Marriages introduction:

The Shariah law has been an accumulation of the Islamic legal theory (usul al-fiqh)
and Islamic Substantive law (furu al-fiqh). The former deals with the sources,
methods, principles and nature of Islamic law comprising of Quran, Sunnah, Ijma,
Qiyas and other ways of interpretation whereas the latter part deals with the specific
branches of Islamic law relating to family law, penal law, succession and other
procedural aspects.

The Islamic family law is applicable in all regions of the world where Islam is being
followed, professed and practised as a religion. This branch of Islamic law is one of
the few branches that have had a transcendental effect across the borders as it is
dependent on the migration of individuals as seen in UK where the English Courts
have recurrently decided matters related to divorce based on the Muslim laws of
dissolution and child custody. Hence, this shows the strong ties of Islamic tradition
with other countries irrespective of the states’ religious status.

The central and inevitable notion in the area of Islamic family law is the execution of
a marriage contract between a man and a woman. This contract is also known as
Nikkah amongst the Muslims. There are four main pillars of a marriage contract and
if any one of them is not present, it is likely that the contract will not be concluded i.e.
offer and acceptance, dower, marriage guardian and witnesses. The Islamic Schools
of Jurisprudence don’t hold a unified stance over these four requirements rather
every school has their own understanding which has been followed by them since
their inception and henceforth, we will discuss those same differences based on the
reasoning given by the respective school for their analogy.

Witnessing requirements:

Hanbali, Shafi and Hanafi – two male adults

Ithna Ashari and Maliki – Presence of witnesses recommended but not mandatory
[Maliki give significant importance to marriage]

Capacity: refers to age of contracting parties (just like any other contract)

General – majority attained at onset of physical puberty – female < 9 and male < 12
– irrefutable presumption both have attained it at age 15

Views of Islamic Schools of Jurisprudence:

Both Hanafi and Ithna Ashari sane adult, male and female have capacity to
conclude their own marriage but as usual practise they ask their guardian –
according to Hanafi female marriage will be dissolved by her guardian if contracted
for less than proper dower – it is based on principle of equality aka Kafa’ah –
determined with regard to piety, lineage, wealth and occupation – consent varies
according to virginity i.e. if not a virgin need to be express otherwise even implied
(silence, weep etc)
Maliki, Shafi and Hanbali – woman cannot conclude her marriage at her own,
guardian must act on her own behalf – in M the hierarchy of marriage follows that of
succession – also given is the right of ijbar to the women father or the paternal
grandfather i.e. contract her hand in marriage without her consent and even against
her will/wishes regardless of her adulthood – this right has been restricted in many
countries – last was Morocco where it was removed in the new amendment from the
Morocco Family Code (Mudawwanah) in 2004 – in Pakistan there was judicial
intervention seen in Abdul Waheed v Asma Jehangir PLD 1997 (objection to
marriage of an adult woman that it was w/o her father consent – rejected the plea
based on Federal Court judgement that adult Muslim women didn’t need affirmation
from her guardian/wali to enter into Nikkah.

Child Marriage:

Under traditional Islamic law there was no minimum age and guardian could contract
the marriage of their wards during infancy – upon attaining puberty they had right to
repudiate (Hanafi) – this right stands until she becomes aware of marriage and
consummates it – this right is known as option of puberty (but is diluted if marriage
was contracted by her father or paternal grandfather) – CONTRADICTION in law

In order to exercise this option of puberty a decree must be issued by Qadi (judge)
and until it is issued the marriage subsists

Males’ option of puberty can be exercised by him pronouncing a talaq – divorce

Laws have been enacted – Child Marriage Restraint Act 1929 to curb this ill practise
also entails penal sanctions.

Impediments to marriage:

Prohibited for you (in marriage) are your mothers, your daughters, your sisters, the
sisters of your fathers, the sisters of your mothers, the daughters of your brother, the
daughters of your sister, your nursing mothers, the girls who nursed from the same
woman as you, the mothers of your wives, the daughters of your wives with whom
you .have consummated the marriage - if the marriage has not .been consummated,
you may marry the daughter. Also prohibited for you are the women who were
married to your genetic sons. Also, you shall not be married to two sisters at the
same time - but do not break up existing marriages. GOD is Forgiver, Most Merciful.
[4:23]

Prohibited by Quran, surah 4 verse 24 as well as by Sunnah – Permanent [blood,

fosterage and affinity] and Temporary [already married, observing iddah period,
triply repudiated, two women of blood (sis-sis, mother-daughter)]

Invalid marriages - man with already four wives, non-hanafi women w/o her
guardian permission, concluded by person during hajj performance
Muslim man can contract marriage with woman who is khitabiyah (non-Muslim but
preacher of a religion of book & refers to Christianity and Judaism) – this right not
given to Muslim women.

Effects of Impediments:

Permanent – always void but can be regarded as irregular if the parties acted in
good faith or they were unaware of the prohibition/ impediment under the law or
knew of the law but didn’t know its effect – as Islamic law recognizes ignorance/
obliviousness of the law as a defence

Temporary – always irregular; parties not liable of zina, child legitimate and iddah
must be observed and if consummation taken place women entitled to stipulated or
proper dower (whichever is less)

Proof of marriage – either testifying of two adalah witnesses (male, adult, sane and
high moral probity) – indirect evidence [long living, families accepted them as couple,
marriage certificate, DVD or video at the least (traditional)]

Dower:

Justice Mehmood in Abdul Kadir v Salima 1886 ILR 8 All 149 defined dower as “the
sum of money or other property promised by husband to be paid or delivered to the
wife in consideration of the marriage. Even where no dower is expressly mentioned
at the marriage ceremony, the law confers the right of dower upon the wife.”

It is one of the prerequisites of a valid marriage contract, without a dower the

contract can be concluded and it cannot promise over a speculative future property
but it doesn’t relieve the husband of his liability. It is supposed to be paid at every
cost. In Arabic dower is also known as haq mahr. There are two types of dower i.e.
proper dower and stipulated dower. The latter refers to the mutually agreed asset,
cash or some tangible property mentioned and existing at the time of the contract
whilst the wife is entitled to the former if no dower amount has been mentioned in the
contract. The usual way of determining proper dower is by taking into account the
personal attributes of the wife including her virginity, beauty, education and so on or
it can be determined by comparing the dower received by her sisters or cousins. The
haq mahr amount can either be promptly (mu’ajjal) paid i.e. at the time of nikkah or it
can be deferred (ghair mu’ajjal).

It is not “consideration” in the modern legal sense of the term but an obligation,
imposed by law, upon a husband as a mark of respect to the wife. Islamic family law
sought to make mahr into a real settlement in favour of the wife, a provision for the
rainy day, which socially became a check on the capricious exercise by the husband
of his almost unlimited power of divorce and polygamy.

Hanafi – 10 dirham, Maliki 3 dirham – gratuitous 500 dirham (Ali gave to Fatima was
480)
With reference to VLE UG laws blog written by Mashood A. Baderin, the Module
Convenor for Introduction to Islamic Law discussed the incident that took place on
15th February 2020 in Nigeria where the Muslim lady rejected the dower and
demanded groom’s public promise that he would not marry another wife while their
marriage subsisted. This request was subsequently accepted by groom in substitute
for mahr. The following legal points were highlighted in this case that:

It is a legal claimable right of wife and cannot be waived off or reject by the husband
unless she remits it back after acceptance with reference to Q4:4 “And give the
women [upon marriage] their [bridal] gifts graciously. But if they give up
willingly to you anything of it, then take it in satisfaction and ease”.
Secondly, the nikkah would not be valid if dower is rejected as Nigeria is pre-
dominantly Maliki following and according to the same school a marriage w/o dower
is invalid.
The provision put by wife can be a stipulation but not a waiver of dower she still
would be entitled to standard dower.
Under article 28 of Morocco Family Code (Mudawwanah), anything that constitutes a
source of legal commitment can serve as dower i.e. under this definition it would be
valid.
If made a promise then according to Q34:17 “And fulfil the promises because
every promise will be enquired into” – Hanbali consider this stipulation as valid
that is put in this case for wife to seek dissolution.

"And let those who cannot find someone to marry maintain chastity until Allah
(SwT) makes them rich through His favours ..."(Surah 24, Verse 33)

"They (your wives) are a clothing (covering) for you and you too are a clothing
(covering) for them." (Surah 2, Verse187) – rights and duties

"And of His signs is that He has created spouses for yourselves from your
own selves so you might take comfort in them and He has created love and
mercy among both of you. In this there is evidence (of the truth) for the people
who (carefully) think." (Surah 30, Verse 21) – love between couple

“And live with them in kindness. For if you dislike them – perhaps you dislike a
thing and Allah makes therein much good.” – 4:19
Rights of wife – duties of husband

Polygyny – restrictions – unwilling co-wives (Hanbali school view, non-Hanbali,

Maliki view) – fifth wife status and inheritance – Reforms – Tunisia (BAN), Syria and
Middle East (Libya, Morocco, Algeria, Iraq, Egypt) [lawful justification, financial
ability, prior permission of court, lawful benefit informing both existing and new wife
of his marital status], Pakistan and Bangladesh (s.6 MFLO seek permission of local
union office, consent of existing wife, reasons for new marriage – constitute
arbitration council – penal sanctions – dower to be paid), India (Itwari case).

"O people, keep your duty to your Lord, who created you from a single soul
and created its (zawjaha) of the same (kind), and spread from these two many
men and women."- Q4:1

But if you fear that you will not be able to deal with them justly then only one –
Q4:3 (in respect of division of money and time)

"You cannot be equitable in a polygamous relationship, no matter how hard

you try." – Q4:129

And do not give the weak-minded your property, which Allah has made a
means of sustenance for you, but provide for them with it and clothe them and
speak to them words of appropriate kindness – Q4:5 (Nisa)

Polygyny (ta'addud e izdiwaj) has been a subject of debate over the past few
decades and various reforms have been made by different Muslim countries in order
to protect the status and rights of the woman. These reforms have been introduced
in form of imposing restrictions, putting a blanket ban or even asking for permission
from existing wife or wives.

Tunisia:

In order to create a stringent policy based on the equitable doctrine of treatment

between several wives, Tunisia became the first country and until date the only
country to put and maintain a ban on polygyny.