PART II TRANSACTIONS
Chapter V - Marriage
Transactions are subdivided into marriage; inheritance; contracts; sale; barter and agency.The third section of the Muslim Law concerns transaction, (Arabic: Mu’âmalât).
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:
- Unequality of status of man and woman.
- Insufficient dower.
- If the Muslim husband embraces any religion other than Islam.
- If a husband charges his wife with adultery, even though she swears that she is innocent and the former insists that she is not.
- If the husband is imprisoned for such a length of time that she suffers from want of living.
- 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.
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.
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”.
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 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.