Marriage

Pre-Islamic Background
Definition of Marriage
Formalities of Valid Marriage
Nature of Muslim Marriage
Persons with whom Nikah is Haram
Forms of marriage
The Free Consent of the Parties
Marital love in Islam inculcates the following
Is Marriage obligatory?
The husband/wife relationship

 When news is brought to one of them, of
[the birth of] a female [child], his face
darkens, and he is filled with inward
grief! With shame does he hide himself
from his people, because of the bad news
he has received! Shall he keep this [child]
despite the contempt [which he feels for
it] or shall he bury it in the dust? Oh, evil
is indeed whatever they decide!" - The
Quran (16:58-59)

 The atrocious practice of female infanticide has
become the ultimate symbol of women’s oppression in
pre-Islamic Arabia.
 As appalling as it is, however, female infanticide should
not be the sole basis for assessing the status of women
in the society before Islam.
 Arabia was a vastly diverse, tribal society, and women’s
rights, in turn, varied according to the prevailing
customs and traditions of the tribes.
 To claim that Arab women were universally inferior to
men, and had absolutely no rights before Islam is too
simplistic, and does not do justice to the women of this
period. Their status, therefore, deserves a more
careful analysis.

 One of the few facts that is universally
agreed upon is the diversity of the
Arabian society prior to Islam.
 Arabia was comprised of diverse
communities with different customs,
languages and lifestyles.
 As the social and cultural norms varied
from place to place, so did women’s
rights.
 To better understand this diversity and its
impact on women, a brief overview of the
pre-Islamic Arab society is in order.

 Islamic Marriages refers to all marriages
that have been contracted between a
Muslim male and Muslim female immaterial
of their races and ages, and have been
witnessed by at least two males or a male
and two females. Generally, the marriage is
solemnized by a Muslim male and it is
immaterial whether the person who
solemnizes the marriage is considered a
qualified scholar of Islamic Law, has any
form of qualification from any Islamic
Institute or whether he sufficiently knew
and understood the Islamic format of
executing a marriage.

 Justice Mahmood: “Marriage among
Muhammadans is not a sacrament, but purely
a civil contract”.
 M.U.S. Jung: “Marriage though essentially a
contract is also a devotional act, its objects
are the right of enjoyment, procreation of
children and the regulation of social life in
the interest of the society.”

 Nikah is a great bounty from Allah Ta'ala. The
affairs of this world and the hereafter are put in
order through marriage.
 There is a lot of wisdom and many benefits in
marriage. A person saves himself from sinning
and his heart is put at ease. He does not have
any evil intentions and his thoughts do not begin
to wander and stray.
 The greatest virtue is that there are only
benefits and only rewards in this. This is because
a husband and wife’s sitting together and
engaging in a loving conversation, joking with
each other, etc. is better than nafl salat.
Formalities of Valid Marriage

 A marriage can be executed by just two
words, e.g. a person says the following
words in the presence of witnesses: "I give
my daughter to you in marriage." The
person who is addressed replies: "I accept
her in marriage.“
 In so doing, the marriage is valid and both
of them are lawful husband and wife.
However, if the person has several
daughters, the nikah will not be executed
by his uttering the words mentioned above.
He will have to mention the daughter by
name, e.g. he says : "I give my daughter,
Fatema, to you in marriage", and the
person replies : "I accept her in marriage."

 A person says: "Give so-and-so daughter of
yours to me in marriage." The father replies:
"I give her to you in marriage." In so saying,
the nikah will be valid irrespective of
whether he says that he accepts or not. (In
other words, it is not necessary for the word
"accept" to be mentioned).
 If the daughter is present and the father
says: "I give this daughter of mine in
marriage to you", and the person replies: "I
accept her", the nikah will be valid. It will
not be necessary to mention her name.

 If the girl is not present, it is necessary to
mention her name and the name of her
father in such a loud tone that all the
witnesses are able to hear. If the people do
not know the father and there is a strong
possibility that by mentioning his name they
will still not know whose nikah is being
performed, then it will be necessary to
mention the name of the grand-father as
well. In other words, such identification is
necessary whereby those present
immediately know whose nikah is being
performed.

 In order for a nikah to be valid, it is also
essential for at least two males or one male
and two females to be present, to hear the
nikah being performed, and to hear the two
words (i.e. the offer and the acceptance)
being uttered. Only then will the nikah be
valid. If two persons sit together in privacy
and one says to the other : "I give my
daughter to you in marriage" and the other
person replies : "I accept your daughter", the
nikah will not be valid. Similarly, if the nikah
was performed in the presence of one person
only, even then the nikah will not be valid.

 If there are no males present, but only
females, the nikah will not be valid even
if there are ten females present. Together
with two females, one male has to be
present.
 If there are two males but they are not
Muslims, the nikah will not be valid.
Similarly, if both are Muslims but both or
one of them is immature, the nikah will
not be valid. Similarly, if there is one
male and two females but both or one of
the females is immature, the nikah will
not be valid.

 It is preferable to perform the nikah in a
large gathering such as after the jumu'ah
salat in a jumu'ah musjid or in any other
large gathering. This is so that the nikah
will be well announced and the people
will become aware of the nikah. A nikah
should not be performed in secret and
privacy. However, if due to some reason
many persons are unable to attend, then
at least two males or one male and two
females who hear the nikah being
performed in their very presence should
be present.

 If both the man and woman are mature,
they can perform their own nikah. All that
they have to do is say the following in the
presence of two witnesses: One of them
must say: "I am making my nikah with
you" and the other must say : "I accept."
In so doing, the nikah will be valid.
 If a person does not make his nikah
himself, but asks someone to perform his
nikah with someone, or, he mentions the
name of the person with whom he wishes
his nikah to be performed and this person
performs this nikah in the presence of
two witnesses - the nikah will be valid.
Even if this person rejects or denies this
later, the nikah will still be intact.

 The judgment I Abdul Kadir v. Salma, ILR(1886) 8
All 149, iss one of those classic pronouncements
of the illustrious Mr. Justice Mahmood, the first
Indian Judge of the Allahabad High Court, which
has acquired so great a reputation that its obiter
dicta carries the legal sanctity of ratio
decidendi. The case is one on the restitution of
conjugal rights, yet Justice Mahmood’s
observations on-
 a. nature of marriage
 b. husband’s liability to pay dower
 c. matrimonial rights of the husband and wife
 d. general rules of interpreting Hanafi Law
This judgment has won universal recognition not
only of various High Courts but also of the Privy
Council and the Supreme Court.

 In determining the nature of Marriage Fyzee has
enumerated three aspects:
Legal Aspect: Marriage has legal aspect. It has
legalized sexual intercourse and procreation and
legitimating of children.
Social Aspect: Marriage gives to the women a
higher status and restrictions upon unlimited
polygamy.
Religious Aspect: Marriage is an institution leads to
the uplift of man and is a means for the
continuance of human race. Prophet Muhammad
(Sm) said: “No institution of Islam is liked by
Allah more than that of marriage.”
Personal Aspect: The basic object of marriage In
Islam are, securing comfortable atmosphere for
a husband and wife and, producing a new
generation of healthy, faithful and virtuous
children.

 Marriage with one's children, grand-children,
great grand-children, etc. is not permissible.
Nor is marriage with one's parents, grand-
parents, maternal grand-parents, etc.
permissible.
 Marriage with one's brothers, uncles and
nephews is not permissible. According to the
Shari‘ah, a brother is one whose mother and
father is the same, or they have one father but
two mothers, or one mother but two fathers.
They are all brothers. But if the father is
different, and the mother is also different;
that person will not be a brother. Nikah with
him will be valid.

 Marriage with one's son-in-law is not
permissible. This is irrespective of whether the
daughter is already living with him or not. In all
cases, nikah with him is haram.
 A girl's father passed away. Her mother married
another person. However, before the mother
could even live with her new husband, she
passed away or he divorced her. In such a case,
the girl can marry this step-father of hers.
However, if the mother lived with him, it will not
be permissible for this girl to marry him.
 Nikah with one's step-children is not valid. In
other words, if a man has several wives, then
one of the wives cannot marry the children of
the co-wives. This is irrespective of whether she
had lived with her husband or not. Nikah with
these children is prohibited under all
circumstances.

 It is not permissible for a woman to marry
her father-in-law or even the father or
grand-father of her father-in-law.
 As long as a sister is married to her husband,
it is not permissible for another sister to
marry this brother-in-law of hers. However, if
her sister passes away or he divorces her and
she completes her iddah, it will be
permissible for the other sister to marry her
brother-in-law. In the case where the
brother-in-law divorces the first sister, it is
not permissible for the second sister to
marry her brother-in-law until her sister
completes her iddah.

 If two sisters marry one person, the marriage
of the sister whose nikah was performed first
will be valid while the marriage of the sister
whose nikah was performed later will not be
valid.
 A man married a woman. As long as he
remains married to her, he cannot marry her
maternal and paternal aunts and nieces.
 If the relationship between two women is
such that if we had to regard one of them as
a man, their nikah will not be valid, then
such two women cannot marry a person at
the same time. When one of them passes
away or one of them is divorced and
completes her iddah, only then will it be
permissible for the person to marry the other
woman.

 If a woman and her step-daughter marry a
person at the same time, the nikah will be
valid.
 Adoption is not considered in the Shar i ‘ah.
By adopting a boy, he does not become one's
son. It is therefore permissible to marry one's
adopted son.
 If a man is not one's real uncle but he
becomes an uncle through some other distant
relationship, marrying him is permissible.
Similarly, if a man happens to be one's
paternal uncle or nephew through some
distant relationship, nikah with him is
permissible. Nikah with one's cousins is also
valid irrespective of whether they are
paternal or maternal cousins.

 Two women who are not blood sisters but are maternal
or paternal cousins are permitted to marry one man at
the same time. In the presence of such a cousin, another
cousin can also marry the same man. The same rule
applies to a very distant maternal or paternal aunt. That
is, the niece and this distant maternal or paternal aunt
can marry the same man at one time.
 All the relations, which become haram on account of
lineage also become haram on account of breast-feeding.
In other words, if a girl is breast-fed by a particular
woman, then this girl cannot marry the latter's husband
because he will now be regarded as her father. A girl who
has been breast-fed by a particular woman cannot marry
a boy who has been breast-fed by the same woman. Nor
can this girl marry the children of this woman because
she is also regarded as a child of this woman. All the
maternal and paternal uncles and maternal and paternal
nephews who become related due to this breast-feeding
also become haram on this girl.

 If two girls have been breast-fed by one
woman, they cannot marry the same man
at one time. In other words, whatever has
been explained previously, will also apply
to relations based on breast-feeding.
 A man committed adultery with a certain
woman. Now it will not be permissible for
her mother or her children to marry this
man.
 Due to the passions of youth, a woman
touched a man with evil intentions. It will
now not be permissible for her mother or
her children to marry this man. Similarly,
if a man touches a woman with evil
intentions, her mother and her children
will be haram on him.

 In the middle of the night, a man decided to
awaken his wife. However, he mistakenly
touched his daughter or his mother-in-law.
Thinking them to be his wife, he touched
them with the passions of youth. Now, this
man will become haram on his wife forever.
There is no way in which she can become
permissible for him. It will be necessary for
him to divorce his wife.
 If a boy touches his step-mother with an evil
intention, she will become haram on her
husband. There is no way in which she can be
halal for him. If the step-mother touches her
step-son with an evil intention, the same
rule will apply.

 A Muslim woman cannot marry a man who
belongs to any other religion. She can
only marry a Muslim man.
 A woman's husband divorced her or he
passed away. As long as she does not
complete her iddah, she cannot marry
anyone else.
 Once a woman marries a man, she cannot
marry another person unless and until she
is divorced by this person and also
completes her iddah.
 The marriage of a Sunni girl with a Shi'ah
man is not permissible according to the
majority of the ulama.

 If a woman is not married and she falls
pregnant due to adultery, it will be
permissible to marry her. However, it will
not be permissible to have intercourse
with her until she delivers the child. But
if the woman marries the same person
who had committed adultery with her, it
will be permissible for the person to have
intercourse with her.
 If a person has four wives, he cannot
marry a fifth woman. If he happens to
divorce one of his four wives, another
woman cannot marry him until the one
who is divorced completes her iddah.

 There are three types of Marriage:
Valid Marriage or Shahi Marriage
Irregular Marriage or Fasid Marriage
Void Marriage or Batil Marriage

 A marriage may either be (A) Valid (Sahih) or (B)
Void (Batil) or (C) Irregular (Fasid). A marriage
which conforms in all respect with the law, it is
termed as Valid, Sahih or Correct.
 For a valid marriage, it is necessary that there is no
prohibition affecting the parties or it should not be
void or even irregular marriage.
 There are seven prohibitions to mary any person of
the opposite sex. Some of them are temporary
whereas some of them are permanent or perpetual.
If prohibition is perpetual or permanent, marriage is
void.
 A void marriage is an unlawful connection which
produces no mutual right and obligations between
the parties. Such marriages are considered as
totally non-existing in fact as well as in law. If the
prohibition is temporary, marriage is irregular.

Capacity :Limitation on Age
 As earlier stated, the marriage agreement is a contract
between two persons bearing sound mind. Since the idea of
‘sound mind’ is quite broad, in order to avoid any confusion
it only excludes “insane” or “lunatic” from the contract of
marriage.
 Attaining puberty is very important for a marriage
contract. It demonstrates that parties to the contract are
mature enough to independently express their consent.
 It is,however, confusing as to when one gets puberty. There
are many dissenting opinions on this issue among the
different schools of thought.
 Under Muslim Law a child becomes an adult upon attaining
puberty which varies with gender. An average female child
ceases to be a child upon attaining puberty at the age of 12
years and an average male child on reaching 15 to 16 years
of age. According to the Hanafi school a girl attains her
puberty at the age of 15, which in other schools are even
lower.

 The Hanafi school, nevertheless,does not rule
out a marriage contract written before the age
of 15. But in that case the girl has the right to
repudiate the marriage once she attains
puberty.
 In this case the marriage contract is arranged
by their guardians. According to prevailing laws
puberty is determined on the basis of one’s
attaining majority.
 As a matter of fact, the term puberty is no
longer relevant. What is relevant for a marriage
contract is whether one has crossed the age of
minority.
 Laws regarding majority were enacted at
different times and in response to different
situations.

 The concept of minor or child has, thus, been
given varied definitions by different acts and
statutes in force in Bangladesh.
 The Bangladesh Majority Act of 1875 defines a
person below the age of 18 years to be a child.
The Guardians and Wards Act of 1890 states
that if a child is made a ward of court then
he/she will remain a ward until 21 years, thus
defining him/her as a child up to that age.
 The Children (Pledging of Labor) Act of 1933
regards a person below the age of 15 years as
being a child.
 The Factories Act of 1965 defines a child as a
person who has not completed 16 years of age.

 The Children Act of 1974 states that a child is a person
below the age of 16 years.
 The legal system in the country also makes a distinction
between boys and girls in defining a child. This is
especially apparent in the Child Marriage Restraint Act
of 1929. In this Act the age of majority, defined in
terms of contracting a valid marriage has been placed
at 21 years for boys but 18 years for girls. It does not,
however, contemplate that marriage contract under
that age is void. Rather such marriage is subject to the
condition that the parties have right to repudiate upon
attaining majority.
 Though a minor may be given in marriage, no minor may
contract herself in marriage during her minority and any
such marriage would be held to be void.
 Where a minor has been given in marriage and marriage
has been consummated before puberty such
consummation does not operate to deprive the minor of
the option to repudiate after puberty.

 Forced marriage is prohibited in Islam. It
could be assumed from the discussion of
previous section that age of puberty is
necessary so that one can freely express his
or her consent.
 So, Islam prohibits marriage where a woman
(or man) does not have consent.There are
guiding principles through the Hadit in this
regard.
 The Prophet Mohammad(SAS) had advised a
girl, on her complaint that her father had
forced her to marry without her consent,
that she had a choice either to accept or
invalidate the marriage (Ibn Abbas, Journal
of International Women’s Studies Vol 5 #1
Nov 2003 98 in Ibn Hanbal No. 2469).

 In another version, the girl said: “Actually I
accepted this marriage but I wanted to let
women know that parents have no right (to
force a husband on them)” (Ibn Maja, No.
1873).
 Therefore, it is established in Islam that forced
marriageis not at all a marriage if not accepted
or invalidated by a woman (or even a man).
 Free consent is a requirement for a valid
marriage under Bangladeshi law. A woman
cannot be forced and she cannot be given in
marriage unless she freely agrees on it.
 A free consent is to be expressed in front of at
least two witnesses and thereafter to be
properly signed in order to have the effect of
valid marriage.

 As mentioned earlier, one could only express
his or her free consent once he or she reaches
the age of marriage according to the applicable
law.
 If a marriage is completed before that age
through the action of a guardian, it is subject
to approval upon reaching the prescribed age
by the either party and registered properly.
Otherwise in the eye of law it is not at all a
marriage.
 In the year 2000, in the High Court Division of
Bangladesh a case6 concerning interim (hilla) a
forced marriage caused by a fatwa given by a
local Imam was declared illegal.
 There is no place for fatwa in Bangladesh’s
legal system, because laws are enacted in the
Parliament and applied through the courts.

 This restriction comes from the classical
Islamic tradition that a Muslim man can
validly marry a kitabi (Muslim or Jewish or
Christian) woman.
 The legal consequences of this kind of
marriage would follow a full valid marriage.
Whereas a Muslim man can also marry a non-
kitabi, and the marriage would be regarded
merely as an irregular one. Such a marriage
would become fully legal when it becomes
regular. For example, when, if a man is
married to a non-kitabi woman, and she
converts to Islam, the marriage becomes
regular or valid from the time of her
conversion.

 This rule discriminately applies for a Muslim
woman in Islamic law. No Muslim woman can
validly marry a non-Muslim man, even a
kitabi, unless he becomes Muslim.However,
marriage with a kitabi man is not prima facie
void, but irregular.
 Any marriage with other religion, for
example with Hindu, would amount to a batil
or void marriage where no legal consequence
would be followed from such marriage. Rules
regarding such restriction on marriage are,
without any change, followed in the legal
system of Bangladesh.

 The irregular (Fasid) marriage creates a
flimsy tie giving very few rights but as
regards the issue, they are given full legal
status.
 It was said by the Privy Council in a case
dealing with a Chinese conjugal union
that "a court may do well to recollect
that it is a possible jural conception that
a child may be legitimate though its
parents were not and could not be
legitimately married."

 A Fasid marriage may be terminated by
either party at any time; neither divorce
nor the intervention of a court is necessary.
 One of them may say I have relinquished
you" and the unholy alliance ends. If there
has been consummation, the wife is
entitled to dower (Mahar), proper or
specified, whichever is lesser and she must
observe Iddat for three courses.
 While between the wife and husband no
right of inheritance is created, the issues
are entitled to share of inheritance. The
following marriages have been considered
to be irregular under the Muslim Law:

i. Marriage without witnesses.
ii. Marriage with woman undergoing
Iddat.
iii. Marriage prohibited by reason on
difference of religion.
iv. Marriage in contravention of rules
of unlawful conjunction.
v. Marriage with two sisters during
the life time of the other.
vi. Marriage with Fifth wife.

 As aforesaid, there are seven prohibitions
to marry any person of the opposite sex.
Some of them are temporary whereas some
of them are permanent or perpetual.
 If prohibition is perpetual or permanent,
marriage is void. A void marriage is an
unlawful connection and no mutual rights of
inheritance between the parties arise and
also children get any right of inheritance.
Children cannot be even "acknowledged" as
children are illegitimate.

 Such marriages are considered as totally non-
existing in fact as well as in law. Marriage being
void, no question of separation arises.
 As a matter of law, either party can remarry
without Talaq; however, rule of prudence would
require that parties obtain a Decree of Nullity from
the competent Court of Law so as to avoid future
confusions and disputes.
 Marriage becomes void (a) on account of
relationship - marrying with mother or daughter or
foster sister etc. or (b) when man marries the wife
of another man, (c) when Marriage contracted
without the requisite Consent or (d) when Marriage
is repudiated under Khairul Bulgh.

 The terminology 'Muta' is used when parties
(bridegroom and bride) intent to enter into
a temporary nature of their marital union -
in which case - period of temporary union
may be either specified or unspecified.
 When period is unspecified and during the
subsistence of Muta (marriage), if one of
the parties (bridegroom or bride) dies then
also the character of marital relationship
remains unaffected. Muta remains Muta.

 It does not get converted into Nikah just
because the relationship lasted for life
long. On the other hand, when the
marriage is for a lifelong period and for one
reason marriage breaks down by Talaq or
Divorce, the broken marriage will be called
as Nikah and it is never transformed into
Muta just because the marriage did not last
even for a day.
 The determining factor to ascertain as to
whether it is Nikah or Muta is to ascertain
the intention of the parties (bridegroom) at
the time of entering into a Contract of
marital relationship.

If the intention is for a temporary
marriage, it is called as Muta but if
the intention is for a permanent
marriage it is called as Nikah. It may
so happen that Nikah may end up
immediately after solemnizing the
marriage while Muta may continue
lifelong! Nevertheless, the criteria
and determining factor always
remains the intention of the parties'
(bride-bridegroom) at the time of
marriage and nothing else.

 Indeed, Muta is an exception to the general
rule of Nikah. Among Arabs, Nikah -
Marriage is a wide term, comprising many
different forms of sex relationship but in
Islam it is a contract for the legalization of
sex relation in and procreation of children.
 In a leading case Mahmood J. observes:
"Marriage among Mohammedans is not a
sacrament, but purely a civil contract and
though solemnized generally with recitation
of certain verses from the Quran, yet the
Muslim Law does not positively prescribe
any service peculiar to the occasion."

 The word Muta literally means 'enjoyment', 'use.'
In its legal context, it means marriage for
pleasure for a fixed period for which a certain
reward is paid to the woman. The institution of
muta marriage was fairly common before the
after Prophet.
 It seems fairly certain that it was tolerated by
the Prophet for sometime but all schools of law
except Ishna Ashari agree that the Prophet of
Islam finally had declared such marriages
unlawful. In Lucknow and other places in India
where there is Shia (Ishna Ashari) population,
ladies of the better classes do not contract Muta
marriages. The custom of Muta was justified as
being useful in times of war and travels but it is
well to remember that it is forbidden by all
schools except by the Ishna Ashari Shias.

 There must be a proper contract i.e., Offer
and Acceptance are necessary.
 Subject:
 A man may contract a Muta with a Muslim,
Jew, Christian or a fire worshipping woman
but not with the follower of any other
religion. But a Shia woman may not contract
a Muta with a non-Muslim. Relations
prohibited by reason of affinity are also
unlawful in Muta. A man may contract any
number of women and the prohibition of four
wives at a time does not apply to Muta
marriages.

 The period of existence of marriage must be specified
at the time of marriage. It may be one day, one month,
one year or a term of years or else for a life time. It
was, inter alia, laid down that where specification of
period is omitted, intentionally or inadvertently, a
permanent marriage (NIKAH) will be presumed because
where the period is for life, Nikah marriage will result.
With respect, it may be submitted that the view taken
in this case does not appear to be correct. The mere
omission of a period may result in a valid Muta for life
but to equate the Muta with Nikah is a serious step,
which inter alia, fails to take into consideration the
question of intention.
 A Muta stands terminated on the expiry of period and
Divorce (Talaq) is not necessary. During the period, the
husband has no right of divorce but he may make a 'gift
of the term' (hiba-i-muddat) and thereby terminate the
contract without the wife's consent.

 Mahar is a necessary condition of such a
union. Where the marriage is consummated,
the wife is entitled to the whole amount and
if not consummated, half of the amount of
Dower.
 A short period of Iddat of two courses is
prescribed if - marriage is consummated. If
there is stipulation of inheritance, in the
muta agreement, husband or wife would
inherit but not otherwise.
 The term 'wife' is not used for a woman
marrying under Muta. She is not entitled for
the maintenance under the strict Islamic
Law.

 An agreement between man and woman designed
to regulate marital relations is favoured by the
law, as being in consonance with the Prophet's
injunctions. Such an agreement may be made
either at the time of marriage or thereafter. It is
called as Kabin Nama or Marriage Deed. The Courts
will enforce it if it is not contrary to the provisions
or the Policy of Law. As the husband has a right in
general to control the actions of wife, the wife can
make safeguarding her right to stay freely
wherever she likes and with guarantee of regular
payments to her.
 In Kabin Nama, wife can ask the husband to give
over his right to divorce to someone else and/or
not to marry again with any other woman during
subsistence of the marriage. In this way she can
protect her interest very well.

 Wife can also ensure regular payments for
her day-to-day expenses. Such expenses
are termed as 'pandan kharchi' or 'kharchi-
e-pandan' or 'Meva khori' or 'Guzara.' In
English system, 'pin money' is meant for
personal expenses of the wife.
 The 'pin money' is described as a fund
which wife may be made to spend at the
instance of and at the advice of her
husband. No such obligation exists with
regard to pandan kharchi and the husband
has no control over the allowance.

 A father agreed at the time of marriage of his minor
son (wife also minor) that he would pay the sum of
Rs. 500/- per month in perpetuity to his son's wife.
The payments were to be made from the date of
'reception' of the wife in her conjugal home. Later,
on account of differences, she left the conjugal
home and sued for the amount due to her. It was
held that she was entitled to recover the whole
amount notwithstanding the fact that she was not a
party to the agreement.
 She was clearly entitled in equity to enforce her
claim. Further, since there were no conditions
attached to the payments, it was quite immaterial
whether she stayed with her husband or not. The
only condition which was stipulated was that there
was a 'reception' and if that was proved, her claim
cannot be resisted.

The breach of a valid condition in a
marriage agreement does not necessarily
give the wife a right to have the
marriage dissolved.
As a result of breach in the marriage
agreement (1) wife may refuse her
company and/or the restitution may be
refused (2) certain right as to the Dower
may arise (3) wife may have the right to
divorce herself if such right flows from
agreement and (4) in extreme cases
marriage itself may be dissolved, ipso
facto.

The Free Consent of the Parties
 The Quran [4:21] refers to marriage as 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.

 Faith: The love Muslim spouses have for each
other should be for the sake of Allah and to gain
His pleasure. It is from Allah that we claim our
mutual rights (Quran 4:1) and it is to Allah that
we are accountable for our behavior as husbands
and wives.
 It sustains: Love is not to consume but to
sustain. Allah expresses His love for us by
providing sustenance. To love in Islam is to
sustain our loved one physically, emotionally,
spiritually and intellectually, to the best of our
ability. (Note : To sustain materially is the
husband’s duty. However, if the wife wishes she
can also contribute)

 Accepts: To love someone is to accept them for who
they are. It is selfishness to try and mould someone as
we wish them to be. True love does not attempt to
crush individuality or control personal differences, but
is magnanimous and secure to accommodate
differences.
 Challenges: Love challenges us to be all we can, it
encourages us to tap into our talents and it takes pride
in our achievements. To enable our loved one to
realize their potential is the most rewarding
experience.
 Merciful: Mercy compels us to love and love compels
us to have mercy. In the Islamic context the two are
synonymous. The attribute Allah chose to be the
supreme for Himself is that He is the most Merciful.
This attribute of Rahman (the Merciful) is mentioned
170 times in the Quran, emphasizing the significance
for believers to be merciful. Mercy, in practical
application, means to have and show compassion and
to be charitable.

 Forgiving: Love is never too proud to seek
forgiveness or too stingy to forgive. It is willing to let
go of hurt and letdowns. Forgiveness allows us the
opportunity to improve and correct ourselves. Islam
emphasizes the principle that if we want God to
forgive our mistakes, then we should be forgiving of
others too.
 Respect: To love is to respect and value the person,
their contributions, and their opinions. Respect does
not allow us to take for granted our loved ones or to
ignore their input. How we interact with our spouses
reflects whether we respect them or not.
 Confidentiality: Trust is the most essential ingredient
of love. When trust is betrayed and confidentiality
compromised, love loses its soul.
 Caring: Love fosters a deep fondness that dictates
caring and sharing in all that we do. The needs of our
loved ones take precedence over our own.

 Kindness: The biography of the Prophet
Muhammad (pbuh) is rich with examples of acts
of kindness he showed towards his family and
particularly his wives. Even when his patience
was tried, he was never unkind in word or deed.
To love is to be kind.
 Grows: Marital love is not static, for it grows and
flourishes with each day of marital life. It
requires work and commitment, and is nourished
through faith when we are thankful and
appreciative of Allah blessings.
 Enhances: Love enhances our image and
beautifies our world. It provides emotional
security and physical well being.
 Selflessness: Love gives unconditionally and
protects dutifully.
 Truthful: Love is honesty without cruelty and
loyalty without compromise.

 According to Imams Abu Hanifah, Ahmad ibn
Hanbal and Malik ibn Anas, marriage is
recommended, however for certain individuals
it becomes Wajib (obligatory).
 Imam Shaafi'i considered it to be nafl or mubah
(preferable).
 The general opinion is that if a person, male or
female fears that if he/she does not marry they
will commit Zina (sex outside of marriage),
then marriage becomes obligatory.
 If a person has strong sexual urges then it
becomes obligatory for that person to marry.
Marriage should not be put off or delayed,
especially if one has the means to do so.

 A man, however should not marry if he does
not possess the means to maintain a wife and
future family, if he will not consummate the
marriage, if he dislikes children, or if he feels
marriage will seriously affect his religious
obligation.
 The general rule is that the Prophet (pbuh)
enjoined people to marry. He said "When one
marries, they have fulfilled half of their
religion , so let them fear God regarding the
remaining half."
 This Hadith is narrated by Anas ibn Malik. Islam
greatly encourages marriage because it shields
one from wrongful actions and upholds the
family unit.

The wife's rights - the husband's
obligations
(1) Maintenance
 The husband is responsible for the wife's
maintenance. This right is established by
authority of the Quran and Sunnah.
 It is inconsequential whether the wife is a
Muslim , non-Muslim, rich, poor, healthy or
sick. A component of his role is to bear the
financial responsibility of the family in a
generous way so that his wife may be assured
security.

 The wife's maintenance entails her right to
lodging, clothing, food and general care,
like medication, hospital bills etc.
 He must provide for her where he resides
himself according to his means. The wife's
lodging must be adequate so as to ensure
her privacy, comfort and independence.
 If a wife has been used to a maid or is
unable to attend to her household duties,
it is the husbands duty to provide her with
a maid if he can afford to do so. The
Prophet is reported to have said: "The best
Muslim is one who is the best husband."

(2) "Mahr"
 The wife is entitled to a marriage gift that is
her own. This may be prompt or deferred
depending on the agreement between the
parties.
 A marriage is not valid without Mahr. It does not
have to be money or gold. It can be non-
material like teaching her to read the Quran. "
Mahr" is a gift from the groom to the bride. This
is the Islamic law, unlike some cultures
whereby the bride's parents pay the future
husband to marry the daughter. This practice
degrades women and is contrary to the spirit of
Islam. There is no specification in the Qur'an as
to what or how much the Mahr has to be. It
depends on the parties involved.

(3) Non-material rights.
 A husband is commanded by the law of God to
treat his wife with equity, respect her feelings
and show kindness and consideration,
especially if he has another wife. The Prophet's
Last Sermon stresses kindness to women.

 One of the main duties of the wife is to contribute
to the success and happiness of the marriage. She
should be attentive to the comfort and wellbeing
of her husband and vice-versa. The Quranic Ayah
which illustrates this point is:
 "Our Lord, grant us wives and offspring who will be
the coolness of our eyes and guide us to be models
for the righteous"
 The wife should be trustworthy and honest. She
cannot deceive her husband by deliberately
avoiding conceiving. She should not have any
sexual intimacy with anyone other than her
husband. She should not receive or entertain
strange males in the house without his knowledge
and consent. She should not accept gifts from
other men without his approval. This is meant to
avoid jealousy, suspicion and gossip. She shouldn't
dispose of his belongings without his permission.

 A wife should make herself attractive to
her husband and be responsive to his
advances. The wife should not refuse her
husband without reason as this may lead
to marital problems and worse still -
tempt the man to adultery.
 The husband, of course, should take into
account the wife's health and
consideration of circumstances.

"Obedience."
The purpose of 'obedience' in a
relationship is to keep the family unit
running as smoothly as possible.
Obedience does not mean blind
obedience. It is subject to
conditions:
(a) It is required only if what is asked
from the wife is within the
permissible categories of action.
(b) It must be maintained only with
regard to matters that fall under the
husband's rights.

THANKS TO ALL
WISH YOU GOOD LUCK
Nizam Uddin Md. Bayzid
Lecturer
Port City International University

Marriage

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