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ISLAMIC MEDICAL EDUCATION RESOURCES 04

27.1 MARRIAGE, fiqh al munakahaat

By Professor Omar Hasan Kasule Sr.

27.1.1 PROSPECTIVE SPOUSE

Three conditions must be fulfilled in a prospective husband: adulthood, desire for marriage, and financial ability. The pre-conditions for the bride are less stringent than the male. The minimum age at marriage is 9 years. She must have a desire to marry. There are no financial conditions. Desirable characteristics in a spouse are religion, beauty, pedigree, lineage, wealth, social compatibility, and professional status. Religion is the most important. Looking at the prospective spouse is allowed and includes pre-marital screening for disease and genetic traits. Marriage proposals can be made by men or women. It is forbidden to propose when a previous proposal is still being considered or has been accepted. It is forbidden to make any marriage proposals, direct or allusive, during the period of waiting after a reversible divorce. It is forbidden for the prospective spouses to be secluded in private without a mahram.

 

27.1.2 FORBIDDEN MARRIAGES

Marriage is prohibited on the basis of blood relationship, breastfeeding from the same woman, difference of religion, and joining closely related in marriage to the same man. A Muslim cannot marry a polytheist. There are disagreements among jurists about marriage of people of the book. Mut'at, a marriage contracted with the knowledge that it is for a limited period, is forbidden. Tahliil, marrying and then divorcing a thrice-divorced woman to make her eligible to remarry her former husband, is forbidden.

 

27.1.3 MARRIAGE CONTRACT AND MAHR

There are 4 pillars of marriage: pronouncement and acceptance, the waly, the bride, and the groom. No marriage is valid without witnesses or a waly (guardian). The waly must be a close male relative, a Muslim, and of sound judgment. In the absence of a waly the Muslim judge or any other male authorized by the bride can act as waly. The groom must be a Muslim. The bride can be a Muslim or from the people of the book (Yahuudi and Nasaara). Marriage to a man or woman who is a mushrik or murtadd is forbidden. Marriage must be by free consent of both spouses irrespective of gender, age, or previous marital status. Marriage by coercion is invalid. Mahr is obligatory for validity of a marriage and makes sexual intercourse lawful. It is fixed by the bride before marriage and remains her. It is not returned in case of divorce of death of the husband if the marriage was consummated. Its payment can be delayed either in full or in part by mutual agreement of the spouses. The unpaid mahr is a debt that is due to be paid. Marriage must be made known publicly. A marriage feast, waliimat, is a highly recommended sunna. Conditions in the marriage contract are respected if they are not repugnant to the Law. Examples of acceptable conditions are stipulations about monogamy and country of residence. A marriage contract is invalid if contracted during hajj. Marriages contracted before conversion to Islam are valid in Islam. A batil marriage contract is void. Those involved are committing zina and their children are illegitimate. A fasid marriage contract is irregular and does not imply zina or illegitimacy of children.

 

27.1.4 CONJUGAL RIGHTS & OBLIGATIONS

Rights must be balanced against obligations. Both are mutual. The husband has a higher degree of responsibility and authority because of extra legal obligations. The husband and wife have mutual sexual rights. The financial obligations of the husband are mahr and nafaqat.  Failure to provide nafaqat is grounds for nullification of marriage. Unpaid nafaqat is treated as a debt. Nafaqat is suspended during the wife's rebellion, nushuuz. Nafaqat is obligatory in the period of ‘iddat except in the case of khulu’u. It continues for a divorced pregnant woman until delivery. By mutual agreement the divorced mother is entitled to wages for looking after the infant. Spouses are a source of confort, sakiinat, for each other. Mutual kind and tolerant treatment between the spouses is needed in marriage. Ill-treatment of the spouse is forbidden.. Mutual good treatment, husn al mu’asharat, is ordained. The wife can go out of the house for good reasons and with her husband’s permission. She can not go on long journeys without a mahram. The husband is entitled to leave the home during the day to work.

 

27.1.5 RIGHTS OF CHILDREN AND PARENTS

Children have rights protected by the Law. They have to be breast-fed. They have to be given a good name that will not embarrass them. They can not be deprived of inheritance. All children are entitled to equal treatment; however handicapped children can be singled out for preferential treatment. Parents have rights from their children that include: kindness, obedience, and honor. The rights of the mother are emphasized more than those of the father. Disobedience of parents is a major sin second only to polytheism, shirk. Parents must be respected even if they are non-Muslim. Insulting parents is haram. Parents must consent before their children can join jihad.

(c) Professor Omar Hasan Kasule Sr. 2004