Sex, Marriage and Family in World Religions (38 page)

[“Malakah Zirar, Mawsu’at al-Zawaj Wa al’alaaqah al-Zawjiyyah Fi al-Islam Wa al-Shara’i’ al-Ukhra” (Encyclopedia of Marriage and Conjugal Relationship in Islam and Other Legislations) (Unpublished MS, Cairo, 2002), 1:134]

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w a h b a h a l - z u h a y l i

Marriage is a civil contract
(‘aqd)
that has no formalities.
‘Aqd
means tying the parts of the arrangements, which legally means offering and accepting.

[Wahbah Al-Zuhayli,
Al-Fiqh al-Islami wa Adillatuh
(The Islamic Jurisprudence and Its Evidences), 4th ed. (Beirut: Dar al-Fikr al-Mu’sair, 1997), 9:6522 (20th century ce)]

Document 3–23

m u h a m m a d ‘ a b d u h

I have seen that, in the books of Islamic jurisprudence, the definition of the marital contract is “The contract by means of which the husband owns the private parts of his wife.” I have not seen, however, any reference to anything other than the physical satisfaction between the spouses. All of those books fail to value the moral and legal duties expected from one civilized party toward another. There is, to my knowledge, no other civilized law on earth that brought 168

a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i more civility into the marital relationship than the verse: “and among his signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them, and He has put love and mercy between your (hearts)”

[30:21].

Whoever draws a comparison between the jurisprudential definition of marriage and the one revealed in the abovementioned verse would realize that the ill treatment of women has started from the scholars of Islamic jurisprudence and spread to the general public. One would not then wonder as to the low levels to which the concept of marriage has descended. Marriage, nowadays, has become a pure carnal relationship, in which men enjoy the body of women and disregard any subsequent responsibilities or duties.

[Muhammad ‘Abduh,
Al-a’mal al-Kamilah
(Complete Works) (Beirut: al-Mu’assasah al-‘Arabiyah li d–Dirasat wa n-Nashr, 1905), 2:72 (19th century ce)]

CONSENT TO MARRIAGE

Consensual relationships are a hallmark of Islamic law, whether in the family, society, or the state. In the realm of the family no spousal relationship may be formed without the proper consent of the prospective spouses. This means that the consent must be based on proper disclosure of the prospective spouses’

health, wealth, marital status, and other relevant matters. It should not be coerced by a father or another person, explicitly or implicitly. This condition was made clear by the prophetic precedent that permitted a Muslim woman to annul her marriage into which she was forced by her father. The wisdom behind this requirement is that marriage relationships should be very special ones that are surrounded with affection, mercy, and tranquillity. When one is married against his or her will, it is harder to come by such relationships. Yet, determining the existence of free consent is not always an easy matter. Informed by his wife À’ishah that the virgins of Arabia were too modest at that time to express explicitly their acceptance of a marriage offer, the Prophet allowed for their silence as an indication of acceptance. If, however, such a woman objects, the assumption would be rebutted.

Muslim jurists generally agree, with some exceptions, that a woman’s marriage cannot be contracted without her consent, though unfortunately not all require that a virgin be informed that her silence constitutes consent. Most have permitted the father, referred to as the “wali” or guardian of the prospective bride, to execute her marriage contract on her behalf as a protective measure against designing men. The guardian requirement was historically defended as a protective measure for women who might be swept away by their emotions and for the family’s honor in cases where women might elect to marry ineligible males. For these reasons even those schools of Islamic law that recognize the right of the adult woman to contract her own marriage without a guardian express their preference for the woman’s delegation of that right to a guardian.

This paternalistic approach may have been suitable for societies where women
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were sequestered from public life and could be easily deceived, but Islam does not require such sequestering. Khadijah (d. c. 619), For example, the first love and wife of the Prophet, was a successful businesswoman, and she chose him.

Such considerations prompted the famous jurist Abu Hanifah (d. 767 or 768) to leave with the prospective bride her right to execute her own marriage contract without a wali. He argued that if God has entrusted women fully with control over their financial assets, then certainly their lives are more worthy of being entrusted to them.

Document 3–24

h a d i t h

The Prophet said, “A matron/widow should not be given in marriage except after consulting her, she should give her permission explicitly; and a virgin should not be given in marriage except with her permission.”

[Hadith narrated by Abu Hurayrah, in al-Bukhari,
Sahih al-Bukhari,
bk. 62, Kitab al-Nikah, no. 67 (9th century ce)]

Document 3–25

h a d i t h

‘A’ishah, the Prophet’s wife, said, “O God’s Apostle! A virgin feels shy to give permission.” He said, “Then, her consent is expressed by her silence.”

[Hadith narrated by À’ishah, in al-Bukhari,
Sahih al-Bukhari,
bk. 62, Kitab al-Nikah, no. 68]

Document 3–26

h a d i t h

The Prophet said, “Consult women about the marriage of their daughters.”

[Hadith narrated by Abdullah Ibn Umar, in Abu Dawud,
Sunan Abu Dawud,
bk. 11, Kitab al-Nikah, no. 2095 (9th century ce)]

Document 3–27

h a d i t h

A young woman came to the Prophet and said, “Prophet of God! My father gave me in marriage to his nephew to elevate his social status. What should I do?” The Prophet gave her the choice to accept or reject that marriage. She then answered, “I condone what my father has done, but I wanted women to know that fathers have no such right.”

[Hadith narrated by the father of Ibn Buraydah, in Ibn Majah,
Sunan Ibn Majah,
Kitab al-Nikah, no. 1874 (9th century ce]

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a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i
Document 3–28

m u h a m m a d i b n a h m a d a l - s a r a k h a s i When a father consults his virgin daughter about his intentions of giving her away in marriage and she remains silent about it, marriage is then valid. But if she responds by rejecting the idea, the contract is invalid according to our school of thought. . . . For the divine law made her silence a sign of her consent, due to her shyness that prevents her from expressing her consent.

[Muhammad ibn Ahmad Al-Sarakhasi (d. 1090),
Kitab al-Mabsut,
30 vols.

(Beirut: Dar al-Ma’rifah, 1968), 5:2–3 (11th century ce)]

Document 3–29

m u h a m m a d i b n a h m a d a l - s a r a k h a s i It has been reported to us that the Messenger of God separated a couple because the woman was forced into marriage by her father, although she wanted to marry the paternal uncle of her children [her brother-in-law after her husband died]. He separated them and allowed her to marry the man she wanted to marry at first. This is proof that forcing a previously married woman into marriage makes the marriage invalid. This is a subject of consensus among scholars. . . .

It is also evidence that it is up to her to choose a husband and not to her father or guardian, for she is the one who is going to live with her husband.

Success is more likely to happen when she chooses her husband.

[Al-Sarakhasi,
Kitab al-Mabsut,
2:9–10 (11th century ce)]

Document 3–30

i b n h a j a r a l - ‘ a s q a l a n i

A chapter on: “A father cannot give away in marriage either his virgin
(bikr)
or his nonvirgin daughter except with her consent.”

In this title there are four concepts to be discussed; A father giving away in marriage his virgin daughter or his nonvirgin daughter, a nonfather giving away in marriage a virgin, or a nonfather giving away in marriage a nonvirgin one.

By adding the age factor more cases come up. A nonvirgin, of legal age, cannot be given away in marriage by her father, save with her consent. This case is a matter of agreement among most scholars except those who are extreme. A very young virgin, below legal age
(sagheerah)
can be given away in marriage by her father without her consent. This is a case of agreement among most except those who are extreme. A nonvirgin girl who is below legal age is subject of disagreement among scholars. Malik and Abu Hanifah said that the father can give her away in marriage in the same manner he does for a very young virgin.

Al-Shafi’i, Abu Yusuf and Muhammad12 said that the father cannot force his
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nonvirgin daughter into marriage whether she lost her virginity as a result of sexual intercourse or otherwise. The rationale of this view is the belief that her having lost her virginity makes her less inhibited. As to the virgin who is of legal age, they differed in their views over her being forced into marriage. The
hadith
suggests that the father or guardian must seek her consent, and that they cannot force her. This is reported by al-Tirmidhi [d. 892] as the view of the majority of scholars.

[Ibn Hajar Al-‘Asqalani (1372–1451),
Fath al-Bari Sharh Sahih al-Bukhari
(Victory of the Creator, Explanation of Hadiths Authenticated by al-Bukhari), 13 vols. (Beirut: Dar al-Kutub al ‘Ilmiyah, 1989), 9:239–240 (15th century ce)]

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k i n g m o h a m e d v i o f m o r o c c o

Through the instructions we issued and the opinion we expressed regarding the proposed Family Law, we aimed to make sure that the following fundamental reforms are introduced. . . . Entitle the mature woman to guardianship if she so chooses or if it best serves her interest, in accordance with one of the interpretations of the Qur’anic verse which stipulates that a woman shall not be forced to marry against her free will. . . . “Do not prevent them from marrying their former husbands, if they mutually agree on equitable terms.”13 . . . A woman may, of her own free will, entrust guardianship to her father or to a relative if she so chooses.

[King Mohamed VI of Morocco, speech to the Parliament fall session, October 10, 2003]

MAHR:
THE OBLIGATORY MARITAL GIFT

The Qur’an enjoins prospective husbands to give their wives a
mahr
at the time of marriage as an expression of their affection and serious intent and commitment to married life.
Mahr,
which means a marital gift, is variously referred to in the Qur’an as
saduqat
(pl.) or
nuhl
(sing.), And in some modern Islamic societies as
sadaq
(sing.). All these words have the meaning of gifting.
Mahr
is the analogue of the Western tradition of gifting a diamond ring to the betrothed, but a proper
mahr
may consist of teaching the Qur’an to the prospective bride or a simple iron wedding ring. On the other hand, it may consist of a diamond ring, or a whole fortune, depending on the wish of the betrothed woman. Early Islamic tradition has established that the state may not interfere and impose an upper limit on the
mahr,
as is now the case in some Muslim countries, for Qur’anically that is the pure right of the woman. The amount of
mahr
is usually specified as a stipulation in the marriage contract. The Qur’an made the
mahr
an obligatory gift upon the prospective husband, which he may not demand back if he decides to divorce his wife.

Despite the clear Qur’anic pronouncements on
mahr,
Muslim jurists af-172

a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i fected by their cultural surroundings have viewed
mahr
in different ways, some of which are repugnant to the Qur’anic spirit of marital and gender relations.

The Hanbali view is most consistent with the Qur’an. Hanbali jurists did not formally define the concept of
mahr,
but their discussions suggest that they consider it an asset—whether money or property, tangible or intangible—that the husband is required to give the wife as a free marital gift. Some Hanafi jurists, on the other hand, view
mahr
as part of an exchange due to the wife for staying at home and is akin to maintenance. Some Shafi’i and Maliki jurists view
mahr
as part of an exchange for sexual enjoyment with the wife. All “exchange” views suffer from the same deficiency: They depart from the Qur’anic ideal of
mahr
as a free gift
(nihlah)
that is not in exchange for anything else.

Rather, it is an obligatory gift from the man to his intended wife to express his affection, sincerity, and serious intentions. The modern jurist Malakah Zirar joins a line of distinguished jurists in rejecting this “commodity” view of women’s body and sexuality, calling
mahr
instead “one of the most important divine guarantees” to women.

Document 3–32

q u r ’ a n 4 : 4

And give the women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.

[Al-Nisa’, The Women]

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a b u j a ’ f a r m u h a m m a d i b n j a r i r a l - t a b a r i Interpretation of His saying “And give the women (on marriage) their dower as a free gift.” He, God Almighty, means “give women their
mahr
as a due donation and a prescribed duty.”

[Al-Tabari,
Jami’ al-Bayan fi Tafsir al-Qur’an,
3:583 (9th century ce)]

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a b u a l - w a l i d m u h a m m a d i b n a h m a d i b n r u s h d They agreed that
mahr
is a requirement for the validity of the marriage contract, and that it is not lawful to consensually eliminate it, because God said, “Give the women their
saduqat
as a free gift
(nihlah)
. . . . ” As to its amount, they agreed on the fact that it has no maximum. However, they differed on its minimum, al-Shafi’i, Ahmad, Ishaq, Abu Thawr, and the Tabi’in scholars from
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