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.
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