Marriage
Prof. 'Abdur Rahman I. Doi Professor and Director, Center for Islamic Legal Studies,
Ahmadu Bello University, Zaira, Nigeria.
Importance of Marriage in Islam
Allah has
created men and women as company for one another, and so that they can
procreate and live in peace and tranquility according to the
commandments of Allah and the directions of His Messenger. The Quran
says:
"And among His
signs is this, that He created for you mates from among yourselves,
that you may dwell in tranquility with them, and He has put love and
mercy between your hearts. Undoubtedly in these are signs for those who
reflect." [Noble Quran 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." [Noble Quran 16:72]
These verses
of the Noble Quran 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 and blessings 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 sunnah. Whosoever keeps away from it is not from me."
With these
Quranic injunctions and the guidance from the Prophet (peace and
blessings be upon him) in mind, we shall examine the institution of
marriage in the Shari'ah.
The word Zawaj
is used in the Quran 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 and blessings 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 tranquility. 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 and blessings 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 and blessings be upon him) the remaining half of
the faith can be saved by Taqwa.
Conditions of Marriage
Careful
consideration of the Quranic injunctions and the traditions of the
Prophet (peace and blessings 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 order that
problems should not arise after marriage the Prophet (peace and
blessings 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 Quran, 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 Noble Quran:
Ijbar: A Safety Valve
The consent of
both the man and the women is an essential element of marriage, and the
Quran 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." [Noble Quran 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 and
blessings 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 Free Consent of the Parties
The Quran
[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 and blessings 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." [Bukhari]
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 and
blessings 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 Noble Quran 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." [Noble Quran 2:232]
With regard to widows, the Quran 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." [Noble Quran 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.
Prohibited Marriage Partners
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 Noble Quran:
"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."[Noble Quran 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 Quran expects Muslims to act with the utmost propriety and righteousness. It lays down:
"...but do not
make a secret contract with them except in honorable terms, nor resolve
on the tie of marriage till the term prescribed is fulfilled." [Noble Quran 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.
Two Suitors Seeking to Marry the Same Girl
The Prophet
(peace and blessings 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.
