Part II

Marriage
The Muhammadan Law has ordained the institution of marriage sanctioning thereby sexual relations between two members of the opposite sex with a view to [the] preservation of the human species, fixing of descent, restraining men from debauchery, the encouragement of chastity, and the promotion of love and union between the husband and wife and mutual help in leading one's life. Islam views it as a strong bond [and] a challenging commitment. It is a commitment to life itself, to society and to the dignified and meaningful survival of the human race. It is a commitment that married partners make to one another and to God. It is the kind of commitment in which they find mutual fulfilment and self-realization, love and peace, compassion and serenity, comfort and hope. 

All this is because marriage in Islam is regarded first and foremost as a religious act, an act of responsible devotion. Sexual control may be [a] moral triumph, reproduction a social necessity, sound health and gratifying state of mind. Yet these values [and] purposes of marriage would take on a special meaning and be reinforced, if they are intertwined with the idea of God [and] are conceived as religious commitments and internalized as Divine blessings. This seems to be the focal point of marriage in Islam!

There are [a] number of verses of the Quran stressing these points, values and purposes. Some are quoted below. 

“O ye mankind! Be mindful of your Lord who hath created you out of one single man and out of him created his mate and from the twain hath spread abroad so many men and women! And so be mindful of God in whose name you seek [a] relationship with one another, and respect th[at] relationship, Verily, God is watchful over you." (Q. 4: 1) 

"And one of His signs is that He hath created for you mates of your own species that ye may find comfort and rest in their company; and (with that end in view) hath put between you love and tenderness". (Q. 30:21)

It is a decent human relationship, authorised and supervised by God. It is a sign of His blessings and abundant mercy as laid down in the Quran (30 : 21) . Marriage in Islam is neither a sacrament nor a simple contract. It is something in between. 

Muslim jurists, therefore, regard the institution of marriage as partaking [in] both  the nature of ibadat or devotional acts or dealings among men. It is founded on [a] contract for which the consent of both the parties is essential. 

The Islamic provisions of marriage apply to men and women equally. It is recognized that the women's needs are equally legitimate and are seriously taken into consideration. Islam regards marriage robe the normal, natural course for women just as it is for men. It may be even moreso for women [because] it assures them, among other things, [of] relative economic security, but it is not the focal point of marriage. The Quran commands, 

And arrange the marriage of such among you and your virtuous slaves, mate or female, who are single. If they are poor, God in His bounty will bring them riches.' (Q. 29: 32)

A marriage, like any other contract, is constituted by [a] proposal and acceptance and does not depend for its validity upon the observance of any religious rites or ceremony. According to the Hanafis the proposal and acceptance must be witnessed by two properly qualified witnesses.

Persons between whom marriage is forbidden

In some cases, the prohibition is of perpetual nature as when it is based on the ground of consanguinity, affinity or fosterage. Persons so prohibited from inter-marrying are called makram. 

By reason of consanguinity, a man cannot marry any female ascendant or descendent of his, or the daughter of any ascendant, how high soever, or any descendent how low soever, or the daughter of his brother or sister or the daughter of a brother's or sister's daughter, and so on. On the ground of affinity, he is debarred from marrying a woman who has been the wife of any ascendant of his, any ascendant or descendent of the wife if the marriage has been consummated, or of any woman with whom he had unlawful connection and any woman who has been the wife of his son or grandson. The forbidden categories are mentioned in verses 23 and 24 of Surah 4 of the Quran. Generally speaking fosterage inhibits marriages prohibited by consanguinity.

Besides prohibitions of [a] perpetual nature, there are certain prohibitions of [a] temporary character in inter-marriages. Islam, a monotheistic religion, completely bars marriages with polytheists, but when both the spouses are followers of some revealed religion, the disability is only partial. A Muslim can marry a Christian woman or a Jewess, but a Muslim woman cannot marry a Christian or a Jew for there is every likelihood of her adopting the faith of her husband. This bar will be removed if the man embraces Islam. 

Then again, a man desiring to have more than one wife cannot marry a woman so closely related to his wife that there could have been no intermarriage between them because of the relationship. Thus, a man cannot marry two sisters, [the] aunt or niece of his wife. Then again, a woman who is observing iddat is forbidden to marry until that period is over. These prohibitions are laid down by a number of Quranic texts:

"And lawful to you are chaste believing woman and chaste women from amongst those who have received the Book before you..." (Q. 5 : 5)

"Do not wed women who associate others with God until they believe (in God, the One). A believing slave woman is better than a free woman who associates others with God ... and wed not your women to polytheists until they accept the Faith... (Q. 2:221)

A batil (void) marriage will be treated as if it was never contracted and no legal effects will flow from it. A fasid marriage is liable to annulment by the court, but certain legal effects arise from it, for instance, the parentage of the child born of such [a] marriage will come from the husband. He will be liable to pay proper Mehr on consummation of the marriage and the wife will have to observe iddat on separation.

Capacity to enter into a marriage contract

According to the Hanafi School, every person who is not a minor, whether male or female, maiden or thayyiba (that is, a girl [or boy] who has had sexual intercourse) is competent to contract marriage and cannot be given in marriage without his or her consent by the father or any other relative. The Shafi’s deny this right to marry on her own to a maiden, (sic) even if she has attained full age, but this view is not acceptable to [the] Hanafis as it would amount to [a] breach of [the] cardinal principle of Muhammadan Law that the legal status of a grown-up female is as complete as that of a male.

As mentioned in Fatawai-Alamgiri, the requisite conditions of validity of a contract of marriage are understanding, puberty and freedom in the contracting parties. [However] in the case of minors possessed of understanding, the consent of the guardian is essential.

Guardianship for [the] purposes of marriage

Guardianship for [the] purposes of marriage is allowed because of [the] necessity for a proper and suitable match -- which may not always be available. Guardianship extends to the father and grandfather and other relations in their absence. But when a minor is given in marriage by a guardian, other than the father or the grandfather, he or she can, in exercise of what is called the option of puberty, refuse to be bound by the marriage and ask the Court to annul the marriage. 

If [the]  guardian was the father or grandfather, a legal presumption is raised that they must have acted in the best interest of the minor. The presumption is, however, not conclusive and such a marriage can also be set aside in certain cases, when it is plainly undesirable and injurious to the minor.

There is [a] difference of opinion among the Hanafis as to the circumstances under which a marriage contracted by the father can be set aside. The accepted view seems to be that if the father was not a man of proper judgment and was of reckless character, and married his minor daughter to a man of immoral habits, it is liable to be set aside. Abu Yusuf and Muhammad go further [than] that [because] an evidently unequal, or undesirable marriage or marriage for less than proper dower of a minor female, or an excessive dower for a minor male is not valid, but Abu Hanifa does not share this view.

The permanence of marriage

Islam has prescribed certain measures to make the marital bond as permanent as humanly possible. The parties must strive to meet the conditions of: proper age, general compatibility, reasonable dowry, good-will, free consent, unselfish guardianship, honourable intentions and judicious discretion. In entering into a marital contract, the intention must be clear to make the bond permanent and free from the casual and temporary designations. As such, trial marriages, term marriages and all marriages that appear experimental, casual or temporary, are totally forbidden in Islam. 

The Prophet had unequivocally condemned men and women who relish the frequent change of partners, that is the tasters who enjoy a partner for a while and then shift to another. In one of the traditions of the Prophet, it is said that a woman is ordinarily sought as a wife for her wealth, for her beauty, for the nobility of her stock, or for her religious qualities, but blessed and fortunate is he who chooses his mate for piety in preference to everything else.

Besides guardianship, the law permits certain relatives of a female to object to a marriage contracted by her with a man who is not her equal. This authority is given to save the family from social disgrace. Equality is sought generally in the following matters: (a) lineage, (b) religion. (c) character (d) property, (e) profession, (f) status (such as of a free man, or a slave).

The condition of equality is insisted [upon] only with respect to the husband and not the wife. 

According to some authorities, the criterion of equality extends to the wife as a will. If a female marries an unequal husband against the wishes of her guardian, the marriage will be void, but if the guardian had initially agreed and raised [an] objection later on, the objection loses [its] validity.

Conjugal rights

Marriage confers rights [up]on the husband and the wife [is] subject to any specific stipulations made at the time of the marriage. 

The husband has the right to insist [that] his wife live with him and afford him access to her, to abstain from undue familiarity with outsiders, to obey him in reasonable matters and be faithful to him. This restriction upon her liberty is measured by the necessities of his own right. He cannot deny her the right to visit relatives. These rights will be suspended if he does not satisfy the corresponding rights of his wife. 

If the husband treats his wife with cruelty, the latter can refuse to live with him. The husband has the right to dissolve the marriage at his discretion. The husband's right to divorce or to marry another wife can be effectively, though indirectly, clogged by a stipulation fixing Mehr out of all proportion to his means by making a clear stipulation that if the man marries another woman the latter will be divorced at the instant of that marriage. 

The wife can also stipulate for [the] power to dissolve the marriage. This will be, however, discussed later on under a separate chapter. The husband does not acquire any right [of] control over his wife's property by the marriage. Whatever property she had before the marriage, remains exclusively her own and she is under no disability to acquire property by reason of coverture. The wife's legal capacity is in no way affected by marriage except as regards [to] contracting conjugal relations with others.

The wife has a corresponding right to that of the husband to demand the fulfilment of his marital duties towards her. She is to be maintained by the husband in a proper manner suitable to his own means and the position in [the] life of both. She is also entitled to accommodation from the husband's relations. If the husband has more than one wife, she has the right to be treated on [an] equal footing with [the] others in the matter of affection, attention and material comfort and conveniences. If her Mehr has not already been paid, she is entitled to its payment and if it is not paid, she can refuse conjugal relations.

Mehr which is generally translated as 'dower,' is either money in cash, or [an]other form of property to which the wife becomes entitled by marriage. It is not a consideration on the part of the husband, but an obligation imposed by law on the husband as a mark of respect for the wife. It carries the advantage that the wife has something to fall back upon in [the] case of divorce. If no Mehr has been specified at the time of the contract, she is still entitled to proper Mehr (Mehr-ul-mithl) that is customarily fixed for the females of her family. No specification of the dower does not howsoever affect the validity of the marriage.

The wife's right to [a] dower becomes complete on the consummation of the marriage either in full or by what the law treats as such, namely by valid retirement or on the death of either the husband or the wife. In [the] case of divorce or separation, for some reason imputable to the husband before there has been consummation or valid retirement, she is entitled to half of the specified dower and if no dower was specified, to a reasonable present called Muta. In case the separation or divorce is due to a cause imputable to the wife herself, she will not be entitled to any dower or present if the marriage has not been consummated. If the marriage has been annulled on the ground of invalidity, the wife will not be entitled to more than her proper dower.

The payment of the dower can be prompt (rnuajjal) or can be deferred as settled between the two parties. Whether it should be entirely prompt or in part prompt and part deferred, depends on the contract and in the absence of any stipulation on the point, on the custom of the country. During the subsistence of the marriage, the wife can demand what was to be prompt but she cannot force payment of the deferred portion. The quantum of Mehr is what is settled between the two parties and depends on the financial position and status of the two parties. There is a lot of misunderstanding among some Muslims that it has to be necessarily low as Hazrat Ali could not offer anything substantial while contracting marriage with Hazrat Fatima, the daughter of the Prophet. Hazrat Ali had almost nothing with him nor had the Prophet much, as is evident by what he gave to his daughter by way of Jahez.

The Husband-Wife Relationship

With piety as the basis of selection of partners and with fulfilment of conditions of marriage, the married couple should be well on the way to a happy and satisfying married life. Islam however, goes further in setting the behaviour for [the] husband and wives. There are many texts in the Quran and the Traditions that prescribe kindness and equity, compassion. love, sympathy and consideration, patience and goodwill. The Prophet had declared that the best Muslim is one who is best to his family, and the greatest and most blessed joy in life is good, righteous wife.

The two partners have to play their roles. Each role is a set of equitable proportionate rights and obligations. The role of the husband revolves [a]round the moral principle that it is his solemn duty to God to treat his wife with kindness, honour and patience [and] to keep her honourably. But if the incompatibility is so pronounced and the relations [have become] too strained, [he must] free her honourably from the marital bond (Q. 2 : 229-32; 4 : 19). 

The role of the wife is summarised in the verse that women have rights even as they have duties, according to what is equitable; but men are a degree above them (Q. 2:228). The slight superiority is to be read in conjunction with another passage which states among other things, that men are trustees, guardians and protectors of women because men excel in physical strength and because men expend their means (Q 4 : 34). By [the] very nature of things, [then,] men have to play the pivotal role in the upkeep and maintenance of their families. "This degree of superiority may be likened to what sociologists call 'instrumental leadership' or external authority in the household, due to the division of labour and role differentiation. It does not however, mean any categorical discrimination or superiority of one sex [over] the other."' It is just a statement of fact as it exists.

The Wife's Rights--The Husband's Obligations

These ethical principles when translated into rules of behaviour, allocate to the wife certain rights and corresponding obligations. It is the husband's duty to consort with his wife in an equitable and kind manner as commanded by God and the Prophet. He is responsible for the maintenance of his wife, a duty cast [up]on him which he must discharge cheerfully without reproach, injury or condescension. Maintenance entails [the] wife's incontestable right to lodging, clothing, nourish[ment], general care and well being. 

The wife has to be clothed and taken care of in accordance with the husband's means and her style of life. There is to be no extravagance or miserliness.

Apart from these material right[s], she has other rights of a moral nature and they are equally binding and specific. A husband is commanded by God to treat his wife with equity, to respect her feelings and to show her kindness and consideration. She is not to be kept under suspense or uncertainty and is not to be subjected to any harm or injury. If he has no love or sympathy for her, the wife has the right to demand freedom from the marital bond and no-one may stand in her way to a new life.

The main obligation of the wife is to contribute to the success and happiness of the marriage as much as possible. She must be attentive to the comfort and well-being of her male. A Quranic verse says:

“Our Lord! Grant unto us wives and offspring who will be the joy and comfort of our eyes and guide us to be models of righteousness." (Q. 25: 74)