CHAPTER 4: THE MARRIAGE CONTRACT (4)
Dowries of the Mothers of the Believers
The mahr that the Prophet (pbuh) gave to his wives varied from one to another. In the case of Safiyyah, her dowry was emancipation from slavery. Anas reported:
“The Prophet (pbuh) freed Safiyyah (and married her); and her freedom was her dowry.” (Recorded by al-Bukhari, Muslim, and others.)
Umm Habibah reported that she was married to ‘Ubayd Ullah Bin Jahsh, and he died when they were at al-Habashah (Abyssinia). So an-Najashi (the Abyssinian king) gave her to Allah’s Messenger (pbuh) in marriage. On behalf of Allah’s Messenger (pbuh), an-Najashi gave her four thousand (dirhams) as mahr, and he then sent her to him with Sharhabil Bin Hasanah. (Recorded by Abu Dawud, an-Nasa’i, and others. Verified to be authentic by al-Albani (Sahih Abi Dawud no. 1853))
Thus, Umm Habibah’ s mahr was quite large. But it was not given to her by the Prophet (pbuh) himself. Rather, it was a gift from an-Najashi on his behalf. In all other cases, the mahr that Allah’s Messenger (pbuh) gave to his wives did not exceed five hundred dirhams.
Abu Salamah ‘Abel ur-Rahman reported that he asked ‘Aishah, “How much was the sadaq that Allah’s Messenger (pbuh) gave?” She replied:
“His sadaq to his wives was twelve and a half uqiyyahs.” (Recorded by Muslim and others.)
Abu al-‘Ajfa reported that ‘Umar once gave a khutbah in which he said:
“Do not be excessive in regard to the women’s dowries.”
He(pbuh) added:
“Had that been an indication of honor in this life or taqwa before Allah, the Prophet (pbuh) would have been most worthy of it among you. Yet, Allah’s Messenger (pbuh) did not give as dowry to any of his wives, nor did any of his daughters receive more than twelve uqiyyahs.” (Recorded by Abu Dawud, an-Nasa’i, and others. Verified to be authentic by al-Albani (Irwa ‘ul-Ghalil no. 1927).)
Weak Story: “a Woman Is Right and Umar Is Wrong”
It is important to warn against a weak story that is alleged to have taken place between ‘Umar and a woman, and even to note that some great scholars, such as Ibn Taymiyyah, have quoted this story without realizing its weakness.
Once ‘Umar gave a speech in which he admonished against excessiveness in dowries and said, “I will not allow any dowry larger than that of the Prophet’s (pbuh) wives and daughters.” A woman protested saying:
“O Commander of the Believers! You just forbade the people from being excessive in dowries. Why would you prevent us from receiving something that Allah (swt) gave us?”
She then recited:
“If you want to substitute one wife for another, and you have given one of them a qin tar, do not take back any of it. Would you take it in injustice and manifest sin?” (An-Nisa 4:20.)
Upon hearing this, ‘Umar said (two or three times), “All people have a better understanding than ‘Umar. Indeed, a woman is right and ‘Umar is wrong!” Then he went back to the minbar and addressed the people saying:
“Indeed, I had forbidden you from being excessive in the women’s dowries. But now I say: let every man do with his wealth as he pleases.” (This is a combined report recorded by Abu Ya’la, al-Bayhaqi, and ‘Abd ur-Razzaq. It is declared to be extremely weak by al-AMnl (Irwa’ ul-Ghalil no. 1927 & Raf ul-Malam pp. 33-34).)
After indicating the weakness of this report, al-Albani said:
“Furthermore, the woman’s quotation of this ayah is out of place. The ayah refers to a woman who is divorced without reason. It means, ‘If you wish to substitute a new wife for a previous one that you dislike and have no patience to treat with kindness — even though she did not commit any obvious sin, and if you had previously given her a large amount of money — whether she had received it all or you had pledged it to her, making it a debt owed by you to her, do not take back any of it. Rather, you should leave it all to its rightful owner. You only wish to substitute her with another woman for the sake of your desire and enjoyment, and not for any shari reason that would have permitted your taking some of her money — such as her demanding separation, thereby hurting you by forcing you to divorce her. If she did not do anything like that, how can you take any of her money?’ ” (Commentary on Raf ul-Malam ‘an il-A’immat il-A’lam pp. 34-35.)
This story is commonly cited by speakers and writers, trying thereby to prove a variety of points, some being absolutely false. Among the false conclusions are the following:
-It is permissible to demand excessive dowries.
-There is nothing wrong with women standing in a masjid and correcting the imam or other speakers.
-Women may give public addresses to a mixed audience.
-No scholar of Islam deserves much respect, because even a common woman may easily expose his mistakes.
-Women should be allowed as members, or even heads, of religious councils, such as shura boards of Islamic centers and organizations.
A Possible Reason for Destruction
Demanding from the husband mahr and gifts more than what he can afford could be a reason for destruction. If that becomes a standard practice among Muslims, it would inevitably lead some men to fall into theft, bribery, gambling, and other prohibited means in order to satisfy the greed of their wives and families. This would eventually destroy the whole society.
Abu Sa’id al-Khudri reported that Allah’s Messenger (pbuh) said:
“Indeed, the dunya (worldly life) is sweet and lush. And indeed, Allah gives you custody over it to see how you will do. So, beware of the dunya, and beware of women, because the first fitnah (trial) of the Children of Israel was through women.” (Recorded by Muslim and others.)
This fitnah is explained in another narration by Abu Sa’id that once the Prophet (pbuh) gave a long speech about incidents from this life and the Hereafter, and among what he mentioned was the following:
“Indeed, what first destroyed the Children of Israel is that a poor man’s wife would require from him as much clothing and jewelry as a rich man’s wife. ” (Recorded by Ibn Khuzaymah and Ahmad. Verified to be authentic by al-Albani (as-Sahihah no. 591).)
Postponed Mahr
It is recommended to give the bride her mahr immediately after execution of the marriage contract. As we saw in the above examples, the Prophet (pbuh) only asked the husband for what he could offer at the time of marriage, and not what he could pledge for a future date.
Yet, it is a very common practice to divide the mahr into two portions, an advanced portion paid at the execution of the marriage contract, and a postponed portion to be paid when divorce or death takes place between the spouses.
Postponing the mahr is, in general, an innovative inconvenience that departs from the normal practice in the Sunnah. It defeats the very purpose of mahr, which is to be a gift given to the bride prior to having any intimacy with her. It also burdens the husband with a large amount of money that he must pledge as a postponed debt to an indefinite term.
Great Punishment for Taking Away a Woman’s Mahr
A woman’s mahr is a serious debt around a man’s neck. Thus, it is a major sin to take it away from her without her consent. Ibn ‘Umar reported that Allah’s Messenger (pbuh) said:
“Indeed, among the greatest sins before Allah is that of a man who marries a woman, and after he fulfills his need with her, he divorces her and takes her mahr; and a man who hires another man but does not give him his pay; and a man who kills an animal without reasons.” (Recorded by al-Hakim and al-Bayhaqi. Verified to be hasan by al-Albani (Sahih ul- Jami no. 1567 & as-Sahihah no. 999)
This hadith also points to a situation that is common in some of the Western countries. Some Muslim men coming from other countries marry Western Muslim women for a slight mahr, enjoy them for a period of time, and often obtain through them citizenship in their countries. Once they have fulfilled their need for them, they divorce them with a clear conscience! Thus, they take advantage of their wives and, furthermore, underpay them their mahrs. They should fear Allah and remember that if they get by with such actions in this life, they will not do the same before Allah (swt) on Judgment Day.
Conditions
Permissibility of Setting Conditions
At the time of enacting the marriage contract, the two parties may wish to set conditions whose violation would invalidate the contract. This is permissible and acceptable, as long as the conditions do not violate any Islamic principles. The conditions are normally set by the wife’s side, because the husband can terminate the marriage by uttering the divorce and needs no conditions to facilitate that for him.
‘Uqbah Bin ‘Amir al-Juham reported that the Prophet (pbuh) said:
“Indeed, the conditions that deserve to be fulfilled the most are those which allow you access to the women’s private parts (by marriage and intercourse)” (Recorded by al-Bukhari, Muslim, and others.)
Power of the Conditions
If the conditions are Islamically acceptable, they must be fulfilled, and violating them would be sufficient cause for the wife to terminate the marriage if she so desires.
Al-Athram and ‘Abd ur-Rahman Bin Ghanam reported that a man married a woman and accepted her condition of wanting to stay in one house (i.e., town). Later on, he found it necessary to move to a different land, and his wife’s family disputed that with ‘Umar. Umar said, “Her condition must be honored.” The man objected, “This is unfair to the men. So whenever a woman wishes to divorce her husband she would do so!” And ‘Umar replied:
“The believers are required to maintain their conditions; and the rights cease where there are conditions to fulfill.” (Recorded by Sa’id Bin Mansur, Ibn Abi Shaybah, al-Bayhaqi. Verified to be authentic by al-Albani (Irwa ul-Ghalil no. 1893).)
Suspending a Condition
On the other hand, a condition may be waived by the wife, as an act of benevolence or forgiveness. Also, the Islamic judge may suspend a condition if he finds that it violates an Islamic principle.
It is interesting to note that, in another case, ‘Umar suspended the same condition that he passed in the above narration. That could be due to some difference that he saw in the overall situation of the families between the two cases, leading him to different judgments (and Allah (swt) knows best).
Saul Bin ‘Ubayd Bin as-Sabbaq reported that a man who married during the time of ‘Umar allowed his wife a condition that he would not take her out (of her hometown). ‘Umar relieved him of this condition and said:
“A woman should be with her husband (i.e., wherever he moves).” (Recorded by al-Bayhaqi. Verified to be authentic by al-Albani (Irwa ‘ul-Ghalil no 1893).)
Commenting on this, al-Bayhaqi said:
“This report is closer to the Book and Sunnah, and agrees with others’ sahabah’s opinion.”
Void Conditions
As indicated above, if some of the conditions violate the Islamic teachings, they are automatically considered null and void. ‘A’ishah and Ibn ‘Abbas reported that the Messenger (pbuh) said:
“Every condition not according to the Book of Allah is void, even if it be a hundred conditions.”(Recorded by al-Bukhari, Muslim, and others.)
As and example, Aba Huntyrah reported that the Prophet (pbuh) said:
“Let not a woman require (as condition for marriage) the divorce of her sister (in Islam) in order to take what is in her plate (of food) and marry (her husband). Indeed, she will only get what has been decreed for her.” (Recorded by al-Bukhari and Abu Dawud.)
Umm Mubashshir al-Ansariyyah reported that after the death of her husband al-Bara Bin Ma’rur, Allah’s Messenger (pbuh) said to her:
“Indeed, Zayd Bin Harithah’s wife has passed away, and I would like to find a wife for him; so I choose you for him.”
She was reluctant to accept and said, “I have promised my husband that I will not marry after him.” The Prophet (pbuh) replied, “This (condition) is not right.” This (condition) is not right when Allah has placed him at such a close position to you? It is only the extreme concern that my late husband had for me. But I will do whatever you say.” So the Prophet (pbuh) married her to Zayd and transferred her to live among his wives (That appears to be prior to the prohibition of adoption. Being the wife of his adopted son the Prophet(pbuh) treated Umm Mubashshir like a daughter-in-law.). When a goat was milked and the milk brought to the Prophet (pbuh), he would first give it Umm Mubashshir to drink, before giving it to any of his wives. One day, the Prophet (pbuh) came into Wishah’s house while she was with her. He put his hand on ‘A’ishah’s knee and whispered something in her ear. She placed her hand over Allah’s Messenger’s (pbuh), trying to push him away Umm Mubashshir exclaimed, “How could you do this to Allah’s Messenger!” Allah’s Messenger (pbuh) laughed and said:
“Leave her! She sometimes does this or even more than this.” (Recorded by at-Tabarani and al-Bukhari (in at-Tarikh). Verified to be authentic by al-Albani (as-Sahihah no. 608).)
The Contract
The Khutbah
It is recommended for the person conducting the marriage ceremony to start with khutbat ul-Hajah that was reported by Ibn Mas’ud and Jabir. (This khutbah is fully cited at the beginning of the Prelude of this book.)
Ijab and Qabul
Ijab and qabul (offering and acceptance) are the main and actual pillars of the contract. They signify the mutual agreement and acceptance between the two parties to join in this marriage bond. Ijab and qabul must be stated in clear, well defined words, in one and the same sitting, and in the presence of the witnesses.
The person conducting the ceremony may help the two parties say the following (or something to the same effect):
a. The wali:
“I offer you the woman under my custody (so-and-so) according to Allah’s (swt) Law and His Messenger’s (pbuh) Sunnah, and for the mahr and conditions to which we have agreed.”
b. The bridegroom:
“I accept marrying the woman under your custody (so-and-so) according to Allah’s (swt) Law and His Messenger’s (pbuh) Sunnah, and for the mahr and conditions to which we have agreed.”
The Ijab and qabul must coincide in content. Any discrepancy between them would invalidate the contract. For example, if the wall says, “I give you so-and-so in marriage for a mahr of one-thousand,” and the bridegroom responds by saying, “I accept marrying so-and-so for a mahr of eight hundred,” the contract becomes immediately invalid.
Writing the Contract
Documenting the marriage contract is not a requirement for the contract’s validity. However, it is important to document it for future reference and to preserve the rights of the husband and wife.
A sample marriage contract (or certificate) is included in Appendix A.
Outcome of the Marriage Contract
Once the marriage contract is executed, all rights and responsibilities for the two spouses, including the wife’s advanced mahr, become immediately due. The details of this are covered in the third book of this series. (See “The Fragile Vessels” by the Author.)
By Muhammad Mustafa Al-Jibali
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