Sex, Marriage and Family in World Religions (39 page)

Madinah,14 said it has no minimum, for anything that could be a price or a compensation for something could also be
mahr.
This is also the view of Ibn Wahb [742/3–812/3] from the Maliki School. Others said that its minimum has to be determined. . . .

The reasons for their divergence are two: first, it is not clear whether the
mahr
is compensation like other compensations, in which the amount, be it big or small, is determined by the concerned parties as is the case in financial transactions; or whether it is a religious duty and worship, and therefore has to be of a determined amount. Indeed, the fact that it allows men to permanently appropriate the women’s private parts makes it similar to compensation. But the fact that it is not lawful to agree on eliminating it makes it similar to religious duties and worship.

[Abu al-Walid Muhammad Ibn Ahmad (known in the West as Averroes),
Bidayat al-Mujtahid wa Nihayat al-Muqtasid
(The Distinguished Jurist’s Primer), 4 vols.

(Beirut: Dar Ibn Hazm, 1995), 3:966–967 (12th century ce)]

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m u h a m m a d a l - t a h e r i b n ‘ a s h u r Two parties were oppressed in
Jahiliyyah
(the pre-Islamic world): orphans and women. And two rights were violated: orphans’ wealth and women’s wealth.

Thus, the Qur’an highly protected them. . . .

The injunction addresses husbands first so that they do not take advantage of women’s shyness and weakness and their eagerness to please them in order to deny them their rights and take their
mahr
from them. . . . If they do so, then rulers must intervene and force men to specify the
mahr
. . . .

Saduqat
were called “free gift”
(nihlah)
in order to distinguish them from any kind of payment in exchange for something, and to assimilate it to gifts.

For the
mahr
is not a price in exchange for women’s services, because the marriage is a contract between the man and the woman in order to live together in kindness
(mu’asharah),
to establish a strong bond, and to exchange rights between spouses. And this is too valuable a relationship to estimate a monetary payment in exchange for it. If it were possible to do so, the price should be very high and renewed as the services evolve and last, like any other payment for services. Rather, God made it an obligatory gift from husbands in order to prove their respect and commitment to their wives, and also God made it compulsory because it makes the difference between marriage and concubinage and illicit sex.

[Muhammad al-Taher Ibn ‘Ashur, Tafsir al-Tahrir wa al-Tanwir (Commentary of Liberation and Illumination) (Tunis: Dar Sahnoon, 1997), pp. 229–231 (20th century ce)]

174

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 3–36

m a l a k a h z i r a r

Sadaq
is the first Islamic legal rule that results, by God’s will, from the covenant of marriage. The Almighty made it compulsory upon the husband and singled him out to undertake the burden of fulfilling this duty, without any responsibility in return from the wife’s side and her family members. For it is a God-given gift. It was made so by texts that are beyond any doubt in terms of validity and are also clear-cut in their meanings. It is one of the most important divine legal assurances to the wife and it does not reflect by any means a purchase price or a financial compensation to buy the wife or make her a property of her husband. The
mahr
is not a price for the woman’s private parts nor is it in exchange for enjoying them as alleged in many jurisprudential books and sub-scribed to by a large number of traditional Islamic legal scholars. This point of view was widely adopted to the extent that average Muslims, and even some well-educated ones, became certain that a
mahr
is a means to acquire the wife and appropriate her. These erroneous views resulted in the inferences of rulings that are in total contradiction with some divine rules stated by the Qur’an and the honorable prophetic tradition. . . .

In fact,
mahr
is one of the most important divine guarantees that were imposed by the Qur’an and the honorable prophetic tradition. . . . Therefore, there is no way to exempt the husband from it, even if the parties did not agree about it or did not specify it in the marriage contract. If the parties agree on marriage without
mahr,
then this agreement is null and void, because it eliminates what God has stated and violates the rulings of the Islamic law. In such cases the husband must be forced to pay it, unless the wife gives it up after her right in it is clearly stated. Nevertheless, the act of forgiving the
mahr
cannot be considered valid until it is proven to be a willful act without coercion, misleading, or deception from the husband. The legal proofs about the
mahr
are clear-cut and there is no way to suspend or eliminate it [Zirar,
Mawsu’at al-Zawaj wa al-‘Alaqah al-Zawjiyyah fi al-Islam wa
al-Shara’i’ al-Ukhra,
pp. 75–80 (21st century ce)]

OTHER STIPULATIONS IN THE

MARRIAGE CONTRACT

The marriage contract is a contract between two rational and consenting adults.

These adults are permitted to define their special relationship in advance by agreeing on certain stipulations placed in their marriage contract. For example, a young wife may stipulate that her husband may not interrupt her education after marriage, or that he would finance it, or even defer having children until her graduation. In the past some women stipulated that their husbands do not remove them from their hometowns or take second wives. Muslim jurists, how-Islam 175

ever, disagreed about the effect of violating a stipulation in the marriage contract, some taking such violations less seriously than others. These positions often ran contrary to the prophetic
hadith,
which states that Muslims must fulfill their promises, especially those made in the marriage contract. Today some religious clerics who conduct marriage ceremonies tend to discourage the inclusion of stipulations. But they are a legitimate mechanism by which the Muslim woman may negotiate and define her marital life and relations in advance.

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q u r ’ a n 5 : 1

O ye who believe! Fulfill (all) obligations.15

[Al-Ma’idah, The Table]

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h a d i t h

The Prophet said, “The conditions which are most worthy of fulfilling are those with which you legitimize sexual relations.”

[Hadith narrated by ‘Uqbah, in al-Bukhari,
Sahih al-Bukhari,
vol. 7, bk. 62, Kitab al-Nikah, no. 81]

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

‘Umar [d. 644]16 said, “Rights are determined by the stipulations set in contracts.” Abdu al-Rahman Ibn Ghunm said, “I was sitting close to ‘Umar, when a man came and asked him: O Leader of the faithful, I married a woman on the condition not to move her out of her town. However, I am getting ready to move to another country.” ‘Umar said, “The condition still stands.” The man then said, “Woe to men! A woman can divorce her husband whenever she wants then!” ‘Umar again said, “People of faith are bound by their stipulations; these define the boundaries of their rights.” . . .

His saying “those with which you legitimize sexual relations” means that the stipulations of the marital contract are the most urgent ones to fulfill.

Al-Khattabi said, “stipulations in marital contracts are diverse. Some are undis-putable and have to be fulfilled such as good companionship or kind parting.

To this refers the aforementioned
hadith.
. . . Some other terms and conditions are subject to disagreement.” . . .

Al-Tirmidhi, after reviewing this
hadith,
said, “Some knowledgeable Companions of the Prophets applied the rule which suggests that if one agrees with 176

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 his wife not to move her from her location, as a marriage contract stipulation, he is bound to fulfill his promise and cannot move her.” This is also the view of al-Shafi’i, Ahmad and Ishaq.17

[Al-‘Asqalani,
Fath al-Bari Sharh Sahih al-Bukhari,
9:271–72 (15th century ce)]

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s a m p l e e l e v e n t h - c e n t u r y m a r i t a l c o n t r a c t This is the
mahr
which [husband’s name and surname] offered to [woman’s name and surname] at the amount of [sum] Dinars and Dirhams, forty per unit of current currency, in cash advance and delayed credit, in Cordoba at the time of this contract’s drafting. The cash amount is [sum] Dinars and Dirhams, and was received on behalf of the spouse by her father [father’s name and surname]

as she is a maiden, under her father’s supervision and guardianship. The cash advance is to serve for preparing her for her husband’s home and from which he is relieved of any liability. The delayed credit amounts at [sum] Dinars and Dirhams of the same currency value, and is delayed for [number of] years starting from the wedding date. The first installment shall take effect on [date in month and years].

[Husband’s name and surname] voluntarily and willfully—seeking her love and aiming at her pleasure—committed to his wife that he shall not take a second spouse [while married to her] nor shall he hold a relationship with a female slave, nor shall he have a child with any of the female slaves. And that in case he fails any of the aforementioned conditions the wife reserves the full rights and prerogatives to terminate their marriage or that of him with his con-cubine and also to free the slave with whom he had a child as well as to sell, keep or free any other slave he had a relationship with.

Furthermore, he shall not stay away from her, be it in a short or a long trip, except for pilgrimage on his own behalf. For that reason only he has the right to an absence of three years, if he advises her beforehand of his departure time and destination, while maintaining her expenses, clothing and lodging needs. Anything exceeding this period of time shall entitle her, after swearing before two reliable witnesses that he has been absent for more than the period of time he committed to, to take matters in her own hands. She reserves the rights however, to blame him and her blaming him does not affect this stipulation.

Moreover, he cannot move her from her residence in the city of [name of city and county] save with her consent. In case he moves her against her will, she shall be free to decide. But if she agrees to follow him, but changes her mind and wants to return, she shall again be granted the right to decide after the lapse of thirty days from the day she asked him to go back, and in this case he has to provide for her the full round trip.

Islam
177

He cannot deny her the right to visit any of her female or direct male relatives, nor can he deny them the right to visit her. All this is in a context of common mutual family visits that sustain good relationships. If he denies her any of the abovementioned, she shall be entitled to take the fate of their marriage in her own hands. He shall also treat her well, and keep her good company as God commanded, and in reward of that she shall treat him well and keep him good company in light of the verse, “And men have a degree over women.”

. . .

And [husband’s name and surname] has been made aware that his wife [her name] is a woman who does not serve herself. She is rather to be served as per her social status. He acknowledged this and agreed to provide her with servants and he stated his capability of doing so.

He wedded her in God’s words and according to the tradition of His Prophet Muhammad—peace be upon him—to be a trust in his care, according to the privileges cited in God’s book that men live with their wives on equitable terms or let them go in kindness. Her father [name and surname] gave her away to him as a virgin under his care and guardianship, in good physical health, to be his lawful wife as per the marital contract, and as witnessed by [name and surname] from the husband’s side and [name and surname] from the wife’s side whose names are recorded in this contract, both in good legal standing on the date of [day-month-year].”

[Muhammed Ibn Amhad Ibn al-‘Aththar Al-Umawi, “Kitab al-Watha’iq wa al-Sijillat,” in Nasr Hamed Abu Zayd,
Dawa’r al-Khawf, Qira’ah fi Khitab
al-Mar’ah
(Circles of Fear, an Approach to the Discourse on Women) (Casablanca: al-Thaqafi al-‘Arabi, 2000), pp. 7–9]

MARITAL RELATIONS

The Qur’an describes the ideal of marital relations as characterized by tranquillity, mercy, and affection. The marital relation is supposed to be so close that the Qur’an describes each spouse as being the “garment” of the other, that is, one who covers the other’s shortcomings and protects his or her privacy. If that ideal fails, then the Islamic standard for married couples is to “either hold together on equitable terms, or separate with kindness.”

Because the goal of marriage as defined by the Qur’an is to create a relation of tranquillity, mercy, and affection, traditional jurists concluded that the marriage contract is a contract for friendship and companionship, not service. Therefore, they concluded that the woman is not obligated to perform housework, cook, or even nurse her baby except for humanitarian reasons. Further, unless she volun-teers, the Muslim woman is entitled to compensation for her housework and maintenance from her husband, even if she were richer than him.

The Qur’an limits the ability of a man to interfere in a woman’s affairs by 1.

requiring two prerequisite conditions and 2. limiting the interference to a
qi-178

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
wamah,
function, a word whose meaning involves the concepts of caretaking and service.

The verse in which the word
qawwamun
(sing.
qawwam,
that is, a man who exercises
qiwamah
) is used recognizes a male’s
qiwamah
over a woman only if he 1. is supporting her financially and 2. has been favored by God in certain aspects over her that are relevant (at the time) to the woman’s concerns about which he is providing advice and guidance. (An example of the aspects referred to in the second requirement would be business acumen, in a situation where the woman is not herself at that time a knowledgeable business woman, or physical strength, where that particular woman needs at that time physical assistance.) Otherwise, the man cannot assert his
qiwamah
over the woman.