Summary of 7.28 “Marriage Laws in Islam II (Validity of marriage)”
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We covered the issues last time.’ First, there was some discussion of inter religious marriage in Islam with a special focus on why a Muslim woman must marry a Muslim and that there are concessions for Muslim men and the reasons behind them.’ Second, we covered the definition of the marital contract in Islam and whether it is a sacrament or a civil contract.’ We ended up saying it has elements of both and we called it sacred civil contract.’ The third issue was the fundamental foundation for the validity of the marriage contract.’ We said that the main things that validate a marriage are: the approval of both parties to the marriage, both parties should be legitimate unto each other (not from the prohibited categories) and there must be two competent witnesses to the marriage.
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In addition, we discussed requirements which are understood or ones that are not unanimous among jurists.’ One of these was the availability of the guardian for the woman and his consent to the marriage.’ Basically, there are two point of views as to whether guardianship in the case of marriage is a must for an adult woman or not.
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7.29′ Marriage Laws in Islam III (Marriage Contract)
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Host:’ Can you develop the point regarding guardianship?
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Jamal Badawi:
First, we said that the jurists who say that the consent of a guardian is a must for marriage refer to three basic evidences.’ One, they say that some verses in the Quran seem to address men which shows that they are in charge of supervising the marriage.’ Second, they refer to some of the sayings of Prophet Muhammad (BUH) in which the apparent meaning of the sayings is that the woman can not marry herself without the involvement of her guardian (usually her father).’ Third, they said that it is only a protection of the long term interest of the woman and that she would just be getting the council of a person who loves and cares about her before she plunges into a marital relationship, especially if she is relatively young and inexperienced.
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On the other hand we said there are other jurists (especially Hanafi jurists) who say that it is not required for a woman to have a guardian for the validity of her marriage. ‘First of all, they said that there are verses in the Quran in (2:230-232) that addresses women when discussing marriage and thus implies that the authority to go ahead with the arrangement of marriage is in the hand of women.’ Secondly, they said that in Islamic Law a woman is entitled to negotiate any civil contract and they say what is the difference between a financial contract and a marital contract in terms of basic capabilities of negotiating either.’ They say they are the same by analogy.’ In addition they interpreted the sayings of the Prophet Muhammad (PBUH) requiring a guardian to be present or to give consent in marriage as applicable to minors (underage girls being married).
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Despite the difference of opinion one should clarify that in the majority of cases when an Islamic marriage is conducted women themselves actually prefer not to put themselves in the middle of men who usually go through the contract with witnesses and all of that.’ They are usually present at the time of marriage but they are usually sitting with other women in a section.’ Usually a woman asks her father to act on her behalf after giving him permission to accept the marriage.
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Host:’ Isn’t there a minimum age for marriage in Islamic Law?
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Jamal Badawi:
If we go to the Quran and Prophetic tradition we don’t find a specific minimum age for marriage, nor is there a maximum age for marriage.’ Islam as the last revelation of God for different places, different times and cultures it must have some flexibility so as to meet the needs of people in different places.’ If there is a particular age limit it may not necessarily be suitable for a particular time or a particular place.’ There is no strait jacket in terms of minimum age.’ We should also make a distinction between child marriage and consummation of the marriage which are not necessarily the same thing.’ Sociologically speaking as a great author like Wester Mark says that too long in many cultures before and after Islam there was quite a bit of child marriages.’ This does not mean that the contract is immediately followed by husband and wife relations but is more of a commitment.’ Sociologists give a number of reasons for this.’ In some societies where family relations are very important, to have a contractual marriage early may contribute to faster social integration, contact and solidarity between families with the marriage being consummated at a later time.’ I should clarify that Islam did not except the situation as it was but there were major reforms introduced into this type of marriage.’ At least three conditions were required.’ First, this marriage had to have the consent of the guardian (usually the father of the girl).’ Second, marriage would not be consummated till the girl becomes an adult.’ Third, when the e girl reaches maturity she is given the option of agreeing to or rejecting the marriage.’ This is called in Islamic jurisprudence the option of majority.’ As soon as she reaches majority, becomes an adult, she may revoke that marriage.’ All of these precautions are all in line with a cardinal principle in Islam and that is the necessity to give the woman the freedom and choice to accept or reject with whom she is going to live.
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Host:’ What does Islam teach about the woman’s right to choose or accept a man as a future husband?’ How does this compare with the practice of Muslims in some instances?
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Jamal Badawi:
It is essential to make a clear distinction between the authentic teachings of Islam and the practices of some Muslims in a given culture, place or time.’ True Islam is what is found in the Quran, Prophetic Tradition and authentic Islamic Law.’ How far people measure up to this in a given place or time varies depending on the degree of implementation.’ What we are addressing is what the Quran which will allow us to judge each situation accordingly.
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The Quran in (30:21) describes marriage as a partnership and something that should be shrouded with compassion and love.’ How can that be achieved if there is a forced marriage without the consent of either or both parties involved?’ We also find that the sayings of Prophet Muhammad (PBUH) are very explicit on this topic.’ First, of all there was a case of a woman who was previously married without her permission and she went to Prophet Muhammad’ (PBUH) and she complained that her father married her without her approval.’ The Prophet voided her marriage.’ This was narrated in Bukhari, Ahmad, Abu Dawood and Al Nassai.’ In Muslim, Ahmad, Abu Dawood and Al Nasai the Prophet (PBUH) was reported to have said that a woman who has previously married is more entitled (more than her guardian) that she should be married with her approval more than the virgin.’ And it says that even the virgin should be consulted and asked for permission in order to be married.’ Then he added her permission is her silence.’ Of course she can say yes or no but in consideration that in many cultures a woman might be a little shy when it comes to matters like this when she is asked for permission and she simply blushes and doesn’t say anything but does not reject then it is regarded as an approval.’ I read once that in some cultural practices that a woman would be behind a curtain and her father would come to her to seek her permission and if she agrees she would stay silent and if she protests she starts shaking the curtain.’ There are all types of means depending on the culture all the way from saying yes to silence or giving a subtle sign that the person is acceptable.
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In Ahmad, Ibn Dawood and Ibn Maja there was a case of a woman who came to the Prophet and said that she was a virgin and her father married her without her approval and the Prophet simply said you have the choice.’ Ibn Maja mentioned in the case of a virgin girl who came to the Prophet and said that he married her without her approval and the Prophet said it is up to her if she want to void the marriage that he would void it.’ She said no I agreed with what my father did but I came here to let women know that their father has no right to force husbands on them (to force them to marry people that they don’t want).’ This woman was a revolutionary; even though she accepted the marriage she wanted to educate other muslim women and to establish the principle in the presence of the Prophet that the whole notion of forced marriage without consultation is totally against the teachings of Islam.
Host:’ Is the marriage gift the same as the dowry?
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Jamal Badawi:
There are two reasons I did not use the term dowry one is historic and the other is semantic.’ The historical reason is that in the past the term dower, dowry and mohar has been associated historically with the purchase price or bride price.’ We addressed some of those angels in the thirteenth program.’ Some sociologists try to explain why in some cultures prior to Islam this purchase price was thought of?’ They say that a woman was regarded as an economic asset to her family so when she got married there are more hands working in favor of the husband’s family and her father would be loosing her contribution and would be giving more strength by way of progeny to the husband’s family.’ In some cases the price was paid to the husband, because the sex ratio was low and there were fewer men available and the father was actually buying a husband for his daughter.’ Historically, I find the word dowry not to be representative of the Islamic view of the marriage gift.
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The second reason is linguistic.’ If we look into the Webster Dictionary the term dowry can be used for both cases which is payed by the wife to be or husband to be.’ The main reason this is not quite consistent with the Islamic concept of dower or dowry is first that the marriage gift in Islam is not to be paid by the wife to be but it is always paid by the bridegroom.’ The second reason is that the Quran presents the marriage gift as something that has nothing to do with the purchase price.’ For example lets refer to the Quran in (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.” To start with it says when the marriage gift is given ,sadokat, it also uses the term nihlah which means a free gift.’ It is something that symbolizes commitment, affection and the hopes of the future of building a life together as husband and wife.’ Second, it said” ato alnisa’a sadokatihina which means their mahr.’ This implies that it is to be paid to them not to anybody else.’ In other words it did not say pay it to their family or their father but to them which means it is their own property which is their full right.’ Furthermore, it says if they chose to remit any part to help their husband, exempt him from any part or reduce it they have the right to do that.’ How could someone make this concession to something they do not own? ‘This implies clearly that this is a symbol of economic independence of a Muslim woman and her total freedom to dispose of the free gift as she wills.’ This is conclusive evidence that we find in the Quran that there is no connotation whatsoever of it being a purchase price.
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Host:’ Sometimes we hear that the dowry is used to buy furniture for the bride, it seems that this is not consistent with Islamic Law?
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Jamal Badawi:
If it is done against her free will then it would be against Islamic Law.’ Technically speaking in Islamic Law the husband is fully responsible for maintaining the household no matter how rich his wife or whatever income she may have.’ This means housing, clothing, food, furniture, medication and recreation are the exclusive responsibility of the Muslim husband.’ If that is done in the spirit of ignoring the obligation of the husband and against the will of the wife then it is against Islam.’ However, in many cases what happens in many Muslim cultures, even though the family of the wife take this money they do not take it for themselves but they take it and put many folds what she received to help the couple establish their life.’ Again it is the responsibility of the husband but if it is done by freewill and in good spirit it is fine.’ Even in this case anything that is purchased out of the mahr, marriage gift, becomes her private property.’ So if the husband dies or if there is a divorce then this property would go back to her, because it was initially her contribution.
Host:’ Is there any formula for figuring the amount of the marriage gift? Or a minimum or maximum for the amount of the marriage gift?
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Jamal Badawi:
First, as far as a minimum is concerned there is no authentic reference in Islamic Law or as strong opinion’ that is based on a direct text from the Quran or Prophetic Tradition.’ The reason that there is no minimum is that the whole purpose of this system is not law for the sake of law; but a structure which facilitates marriage, makes it easier and possible for both men and women to protect their chastity by having a legitimate relationship.’ One woman during the time of Prophet Muhammad (PBUH) was married and the whole marriage gift that she received from her poor husband was nothing but two pairs of shoes.’ The Prophet simply asked her if she accepted to give herself in marriage for this simple gift.’ She said ‘yes’ and the Prophet was fine with it.’ This was narrated in Ahmad, Tirmithi and Ibn Maja.
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Another interesting story was narrated in Bukhari and Muslim where a woman came and she offered to marry the Prophet.’ The Prophet did not respond so she understood that he did not wish to marry her and another man sitting there offered to marry her.’ The Prophet asked him if he had anything to give her as a marriage gift.’ He said I have nothing but this garment.’ He said if you give her this garment as a gift you would have nothing to wear, try to find something.’ The man said that he did not have anything and could not afford it.’ He told him to try to find a ring even it was an iron ring, just to give it to her as a gift.’ The man replied I can not find anything.’ He asked if the man had anything memorized from the Quran.’ He said that he had a specific chapter memorized.’ The Prophet told him to teach her that chapter and that would be his marriage gift.’ So we see how it was made very easy so long as both parties agree to marriage that no financial or aristocratic barriers should stand in the way of marriage.’ As in this case they got married with the recitation of the Quran.
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In another interesting case another noble woman by the name of Umm Saleem was approached by a man named Abu Talha who was not a Muslim at that time.’ He wanted to marry her and was rich.’ She said that she could not marry a none Muslim, but that if he became Muslim that would be his marriage gift to her.’ And actually he embraced Islam and married her.’ Islam makes it easy for people to get married.’ The Prophet said as narrated in Ahamad that ‘The most blessed marriage is one that is easy and not too costly.’
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As far as the maximum there is no set maximum either.’ We talked in a previous program about when Omar, the second Caliph after the Prophet, tried to set an upper limit to the marriage gift to encourage people to get married and he was ruled out of order.’ The Quran left it open without establishing any maximum leaving it to the customs of the place, time and generosity of the husband.’ It does not have to be one or two dollars, it could be a million.’ Islam makes it clear that parents and brides to be should make it a point not to turn marriage into a commercial dealing, negotiation process.’ If the husband to be offers more he is accepted; this is not a commercial thing but is much more noble than a mere materialistic thing.’ In fact some Muslims in some Muslim countries do not following these teachings of Islam.’ In some cases they keep demanding higher marriage gifts for their daughters before giving their consent which is not an exemplary type of behavior.’ In fact the Prophet (PBUH) in one occasion said that if one of you comes asking for the hand of your daughter, sister etc. give him in marriage if you are satisfied with his character, because if you don’t there will be lots of commotion, disruption or corruption on earth.’ Islam makes it easy without restricting it with any particular minimum or maximum depending on the circumstances of both while keeping the noble objective of marriage above all materialistic considerations.
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