Marriage in Islam

Terminology

In Islamic law, marriage – or more specifically, the marriage contract – is called nikah, which already in the Quran is used exclusively to refer to the contract of marriage. In the Hans Wehr Dictionary of Modern Written Arabic, nikah is defined as "marriage; marriage contract; matrimony, wedlock". (In some marriages in some predominantly Muslim cultures such as in Pakistani culture, there may be a delay between the nikkah and the actual enjoinment of the couple. This is called rukhsati in desi culture— i.e. when the wife leaves her family's home to move in with her husband, having been assured that her husband has obtained a good job and home and has received her dower (in Arabic, mahr). This should not be confused with Islamic tradition though, as it is a distinctly cultural practice).[13] In Arabic-speaking countries, marriage is commonly called zawāj (Arabic: زواج, from the Quranic term zawj (Arabic: زوج), referring to a member of a pair), and this term has recently gained currency among Muslim speakers of other languages as well. The marriage contract is known by different names: Literary Arabic: عقد القران ʿaqd al-qirān, "matrimony contract"; Urdu: نکاح نامہ / ALA-LC: Nikāḥ-nāmah; Bengali: আকদ, romanized: akd; Persian: ازدواج ezdevāj "marriage" and سند ازدواج or عقدنامه (sǎnǎde ezdevāj, aqd nāmeh) for the certificate. The marriage celebration may be called ʿurs / zawāj (Arabic: زواج / عرس), ezdewaj/arusi (Persian), shaadi (Urdu), biye/biya (Bengali) or düğün (Turkish).

History

In Arabia before the advent of Islam in the 7th century CE, a variety of different marriage practices existed. The most common and recognized types of marriage at this time consisted of: marriage by agreement, marriage by capture, marriage by mahr, marriage by inheritance, and "Mot'a" or temporary marriage. In Mesopotamia, marriages were generally monogamous, except among royalty, who would have harems consisting of wives and concubines. The Sasanian society followed Zoroastrianism, which viewed women to be possessions in marriage, although consent was required in both marriage and divorce.

According to Islamic sources, most women in the pre-7th century Arabia had little control over their marriages. They were rarely bound by contract for marriage or custody of children and their consent was rarely sought. Women were seldom allowed to divorce their husbands and their view was not regarded for either a marriage or divorce.[additional citation(s) needed] However, in the transitional age from non-Islamic to Islamic society, elite women could divorce and remarry without stigma. They were given the power to negotiate the terms of their marriage contract, and could even initiate divorce.

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Reforms with Islam

Muhammad had reformed the laws and procedures of the common marriage practices that existed during his prophethood. The rules of "marriage by agreement (marriage through consent)" were reformed and a strict set of rules and regulations were put in place. The practice of "marriage by inheritance" was forbidden. Several chapters and verses from the Quran were revealed which banned such practices.

Under the Arabian Jahiliyyah law, Islamic sources allege that no limitations were set on men's rights to marry or to obtain a divorce.Islamic law limited men to four wives at one time, not including concubines. (Quran 4:3) The institution of marriage was refined into one in which the woman was somewhat of an interested partner. 'For example, the dowry, previously regarded as a bride-price paid to the father, became a nuptial gift retained by the wife as part of her personal property' Under Islamic law, marriage was no longer viewed as a "status" but rather as a "contract". The essential elements of the marriage contract were now an offer by the man, an acceptance by the woman, and the performance of such conditions as the payment of dowry. The woman's consent, given either actively or by silence, was required. Furthermore, the offer and acceptance had to be made in the presence of at least two witnesses.

Encouragement

As in many religions, marriage is encouraged in Islam, family life is considered a "blessing" and a source of stability. One source lists five Quranic verses encouraging marriage to "discourage immorality". A BBC page for GCSE WJEC (secondary education) religious studies states, "For Muslims, marriage was created by Allah to provide a foundation for family life and the whole of society."

Conditions

​Islamic marriages require acceptance (قُبُوْل, qubūl), of the groom, the bride[24][25] and the consent of the custodian (walī) of the bride. The wali of the bride is normally a male relative of the bride, preferably her father. The wali can only be a free Muslim, unless the bride is of the Christian or Jewish faith; in such cases the bride should be given away by someone from her religious background.[26] The bride is normally present at the signing of the marriage contract. The walī mujbir (وَلِي مُجْبِر) is a technical term of Islamic law which denotes the guardian of a bride. In traditional Islam, the literal definition of walī, which means "custodian" or "protector", is used. In this context, it is meant that the silence of the bride is considered consent. In most schools of Islamic law, only the father or the paternal grandfather of the bride can be walī mujbir.[26] If the conditions are met and a mahr and contract are agreed upon, an Islamic marriage ceremony, or wedding, can take place. The marital contract is also often signed by the bride. The consent of the bride is mandatory. The Islamic marriage is then declared publicly, in iʿlān (Arabic: إِعْلَان), by a responsible person after delivering a sermon to counsel and guide the couple. It is not required, though customary, that the person marrying the couple should be religiously well-founded in knowledge. The bridegroom can deliver the sermon himself in the presence of representatives of both sides if he is religiously educated, as the story goes about Imam Muhammad bin Ali around 829 AD. It is typically followed by a celebratory reception in line with the couple's or local customs, which could either last a couple of hours or precede the wedding and conclude several days after the ceremony. Quran 24:33 tells believers to keep their chastity if they do not marry.[27][28] Quran 24:32 asserts that marriage is a legitimate way to satisfy one's sexual desire.[29] Islam recognizes the value of sex and companionship and advocates marriage as the foundation for families and channeling the fulfillment of a base need. Marriage is highly valued and regarded as being half of one's faith, according to a saying of Muhammad. Whether marriage is obligatory or merely allowed has been explored by several scholars, and agreed that "If a person has the means to marry and has no fear of mistreating his wife or of committing the unlawful if he does marry, then marriage in his case is mustahabb (preferred).

​Prerequisites

There are several conditions for an Islamic marriage to take place:

1. A marriage should be conducted through a contract and a mandatory sum of wealth provided to the bride, which here refers to the mahr. Once a mahr has been ascertained with the realization that it is an obligation of a Muslim husband, the groom is required to pay it to the bride at the time of marriage unless he and his bride can mutually agree to delay the time of some of its payment. In 2003, Rubya Mehdi published an article in which the culture of mahr among Muslims was thoroughly reviewed. There is no concept of dowry as such in Islam. A dowry as such is a payment to the groom from the bride's family and is not an Islamic custom. Bride prices are also expressly prohibited..

2. Another requisite of marriage is chastity. No fornicator has the right to marry a chaste partner except if the two purify themselves of this sin by sincere repentance.

3. Marriage is permitted for a man with a chaste woman either Muslim or from the People of the Book (Arabic Ahl al Kitab, Jews, Sabians and Christians) but not to polytheists (or "idolaters": Yusuf Ali translation or "idolatresses": Pickthall translation). For women, marriage to People of the Book is not explicitly stated as permissible.

4. Spoken consent of the woman is only required if she is not a virgin and her walī is neither her father nor her paternal grandfather. But a virgin may not be married off without her permission. If she is too shy to express her opinion her silence will be considered as implicit agreement [Al Bukhari:6968].[ Binti Khudham says that when she became a widow her father solemnized her marriage. She did not like the decision so she went to Muhammad, who gave her permission to revoke her marriage. Hence, forced marriages are against Islamic teachings, and those forced into marriages before they have come of age have the right to contest them once they do.

5. The importance of the wali is debated between the different schools of thought. To the Hanafi Sunnis, a male guardian is not required for the bride to become married, even if it is her first marriage. Therefore, the marriage contract is signed between the bride and the groom, not the groom and the wali. To the Hanbali, Shafi'i, and Maliki Sunni schools, a walī is required in order for a virginal woman to marry. In these schools, if a woman has been divorced, she becomes her own guardian and does not need a walī to sign a marriage contract.​

Rights and obligations of spouses

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 According to Islam, both men and women have rights over each other when they enter into a marriage contract, with the husband serving as protector and supporter of the family most of the time, from his means. This guardianship has two aspects for both partners:

• According to one interpretation, the husband must be financially responsible for the welfare and maintenance of his wife or wives and any children they produce, to include at a minimum, providing a home, food, and clothing. In return, it is the duty of the wife[43] to safeguard the husband's possessions and protect how wealth is spent. If the wife has wealth in her own capacity she is not obliged to spend it upon the husband or children, as she can own property and assets in her own right, so the husband has no right for her property and assets except by her wishes. A pre-marital agreement of the financial expectation from the husband is in the mahr, given by him to the wife for her exclusive use, which is included as part of his financial responsibility.

 Several commentators have stated that the superiority of a husband over his wife is relative, and the obedience of the wife is also restrictive.[44] Women are also reminded that in case the husband is not fulfilling his responsibilities, there is no stigma on them in seeking divorce.[Quran 4:128] The Quran re-emphasizes that justice for the woman includes emotional support, and reminds men that there can be no taking back of the mahr or bridal gifts given to women unless they are found guilty of sexual immorality [Quran 4:19]. In cases where the agreement was to postpone payment of the mahr, some husbands will pressure their wives and insist on the return of what he gave her in order to agree to the dissolution of the marriage. "Where the husband has been abusive or neglectful of his responsibilities, he does not have the right to take his wife's property in exchange for her freedom from him. Unfortunately, most couples refuse to go to the judge and binding arbitration for these issues even though the Quran says: "If you anticipate a split between them, appoint a mediator from his family and another from hers. If they desire reconciliation, Allah will restore harmony between them. Surely Allah is All-Knowing, All-Aware."

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 Mahr, dowry and gifts

 Mahr (donatio propter nuptias) differs from a marriage dowry or gift, in that it is mandatory for a Muslim marriage and is paid by the groom to the bride. The amount of money or possessions of the mahr is paid by the groom to the bride at the time of marriage for her exclusive use.[46] If the marriage contract fails to contain an exact, specified mahr, the husband must still pay the wife a judicially determined sum. Mahr functions similar to bride wealth.

Proxy marriages

 Nikah is permitted by proxy (i.e. via the telephone or video link), simply by both parties (or representatives on their behalf) exchanging declarations. This has caused issues in Western countries, such as the United Kingdom, which do not view proxy marriages as legitimate

Marriage contracts and forced/un-consented marriages

The marriage contract is concluded between the wali (guardian) of the bride and the bridegroom and bride. The wali of the bride can only be a free Muslim. The wali of the bride is normally a male relative of the bride, preferably her father. According to most scholars, if the bride is a virgin, the wali mujbir can not force the bride into the marriage against her proclaimed will. Furthermore, according to Khomeini[50] and Ali al-Sistani,[51] both of whom are Shi'ite scholars (having the degrees mujtahid and marja'), and also almost all contemporary scholars, the marriage is invalid without the bride's free consent and no obligation can make marriage official and legal.[52] A notable example of this is the Hanafi school (the largest of the four classical schools of Islamic thought), which holds that a bride's permission is required if she has reached puberty. They also hold that if a bride was forced into marriage before reaching puberty, then upon attaining puberty she has the option to nullify the marriage if she wishes. A wali other than the father or the paternal grandfather of the bride, then called wali mukhtar, needs the consent of the bride. If the bride is silent about the issue, i.e. her wali expressed his intention to marry her off to a certain man, and she did not object to it, then consent is assumed via her lack of objection.

 International human rights responses

Children in some Muslim sub-cultures who defy their parents' wishes may in practice, suffer penalties supported by the community. International awareness, campaigns and organizations such as the U.K.'s Forced Marriage Unit have recognized the severity of this human rights issue and their rescue and support services extend beyond the borders of U.K. territories. Some countries have instituted prison time for parents who try to coerce their children into such unions.

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