Marriage and Divorce
Marriage, as a social institution, is essentially a civil
contract. And as a civil contract it rests on the same footing as other
contracts. Its validity depends on the capacity of the contracting parties,
which according to Islamic law, consists in having majority (bulugh) and
discretion. Mutual consent and public declaration of the marriage contract are
its essentials. The law does not insist on any particular form in which this contract
is entered into or on any specific religious ceremony, although there are
different traditional forms prevalent amongst the Muslims in different parts of
the world and it is regarded advisable to conform to them. As far as the
Shariah is concerned, the validity of the marriage depends on proposition on
one side (ijab) and acceptance (QubuI) on the other. This offer and the
acceptance can take place directly between the parties, or through an agent
(Wakil). In a traditional Muslim marriage the bride's consent is procured
through her representative. Normally there are at least two witnesses to this
matrimonial contract, entered into at a family ceremony. There is also a dower
(mahr) which husband pays to the wife and which is for her sole and exclusive use
and benefit. This last (i.e. dower) is an important part of the scheme, but it
is not essential for the legality of the marriage that its amount must be
pre-fixed. As such its absence would not render the marriage invalid, although
husband is expected to pay it according to custom.
Being a civil contract, the parties retain their personal
rights as against each other as well as against others. The power to dissolve
the marriage-tie rests with both parties and specified forms have been laid
down for that.
Marriage in Islam is not a temporary union and is meant for
the entire span of life. Dissolution of marriage is, however, permitted if it
fails to serve its objectives and has irretrievably broken down.52
Family arbitration is resorted to before final dissolution.
This has been laid down in the Quran and the Sunnah. If this fails, then steps
are taken for dissolution of the marriage. There are three forms of
dissolution: divorce by the husband (talaq), separation sought by the wife
(KhuIa) and dissolution of the marriage by a court of an arbiter. Detailed laws
and by-laws have been laid down by the Quran and the Sunnah in respect of these
and have been codified in the fiqh literature to regulate different aspects of
marriage and family life.
Video: About Marriage and Family life in Islam
Muslim marriage is usually a contracted marriage. Although marriage is primarily a relationship between the spouses, it, in fact, builds relationships between two families, and even more. That is why other members of the family, particularly the parents of the spouses, play a much more positive role in it. Consent of the bride and the bridegroom is essential, in fact, indispensable.53 Despite the fact that free mixing of the sexes is forbidden, it is permitted for the intending partners in marriage to see each other before the marriage, what however stands out prominently is that marriage in Muslim society is not merely a private arrangement between the husband and the wife. That is why the whole family contributes effectively towards its arrangement, materialisation and fulfillment.
The Way Marriage is Contracted
No specific ceremony is prescribed for marriage. In
principle it has been stressed that marriage should take place publicly. Other
members of society should know of this development, preferably in a way that
has been adopted by the society as its usage ('urf) Normally the Nikah
(contract of marriage) takes place in a social gathering where members of both
the families and other friends and relatives gather. Nikah can be performed by
any person. Usually in Muslim society there are persons known as Qadi who
discharge this responsibility. In the Nikah-sermon they recite from the Quran
and the Sunnah and invite the spouses to a life of God-consciousness, purity,
mutual love and loyalty and social responsibility. Then the marriage is
contracted wherein ijab (proposal) and QubuI (acceptance) are made before the
witnesses. After the Nikah the bride moves to the bridegroom's house and both
begin this new chapter of their life. After the consummation of the marriage, the
bridegroom holds a feast for the relatives and friends. The real purpose of
these gatherings and feasts is to make the event a social function and to let
the society know of it and participate in it. The Prophet has recommended the
people to hold these celebrations with simplicity and to share each others joy.
He said:
"The best wedding is that upon which the least trouble
and expense is bestowed."55 And that: "The worst of feasts are those
marriage-feasts to which the rich are invited and the poor left out. And he who
refuses to accept an invitation to a marriage feast verily disobeys God and His
Prophet."
The Structure of a Muslim Family
The structure of the family is three fold. The first and the
closest consists of the husband, the wife, their children, their parents who
live with them, and servants, if any.56 The next group, the central fold of the
family, consists of a number of close relatives, whether they live together or
not, who have special claims upon each other, who move freely inside the
family, with whom marriage is forbidden and between whom there is no hijab
(veil). These are the people who also have prior claim on the wealth and
resources of a person, in life as well as in death (as beneficiaries, known as
in matter of inheritance 'sharers', the first line of inheritors). The crucial
thing in this respect is that they are regarded as Mahram, those with whom
marriage is prohibited. This constitutes the real core of the family, sharing
each other's joys, sorrow, hopes and fears. This relationship emerges from
consanguinity, affinity and foster-nursing.57 Relations based on con sanguinity
include (a) father, mother, grandfather, grandmother and other direct
ascendants; (b) direct descendants that is, sons, daughters, grandsons,
grand-daughters etc; (c) relations of the second degree (such as brothers,
sisters and their descendants). (d) father's or mother's sisters (not their
daughter or other descendants).
Those based on affinity include (i) mother-in-law,
father-in-law, grandmother-in-law, grand-father-in-law; (ii) wife's daughters,
husband's sons or their grand or great grand daughters or sons respectively;
(iii) son's wife, son's son's wife, daughter's husband, and (iv) step-mothers
(step-father). With some exceptions the same relations are forbidden through
fosternursing. (al-ridaah).
This is the real extended family and the nucleus of
relationships.58 All those relations who are outside this fold constitute the
outer periphery of the family. They, too, have their own rights and obligations,
as is borne out by the fact that a number of them have been included in the
second and third lines of inheritors. The general structure of the family is
presented in a diagram on the next page.
The Position of Man and Woman
In the internal organisation of the family, a man is in the
position of the head and the over-all supervisor. In fact it is the eldest
member of the extended family who occupies the position of the head. A man's
major responsibilities lie outside the family. He is to support the family
economically and materially, he has to look after the relations of the family
with the rest of the society, economy and policy and he has to take care of the
demands of internal discipline within the family. A woman's major responsibilities
lie within the family. Here too, the eldest woman is regarded as the centre of
the family organisation but within each circle and fold the relative central
position is enjoyed by that woman who constitutes its core. A spectrum of
mutual rights and responsibilities has been evolved in such a way that balanced
relationships are developed between all. The Quran says.
"Men are in charge of woman, because Allah has made the
one of them to excel the other, and because they spend of their wealth (for
supporting them and the family)".59
"And they (women) have rights similar to those (of men)
over them according to what is equitable, and men have a degree (of advantage)
over them, Allah is Mighty, Wise."60
This is in the interests of proper organisation and
management within the family. There is equality in rights. There is demarcation
of responsibilities.
Man has been made head of the family so that order and
discipline are maintained. Both are enjoined to discharge their respective
functions with justice and equity.
The question of equality or inequality of the sexes has
often been raised. This issue is, however, the product of a certain cultural
and legal context, and is realty not relevant to the Islamic context where the
equality of men and women as human beings has been divinely affirmed and
legally safeguarded. There is differentiation of roles and responsibilities and
certain arrangements have been made to meet the demands of organisations and
institutions not on the basis of superiority or inferiority of the sexes but in
the lights of the basic facts of life and the needs of the society.61 Every
role is important in its own right and each person is to be judged according to
the responsibilities assigned to him or her. Their roles are not competitive
but complementary.
The Family and Society
The Family is a part of the Islamic social order. The
society that Islam wants to establish is not a sensate, sex-ridden society. It
establishes an ideological society, with a high level of moral awareness,
strong commitment to the ideal of Khilafah and purposive orientation of all
human behaviour. Its discipline is not an imposed discipline, but one that
flows out of every individual's commitment to the values and ideals of Islam.
In this society a high degree of social responsibility prevails. The entire
system operates in a way that strengthens and fortifies the family and not
otherwise.
Family Structure
The Family is protected by prohibiting sex outside marriage.
Fornication (Zina) as such has been forbidden and made a punishable offence.
All roads that lead to this evil are blocked and whatever paves the way towards
it is checked and eliminated. That is why promiscuity in any form is forbidden.
The Islamic system of Hijab is a wide-ranging system which protects the family
and closes those avenues that lead towards illicit sex or even indiscriminate
contact between the sexes in society. It prescribes essential rules and
regulations about dress, modes of behaviour, rules of contract between the
sexes and a number of other questions that are central or ancillary to it.
The finer qualities of life have been given every
encouragement, but they have, been torn from their carnal or sensate context
and oriented towards what is noble and good in human life. A number of
preventive measures have been taken to protect the family from influences that
may corrupt or weaken it a moral and social climate. Some of these measures are
in the nature of moral persuasions, others take the farm of social rules and
sanctions; and same take the form of law whose violation entails exemplary
punishments. All these protect the institution of the family and enable it to
play its positive role in the making of Islamic society.
Marriage and the family in Islam should be studied and understood
in the context of the scheme of life Islam wants to establish. They cannot be
understood in isolation. The concept of man and the family which Islam gives is
in conflict with the concept of man and the family that is prevalent in the
West today. We do not want to be apologetic at all. We refuse to accept the
allegedly value-neutral approach that willy-nilly fashions the life and
perspective of man in the secular culture of the West today. We think the
disintegration of the family in the West is, in parts, a result of confusion
about the place and the role of the family in society and about the purpose of
life itself. If the objectives and values of life are not set right, further
disintegration of this and other institutions cannot be prevented. The tragedy
of our times is that changes are being imposed upon man under the stress of
technological and other external developments and the entire process of change
is becoming somewhat non-discretionary and involuntary. In an age in which
freedom is worshipped like god, man is being deprived of the most important
freedom - the freedom to choose his ideals, values, institutions and patterns
of life. One of the greatest tasks that lie ahead is restoration and
rehabilitation of this freedom of choice and its judicious and informed use to
set the house of humanity in order. Non-human and amoral forces be they of
history or technology must not be allowed to decide for man. Man should decide
for himself as vicegerent of God on the earth. Otherwise, whatever be our
achievements in the fields of science and technology, we shall drift towards a
new form of slavery, and man's forced abdication of his real role in the world.
This we all must resist at least all those people who believe in God and as the
existence of a moral
order in the Universe.
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From
Family Life in Islam
Khurshid Ahmad
CHAPTER IV
THE FAMILY IN ISLAM:
STRUCTURE, PRINCIPLES AND RULES
Family Life in Islam-Marriage and Divorce
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