PART II TRANSACTIONS
Chapter V - Marriage
he third section of the Muslim Law concerns transaction,
(Arabic: Mu’âmalât).
Transactions are subdivided
into marriage; inheritance; contracts; sale; barter and agency.
Marriage is enjoined by the
Prophet upon every Muslim, while celibacy is frequently condemned by him. It is
related in the traditions that the Prophet said:
“When the servant of God
marries, he perfects half of his religion, let him then strive to perfect the
other half by leading a righteous life.”
The following are some of the
saying of the Prophet on the subject of marriage:-
“The best wedding is that upon
which the least trouble and expense are bestowed.”
“The worst of feasts are
marriage feasts to which the rich are invited and the poor are left out, but he
who is invited should accept the invitation however.”
“Matrimonial alliances
(between two families or tribes) increase friendship more than anything else.”
“Marry women who love their
husbands and be very prolific, for I wish you to be more numerous than any
other people’…
“When anyone demands your
daughter in marriage, and you are pleased with his disposition and his faith,
then give her to him.”
“A woman may be married either
for her wealth, her reputation, her beauty or her religion then look out for a
religious woman.”
“All young men who have
arrived at the age of puberty should marry,
for marriage protect them against
intemperance.”
“When a Muslim marries he
perfects half of his religion, and he should practise righteousness to secure
the remaining half.”
“Beware, make not large
settlements dowry upon women, because if great
settlements were a cause of greatness in the world of righteousness before God,
surely it would be most proper for the Prophet of God to make them.”
“When any of you wishes to
demand a woman in marriage, if he can arrange it, let him see her first.
“A woman ripe in years shall
have her consent asked marriage, and if she remains silent (when asked) her
silence is her consent, and if she refuses she shall not be married by force.”
“A window shall not be married
until she be consulted, nor shall a virgin be married until her consent be
asked.” The companions said: ‘In what manner is the permission of a virgin’ He
replied, “Her consent is by her silence”.
From the above-mentioned
teachings of the Prophet, it is clear that Islam encourages marriage and
condemns celibacy. Men and women must marry, not once in their lives, but so
long as they have the strength and can afford to support each other.
In the early days of Islam,
women belonging to the most respectable families in Mecca married several times
after becoming widows or – contrary to the attitude of Church Christianity –
after having been divorced by their husbands.
During the pre-Islamic period
of the Arabs, there was no limit to the number of wives a man could take. But
Islam limited the number to one, with permission to marry, if necessary, two or
three or even four., provided that
one can treat them with justice and equality in one’s relation with them as
husband, which is extremely difficult. Hence the tendency of Islamic Law is
towards monogamy, though it does not definitely bind a man to take only one
wife. In other words, monogamy is the rule, and polygamy is an exception, it
being a remedial course to be resorted to certain cases and under certain
conditions. For the circumstances and exigencies ruling polygamy, the reader is
referred to Chapter on “The Status of Women in Islam”. In Vol. I of this work.
At present the concession of
marrying more than one wife is enjoyed by very few, as the economic conditions
and the practical difficulties involved in bringing up a large family are
rather against polygamy. In the early days of Islam, the circumstances were
quite different owing largely to the then prevailing social and political
conditions. Wars of conquests ended in the capture of a large number of women,
some of whom were supported by the conquerors. Polygamy then became a necessity
and offered a ready solution to social problems. A certain latitude in those
days was necessary. The same solution might be resorted to if similar social
conditions would suggest themselves. A number of the faithful followers of the
Prophet were being killed in religious warfare. Public policy and morals
required that their widows and grown-up daughters should be adequately provided
for and given protecting shelter. It was, therefore, in a spirit of
self-sacrifice on the part of Muslim men that within the limit of four
wives prescribed
by the law, the believers took in wedlock the widows and daughters of their
friends, who had sacrificed themselves in the cause of their religion. The greatest
sacrifice in this respect was made by the Prophet himself, whose additional
object in having as many as nine wives – all of whom (except ‘A’isha) were
elderly women – was to propagate the teachings of Islam through them among the
women of Arabia. It was through the Prophet’s wives that the Arab women, who
embraced Islam, came to know what the institutions of the new religion – as
envisaged by the daily life of the Prophet – really were.
Marriage – A
Civil Contract
In Islam, marriage is a civil
contract made by mutual consent between man and woman. What is necessary among
the Sunni or orthodox Muslims to
conclude a match is the presence of two male or one male and two female
witnesses and a dower. A woman who has reached the age of puberty is free to choose,
to accept, or to refuse an offer, although such a conduct may be against the
declared wishes of her parents of guardian.
If a girl is married in her
infancy, she may renounce and dissolve the contract, if she wills, on reaching
her majority. Although the parents are recommended to find a suitable match for
their daughter, they cannot legally force her to agree to it. Her consent in
any case is necessary. She can make her own terms before the marriage, as to
the amount of dower to be paid to her, the dissolution of marriage in case her
husband leaves the locality and goes to some other country, or in regard to any
other matter such as the husband taking another wife, etc.. All terms,
conditions and stipulations agreed to mutually must be recorded in the contract
of marriage by the registrar and would be binding to the husband.
In the case of impotence,
insanity or extreme poverty which renders it impossible for the husband to
support his wife, or should he be imprisoned for such a length of time that the
wife should suffer lack of sustenance, she has the right to divorce him by a
verdict of the judge.
A man may see the face of his
bride, nay he is encouraged by the law to do so before the consummation of
marriage, though in practice this legal concession is not utilized in certain
eastern countries, where future husbands receive information about their
spouses through their women relation who arrange the marriage.
A man may divorce and re-marry
the divorced wife, but if he pronounces divorce on three occasions, she cannot
return to him, unless after having married another man and lived with him as
his wife for a length of time. She may be divorced by the second husband, and
then she may be re-married to the first. This, however, happens only in extreme
cases. The object of this law is that the husband who has divorced his wife
should feel ashamed and disgraced to take her back after she has re-married and
lived as wife of another man. Thereupon, in practice only, a few people take
advantage of the right to divorce their wives on the slightest sinful act.
Divorce is condemned by the Prophet and is not to be resorted to except in
unavoidable circumstances, such as infidelity of the wife, or other similar
serious causes.
Kinds Of Divorce
Divorce in Islam is of two
kinds:
Revocable, and
Irrevocable.
A husband has the right to
divorce his wife; but this right is not effective until the period of ‘iddat,
i.e. probation is over. This period is three menstrual courses or three month,
and during this time the right of the husband to revoke the divorce is
available.
Should the wife survive her
husband, the period of ‘iâdat
or probation is prolonged to four months and ten days; before this period is
ended, the widow cannot legally get married to a new husband.
If a woman is pregnant and
divorce has to be resorted to, the ‘iddat
period continues until the delivery takes place. In this case, the wife has the
right to reside in her husband’s house and be maintained by him.
A child born six month after
the marriage is considered the child of the married husband; but if the child
is born earlier than six month after the marriage, it is not considered
legitimate.
Different Forms
of Divorce
The following are the
different forms of divorce current among the Sunnis:
Besides impotence on the part
of the husband, a verdict of divorce may be pronounced by the competent judge
on the demand of the wife in the following cases:
1. Unequality
of status of man and woman.
2. Insufficient
dower.
3. If
the Muslim husband embraces any religion other than Islam.
4. If
a husband charges his wife with adultery, even though she swears that she is
innocent and the former insists that she is not.
5. If
the husband is imprisoned for such a length of time that she suffers from want
of living.
6. Khul’
divorce, which means a result of continuous disagreement between husband and
wife, when the latter is willing to forego some of her own privileges or make a
certain ransom to free herself from her husband.
Prohibited
Marriages
One of the fundamental
principles of Islam is that neither a Muslim can marry an idolatress nor a
Muslim woman can marry an idolater.
The direct result of such
prohibited marriages would be to introduce no idolatry in Islam, which it had
strenuously striven to eradicate. Otherwise, Islam is quite liberal in this
respect, as it permits Muslim men to marry virtuous women among the Christians
or the Jews. However, the Islamic Law, for reasons closely connected with
policy, does not allow a Muslim woman to marry a Christian or a Jew.
Suggested Reconciliation
In case there is fear of
breach between wife and husband, reconciliation is recommended to be sought
through the medium of two arbitrators: one chose from the family of the husband
and the other from the wife’s family; if they are desirous of agreement, maybe
God through His Mercy effects a reconciliation between them.
Prohibited
Marriage Relations In Islam
These prohibitions are
detailed in verses 22, 23 and 24, Chapter 4, of the Koran, which are
interpreted as follows:
“And marry not women whom your
fathers have married: for this is a shame, and hateful and an evil way – though
what is passed may be forgiven” ().
“Forbidden to you are your
mothers, and your daughters and your sisters, and your aunts, both on the
father’s and mother’s sides, and your foster mothers and your foster sisters,
and the mothers of your wives, and your step-daughters who are your wards, born
of your wives to whom you have gone in (but if you have not gone in unto them,
it shall be no sin in you to marry them), and the wives of your sons who
proceed out of your loins; and you are forbidden to marry two sisters at a
time.”
“You are also forbidden to
marry any married woman”.
Religious Ceremony
On The Occasion Of Marriage
he Islamic Law appoints no specific religious ceremony, nor
any religious rites necessary for the contraction of a valid marriage.
Legally a marriage contracted between two persons
passing the capacity to enter into the contract is valid and binding, if
entered into by mutual consent in the presence of witnesses. In all cases, the
religious ceremony is left entirely to the discretion of the qualified
registrar known as the ma’zn,
that is the representative of the court, parties.
Below is given, in extenso,
the nuptial sermon, universally preached on the occasion of marriage, in
imitation of the Prophet:
“O ye believers, fear God as
He deserved to be feared, and die not without having become true Muslims. O
men, fear your Lord Who hath created you of one progenitor, and of the same
species He created his wife and from these twain hath spread abroad so many men
and women. And fear ye God, in whose name ye ask mutual favour, and reverence
the wombs that bore you. Verily God is watching over you. O believers, fear God
and speak with well-guided speech, that God may bless your doings for you
and forgive you your sins. And whosoever obeys God and His
Apostle with great bliss he surely shall be blessed.”
The sermon is a collection of
Koranic verses and their repetition at each and every wedding is meant to remind
the Muslim men and women of their duties and obligations. It opens with a
commandment to fear God, and the selfsame commandment is repeated quite a
number of times in the course of the ceremony, showing that the whole of the
ceremony is to be carried through with fear of God, so that from beginning to
end it may be a pure, moral binding and that no selfish equivocation or
hypocritical prevarication may mar the sanctity of the sacred rite.
The registrar – having recited
the above verses with certain sayings of the Prophet bearing on the benefits of
marriage, and the bridegroom and the bride’s attorney (usually the father,
uncle or elder brother) and the witnesses having assembled in some convenient
place (commonly the bride’s domicile) and arrangements having previously been
made as to the amount of dower payable to the bride–begins to request the
bridegroom to ask God forgiveness for his sins and to declare his belief in the
unity of God and the Prophethood of His Apostle Muhammad. The registrar then asks
the bridegroom whether he accepts to be wedded to … (mentioning the name of the
bride) against such and such a dower payable to her and on the law principles
stated in the Koran and in the sayings of the Prophet. The bridegroom answering
in the affirmative, the registrar announces the consummation of the marriage
contract.
The ceremony being over, the
bridegroom shakes hands with the friends and those of the relatives who happen
to be present and receives their congratulations.
Marriage
Festivals
Marriage is preceded and
followed by festive rejoicings which have been variously described by Oriental
travelers, but they are not parts of either the civil or religious ceremonies.
The bridegroom is entitled to
see his fianée before the contract of marriage is entered into, though this
custom is not usually exercised in many Muslim countries.
