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Pearl And Menski Notes

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Muslim Family Law by Pearl and Menski

* Wife has duty to obey and respect her husband. He has the right to correct and punish her when she refuses to fulfil this duty.

* Generally a husband only exercises this right as a last resort. Quran states "Men are in charge of women by right of what Allah has given one over the other and what they spend for maintenance from their wealth. So righteous women are devoutly obedient, guarding in the husband's absence what Allah would have then guard. But those wives from whom you fear arrogance, first advise them; then is they persist, forsake them in bed and finally, strike them. But if they obey you once more, seek no means against them" - 4:34.

* Only resort to physical violence against wife after using words and withholding relations failed to restore martial harmony. Many of the Prophet's teachings show that inflicting violence on one's wife is highly disfavoured. "The most perfect man in his faith among the believers is the one whose behaviour is most excellent; and the best of you are those who are the best to their wives" - Salihin Hadith 628. Laws in relation to marriage: * Considered more of an act of worship than solely a relationship. Considered to be a solemn and sacred bond and contract between the bride and groom.

* Moral safeguard. Seen as the right and moral thing to engage in.

* Also a social necessity. Through marriage, families are established and the thinking is that family is the fundamental unit of society.

* Belief is that the institute of marriage is an outlet for innate instincts.

* Nikkah - strong covenant.

* Two main purposes of marriage:

* 1)Preservation of species and continuation of human race. Quran surah 4 verse 1 - O Mankind, be careful of your duty to your Lord who created from you a single soul from who he created a mate.

* 2) Spiritual and legal foundation for the family. Through this institution the relationship between the parties becomes lawful and provides a legitimate outlet for recreation and procreation. Act of intimacy that takes place within the confines of marriage is considered to be natural and good.

* Generates and sustains love, kindness, compassion, mutual confidence, solace etc.

* Lays a spiritual and legal foundation for raising the family. Children born from this union are legitimate and have rights.

* Marriage in Islam is recommended as a religious requirement hadith about fulfilling one half of your deen.

* Another hadith about marriage being Sunnah and you shouldn't stray from the path of Sunnah.

* Islamic law maintains certain requirements for a marriage contract to be valid and binding, prescribes rights and duties for the parties to a marriage contract, and restricts the freedom to marry in certain circumstances.

* Distinction in Islamic law between nikkah and nikkah mutah - latter is temporary marriage which is practised by the Shias, ithna asharis. Marriage as an obligation: * Marriage is recommended, but for certain individuals it becomes mandatory. Hanafi, Hanbali and Malikis subscribe to this.

* Maliki says that if a person doesn't get married it will lead to unlawful sexual relations, and if that is likely to happen then it becomes obligatory for them to get married.

* Imam Shafi says marriage is mubah - permissible.

* Celibacy - not permitted in Islam. Hadith of marriage is my sunnah. Mut'ah - temporary marriage: * Meaning of the term literally means enjoyment or use.

* Marriage for a fixed period of time - as a form of marriage, it's status is forbidden under Sunni schools, but some Shia schools regard it as a legitimate union.

* Institution of mut'ah was fairly common in pre Islamic Arabia.

* Essentially all schools of law regard it as forbidden, apart from the Ithna Asharis.

* Zaydis don't recognise it, and Ismailis don't recognise it. Amongst the Ithna Asharis, if it is to be entered then certain conditions need to be met.

* Needs to fulfil the proper contract, dower etc and any children that are a result of this type of marriage are legitimate and they can inherit as lawful children of a marriage.

* In Iraq they don't say it is batil or fasid, but say without validity. This protects the offspring of such a union against total loss of status. The nikkah and registration: * Pearl and Menski - a muslim marriage is a solemn, civil contract between a man and a woman.

* Surah 30 verse 21 - among his, his signs is that he created spouses for you so that you might find tranquility in them. And he has placed affection and compassion and these are certainly signs.

* Offer, ijab, and acceptance, qabul, is required. No particular form, but as long as the intention is clear.

* Must take place in the same meeting but the parties do not have to be in each other's presence.

* Parties must have capacity to create a contract. Guardians can enter into martial contracts on behalf of minors who lack capacity. Offer and acceptance must be attested by two adult male Muslim witnesses - according to the Hanafis, Shafis and Hanbalis.

* Malikis and Ithna Ashari's say the presence of witnesses is recommended but not mandatory. Maliki say this is only allowed provided sufficient publicity is provided to the marriage.

* According to the Hanafi school it is considered sufficient you have two adult males, or a man and two women.

* Tunisian Muslim marriage law requires that the witnesses can be either male or female. Noticeable differences in relatively recent times.

* Most countries do not specify gender or religion when it comes to witnesses. Art 2.1 of Indonesia's Marriage Act, art 13 s4 of Morocco's Mudawana, art 15 of Muslims Personal Law in Philippines.

* Mainstream opinion is that the witnesses have to be Muslims. Recently a new contract has been drafted which was devised by an organisation referred to by the Muslim Parliament of Great Britain which was subsequently taken up by other organisations.

* Classical position, recent ones, and much more recent ones.

* Case of Shahzada Begum and Abdul Hamid 1950 - occurred in Pakistan, was to do with witnesses. Courts observed that a marriage can't be invalidated merely on account of witnesses.

* Maliki position - first is the role of the wali, second is the dower, third is the bride and groom must neither be in iddat or not in the state of ihram, and together the sighah.

* Shafi'i - have the sighah, the wali, the wife and husband, but there's also an addition of the witnesses.

* Parties must agree on acceptable mahr to be paid to the bride by the groom. Can be anything that has value under Islamic law, including money or property.

* Must be from a halal object or it must come from a halal source of wealth under the large umbrella of Islam. Parties can agree to an immediate or deferred payout.

* Foregoing elements are strictly required in order to create a binding martial contact. If any are missing then the marriage contract is voidable at either party's discretion.

* You can insert particular stipulations into a contract. Some are valid and enforceable, but some are themselves void but doesn't

affect the contract. And there are some the invalidate the whole contract.

* Muslim marriage sought to regularise relations between the sexes. Nasir 1990 - the lawful entitlement of each of the parties thereto to enjoy the other in a lawful manner.

* Nasir says that the presence of witnesses makes the difference between lawful wedlock and fornication.

* Anderson and Coulson state that those formalities which are usually attendant upon a Muslim marriage such as the performance of the ceremony in the presence of a religious official like the Imam of the mosque, are matters of customary practice and in no sense legal essentials.

* Proof of such forms of celebration of a marriage can be evidence to show the existence of the marriage when it was done entirely orally.

* This doesn't fit into society today and official registration is considered to be highly important.

* Attempts to introduce registration procedures have been met with opposition. Most Muslim countries have facilities for registration of marriages but non-compliance with them involves criminal sanctions, and doesn't invalidate the marriage.

* In Egyptian law a device has been used to remove the ability of the courts to adjudicate over matrimonial disputes, inheritance problems etc in cases where a marriage hasn't be registered.

* Islamic concepts of marriage have been joined with local traditions to created South Asian Muslim marriage customs.

* Fyzee says that there are no special rites, no proper officiates or formalities.

* South Asian added to the elements of a contractual format of the marriage.

* Recitation of the Quran has no legal significant. Mahmood says that it is unnecessary as far as legal theory is concerned, but has social significance and adds solemnity to the occasion and to the relationship and the families.

* Feasting and involvement of representatives of the spouses and mullahs are additional features - Mahmood.

* But as it is fully established as the marriage procedure it has come to have evidence value and is recognised by the courts.

* Local variations of such practices and can't assume that all follow the same customary pattern.

* Mahmood - list of factors which could constitute proof of a Muslim marriage - registration of marriage, written record of the marriage, evidence of a kazi that he was present at the marriage and evidence of witnesses who can testify to the nikkah.

* In Pakistan, registration of Muslim marriages was introduced by section 5 of the Muslim Family Law Ordinance 1961. When read there isn't a definite legal requirement, therefore it only

encourages Muslims to register their marriages. Non-compliance may be penalised.

Nikah: -

Nikah = Muslim marriage ceremonyThe Islamic system of Muslim marriage sought to regularise relations between the sexes.Muslim definitions of marriage therefore emphasise 'the lawful entitlement of each of the parties thereto enjoy the other in a lawful manner'Fyzee says the nikah is a contract for the legalization of intercourse and the procreation of childrenPearl and Menski provide in their text that a muslim marriage is in essence a solemn civil contract between a man and a woman.Referring to a leading case, Fyzee stresses that marriage among Muhammadans is not a sacrament, but purely a civil contract.However religious elements as well as a mere matter of contractual arrangement

Formal requirements: -

The nikah is effected quite simply by the two essential elements of offer and acceptanceThe declarations which must be made, conceptually 'at the same meeting' are pronounced by the parties themselves, or by an attorney acting on their behalf, or by their guardians when they lack the capacity to contract themselves in marriage.First speech constitutes an offer and second, an acceptanceNasir emphasizes that mutual hearing and understanding of the offer and acceptance are essential to establish a marriage contract - muslim law has therefore made provisions for

contracting marriages in different languages and even in sign languages.Another essential element of a valid muslim marriage contact, except for shi'as is the presence of witnesses.Nasir mentions that this element of publicity with regards to witnesses makes the difference between lawful wedlock and fornication.The particulars of the requirement for witnesses depends on the school of thought, but the general rule is that there must be either two males or one male and two femalesCoulson: 'Those formalities for example religious and customary ceremonials are usually attendant upon a Muslim marriage, such as the performance of the ceremony in the presence of a religious official like the imam of the mosque, are matters of customary practice and in no sense legal essentials'However we can note that proof of such celebration of a muslim marriage may become part of the evidence required to demonstrate the existence of a particular marriage in law - this is important since there may be no written evidence of the simple contractual arrangements, which may have been entirely oral
??Although it may be entirely oral, because of complex and highly mobile societies today, to have definitive formal proof of the existence such as a contract is better
??For example, In Egyptian law, a device has been employed to remove the ability of the courts to decide over matrimonial disputes, inheritance problems and the like, in cases where a marriage has not been registered.

Capacity: When considering questions relating to the capacity of persons to contract a valid Muslim marriage, we find three issues:

1. The age of the spouses

2. The question of consent, i.e. whether a minor spouse can contract himself or herself into marriage or whether a guardian of some kind is required

3. The so called option of puberty - important issue


The general rule is that both parties to the marriage must possess legal capacity - emphasizing that under modern state laws legal capacity for marriage need not be the same as full legal capacity or the age of majorityThe reason for the difference between legal capacity for marriage and full legal capacity is that classical Islamic law provides that every Muslim of sound mind who has reached puberty has thereby attained majority; Muslim law is therefore, not in principle opposed to what modern jurists call 'child marriage'.In Hanafi law, the general rule is that a person can contract a marriage as soon as he or she was attained the age of puberty.Emphasising that celibacy is not considered a virtue in Islam, Doi relates that the prophet orders Muslims to get married as soon as they can.A key argument for early marriages is, the avoidance of any form of extra-marital relations, which would fall under the prohibitions of zina.In Muslim law, the presumption is that puberty is reached at 15 years old, but evidence can be produced to show that it has been reached earlier than this; Fyzee tells us that minimum ages would appear to be 12 years old in the case of males and nine years old in the case of females.Nasir addresses the custom of pre arranging marriages while the parties concerned are still very young - he emphasizes that such practices are not in accordance with the shari'a and often conflict with the laws of modern states, so this may even become a crime.

* Nasir references emotionally charged issues in relation to marriage when the parties are young. Emphasises that it isn't in accordance with shariah and conflicts with the laws of modern states too so it could even be a crime. Evident from cases in Britain where child marriage has given rise to legal intervention.

* He argues that guardianship, even with the right of compulsion, isn't intended to coerce any party into acceptance of another in wedlock but to guard their best interests. Even that authority isn't absolute, it is subject to appeal before the judge who hold the welfare of the person in question as of paramount importance.

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