the proof must be from two Honest men, and that the
testamony of women collectively or individually will not be accepted except
according to \anafís who
approve of the testamony of one man and two women provided they are Honest. `Adálah, therefore is a condition to prove the
marriage once it is disputed, but it is not a condition required to validate the
contract the moment of its making.
Imámís and \anafís
say: The testamony of a
witness in the effect of the occurance of marriage is enough and there is no
need of his mentioning of the conditions and the details.
\anbalís say:
Conditions must be mentioned because people would differ in it; It is
possible that a witness may think of a marriage to be valid though it is
invalid.
Imámís, \anafís , Sháfi`ís
, and \anbalís say:
Marriage can be validated by supporting statements from few people (Istifá_ah)
even if such statements have not reached a level of concordance (Tawátur).
Does Co-habitation Validates Marriage?
From time to time, courts deal with Alleged Marriage cases wherein the
claiment alleges that the two cohabited and lived in the same house, just like a
husband and a wife do, then he brings forth witnesses to testify in this effect;
In such a case, should this marriage be considered valid or not?
The answer is: The
appearance of the situation leads to rule in favor of marriage until proven
otherwise. That is, cohabitation
indicates by virtue the existance of a marriage, the apparent aspect of this
situation requires that we accept the allegation of the claiment to be true
until we know --for a fact-- that he is lying, although the absolute knowledge
of the claiment being a liar is very hard to establish given that the Imámís
do not require witnesses to validate marriages in the first place.
However this appearent situation (cohabitation) is contradictory to the
Primal Status (al-A#l), which is the non-occurance of the marriage because any
event doubted to have happened should be taken as if it did not happen until
sufficient proof is furnished. Based
on this, the assertion of the one who refutes the occurance of marriage is in
conformity with the A#l, hence the proof must be provided by the other side.
If the other side fails to provide proof, then the one who refutes the
marriage must take the oath, and the case shall be dismissed.
This is the proper ruling required by the Legal Principles (al-Qawá`id
al-Shar`iyyah), whereby the Imámi jurists agreed that if the Presumtuous
(al-|áhir) contradicts the Primal Status (al-A#l), the Primal Status
should be considered instead. The
Presumtuous can only be considered in conjunction with Proof (dalíl). But there can be no Proof in this case.
Yes if the terms of the marriage contract came to be known, but doubt
rises whether the terms were established through the right procedure or the
wrong procedure, there is no doubt that it should be considered to be done
through the right procedure. However
if there is doubt concerning the making of the contract, then we cannot
determine its existance through cohabiatation.
One may argue: Concidering
the claim of a Muslim to be truthful requires that we accept the claim of one
who alleges marriage in benefit of the lawful over the unlawful and in the
benefit of the good over the bad, since we are required to eleminate the
possibility of bad and give the benefit of the doubt once there is a situation
where bad and good are two possibilities.
The answer is:
Giving the benefit of the doubt in the above case
does not validate marriage, rather it proves that they did not commit an
unlawful act because of their cohabitation and their sharing the same residence.
The absence of any ground to consider their association as illegitimate may be
due to marriage or due to a misconception (shubhah) on their part about the
legitimacy of marriage, such as when both of them imagine it as
lawful and later on discover it to be unlawful.
Details of this will come later while discussing Doubtful Marriage.
It is obvious that a general premise does not prove a particular one.
For Instance, when you say, "There is an animal in the house,"
it does not prove the presence therein of a horse or a deer.
In the same manner, here, when a man has social intercourse with a woman,
not knowing the cause we may not say, "She is his wife," but we should
say that, "They have not committed an unlawful act," for it is
possible that their associating with one another may be the result of marriage
or the result of a misconception of marriage.
We shall give another example to further clarify the point:
If you hear a passer-by say something without
knowing whether that utterance is a curse or a greeting, it is not permissible
for you to consider it a curse. Also, in such a situation it is not binding on
you to return the greeting, because you are not sure of the greeting.
But if you are certain that he greeted you and doubt whether it was meant
as a greeting or intended to ridicule, it is binding upon you to return the
greeting, considering it to be a genuine greeting and by giving precedence to
good over evil.
Our problem is also like this.
Even if living together be considered valid, it does not prove the
presence of a contract. But if we are sure about the occurrence of a contract
and doubt only its validity, we will consider the contract as valid without any
hesitation.
In any case, the social intercourse by itself does
not prove anything, but it supplements and strengthens any other proof
available. The decision in such a situation depends upon the view, satisfaction,
and assessment of the judge, on the condition that he does not consider their
living together as an independent proof in itself for basing his judgement.
The above-mentioned conclusion was as regards the establishment of
marriage. But as regards children, the rule of considering the act of a Muslim
as valid compels the regarding of the children as legitimate at all times,
because the living together of the parents is either the result of marriage or
the result of a false impression of marriage, and the children born due to such
false impression are equal in status to children born of marriage for all legal
purposes. Therefore, if a woman has claimed a man as her lawful husband and also
of having a child by him, while the man refutes marriage but acknowledges the
child as his, his claim will be accepted because it is possible that the child
was born due to a false impression of marriage.
In conclusion, it needs to
be mentioned that this problem is based on the supposition that witnesses are
not required for concluding a marriage contract, as is the Imámís’
view. But according to the other schools, the
party claiming marriage must mention the names of the witnesses. If the claiment pleads
his or her inability to present the witnesses due to their death or absence, it
is possible that the above-mentioned criterion be applied.
It is also necessary to point out that cohabitation does not prove
marriage when there is contention and disagreement to that effect; but when
there is no such disagreement, we settle the claims of inheritance and its like
by giving credit to the possibility of marriage, and on this issue there is a
consensus among the schools.
The Prohibiting Factors
One of the conditions of a valid marriage contract
is that the woman be free from all Legal Impediments (Mawáni`), which
means that she be competent to contract marriage.
The Impediments are of two kinds: the prohibition due to Consanguinity
(Nasab) and those due to other Causalilty. The first includes seven categories
which permanently prohibit marriage. Of
the second, ten categories some of them prohibit marriage. permanently and
others only temporarily.
Consanguinity
The schools concur that the female relatives with whom marriage is
prohibited are of seven kinds:
Mother, which includes paternal and maternal
grandmothers.
Daughters, which includes granddaughers however so
low.
Sisters, both full and half.
Paternal aunts, which includes fathers' and
grandfathers' paternal aunts.
Maternal aunts, which includes fathers' and
grandfathers' maternal aunts.
Brother's daughters how low so ever.
Sister's daughter.s how low so ever.
The above type of prohihition has its origin in the
following verse of the Qur'án:
It has been made forbidden on you to take in marriage your mothers and
your daughters and your sisters and your paternal aunts and your maternal aunts
and brother's daughters and sister's daughters.... [4:23]
These were the prohibited degrees of relations as a
result of Consanguinity. Those
prohibitions which are the result of Causality are as follows:
Causality
I. Affinity
Affinity (al-Mu#áharah) is the relationship between a man and a
woman which forbids marriage belween them; it includes the following:
a. The
schools agree that the father's wife is forbidden for the son and the grandson
and however-so-low, by the sole conclusion of the marriage contract irrespective
of the consummation of marriage. The
origin of this concurrence is this verse of the Qur'án:
And marry not women whom your fathers had married
... [4: 22]
2. The
schools concur that the son's wife is forhidden for the father and grandfather,
and however-so-high as a result of the conclusion of the contract.
This view is based on the following verse of the Qur'án:
And the wives of your .~ons who are of your own
loins.... [4: 23]
3. The
schools concur that the wife's mother and her grandmother however-so-high, is
forbidden on the mere conclusion of the contract with the daughter eventhough
consummation may not have been established as per this verse of the Qur'án:
... And the molhers of your wives [4: 23]
4. The
schools agree that marriage with the wife's daughter is not forbidden merely on
the conclusion of the contract, and they consider it permissible for a man, if
he divorces that wife before consummation, or before looking at her or touching
her with a sexual intent, to marry her daughter based on this verse of the Qur'án:
...And your step-daughters who are in your
guardianship, (born) of your wives to whom you have gone in.... [4:23]
The condition “fí hujúrikum”
explains the general situation. The schools concur that the daughter is
forbidden when a person marries her mother and establishes sexual contact with
her. But the schools differ as
regards the daughter being forbidden when the marriage has been concluded and
not consummated, but has looked at her or touched her with a sexual intent.
The Imámí, the Sháfi`í,
and the \anbalí schools are of the view that the daughter would be
forbidden only on sexual intercourse with her mother.
Looking and touching with or without sexual intent does not have any
effect.
The \anafí and the Málikí
schools consider both, looking and touching with sexual intent, as sufficient
causes for prohibition and are like sexual intercourse in all aspects. (Bidáyat
al-mujtahid, vol. 2; al-Fiqh `ala al-madháhib al-’arba`ah, vol. 4, the
chapter on marriage).
There is consensus among the schools that the
establishment of sexual contact due to a mistake or a false impression is like
marriage itself in establishing affinity and creating its related prohibition.
The meaning of “sexual contact due to mistake” is occurrence of sexual
contact between a man and a woman under the false impression that they are
lawfully wedded followed by the discovery that they are strangers and that the
contact was a result of a mistake of fact. As a consequence of this latter
knowledge, the two will separate immediately and the woman will observe an
obligatory period of `iddah and the Value dowry will be due on the man. Affinity
would be established as a result of intercourse by mistake as well, but the two
will not inherit each other and the woman will not have the privilege of alimony
(nafaqah).
II. Consanguinity
Between Wives
The schools concur that combining two sisters in
marriage at the same time is forbidden according to this verse of the Qur’án:
...And that you should have two sisters together....
[4:23]
The four schools agree that a man cannot combine in
marriage neither a woman and her paternal aunt nor a woman and her maternal
aunt, because they have a general rule, that it is not permissible to marry two
women of whom if one were to be a male it would be haram for him to marry the
other. Therefore, if we suppose the
paternal aunt a male, she would become a paternal uncle and it is not
permissible for an uncle to marry his niece, and if we suppose the niece a male,
she would become a nephew and it is not permissible for a nephew to marry his
aunt. The same rule applies to a
maternal aunt and her sister's daughter.
The Kharijites considered as permissible combining
as wives the aunt and her niece, irrespective of whether the aunt has granted
permission for marrying her niece or not.
Imámí jurists hold different opinions.
Some of them concur with the view of the four schools, but most of them
are of the opinion that if the niece is the first to be married, it is
permissible for him to marry her paternal or maternal aunt even if the niece
does not consent. But if the paternal or the maternal aunt has been first
married, the marriage with her niece is permissible only by her permission.
The proponents of the above view have based their argument on the
following verse of the Qur'an:
...And lawful to you are (all women) besides
those.... [4:24]
In this verse, after mentioning those women with
whom marriage is forbidden, the rest have been permitted, and this permission
extends to combining the aunt and the niece together in marriage.
Had it been forbidden the Qur’án would have explicitly mentioned
it as it expressly mentions the prohibition regarding comhining two sisters in
marriage. As regards the general
rule which supposes one ot the two women to be a male, it is isti<sán,
which is considered unreliable by the Imámís. Apart from this, Abu
\anífah has considered it permissible for a man to marry a woman and her
father's wife despite the fact that if any of these two were supposed a male,
his marriage with the other would not be permissible. Obviously, it is not
permissible for a man to marry his daughter or step-daughter, in the same way as
it is not permissihle for him to marry his mother or his father's wife. (See the
book “ikhtiláf Abí \anífah wa Ibn Abí Layla, the
chapter on marriage)
III. Fornication
It comprises the following issues:
The Sháfi’í I and the Málikís
consider a man's marrying his daughter born of fornication as permissible and so
is his marrying his sister, his son's daughter, his daughter's daughter, his
brother's daughter, and his sister's daughter, because she is legally a stranger
to him and because the law of inheritance does not apply to them, nor does the
law of maintenance. (al-Mughí, vol. 6, the chapter on marriage).
The \anafís, the Imámís and the \anbalís
prohibit marriage with a daughter through fornication like they prohibit
marriage with the legal (biological) daughter because, they say, the daughter
through fornication is born of his seed and is therefore considered his daughter
in the somentically and customarily. Her legal disability to inherit does not negate the fact of
her being his daughter; it only negates such legal effects as inheritance and
maintenance.
The Imámis observe: He who commits
fornication with a woman or establishes sexual contact with her hy mistake,
while that woman is either married or is observing the waiting period --as a
result of a revocable divorce-- would
become forbidden for him permanently, i.e. it is forbidden for him to marry her
even if she separates from her husband as a result of an irrevocable divorce or
death. But if he fornicates with a woman while she is unmarried or is undergoing
the waiting period as a result of the death of her husband or as a result of an
irrevocable divorce, she would not be forbidden for him.
According to the four schools, fornication or adultery is no obstacle to
marriage between the two, regardless of whether the woman is married or
unmarried.
According to the \anafi and the \anbali schools,
fornication and adultery establish affinity. Therefore, one who engages in
sexual acts with a woman, the mother and daughter of that woman will become
prohibited on him, and that woman will be prohibited on his father and his sons.
These schools do not make any distinction between committing such illegitimate
contact before marriage or after it. Therefore, when a person engages in sexual
act with his wife's mother or a son with his father's wife, the wife will hecome
prohibited on her lawful hushand permanently; rather, according to the \anafi
book Multaqa al-'anhur , volume 1, the chapter on marriage: "If a person
intends to wake up his wife for intercourse and his hand reaches her daughter
and he caresses her with sexual emotion while she, thinking it to be her mother,
entertains it, her mother will become prohibited on him permanently. The same
will apply to a woman who intends to wake up her husband and (mistakenly)
caresses his son from another wife."
The Shafi'l school is of the opinion that fornication does not establish
affinity in the light of this tradition:
illegal act does not illegitimate a lawful one.
(al-<arámu lá yu<arrimu al-<alál)
Málik is reported to hold two opinions:
One agrees with the Sháfi`ís, the other with the Hanafís.
The
Imámis consider fornication as capable of creating the prohibition
pertaining to affinity. Thus he who
fornicates with a woman, makes her haram for his father and his son. But as
regards adultery after marriage, they observe that it does not illegitimate the
lawful conjugal ties. Thus he who commits adultery with his wife's mother or his
wife's daughter, his marriage with her stays as it is. The same applies to a
father who commits adultery with his son's wife or a son with his father's wife;
in both cases the wife would not be considered prohibited for her lawful
husband.
IV. Number
of Wives
Jurists of the five schools concur that it is
permissible for a man to have four wives at a time, but not a fifth as per the
verse:
... Then marry such women as seem good to you, two
and three and four .... [4:3]
When any one of those wives is released from
marriage, either due to her death or divorce, it becomes permissible for him to
marry another. The Imámis and the Sháfi`is schools say: When a man
gives one of his wives a revocable divorce, it is not permissible for him to
marry another untill the expiry of the `iddah. But if it be an irrevocable
divorce it is permissible for him to do so. Also, he can also marry his
irrevocably divorced wife's sister during his wife's Waiting period because an
irrevocable divorce prohibits marriage and breaks the marital bond.
According to the other schools, it is not
permissible for him to marry a fifth wife or the sister of his divorced wife
until the expiry of the Waiting period irrespective of whether the divorce is a
revocable or an irrevocable one.
V. Li`an
When a man accuses his wife of adultery or denies that he fathered her
child, and she denies the charge and he has no proof to offer, he may opt to
challenge her byway “Mulá`anah” ( The procedure is as follows: First the man swears by God four times that he is indeed
speaking the truth in accusing her, and the fifth time that the curse of God
fall on him should he be lying. Then
the woman will swear four times by God that he is lying, and the fifth time that
the wrath of God be on her if he be speaking the truth.
If the man refuses to pronounce the li`an, \add (Fixed Penalty) must be
pronounced and carried against him (The crime being qadhf); but if he takes the
Condemnatory Oath and the woman refuses to pronounce the li`án, she is
liable to the hadd for adultery. If
both of them pronounce li`án against each other, none is liable to hadd
and the two will separate and the child whose paternity he had denied would not
be given to him.
The source of the above discussion are these verses
of the Surat an-Núr:
If a man accuses his wife but has no witnesses
except himself, he shall swear four times by God that his claim is true, calling
down upon himself the curse of God if he is lying. But if his wife swears four
times by God that his claim is false and calls down His curse upon herself if it
be true, she shall receive no punishment [24: 6—9]
There is consensus among the jurists that it is mandatory for the two to
separate after the Condemnatory Oath. But they differ as to whether such a wife
is permanently prohibited for her husband so as to make it impermissible for him
to remarry her later, even if he denies his own charge, or if she is prohibited
only temporarily so as to permit him to marry her after withdrawing his own
accusation. The Sháfi`í, the Imámí, the \anbalí,
and the Málikí schools forbid her permanently on him even if he
retrieves his accusation. The \anafí
school considers separation due to the li`án to be like divorce; it would
not make her prohibited permanently because the prohibition arises from the
Condemnatory Oath and is removed on the withdrawal of his accusation. (al-Mughní,
vol. 7; al-Sha`rání, al-Mízán, the chapter on mulá`anah)
VI. Number
of Divorces
Jurists concur that if a man divorces his wife for the third time after
having resumed conjugal relations twice earlier, she will become prohibited for
him and will not become lawful for him again unless she marries another husband.
This requires that she observes the Waiting Period (`iddah) after her third
divorce and after the completion of this Waiting Period she consummates a legal
permanent marriage with another man. Then if she separates from the second
husband, due to his death or as a result of divorce, and she completes the
`iddah, it becomes permissible for the first husband to remarry her again.
After this, if he again repeats the same sequence and divorces her three
times, she becomes prohibited for him until she consummates marriage with
another man. Similarly, she becomes prohibited for him after every third divorce
and becomes lawful by marrying another, even if she be divorced a hundred times.
Accordingly, every third divorce is considered a temporary not a permanent
obstacle to marriage.
But the Imámis say: If a woman is divorced nine Sustained Divorces
(>aláq al-`iddah) she becomes prohibited permanently. What is
meant by Sustained Divorce according to the Imámis is that the husband
first divorces his wife, then he rescinds the divorce and resumes sexual
relation with her; then he divorces her again while she is in a period of purity
(Tuhr) after which he rescinds the divorce and establishes sexual relations with
her; then divorces her thrice during a period of purity after which she becomes
prohibited for him unless with a Legitimatizing
marriage (Mu<allil). Now,
if this first husband marries her again after her separation from that second
husband and divorces her three Sustained Divorces, she becomes lawful again by
consummating marriage with another. If
he then marries her (for the third time) and divorces her a Sustained Divorce
after exhausting the permitted divorces, she will become prohibited for him
permanently. But when the divorce is not a Sustained Divorce, such as when he
returns to her and divorccs her without establishing sexual relations or marries
her by another fresh contract after her completing the `iddah, she will not
become prohibited for him even if she is divorced a hundred times.
VII. Difference
of Religion
Jurists agree that it is not permissible for a Muslim male nor for a
Muslim female to marry those who do not possess neither a revealed nor a
quasi-revealed scripture, nor those who worship idols, fire or the sun, the
stars and other forms, nor non-believers who do not believe in God. Jurists of
the four schools concur that marriage is not permissible with those who possess
a quasi-scripture, such as the Zoroastrians. By quasi-scripture, it is meant a
scripture which is said to have originally existed, as in the case of the
Zoroastrians, but was changed, causing il to be lifled from them.
According to the four schools, it is permissible for
a Muslim man to marry a woman belonging to the People of the Book, which implies
Christians and Jews. But it is not
permissible for a Muslim woman to marry a man belonging to the People of the
Book.
The Imámi scholars agree with lhe other four
schools that a Muslim woman cannot marry a man belonging to the People of the
Book, but differ among themselves regarding the marriage of a Muslim man with a
female belonging to the People of the Book. Some of them hold that
intermarriage, either permanent or temporary, is not permissible. They base
their argument on thesc verses of the Qur’án:
...And hold not to the ties of marriage of
unbelieving women.... [60: 10]
... And do not marry the idolatresses until they
believe.... [2: 221]
Here they interpret Idolatry (shirk)
to mean disbelief (kufr) and not submitting.
According to the Qur'án however, the People of the Book are not
idolators as indicated in this verse:
The unbelievers among the People of the Book and the
pagans did not break off (from the rest of their communities) until the proof
comes unto them. [98:1]
Others are of the opinion that such a marriage,
either temporary and permanent, is permissible, and as a proof they quote the
following verse of the Qur'án:
... And the chaste from among the believing women
and the chaste from among those who have been given the Book before you (are
lawful to you)... [5: 5]
This verse, according to them, explicitly permits
marriage with women of the People of the Book.
The third group, seeking to reconcile the texts in favour and against
such intermarriage, permits only temporary not permanent marriage. They take
those texts which forbid such marriage to imply permanent marriage, and those
which permit it are taken to imply temporary marriage. Generally speaking, most
of the contemporary Imámi scholars consider permanent marriage with a
woman belonging to the People of the Book to be permissible and the Ja`fari
courts in Lebanon marry a Muslim male to a female belonging to the People of the
Book. They register such a marriage with all the legal effects proceeding
therefrom.
All schools, except the Málikí, recognize marriages of all
non-Muslims as valid if performed according to their tenets. Muslims confer upon
such a marriage all the legal effects of a valid marriage without
differentiating between the People of the Book and others--even if they permit
marriage within prohibitive limits of consanguinity. The Málikis consider
such a marriage as invalid because, they explain, it would be invalid if
performed by a Muslim.
Therefore, the same is true of non-Muslims. This stance of the Málikís
is not reasonable, because it makes non-Muslims scared of Islam and leads to
anarchy and disruption of the social order. Apart from this, the Imámis
have recorded these traditions which confirm their stance:
For one who follows the religion of a community, its rules would be
binding upon him....
And require them to follow that which they consider binding upon
themselves. (al-Jawahir, chapter on divorce)
Litigation Between the People of the Book Before a
Muslim Judge
In the Imámi work, al-Jawáhir (chapter
on jihád), there is a useful discussion which is relevant here. Its
summary is as follows: If
two non-Muslims litigate before a Muslim judge, should he give his judgement
according to the laws of their religion or according to the Islamic law? The
answer is: If the litigants are dhimmís, the judge has a discretion to
either judge according to the Islamic law or to dismiss the case without any
hearing. The following verse of the Qur'án states this discretion:
...Judge between them or turn aside from them, and
if you turn aside from them, they shall not harm you in any way; and if you
judge, judge between them with fairness.... [5:42]
Imám al-Sádiq (A) was once asked regarding two men of the
People of the Book between whom there is a dispute and who brought their case
before their own judge and when this judge judges between them, the one against
whom the judgement was given refuses to comply and asked that the issue be
settled before the Muslim judge. The Imám (A) replied:
"The judgement shall be according to the law of
Islam."
If the litigants are those who are at war with the Islamic State (\arbi),
the judge is not obliged to settle their dispute and to protect some of them
against others, which is not hte case when dealing with dhimmís.
If one of the litigants is a Dhimmí or a <arbi and the other a
Muslim, the judge is obliged to accept the suit and to judge between them
according to Islamic law, in accordance with the Divine command:
Pronounce judgement between them in accordance with
God's revelations and do not be led by their
desires. Take heed lest they should turn you away from part of that which
God has revealed to you.... [5: 49]
Moreover, if a Dhimmí woman sues her husband,
the judgement will be given according to Islamic law.
The above discussion makes it clear that Muslims
should recognize as valid all those transactions of non-Muslims which are in
conformity with their religion, as long as they do not refer it to Muslims for a
decision. But if they seek a decision from Muslims, it is compalsary for them to
decide, at all times, according to Islamic law. As is understandable from the
verses of the Qur'án and the traditions, it is also compalsory to judge
between them in accordance with the norms of justice and fairness.
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