ISLAMIC MARITAL JURISPRUDENCE (FIQH)
September 10, 2013|Posted in: Articles
The following are the various schools of thought in Islamic law:
- The Maliki school
- The Hanifah school
- The Shafi’i school
- The Hambali school
However, the most prominent and outstanding school of thought in Islamic jurisprudence in Nigeria is the Maliki school of thought. This school of thought is built on liberalism and justice. It flows in line with the changing realities of modern age. Consequently, Islamic marriage which will come under discussion here will be based on the Maliki school of thought.
MEANING OF MARRIAGE IN ISLAM
Marriage in line with the injunction of Shari’ah is a legal bond and social contract between a man and a woman. The Arabic word Al-Zawaj is used to refer to a legally recognized marriage between two opposite partners. In Islamic law, however, marriage is not a sacrament, but a simple legal agreement in which either partner is free to include conditions. These conditions are usually stipulated in a written contract (except in situations where the partners are illiterate then the conditions can be stated verbally). And the violation of any of the conditions stipulated in this contract provides enough legal ground for a partner to seek divorce. Islam recommends marriage, with the age of marriage being whenever the individuals feel financially and emotionally ready.
In Islam, marriage is a command from Allah and His messenger. Qur’an 24 vs. 32 provides “Marry the unmarried among you and the righteous of your male and female slaves. If they should be poor Allah will enrich them from his bountiful and knowing. Marriage is ordained by Allah and placed in the pinnacle of things”. This justifies why Islam attaches premium to marriage. Allah through His messenger, Prophet of Islam (PBUH), enjoins Muslims to marry in order to avoid the excesses of lust and also to provide social security to the members of the Muslim Community. The institution of marriage is accorded nobility and used as a platform for social responsibility and societal cohesion.
Islam forbids celibacy (i.e. the choice by an individual not to marry) (see Qur’an ch. 57 vs27) but rather advises those who are unmarried and who have also attained the age of marriage to engage in prayer and fasting to overcome the power of lust. The Qur’an provides “And let those who find no means of marriage keep themselves chaste until Allah grants them out of his bounty. It is also forbidden for an adulterous man to marry a chaste woman or a chaste man to marry an adulterous woman”.
Qur’an 24 vs. 26 provides “Women of purity are for men of purity”. The Qur’an also provides that “And let those who find no means of marriage keep themselves chaste until Allah grants them out of his bounty” (Qur’an 24 vs. 33).
The Prophet (PBUH), also said “O you Young men, whoever is able to marry, should marry, for that will help him to lower his gaze and guard his modesty” (Sahih al – Bukhari).
NATURE OF ISLAMIC MARRIAGE
Marriage in Islam is both a contract and a religious obligation. The institution of marriage in Islam is a divine one containing the elements of a contract and also religious obligation. Some Muslim jurists have even gone to the extent of interpreting the Holy Qur’an to mean that marriage is obligatory. The prominent view however is that, although, marriage is a social necessity, it is only absolutely compulsory for an individual, depending on his circumstance. Hence, the following views on marriage are advanced by Islamic Jurists.
- Marriage is Wajib: this is the view that marriage is compulsory or obligatory. It is compulsory if:
- A man has strong sexual desire
- A man has the means to maintain a wife, and a situation where he is unmarried.
- Marriage is Haram: These are circumstances where marriage is forbidden. Marriage is forbidden for a man who will not be able to consummate the marriage, and thereby amounting to Zinah.
- Marriage Is Mandub: Marriage is recommended. It is recommended for a man who has desire for sexual intimacy and can maintain a marriage to go ahead and marry.
- Marriage is Makruh: marriage is discouraged from a man who has no sexual desire or urge. Such a one will be discouraged from marrying.
- Marriage is Muba: marriage is permissible. It is permissible for some one who already has one wife to marry more.
TYPES OF MARRIAGE PRACTICED IN ISLAM
There are basically three types of marriage recognized in Islamic marital jurisprudence. These are:
This literally means to collect and bond together. It is the first and most common form of marriage for Muslims. It is described in the Qur’an in 4:4. This type of marriage is purely contracted in nature embodying terms and conditions. The conditions are clearly written down and specified and both the bridegroom and the bribe are expected to sign the marriage certificate.
- It is aimed to be permanent, except the husband decides to engage in talaq or the wife seeking khula
- The couple inherits from each other.
- A legal contract is signed when entering the marriage. It may be written or oral especially among illiterates
NIKAH MUT’AH (TEMPORARY MARRIAGE):
Often referred to as fixed-time marriage. Many of these marriages have a time-limit and are the second form of marriage, and are referred to in Al-Qur’an in Surah 24, 4:24. The Islamic jurisprudence on this type of marriage is controversial especially between Sunni’s and Shi’ia. The Sunni’s who strict followers of the prophet of Islam are, and believers of the Sunnah of the prophet of Islam, hold the view that Mut’ah is illegal and also immoral because it was abrogated by the prophet. Whilst Shai’i traced its validity to the Qur’an and the ruling of Imam Ali. Al-Nikah Mut’ah has a fixed-time period to the marriage which is stated during the initiation of the contract. Both couple does not inherit from each other and the man is not responsible for the economic welfare of the woman and may decide to live apart from each other. However the woman is still entitled to her mahr (Qur’an ch. 4:21) and must observe the Iddah, a period of time ranging from between 2 to 5 years where the woman cannot remarry.
Nikah Misyar is a Nikah in Sunni’s carried out via the normal contractual procedure, with the understanding by the couple that the husband and wife give up several rights by their own free will, such as living together, equal diversion of nights by wives, home keeping, access to the wives, etc.
RESPONSIBILITIES IN MARRIAGE:
In Islamic marital jurisprudence, a husband owes greater responsibility to the wife. The economic welfare of the wife is placed on the husband. It is the duty of a man to provide housing need (i.e. comfortable accommodation) welfare, maintenance money “Nafaqa’ for the wife. The wife is also entitled to her mandatory Mahr. It is the duty of the wife to maintain the home and permits the man access to her.
In Islam, Muslim men are allowed to practise polygamy, that is, they can have more than one wife at the same time, up to a total of four (Sura 4 vs. 3). However, a man needs the approval of his first wife before contracting a second marriage. The wife also has the right to choose either to stay or to leave.
However, polyandry is prohibited i.e. the practice of a woman having more than one husband. A man is permitted to marry more than one wife if he has the economic resources to take care of them. Islam forbids homosexuality in Qur’anic injunction and Islamic tradition.
Under Islamic marital jurisprudence, for a marriage contract to be valid both parties are expected to give informal legal consent (Ijab – o-qubul). Hadith indicates that even a virgin requires her permission to be married off and fathers cannot force their daughters into wedlock. A woman or a man may also propose marriage directly or through an intermediary (match-maker). The acceptable age of marriage is when both parties attain maturity sexually and mentally.
Islam allows a man to marry a woman from people of other religion especially the People of the Book i.e. Christians and Jews (Qur’an 5 vs. 5). It is not permissible for a Muslim woman to marry anyone except for another Muslim.
DIVORCE (Qur’an 4 vs.129):
‘But if they disagree and must part, Allah will provide abundant for all from His all-reaching bounty: for Allah cares for all and He is wise (Qur’an 4 vs. 130).
In Islamic marital jurisprudence, divorce is permitted by either party to a marriage. The most prominent form of divorce under Islamic law is non – judicial divorce. The Maliki School of Islamic law operational in northern Nigeria, and by extension the whole of Nigeria, provides that a discontented wife may obtain her release from the marriage by means of Khul. This is dissolution of marriage obtained by the wife with the consent of the husband in return for payment of compensation to the husband. This compensation represents the dowry and other payments made by the husband in respect of the marriage. A court, under the Maliki’s school, can equally order a husband to accept the Khul against his wish where it is discovered that reconciliation is impossible. A Muslim marriage can be terminated by means of Talaq, under the Maliki school of thought in northern Nigeria. This is the means open to a husband to bring a marriage to an end. When the Talaq is pronounced three times, except during the period of Idda, it symbolizes the wish of the husband to bring the marriage to an end. Where the third Talaq is pronounced or where the triple form is used at the first instance, the marriage is finally and immediately dissolved, unless it is shown that it was uttered in the heat of anger and without the intention to end the marriage.
Family planning is in line with Islamic injunction, though the prophet had given a tacit approval of this. In Islamic marital Jurisprudence, the following methods of family planning are permissible.
Azi (Coitus interruptus)
- Oral Contraceptive: Birth control pills used to prevent conception by inhibiting ovulation.
- Intrauterine Devices (IUD). According to the shari’ah, pregnancy begins at implantation, there is no problem in using IUD for it is permissible.
- Barrier Device: This is permissible under Islam.
- Abstinence and fasting: This is one of the most effective means of family and birth control and Islam places premium on it.
The majority of Muslim scholars permit abortion, although they differ on the stage of foetal development, beyond which it becomes prohibited. It allows a woman to prevent pregnancy but forbids them to terminate it when it has gotten to a certain stage.
Under Islamic marital jurisprudence, child spacing is encouraged and upheld as an Islamic tradition. Islam permits a mother to observe, at least, a period of two years after the birth of a child before having another child. This is in line with the injunction of Islam.
In conclusion, ideally marriage in Islam is a Qur’anic injunction and a command from Allah to all His creation. The Prophet of Islam (PBUH) and messenger of Allah, through whom the will of Allah was revealed, enjoined Muslims to multiply. To fulfill this divine injunction, Muslim umar must therefore uphold marriage as obligatory. It is in fulfillment of this Allah’s command that barbaric acts such as infanticide, etc, are prohibited among the Muslim people.
Therefore, to interpret correctly the will of Allah through His divine revelation and to avoid going contrary to His will, different scholars and jurists on Islam have advanced their views on different concepts and subject- matters relating to Islam. These juristic views are what are referred to as jurisprudence (fiqh) or schools of thought in Islam. They are meant to serve as a guide on the conducts and transactions of Muslim people. Hence, Islamic marital jurisprudence captures the scholastic and juristic viewpoint on marriage as it pertains to Islam. Islam views marriage as a social contract and a divine obligation. Unlike other religion (e.g. Christianity where marriage is considered a sacrament ‘Till death do them part’), in Islamic marital jurisprudence, marriage is a contract between parties with clearly defined terms and conditions that give room for dissolution. From consent of parties to a marriage, to divorce or dissolution of marriage, individual’s free-will, whim, capacity and financial position of parties to marriage, are highly respected as against coercion of any form. The husband may pronounce the Talaq if he wishes to release himself of the marriage .The wife may likewise obtain a divorce, if she feels discontent with the marriage. This is done through her invested right of khul.
Summarily, marriage in Islam is a role-based relationship and a social contract with both parties having clearly spelt out duties and obligations. It is the husband’s obligation to provide shelter (comfortable accommodation), feeding allowances, good health maintenance, etc, for the wife. Whilst the wife owes a responsibility of keeping the home in good condition, taking care of the children and ensuring that the husband is happy always and also derives joy from the marriage.
Prof. Abdur Rahman I Doi; Shariah: The Islamic Law. Misayar, Kano.
The Holy Qur’an Abu Ameenah Bilal Philips & Jameelah Jones: Polygamy in Islam.
Ambali, M. A Practice of Muslim Family Law in Nigeria (2003) 2nd Edition Tamaza, Zaria.
Samuel Chapman,”The Benefit Polygamy has for Children and the Control it Places on Man”.
Hadrat Mirz Nasr Ahmad (ND); The Holy Qur’an with English Translation and Commentaries.