Allah has created men and women as company for
one another, and so that they can procreate and live in peace
and tranquillity according to the commandments of Allah and
the directions of His Messenger. The Qur'an says:
And among His signs is this, that He created for
you mates from among yourselves, that you may dwell in tranquillity
with them, and He has put love and mercy between your hearts.
Undoubtedly in these are signs for those who reflect. (30:21)
And Allah has made for you your mates of your own
nature, and made for you, out of them, sons and daughters
and grandchildren, and provided for you sustenance of the
best. (16:72)
These verses of the Noble Qur'an clearly show that in contrast
to other religions like Christianity, Buddhism, Judaism etc.
which consider celibacy or monasticism as a great virtue and
a means of salvation, Islam considers marriage as one of the
most virtuous and approved institutions. The Messenger of Allah
(peace be upon him) declared,
"There is no monasticism in
Islam." He further ordained,
"O you young men! Whoever is able to marry should
marry, for that will help him to lower his gaze and guard
his modesty." (Al-Bukhari)
Modesty was regarded as a great virtue by the Prophet. He said,
"Modesty is part of faith." (Al-Bukhari)
The importance of the institution or marriage
receives its greatest emphasis from the following hadith of
the Prophet,
"Marriage is my sunna. Whosoever keeps away from
it is not from me."
With these Qur'anic injunctions and the guidance from the Prophet
(peace be upon him) in mind, we shall examine the institution
of marriage in the Shari'ah.
The word zawaj is used in the Qur'an
to signify a pair or a mate. But in common parlance it stands
for marriage. Since the family is the nucleus of Islamic society,
and marriage is the only way to bring families into existence,
the Prophet (peace be upon him) insisted upon his followers
entering into marriage The Shari'ah prescribes rules to regulate
the functioning of the family so that both spouses can live
together in love, security, and tranquillity. Marriage in Islam
has aspects of both 'ibadah (worship) of Allah and mu'amalah
(transactions between human beings).
In its 'ibadah aspect, marriage is an
act pleasing to Allah because it is in accordance with
his commandments that husband and wife love each other and help
each other to make efforts to continue the human race and rear
and nurse their children to become true servants of Allah.
In its mu'amalah aspect, marriage being a lawful
response to the basic biological instinct to have sexual intercourse
and to procreate children, the Shari'ah has prescribed detailed
rules for translating this response into a living human institution
reinforced by a whole framework of legally enforceable rights
and duties, not only of the spouses, but also of their offspring.
These aspects are beautifully explained in a tradition
of the Prophet. It is narrated by Anas that the Messenger of
Allah (peace be upon him) said,
"When a man marries, he has fulfilled half of his
religion, so let him fear Allah regarding the remaining half."
The Prophet considered marriage for a Muslim as half of his
religion because it shields him from promiscuity, adultery,
fornication, homosexuality etc., which ultimately lead to many
other evils like slander, quarreling, homicide, loss of property
and disintegration of the family. According to the Prophet (peace
be upon him) the remaining half of the faith can be saved by
taqwa.
Careful consideration of the Qur'anic injunctions
and the traditions of the Prophet (peace be upon him) clearly
show that marriage is compulsory (wajib) for a man who has the
means to easily pay the mahr (dowry) and to support a wife and
children, and is healthy, and fears that if does not marry,
he may be tempted to commit fornication (zina). It is also compulsory
for a woman who has no other means of maintaining herself and
who fears that her sexual urge may push her into fornication.
But even for a person who has a strong will to control his sexual
desire, who has no wish to have children, and who feels that
marriage will keep him away from his devotion to Allah, it is
commendable (mandub).
However, according to the Maliki school, under
certain conditions it is obligatory (fard) for a Muslim to marry
even if he is not in a position to earn his living:
- If he fears that by not marrying he will commit fornication
(zina).
- If he is unable to fast to control his passions or his
fasting does not help him to refrain from zina.
- Even if he is unable to find a slave girl or a destitute
girl to marry.
However some jurists suggest that if a man cannot procure a
lawful livelihood, he must not marry because if he marries without
any hope of getting lawful bread, he may commit theft, and in
order to avoid one evil (his passions) he may become the victim
of another (theft).
The Hanafi school considers marriage as obligatory
(fard) for a man:
- If he is sure that he will commit zina if he does not
marry.
- If he cannot fast to control his passions or even if he
can fast, his fast does not help him to control his passion.
- If he cannot get a slave-girl to marry.
- If he is able to pay the dowry (mahr) and to earn a lawful
livelihood.
Marriage is forbidden (haram) to a man, according to the Hanafi
school, if he does not possess the means to maintain his wife
and children or if he suffers from an illness, serious enough
to affect his wife and progeny.
It is not desirable (makruh) for a man who possesses
no sexual desire at all or who has no love for children or who
is sure to be slackened in his religious obligations as a result
of marriage.
In a beautiful tradition the Prophet (peace be
upon him) has given the most important point that should weigh
with every Muslim in selecting his bride:
"Whoever marries a woman solely for her power and
position, Allah will only increase him in humiliation. Whoever
marries a woman solely for her wealth, Allah will only increase
him in poverty. Whoever marries a woman because of her beauty,
Allah will only increase him in ugliness. But whoever marries
a woman in order that he may restrain his eyes, observe cautiousness,
and treat his relations kindly, Allah puts a blessing in her
for him and in him for her."
In order that problems should not arise after marriage the Prophet
(peace be upon him) recommended that, in the selection of his
bride, a man should see her before betrothal lest blindness
of choice or an error of judgment should defeat the very purpose
of marriage. But this "seeing" is not to be taken as a substitute
for the "courtship" of the West. The man should not gaze passionately
at his bride-to-be, but only have a critical look at her face
and hands to acquaint himself with her personality and beauty.
However, if a man so desires, he may appoint a woman to go and
interview the proposed bride, so that she may fully describe
the type of girl she is.
Since believing men and women are referred to
in the Qur'an, a woman also has the right to look at her potential
husband.
The special permission for men and women to see
each other with a view to matrimony does not contravene the
code of conduct for believing men and women to lower their gaze
and be modest which is laid down in the Holy Qur'an.
The consent of both the man and the women is
an essential element of marriage, and the Qur'an gives women
a substantial role in choosing their own life partners. It lays
down:
Do not prevent them from marrying their husbands
when they agree between themselves in a lawful manner. (2:
232)
However, Imam Malik, one of the four great Imams of the Sunni
schools of Islamic jurisprudence, gives a slightly restrictive
interpretation to this verse and makes the choice of partner
by a Muslim girl subject to the over-ruling power or ijbar of
her father or guardian in the interests of the girl herself.
It may sometimes happen that in her immaturity
or over-zealousness, a girl may want to marry a man about whom
she has distorted information or who does not possess good character
or who lacks proper means of livelihood. In such a case, it
is better, or rather incumbent upon the girl's father or guardian,
that, in the wider interests of the girl, he restrains her from
marrying such a worthless man and finds a suitable person to
be her husband. Generally speaking, such marriages arranged
by fathers and guardians work better than a marriage brought
about through western courtship.
The case of Abu Juham bin Hudhaifah and Mu'awiyah
ibn Abu Sufyan is relevant here. They proposed marriage to Fatimah
bint Ghaith. The Prophet (peace be upon him) advised Fatimah
not to marry either of them on the grounds that Mu'awiyah was
then a pauper and Abu Juham was cruel and harsh. So she married
Usamah.
The Qur'an (4:21) refers to marriage as a mithaq,
i.e. a solemn covenant or agreement between husband and wife,
and enjoins that it be put down in writing. Since no agreement
can be reached between the parties unless they give their consent
to it, marriage can be contracted only with the free consent
of the two parties. The Prophet (peace be upon him) said,
"The widow and the divorced woman shall not be married
until their order is obtained, and the virgin shall not be
married until her consent is obtained." (AlBukhari)
This aspect is greatly emphasized by Imam Bukhari. He, in fact,
gave one of the chapters in his Sahih the significant title:
"When a man gives his daughter in marriage and she
dislikes it, the marriage shall be annulled." Once a virgin
girl came to the Prophet (peace be upon him) and said that
her father had married her to a man against her wishes. The
Prophet gave her the right to repudiate the marriage. (Abu
Dawud).
Divorced women are also given freedom to contract a second marriage.
The Holy Qur'an says,
And when you divorce women, and they have come to
the end of their waiting period, hinder them not from marrying
other men if they have agreed with each other in a fair manner.
(2: 232)
With regard to widows, the Qur'an says,
And if any of you die and leave behind wives, they
bequeath thereby to their widows (the right to) one year's
maintenance without their being obliged to leave (their husband's
home), but if they leave (the residence) of their own accord,
there is no blame on you for what they do with themselves
in a lawful manner. (2:234)
Thus widows are also at liberty to re-marry, even within the
period mentioned above; and if they do so they must forgo their
claim to traditional maintenance during the remainder of the
year. However, it must be remembered that the power of ijbar
given to the a father or the guardian by the Maliki school over
their selection of life- partner obtains in all the situations
considered above, namely, whether the daughter or the ward is
a virgin or divorcee or widow.
Under the Shari'ah, marriages between men and
women standing in a certain relationship to one another are
prohibited. These prohibited degrees are either of a permanent
nature or a temporary. The permanently prohibited degrees of
marriage are laid down in the Holy Qur'an :
And marry not those women whom your fathers married,
except what has already happened (of that nature) in the past.
Lo! it was ever lewdness and abomination, and an evil way.
Forbidden unto you are your mothers and your daughters, and
your sisters and your father's sisters and your mother's sisters,
and your brother's daughters and your sister's daughters,
and your foster-mothers and your foster-sisters, and your
mothers-in-law and your step-daughters who are under your
mother-in-law and your step-daughters who are under your protection
(born) of your women unto whom you have gone into -- but if
you have not gone into them, then it is no sin for you (to
marry their daughters) -- and the wives of your sons from
your own loins, and that you should have two sisters together,
except what has already happened (of that nature) in the past.
Allah is ever-Forgiving, Merciful. (4:22 - 24)
From the above verses, it is clear that a Muslim must never
marry the following:
- His mother
- His step-mother (this practice continues in Yoruba land
in Nigeria, where in some cases the eldest son inherits
the youngest wife of his father)
- His grandmother (including father's and mother's mothers
and all preceding mothers e.g. great grandmothers )
- His daughter (including granddaughters and beyond )
- His sister (whether full, consanguine or uterine)
- His father's sisters (including paternal grandfather's
sisters)
- His mother's sisters (including maternal grandmother's
sisters)
- His brother's daughters
- His foster mother
- His foster mother's sister
- His sister's daughter
- His foster sister
- His wife's mother
- His step-daughter (i.e. a daughter by a former husband
of a woman he has married if the marriage has been consummated.
However, if such a marriage was not consummated, there is
no prohibition)
- His real son's wife
A great wisdom lies behind these prohibitions on the grounds
of consanguinity, affinity, and fosterage. No social cohesion
can exist if people do not keep these prohibitions in their
minds while contracting marriages.
Temporary prohibitions are those which arise only
on account of certain special circumstances in which the parties
are placed. If the circumstances change, the prohibition also
disappears. They are as follows:
- A man must not have two sisters as wives at the same time
nor can he marry a girl and her aunt at the same time.
- A man must not marry a woman who is already married. However
this impediment is removed immediately if the marriage is
dissolved either by the death of her former husband, or
by divorce followed by completion of the period of 'iddah
(retreat).
- A man must not have more than four wives at one time.
This impediment is, of course, removed as soon as one of
the wives dies or is divorced.
- A man must not marry a woman during her 'iddah.
Regarding this last prohibition, the Qur'an expects Muslims
to act with the utmost propriety and righteousness. It lays
down:
...but do not make a secret contract with them except
in honourable terms, nor resolve on the tie of marriage till
the term prescribed is fulfilled. (2:235)
This means that a man must not make a specific proposal of marriage
to a woman during the time of her 'iddah after the death of
her husband or an irrevocable divorce. However, he can send
a message saying, for instance, "I wish to find a woman of good
character". But if a woman is in the 'iddah of a divorce which
is revocable where raja' (return) is possible, a man must not
send her even an implied invitation to marry him, because she
is still considered as the lawful wife of the first husband.
In fact, this restriction is most beneficial because it prevents
a man from becoming an instrument of breaking up a family where
there are still chances of reconciliation between the wife and
husband even though they are moving away from each other.
The Prophet (peace be upon him) disapproved
of two persons competing with one another to secure marriage
with the same girl. This is because such a situation is likely
to develop bitter enmity between two Muslim brothers.
The Prophet said,
"A believer is a brother of a believer. Hence it
is not lawful for him to bargain upon the bargain of a brother,
nor propose for (the hand of a girl) after the marriage proposal
of his brother, until the latter (voluntarily) withdraws the
proposal."
Imam Abu Hanifa, Imam Shafi'i, and Imam Malik, all hold the
view that it is a sin to put a proposal of marriage against
the proposal of another Muslim brother. However, if a marriage
is contracted in this wrongful way it will be sufficient if
the second suitor who was successful seeks the forgiveness of
the first suitor and of Allah. But Imam Dhahiri considers such
a marriage void. It is respectfully submitted that the former
view is more rational and sound.
