:salamext:
Chapter 4:
'In a Golden Cage': The Rules of Marriage
It's not just a golden cage, it's more than that. It's a life of freedom, insha Allah.
In the farewell khutbah, the Messenger of Allah salla Allahu alayhi wa sallam said: "Fear Allah concerning women! Verily you have taken them on the security of Allah, and intercourse with them has been made lawful to you by words of Allah. You're obligated towards them to provide for them and dress them according to the customary tradition." Muslim
The marriage contract is a religious contract and an act of worship. Through the history of marriage, we learn that the most powerful contract is the one made by the name of Allah. Even the non-Muslims go to religious entities to perform their marriages, because they believe if they perform it before God, then they have an obligation and responsibility before Him. Prophet Muhammad (sal Allahu alayhi wassalam) said, "You can make intercourse by what has been made lawful to you by words of Allah (Subhanaw wa Ta'ala.)"
First: The Integrals (Arkaan) of a Marriage Agreement
What do we mean by rukun? Rukun are like pillars, in that they are the sides of the structure that hold up the structure. The following will carry the foundation of the marriage.
Meaning of Integrals:
Hanafi: what the existence of the matter (here: the marriage contract) is dependent on its presence (if the integrals are present, then marriage will exist) and it has to be part of its essence (part of the contract itself)
Hanafi- say you just need JUST the spoken form.
Malik/Shafi: what the essence of the matter is dependent on its presence and it does not have to be part of its essence.
They say you need everything ~ all except the witnesses
1. The spoken form
1. The definition:
A formal spoken offer by one party, known as the ijaab, or the offer itself, while the second part is al qabul or the acceptance from the other party. The wali starts by saying, "I offer you my daughter in marriage" and then the man responds by saying, "I accept."
Hanafi- says that either is okay, where the mu'jib makes the ijaab and the acceptor is the makbul, but most people say that the qabul should be from the man.
2. Rulings of the spoken words:
Accepted words on which there is agreement~
1. zawaaj, 2. nikaah, because Allah uses zawaaj in Surah Ahzab: 37 about the marriage of Zainab radiAllahu anhu, and the word nikaah has been used many times in the Qur'an, such as in Surah an Nisaa: 22, in which it says, "wa la tankihu ma nakaha ibaahakum ilan nisa."
Rejected words on which there is agreement~
any word in general that does not include or imply the direct and immediate positions of the rights of conjugal relations. In the case of a celibate marriage, they don't need another marriage contract once the relations have been made, because it's their choice to consummate or to discontinue the life long term. Using words like "permissibility," "lending," "leasing," or "trading," "enjoyment," "wasiyyah", like "will", "mortgage", or "trust," "wadeeyyaa" or "amaana."
Words on which there is disagreement~
some scholars accept these words and some don't: "al bayr,"~ selling, "al hiba"~ gift; "sadaqa"~ charity; "Al atiya/hadiyyah"- a gift/present. Some people say "give me your gift" or "be charitable to me"~ they're not really acceptable , because the spoken form (by definition) should give the implication of immediate relations and the continuation of terms.
Hanafi/Maliki- all words are acceptable so long as they imply the intention for marriage. They say that Allah uses the word, "mahabaat" in the Qur'an, and they use the evidence from the Qur'an in which Allah says, "And you show a believing woman in "mahabaat" as a gift for Prophet Muhammad (sal Allahu alayhi wassalam.)" However, this was only for Prophet. In the hadith of Sahl 'ibn Saad, he had nothing to offer, so he told the Prophet that he could offer his knowledge of the Qur'an.
Shafi/Hanbal- the only words that are allowed are zawaaj and nikaah, while the others are not acceptable. Their evidence is that they were the only two words used in the Qur'an for marriage and as for the hadith they mention, it has different versions and the most popular version uses the word, "zawajtukaha" not "malaktukaha," meaning "I marry her to you, with the Qur'an as your mehar."
Using writing or sign language as an alternative~
If the man is absent and the lady is present, and the man sends a letter of proposal for the father to sign, is this permissible?
1. It is not acceptable if both parties are present and able to speak. In this case, they must sign it.
2. If somebody is disabled, using writing or sign language is ok so long as everything is clearly understood and both parties show the clear intention of marriage.
Words that are not really allowed~ "trading"~
al bayal al mu'ataaw. This is also known as handling, which is done without speaking. Although each contract should have an ijaab and qabul, al mu'ataaw is tolerated in things that are easy (such as the grocery, etc.) but for valuable items like land, cars, etc. it's not allowed. Therefore, al mu'ataaw is not allowed in marriage (out of respect and importance of marriage.)
3. Conditions of the spoken form:
Language: some scholars say the whole contract has to be in Arabic, but a majority of the scholars say that since Allah used az zawaaj and nikaah, then they should be the only words in Arabic. Generally, the language used should be something that both contracting parties understand. It's illegal to contract the marriage contract when one of the parties does not understand the language, even if she is a non-Muslim.
The verb used in the contract should be in past tense. The wali can say something like, "zawajtuka binti" or "I have already given you my daughter in marriage" and then the man can reply with, "qabiltu" or "I accepted your marriage." However, the present tense or future tense is not recommended, like if someone says "I will." But the scholars say that if the intention was clear then it's okay, and if the intention is not clear, then it's merely considered a promise, therefore the words that are used should be totally clear.
1. Both words (the ijaab and the qabul) should be stated in the same session- when the offer starts, it should be answered in the same session. If it is not, it's considered to be more like a betrothal. It should not be interrupted by anything outside the marriage contract. The response should follow immediately. If there is an intermission by silence, there is no specific ruling for the length of that intermission, so whatever is suitable for the people according to their tradition and culture is permissible.
2. The exact correspondence/matching of the ijaab to the qabul~ if the wali says "I'm offering you my daughter Fatima" and the man replies, "I'm accepting your daughter A'isha" then it's not allowed. If they disagree on the maher, that's not allowed, either.
3. The one who gives the spoken form must remain on his offer until he gets the answer~ he cannot revoke the proposal. IF the man was about to answer but he goes to talk to his wife, or on the phone, then that's considered revoking it. In this case, he would have to repeat it again, where the answer would come directly after that. Can one revoke the contract before the answer? Yes. However, after the answer is given in the affirmative, it's over, and it's a legal binding, therefore, it can only be ended with an official divorce.
4. It should also imply immediate fulfillment of the contract~ if a man says, "I offer my daughter Fatima" and the guy says, "I accept insha Allah," then this is not a valid word. Don't use the word insha Allah unless it's used for baraqah. However, in general, it shouldn't' be used in the spoken form of marriage. The man cannot say he will accept at another time either.
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4. Stipulating a grace period of choice in the contract (aka optional clause):
Is it acceptable to do a trial session with marriage? NO, because the contract makes it binding. There are two types of khiyaar (optional clauses):
1. Khiyaar al majlis- this is when the people are still in the session where the contract was bound. In order to bind it you have to leave and have some kind of physical separation. Islamically, if the contract has been bound, and they're still at home afterwards, in the same session, then that's not allowed. This can happen in other negotiations, but not in the marriage contract.
2. Khiyaar ash shart- adding a stipulation or condition. One should not put any types of optional clauses for the marriage contract.
Things that Violate this rule:
1. Temporary marriage: it was acceptable at the beginning of Islam because of social and political conditions of that era. The Prophet prohibited it twice, in which the last time was after the Battle of Khaybar. All Sahabi except one, Adullah ibn Abaas kept insisting that it was still allowed. He said that since it was allowed, forbidden, and allowed again and forbidden, then the condition would need an 'ilah or a reason. If the 'ilah is present (circumstances would differ~ then the ruling should be applied or not. The other scholars say Prophet Muhammad (sal Allahu alayhi wassalam) said it was valid until doj; he was complaining about people twisting their words; he said it was allowed at that time as a necessity, just like allowing eating pork at the time of a dire necessity, by a majority, it's completely forbidden and it's only practiced now amongst the Shi'a... why forbidden? because it has no guarantee of a long term marriage~ this is just like prostitution and like zina itself
2. Marriage with the intention of divorce: the difference between halal and haram is if they put it in the contract~ if he mentions it to her or wali and they accept it, it's considered muta'aa, so it's not allowed; it's haram for him to have the intention, but in the technicality of the marriage, it's okay because nobody else knows; his intention may change and he may really like her later
3. 'The borrowed goat' ~ at tays al musta'aa *Prophet Muhammad (sal Allahu alayhi wassalam)s words*: ~ a lady gets divorced (a final divorce) and legally she's not allowed to marry her husband again until she gets married to someone else first; some know this man is so jealous, and that's why he's divorce; and then some man " a borrowed goat " says that i'll marry her and divorce her so that you can marry again (they have to have intercourse for their marriage to be valid~ Prophet Muhammad (sal Allahu alayhi wassalam) said you have to taste intercourse for this to be halaal)~ for may he be cursed, the one who is the borrowed goat is cursed and so is the ex-husband? (Ahmad and nIsaai); this marriage is completely forbidden and null (if the intention was disclosed)
4. Marriage of convenience: here, the green card is the biggest deal~ if the marriage of convenience fulfilled all legal requirements, then it's acceptable, but if it has a stated period, it's mut'aa and if not, but there is the intention, then it's similar to intention of divorce (or a temporary marriage); if it was performed islamically it wouldn't be accepted as a marriage contract; it's very dangerous to marry for ill intentions; if anything is done with an ill intention (other than fi sabi lillah) it will be interrupted and it will come to an end
If there's a marriage contract, but the wali stipulates in the marriage contract that they cannot consumate it until later, they can live together or not; if they are separated, that's up to them if he accepted it, but he has the right to immediately consumate it if he'd like; if they're living together, it probably won't be possible
Second: The Two Contracting Parties
The Bride and the Groom
1. Conditions of the Two Parties
- Specification of the bride and groom: be specific. You should know them by name, and know exactly whom is marrying whom.
- Legal competence: 2 or 5 year olds are not a competent people
- What is the age limit for a legal marriage contract?: there is no age limit. It's not recommended to contract an arranged marriage for young kids, but it's okay. However, the consummation will not be done until they are able and older. The contract is still valid, but they have the right to ask that the marriage be disintegrated when they reach the age of puberty.
- Listening to the other part of the spoken form: the ability to listen to the other part of the spoken form (a man starts "I offer you my daughter" the man should not be talking to someone else, and not listening) that contract is nullified; even if it's a commissioner, or sign language, ?
- To be free from any defects that prevent the fulfillment of the essence of the contract: the guy is sick or dying and to please him you're making him a marriage contract (it's nullified); or if they are incompetant to fulfill the rights of enjoyment with the other party (from either side) then the marriage contract cannot be fulfilled unless the two agree on it (ex: usually older couples)
- Not to be in a state of ihram: hajj or umrah, expressing the proposal is also unacceptable at that time
- Mutual consent: both are in full agreement of the marriage contract; hanifa: they don't put this as a stipulation, if both parties were even joking about it, it becomes binding
2. Conditions of the Bride
- to be a definite female: there is no doubt in her sex; she doesn't have an ambiguous sex; in this case, they cannot contract in this nature until they choose a gender for that person; in most of these cases, they're usually barren after these surgeries
the issue of ambiguous sex or homosexuality~ medical part of it: during the process or sequence of production; there are medical syndromes that vary extremely (sometimes inner and sometimes outer); it's rare, and most cases have some medical/surgical treatment to them~ if there are surgeries done, she will probably be barren but still a functioning female; ulul irbaa (males w/o lust/desire for men/women) the syndrome is sissy boy syndrome = tomboy in females; bisexual~ sexual desire to both; homosexual~ no physical problems; gender identity syndrome~ biologically male but in his heart, feels he's supposed to be a female, so his desires go to males, so the medical field recommends doing a surgery to change that; it could be a different level of enzymes or things about homosexuals, statistically, there would be 3-5 people homosexual, or alcoholics, etc. there can be excuses for it, but it's really a matter of faith, and misreading emotions and misperceptions of emotions (and nothing to do with a medical reason); it's an urge that people get and act upon
- not to be of his Mahram (unmarriagable kin): who are they? Nisa: 23-24~ Allah states the categories of the unmarriagable kin; prohibited~ mother, daughter, sis,
The Unmarriagable Kin
1. The Permanent Prohibited Relationships
- By blood relationship
1. his ancestors~mother, grandmother, great grandma, etc. (AND FOR WOMEN TOO)
2. his descendents~ his daugther, her daughter, etc.
3. parents descendents~ sisters, neices, and their daughters and their daughters
4. the first generation of ones grandparents offspring~ aunts from mothers or fathers, and the second generation is allowed (to marry)?
*grandfathers brother is haram
if a child is in the custody and is breastfed; if a boys (with own mother and father and sibling), so his mother could not breast feed him, and that family has their own children, and he's haram to his OWN brothers and sisters and will also be haram to those children; what if his foster brother wanted to marry his blood sister? they can marry one another
is the man mahram for his step mother in law (his wifes stepmother): he's not mahram to her
if two women want their children to be halal to one another, they can breastfeed, and they are allowed to do so, the prohibition becomes for all the children, if they want it both ways (then they have to exchange)
- By affinity (by marriage)
1. wife of his ancestors~ his mother, his stepmother, all wives of father are haraam, his grandma and stepgrandma (completely and immediately right at marriage contract, even before consumation of marriage)~ even if the person intended to divorce her before consumation, then he will be haram for her forever; daughter of stepmother (stepsister) is halal to marry; stepmothers mom~ halal for you but (haram for your father though)
2. wife of his descendants~ daughter in laws, or grandchildrens wives
3. ancestors of the wife~ his mother in law and her mother; she's haram for the man for not for the son
4. descendents of the wife~ after the consumation of marriage with the mom~ her daughter is still halal for him (if there's no consumation) but after the consumation of the marriage with mom, then it's totally haram on him to marry her daughter
- By breast-feeding: 1. all of the above~ they remain the same for blood and affinity
what makes this haram? and what does that mean exactly? 1. it had conditions to be acceptable legally as a reason for prohibition~ it should be done during the first two years of infancy 2. the amount of milk he drinks should be decided first (doo among scholars~ some say, just one sip or one time is sufficient~ Prophet Muhammad (sal Allahu alayhi wassalam) came into his house once and he found a man with A'isha, she said he's my foster brother, he saw said, be careful, to know who exactly is your brother because the lawful breastfeeding is from starvation, so when the primary sustenance of that child should be the milk (usually the first two years), and after those two years will not be acceptable; some say using Bukhari and Muslim A'isha said in the Quran there was a prohibition of 10 meals or 10 times in an ayah, which means he himself will fall asleep or stop drinking, then it was abbrogated to 5 times and she said one or two times is not sufficient and that it should be five); one hadith spec. for abu hudayfah for salim who was a servant of the companion of abu hudayfah, he was jealous that his own servant would see his wife w/o hijab so she complained to Prophet Muhammad (sal Allahu alayhi wassalam) and Prophet Muhammad (sal Allahu alayhi wassalam) said she should breast feed him, even at 13 yrs old, and she did but Prophet Muhammad (sal Allahu alayhi wassalam) said that's only for them; nowadays this can't be claimed; labanul faahl~ the man/milk, the milk women carry because of that man, milk in other women because of relations of that man~ he is the source of milk in both wives, and this is a breastfeeding case; a man marries two women and they both have milk (they are only for breastfeeding), one of them breastfeeds a girl the other breast feeds a boy, the girl becomes haram for that ladies children, on the other side, same thing, but the boy and girl, a majority say it's prohibited and that they are haram on one another
2. The Temporary Prohibited Relationships
- a divorcee from a final divorce: for the same man who divorced her
???- a woman related to another husband: that relationship can be a full marriage contract before consumation or a consumated marraige or in a waiting period after an unfinal divorce~ the man can still ask her back and if she' spregnant, it's a way to protect her and lineage; after the period is over, then it's okay to marry her
- disbelieving women: except the Christians and Jews (Ahlul Kitaab) (athiests, pagans, buddhists, etc. are not allowed); if she accepts Islam she becomes halal
- sister in law and her mahrams: women who are related to her in mahramiya, aunt, her sister; if you assume that your wife and the other women; if she was the man, and they are prohibited, then use that as a judgment
- a fifth wife: if a man has ridda also and his iddah is the actual iddah of the divorcee, he isn't allowed to marry her until she's out of her iddah; he divorces his wife and he wants to mary her sister until she's done with her iddah; any other woman in her iddah
what about ayoub for princess?
if a man has four wives, or more than one wife, what about one of the wives kids for another of the wives kids? what bout one son for another of his wives?
Marrying from Ahlul Kitaab ('The people of the Book')
Two major opinions:
Majority (including four madhabs): it is allowed because Allah stated it in the Qur'an (Surah Ma'idah: 5)
1. Definition of the people of the book
Any woman who believes in a revelation from Allah, meaning specifically Judaism and Christianity; what about a Mormon? Are they Christian? Joseph Smith claims a revelation to have come down, and they claim themselves Christians (it's hard to differentiate between different sects)~ new churches are hard to establish as Christian or not; there's a great dispute about this in scholars, but these people have gone far from the ideals of Christianity, so we shouldn't consider them so
2. The Fiqh opinion
Abdullah Ibn Umar bin Khataab said it's forbidden~ because Allah says HE forbade Mushriqaat (in another ayaah)~polytheism until they believe and he said I don't know how that's not part of polytheism to believe in Isaa and Maryam (alayhimus salaam) at their high statuses; but a majority were against their opinions; Sahabi who married non-Muslims: Mu'aadh ibn Jabl, Uthman ibn Afaan (married Naa'ila bintu Faraafisaa al Tarbeeyah~ an Arab Christian who later converted), Hudayfah after the conquest of Persia, married a Jew woman from Ahlal Meydaan; most scholars have a condition~ she's definitely a Ahlul Kitaabi and that she's a chaste woman, and she's not a prostitute, if she had done so, then she must have repented or in the process of doing so (no longer practicing that anymore); many men start their relationships with non-Muslims and do this and is it ok to marry a zaania or not? if they both repent, it's okay; if there's any pregnancy, and they got married, then if he was born after 6 months of that contract, they're his, but if he was born before that, then legally, he isn't their son; harbiyyaa~ lives in a place where there is a dispute between muslims and non-Muslims (like Palestine), can a Palestinian marry a Jew from there? Hanafi: not allowed, Maliki/Shafi: makruh/disliked, Hanbali: it's against what should be done (so it shouldn't be done)
3. Consideration of the Muslim welfare
If something like this becomes widespread, it could cause fitnah. Like Umar bin Khataab forbade it in his Khilaafa; he sent a command for them all to be divorced, and some like Ubaydah said is it haram? and Umar said it's like intoxication (addiction) and he asked three times, and he later divorced her and people asked why? he said I didn't want ppl to think that it was haram because of his statement, but I wanted to respect him so I did
3. Conditions of the Groom
- to be a definite male: it doesn't say be a definite man
- to be a Muslim: even Ahlul Kitaab are not allowed, and Why? Because Allah says in Surah Nisaa in the Qur'an "and Allah will not give authority for the disbelievers over the believers" because in general, the man has guardianship so this will/can jeapordize a lot of things
-not to be a Mahram: unfortunately, it's a widespread practice (incest); they say marrying cousins is haraam but they do worse than that
Prohibited Marriages
Muslims- it doesn't matter if they are practicing or not, but it differs from person to person, so you should just investigate based upon each person; so long as they're a suitable match, if one is looking for a different taste, then it's recommended to get someone suitable; the thing that differentiates is praying; hanbal said if someone doesn't pray 5 times a day is not even Muslim; majority say that if they do not DENY the obligation of salah, then that's sufficient (they just aren't practicing it, but they don't disregard it either)
1. A Muslim woman to a non-Muslim man:
2. A Muslim man to a non-Kitabi woman:if she's part of the Nation of Islam, then she needs to be questioned about her beliefs and it depends
3. A Muslim man to a woman of one Kitabi parent: if you have halaal and haram, then haram weighs more, so even if a girl is Christian regardless of if her father or mother are Hindu, then she's not permitted; EXCEPT if she became Muslim; what if one person is Muslim who marries a Hindu?
4. Marrying to a Murtadd (apostate): if she claims to be Muslim but speaks openly against Islam, then it's okay, but if the man does so, then it's invalid? if he commits this after marriage is made, then this marriage is immediately considered null (faskh~ annullment/dissintegration of marriage)
5. Marrying to an adulterer: what if both parties are kitaabis and the woman converts to Islam? In the past, in classical fiqh, they almost have one opinion that the marriage is immdediately nullified, and:
1. if they accept Islam together, it's okay, and they don't have to remarry, unless there's another prohibitive (like if they married a mahram)
2. if the woman accepts and man stays on his deen, if the man accepts islam during the 'iddah (after she accepts, the marriage is nullified and she's in 'iddah), then they are back in marriage right away
3. if he accepts it after the iddah, then he has to perform a new contract w/her except ibn qayyim who said there's no contract needed (until she marries someone else)
4. what about people who love each other and want to stay with one another, she tries da'wah but he still insists, and she needs to use power over him not to share the bed with him until he accepts islam, or then nullify it, some say that they can stay as a couple, until she tries every possible effort to convert him or nullify it
Forms of Marriages which violate this rule
1. 'Barter trade' marriage (shagaar)
two people who meet, one man says to the other, if you give me your daughter, i'll give you mine, and the maher is nothing (that trade); it's baatil~ unacceptable and nullified deal/contract, except Hanafi who says it is sahih but it's disliked
2. Pre-arranged marriages
it's a valid contract, and they have the choice when they reach puberty to cancel the marriage if they'd like; some would like to strengthen family ties; this is considered like a celibate marriage~ in recent history, yemen, the guy and girl were about 11 years old
Third: The Witnesses
1. The wisdom behind this stipulation
a. To show the importance of marriage, and that it's not an easy thing. It's very important and it should be known to the public that there is a legitimate relation between the two people.
b. To avoid the couples being accused from anything haraam
c. To recognize or discriminate, or distinguish, between halal and haram matters- if the marriage is done secretly, then it could be just zina, but if the couple has witnesses, then they are taking it out to the public.
d. For the confirmation of marriage- if the man walks out, and he doesn't come back, and then dies, who will testify for her for her inheritance?
2. The Fiqh opinion
All four of the scholars say it's a shard, or condition, but not a pillar, or rukun.
Hanafi- say that the marriage can be performed without the wali, but that the witnesses MUST be there, as a shard. They use the hadith from Ibn Majah and at-Tirmidhi, where the Prophet Muhammad (sal Allahu alayhi wassalam) said, "Announce the marriage, and use al ghirbaal (duff) to show the announcement of the marriage," meaning that the couple should take it out to the public. "The nikkah is invalid unless there is a wali and 2 witnesses" or ?
3. The time of this testimony
Majority- the time of the testimony should be at the time of the contract, when the spoken form is declared, and that's when they read the shahaada.
Maliki- the time of the testimony is recommended at the time of the contract, but delaying it until the time of the wedding is okay. Why? Because Malikis beleive that the importance of the shahada is not to declare the marriage contract, but to allow the consummation of the marriage.
4. Conditions of the witnesses
1. Legal Competance- they must Muslim, above the age of puberty, have a full and sound mind, and be free
2. No less than 2 male members- (at least 2 men) according to the majority; hanafi: they allow to be one man and two women
3. the ability to hear the spoken form and the reply (they have to be present when the spoken form takes place)
? umm salamah
Forms of Marriages which violate this rule
1. The 'Secret Marriage': if a man is married and he wants to marry another woman, so they bring all the witnesses, etc. and they say keep it secret ~
Maliki: they nullify this marriage, but most say it's allowed and it's makruh (disliked); so what's the point of declaring the marriage?
to announce it or testimony of two? annoucning it by two is sufficient to consumate the marriage
Fourth: The Brides Guardian 'Wali'
1. Definition of guardianship
a legal competance and the ability to own the authority to dispose of ones affairs- you have authority/power over someone because you are competant and you have the authority to control their affairs (like a father to son/daughter or a man to his wife in certain ways)
so the man needs to be personally competant, and the woman needs a wali
2. Categories of guardianship
1. wilaaya alan naas- guardianship over ones person (like regency~ a boy who's too young to recieve the authority for position of the king, then they establish a regency counsel)- to awliyaa-uncles can also be included
a. wilaayatu ijbaar: those who may compel their female charges to marry someone~ if she was a little girl and her father has the authority to marry her when she's still young, even if that was against her will, he can do that, and it's acceptable in hanafi madhab
b. those who may not compel their female charges to marry someone~ they just represent them in a marriage contract which they approve (on someone's behalf, she does not perform marraige on her behalf but she has to go through the help of her wali)
why? because of the sensitive issue of marriage; a social factor is that women are taken for granted and be easily abused, and are weak in society, if she contracts by herself, then he could do anything (abuse her) and then she wont have the support from her family; when they deal with the woman, then they know that they are dealing with the whole clan
2. guardianship over property/wealth- father, grandfather, judge (like in the instance of orphans)
3. guardianship over both (a person and property)- who all has ability to have this authority? father and paternal grandfather are the only people that can have this authority
3. The Fiqh opinion
the majority say: it is a rukun/integral of the marriage contract (that if it was not by her wali, it is invalid); the
hanafis say that the contract is valid w/o the need of the wali (woman can speak for herself in the marriage contract~ she can marry herself directly w/o the need of a wali, but with one condition that he is a suitable match for her); the majority say that the hadith "no marriage should be performed without wali" another A'isha hadith: "any woman who marries herself w/o persmission of her wali, her contract is null null null, but if they consumated the marriage, he pays her marriage and they invalidate the contract until they do it the right way" who should be the wali? then the sultan should be the wali for those women who don't have a wali (like an orphan or a convert);
hanafi: Prophet Muhammad (sal Allahu alayhi wassalam): "the woman who is unmarried, regardless of a maiden or not, she's more worthy to have octrol over herself than her wali or guardian, majority say that she needs to give answer clearly (for nonvirgin) and the virgin, we should seek ehr permsision in this marriage, and her provision would be sufficient (her silence) and the majority say the first part is the non-virgin woman (who msut say it clearly yes or no, silence wont' be accepted) and another daleel is that if a woman is fully qualified to own properties and handle affairs, why not in marriage ocntracts? majortiy disagree with that.
4. Conditions of the Wali
1. legal competance (as above)
2. to be a Muslim
3. to be a man/male; hanafi's say it can be another woman
4. al adaala- to be trustworhty people or with a sound character
5. maturity- mature/understand the meaning of what they're doing (it's a marriage contract)
6. free from state of ihram (not Muhram in Umrah or Hajj)
5. The order of the guardianship among the bride's relatives
in general, they agree that wilaaya should follow the inheritance law (al asaabaat~ paternal relatives, not mothers brother, and the paternal side does count IF the preceding person is not available) system:
1. father
2. grandfather (paternal)
3. if she had children from a previous marriage and they're at the age of puberty, then her son
4. her brothers (full brother over half brother)
5. uncle (paternal)
6. cousin
6. In the absence of the Wali: if she has none, then the imam or leader should be her wali; what if wali was alive and not present? he can be a commissioner (the brother) but if he steps up as a wali, then that is not allowed; if he was somewhere on earth, do you wait forever for him to communicate, so you should wait, and if he doesn't show up, then the grandfather, then the son, and on and on, and in this case, the foster father is not a wali, because she cannot inherit from him
Rulings of the Bride's Consent
1. Consent of the maiden bride
because the majority of scholars do not accept wilaayatul ijbaar, therefore, this is a prerequisite, or a condition: if the girl was of the puberty and beyond; in hanafis they don' need full consent from the girl
all 6 plus ahmad and bukhari/muslim: A'isha- al bikr (maiden) should not be given in marriage until you get her permission and not the non-maiden until you get a spoken word from her, if she remains silent, that's her permission or if she cries and is happy, then maybe also send the mom for extra inquiry
2. Consent of the non-maiden bride
she has to say yes or no, because the first woman has no experience w/men, so she can't express herself as well whereas the non-maiden does, and so he can; a judge said one is a maiden, one is married, one is a widow, and he knew that before talking to them- he said the maiden was too shy (with her head down) and the divorcee or married one looked straight, and the widow looked very sad
the consent is VERY important, and men are not allowed to abuse the power of their authority and just give them to get rid of them; a lady complained, ya rasulullah, my father wants to marry me to his nephew and his nephew is not very well-known and he wanted to honor his nephew by marrying him to his own daugther, so Prophet Muhammad (sal Allahu alayhi wassalam) brought her father, and Prophet Muhammad (sal Allahu alayhi wassalam) said no, she's refusing, the father submitted, and the girl said, i want to say something, now i accept him, and Prophet Muhammad (sal Allahu alayhi wassalam) said, why'd you do that? so that ppl will know that they don't have the authority to marry someone without their permission; Allah did not command you to eat the food if you don't like it? then don't eat it.. same with the other way, what if if causes bitterness in their lives? then don't do so
3. Marrying a bride under the age of puberty
hanafi: no, because wali has wilaayatul ijbaar,
majority: yes
Rulings of the Guardianship
1. Abusing the right of guardianship
if some ppl have daughters who all work, and they bring money for the household, and he retires, and whoever comes to propose, he says no, or stipulates very harsh conditions, this is called al 'adl; if the girl accepts the person because he's righteous or religious, and if she insists on him, then she can go to the judge and take authority from that wali to the following wali
if the man who proposes is average, and she loves him, then the wali may see some defects in him, and her father says to take it easy, it's up to him to accept or reject the marriage and if she goes to the judge, then the judge will investigate
2. The guardian of a non-Muslim bride
can be her non-muslim wali (her father) or a brother, and some scholars say he should be her non-muslim wali (if a muslim wali would like to perform on her behalf, it would not be acceptable)
3. The non-Muslim guardian of a Muslim bride
Allah said, Nisa 4:141 (same as previous) and never will Allah grant to disbelievers over believers; they can come so long as they abide by the etiquettes ?
4. The guardian of someone who has no legal guardian
Prophet Muhammad (sal Allahu alayhi wassalam): sultan is the wali whether he is an imam or governor of the area, he will be the wali of the person with no wali
Commissioning in Marriage Contracts
1. Definition of commissioning
(al waqaala) to act on behalf of someone with authority received from him or her in general contracts, but in the marriage contract, from him by a majority of scholars
2. The Fiqh opinion
the Hanafis say commissioning is permissible to give to a man or woman, meaning if she can commission for her own, then she can for another too; a woman cannot act as a commissioner for another woman?
but majority say no it's not allowed in the marriage contract but the man is allowed to commission another man in that sense
3. Condition of the commissioner
the same conditions of the commissioning party- wali
4. The authority of the commissioner
is it limited or open? there are two kinds- limited and unlimited (in marriage contracts); a man authorizes his son to marry his sister to this man this is limited authority, if the son had a friend named khalid and says i like khalid better, then he's not allowed to do that, if father gives unlimited waqaala, then he can choose whomever he wills
Ruling of Commissioning
1. Can the commissioner issue the marriage for himself?
a man gives authority to another person, and he marries her himself, for
Hanafis it is permissible if lady accepts it;
majority say that he should not do it, because of conflict of interest (if the man saw he'd be the best person, then he should call the person of authority and then propose, but it would still be best not to do so because of conflict of interest?)
you aren't doing it for yourself, so yes you can, if they had asked or given persmission; like a grandfather marrying his two grandchildren together, he can be their wali (it's allowed)
2. Can the original commisioner commission another for the same contract?
no, it's not acceptable, because of the feeling of consecution (endless) and they'll keep passing it down; if you can't, then go to the person who commissioned you and tell them or if you found someone else to do it, let the authority know
what if he's the sultan, and he wants to marry her (a convert) then he can be her wali, and he wants to marry her, and he is allowed to do so, because he is acting for himself and if she agrees, then that is okay, so long as there are witnesses
Forms of Marriage which violate this rule
1. Az-zawaj al-orfee "customary marriage"
a part of the secret marriage, when they say don't tell anybody; it's not haram but it's makruh, because of the documentation (they do it w/o documentation of the marriage contract)
2. The friend marriage
a bunch of kids get together and they make two witnesses, and a wali, and it has no real basis (islamically); if there is a legal authority in the area, you have to go back to them; if they were not active enough, then activate them, because he personally thinks its not valid (its close to zina), because its like transgression
3. Common law marriage
this is pure zina; the man and woman live together for years and after a certain amount of time, they decide to get married
PART TWO:
Essential Requirements for the Marriage Contract (waajibaat al 'aqd)
what's the difference between this and the rukun?
1. The Dower
mahr or sadaat- the mahr is ONLY for the woman, or wife; it's not for the father, etc. it's theft for a father to take it from her and keep it for himself, Prophet Muhammad (sal Allahu alayhi wassalam) you and your wealth belongs to your father (but this is a different interpretation) and he takes it and keeps it
2. The Suitable Match
al kafaa'a and the match is kufh
3. as shoboot (a testimony)
First: The Rulings of the Dower
1. Definition
mahr/sadaat: something given in exchange for marriage, be it required by the judge or by the agreement of the two parties
2. The Fiqh opinion
it is not a prerequisite or an essentialcomponent of the contract but it still is one of its rulings/requirements, whether you mention it or not, then it still becomes essential to give the maher
if the bride and groom get together with wali and two witnesses, and they accept, etc. then what about the mahr, if it's not stated, (look below) but then it becomes due at the time of the consumation of the marraige
3. Nikah at-tafweed
if they just don't want it, or it's not mentioned, and they dont' want to pay it, this is nikkah at tafweed, the nikkah is valid but condition is invalid, the dowry is due at the time of consumation regardless if they want it or not, it's not for them, but it's for the validity of the marriage contract, because Allah said it in S. Nisaa after htey receive w/their marriage, if they are satisfied in sharing it with you, then it's okay; after the marriage is consumated it's due, and the JUDGE decides the amount, and it HAS to be done this way, and she HAS to recieve it in hand, and THEN she can give it back or whatever
Nikah at-tafweed is when both parties agree on cancelling the mahr (eliminating it from the contract) it is permissible, however, the condition for eliminating it is invalid; even after consumation, he has to pay her the mahr; some scholars say neglecting it completely is also considered so, and it is acceptable and valid but the condition is null and the mahr becomes due at the time of the consumation of the marriage
4. Conditions of the dower
5. The amount allowable for a dower
it should be something valuable (whether it is material or moral value); and valuable islamically; for instance, a man owns a grapevine, and he has a factory of very well-known wine, and it's worth millions of dollars, this cannot be offered as a mahr because it is islamically nothing; what about pigs? no... even if it's as big as a cow. lol
maximum (there is no maximum amount for the mahr)- for instance, he offers $100, and then the wali says go and find $2 million, and legally this is acceptable, but if a man can't pay $100, then can he pay $2 million? probably not... is it recommended? no. but it's allowable because Allah says in Surah Nisa: 20, but if you decide to take one wife instead of another, even if you gave a huge amount of wealth... then you cannot take back anything from it
minimum: hanafi: 10 dirhams (not very much~ a few dollars)
maliki: 3 dirhams (pure silver dirhams of their time)
shafi/hanbal: anything that can be called property or wealth
ibn hazm: anything that is called a thing is acceptable as long as it's halal (even a grain of barley, if she accepts it, it's fine)
it was narrated that a woman married a man for a pair of slippers and that was her mahr and he said will you be satisifed with this and Prophet Muhammad (sal Allahu alayhi wassalam) said, okay that's fine (and they may have a great value); whether it's material or non-material (such as the Qur'an, or a promise for Umrah or Hajj)
6. Extravagant dowers
this is a very bad habit among Muslim communities, the people would start trading their children for money, and the man proposed to this family so he'd have to be very well-prepared (with thousands, and he'd have to pay all of the members just to be satisfied) and Prophet Muhammad (sal Allahu alayhi wassalam) recommended that as much as possible, make it so simple and easy, because if it becomes a burden, he will never forgive you or your daughter; a person was offering $10-$15,000 and while they were performing the contract, he said, didn't we agree on $20,000 but the mom said i think you said $50,000 and he said, let it be, and 2 years later, they were happy, but he'd bring up the issue every once in a while, and he said can i redo my marriage because i have $50,000 on my shoulder, but there's another solution, because this is a debt and it's taken from your miraat if you die, unless the wife forgives you; you can go to an islamic court and cancel it, but it's very dangerous to do so (keep it high); if she's nice, he loves her, but if it's something bad, he'll think $50,000 for you? it happens to such an extent that she requests the divorce, so that he has to pay her back, and he does not just request the mahr be disdained, but for her to pay him back too; and if one keeps it simple, Allah says hold them kindly and release them kindly; if he really loves her, he'll give above and beyond for her; guide people to the straight path with this; most of his wives married for 12 uqiyyah, or about 500 dirhams (which is about $200) and it's not that much; even his daughters, he didn't ask for more than 12 uqiyyah, and it was narrated in many ahadith, that one of the prophecies and signs is teh easy betrothal and easy and simple sadaaq (mahr) (of a righteous or good woman) some ppl think a man is poor, and he'll never be rich, if you're looking to be rich/content, get married; those who don't have enough, just get married, because Allah will put baraqah in your marriage, the wealth to get rich will be in marriage even Allah says that if they are poor, then Allah will bring the risq in the relationship; the ruhul qudus inspired to me that none shall die until it fulfills the term of its risq and life (Prophet Muhammad (sal Allahu alayhi wassalam) said so), people don't die before their term, NOBODY does; if you think the first, second, etc child will be a burden, just don't worry, Allah will make it easy on them, don't wait till you finish everything, etc etc... because the woman will be more selective when the man is a lot older, but it goes opposite, if a lady chooses to finish, the men will become more selective (sometimes we forget that men are just human beings too~they're really not that hard to figure out, and htey're not that complicated either)
7. When the woman is entitled to her entire dower
at the time of the actual consumation of marriage, what is the meaning of consumation? the majority (jumhur) say that the actual consumation is intercourse; a true seclusion (another opinion) or perfect privacy, they go behind doors where nobody else is there, and there is a chance of them having intercourse; hanbal and some hanafi say that it's the physical enjoyment in a manner less than sexual intercourse; how do they define intercourse (actual penetration) and that is actual consumation of the marriage
if the man dies after a sound marriage contract and no consumation, she still gets the dowr as due; it's also due if the divorce was pronounced on one's death bed
8. The customary dower
al mahr al mithil: if there's no specific amount decided, then go by this- look around in his social class of her relatives and look at her sisters, aunts, etc, and that is mahr mithl, who decides the mahr? the muslim judge or the imam who's involved in taking care of it
9. Dividing a dower
immediate: some can be paid straight away
deferred: some defer it to a case of divorce, and that's the LAST period of divorce, but he CAN pay up to the whole lifetime
both cases are allowable, but here whatever is deferred, it's still your obligation, and you can pay it in your lifetime, in installments if you're willing to pay that much, but sometimes if the father is more protective, then he can pay $20,000, and if she says what you did for me is worth more than a million dollars, and she wishes to let it go, that's fine too
Second: The Rulings of the Suitable Match
1. Definition
al kafaa'a is equality or similarity; legally, it means the equality/similarity of two spouses in different characteristics; some add: to avoid disgrace or shame, they have to be equal
why do fuqahaa require this? it would provide stability to the marriage; if the wife was a physician and the man was a mechanic, then someitmes when they argue, they criticize each others profession or culture, or language, color, etc. to provide stability, the require (it's not integral and nullifies marriage) but it helps bring happiness and social stability
2. The Fiqh opinion
the four imams say it is shart (condition) and it's not an integral of luzum which is a condition to make the contract binding; the contract is somehow valid but suspended; if she marries an unsuitable match, then her awliyaa (any) can disagree and disapprove the marriage and ask for it to be nullified (he may not be well with the whole family) the daleel is in hadith ali- tirmidhi and haakim- three things hsould not be delayed- prayer when time is due, janaaza when time has come and a woman when she has found her suitable match; another- hadith burayda- he married her to his nephew just to raise his social status and then she liked it; shaafi: the major daleel for a suitable match is hadith bareera (and mugheeth), he said that because she was free and he was a slave, then the two aren't suitable for one another
3. Who has the authority to demand suitability?
its up to the woman to demand the suitability in the match and that's why the concept ofthe woman in marriage because if the father brings someone, she has the right to reject him, and also her awliyaa if her awliyaa object, it may be taken into consideration (if he doesn't even pray, and she maintains all 5, then it wouldn't be suitable~ sh would definitley say he's not a suitable match); for the wife and her awliyaa, they have the right to nullify the marriage because the person is not a suitable match
4. To whom suitability is sought, the bride or the groom?
groom to the bride: a man can marry any woman, but accepting any man to the woman is another issue and it's a privelege to the woman, but the man can marry anyone (lol); it's very easy if we just open our hands to make du'a and for Him to make it easy on us
5. Considering the qualities of suitability:
- Faith: ad deen wa khuluk (faith and good manners/righteousness): Prophet Muhammad (sal Allahu alayhi wassalam): if someone proposes and youa re happy with his deen and his manners, then you create much corruption; there is ijmaa on ALL scholars for this
- Chastity: there is a person who is very well known of committing fornication or adultery, but he wasn't found in these places for a while, would that be considered as tawba? some say no, because he may have stopped because of sickness and some say it's because of tawba; if he was seen in the masjid frequently in prayers, and etc. then it's another issue
-Lineage and ethnicity: sometimes people do not like to marry from outside of the country, or city, etc. etc. this is all cultural issues; and some say a syed cannot be with a non-syed
- Wealth: can a poor man marry a rich woman, yes. because wealth is not considered a thing; abd ibn masud and zaynab- she wanted to pay zakah, and bilal was at the door, and she said don't let him know who's asking, but he couldn't not tell, so she was allowed to pay zakah for her husband
- Profession:
- Soundness: intelligent to a less intelligent person- if the man is average and the woman is brilliant
- Age: if the man was 70 and if she was 15, it's allowed but recommended?
- Freedom: free person and slave person
- Heatlh conditions: if husband is disabled and she's not, but she's happy with him
completely deviant are ahmadiya, ismaila, etc that are very shirk oriented, if you know that ppl are extreme in disbelief, then they aren't a suitable match; if their madhabs are different, then that is fine, this would be considered bigotry and ignorance
islamically adoption is haram, but fostering them is okay; to avoid the issue, does breastfeeding mean directly? or can she keep it in the fridge and then put it away, then the milk itself is what counts...
if someone decides on a certain amount for mahr, then what if he buys a car for more or something similar, then ti's up to them, and if they agree before consumatin gthe marriage, if she accepts then that's fine, if its less value, no
stepchildren are not mahram to each other unless the child is less than two and she breast feeds him
Part Three:
The Prerequisites of the Marriage Contract
1. Prerequisites of the validity (shurut sahtah)
a. bride is not mahram to the groom
b. the wali is present (a majority say so) at the time of the contract
c. the witnesses are present (a majority say so) at the time of the contract
2. Prerequisites of the effectiveness (shurut fadal?)
the contract will be valid, but suspended (mawquf), which means one has to wait until some external effect causes the marriage contract to be effective
a. competance of both parties- if one was young (under the age of puberty), it's valid, but effectiveness comes into play if they wish to make it valid or not?
b. to have the authority to perform the contract- if one person is commissioned, with a limited commission, this contract is valid and suspsended at the same time, but it depends on the approval of the man who gave the authority
c. contract performed by intruders- someone looks for a proposal for you, this will also be valid and suspsended until the person approves it; a contract is valid but suspended if a far wali makes the contract, unless the nearest wali approves the contract
if it had the quality of a valid contract, but not of effectiveness, it will not be effective until the person responsible agrees on it
3. Prerequisites of a binding agreement
if it fulfills validity and effectiveness, if ONE thing is left to keep it binding, the following are conditoins:
a. to be free from any final clause (options)- like a condition i'll give it a try for three days, or that they perform the contract and they'd like to wait till the end of the day first or something
b. free from any defect or deceit because if it involves deciet or defect that stops them from enjoying each other then it invalidates it (like a man who proposes to a lady, in her birth certificate, she says she's 18, and then he finds out that she's 30 years old, even thogh the contract fulfilled all validity and effectiveness, he has the right to cancel it even though it was fulfilled completely) the diff between cancellation and divorce <-- loses mahr, gifts, etc. but in the case of deciet, it's annulment and dissentigration and then he can take back the mahr, etc.
rulings of deceits: in the hands of both parties; if he knows she's 30, and he accepts it, then he cannot unbind it, if he accepts it once, then that's it (if then he decides to change his mind, this will need divorce)
Adding Stipulations to the Marriage Contract
The Messenger of Allah salla Allahu alayhi wa sallam said: "Indeed, the conditions are that the most worthy of fulfillment are the ones which you stipulate to make intercourse with women lawful to you." Bukhari and Muslim
the sanctuary of these conditions is very very important (this is what the hadith means)
1. Stipulations which are obligatory to be fulfilled
parts of the requirements of the contract in general- like i agree if he pays me the mahr, but that stipulation is already needed so she doesn't need to put it on; or she considers it as an effect of that, to treat me kindly, and that's already and effect part of teh marriage contrac,t he already has to, and she can put this as a condition to emphasize it, and these are allowed because they just emphasize and don't go against
2. Stipulations which are legally nullified
any conditions which contradict some of the requirements or integrals of the marriage contract (for ex: when sitting w/the wali, and he adds this condition: you marry her on one condition, you don't touch her, if the man agrees (and he can) the contract will be valid but the condition will be nullified) even if it was stipulated in the marriage contract; if the man agrees and says i don't want to pay mahr, and the family agrees, even if the family agrees (nikahul tafweel) then the condition is nullified and he must still pay
3. Stipulations made for the interest of the wife
usually in the interset of both parties, but often it goes to the wife more, like i will not leave houston, or i want a female servant, i don't cook, or i don't want you to marry another wife, or ithmatut talaaq (she has the authority of talaaq in her hands and anytime she asks for talaq to do it right away, he must do so, but it's not recommended)
majority: valid contract and the condition is baatil (nullified) they just neglect these conditions
hanbal: those conditions need to be fulfilled~ hadith earlier (above) the contract is valid and conditions are also binding
sh: follow way of Prophet Muhammad (sal Allahu alayhi wassalam) and fulfill those conditions but be very careful
4. Stipulations that are prohibited
things that are haram or lead to haram: like to say divorce your wife first, it's haram but it does not nullify the aqd (contract) and Prophet Muhammad (sal Allahu alayhi wassalam) said that a woman can not be the reason for their divorce
to cut ties and relationships of the family- not letting a mom visit or to visit a mom, this is haram, but putting this stipulation validates the contract but it's haram
like for instance, if a person says you'll let me commit zina, that is not allowed at all
The Different Status of Marriage Contracts
1. Valid and binding contract
after fulfilling the integrals, the stipulation and effectiveness (everything)
2. Vaild and non-binding contract
after fulfilling the above, but lacks the condition of a binding contract, it has a chance of annullment because of deceit or a defect
3. Supsended contract
after fulfilling conditions/prerequisites of validity, binding contract, still with the approval of the party (the effectiveness?)
4. Invalid contract
if it lacks one of the integrals of the marriage contract
First: The Consequences of a Marriage Contract
First: The Consequences of a Valid and Binding Marriage Contract
1. The conjugal right 'enjoying the spouse's person'
2. The move to his residence
this condition is null- mom can't say stay with me
3. The dower
4. Sustenance and spending
you stay with dad so he can take care of you, because i'm broke
5. The establishment of affinity (unmarriagable kin)
with her mom, her aunts, relatives, etc. and his father, his brothers, etc.
6. The verification of the child lineage
if after 6 months of actual consummation, she gets pregnant, the child is a legal child of that marriage; if she delivers a healthy baby after 5 months, it's not a legal baby
7. The establishment of the inheritance right
if one dies, they can inherit from one another
8. The right of obedience to the husband
obeying the husband takes preference over obeying her parents; it's very important to maintain a great relationship with the in-laws; even if you have the wife already, keep a great relationship with the in-laws
9. The right of husband to chastise his wife
at ta'deeb: education and chastisement; the kind words and admonishing her and if she refuses, abandoning her or sleeping in the same bed w/o enjoyment or fadribuhun, in english it means beat (closest translation), but in Arabic dar means tapping, punching, etc. so Sunnah explains it so, and they exercised the right in a halal way in that the wives complained and Prophet Muhammad (sal Allahu alayhi wassalam) said they are not among the good people (even though it was made ok when they breka the limit, it wasn't made w/o recognizing the means to do so) some say using miswak (meaning not size) it's more emotional than physical, if it left ANY marks on her body, it's completely forbidden, then how do you do that? emotional more than physical, but he saw said, the best amongst you are those who ar ebest to their wives and i am best to my wives and he NEVER touched his wives, and he saw had many wives, and they were women too, and a'isha would say "the wives of rasululalh saw would soemtimes abandon him and stop talking to him all day utnil night and when he saw would speak, and they'd leave hiim w/o speaking, and they'd bother him w/provision and once abu bakr/umar came and heard this and Prophet Muhammad (sal Allahu alayhi wassalam) came and he told his in-laws saying they want more of the duniya and so abu bakr grabbed a'isha talaq and tahreem~ in the end, he swore by Allah he wouldn't touch them for a whole month, and he went in seclusion (al ilah can't exceed 4 months), and umar got very scared for his daughter he rushed there and was crying, did he divorce you? i donno, and he found bilal guarding the stairs, and said where's rasulullah and can you ask persmission for me? and Prophet Muhammad (sal Allahu alayhi wassalam) was lying on his side, when men are in an emotional crisis, they withdraw and go in seclusion, women like to speak out, and they just bother them, Prophet Muhammad (sal Allahu alayhi wassalam) didnt' answer and umar came down to tell hafsa and he waited so long, and he went back again (3x's), then at the end rasulullah allowed it, and he was standing scared to sit down, and he started joking with him, remmeber when we were in makkah we had a strong grip on our wives, and now in madinah, we see that they have the ways of ansaari, and they do the same (answer back) and when he saw Prophet Muhammad (sal Allahu alayhi wassalam) smile, he sat down, and asked did you do so? no, i just did ilah. on 29 days (he said it's made lovely to him women and perfume) he goes to A'isha first, and she said, well the month's not over yet, so Prophet Muhammad (sal Allahu alayhi wassalam) said, the month can be 30 or 29 days and this month was 29 days; nobody will treat their wives better than Prophet Muhammad (sal Allahu alayhi wassalam), so never use your hands and if you don't like one thing from her, then you'll like something else about her; if you cannot live with her anymore, hold them with kindness or release them with kindness and fear Allah and don't say Allah made it lawful so i'll use it, but Prophet Muhammad (sal Allahu alayhi wassalam) never recommended it so don't if you can
10. The kind treatment
from both parties, of course
Second: The Consequences of a Valid and Non-Binding Contract
1. The same consequences of a valid contract
since it it valid, thena ll of the above also count, since it's non-binding, then there is the right to call for the dissintegration or annulment of the contract; they can keep it or leave it
2. The right to call for disintegration of the contract
if a man proposes and they agree after htey consummate it,a nd in the first night she finds he has a disability that's never mentioned, they can ask for revoking of it (even if it was valid and they consummated it)
Third: The Consequences of a Suspended Contract
1. No consequences until it is approved
Fourth: The Consequences of an Invalid Contract
in general its' invalid so consummation can't be done
1. According to the Madhab Iman Abu Haneefah
baatil: null
fasid
2. According to the Madhab Imam Malik
baatil: null
3. According to the Madhab Imam Ash Shafi'ee
4. According to the Madhab Imam Ahmad
Second: The Protocol of the Marriage Contract
The Documentation of the Marriage Contract
the marriage contract is binding when the integrals are met (immediately) and documentation is extra to know rights and responsibilities
1. The Fiqh opinion
it is mustahhab, not waajib
there is no thing about documentation, but in 2:282, it's recommended, and so its better to do so
2. The importance of documentation
to preserve the rights of both parties; we counted 10 consequences, these are the things that are rights of both parties, so it helps preserve them
like if a woman complains not spending on him and man says that he doesn't know her or a secret marriage (when there are witnesses, don't let them be easy witnesses, it's okay, but it's not recommended, one can be from brides and one from grooms side, at least one is on your side to support you)
3. The legal requirements for this documentation
it's recommended, so it's not necessary,
4. The wording of this document
but if one would like to do so, then the id's of both the bride and groom are recommended. even if she is not covered in the id, then the imam has to see her at least once, and he asks are you ___ and she says yes, and to take copies of the id also to keep in the file; and personal recommendation, a marriage certificate from the city, they dont' get married in front of the judge, but they document or register it, and it is stamped and saved and filed by the city and it only lacks the signature (yours) and they make a copy and it's legally registered in the city (you don' have to get marreid in the city, you just have to register it); a lot of ppl try to escape the legal responsibilities, and in case there is a revert, then it's important to do so, because if someone is not fearful of Allah, then they may not care so much about it;
5. Islamic centers and marriage documentation
keep files and give them numbers too, because if they travel and it's needed then you can jus tmake them a copy; they do the marriage again, but that's not allowed or permissible, you can just issue a redo
6. Charging money for documentation
this is also recommended, and some complain that it's all done in hand-writing, the imams do it (in arabic not even in english) it has to be done in a very nice way, a standard format used for this
The Ceremonies of a Marriage Contract
1. Who should perform the ceremony?
an authority in the area- not a requirement but highly recommended, and not just any imam, choose someone good, and they should be of the muslim community
2. Marrying outsiders
at least one of the contracting parties hsould be a resident of the area, to avoid problems in the community; if they have an islamic center, ask them to do it there; if they both are out of towners try to avoid it, avoid jeapordizing yourself etc. and your jamaa; and so ppl avoid the certificate, and that's what the people want, and the witnesses are just anybody too; if the man is a newly reverted person, take a certificate to say so, but if he's very active in his community, then there's no need for the clarification
3. The place where the ceremony should take place
recommendation: in the islamic center because it should be announced to the public, some have cultural activities, like at their house, that's fine if it's not a secret marriage; if they want to do it secretly, as an imam, you can choose whether to do so, and tell them not to do so; you can give advice to them but can't tell them you won't do so?
4. Seating the contracting parties
the bride does not have to be there, but htey should be both in front of the imam in the same place and the wali can be there
5. The different words of the spoken form
be specific about words of ijaab and qabul, and there are different forms of documentation
6. A marriage contract: step by step
1. verify documentation (take the copies and the id's and have them read it to revise it) if it's okay then go to the bride w/2 witnesses; if she is covered, then match faces, and ask her are you ______ if she says yes, and you can ask her to verify in front of witnesses do you wish to have guardian as father, and she can say yes, and if he was following hanafi: father had right to do so, but other madhabs stop straight away and marriagecannot take place; does she agree on mahr, if she receives it or not? any conditions.. if she says no, then go to man, verify, conditions, no.... alhamdulillah; everyone to sign documents and leave your signature at the end (get wtinesses and all to sign) and his sig should be delayed till end, even with seal, etc. then start actual performance of the marriage contract
Example of the Declaration of the Marriage Contract:
(the certificate should look pretty though)
Sunnah is to start with beg. of khutbah
face husband, and imam pronounces the words and ask them to repeat after you facing the other party but all below don't need to be verified just say, I___ accept ____ then annouce, on such a date on AH and AD then you are husband and wife islamically and then the women can celebrate; sign make copies, keep the original and then file it
Declaration of the bridegroom:
"I........, a Muslim, born on .........., residing in ..........., phone number ( ), SS #/DL ................. accept Miss .................. as my wife according to the precepts of the Qur'an and Sunnah of the Prophet Muhammad salla Allahu alayhi wa sallam. I declare to abide by the laws of Islam as a Muslim husband in the presence of the gathering and the witnesses and Allah is the best witness of all."
I also promise to give ..................... as Dower to my wife.
Declaration of the bride (or wali)
"I........... of ............. fatih, born on .........., residing in ..........., phone number ( ), SS #/DL ................. accept Mister.................. as my husband according to the precepts of the Qur'an and Sunnah of the Prophet Muhammad salla Allahu alayhi wa sallam. I declare to abide by the laws of Islam as a Muslim wife in the presence of the gathering and the witnesses and Allah is the best witness of all."
I also accept conditions and Dower specified.
Third: The Marriages of the Messenger of Allah Salla Allahu alayhi wa sallam
Ummahatul Mu'mineen
1. The total number of the wives of Rasulullah
disagreement of scholars, they all agree there were 11 and he died leaving behind 9, and two died in his lifetime-khadijah and zaynab bint khudayja? and along with 11 there is dispute on 3- maariyaa kuttiya- a wife or concubine because she was gifted by king of egypt; and 2 were one that he married came to his house, and he saw a defect on her w/o touching her he sent her home, and another was when she came to him, she said i seek refuge with Allah from you, and he saw said you sought real refuge (w/Allah), so go home
2. Marrying Ummahatul Mu'mineen
a. Khadija bintu Khuwailid radiya Allahu anha
all his children except ibrahim were from khadija, and there were 7- zaynab al kubra, ibrahim, kaasim, abdullah, ummul kulsum, fatima, ruqaaya; from her, four girls and two boys, ibrahim and abdul kaasim all died in his life time; all his daugthers exc. fatima die din lifetime; umm kulusm and ruqayah to uthman? and abdul aas ibnul rabiyya was married to ruqaya (she died too) and fatima to ali ibn taalib and she died 6 mo after his death
b. Souda bintu Zam'aa radiya Allahu anha
he married her a few days after death of khadija
c. A'isha bintu Abi Bakr radiya Allahu anha
ctonracted the marriage with abu bakr in makkah but consummation in madinah when she was 9 or 10 and she was the only maiden woman he saw married
d. Hafsa bintu Omar radiya Allahu anha
e. Zainab bintu Khuzaima radiya Allahu anha
ummul masaakin, she was very charitable and she died in his lifetime
f. Umm Salama Hind bintu Abi Ummayyaa radiya Allahu anha
she said i'm old, jealous, and children
g. Zainab bintu Jahsh radiya Allahu anha
wife of adopted son zaid bin haaritha; she was his cousin (she was only one married to revelation)?
h. Juwairiyyah bintu Al-Harith radiya Allahu anha
she was captured after a battle w/banu mustalib and she became part of the share of the sahaba thaabitul bintu qaais bintu bin maas? and she was an honorable rank in society and she went to rasulullah and she said that help convince him to pay for me? and she was recommended that he would pay the ransom, and marry him and she was given to one ansaari to take care of her utnil she passed the 'iddah to see if she wasnt' pregnant
i. Umm Habibah bintu Abi Sufyan radiya Allahu anha
the mekkan era was contract, but consummation was 7 ah, because during khaybar is when it happened; because ppl who migrated to abbysinia, they stayed there till 7th year until treay of hudaybiah and when they came back um habiba came back w/them; and when abu sufiyan heard, he was honored (though he was enemy) and he said she desrves him and he deserves her; when he came to visit his daughter for a long time, (after rejectio nto resume the treaty) and he wanted to sit down, but she folded the mattress of rasulullah why are u doing this? because i don't deserve it or because it's bad? and she said, this is the mattress of Prophet Muhammad (sal Allahu alayhi wassalam) and you are a munafiq and najas, and she kept praying for him for guidance (under 1 yr he convertd)
j. Safiyyah bintu Huyay radiya Allahu anha
jew daughter of leader of jewish community; her father was kille dbefore that, and Prophet Muhammad (sal Allahu alayhi wassalam) proposed for her and she accepted and her mahr was her freedom
asma bintu nu'maan al kindiyaa- she had a defect (no consummation)
'amrah bintu yazeed- who said i seek refuge (no consummation)
k. Maymoona bintu Al-Harith radiya Allahu anha
sis in law of his uncle al abaas ibn mutalib and ibn abaas was her nephew
3. The lineage of Ummahatul Mu'mineen
khadija-quraish
aisha
hafsa
umm habiba
umm salama
sawda
arab not from quraish
zaynab jasht-
maymuna
zaynab bint kuzaimay
juwairiya
asma bintu nu'maan
'amra bintu yazeed
non arab
safiya- jew
maariya-christian from egypt
Plural Marriage
1. Polygamy or Polygyny?
2. Ruling of Polyandry
3. What is the default in marriage; monogamy or polygny?
monogamy is the default~ marrying one wife
is there a preference? does islam prefer more than one? some say it's recommended more than one, but the sound opinion is that it's not recommended to marry more than one, because Allah says in the Qur'an, i fyou think you cannot treat them justly, then marry only one; Allah says in Surah Nisa: you will never be able to perfectly be just even if you do your best to do so, maybe because of emotional aspects, and even Prophet Muhammad (sal Allahu alayhi wassalam) stated that when he gave them financial rights, he'd say "O Allah this is my portion, in which i have control over, do not hold me accountable for what i have no control over" from this we see it's very hard to achieve justice, and if he doesn't treat one wife better, then he will come leaning on one side on the DOJ (financially, time, efforts) but the heart is another issue
4. The justification of polygny
-General reasons: 1. solving the social problems of women over numbering men- this is common in every society- in the u.s. if every man married a woman, there are still going to be 8 mill women w/o men and just in New York, they will have 1 million men left in new york; how do we solve the problem? obviously not prostitution; why are men less? the ratio is higher in women, but with men it's very fatal; in germany alone after wwII the ratio of men to women were either 1:4 or 1:6 so they petitioned that they wanted temporary polygyny and it was denied; and in these countries today there is a large pornography industry
2. the need in our ummah to increase the population; Prophet Muhammad (sal Allahu alayhi wassalam) recommended that for us, and he said that they will flow over the horizon
3. stronger affinities and relationships- in the society; and that's why Prophet Muhammad (sal Allahu alayhi wassalam) had to marry more than anybody else to bring all different tribes and ethnicities in his community together
- Specific reasons: different from one individual to another
1. wife is barren- he doesn't want to leave her, because he loves her but he wants children
2. sickness or weakness
3. abhorrance- they hate each other, but they stay together for the sake of children
4. strong sexual drives in men, which last longer than in women
5. Limiting the plural marriage up to four
a. because it's Allahs Command and He knows Best
b. to achieve full satisfaction in extreme cases with men; if three of his wives are in their period, then he can go to another wife if he has the need
c. feeling injustice in which it's strongly ? that a man would marry more than four; because Allah says if you feel you can't deal justly w/them, then only ONE- in collection of hadith, a man had 11 wives so Prophet Muhammad (sal Allahu alayhi wassalam) commanded him to keep 4 and another man embraced islam and he had 8 wives and Prophet Muhammad (sal Allahu alayhi wassalam) said keep 4, so Prophet Muhammad (sal Allahu alayhi wassalam)'s practice was to keep 4; people calculate this as 9 (2 plus 3 plus 4) because when Prophet Muhammad (sal Allahu alayhi wassalam) died, he had 9 women, and this was made exclusively for him (as in S. Ahzab)
6. Rulings of plural marriage
1. are marriages are equal, binding, and with the same responsibilities for all
2. wife no. 1 is not the chief of the rest of them, none can serve another, or be above another
3. wife no. 4 is not w/preferential treatment over other wives- they still get equal treatment, exc in the first week of marriage, he should give a maiden 7 days and then onto the other wives
4. deal with them justly- abu dawud/tirmidhi- whoever has 2 wives and leans unduly to one of them, he will come on the doj w/half his body leaning to one side because he was unjust; in his time and wealth, his heart is in the hand of Allah (SWT)
the two teams were by a'isha and zaynab (his cousin) and a'isha said "she was my rival" hafsa sawda and safiya went to a'isha and the rest went to zaynab, and the wives would complain because sahabi would wait till he saw was at a'isha's house; and jealousy is natural, and it's an instinct for survival, because they wouldn't strive for better
The Messenger of Allah salla Allahu alayhi wa sallam and Plural Marriage
1. Muhammad salla Allahu alayhi wa sallam as a man
practicing plural marriage became a cultural thing... most less-educated ppl get involved in this and don't do it right; here in the west they do it illegally (wife + mistresses)
he stayed w/khadija for longest, until he was 50 years old
2. Muhammad salla Allahu alayhi wa sallam as a Messenger
Allah wanted to legislate the permissibility of plural marriages through him;
3. The reasons for plural marriages in the life of Rasulullah
- educational reasons
a'isha: he was so shy, even more than the maiden in her own room, he would turn red; if it were meant to be, then he would have stayed with khadija... then the example of ansaari woman who asked about blood, and a'isha did the right thing; maymuna related about ghusl- after janaaza, and even a'isha said so, and Prophet Muhammad (sal Allahu alayhi wassalam) would play w/her in the shower, and said "leave me some?"
- legislative reasons
like adoption- to say that it's completely forbidden, and he married zaynab who was once his adopted sons wife
- social reasons
sawda was a convert in makkah and she was under pressure and stress, to give us an idea that a man can marry for social reasons
- political reasons
safiyah- daughter of a Jew
daughter of abu sufyan (enemy)
daughter of trive of banu mustallif
