Voices of Islam (140 page)
Authors: Vincent J. Cornell
The Qur’an repeatedly cites the universe as evidence of God’s existence and omnipotence. Naturally occurring pairs are an important part of the order of the universe: ‘‘He created the pair, male and female.’’ (Qur’an 53:45). ‘‘We have created everything in pairs that you might refl (Qur’an 51:49). In accordance with God’s command, Noah brought pairs of each species of animal onto the ark (Qur’an 11:49; 23:27). This universe of pairs extends to the human species as well: ‘‘Oh humankind! We have created you male and female, and have made you nations and tribes, that you may know one another’’ (Qur’an 49:13). ‘‘And God made [from a drop of sperm] the pair, the male and female’’ (Qur’an 75:39).
The Qur’an also notes a higher order of the male–female relationship beyond sexual fulfi lment. The lasting consequences of marriage, the feelings of togetherness, companionship, love, tranquility, and peaceful and mutually supportive interdependence are underscored in several verses. ‘‘Among [God’s] signs is that he created for you mates from yourselves so that you might fi d tranquility in them, and he put love and mercy between you. Therein are indeed signs for folk who refl t’’ (Qur’an 30:21). ‘‘[Women] are a garment for you and you are a garment for them. So lie down with them, and seek what God has prescribed for you’’ (Qur’an 2:187).
ELEMENTS OF THE ISLAMIC MARRIAGE CONTRACT
The Islamic marriage is founded on a contract that is rendered null and void when certain elements are absent. Shiite Muslims recognize two founda- tional elements to the marriage, Sunnis of the Hanafi and Maliki schools of jurisprudence recognize three elements, and Sunnis of the Shafi and Hanbali schools recognize four elements. All schools of Islamic thought agree that the fi two elements of the marriage contract, namely, the Formula and Personal Status, are mandatory.
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The Formula (Sigha)
A Muslim marriage is legalized by a contract (
‘aqd
), which consists of a declaration (
ijab
) and an acceptance (
qubul
). The woman ‘‘declares’’ that she is entering into a marital relationship with the man, and he ‘‘accepts’’ her as his wife. Different law schools propose different terminology for both the declaration and the acceptance. However, all agree that both the declara- tion and the acceptance must be uttered in a single session. Except for the Hanbalis, none insist on the order in which the declaration and acceptance are uttered. If a person knows the Arabic language, he or she can pronounce the formula in Arabic, otherwise the person can use equivalent terms in his or her own language. A mute is permitted to use sign language.
Personal Status (Mahall)
The personal status of the man and the woman should be free from legal impediments to their marriage as specified by the particular law school that they follow. The Malikis also include freedom from physical defects that may be detrimental to the marriage. In addition, the specific identity of the persons contracting the marriage must be clearly stated. Generic statements, such as ‘‘One of my daughters or sons is marrying one of yours,’’ uttered by the guardian are not acceptable. This nullifies the marriage contract.
Preferred Marriage Partners
Certain types of marriage partners are more preferred than others are, certain other types are strictly prohibited. For example, it is preferable for all Muslim men and women to marry their coreligionists. However, all of the Sunni legal schools agree that a man may marry a non-Muslim woman who is one of the ‘‘People of the Book’’ (
Ahl al-Kitab
). This includes Jews, Christians, and Sabeans (a sect that most Muslims believe no longer exists). Zoroastrians, certain types of Hindus, and Buddhists are accepted by some Muslims as ‘‘People of the Book’’ as well, but this is a matter of dispute. Shiite law only permits a temporary (
mut‘a
) marriage, not a permanent marriage between a Muslim man and a woman from the ‘‘People of the Book’’ (Ar.
kitabiyya
).
All schools of Islamic thought agree that a Muslim woman should not marry a man who is not ‘‘sufficient’’ (
kafi
) for her. The Shiites restrict the con- cept of sufficiency (
kafa’a
) to religion only; in other words, the man must be a Muslim. Thus, a Muslim woman is forbidden to marry a non-Muslim man until he becomes a Muslim by reciting the
Shahada
, the Islamic testimony of faith, before two witnesses. In addition to the requirement that the groom must be a Muslim, all four Sunni law schools require, to varying degrees, the
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following factors as part of the determination of sufficiency: lineage, profes- sion, free status (as opposed to slavery), piety, and property. In Sunni Islam, a woman may petition to divorce her husband if he cannot provide for his wife materially, in the way she was accustomed among her natal family.
Number of Marriage Partners
A Muslim woman is allowed to have only one husband at a time. However, the Qur’an specifies that a Muslim man may have as many as four wives at the same time, provided he could treat them equally. The Qur’an states: ‘‘If you fear that you cannot do justice to orphans, then marry from among women such as you like, two, three, or four. But if you fear you will not be fair, then one only; that is the safest course’’ (Qur’an 4:3). However, another verse of the Qur’an raises strong doubts as to the ability of the husband to meet the condition of equal treatment: ‘‘You will never be able to do justice among women, no matter how much you desire to do so’’ (Qur’an 4:129). For this reason, some modern scholars such as Fazlur Rahman (d. 1988) have concluded that, based on the dictates of the Qur’an, the established marital norm should be monogamy and not
polygyny,
in which a man has the right to marry more than one wife.
It seems that the Qur’anic permission to marry more than one woman may have been prompted by special historical circumstances in Medina at the time of the foundation of the fi t Islamic state. These circumstances may have included a surplus in the number of women with respect to men, the large number of widowed or separated wives because of battle losses and conver- sion to Islam from polytheism, and the unfair treatment of female wards by their guardians. One also imagines that for a man who physically ‘‘must’’ have more than one partner, polygyny safeguards his religion, his partner’s piety, and the status of their children. Other circumstances may justify the practice of polygyny as well. For example, if the first wife is bedridden or disabled for life, she may accept a second wife into the household because she is physically unable to provide for her husband’s needs. Furthermore, when one witnesses the frequency with which men of means leave their wives for younger women after the fi wife has spent her youth establishing the family, one might imagine that polygyny is better than divorce. Instead of losing everything, including her social status, by being divorced by the husband, the first wife can look forward to the prospect of being maintained in her own home with dignity and can still claim her husband’s attention half of the time.
Forbidden Marriages
Among the marriages that are forbidden in Islam, some are permanently forbidden and others are forbidden only temporarily. Marriages that are per- manently forbidden are based primarily on rulings contained in verses 22–24
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of
Surat al-Nisa’
(Sura 4, ‘‘The Women’’) of the Qur’an. Categories of people that Muslims are forbidden to marry under any circumstances are as follows:
Heathens and polytheists (Qur’an 2:221; 60:10)
Adulterers and fornicators
Close blood relatives
Mother
Stepmother
Grandmothers of any generation
Daughters and granddaughters of any generation
Sisters (whether full, consanguine or uterine)
Father’s sisters (including paternal grandfather’s sisters)
Mother’s sisters (including maternal grandmother’s sisters)
Brother’s daughters
Sister’s daughters
Son’s wife
Wife’s mother
Stepdaughter (The daughter by a former husband of a woman one has married if the marriage is consummated. However, if such a marriage was not consummated, there is no prohibition.)
‘‘Milk’’ relatives (a foster relationship based on the sharing of breast milk)
Foster mother
Foster mother’s sister
Foster sister
Categories of persons for whom temporary marriage prohibitions apply include in-laws and former wives who are in various stages of divorce or separation. For example, a man cannot marry two sisters or an aunt and a niece at the same time. He may marry a sister or a niece, however, if the wife dies before her sister or if the aunt dies before her niece. When a woman’s husband dies, she must not marry another husband until she has completed a waiting period (
‘idda
) of four months and ten days. This rule is to ensure the paternity and inheritance rights of any child that might have been conceived before the husband’s death.
When a man divorces his wife, he cannot remarry until after the
‘idda
waiting period is completed. If he divorces his wife irrevocably, he cannot
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marry her again unless she has first married another man, who also divorces her irrevocably after consummating the marriage. In such a case, the former husband would also have to wait until his former wife’s
‘idda
period has been completed. As in Western societies, a married woman cannot marry another man unless she obtains a divorce or unless her husband dies. In both cases, however, she must wait for the fulfi of the
‘idda
period before remarrying.
Besides the irrevocable divorce, a man’s marriage to his wife is invalidated in a few other cases as well. One of these cases is called
ila’
(forswearing). In such a case, the husband takes an oath in God’s name not to have a sexual relationship with his wife, either forever or for a period exceeding four months. If the husband does this, a judge (
qadi
) has the right to annul the marriage. In the case of
li‘an
(a repudiation or sworn accusation), the husband takes his wife before a judge and either accuses her of infidelity or denies being the father of their child. He must swear to this accusation four times in God’s name. The wife may also swear in similar manner that she is innocent. After a
li‘an
divorce, both parties are ineligible to have any further sexual contact with each other.
Li‘an
divorces tend to occur when a husband suspects his wife of infidelity but cannot prove his claim objectively. Although the wife might suffer damage to her reputation in such a divorce, she is not considered guilty of infi and thus is not subject to the severe punish- ments that may be inflicted in a case of proven infidelity. Finally, in the first century of Islam, some women were repudiated by their husbands through a pre-Islamic practice known as
zihar
. In
zihar,
the husband forswears a sexual relationship with his wife by declaring her to be ‘‘like his mother’’ or like any other female relative that is forbidden to him.
Zihar
repudiations were forbidden in Islamic law and resulted in the annulment of the marriage.
Guardianship (Wilaya)
The schools of Islamic jurisprudence generally agree that a Muslim woman who has not previously been married needs a legal guardian (
wali
) to enter into a marriage. The regulations of guardianship also apply to boys who have not yet attained adulthood, and to mentally incompetent men. The guardian may be the father or the father’s father (the position of the Hanafi Shafi and Ja‘fari schools of jurisprudence). If the father is not present, the guardian may be an elder brother. The mother has no guardianship except in the Hanafi school, which allows her to conclude a marriage contract in the absence of the father. In addition, among the Hanafi a woman of adult age may act in her own behalf. The legal schools disagree significantly as to the extent, nature, and duration of the guardian’s authority. In the Maliki, Hanbali, and Shafi schools, the approval of the guardian is one of the
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conditions (
shart
) of concluding the marriage contract. Hence, in these three schools, if the girl or the woman is a virgin, she does not have the right to conclude a marriage contract without her guardian’s participation irrespective of her age. This is justifi d on the ground that virgins lack experience with men and may be swayed by emotions in their decision to marry. She may act on her own behalf, however, if she has been married previously.
The other schools allow varying degrees of exception to the role of the guardian, and to the requirement of obtaining the consent of the female to be married, on the basis of her age and her virginity. In the Ja‘fari and Hanafi schools, the guardian’s permission is required only for a girl who has not yet attained adulthood, an incompetent or insane girl or woman, or a woman of advanced age. In both of these schools, a girl who has attained adulthood may marry whomever she wishes. However, the Hanafi give the guardian the right to annul the marriage contract of a young girl if, in his opinion, the condition of economic ‘‘suffi iency’’ (
kafa’a
) is not fulfi led. In Hanafi practice, a woman who has attained majority age can ‘‘marry down’’ in accor- dance with her own wishes. She may also petition a judge to act as her guard- ian and thus overrule the objection of her familial guardian if she deems such objections unfair. In actual practice, both the Hanafis and the Malikis have added cultural-based class and economic distinctions to the original piety- based articulation of the notion of ‘‘suffi ency.’’ The Shiites, on the other hand, view a woman who has reached puberty, whether virgin or otherwise, as a full legal person coequal with her male counterpart. She is considered legally competent to make her own marriage decisions and even to conclude her own marriage contract, regardless of the father or guardian’s approval, or of the social or economic status of the prospective spouse.
