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The Islamic Concept of Marriage: Its Nature, Purposes and Elements
- 1. The Islamic concept of marriage Mr. IQBAL SAUJAN Temp. Assist. Lecturer in Islamic Law & Legislation Department of IslamicStudies E-Mail: savjaniqbal@seu.ac.lk
- 2. 2 Content 1. Introduction 2. Nature of Marriage 3. Marriage in Modern Legislations 4. Purposes of Marriage 5. Legal Status of Marriage 6. Elements of marriage
- 3. 3 Introduction Marriage is a social institution as old as the human race itself. It may be defined as a relation between a man and a woman which is recognized by custom or law and involves certain rights and duties, both in the case of the parties entering the Union, and in case of the children born of it. Marriage has thus two main functions to perform: it is the means adopted by human society for regulating relations between the sexes; and it furnishes the mechanism by means of which the relations of a child to the community is determined. Family is the primary and essential unit of social organization and society. Islam does not approve of celibacy as a means of getting closer to Allah as is the case in catholic Christianity. It also forbids sexual relationship outside marriage bond and considers it a grave offence against the society.
- 4. 4 Nature of Marriage Nikah ()نكاح is an Arabic word which means joining. zawāj (اجَ وَ )ز is Synonym of Nikah. In Islamic Law, it means the contract held between spouses to make sexual intercourse lawful (Ayoup, n.d). Allah Almighty says: “َّ نِ هِلْ هَا ِ نْذِِ ِب َّ نُ هْ وُ حِ كْناَف” “So Marry them with the permission of their masters” (An-Nisa: 25) The prophet (PBUH) says “Marry one another, that you may increase”
- 5. 5 Continue.. Muslim jurists have formulated various definitions highlighting distinct features of marriage. Thus, in the light of their definitions a marriage contract can be described in the following way: 1. Marriage is a contract to render sexual relations between a man and women licit or lawful 2. It is a contract for the gratification of sexual needs and procreation of children. 3. Marriage is a legal relationship established by an agreement between man and women entitling them to sexual enjoyment. Some moderns jurists have expressed their dissatisfaction over this description of marriage on the ground that it does not reflect the true nature of marriage and objectives.
- 6. 6 Continue.. The sexual intercourse is important for procreating descendant but it is not sole objective of marriage. Legal Scholars argue that the Qur’an speaks of marriage in terms of life long companionship, mutual love, sympathy, tranquility and peace of mind. In summary, marriage is a contract which draws a line of demarcation between licit and illicit sexual relationship. Thus, it was necessary that this concept should have been embodied in any legal and technical definition.
- 7. 7 Marriage in Modern Legislation Syrian Family Law: Marriage is a contract between a man and woman on account of which the woman becomes legalized for man. It serves the purposes of creating among them a life long relationship. Jordanian law: Marriage is a contract between man and woman who is lawfully eligible to be his wife the joint life and procreation. Kuwaiti Law: Marriage is a contract between man and woman who can lawfully be wed to him to the end of tranquility, chastity and the strength of nation. Common Law of Sri Lanka: Marriage is union of a man and a woman contracted for the purpose of procreating and rearing children and of sharing all good and bad fortune with each other until death (Rajapakshe, 2020).
- 8. 8 Purposes of Marriage Marriage and family institution occupy vital importance in the legal system of Islam. Muslim jurists regard preservation of protection of family unit among the five fundamental objectives of shri’ah. The Quran describes marriage as mithaqan ghaliza (firm covenant) (4:21) as follows: ْذَخَاَّو ٍضَْعب ىٰلِا ْمُكُضَْعب ى ٰضْفَا ْدََقو ٗ هَنْوُذُخْاَت َفْيَك َو ْمُكْنِم َن اًظْيِّلَغ اًاقَثْيِّم The phrase “mithaqan ghaliza” implies that marriage is a sacred and sanctified contract, which is higher in status than ordinary civil contracts. Marriage in Islam is essentially a righteous act and act of devotion (Ibadah)
- 9. 9 Continue.. The Holy Prophet (PBUH) has emphasized مين فليس سنيت عن رغب فمن ، سنيت النكاح “Marriage is my sunnah, whoever turns away from my sunnah, does not belong to me” In another hadith the Prophet (PBUM) advised young men to enter the fold of marriage as a means to protect their morals and live a clean and virtuous life. مالك بن أنس عن ،احلديث هذا نص مسلم صحيح يف ثبت - عنه هللا رضي - قال أنه ( : َأ نِ م اً رَ فَن َّ أن ِ ابَ حْ ص ْ مُ هُ ضْعَب َ قالَف ،؟ِّ ِ رِّ ِ الس يف ِ هِلَ مَ ع عن هَ اجَ وْ زَأ واُلَأَ س ِِّ النب : َّ وَ زََتأ ال ْ مُ هُ ضْعَب َ قالَ و ،َاءَ سِِّالن ُ ج : َ قالَ و ،َ مْ حَّلال ُ لُ كآ ال ْ مُ هُ ضْعَب : َ قالَف ،عليه َ َنْثَأَ و ََّ اَّلل َ دِ مَ حَف ، ٍ اشَ رِف ىَلع ُ مَ ََنأ ال : ُ لَ ِب ما ،ُ مَ ََنأَ و يِِّلَ ُصأ ِِّ ينِ كَل ا؟َ ذَ كَ و اَ ذَ كقالوا ٍ امَ وَْقأ ِِّ ينِ م َ فليس َّيتنُ س عن َ بِ غَ ر نَ فم ،َاءَ سِِّالن ُ جَّ وَ زََتأَ و ،ُ رِ طْفُأَ و ُ ومُ َصأَ و
- 10. 10 Legal Status of Marriage Marriage to the majority of Muslim Jurists is sunnah (recommended). The literalists (Zahiris) consider it obligatory because they interpret the imperative of the Qur’an to mean a command. Other jurists argue that the legal position of each case should be decided according to the merit of the case, individually. Depending on the conditions of an individual, it may be obligatory for some and optional for others.
- 11. 11 Elements of marriage The marriage as civil contract has the following elements and essential requisites: According to the Shafi’i Jurists: i. Offer and acceptance ii. Contracting parties (Husband & Wife) iii. Tow witnesses iv. Guardian According to Maliki: i. Guardian ii. Dower iii. Contracting Parties (Husband & Wife) iv. Offer and acceptance
- 12. 12 Continue.. The Hanafi jurists acknowledge only one element: i. Offer and acceptance Thus, if a man said to a woman “I marry you, and she accepted”, or her guardian said: “I marry away my daughter to you” and the prospective husband accepted, the contract is concluded, in the opinion of Hanafi Jurists.
- 13. 13 Offer and acceptance The most essential element of the marital contract is offer or propositions from one side and acceptance from the other side. Normally the guardian of the bird makes offer by starting that he marries away the women on whose behalf he is acting, to the prospective husband. The bridegroom then declares his acceptance and that he has married the woman according to the terms specifies. The proposition and acceptance are both required to be completed in the same session.
- 14. 14 Continue.. Hanafi law does not require particular words for offer and acceptance. Any expression, which conveys the intention of the parties in clear terms is sufficient. Thus, it is permissible to use the words ziwaj, nikah and etc. for conveying offer. This shows that words denoting taking possession instantly without consideration such as gift and charity can also be used for the purpose of offer. Acceptance can also be communicated through different words such as qabiltu (I accepted), raditu (I agreed), tazawwajtu (I marry) etc. Sahfi’i and Hanbli jurists, do not permit to convey offer by the words other than ziwaj and nikah because these words convey the intention of parties in clear.
- 15. 15 Continue.. The consent of the parties may be express or implied. There is an express consent when the party expressly states in unequivocal words or act that he or she is agreeing to the marriage contract by the utterance of the words or by nodding of head or in the case of a deaf or dumb, by a gesture clearly manifesting conformity to the marriage contract, or writing, if able to do so. The bride’s consent is implied when upon being asked of her consent, she merely maintains her silence, simply smiles, or weeps silently. Implied consent is applicable only in the case of a virgin, a woman who has had no marriage experience but not in the case of a divorcee or a widow.
- 16. 16 Continue.. Conditions of offer and acceptance: i. The offer and acceptance should take place in a single session with no interruption. It is not allowed to give offer in one session and acceptance in another session. ii. The acceptance should conform to the offer in all aspects. Thus, if a man gave offer a dower of 4 pawn gold, and the woman accepted it for 3.5 pawn gold, the contract is not concluded on account of disagreement between offer and acceptance. iii. The contract should be immediately effective and enforceable. It is not allowed to make it effective from some specifies date in future. iv. The offer and acceptance should convey the sense of permanence. It is not allowed to fix some period for the existence of contract.
- 17. 17 Stipulations in marriage contract The contractual stipulations occupies a significant place in current debate and discourse on the rights of a modern Muslim world. The ideas of stipulations such on monogamy, delegated right to divorce, wife’s right to work outside the home etc. are gained considerable attention amongst Muslim feminists and activists in the last few years. As well as they regard these demands are tool for women’s empowerment. They insist on a Muslim women to phrase and design her marriage contract in such a way that in includes all necessary details about spousal rights and obligations. Many Muslim organizations are working on designing model marriage contracts grounded in Islamic classical principles to be used by the Muslim men and women intending to enter marriage contract. Egypt – New Marriage Contract (NMC), in Iran- during the divorce half of the wealth should be delegated to the wife, In America Karamah- monogamy, equal right to divorce, right of wife to pursue her education, waged employment.
- 18. 18 Stipulations in classical Islamic Law The Hanafi Opinion: Hanafi Jurists divide conditions into the valid conditions and Irregular Conditions. 1. Valid Conditions: which are in conformity with the requisite of the contract, and strengthen its purpose, such a stipulations that husband will provide as independent accommodation to her or will pay dower immediately or the father of husband will be guarantor for payment of dower. They are not repugnant to the injunctions of shari’ah. Valid conditions also include those conditions which are not collateral to marriage contract. Such conditions are permissible and must be complied. 2. Irregular Conditions: those conditions are neither collateral to the contract nor does shari’ah allow them such as a condition that each party will have the right to revoke contract within a specified period or the stipulation that the husband may not take a second wife. Such conditions are viewed by the Hanafi jurists as null and void.
- 19. 19 Continue.. The Maliki Opinion: Maliki Jurists divide conditions into the valid conditions and Invalid conditions. 1. Valid Conditions: ❖ Valid conditions are further divided into Proper and improper. Proper conditions are those, which conform to purpose of contract. Improper conditions are not repugnant to the purpose but create hardships for the husband and restrict his liberty such as stipulation that he will not take out of her hometown, or he will not marry another women etc. such conditions are not binding on the husband. 2. Invalid Conditions: Invalid conditions are those, which are repugnant to the requisite of contract or which are not allowed by the Shari’ah, such as condition by the husband that maintenance will be the responsibility of wife not the husband’s. such conditions are to be revoked if the marriage is not consummated. But id it has been consummated, then the contract will remain operative, the conditions alone will be abrogated. The wife in such case will get proper dower (mahr mithl) instead of specified mahar.
- 20. 20 Continue.. The Shafi’i Opinion: the shafi’i Jurists, like their maliki counterparts, also divide conditions into the valid conditions and void conditions. In their opinion valid conditions are permissible and are binding upon the parties whereas invalid conditions render the contract of marriage invalid.
- 21. 21 Continue.. The Hambali Opinion: i. Valid Conditions: the conditions which are collateral to the contract, or they entail some lawful advantage to one of the two contracting parties. For example: A condition that the husband will not marry another woman of he will not take away from her hometown etc. such conditions are binding on the parties. ii. Invalid Conditions: Invalid conditions are those, which are repugnant to the requisite of contract or they are explicitly prohibited by Shari’ah. These conditions are further divided into two kinds. a. The conditions which do not affect the contract: the contract remains valid, only the conditions is considered void and of no effect. For example: the conditions that the husband will not have sexual relations with her, or the conditions from the husband that the women will bear all the household expenses or he will divorce his first wife. b. The conditions which affect the vanity of the contract: that render it invalid such as to make marriage contract effective for a specified period, or to retain option to revoke contract within a specified period.
- 22. 22 Stipulations in Modern Legislations The modern codes of Muslim personal law are greatly inclined towards Hanbali school of law. i. The Tunisian Code ii. The Iraqi Code iii. The Syrian code iv. Kuwaiti code v. The Iranian law vi. The Moroccan code