Social System of Islam- Marriage Laws in Islam II (Validity of Marriage)

Summary of 7.27 “Marriage Laws in Islam I (Forbidden Categories)”

We continued investigating marriage laws in Islam and the main points that were discussed pertained to the prohibited or restricted categories to which the person may not get married because of close blood relations.’ We also indicated that in terms to interfaith marriages first a Muslim male or female may not marry someone who is an atheist, polytheist, or idol worshiper.’ However, we said that a Muslim male may marry a woman from the People of the Book which is used mainly to refer to Jews and Christians.’ A Muslim woman must only marry a Muslim man.’ We indicated that even though Islamic Law allowed inter-religious marriage in the case of a Muslim man which was intended as a gesture of good will and tolerance but is not intended to be the general rule.’ It qualifies with a number of conditions including not causing harm to one’s self, his children or to other Muslim women who are only entitled to marry Muslim men.

7.28′ Marriage Laws in Islam II (Validity of marriage)

Host:’ Is there any evidence from the Quran to support that a woman can only marry a Muslim man?

Jamal Badawi:

In (60:10) of the Quran it deals with the situation when in the early days of Quran some women migrated (left their husbands and relatives) from Mecca and went to Madinah to join the Prophet because they could not practice their faith freely in Mecca.’ In that particular chapter Prophet Muhammad (PBUH) and the Muslim community were instructed to test those women in their faith ‘When there come to you believing women refugees, examine (and test) them: Allah knows best as to their Faith: if ye ascertain that they are Believers, then send them not back to the Unbelievers. They are not lawful (wives) for the Unbelievers, nor are the (Unbelievers) lawful (husbands) for them.” The term used in that verse was kufar which applies to both categories: those who Muslims are totally forbidden from marrying like idolators and those who reject the Prophethood Muhammad(PBUH).

The second evidence which is even more obvious appears in (5:5) where permission is given to Muslims to exchange and eat the food of the people of the book or give their food to the people of the book so long as it is not prohibited for another reason (if it is pork).’ Then it says ‘Lawful unto you in marriage) are (not only) chaste women who are believers, but (almuhsanat) chaste women among the People of the Book, revealed before your time.” The verse specifies only chaste women from the People of the Book.’ The Quran is very precise and delicate in its expressions and if it meant both it would have said both almuhsanat wa’al muhsanoon, the chaste men and women, but it specified the female gender only.

Host:’ Why is a Muslim female prevented from getting married to a person from among People of the Book?

Jamal Badawi

First, it is important to realize that this injunction is not man made or woman made it is a divine injunction.’ God revealed it and directed Muslims to follow it, so there must be some wisdom behind it because God has no reason to be bias towards males or females.’ The main issue here pertains to the role of the husband as a leader of his family; not only in the framework of Islam but in many other cultures the husband still has a leadership role to play in his family.’ The main issue that might be at stake would be the religious freedom of the woman, whether she is from the People of the Book or a Muslim.

First, in the case of a Muslim man marrying a believing Christian woman the husband believes that her religion in its original form is a divinely inspired religion.’ Second, the Muslim husband believes in the Prophet,Jesus (PBUH), of his wife.’ A Muslim can not be a Muslim without believing in all prophets which include Moses and Jesus and many others.’ Third, according to his religious scriptures the husband believes that the original revelation or Holy Book given to the prophet of that religion came from God.’ Fourth, Islam teaches the Muslim husband to respect the religious freedom of his wife and to allow her to practice her faith freely and some jurists say he is obligated to take her to her Church.’ In that sense a Christian or Jew who is married to a Muslim husband has complete freedom to practice her faith without pressure or intimidation.

Let us assume that a Muslim woman is married to a Christian or a Jew.’ This husband who leads and controls the family does not believe in the divine origin of Islam as revealed from God.’ Two, he does not believe in Prophet Muhammad as a Prophet.’ He does not accept the Quran as the word of God or His revelation revealed to Prophet Muhammad.’ Given these circumstances, even though it may vary from one to another, precaution and protection of the religious freedom of the wife is important when there is question of her being given the freedom to practice her faith.’ Islam is not just a matter of belief, it is a complete way of life which effects her behavior in her social and family live.’ There is a question and risk that her freedom might be at stake.’ If we add to that the fact that a woman by nature (which is not a deficiency but could be a privilege) is more on the emotional side which might threaten her religious freedom but might even gradually effect the extent of her adherence and commitment to her faith.

Host:’ Many people argue that there is a similar risk in the reverse case as it is possible to have a non-Muslim mother and her influence on the children could make things difficult, how would you respond to this?

Jamal Badawi:

If there is real danger or risk of harm or negative influence and that the children will not grow up as true Muslims or even if there is an impact on the husband it becomes unlawful.’ Within the basic rules of Islamic Sharia’a there are two things to remember.’ First, the purpose of marriage is also fellowship and partnership which not only involves the physical but also involves intellectual as well as spiritual elements.’ The basic rule is that a Muslim should get married to a Muslim who shares the same belief in God, the same belief in the acceptance of all Prophets and revelation of God.’ When Islam allowed intermarriage it was a gesture of good will and tolerance which is not an open ended permission but has qualifications.’ If these qualifications are not there or if something that is permissible could become harmful or contradict Islamic Law then it could become prohibited.’ If there is danger of it affecting the Islamic identity of the children or having a negative impact on the husband then it becomes unlawful.

Host:’ What happens in the situation where a woman who is married and later embraces Islam and her husband remains a non-Muslim?’ or in the reverse where the male embraces Islam and the wife is a non-Muslim?

Jamal Badawi:

It is permissible for a man who embraced Islam to stay with his wife who remains a Jew or Christian.’ Neither a man or woman can marry to an atheist, agnostic or idol worshipers.’ The difficulty arrises in the reverse case: if the wife becomes Muslim while her husband is still a Jew or Christian which the Quran indicates to not be permissible.’ This does not mean that divorce must take place instantaneously.’ According to some jurists she must have her waiting period which is three months.’ During this period a chance is given to the husband to freely consider whether he wishes to embrace Islam.’ Of course during this period they can not have matrimonial husband’ and wife relations.’ If he is convinced during that period that what his wife decided is the right thing and he wishes to join her then there is not need to have another marriage contract or marriage gift and their relationship may resume as husband and wife with no difficulties whatsoever.’ If he insists to remain as he is then ultimately they would have to be separated.

This is definitely not a theoretical problem but this type of situation does happen and the courage and commitment to God by many women is really admirable.’ They face more problems and they remind us of the courage and sacrifice made by many of the early Muslims.’ When the early Muslims were given a choice between choosing between God and a person they chose God.’ This situation involves complications aseptically when children are involved.’ The ideal situation would be to allow sufficient time to explain through affection and persuasion to discuss the matter with the husband.’ Also, it would allow it to be clarified that he does not have to reject his previous faith or his belief in his Prophet because after all by becoming a Muslim he augments rather than decreasing his beliefs.’ He would believe in addition to believing in Jesus, Moses or all the Israelite Prophets in the last Prophet, Muhammad (PBUH).’ This would guaranty the religious freedom of both.

Host:’ Is the marriage contract a civil contract or a sacred contract?

Jamal Badawi:

It depends on what we mean by sacred contract.’ Some sociologist define sacrament in marital relationships or the marriage contract they are really referring to a contract that must be officiated by a priest, it is a contract that must invoke some kind of benediction or invocation of blessings and is a sort of right.’ They view it as a right which in itself removes the taboo pertaining to sex and it makes sexual relations permissible and wholesome.’ This may cary an overtone that sex and marriage are a sort of inevitable evil and celibacy is the preferable type of state.

Sacrament in that sense has no relevance in Islam.’ To start with Islam does not make this sharp distinction between sacred and mundane or between civil and religious. ‘Every aspect of Islam that is sacred has some sort of mundane or civil implications and if it is civil it has some sacred origins.’ Islam doesn’t make this distinction between the various aspects of human life.

In Islam there is no relevance to viewing sex as an inevitable evil or something that is bad in itself.’ The Quran presents this as a divine gift, a divine blessing so long as it is satisfied in the wholesome and lawful manner.

Third in Islamic Law there is no absolute necessity of the presence of a priest (no priesthood in Islam) to officiate the marriage.’ People may have somebody supervise the contract and make sure the conditions are met, but it is not a requirement for the validity of nuptial relationships.’ As far of benediction or evocation of blessing; it is desirable but in itself would not validate marriage.’ If sacred contract is meant to be something which is based on divine directives, a contract in which God is a party (in terms of providing guidance and outline of the relationship) then the marriage in Islam is a sacred contract.’ The Quran refers to it as solemn covenant.’ Hence we find that the Islamic contract of marriage has elements of what people find as sacred and civil.’ It is a sacred civil contract.

Host:’ What are the main conditions for the validity of the marriage contract?

Jamal Badawi:

Muslim Jurists divide the conditions into four types of conditions.’ Basically there are conditions that are absolutely necessary for marriage to take place.’ They call it arkan or foundations of marriage.’ This foundation is the acceptance and agreement of both parties(husband and wife to be) to the contract.’ In fact this might take the form of a proposal and an acceptance in the same setting through both parties or whomever represents them.’ What is said can by said in any wording, in any language so long as it is expressed in a direct explicit and unequivocal terms, so long as there are no doubts and no ifs and butts.’ For example one can not say they will marry a person if they get a job or I will marry you next year.’ It must be decisive, precise and unequivocal.

An example of what the father acting on behalf of his daughter (after taking her permission) would say to the groom would be: I give you my daughter (her name) in accordance with the Book of Allah, Quran, the path of Prophet Muhammad (PBUH) and in accordance with the marriage gift agreed to between us and God is my witness.’ The bride-groom would say: I accept marriage to your daughter (her name) in accordance with the Quran, Sunnah and the marriage gift agreed to between us and God is my witness.

In addition, in order for the contract to be valid there must two competent witnesses.’ In fact the witnesses in the case of the marriage between to Muslims must be Muslim.’ If a Muslim male is getting married to a Jew or Christian some jurists like Abu Hanifah and his student Abu Yusuf are of the view that the witness of the people of the book may be accepted in inter religious marriages like this.

Another condition for the validity of marriage is the wife or husband to be should not be from among the restricted categories.’ These are the basic minimum conditions for the validity of the marriage contract.’ There are additional conditions that are implied and some that jurists have different opinions about (whether they are absolutely necessary to validate a marriage).

Host:’ Can you explain these extra conditions?

Jamal Badawi:

For example, in the case of the marriage of a minor (underage or not an adult), which is usually not the case as most jurisdictions prevent marriage of a minor, the consent of the guardian is required.’ If there is no guardian then the consent of a judge is required.

Another condition that is implied is that there should be no deception.’ If a marriage contract is negotiated and signed on the basis of mistaken information, deception or concealment of information by one side or the other it could result in the request to void the marriage.’ In a case that a woman marries herself without the consent of her guardian, and her guardian feels that this marriage is not in her best interest, the guardian may go to the judge and request annulment of the marriage to protect the interest and future of his daughter.

Host:’ This seems to imply that it is possible for a Muslim woman to get married without the permission of her guardian?

Jamal Badawi:

According to the Hanafi School of Jurisprudence this is permissible.’ The majority of Muslim jurists however say that a woman can not get married without the consent of her guardian.’ There is difference of opinion as to whether the consent of the guardian is absolutely required or not.

Host:’ What evidence is used to support both sides of these arguments?

Jamal Badawi:

The jurists who say that a woman must have the consent of a guardian use three pieces of evidence.’ First, they refer to some verses in the Quran that deal with marriage and they interpret that tone of the verse addresses males rather than females.’ For example in (34:32) and (2:224 & 232).’ Second, they say that there are more than one saying of Prophet Muhammad (PBUH) which seems to indicate that the consent of the guardian is required.’ One says that there is no valid marriage without a walli or guardian which was narrated in Ahmad, Abu Dawood, Tirmithi, Hakim, Ibn Hiban and several other references.’ In another Prophetic Tradition narrated also in Ahmad, Abud Dawood, Ibn Maja and Altirmithi the Prophet says that if a woman marries herself without the consent of her guardian, that her marriage is void.’ Some added that a woman may be under the influence of emotions and that she needs some council before proceeding with marriage.

Those who took the opposite view said that there are verses in the Quran (2:230-232) which talks about marriage while addressing women which shows that marriage is in the hands of women.’ They also said that in Islamic Law a woman is entitled to negotiate financial contracts and what is the difference between that and a marriage contract.

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