BOOK OF MARRIGE

 

Islam almost bans celibacy and strongly encourages marriage.  It equally bans and discourages illicit sex of any kind.  Rasulullah (sas) said “The worst among you are those who deliberately don’t marry”.  This should be understood to exclude people who should not marry for like health reasons or sexual impotence.

 

He (sas) also said 2 Rak’ats Salah done by a married man is equal to 82 Rak’ats by a single man.  In fact Rasulullah (sas) strongly discouraged monkish life to three men who boasted of their celibacy, all night prayers and continous fastings.  He retorted “I am the most fearful of Allah among people yet despite this, I both pray and sleep at night.  Some days I fast, some days I don’t and I marry women.  Those who turn away from my way is not mine.”

He advised men to marry women who should be lovable, meaning attractive capable of bearing many children and properly religious.

 

KINDS OF MARRIAGE

 

The least good is marrying a slave woman.  This is sometimes necessary because the man is too poor to marry somebody else.  This kind of marriage is no more in our time because there is no slavery.  This kind of marriage is called Tassanee Tasarnee.

 

The better kind is called Istinkah or Nikah.  Before Islam there was also another kind of marriage called Mutah.  This was a temporary marriage for a few weeks or months which Rasulullah (sas) eventually abolished during Hajjatul Wada.  Shi’a still keep it.

 

1. The procedure of Nikah is an Aqid which means a contract.  The contract needs a man who asks an unmarried woman through her guardians or a previously married woman (a divorcee) directly whether the woman can be given to her in marriage.  This is called Ijab.

 

2. The second part is Qabul (acceptance).  The guardians of the woman or the divorcee woman herself may accept the offer.

 

3. The third element is witnesses: Two Muslim men or one man and two women must witness and confirm that Ijab and Qabul has been done.

 

These things come up as soon as a Niqah is effected.

 

AFTER NIQAH

 

1. The 2 persons married become Halal to each other.

 

2. Each partners blood relatives of the first degree like parant, child as well as grandparents, grandchildren, aunts and uncles become Haram to marry by either party for all eternity.

 

3. Any brother or sister become Halal to marry only after the spouse concerned is dead.

 

FOR MARRIAGE TO BE DESIRABLE OR UNDESIRABLE THEN THE FOLLOWING APPLY

 

1. If desire for marriage is strong one must marry for fear that he may fall into Haram.  Such a marriage is Farz.

 

2. If the desire is moderate marrying is Sunnah ul Muakedde.

 

3. If the person do not have adequate powers to marry or is forced against his will or some harm or injustice is feared to be caused such a marriage is to be discouraged.

A marriage contract can also be effected by 2 persons representing the marrying parties without the marrying parties present but having given advance consent.  This is called – Wa kaa lat.

 

Unlike Western law in Islam, juniors, that to say those below the age of puberty can also be remarried but they are not put to live together but must wait until they grow up.

 

Lastly there must not be any doubt in the willingness of the party to be married and infact no compulsion should be applied to anybody especially woman although many Ulama ignore these under the influence of the woman degrading attitudes.

 

Rasulullah (saaws) insisted that womans wishes should be considered.  A divorcee should explicitly and without being under any threat say that she wants the marriage unlike for a virgin of is regarded enough to keep quite and blush happily.

 

The third element applying to marriage is inheritance as soon as the Niqah is effected each party becomes an inheritor of the other.

 

WHO ARE GENERALLY HARAM TO MARRY

 

Parants, children, brothers, sisters, maternal aunts, paternal aunts, maternal uncles, paternal uncles, those are the persons one can never marry, also one cannot marry foster sister or foster brothers in the sense that these suckled from the same mother.  One can also not marry the child of the child of one’s brother or sister.  These are called Muharramat/haram.

 

One can also not marry his son in law or daughter in law and this is a permanent ban.  One can not also marry one’s parents spouse unrelated to one who wants to marry.

 

The exception is when one marries a woman but divorces her or she dies without the two coming together.  Then the surviving spouse can marry the daughter or the son or the deceased spouse.

 

One can’t marry the two sisters together at any time.

 

One cannot marry an idolator, but man may marry Christian or Jewish woman as for woman marrying them Ulama are not sympathetic and they think it should be Haram.

 

One cannot marry both a free woman and a slave woman.

 

A woman cannot remarry before she goes through three monthly periods.  This is called id’de, which means counting time.

 

A woman cannot marry a male slave but she can marry him after freeing him.

 

A man who divorces his wife three consecutive times cannot marry her again until after she marries somebody else, sleep with him and is divorced.  This is called Hullal.

 

A man and woman can marry while they are doing Hajj but they cannot sleep together unless they finish the Hajj.

 

An underage person married to another person by his elders can have this marriage cancelled by applying to a judge when he/she attains puberty.  This in English can be called the right of becoming an adult.

 

The same applies to a slave woman married to a man if the slave woman is freed she can have the marriage cancelled.

 

THE MARRIAGE GIFT (MIHR)

 

It is Farz for a man to pay a marriage gift to a woman he is marrying.  This should be agreed between the two sides before the marriage and is usually paid in two instalments.  The first which is usually the smaller instalments is called Mihrul Muajjel.

The other instalments is payable latest on divorce and is called Mihrul Muajjel.

 

That being so the woman can waive a Mihr and this rare instance happens when the woman finds her suitor too poor to pay anything and therefore makes the Mihr Sadaqa to him.

 

Kufuww-un

 

For two persons to marry it is desirable but not Farz that they are suitable for each other not only in a personal sense but in the standing among their community.

 

In this respect men and woman are treated differently.  A man of a higher social class can marry any woman of his own class or lower.  A woman however is discouraged to marry a man of a lower class than her except when the man is distinguished as an Alim.

 

In other words religious learning and purity gives high standing to a man whatever his origin.

 

A secondary point is to consider the ages the characters and other bodily qualities of the would be partners.  Persons should rather not marry for greedy mercenary reasons or should not be forced into such marriages.

 

Overall the aim in marrying two persons should be harmony and blessing in all respects.

 

Material greedy consideration often leads to unhappiness and may lead to crime.

 

CONDITIONS FOR MIHR TO BE PAYABLE

 

Anyone of the following occurring makes the Mihr payable.

 

1. Actual union of the couple.

 

2. There being together for a while without anybody else around.

 

3. The death of the husband.

 

Being alone together becomes invalid even if another person who is together with is blind or insane.

 

Being engaged only do not create any rights.  So if a woman is given a present by her fiancé and then dies without marriage taking place the fiancé can ask for it’s return.  (small presents left alone).

 

To quote an amount of Mihr is called Inhar.  When the woman is a slave her Mihr goes to her owner.  A woman who is promised an amount of Mihr may partially or fully waive it if she wants to do so.  If the husband refuses to take anything back the woman must keep it.

 

THE BOOK OF TALAQ

 

Some Niqahs are void from the beginning, so if there were two witnesses or the agents were lying or the two persons to marry were Haram to each other with or without their knowledge or the woman to marry were not out of her waiting period yet.  All such things make any such Niqah void.

 

When a couple stay together despite the voidness of their Niqah they should be separated by the force of law.

 

They cannot declare a divorce because there is no Niqah in the first place.

 

A woman who marries believing that her long absent husband is dead but he turns up her Niqah to somebody else becomes void, but according to some Ulama after a certain number of years of a husbands absence with no news from him whatsoever and especially after seven years some judges assume death and allow the woman to marry.

 

Talaq is separate from cancellation of marriage which we studied.

 

Talaq happens after a valid marriage happens and one party wants to get out of it.  Both men and woman can give for divorce but for man it is automatic for some divine reasons we shall see.

 

Taking the names case basically a man can divorce his wife with no necessity to say why.  This is only prevented when there is a condition in the marriage contract for men to justify his divorce in the presence of a judge.  This happens rarely but maybe used by a leader to curb man’s divorcing their wives too irresponsibly or getting away with it too lightly.

 

A womam may register a condition at her marriage that she also may divorce her husband at will.  In the past some woman with equal or higher dignity or class than their prospective husband’s use this facility to keep their options open.  This may legitamize a ruler’s making it general at certain times when it looks to him that woman are being unjustly victimised.

 

Still the modernist claims and scares that Islam allowed far too easy divorces and that Islam is  entirely in man’s favour are wrong.  Divorcing a wife maybe easy but consequences are unbearable.  Young children are to be left in the custody of the divorced wife.  She must be paid her determined Mihr immediately, paid Alygomy living expenses and if a man divorce’s a woman unjustly he will find a lot of difficulties of being accepted as a son in law by another family except when he’s rich and powerful and the woman’s family gives a daughter out of greed.

 

Also the man will find that his children are unhappy without their father/mother and that will stay a festering wound throughout their lives.

 

Lastly in classical Islamic time people had enough fear of God and enough humanity not to resort to divorce and therefore divorce was as rare as Polygomy.  In principle it was almost hypotatic most couples when monogamous and why death parted them.

 

It is instructive to note that in modern times not only about half of all adults bother to marry but more than half of these marriages end in divorce within 10 years.  Add to this the unstoppable adultery among married couples and the whole picture makes a mockery of family and social responsibility.

 

Talaq means dissolution of a marriage.  The following definitions and rules apply.

 

1. The party entitled to declare Talaq is often the husband although we saw that a lot of exception may apply.  Therefore we shall base our assumptions on man’s taking the initiative.

 

2. When the partners did not consummate the marriage they didn’t sleep together Talaq has no waiting period for the woman to remarry.

 

3. Otherwise for a Talaq to be irrevocable it must happen three successive times.  Each of the first two Talaqa are called Talaq al Rije, which means reversible divorce.

 

The husband can keep the wife under his roof with children for three months and 10 days which is the waiting period and within this period he can withdraw his decision of Talaq and keep his wife.  If he determined to make Talaq absolute then he can declare it a third time and the end of the waiting period this Talaq becomes irrevocable and is called Talaq al Bain.

 

Some Imams said that all three Talaqs can be declared in one session and that makes it Talaq al Baim, but to most Imams this is Mekruh and to some it is Haram.

 

In actual fact Allah wants to give the couple all the chance they need to think over their problem and come to a reasoned and settled desirable decision.

 

Rasulullah (sas) said that of all Halal things Talaq is the most hateful to Allah.  It should never be resorted to unless the staying together of the parties become intolerable to both.

 

The woman waiting in her waiting time is called a Muallaqa which means suspended.  She is not divorced yet.

 

4. After a Talaq al Bain if the man changes his mind and would like to have his wife back, he cannot unless the woman marries another man, consummate the marriage and is divorced by this second husband in a normal and natural way, which is often a pie in the sky.  Unfortunately in the past people arranged mock marriages to friends or to very old frail people in order to get their old wives back by pre-agreed divorce which should be very Mekruh and perhaps Haram being a trick against Allah.

 

All such considerations counted from above added to peoples piety made divorce very rare among Muslims in all ages.

 

5. Talaq has five parts to consider.

 

a) The reason for making Talaq is incompatibility of the spouse.  If they discover that is so Talaq is a way out rather than something worse.  Catholic divorce do not exist, marriage is permanent and therefore both adultery and murder were used among Christians.

 

b) Condition for Talaq.  For Talaq to be valid the divorcing partner should be sane and not insane or drunk, awake and not asleep, adult and already tied to the other spouse with a valid marriage.

 

c) It’s instrument must be an explicitely said/expressed word recognised as binding and final by the law of Islam e.g. he must say I am divorcing you and not use maybe or perhaps or tomorrow etc.

 

d) Judgement in the case of Nij’i any persons waiting period should have come to an end.  In the case of Ba’im all person Rij’i Talaqs must have been already done and the last waiting perios expired and the explicitly word of Talaq then uttered.

 

e) It is qualification is prohibited when there is no need for Talaq.  Wanton irresponsibility Talaq should be opposed and discouraged by the friend’s and relation of the couple and a judge may intervene to remedy any break-up or prevent any injustice.

 

f) Talaq is at least Mekruh and probably plain Haram when the woman is menstruating or in bad health so that the husband does not desire her or still in confinement after child birth that is to say when she is at her most disadvantaged.  A judge can again may intervene and stop any injustice.

1. A divorced wife suckling a baby is entitled to stay under her husband’s roof unless the husband hires another suckling woman to suckle his baby.  In this period all the woman’s needs must be paid for by the ex-husband.  These same expenses are payable during all waiting periods aswell.

 

2. A man with four wives if he divorces one of them irrevocably he cannot marry another woman until or unless the waiting period of the divorced wife ends.

 

3. All such rules and regulation are not unanimous among all Imams except the fundamental rules of divorce like it being only for three times therefore it is futile to debate these with people who are from other leafs or Meshebs.  In such cases it is better to just withdraw and don’t take part.

 

4. When a husband dies the marriage is certainly no more.  In this case the bereived wife should still wait a waiting period which will be 4 months this time only after which she can marry.

 

If she is not going to marry again as far as she can see she is entitled to live in the husband’s house for a whole year unless she herself decides to move out.  But to stay where she is in her ex-husbands house she cannot remarry.

 

KARAHIYET AND ISTISHAN - DETESTABLE AND PRAISWORTHY

 

BASIC TERMS

 

A. ISTIHSAN

 

In Fiqh it is opting for a solution to a problem which solution will be both legitamate and pleasing and helpful to the party needing the solution.  In more common terms Istihsan means seeking and doing what looks more kind and helpful under a given set of circumstances e.g. when you ignore an insult or do not return a wrong you most probably stop worse things from happening and your attitude can be called Istihsan.

 

In Fiqh when a Judge or Jurist delivers a solution to a dispute in such a way that all parties find the easier and more pleasant despite the fact that a harsher sentence could be pronounced on the basis of some verses and some Hadith the Judge or the Jurist can be seen as doing Istihsan.

 

B. KARIH

 

Karih means unloved, burdensome, painful or unsightly.  In Fiqh it is defined as going along and doing something which should rather not be done.  The thing is not illegal but unpleasant.

 

C. HAZR

 

Hazr means prevention in Fiqh it is also called Mahzur and means dangerous and harmful and therefore unallowed.

 

D. IBAHAH

 

Ibahah means to legalize, to allow.  Many things may or may not be done with no legal obstacle such things are called Mubah which is a looser term, a more relaxed term for Halal.

E. ZUHD

 

Zuhd is avoiding what is Halal just to be on better terms with Allah e.g. refusing too much pay for a job done or less than normal pay or abandoning some amount or worldly enjoyments and instead using ones time to worship Allah more.

 

The one who practises Zuhd is called a Zahid.  But in Islam Zuhd never goes to the extremes.  Christian or Hindu ascetic or monastic practise e.g. Celibacy is not Zuhd in Islam.  Marriage is strongly recommended to say the least.

 

SOME DESIRABLE (HASAN ACTS IN ISLAM)

 

Studying religious subjects.  To study a minimum amount to learn the basics of our religion is obligatory.  Doing more is very desirable if one is able to.

The next best person to a Prophet is a pious Alim.  Such an Alim stands for the Prophet anywhere he may be and is entitled to all respect and sometimes even obedience provided he conducts himself well and honourably.  Rasulullah (saaws) said “Only Ulama are the inheritors of Anbiya”.  Allah says “Only Ulama can fear Allah enough”, which means Jahils whatever their pretensions are bound to make many blunders.  Women are as entitled and required to learn Ilim although their means may not always be as suitable as they are for men.

 

An Alims first duty is Amr bil Ma’ruf which means advising people to do reputable things precious to Allah and the Prophet (saaws) and Nahy anil Munkar, discouraging people (except when serious Fitna is possible) if necessary with explanations and stop them if possible from committing sins especially oppressing others.

 

This has been in general terms such a successful institution among Muslims that many times respected great Alims were able to persuade powerful Kings to abandon their unjust intentions or persuade rich people to contribute to social welfare in a very big way.

 

It has been many times the case that Sultans knelt before Alims eagerly accepting their instruction and wept and offered repentance and changed their ways.