Host:’ What are the main rights and obligations resulting from marriage?
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Jamal Badawi:
As a result of the marriage contract a number of things follow.’ One is the eligibility of the wife to receive the marriage gift (which we discussed in several programs).’ Another thing that was covered before that comes as a result of the marriage contract are the rules against incest (for example the husband would not be eligible to marry his mother in law once he consummates his marriage with the’ daughter).’ A third, any additional condition that was mutually agreed to between both parties which is included in the marriage contract becomes effective and binding on both parties.’ In addition to this there are other consequences such as mutual inheritance between husband and wife (this is a topic we have not addressed yet).
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On top of that there are additional duties and responsibilities between husband and wife.’ This includes the eligibility of the wife for maintenance and the legitimacy of the children born to the couple are some of the various which might follow from from the marriage contract.’ According to Islam and Islamic Law the identity of the woman does not change with marriage.’ She is not required to change her religion (if she is Jewish or Christian), she is not required to change the school of law that she follows, she doesn’t have to change her name and her legal personality remains in tact.’ She has the right to contract as any other person would be and financially she is entitled to her property.’ Second, the kinds of rights and responsibilities that are mutual between husband and wife (as a result of the marriage contract) are not just matters of the legalistic aspect but are based on religious and ethical grounds.
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Host:’ What is the ethical foundation of marriage in Islam?
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Jamal Badawi:
The essential point to remember by both husband and wife in Islam is their servitude to God as was covered in a previous series.’ As was covered in a previous series on Moral Teachings of Islam the human being is created on earth to serve God.’ This is one of the most important and challenging functions for humans here on earth.’ In order to serve God as his trustee on earth one requires both males and females to cooperate with each other in fulfilling this responsibility.’ For example in the Quran (9:71) it talks about the believing men and women being helpers and supporters of each other in obedience to God.’ If this general rule applies to any male female relationship it is definitely more so in the case of a marital relationship.’ The husband and wife relationship is above all a spiritual fellowship.’ It is something to help each other fulfill their spiritual responsibility on earth.’ In the Quran in (4:20) it describes marital relationship as something solemn and very profound, it is not just a light relationship, a contract or people agreeing to live with each other.’ It is called methaqan galithan which is a very solemn covenant.
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One of the foundation of the ethical view of Islam with respect to marriage is that is a blessing and a divine gift from God, it is not as some used to (or still) believe as being an inevitable evil that has to be done.’ It is actually a blessing that is not only permissible but is desirable and commendable.’ The Quran also describes the relationship as that of mutual love, compassion and cooperation.’ In (30:21) it says ‘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): verily in that are Signs for those who reflect.” It is presented as a blessing from God.’ Similarly, in (7:189) it says ‘It is He Who created you from a single person, and made his mate of like nature, in order that he might dwell with her (in love).” Similarly in (16:72) ‘And Allah has made for you mates (and companions) of your own nature, and made for you, out of them, sons and daughters and grandchildren, and provided for you sustenance of the best: will they then believe in vain things, and be ungrateful for Allah.s favors?” Again this is mentioned in the context of having children and that among the gifts of God is that He created mates and from that He gave children and grandchildren which is a bounty or blessing from God.
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Perhaps one of the most impressive verses in the Quran dealing with the nature of the marital relationship is in (2:187)’ ‘They are your garments and ye are their garments.” This is an interesting concept (even if taken in the literal meaning).’ What are the basic functions of a garment?’ First of all it provides warmth, is the closest thing to you, it protects you from the weather, it provides you with a sense of security, it beautifies you, it covers or conceals parts of the body that should be covered.’ When the Quran states that a wife is like a garment to her husband and a husband is like a garment to his wife is a very tender expression.’ All the points that were mentioned about the function of a garment applies as well in the marital relationship.’ One, the garment beautifies so does marriage.’ It beautifies and completes the person.’ We mentioned that marriage is like fulfilling half of one’s faith.’ As the garment provides warmth so does marriage.’ As the garment is the closest thing to the body so should husband and wife.’ As the garment protects you from the weather so does marriage from evil desires or illicit sexual acts.’ Husbands and wives conceal each others mistakes just like a garment conceals one’s body.’ They are the closest to each other.’ This is a very tender and deep concept that the Quran deals with in terms of this mutual support of each other.
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We also find the various sayings of the Prophet (PBUH) which emphasizes the same meaning in Muslim he says ‘There is some joy in life: the best joy is a good a pious wife.” As narrated in Tirmithi and Ibn Maja some companions asked the Prophet (PBUH) ‘What is the best kind of wealth?” He replied ‘The best wealth is a tongue which is wet with the remembrance of God, a heart which is thankful and grateful to God and a pious believing wife who helps him with is piety and belief.
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Host:’ What are the rights of a wife in marriage?
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Jamal Badawi:
Jurists usually divide the rights of the wife into two categories.’ One is the financial rights (maintenance and similar acts).’ Two, are the non financial rights (treatment and the way she dwells with her spouse).
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Host:’ How are the right to maintenance defined and what is the basis for these rights?
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Jamal Badawi:
First of all, the financial rights (maintenance) means that no matter how rich one’s wife may be according to Islamic Law the husband is fully responsible to provide for all her needs.’ In the Quran it talks in chapter 2 that the father of the child is responsible for providing food, housing and every need for his wife and child.’ In a saying of Prophet Muhammad (PBUH) narrated in Muslim he says that ‘Your wives have rights over you which include their food and their clothing (as an example of the kind of things that should be supplied for them).’ In another saying narrated by Abu Dawood and Al Nassai Prophet Muhammad (PBUH) said that it is a sufficient sin is for one to neglect the rights of those whom he supports.’ This shows that it is a moral responsibility for one to look after his family which includes the wife and children.
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Beside these foundations in the Quran and Sunnah the nature of marriage in Islam in terms of mutual duties and obligations makes the responsibility of the household on the man’s should not charity but is part of his duty which is counteracted by her cooperation and her fulfillment of other duties which don’t require her to contribute any financial support.’ Of course she may contribute financially if she does so from her own free will, but legally she is not required to spend a penny.
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Host:’ Can you be a little more specific regarding the items which are included under maintenance?
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Jamal Badawi:
The most important aspect is residence.’ The husband is required to provide lodging for his wife which is consistent with his financial ability.’ For example in the Quran in (65:6) ‘Let the women live (in ‘iddat) in the same style as ye live, according to your means.” The least qualification of housing which is accepted in Islamic Law would be one that insures the wife’s comfort, privacy and independence.’ According to the majority of Muslim jurists they say that a man should not provide housing for his relatives in the same household as his wife without her consent; with the exception of her step children (his children by another woman).’ By the same token, she may not force her husband to accept her relatives to live with them without his consent.’ Even in the case of jurists who say that her consent is required also has the condition that they do not hurt the wife.
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A second basic item that the husband should provide food without extravagance or miserliness.’ Again there is no particular specification as to how much or what type, it depends on his means and also what is accepted from a customary standard.
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The third basic item is clothing.’ It is interesting how the books in Islamic Jurisprudence go into detail in order to make sure that justice is being done to wives.’ For example they say that if a person is poor they should provide clothing made of cotton and if he is rich (and it is customary for a rich person to provide silk garments) then he would be required to provide her with silk garments.’ It is interesting to notice that beyond these basic needs many jurists say that if the wife happens to come from a well to do family and is used to having maids to help with the housework, or if she is sick (and requires help) then it is a legal responsibility of the husband, according to Islamic Law, to provide her with a maid (if he is able).’ In general, all her reasonable needs of lodging, food, clothing and help is taken care of.
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Host:’ What about healthcare and medication?
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Jamal Badawi:
There is no evidence in the Quran or in the saying of the Prophet which excludes medication or treatment.’ This is only consistent with the purpose of marriage in Islam.’ We find in the Quran and the Prophetic tradition that is companionship, mutual concern and kindness.’ Of course mutual concern and kindness would not be there if medication is excluded from these responsibilities.
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It is the opinion of an overwhelming majority of jurists with the exception of some minority opinions (which do not have solid facts from the main sources of Islam) to include these responsibilities.
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Host:’ What happens in the situation where the economy is bad and the husband looses his job or for some reason he is unable to support his wife at the level she is accustomed to?’ What are her options?
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Jamal Badawi:
According to the great majority of Mulsim jurists the wife is given the choice between enduring with the husband until his financial status improves or to seek separation from him.’ This separation could take different forms: she could seek divorce, annulment of the contract or she could seek separation without actual divorce.
An additional interesting remark made by the Hanafi jurists that if the husband becomes poor the wife could be sponsored or supported by the closest male relative who otherwise would be responsible for her maintenance if she were’ not married.’ In Islam a wife is assured financial security.’ If she was not married her father, brother or son would take care of her.’ They also added that a woman could be given the choice to borrow money (reasonable amount of money to support her basic needs) until her husband’s situation improves.’ Whatever she borrows becomes a debt which her husband is responsible to pay as soon as his financial situation improves.
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There is one exception however, by the Thahiri jurists like Ibn Hazm who claim that if the husband becomes poor on a temporary basis and his wife happens to be rich then she would be required support herself and her husband.’ Even when his situation improves he is not required to pay her back.’ They say that if the wife is rich and can support herself and the husband and weather this difficulty it is definitely better for her to suffer financially (sacrifice some of her wealth).’ They say this harm (it is considered her to her when she sacrifices some or her wealth) is better than the harm of separation, divorce and the difficulty that she and her children might face in the future.’ It is a basic rule in Islamic Law that if there are two harms it is better to take the lesser harm and prevent the grater harm.’ They consider divorce to be greater harm.
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It also depends on the situation and if it is temporary or if the husband simply refuses to fulfill his duties.’ Ibn Al Qiam says that if the husband falsifies information about his financial state at the time of marriage or refuses to provide for his wife then there is no question that she could seek divorce.’ If it is temporary situation perhaps there is room for interpretation depending on the situation.
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Host:’ What if the husband is not poor but marginal with his property, can the wife take what she needs?’ Even without his knowledge?
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Jamal Badawi:
There was a similar situation that was raised during the lifetime of Prophet Muhammad (PBUH) in the case of Hind the wife of Abu Sufian.’ She came to the Prophet as narrated in both Bukhari and Muslim and said ‘Oh messenger of God my husband, Abu Sufian, is a miserly person and he does not give me enough for myself and my children, except whatever I take from his property and spend without his knowledge.” The Prophet’s answer was ‘Take whatever is sufficient for you and your children; but in a fair and customary way.” That is that she should not just stanch anything that she could but that even without his knowledge one can spend as much as is customarily regarded as fair and equitable.’ This is based on an interesting rule in Islamic Law that first, a person who has a right is entitled to take his right with his own hand if he can.’ Second, even if the person who is taking away one’s rights does not know that you are taking your right you can take it.’ It should be added that in the case that this dispute about the miserliness of the husband is not resolved amicably between the couple in Islamic Law she is entitled to go to court and they could impose on him a certain amount which he pays to his wife.’ There is a great deal of security and protection there.
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Host:’ Are there situations which make the wife ineligible for maintenance by her husband?
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Jamal Badawi:
The only disqualification (by a consensus of Muslim jurists) is the case when the wife is a refractory wife or an obstinate wife.’ Obstinate in the sense that she is rebelling, does not yield to reason or plea to fairness in treatment to her husband.’ Not all ways of defiance are included; if she is defiant and still in the household he is still responsible for her, but if she is so unreasonable, obstinate that without any agreement between her and her husband that she moves then he is not responsible for her.’ If he provides her with reasonable housing and she moves to another place he can tell her to pay the bills, because she moved without his permission.’ Also, a woman can not travel without her husband’s consent and expect him to support her.’ Short of these reasons the woman is fully entitled to maintenance regardless of age, health, illness and regardless of her wealth.’ Some Muslim jurists add that even if the woman is divorced that for the waiting period before it is effective she is still entitled to full maintenance in the household of her husband.’ These issues will pop up when we deal with dissolution of marriage and the various rules associated with divorce.’ In any case there is full protection and security for the wife in return for her great contribution as a wife and mother.
