#14035 - Marriage In Islam - Islamic Law

Marriage in Islam

• Marriage given a pivotal role in Islam, seen as essential, a social necessity

• Shown in the importance put on Family, with the institution of marriage being the start of that

• Contract between two people

• Mahr – Dowry/ the dower

• Promise entered into between two individuals – so there’s something sacred about it, idea of it being a sacred agreement

• Obligation – saying by the prophet which is that; to marry is a kin of completing half of ones deen

• Is it an obligation?

• Polygamy – two types; polyandry, polygyny

• Legalizing the intimate relationship that exists between two individuals

• Companionship and legalization

• The concept of family and the fact that its supposed to be a means of bringing about a family legally

• Protects morality – considered to be a moral safeguard – lineage when it comes to children born of a marriage (one of the rationales behind the law of Islam)

• Opposite here is divorce and practice of divorce is allowed

• Serves a religious purpose – its often said Islam is not a religion but rather a way of life and therefore everything that one does is considered to be a act of worship, according to Islamic doctrine, even when a person is sleeping at night and if they’ve done it in accordance with the ethical requirement then each moment of that sleep is an act of worship for example when in wudhu

• Contract formalities

• Consent and within Islamic law you have reference to a term which is referred to as the wali, the guardian and the role that the guardian plays

• Is the marriage being entered into on the basis of equality to the contract?

• Important and pivotal role in islam

• Solemn and sacred contract between bride and groom

• What is meant as a contractual scenario? – Offer and acceptance and also there’s terms that can be inserted into the contract. Certain formalities have to be fulfilled

• Marriage is seen as a moral safeguard and also its considered to be a social necessity, it is said that there is no celibacy in Islam, there are certain instincts within human beings and the belief is that the institution of marriage is a legitimate outlet.

• Why is it a social necessity? Through marriage, families are established and arguably the thinking is that the family is the fundamental unit of society

• The obligation of marriage – considered there is no celibacy

• The term Nikah is an Arabic term used for marriage and it means contract, and it’s also refereed to as a marriage, as a strong covenant. Covenant had sacredness attached to it so it’s a sacred agreement and something you do as a religious motive in mind.

• Considered to be a meaningful institution

• Can argue there are two main purposes; firstly, it ensures the preservation of the human species and the continuation of the human race, surah 4 verse 1 where it says ‘o mankind, be careful of your duty of your lord who created you from a single sole and from it created its maids and from them a multitude of men and women’

• The second purpose one can argue is that it provides a spiritual and illegal foundation for the family and through this institution therefore, the relationship between the parties becomes lawful, it provides a legitimate outlet for recreation and the act of intimacy which takes place is considered to be good and natural

• So marriage is spiritual, physical, emotional and also psychological companionship, it generates and sustains love and kindness, compassion and mutual confidence

• Marriage lays a spiritual and legal foundation for raising the family and its considered that the children born from this matrimonial are legitimate

• Marriage in Islam is recommended as a religious requirement but its not fardh – when one gets married, its kin to fulfilling half of ones deen – this emphasizes the importance of the institution of marriage in islam

• Other hadiths ‘ marriage is my sunnah, whoever disregards my sunnah is not from amongst us’

• So celibacy is discouraged and Islam encourages marriage

• ‘Whoever is able to marry, should marry’

• marriage is a social institution and a agreement that’s entered into between spouses where they make a agreement to live their life in conjunction with one another

• can refer to marriage as a legal and religious ceremony that formalizes the decision

• Marriage can be referred to as relationship, marriage can be referred to any close or intimate association

• In Islamic law, marriage is a legal bond and a social contract between a man and a woman

• You have a distinction in Islamic law between what is referred to as nikah and also nikah-mutah which is a form of temporary marriage, which is practiced now by the ithn ashari schools, its been forbidden amongst mainstream sunni isllam, the zaidi shia and ismaili shias do not describe to it, ithn ashuri shia’s accept it

• Muslim marriage ceremony referred to as a nikah and it’s a contract by virtue of offer (ijab) and acceptance (Kabul)

• To use the words of pearl and menski, page 139, they refer to a Muslim marriage is in essence a solemn, civil contract between a man and a women

• To quote surat ul rum, surah 30 verse 21 ‘Among his signs is that he created spouses for you of your own kind so that you may find tranquility in them and he has placed affection and compassion between you and these are certainly signs in that for the people who reflect’… stressing the importance of the institution of marriage

THE PURPOSE OF MARRIAGE:

• For companionship

Allah created men and women for them to provide company for one another, love for another, procreate and live in peace and tranquillity obeying the commands of Allah

‘Surat ar-Rum 30:21

: “Among his signs is that He created spouses for you of your own kind so that you might find tranquillity in them - and He has places affection and compassion between you”

• Faced with many tests and struggles in life, through companionship and togetherness you go through it easier

• It is an blessing and ease from Allah in facing this world

Surat al-Baqarah 2:187

“They are clothing for you and you for them”

• Describes the affection Allah has put between husband and wife, imagery emphasising the nature of the assistance man and woman give each other within a marriage

• Legitimisation of relationship between man and woman

Prophet has advised marriage:

“Young men! Whoever of you is able to marry, should marry, for it will help him to lower his gaze and guard his private parts”

• Thus in order to retain you modesty marriage is prescribed - celibacy is not considered a virtue in Islam nor a means of getting closer to Allah [as is in other religions e.g. Christianity, Buddhism, Jainism etc.]

• There is no notion of courtship in Islam where a man and woman can date each other for some time in the belief that they will come to know each other better - nor a concept of simply moving in

• Marriage is the institution to allow the relationship between man and woman lawfully - extra marital relations are categorically prohibited

Surat al-Isra 17:32

“And do not go near to fornication. It is an indecent act, an evil way”

Fyzee:

‘refers to marriage as a contract for the legalisation of intercourse and the procreation of children’

Al-Marghinani author of one of the most authoritative Hanafi works:

“for us, marriage is ownership, by way of owning sexual pleasure in a person and this right is established by marriage”

• Procreation, setting the foundations of Family

Marriage corresponds with the basic biological instincts of procreation - provides the most wholesome atmosphere possible for bringing up offspring

• The Shari’ah has prescribed clear rights and obligations on parent and their offspring’s i.e. Parents are legally responsible for the education and maintenance of their children

• The importance of the husband-wife relationship in the family i.e. The man with his strength attends to the ‘instrumental’ functions (protection, maintenance, dealing with matter outside the home) - The wife attends to caring for the children organising the home, creating its loving atmosphere

• Continuance of a Muslim community

Muslims should want to build a Muslim community, hence maximum attention is given to family affairs - if the foundation of the family is strong; the foundation of the community is strong

• Every family member is charged to carry out its responsibilities with ‘Taqwa’ (God consciousness, piety)

Surat an-Nisa 4:1

“O mankind, have taqwa of your Lord who created you from a single self and created its mate from it and then disseminated many men and women from the two of them”

• To further and continue the worship of Allah - it is Allah who sets up the rules to regulate the functioning of the family - to fulfil the greatest purpose i.e. the worship of Allah (‘Ibadat’)

Stipulations/conditions in the marriage contract? Can you insert certain stipulations? Yes you can insert stipulations, there are certain types of stipulations which are valid and which are enforceable and there are certain types of stipulations which are themselves void but it doesn’t affect the contract of marriage and then there are those that void/invalidate the entire contract

IS MARRIAGE OBLIGATORY?

Is marriage mandatory? Is it an obligatory requirement?

• Marriage is recommended but for certain individuals it becomes mandatory and the following imams subscribe to this: hanbali, maliki and hanafi for example

• One of the conditions that is put forward by the maliki school is that if a person does not get married, it will lead to unlawful sexual relations and if that is likely to happen then it is said that its obligatory

• Imam Shafi is considered to be the principle architect when it comes to the formation of sources...