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Marriage in Islam: Considered from a Legal Point of View
By:
Dr. Ahmad Shafaat
(1984)
From a legal point of view Islam views
marriage as an 'aqd or contract. Like any other contract the
marriage contract requires full and free consent of the parties
concerned. The parents or guardian of any of the parties may give
advice, choose a marriage partner or use persuasion, but the final
decision to enter into a marriage must be the result of a free
choice on the part of each partner, even though this freely made
choice may consist of nothing but accepting the choice of one's
parents or guardian. This right of free choice is fairly well
recognized in the case of men but (unfortunately) not in the case of
women. In the Holy Qur`an we read:
"Do not inherit women
against their will" (4:19)
And in Hadith we find traditions like
the following:
"Khansa bint
Khidhan who had a previous marriage, related that when her
father married her and she disapproved of that, she went to the
Messenger of God and he revoked her marriage." (Bukhari, Ibn
Majah)
"A [girl who
was not married] came to the Messenger of God and mentioned that
her father had married her against her will, so the Prophet
allowed her to exercise her choice." (Abu Da'ud, on the
authority of Ibn 'Abbas)
Just as any adult can enter into any
legal contract, so also any adult man or woman can arrange his or
her own marriage, provided that during the process of arranging the
marriage there is no sexual contact, in other words, there is no
dating in the North American style. It is well known that Khadijah,
the Prophet's first wife arranged her own marriage with the Prophet.
It is true that this happened before sayyadna Muhammad received
prophethood. But if an arrangement by a woman of her own marriage
were so shameful in the eyes of Allah as it is in the eyes of some
Muslims, then He would have somehow prevented His Messenger from
such a marriage. Moreover, there are some ahadith which show that
even after receiving prophethood sayyadna
Muhammad did not disapprove of women arranging their own marriage.
We quote here one such hadith:
"A woman came
to the Messenger of God and offered herself to him (in
marriage). When she had stood for a long time (without receiving
an answer) a man got up and said: Messenger of God! Marry her to
me if you have no need of her. He asked the man if he had
anything to give her as dower (marriage gift), and when he
replied that he had nothing but the lower garment he was
wearing, the Prophet said: Look for something, even though it be
an iron ring. Then when the man had searched and found nothing,
God's Messenger asked him whether he new anything of the Qur`an.
When the man replied that he knew Surah so and so and Surah so
and so, God's Messenger said: Go away, I give her to you in
marriage. Teach her some of the Qur`an." (Bukhari and Muslim on
the authority of Sahl bin Sa'd)
In this hadith a woman is arranging her
own marriage but the Prophet does not rebuke her or admonish her in
any other way. Thus while it may not be the best thing for a woman
to do, she can if she wishes, make a marriage proposal for herself
without being blameworthy in the eyes of God.
What are the terms involved in the
marriage contract? This contract involves two things: First, a gift
from the husband to the wife, which may be a sum of money, an object
of some value such as a ring or such non-material things as
acceptance of Islam or teaching a part of the Qur`an(1).
Second, a commitment from both parties to try to make life
physically comfortable for each other and to provide emotional,
psychological and spiritual happiness to each other, with the
responsibility for taking care of economic needs generally falling
on the shoulders of the man.(2)
At the time of the marriage both
partners should have the fullest possible intention of keeping the
marriage commitment for life, although under some extreme
circumstances it may perhaps be possible to enter into a marriage
contract on a temporary basis.(3)
Even though the marriage commitment is
for life, should it so happen that after marriage the two partners
find it impossible to live together the Islamic law provides for the
termination of the marriage contract. The termination of the
marriage contract can be initiated by any party which has decided
that the other party cannot or will not satisfactorily fulfill the
commitment implicit in the marriage contract, namely, to provide
enough physical, emotional, psychological and spiritual happiness.
It is evident that the judgment as to whether a marriage partner is
getting enough satisfaction out of his or her marriage is a
subjective one and therefore belongs entirely to the partner himself
or herself. Consequently, for the dissolution of marriage Islam does
not require that a partner prove to some authority such as a court
that there has indeed been a failing on the part of the other
partner in the fulfillment of his or her marital obligations. It is
enough for the dissatisfied partner to say that he or she can no
longer love or respect the other partner to be able to continue
living with him or her. Third parties such as relatives, the
community, etc. can and indeed should (4:35) get involved at some
stage of marriage difficulties and try to prevent the break-up of
the marriage through counseling, etc.; but they cannot oblige any
marriage partner to remain in the marriage bond, as for example the
catholic church or the Hindu tradition that obliges couples to
remain tied in marriage until one of the partners dies.
A man can on his own dissolve the
marriage by following a prescribed procedure, the details of which
need not concern us here. A woman can dissolve the marriage by
asking the husband to divorce her and if he refuses can go to court
which should arrange the terms of dissolution as regards to
compensation and order the husband to dissolve the marriage.(4) To
avoid this procedure the woman can include in the marriage contract
the condition that she can dissolve the marriage without having to
go to court.
The party which initiates the divorce
may have to pay some compensation to the other party. This
compensation may be the return of the marriage gift in the case of a
woman initiating the divorce(5) and payment of an alimony
in the case of a man taking that step.(6) Again, the
details of these matters are out of the scope of this article.
THE DEGREE BY WHICH THE
HUSBAND HAS GREATER RIGHT
In the above outline of the legal view
of marriage in Islam, man and women are completely equal partners
except in the following respects:
1) Both parties make the equal
responsibility to provide physical, emotional, psychological and
spiritual happiness to each other, but men generally have the added
responsibility to provide for the economic needs of the wife.
2) In case the husband initiates
divorce, he is obliged by religious law to pay some maintenance
expenses (2:241). This prescribed alimony belongs to the wife by
right. However, when the woman initiates the divorce she does not
pay any compensation to the husband as requirement of religious law;
she need at most return part of what she received from the husband
as dower if such payment is helpful in an amicable settlement.
(2:229)
3) A man can divorce his wife on his own
while a woman needs to go through court or introduce into the
marriage a clause giving her the right to divorce her husband.
In regard to the above differences the
Holy Qur`an says:
"And (wives) shall have
rights similar to those (the husbands have) over them, in
accordance with justice, (except that) husbands' rights are a
degree greater." (2:228)
"Husbands are guardians (qawwamun) of
wives because God has favoured some more than others and because
they (i.e. husbands generally) spend out of their wealth."
(4:34)
The first of the above two Qur`anic
statements occurs in a long passage dealing with divorce and should
be understood in relation to that context. The degree by which
husband's rights are greater should therefore be understood as the
degree by which the husband is freer than the wife to break the
marriage bond. This, however, is not a very big degree since as
stated earlier the wife can get out of the marriage bond whenever
she wants to, practically without giving any reason. It is only that
she has to follow a more indirect procedure.
The second Qur`anic statement refers to
the greater responsibility husbands generally have as protectors and
providers of women and to the greater say this gives them in making
decisions.
The fact that husbands' rights are a
degree greater does not effect the claim that in Islam men and women
have equal rights, since men's greater rights within the marriage
relationship do not mean that men also enjoy greater rights
outside that relationship and since within the marriage
relationship men's greater rights are completely justified by their
greater responsibility. We must remember here that whenever we talk
about members of a society having equal rights it is never precluded
that members of that society cannot freely enter into terminable
arrangements in which some take greater responsibility and therefore
also have greater rights. Equality of rights can only be asserted on
the assumption of equality of responsibility. This principle
sometimes works in favour of women. For example, as mothers women
give much more to children than do men as fathers and so Islam
recognizes greater rights of mothers over children than of fathers
except where economic considerations demand otherwise.
Notes
(1)See
the hadith quoted earlier in which the dower for marriage consists
of the husband teaching a portion of the Holy Qur`an to the wife. In
the following hadith it consists of the husband accepting Islam:
"Umm Sulaym had become a Muslim before
Abu Talha and when he asked her in marriage she said: "I have become
a Muslim. so if you also become one I shall marry you." Abu Talha
accepted Islam and that was the dower arranged between them." (Nasa'i
on the authority of Anas)
This hadith also supports the view that
men and women can arrange their own marriage.
(2)See
Qur`an 4:34. The wife can, however, with her own free will choose to
share part of the economic burden. Khadijah helped the Prophet and
Asma, the daughter of Abu Bakr, helped her poor husband Zubayr.
(3)This
is the shi'a view. Sunni traditions admit that temporary marriage
was at some point in time allowed in Islam but say that this was
later forbidden.
(4)See
Qur`an 2:229 in the light of the following hadith:
"The wife of
Thabit bin Qays came to the Prophet and said, "Messenger of God,
I do not reproach Thabit bin Qays in respect of character or
religion but I do not want to be guilty of kufran regarding
Islam (meaning that she did not like him enough as a marriage
partner and so was afraid she might not give him the respect and
love due to a husband)." God's Messenger asked her if she would
give back to Thabit his garden, and when she replied that she
would, he told him to accept the garden and declare the
divorce." (Bukhari, Nasa'i, Tirmidhi, Ibn Majah and Bayhaqi, on
the authority of Ibn Abbas)
(5)See
the hadith quoted in the previous note. The wife is not obligated by
religious law to pay the compensation and need only do so as part of
a settlement with the husband. (Qur`an 2:229)
(6)"For
divorced women a reasonable maintenance (should be provided). This
is a duty on the righteous." (Qur`an 2:241) |