CHAPTER 4: THE MARRIAGE CONTRACT (1)
Introduction
Importance of the Marriage Contract
The marriage (or nikah) contract is enacted between a man and woman for the purpose of enjoying each other and forming a good family.
The marriage contract is the formal bond that turns two individuals from strangers to husband and wife. As a result of the marriage contract, many rights and obligations become imperative and many fruits are anticipated.
To many people, the marriage contract is the most important contract they execute throughout their lives. Each marriage contract normally carries a lasting effect over a large number of individuals, many of them yet to be born.
Since the marriage contract has such a great and solemn significance, Islam imposes a number of guidelines that it must fulfill. Those guidelines are the subject of discussion in this chapter.
No Joking in Marriage
Marriage is a serious matter and should be dealt with seriously. It is not allowed for a man to marry and then claim that he did not really mean it or that he was joking.
Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
“There are three matters that are considered serious in both serious and non-serious talk: marriage, divorce, and returning (a wife who was divorced a non-terminal divorce.” (Recorded by Abu Dawud, at-TirmidhI, and others. Verified to be hasan by al -Albani (Irwaul-Ghalll no. 1826 & Sahih ul-Jami no. 3027).)
Fudalah Bin ‘Ubayd reported that Allah’s Messenger (pbuh) said:
“There are three matters in which it Is not permissible to joke: marriage, divorce, and emancipation (of slaves).” (Recorded by at-Tabarani (in al-Kabir). Verified to be hasan by al-Albani (Irwa ‘ul-Ghalil no. 1826 & Sahih ul-Jami’ no. 3047))
Basic Elements
As is shown in the following chart, the Islamic marriage contract has six conditions, two pillars, one obligation, and one optional element. Dropping a condition or a pillar invalidates the contract. Intentionally dropping the obligation is a sin.
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These elements are discussed in the following sections.
Bridegroom’s Eligibility
To be eligible for marriage, the bridegroom should fulfill the following requirements:
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Bride’s Eligibility
To be eligible for marriage, the bride should fulfill the following requirements:
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The Bride’s Permission
Ruling
Being one of the two individuals involved in a marriage contract, the bride should have a say in regard to the partner with whom she would be associated in a long-term partnership.
‘A’ishah reported that Allah’s Messenger (pbuh) said:
“Take the women’s permission in regard to their private parts (i.e., marriage).” (Recorded by Ahmad and an-Nasa’i. Verified to be authentic by al-Albani (Sahih ul-Jami no. 930 & as-Sahihah no. 398).)
Abu Musa al-Ashari reported that Allah’s Messenger (pbuh) said:
“When one of you wants to give his daughter in marriage, he should take her permission.” (Recorded by at-Tabarani (in al-Kabir) and Abu Ya’la. Verified to be authentic by al-Albani (Sahih ul-Jami no. 300 & as-Sahihah no. 1206).)
A bride’s permission is a required element of the marriage contract. Without this permission, the contract is either null and void, or may be invalidated by the Islamic authorities — based on the bride’s request.
We will see below that, depending on the bride’s situation, the mode of her permission varies from being fully vocal and assertive to being passive and compliant with her wali’s decision.
A Virgin Bride
A virgin bride (in Arabic: bikr) is a woman who never had intercourse with men. That would normally mean that her virginity hymen is present and intact; however, this is not an absolute condition because some virgins may lose their hymen in an accident or illness.
A virgin is usually naive and inexperienced in the ways of life and people’s cunning. She has no knowledge about men and is unable to evaluate a potential husband. Thus, it is not possible for her to make a clear decision in that regard, and it is left for her wall, who is usually her father, to make the decision on her behalf. Even then, he must consult with her and take her approval before executing the marriage contract.
When a virgin is adorned with the strong haya (modesty and shyness) that adorned the early Muslim virgins, she would be extremely reluctant to voice her opinion in regard to a man who seeks to marry her. In that case, her passive expression of approval is sufficient.
A passive approval is expressed by the bride remaining silent, nodding her head, or making any other motion to indicate that she does not object to the marriage. On the other hand, if she does object, she must declare that with a clear action or statement.
The bride’s passive approval is the minimum required permission. However, it is possible for her to express her approval in a more assertive way, such as saying, “Yes, I would like to marry him.”
Abu Hurayrah reported that the Prophet (pbuh) said:
“A non-virgin woman (i.e., widow or divorcee) may not be married without her instruction; and a virgin may not be married without her permission, and her silence Indicates her consents.” (Recorded by al-Bukhan. Muslim, and others.)
‘Umayrah al-Kindi reported that Allah’s Messenger (pbuh) said:
“Take the women’s permission in regard to themselves (i.e., marriage). A non-virgin expresses herself with her tongue; and a virgin’s silence is (a sufficient proof of) her acceptance.” (Recorded by Ahmad, Ibn Majah, and others. Verified to be authentic by al-Albani (Sahih ul-Jami no. 13, 3084 & Irwa’ ul-Ghalil no. 1836).)
Ibn Abbas reported:
“A virgin woman came to the Prophet (pbuh) and told him that her father gave her in marriage against her will. The Prophet (pbuh) then gave her the choice (of maintaining or terminating the marriage).” (Recorded by Ibn Majah. Verified to be authentic by al-Albani (Sahih Ibn Majah no. 1520).)
A Non-virgin Bride
A non-virgin bride (in Arabic: thayyib) is a woman who has had at least one sexual intercourse with men — whether it was in regular marriage or zina.
A thayyib normally has more experience in life and more ability to make a decision in regard to her marriage. Thus, she should be allowed to voice her opinion and make her decision, and her decision must be honored by her wall. This is clearly expressed in the above hadiths. Similarly, Ibn ‘Abbas reported that Allah’s Messenger (pbuh) said:
“A non-virgin has more right to herself than does her guardian; as for a virgin, her permission is taken in regard to herself, and her silence is (a sufficient) permissions.”(Recorded by Muslim, Abu Dawud, and others.)
Al-Khansa Bint Khitham al-Ansariyyah reported that her father gave her in marriage (without her permission). At that time, she was non-virgin. She disliked that marriage and complained to the Prophet (pbuh) who invalidated the contract. (Recorded by al-Bukhan, Ahmad, and others.)
An Orphan Bride
An orphan girl is a virgin who lost her father. Thus, her wall is not her father’s. In regard to the permission for marriage, she is given more say than a normal virgin.
Abu Musa al-Ash’ari reported that Allah’s Messenger (pbuh) said:
“Give a (virgin) orphan girl the right to decide in regard to herself (in marriage), and her silence is (a sufficient) permission.” (Recorded by at-Tabarani, Ahmad, and others. Verified to be authentic by al-Albam (Sahih ul-Jami no. 14 & as-Sahihah no. 656).)
Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
“A (virgin) orphan girl’s permission should be sought in regard to herself (i.e., in marriage); if she remains silent, that counts as her permission; and if she expresses her refusal, she may not be forced against her will.” (Recorded by Abu Dawud, an-Nasai, and others. Verified to be authentic by al- Albani (Sahih ul-Jami no. 1349, 8194 & Irwa ul-Ghalil no. 1834).)
‘Abdullah Bin ‘Umar reported that when ‘Uthman Bin Maz’un died he left behind a daughter from his wife Khuwaylah Bint Hakim. In his will, Uthman had appointed his brother Qudamah Bin Maz’un as her guardian. Ibn ‘Umar asked for the orphan girl’s hand from Qudamah (who was his maternal uncle), and Qudamah agreed to marry her to him. However, al-Mughirah Bin Shu’bah approached her mother and beguiled her with money. The mother thus leaned toward him, and her daughter followed her mother’s inclination and refused to marry Ibn ‘Umar. They disputed and went before the Prophet (pbuh). Qudamah said:
“O Allah’s Messenger! She is my brother’s daughter. He appointed me as her guardian, and I gave her in marriage to ‘Abdullah Bin ‘Umar — forsaking neither righteousness nor compatibility. However, she is only a woman, and she now leans according to her mother’s inclination.”
Allah’s Messenger (pbuh) responded:
“She is an orphan, and she may not be married except with her permission.”
Ibn ‘Umar added:
“Thus, by Allah, she was taken away from me, even after I had taken charge of her (by marriage), and was married to al-Mughirah Bin Shu’bah.” (Recorded by Ahmad, ad-Daraqutni, and others. Verified to be hasan by al-Albani ((Irwa’ ul-Ghalil no. 1835).))
A Freed Slave Woman
If a married couple were both slaves, and the woman is freed first, she would be given the option of staying with her husband or leaving him. If she makes the first choice, she remains married to him and would have no further chance in that regard.
Barirah was a slave woman owned by some of al-Ansar. She was married to a black slave called Mughith.
‘A’ishah reported that Allah’s Messenger (pbuh) told her in regard to Barirah, “Take her and free her” So she bought her from her owners and freed her. Allah’s Messenger (pbuh) then gave her the choice of remaining married to her husband or going on her own. She chose to be on her own. (Recorded by al-Bukhari, Muslim, and others.)
‘A’ishah also reported that when Allah’s Messenger (pbuh) gave Barirah the choice he told her, “If he approaches you, then you will have no choice.” ( Recorded by Abu Dawud. Verified to be authentic by al-AIbani (al-Mishkat no. 3201).)
Barirah’ s departure broke Mugith’s heart. Ibn ‘Abbas narrated, “It is as if I still see him following her in the streets of al-Madlnah, crying until his tears wet his beard.” Allah’s Messenger (pbuh) said:
“O Abbas! Does it not surprise you how much Mughith loves Barirah, and how much Barirah dislikes Mughith?”
The Prophet (pbuh) then said to Barirah, “Would you consider taking him back?” he said, “O Allah’s Messenger, is this a command?” He said, “I am only interceding (for his sake). ” She said, “I have no interest in him then.” (Recorded by al-Bukhari and others.)
By Muhammad Mustafa Al-Jibali
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