Pre Marriage Contract by emm19002

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									                                        Lecture 7

                    Marriage Related Issues: Islamic Pers pectives

Islam views marriage as a sacred contract; as such, the selection process for a suitable
spouse must be considered carefully both by man and woman. Even though Islam
prescribes specific guidelines on marriage related issues, oftentimes many Muslims give
local customs and cultural practices precedence over those guidelines. Unfortunately,
many un-Islamic customs namely dowry (given to the husband), female genital
mutilation, honor killing are deeply rooted in many Muslim societies, which, instead of
giving women security and peace, bring humiliation and mental agony to them. However,
such practices are not peculiar to Muslims; they go across religions in many cultures.

While millions of Muslim women are being abused by their fathers/brothers/husbands or
by their community, we believe it is crucial for us to know what Islam says about pre-
and post- marital duties and responsibilities of both men and women. In search of these
answers, we will first look into issues that potentially lead to the solemnization of
marriage.

The Selection of Spouse

With regard to spouse selection, our Prophet (SAWS) said, "Do not marry only for the
beauty, maybe the beauty becomes the cause of moral decline. Do not marry e ven for the
sake of wealth, maybe the wealth becomes the reason of disobedience; marry rather on
the ground of religious devotion and piety." How many Muslims really take this hadith
seriously while choosing their partners? How many of us really give preference to piety
over wealth or beauty? The shocking reality of many Muslim societies goes against the
teachings of the Prophet.

In the Quran, marriage is described as a sign of Allah. Allah says in Ch.30 V.21:

“And of His Signs is this that He has created for you wives from your own species that
you may find peace with them, and created love and mercy between you. Surely in this
there are many Signs for those who reflect.”

The use of the word azwajan in this verse is important as it means “spouse”, which is a
neutral term referring to both male and female. This shows that marriage is a matter of
mutual consent; and it is not simply a question of man finding his mate. This implies that
there is both human and spiritual equality between the sexes, and woman has the same
right as man to choose her spouse. In one hadith, addressing the guardians of the girls, the
Prophet (SM) said, “Do not give your daughter in marriage to someone who is no good,
because whoever does that is destroying her family connections”. He also said, “If a
person comes to you to seek the hand of your daughter in marriage […] you should give
her to him only if you are comfortable and assured of his piety and good character.
Because if you do not follow this criterion, there will be commotion in the land”. So it
seems that the criterion to choose a compatible spouse is the same for both man and
woman. It should be remembered that that if the prospective spouse the parents have
selected is not compatible and is not Islamically sound, then the girl has the right to
ignore parents‟ choice and to reject the proposal.

Sometimes people ask if Muslim woman can initiate a marriage proposal to a man!
Traditionally, a man takes the first step to make his proposal to a girl or to her family. But
in Islamic law, there is no prohibition against a woman making the first move to propose.
Prophet Muhammad (SAWS) himself was proposed by Khadija (RA) before their
marriage. In another instance, a woman came to Prophet (SAWS) and offered herself in
marriage to him. Though he did not accept it, he also did not disapprove of her action of
making the proposal.

Prohibition of dating and courting

The moral teaching of Islam prohibits any dating or courting between the prospective
husband and wife before marriage. We earlier mentioned a hadith regarding the presence
of Shaitan when two unrelated man and woman meet in privacy. However, that does not
forbid them to meet and talk before making a decision regarding marriage, provided they
are not alone in privacy. It is encouraged that they should talk to each other to see if they
find each other compatible or not. Prophet Muhammad (SAWS) is recorded on several
occasions to have commanded prospective bridegrooms to go and look at the prospective
brides so that „feelings of love, companionship and closeness‟ is engendered. It is
reported that a companion of the Prophet (SAWS) Al-Mughirah Ibn Shoabah came to the
Prophet and said that he was getting married. The Prophet (SM) said to him, “Look at her
in order to generate feelings of love, companionship and closeness between you”. What
this hadith implies is that prospective bridegroom and bride should present themselves to
each other in a nice manner (maintaining Islamic etiquette and dress code) so that it
becomes easier for them to make the right decision.

Prohibition on marrying different categories of man and woman

The prohibited categories of women whom a Muslim man may not marry are detailed in
the Qur'an in CH.4 v.22-24:

And marry not those women whom your fathers married, excep t what hath already
happened (of that nature) in the past. Lo! it was ever lewdness and abomination, and an
evil way. Forbidden unto you are your mothers, and your daughters, and your sisters, and
your father's sisters, and your mother's sisters, and your brother's daughters and your
sister's daughters, and your foster- mothers, and your foster-sisters, and your mothers- in-
law, and your step-daughters who are under your protection (born) of your women unto
whom ye have gone in - but if ye have not gone in unto them, then it is no sin for you (to
marry their daughters) - and the wives of your sons who (spring) from your own loins.
And (it is forbidden unto you) that ye should have two sisters together, except what hath
already happened (of that nature) in the past. Lo! Allah is ever Forgiving, Merciful. And
all married women (are forbidden unto you) save those (captives) whom your right hands
possess. It is a decree of Allah for you. Lawful unto you are all beyond those mentioned,
so that ye seek them with your wealth in honest wedlock, not debauchery. And those of
whom ye seek content (by marrying them), give unto them their portions as a duty. And
there is no sin for you in what ye do by mutual agreement after the duty (hath been done).
Lo! Allah is ever Knower, Wise.

Taking each prohibited category in turn, it is easy to see the logic behind the se
prohibitions:
a) The prohibition against marrying a step- mother, or a widow or divorcee of one's father
ended a pre-Islamic practice which was based on the idea that a wife was part of the
property of her husband and hence could be inherited along with his other possessions.
Islam asserts that a woman cannot be an object of inheritance; on the contrary, she is
entitled to inheritance from what her husband left. A step- mother – widowed or divorced
– is to be respected as a mother; and therefore may not be married to her son or step-son.

b) In almost all cultures, mothers, daughters and sisters are not considered for marriage
because the natural love, adoration and respect one has for these close relations should
not be marred by the love engendered by sexual desire.

c) Aunts – both paternal and maternal – are like mothers and so may not be married;
equally, nieces are like daughters, and for the same reason cannot be married.

All these categories of women are maharim, irrevocably and totally prohibited for
marriage. Equally, a woman may not marry her step- father or the widower of her mother
or her paternal or maternal uncle or her nephews. In this respect, one jurist, Al Ghazali,
said that it was not recommended to marry one's cousin considering the medical harm
which results from inter- marriage amongst close relations, even though the Qur'an does
not prohibit this. Research is still going on in this field to find out the correlation between
some genetic diseases/abnormalities and the blood relationship between the spouses.
Also, Islam prohibits marriage to these categories of relatives because marriage is
supposed to expand the circle of relations in order to strengthen Islamic society.

A Muslim is also prohibited from marrying:

d) A close relative through the relationship of suckling: the woman who suckled a baby is
regarded as its mother, therefore a boy may not marry his foster- mother, any other
children she suckled (because they are regarded as his sisters), or the sisters of the foster-
mother.
e) His daughter-in- law because in Islam she is considered to be like his daughter.
f) Two sisters at the same time. The sisters' relationship would obviously be strained if
they were both married to a man simultaneously.
g) A woman who is already married.

Other Prohibitions

In the Qur'an (CH.5 v.6., CH.22 v.17; CH.98 v.l., CH.60 v.89; CH.58 v.22), Allah says
that those guilty of adultery or fornication should not be permitted to marry those who are
chaste and innocent of such actions. This prohibition is a manifestation of the following
concerns: a) Islam's moral teachings prohibit all types of illicit sexual relationships. This
restriction ensures that those guilty of breaking Islam's moral code in this respect will not
get the reward of having chaste spouse. Conversely, the chaste are rewarded with the
privilege to marry those who are chaste like themselves. b) These serious consequences
act as a deterrent to those who are susceptible to such illicit relationships. c) The purpose
of Islamic marriage is engendering tranquility and building fellowship between husband
and wife. One cannot attain this if one partner is God- fearing and chaste whilst the other
is not. Therefore, Islam ensures that those who are incompatible in this respect will not be
in marital union. d) Concern for the medical harms which result from illicit relationships,
such as venereal disease. But if the guilty person is truly repentant, then in Islam there is
a chance of forgiveness from Allah. It is not clear from the Qur'an whether the
prohibition against marrying those guilty of fornication or adultery is irrevocable or not.
By and large, Muslim jurists agree that since sins which are greater than adultery and
fornication can be forgiven, with true repentance, adulterers and fornicators may be
forgiven too by Allah.

If a Muslim wishes to marry a woman who has been guilty of involvement in illicit
relationships, jurists advise that, as a safeguard, the man should wait for between one to
three months to see whether she is pregnant by those illicit relationships. If she is
pregnant, then he must wait until she has delivered her baby before he can marry her.

Permissibility of marriage with a woman from the People of the Book

The Qur'an specifically permits Muslim men to marry „[…] the chaste women from
among the People of the Book'. The term People of the Book is usually interpreted as
meaning Christians and Jews. The jurists maintain that it also applies to people who
sincerely believe in God and His prophets and revelations. This concession is not a
recommendation; it is simply a gesture of tolerance and goodwill towards this group of
people.

Some people argue that the Christians are not really the People o f the Book since they
now associate partners with God. Jamal Badawi refutes such arguments and says that at
the time of the Prophet (SAWS), some of his contemporaries such as Abdullah ibn Umar
argued along the lines that the Christians of their time were not true followers of Jesus
(AS) because they believed that he was God incarnate, or the son of God. In spite of this,
Allah revealed to Muslims that there is a distinction between the polytheists and idolaters,
and Jews and Christians. The Qur‟an repeatedly addresses the Jews and Christians of
Prophet‟s time as the 'People of the Book'. It is clear that the Qur'an makes it lawful for
Muslim men to marry chaste women from among them. However, many jurists and
scholars such as Abdullah ibn Umar discouraged it, or at least advised Muslims to take
precautions before marrying Jewish and Christian women.

Yusuf Al-Qaradawi, arguably the most competent jurist of contemporary times, says in
his Fatwa Muassira that:
      The Jewish or Christian woman one is interested in marrying should be a
       believing/practicing member of her faith. She should not be an agnostic who
       happens to be from a so called 'Christian'/'Jewish' community.
      The woman should be chaste - the Muslim should investigate whether her moral
       upbringing has been reasonably in line with Islam's moral teachings as far as
       possible. For instance, if the woman has not been married before she should be a
       virgin.
      She should not be from a people who are enraged in hostility towards Muslims, as
       the Qur'an warns against befriending such people.

It should be ascertained that there will be no major negative consequences from such
marriages - either for the Muslim concerned, or for other Muslims. However, some
possible, minor harms in this kind of marriage may include:

      The fact that Muslim women, who may marry Muslim men only, will suffer from
       the fact that Muslim men have chosen to marry non-Muslims.
      It poses a threat to family stability if the Muslim man is not capable of bringing
       up his children in an Islamic way because of the dominating influence of his non-
       Muslim wife. If there is a possibility of these or other negative consequences from
       marriage to a non-Muslim, then it is not advisable for the Muslim man to marry
       non-Muslim woman, especially in an environment or society vitiated by
       Islamophobic trends.

The prohibition against Muslim women marrying non-Muslims

The Qur'an specifically prohibits Muslim women from marrying non-Muslims. The verse
of the Qur'an which contains this injunction was revealed when there was an influx of
Muslim women into Medina who had fled from their non-Muslim husbands and families
in Mecca. In CH.60 v.10 of the Holy Qur'an, Prophet Muhammad is advised to scrutinise
if they have indeed fled for the sake of Allah and if they have, '...then send them not back
to the unbelievers for they are not lawful for them'. From then on, all non-Muslim men
were prohibited to Muslim women for marriage (including men from among the People
of the Book). The prohibition against Muslim women marrying men from amo ng the
People of the Book is also clear from the fact that CH.5 v.6 does not say that chaste men
as well as chaste women from the People of the Book are permissible to Muslims as
spouses: only chaste women from amongst the People of the Book are permitted.

Reason for the prohibition on Muslim women marrying men from among the people of
the Book

First1y, this injunction is not man- made, it has Divine origins. Allah wants to guide and
protect the Muslim community through this prohibition. Since it is the role of the
husband to be the leader and director of his family, the religious freedom of the Muslim
woman would be at stake if she was married to a non-Muslim husband. A Muslim man
who is married to a Jewess or Christian woman would a) recognize her religio n as being
divinely inspired, b) acknowledge the prophethood of Moses or Jesus (AS) and the
scriptures that they received from God and c) respect the religious freedom of his wife. A
non-Muslim husband, however, may fail in these three, and in many other, respects.
Therefore, there is a real danger that a Muslim woman's commitment to her faith and her
religious freedom would be undermined by her marriage to a non-Muslim man.

Answer to those who say that this same risk applies to Muslim men who marry
Christian or Jewish women

Islam does acknowledge that Muslim men may be at risk in terms of their own faith and
more importantly the faith of their children, if they marry non-Muslim women. That is
why it makes it unlawful for them to marry non-Muslim women if there is any indication
of negative consequences resulting from such marriage. In Islam the basic purpose of any
marriage is fellowship and partnership in the spiritual and intellectual as well as physical
areas. The basic rule is that a Muslim should marry a fellow Muslim because they will
enjoy sharing the same beliefs. When Islam allows Muslim men to inter-marry with Jews
and Christians, this is a gesture of good will and tolerance. However, this is also a
qualified gesture. It is important to bear in mind that something which in general might
be permissible can be unlawful if it is harmful and if the harm outweighs the benefit.
Perhaps, inter- marriage is in this category.

The Marriage Contract

The Islamic marriage contract is not simply a 'sacrament' or 'sacred'; and hence it is not a
requirement that marriages be officiated by a priest or a religious official. This is because
in Islamic law, there is no distinction between the sacred and the mundane, the civil and
the religious. Also, there is no aversion to sex and marriage in Islam. As a result, there is
no necessity for a priest to officiate at an Islamic wedding. In fact, there is no clergy in
Islam. Traditionally, however, families like to have an Imam or a religious scholar to
supervise the conduct of the marriage ceremony. The Islamic marriage contract is 'sacred'
in the sense that it is something which is based on Divine decrees: it is a solemn covenant
between two people. The main conditions for the validity of the marriage contract are:

a. Acceptance of, and agreement to, the marriage contract by both parties: the husband-
and the wife-to-be must consciously agree to the contract in a direct and unequivocal
way.
b. There must be two competent witnesses to the contract. If the Muslim is marrying a
non-Muslim woman, a witness from her side is acceptable according to some jurists such
as Abu Hanifa.
c. The wife- and husband-to-be must not be from among the categories prohibited in
Islamic law.

Permissibility of Muslim woman to marry without the permission of her guardian

According to some jurists such as Imam Abu Hanifa, a woman may marry without her
guardian's consent. However, the majority of jurists disagree with this view because the
Qur'an and sayings of the Prophet (SAWS) indicate quite clearly that a marriage
contracted without the consent of the girl's guardian is void. Those who take the opposite
view say that there are verses of the Qur'an and prophetic traditions which show that
marriage is in the hands of women; and, since she is free to negotiate a financial
agreement, she should also be eligible to negotiate a marriage contract for herself (Ref:
CH.24 v.32; CH.2 v.232).

								
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