Pearl And Menski Notes

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...

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