Summary of 7.29 “Marriage Laws in Islam III (Marriage Contract)”
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We continued our discussion of guardianship in marriage.’ We also talked about the marriage of minors, indicating the various conditions attached to it.’ Third subject was the freedom of choice on the part of both husband and wife to be regardless of whether she was married before or if she was a virgin.’ It is required that the woman approves of the marriage and that it is not forced on her.’ Most of the program dealt with the question of the marriage gift.’ We explained in what sense the marriage gift in Islam is different from the typical term ‘dowry’ and the concept of it.’ Islam gave it a whole new concept which makes the dowry a gift rather than the purchase price.’ We indicated that this mahr is an absolute and complete right for the bride and nobody has any claim on it.’ She is not forbidden from using it to prepare her house or for clothing even though it is the responsibility of the husband.’ Finally, we indicated that there is no minimum or maximum marriage gift in order to facilitate marriage and encourage all who are concerned to observe chastity.’ In this way we find that Islamic rules are quite flexible an adaptable to a variety of situations, places and times.
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7.30′ Marriage Laws in Islam IV (Marriage Contract)
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Host:’ If the amount of the marriage gift is not specified at the time of marriage does it cause the marriage to be invalidated?
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Jamal Badawi:
The marriage gift in itself is not a prerequisite for the validity of marriage.’ However, for precautions and to avoid any differences it is better to specify the mahr in the marriage contract.’ If it is not specified there is no problem.’ Even the contract, from the Islamic point of view, it is better to be in writing but if it is not written and there are two witnesses it is still regarded as a contract.’ However, if the amount of the marriage gift is not specified in the contract and there is any difference of opinion that may arise in the future there is concept called mahr almithl which is an exemplary marriage gift.’ If there is any difference a judge can rule that she be given the customary marriage gift for a woman of that socioeconomic status.’ This would make it binding in case there is any litigation on this matter.’ The problem can sometimes be more acute.’ In case there is divorce immediately after consummation of marriage the customary equivalent is used.’ It is better to always specify the amount.
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Host:’ What happens if the mahr amount is specified but the full amount is not paid by the time the marriage contract takes effect?’ Would this invalidate the marriage?
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Jamal Badawi:
No, it does not invalidate the marriage.’ This is one beautiful thing about the flexibility of Islamic Law.’ The marriage gift that is agreed to could all be paid at the time of the contract (example of $2000 up front), they could all be deferred (example they agree to $2000 at a latter time, even after the marriage is consummated) or as is the practice in many Muslim countries it can be specified that a part of the gift be paid immediately and a part is delayed which is called mua’ajal and muajal.’ For example if one accepts to give $2000 as a marriage gift but they pay $1000 now and the rest is deferred.’ All of these are acceptable even though within the spirit of Islamic Law it is perforable to give something before the marriage is consummated.’ As we indicated before the marriage gift is an indication of commitment and ties.’ It is always better even if most of it is deferred to have something to offer at the beginning.
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Host:’ From a legal point of view when is the dowry due to be given to the wife?
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Jamal Badawi:
There are three foundations for when the marriage gift legally becomes due.’ One, is the actual consummation of marriage, which causes the full amount to be due or whatever is remaining of it (if part of it was previously paid).’ A second case is the death of either party before marriage is consummated.’ The third case is intended for the protection of the woman.’ This is called aldukhul alhukmi which is the case after signing the contract and before the marriage is officially consummated where the couple meet in complete privacy with no other person or barriers that may prevent possible physical contact (such as the month of fasting).’ Even if nothing happened as a precaution this is presumed as similar to actual consummation of marriage.’ If they are together in privacy and something happens, and people are embarrassed to say that it did, and he divorces her and she gets pregnant, what happens then?’ To protect the woman in that case it is presumed as a consummated marriage and she would be entitled to get the full amount even if he divorces her before actually consummating the marriage.’ In all of these cases the amount becomes fully due.
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Host:’ What happens in the situation where divorce takes place before the marriage is consummated?’ Would the wife have any claim on the dowry?
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Jamal Badawi:
Yes.’ If we look closely at marriage laws in Islam, it is a lot more generous towards the female not as a bias towards her but in consideration of their particular needs and in order to discourage any unscrupulous person exploiting them in matters of marriage.’ She would be entitled half of the marriage gift.’ This is documented in the Quran in (2:236-237) where it says that you divorce women before you touch them (as a symbol of consummation) that they should be given half of the paid amount.
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Suppose at the time of marriage there was no specification of the amount of the marriage gift.’ Then the groom divorced the bride before consummating the marriage what is she given?’ The Quran also deals with this situation and it says that one should provide them muta’a a consolation type of gift.
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There are cases where the marriage contract is broken because of deception on the part of either party like the discovery of hidden information or things that were false.’ In which case she would not be entitled to the mahr.’ In the previous normal cases she would get half of it.
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Host:’ Is it permissible to mention other conditions or requirements in the marriage contract?
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Jamal Badawi:
One position in Islamic Jurisprudence is that any condition which is lawful and legitimate could be added to the marriage contract.’ The evidence for this is in the Quran in (5:1) ‘O ye who believe! fulfill (all) obligations (contract).” Since we said before that marriage is basically a contract even if it is a civil sacred contract.”’ Any mutually agreed provision should be respected and should be implemented.’ The second point is that Prophet Muhammad (PBUH) is narrated as saying in Bukhari and Muslim that the most important condition that one should be careful in fulfilling are the conditions that make nuptial relations lawful to you.’ So any condition should be respected but mores so those that pertain to marital relationships.
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The only restriction on any condition to be included in the contract is that there should be no conditions that makes anything that God made lawful unlawful or thing that makes something that is unlawful lawful.’ In other words anything that violates the teaching of Allah would not be an acceptable condition.
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For example, if the wife says that a condition to the marriage is that he divorces his present wife.’ In fact there is a saying of the Prophet narrated in Bukhari, Muslim and Ahmad in which he says it is not lawful for a woman to get married at the expense of the husband divorcing another woman.’ This is condition from the Islamic point of view is invalid and not an acceptable condition.’ The Prophet said Mulsims should be held, according to their mutually agreed conditions, except a condition which makes a lawful thing unlawful or an unlawful thing lawful.’ So any other condition that may be beneficial to either or both parties may be included in the contract.
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Host:’ What about the situation where the bride wishes to add conditions such as not moving from a certain provence or area?’ Are these kinds of conditions valid?
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Jamal Badawi:
We are getting into a case that is not a question of lawful or unlawful.’ Muslim jurists have two opinions on these types of conditions.’ Some say that these conditions are not valid because it forbids the person from doing things which are lawful.’ They say that if the bride says we can not move from Nova Scotia it is not appropriate because she is making moving from this place unlawful.’ This includes the Shafi’i and Hanafi jurists.’ Hanbali and other jurists said that this condition is valid and enforceable so long as both of them agree to it.’ They say that a condition like this does not make things that are lawful unlawful and it doesn’t mean that it is unlawful to travel.’ It is just that both parties accepted to restrict their behavior in accordance to their agreement.’ This means that if the bridegroom accepts the condition of marriage to stay in that particular provence or town he simply accepted to restrict his actions in the future.
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Host:’ In addition to the minimum legal requirements for marriage are there other acts that are deemed commendable or desirable from an Islamic point of view?
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Jamal Badawi:
Yes, even though these acts are not a requirement for the validity of marriage.’ When the marriage proceedings start it is better to have ‘benediction.” The person conducting the marriage would start by praising God and giving thanks to Him and evoking his blessing on the Prophet and those who are present.’ Then it is desirable to also have a brief presentation about marriage in Islam and perhaps quoting a few verses from the Quran explaining the purpose of marriage and the duties of both husband and wife which would provide advise to them on the basis of divine injunctions.’ After these injunctions he can go on through the process of offering and acceptance.’ For example the agent on behalf of the bride would sit face to face with the bridegroom or his agent with the two witnesses seated in such a way that they can listen to both.’ Then as we mentioned before they make the statements that indicate the marriage.’ If the contract is put into writing, which is better but not a requirement, then the signature of both parties or their agents would be included as as the signatures of both witnesses.
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After the contract is signed the person officiating the marriage might pray for the blessing of both parties and their future offspring.’ In fact according to a saying of the Prophet in Al Nassa’i the terms to be used to congratulate is ‘baraka Allahu fikum wa baraka a’likum’ which is basically may God’s blessing be upon you and yours.
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The other thing that is highly desirable to the point that some jurists say it is required: is to announce and advertise the marriage.’ Having the two parties involved and the two witnesses is not regarded as appropriate.’ It serves a number of purposes to announce marriage.’ First, when the two parties (bride and bridegroom) are seen together people would not say anything ill about them because they know they are husband and wife, with no doubt about their integrity.’ It also allows other people to share in the joy of marriage and in the establishment of the new family unit.’ This is why the Prophet (PBUH) as narrated in Ahmad and Tirmithi says have these weddings in the Mosque (which is open for all Muslims to come and see), announce it and beat drums as a festive permissible occasion.
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It is also desirable that the bridegroom should have a party or a meal.’ The Prophet was quoted as saying that you should have in any wedding a party or meal which was narrated in Ahmad.’ When this is done is flexible.’ The party can be the same day as the contract is signed even though it is before the consummation, after the contract, the same night that the marriage is to be’ consummated and she moves to the house of the husband or it could be the following day.’ It is quite flexible and either of these is acceptable.’ The main restrictions is that this is conducted in an Islamic way with no violation of Islamic Law.’ Second, when a party is given the Prophet said very clearly as narrated in Bukhari that the worst party is the party to which people who need it are rejected and people who do not need it are invited.’ This is one way of saying a party where the rich is invited and neglect the poor.’ There are several sayings of the Prophet (PBUH) that say this is not appropriate.’ It should be more of an open type of event.’ This does not mean that one has to invite 5000 people but neighbors, friends or close people (also include close people).’ These are all majors that give marriage a joyful touch without any complex proceedings or undue formalities.
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Host:’ It is sometimes stated that Islam allowed for temporary marriages can you explain that?’ Is this still allowed?
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Jamal Badawi:
At one point in time drinking was not objected to (in the early part of Islam as we discussed in the sixth series when we dealt with intoxicants) even though now intoxicants are totally forbidden to Muslims.’ When Islam first came people were so involved in drinking that it was a way of life and if the legislation immediately made them give up these life long habits people would have not responded.’ Islam also considered human psychology and the gradual need for improvement.’ We might recall in the case of drinking first it discouraged people from drinking, then it said don’t pray while intoxicated and finally came the absolute and unequivocal prohibition of drinking.
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In the early days of Islam people were very pernicious (you can see this if you read about the Arabs before Islam).’ At the early days of Islam people used to go for campaigns for an extended period of time and some of them could not resist their needs and they went to the Prophet and asked him to allow them to sterilize themselves.’ He said no (because sterilization is not allowed in Islamic teachings) but he consented to a sort of marriage that is basically the same as normal marriage except that it lacks the intention of permanence.’ This does not mean that it was temporary and only lasted for one night because that was not the purpose behind it.’ It sometimes was for several months for a certain period of time but not necessarily for a permanent period.’ However, as time went on and people began to understand the spirit of Islam it ended up being totally forbidden.
As far as the situation of temporary marriage now, according to the overwhelming majority of jurists it is no longer valid.’ First, the purpose of marriage as indicated in the Quran as found in (16:72) it talks about God blessing us through our wives, children and grandchildren.’ The purpose is a continuation of relationships.’ Also, as we quoted in (30:21) that marriage is about tranquility, mutual peace and effect’ and is not something for a limited period of time.’ The Prophet (PBUH) was quoted by many authorities that what was permitted before has been totally forbidden till the Day of Judgement.’ There are very very few jurists who still uphold that view and they say that is ok in the case of absolute necessity like if a person who is traveling for years and fears that he would fall into adultery marries someone for a few years (without deception) and then separates after this.’ The overwhelming position is that it is no longer acceptable and was only one stage in the development of Islamic Legislation.
