Islamic Marital Jurisprudence

This article covers the aspects of Islamic Marital Jurisprudence.

In Islamic law (sharia), marriage (nikāḥ; نکاح) is a legal and social contract between two individuals. Islam is totally opposed to monasticism and celibacy. Marriage is an act of Islam and is strongly recommended; the age of marriage being whenever the individuals feel ready, financially and emotionally. Polygyny is permitted in Islam under some conditions, but polyandry is forbidden.

Types of marriage

Nikāḥ

Main article: Marriage in Islam

The Nikāḥ (نكاح, literally, “to collect and bind together”) is the first—and most common—form of marriage for Muslims. It is described in the Qur’an in Surah 4:4.

Regulations:

While intended to be a permanent state, it can be terminated by the husband engaging in the Talaq process or the wife seeking a Khula.
The couple inherit from each other.
A legal contract is signed when entering the marriage. However it is not a requirement that the contract be in writing. It may be oral, especially amongst illiterates; and if an agreed end-date is specified in the nikāḥ contract:
- In Sunni jurisprudence, the contract is invalid.
- In Shia jurisprudence, the contract defines a temporary marriage, nikāḥ mut’ah.

Requirement of witnesses:

two (2) witnesses from both sides

Permission from Wali:

Sunni: Compulsory (Maliki, Shafi’i, Hanbali) or Strongly recommended (Hanafi)
Shia: Depending on the scholar, it is either obligatory or obligatory based on precaution.

Islamic Marital Jurisprudence

Nikāḥ mut‘ah

Main article: Nikah mut‘ah

Nikāḥ mut‘ah (Arabic: نكاح متعة) is a temporary marriage. There is controversy on the Islamic legality of this type of marriage, since Sunnis believe it was abrogated by Muhammad or Umar, while Shias do not hold this view. According to Shia Hadith: Ali (r) said ‘Had Umar not banned Mut’ah then the only person to fornicate would have been a disgraceful person, since Mut’ah is easy, and one can attain the objective, there would have then been no need to indulge in haraam acts. It is clear that if Mut’ah’s abrogation was Sahih then Jabir would not have opposed Omar, and that if Islamic prophet outlawed it, the Companions would not have practiced it during the reign of Abu Bakr. Someone asked Abdullah bin Umar (about Mut’ah) saying: ‘Your father prohibited it. (Ibn Umar replied): ‘Is the order of the Messenger of Allah, more deserving to be followed, or the order of my father?’ [3].

However, similar to normal marriages that are common among Sunnis and Shi’ias, the woman still is given her mahr, and the woman must still observe the iddah, a period of time where the woman cannot remarry. This is to ensure that there is no pregnancy from the ex-husband and thus clarifies paternal lineage.

Quran 4:24 (Pickthall)- And all married women (are forbidden unto you) save those (captives) whom your right hands possess. It is a decree of Allah for you. Lawful unto you are all beyond those mentioned, so that ye seek them with your wealth in honest wedlock, not debauchery. And those of whom ye seek content (by marrying them), give unto them their portions as a duty. And there is no sin for you in what ye do by mutual agreement after the duty (hath been done). Lo! Allah is ever Knower, Wise.

Nikāḥ misyar

Main article: Nikah Misyar

nikāḥ Misyaar is a nikāḥ in Sunni’s carried out via the normal contractual procedure, with the specificity that the husband and wife give up several rights by their own free will, such as living together, equal division of nights between wives in cases of polygamy, the wife’s rights to housing, and maintenance money (“nafaqa”), and the husband’s right of homekeeping, and access etc. The difference between this and Mut’ah is that Mut’ah has the condition of a definite time period. Allowing both husband and wife aware of a separation date, prior to a marriage contract. Sunnah Scholars have said it is permissible to marry a Woman with the intention of getting divorced, If the Wife is not informed or expecting a divorce during a marriage contract.

Nikah Istibdaa

It is a marriage ( نکاح استبضاع) in which a husband would send his wife to another person, usually of noble lineage, to have sexual relations with him. The husband would refrain from sexual relations with his wife until she became pregnant by the other man. Afterwards, the man would claim paternity of the conceived child. This was done to get a child of noble breed. It was eradicated by Islam.

Nikāḥ Shighār

It is marriage (نکاح شغار) in which two men would exchange their daughters, sisters or other close women for marriage without paying Mahr. It was prohibited by Muhammad.

Nikah Halala

Main article: Nikah Halala

Nikah halala is a practice which was invented and has no religious background to it. It is also known as tahleel marriage and is a practice in which a woman, after being divorced by triple talaq, marries another man, consummates the marriage, and gets divorced again in order to be able to remarry her former husband. This practice is not from sharia law and is haram.

Nikāḥ ijtimaa

Main article: Nikah Ijtimah

This is polyandrous marriage, in which up to ten men would have sexual relations with the same woman at around the same time. When she bore a child she would call all the men and attribute paternity of the child to a man of her choosing. This practice was eradicated by Islam.

Interfaith marriage

Main article: Interfaith marriage in Islam

Muslim males may marry a non-Muslim female, specifically, one from the “People of the Book”, which includes Judaism and Christianity. Conversion is optional for the woman, but she is nonetheless charged with having a proper understanding of her respective faith as well as engaging in its true and thorough practise. Muslim women have been forbidden from marrying non-Muslims to avoid her and her offspring being coerced to change her religion after marriage.

Restrictions on marriage

Polygyny

Main article: Polygyny in Islam

Muslim men are allowed to practise polygyny, that is, they can have more than one wife at the same time, up to a total of four, per Sura 4 Verse 3. A man does not need approval of his first wife for a second marriage as there is no evidence in the Qur’an or hadith to suggest this. The only requirement is to create fairness among his wives and to never hurt one wife to please another as this would be unjust. If this requirement cannot be fulfilled, then he can only marry one woman.

Polyandry, the practice of a woman having more than one husband, by contrast, is not permitted. One of the main reasons for this would be the potential questioning of paternal lineage. The Quran states: (30:21): “And among His signs is that He has created for you, from your selves, mates, that you may incline towards them and find rest in them, and He has engendered love and tenderness between you. Surely in this are signs for people who reflect.”

Permissible age

Sahih Muslim permits marriage once a person reaches sexual maturity (i.e.: menstruation, voice changing, wet dreams) (baligh). Sexual maturity in Sharia law is typically understood to mean puberty. At the same time, intercourse is forbidden until they are able to physically bear it.

Other religions

Main articles: Interfaith marriage in Islam and Marital conversion § Islam

Traditionally, Muslim jurists hold that Muslim women may only enter into marriage with Muslim men. The Qur’an explicitly allows Muslim men to marry chaste women of the People of the Book, a term which includes Jews and Christians.

Arranged and forced marriages

An engagement may be arranged between families for their children, but Islamic requirements for a legal marriage include the requirement that both parties, bride, groom and guardian for the bride (wali), give their legal consent. A marriage without the consent of the bride or performed under coercion is illegal according to the majority of scholars.

If a girl has not attained the age of puberty, the vast majority of scholars hold that she cannot be married; and many stipulate that it must be in her best interest in order to be considered a valid marriage. There is some dispute as to whether or not an under-age bride can leave her family’s custody and be transferred to her husband’s custody, if she has not yet reached puberty.

Abu Hurayrah reported that the Prophet said: “A non-virgin woman may not be married without her command, and a virgin may not be married without her permission; and it is permission enough for her to remain silent (because of her natural shyness).” [Al-Bukhari: 6455, Muslim & Others]

It is reported in a hadith that A’ishah related that she once asked the Prophet: “In the case of a young girl whose parents marry her off, should her permission be sought or not?” He replied: “Yes, she must give her permission.” She then said: “But a virgin would be shy, O Messenger of Allah!” He replied: “Her silence is [considered as] her permission.” [Al-Bukhari, Muslim, & Others]

It appears that the permission of an under-age bride is indeed necessary for her marriage to be considered valid; the above narrations seem to clearly make the approval of the bride a condition for a valid marriage contract.

Adulterers

Islam does not give adulterous men the right to marry a chaste woman and nor may an adulterous woman marry a chaste man, except if the matter has not gone to court and the two purify themselves of this sin by sincere repentance.

Women of purity are for men of purity, and men of purity are for women of purity

— Quran 24:26

Other

A woman or man may propose marriage directly or through an intermediary (matchmaker).

Recognition or celebration of same-sex marriage is completely unjustified in the view of Islamic law. Islam forbids homosexuality in Qur’anic injunctions and Islamic tradition.

A marriage is registered by the Qadi who performs the short ceremony.

Unlike the wedding ring in Western societies, there is no visible sign worn to show a woman or a man is married. However, some Muslims have found the wedding ring to be a non-religious tradition and have used a ring.

Mahr

Main article: Mahr

Mahr is a mandatory gift given by the groom to the bride. Unlike a bride price, however, it is given directly to the bride and not to her father. Although the gift is often money, it can be anything agreed upon by bride and groom such as a house or viable business that is put in her name and can be run and owned entirely by her if she chooses.

Islamic marriage contract

Main article: Islamic marriage contract

The purpose, rules, and regulations of the Islamic marriage contract. A Muslim marriage is not a sacrament, but a simple, legal agreement in which either partner is free to include conditions. These conditions are stipulated in a written contract. Violating any of the conditions stipulated in this contract is legal grounds for a partner seeking divorce. The first part of the Nikah, marriage ceremony is the signing of the marriage contract itself.

Various traditions may differ in how Nikah is performed because different groups accept different texts as authoritative. Therefore, Sunnis will likely accept the hadith of Muhammad al-Bukhari, while Shia will have their own collections, for example Furu al-Kafi, thus producing different procedures. This contract requires the consent of both parties. There is a tradition, outside of the religion, in some Muslim countries to pre-arrange a marriage for young children. However, the marriage still requires consent for the wedding to legally take place.

Divorce is not forbidden as a last resort, however the dissolution of the contract Talaq, is often described as the most disliked of permissible things in Islam and should be used as a last resort.

Walima

Main article: Walima

The Walima is a dinner given by the groom’s side of the family to celebrate the welcoming of the bride to the family. It is a strong sunnah (the repetition of an action of Muhammad) and it is recommended to be held the earliest possible day after the Nikah.

Behavior within marriage

Spousal rights and obligations

Main article: Rights and obligations of spouses in Islam

Islam advocates a role-based relationship between husband and wife.

Abd Allah ibnUmar narrated:

The Prophet said, “All of you are guardians and are responsible for your wards. The ruler is a guardian and the man is a guardian of his family; the lady is a guardian and is responsible for her husband’s house and his offspring; and so all of you are guardians and are responsible for your wards.”

— Sahih al-Bukhari: Volume 7, Book 62, Number 128

It puts the main responsibility of earning over the husband. Both are obliged to fulfill the other’s sexual needs. Both are obliged to treat each other with kindness.

Separate accommodation for wife

The wife has the right to live in separate accommodation with her husband and children, if she does not like to share it with anyone like her in-law or relatives. This is the view of most of the Hanafi, Shaafa’i and Hanbali fuqaha. She also has the right to refuse to live with her husband’s father, mother and siblings.

Narrated ‘Abdullah bin ‘Umar: That he heard Allah’s Apostle saying, “Everyone of you is a guardian and is responsible for his charge; the ruler is a guardian and is responsible for his subjects; the man is a guardian in his family and responsible for his charges; a woman is a guardian of her husband’s house and responsible for her charges; and the servant is a guardian of his master’s property and is responsible for his charge.” I definitely heard the above from the Prophet and think that the Prophet also said, “A man is a guardian of his father’s property and responsible for his charges; so everyone of you is a guardian and responsible for his charges.”[Sahih Bukhari]

This indicates that a wife is responsible for the house of her husband. Also that a man should be the guardian of his family, i.e., after his marriage he moves out of his father’s house, and runs his own family affairs and is guardian of his family. In joint family, typically the head is either the father of the husband, or mother of the husband. This also indicates that a husband should look after his parent’s house, as “a man is a guardian of his father’s property”. So the wife should not object to her husband when he is looking after affairs of his parents.

Sexuality

Main article: Islamic sexual jurisprudence

Sexuality in Islam is largely described by the Qur’an, Islamic tradition, and religious leaders both past and present as being confined to marital relationships between men and women. While most traditions discourage celibacy, all encourage strict chastity and modesty (see haya) with regards to any relationships across gender lines, holding forth that intimacy as perceived within Islam (encompassing a swath of life more broad than strictly sex) is to be reserved for marriage.

Abd Allah ibn Mas’ud narrated:

We were with the Prophet while we were young and had no wealth whatever. So Allah’s Apostle said, “O young people! Whoever among you can marry, should marry, because it helps him lower his gaze and guard his modesty (i.e., his private parts from committing illegal sexual intercourse etc.), and whoever is not able to marry, should fast, as fasting diminishes his sexual desire.”

— Volume 7, Book 62, Number 4:

While adulterous relationships are strictly forbidden, permissible sexual relationships within marriage are described in Islamic sources as great wells of love and closeness for the couple involved. Sexual relationship between married couples are even source of rewards from God as doing the opposite; i.e., satisfying sexual needs through illicit means has punishment. Specific occasions (most notably daytime fasting (see sawm) and menstruation) are times forbidden for intercourse, though not for other ways of touching and being close to one another. Anal sex with one’s wife is also strictly prohibited.

Islam has an open and playful approach to sex so long as it is within marriage, free of lewdness, fornication and adultery.