Marriage in Islam: Considered from a Legal Point of View
By Dr. Ahmad Shafaat
The Right of Free Choice
From a legal point of view Islam views marriage as an 'aqd or contract. Like any other contract the marriage contract requires full and free consent of the parties concerned. The parents or guardian of any of the parties may give advice, choose a marriage partner or use persuasion, but the final decision to enter into a marriage must be the result of a free choice on the part of each partner, even though this freely made choice may consist of nothing but accepting the choice of one's parents or guardian. This right of free choice is fairly well recognized in the case of men but (unfortunately) not in the case of women. In the Holy Qur'an we read:
"Do not inherit women against their will." (4:19)
And in Hadith we find traditions like the following:
Khansa bint Khidhan who had a previous marriage, related that when her father married her and she disapproved of that, she went to the Messenger of Allah and he revoked her marriage. (Bukhari, Ibn Majah)
A [girl who was not married] came to the Messenger of Allah and mentioned that her father had married her against her will, so the Prophet allowed her to exercise her choice. (Abu Da'ud, on the authority of Ibn 'Abbas)
Just as any adult can enter into any legal contract, so also any adult man or woman can arrange his or her own marriage, provided that during the process of arranging the marriage there is no sexual contact, in other words, there is no dating in the North American style. It is well known that Khadijah, the Prophet's first wife arranged her own marriage with the Prophet. It is true that this happened before sayyadna Muhammad (pbuh) received prophethood. But if an arrangement by a woman of her own marriage were so shameful in the eyes of Allah as it is in the eyes of some Muslims, then Allah would have somehow prevented His Messenger from such a marriage. Moreover, there are some ahadith which show that even after receiving Prophethood sayyadna Muhammad (pbuh) did not disapprove of women arranging their own marriages. We quote here one such hadith:
A woman came to the Messenger of Allah and offered herself to him (in marriage). When she had stood for a long time (without receiving an answer) a man got up and said: Messenger of Allah! Marry her to me if you have no need of her. He asked the man if he had anything to give her as dower (marriage gift), and when he replied that he had nothing but the lower garment he was wearing, the Prophet said: Look for something, even though it be an iron ring. Then when the man had searched and found nothing, Allah's Messenger asked him whether he knew anything of the Qur'an. When the man replied that he knew Surah so and so and Surah so and so, Allah's Messenger said: Go away, I give her to you in marriage. Teach her some of the Qur'an." (Bukhari and Muslim on the authority of Sahl bin Sa'd)
In this hadith a woman is arranging her own marriage but the Prophet does not rebuke her or admonish her in any other way. Thus while it may not be the best thing for a woman to do, if she wishes to she can make a marriage proposal for herself without being blameworthy in the eyes of Allah.
Terms of the Marriage Contract
What are the terms involved in the marriage contract? This contract involves two things:
At the time of the marriage both partners should have the fullest possible intention of keeping the marriage commitment for life, although under some extreme circumstances it may perhaps be possible to enter into a marriage contract on a temporary basis (3).
Terminating the Marriage Contract
Even though the marriage commitment is for life, should it so happen that after marriage the two partners find it impossible to live together, then Islamic law provides for the termination of the marriage contract. The termination of the marriage contract can be initiated by any party which has decided that the other party cannot or will not satisfactorily fulfill the commitment implicit in the marriage contract, namely, to provide enough physical, emotional, psychological and spiritual happiness. It is evident that the judgment as to whether a marriage partner is getting enough satisfaction out of his or her marriage is a subjective one and therefore belongs entirely to the partner himself or herself. Consequently, for the dissolution of marriage Islam does not require that a partner prove to some authority such as a court that there has indeed been a failing on the part of the other partner in the fulfillment of his or her marital obligations. It is enough for the dissatisfied partner to say that he or she can no longer love or respect the other partner to be able to continue living with him or her. Third parties such as relatives, the community, etc. can and indeed should (4:35) get involved at some stage of marriage difficulties and try to prevent the break-up of the marriage through counseling, etc.; but they cannot oblige any marriage partner to remain in the marriage bond, as for example the Catholic church or the Hindu tradition that obliges couples to remain tied in marriage until one of the partners dies.
A man can on his own dissolve the marriage by following a prescribed procedure, the details of which need not concern us here. A woman can dissolve the marriage by asking the husband to divorce her and if he refuses she can go to court which should arrange the terms of dissolution as regards to compensation and order the husband to dissolve the marriage (4). To avoid this procedure the woman can include in the marriage contract the condition that she can dissolve the marriage without having to go to court.
The party which initiates the divorce may have to pay some compensation to the other party. This compensation may be the return of the marriage gift in the case of a woman initiating the divorce (5) and payment of an alimony in the case of a man taking that step (6). Again, the details of these matters are out of the scope of this article.
The Degree by Which the Husband has Greater Right
In the above outline of the legal view of marriage in Islam, man and women are completely equal partners except in the following respects:
1) Both parties have equal responsibility to provide physical, emotional, psychological and spiritual happiness to each other, but men generally have the added responsibility to provide for the economic needs of the wife.
2) In case the husband initiates divorce, he is obliged by religious law to pay some maintenance expenses (2:241). This prescribed alimony belongs to the wife by right. However, when the woman initiates the divorce she does not pay any compensation to the husband as requirement of religious law; she need at most return part of what she received from the husband as dower if such payment is helpful in an amicable settlement. (2:229)
3) A man can divorce his wife on his own while a woman needs to go through court or introduce into the marriage a clause giving her the right to divorce her husband.
In regard to the above differences the Holy Qur'an says:
"And (wives) shall have rights similar to those (the husbands have) over them, in accordance with justice, (except that) husbands' rights are a degree greater." (2:228)
"Husbands are guardians (qawwamun) of wives because Allah has favoured some more than others and because they (i.e. husbands generally) spend out of their wealth." (4:34)
The first of the above two Qur'anic statements occurs in a long passage dealing with divorce and should be understood in relation to that context. The degree by which husband's rights are greater should therefore be understood as the degree by which the husband is freer than the wife to break the marriage bond. This, however, is not a very big degree since as stated earlier the wife can get out of the marriage bond whenever she wants to, practically without giving any reason. It is only that she has to follow a more indirect procedure.
The second Qur'anic statement refers to the greater responsibility husbands generally have as protectors and providers of women and to the greater say this gives them in making decisions.
The fact that husbands' rights are a degree greater does not effect the claim that in Islam men and women have equal rights, since men's greater rights within the marriage relationship do not mean that men also enjoy greater rights outside that relationship and since within the marriage relationship men's greater rights are completely justified by their greater responsibility. We must remember here that whenever we talk about members of a society having equal rights it is never precluded that members of that society cannot freely enter into terminable arrangements in which some take greater responsibility and therefore also have greater rights. Equality of rights can only be asserted on the assumption of equality of responsibility. This principle sometimes works in favour of women. For example, as mothers women give much more to children than do men as fathers and so Islam recognizes greater rights of mothers over children than of fathers except where economic considerations demand otherwise.
(1) See the hadith quoted earlier in which the dower for marriage consists of the husband teaching a portion of the Holy Qur'an to the wife. In the following hadith it consists of the husband accepting Islam:
"Umm Sulaym had become a Muslim before Abu Talha and when he asked her in marriage she said: "I have become a Muslim. so if you also become one I shall marry you." Abu Talha accepted Islam and that was the dower arranged between them." (Nasa'i on the authority of Anas)
This hadith also supports the view that men and women can arrange their own marriage.
(2 ) See Qur'an 4:34. The wife can, however, with her own free will choose to share part of the economic burden. Khadijah helped the Prophet and Asma, the daughter of Abu Bakr, helped her poor husband Zubayr.
(3) This is the shi'a view. Sunni traditions admit that temporary marriage was at some point in time allowed in Islam but say that this was later forbidden.
(4) See Qur'an 2:229 in the light of the following hadith:
"The wife of Thabit bin Qays came to the Prophet and said, "Messenger of Allah, I do not reproach Thabit bin Qays in respect of character or religion but I do not want to be guilty of kufran regarding Islam (meaning that she did not like him enough as a marriage partner and so was afraid she might not give him the respect and love due to a husband)." Allah's Messenger asked her if she would give back to Thabit his garden, and when she replied that she would, he told him to accept the garden and declare the divorce." (Bukhari, Nasa'i, Tirmidhi, Ibn Majah and Bayhaqi, on the authority of Ibn Abbas)
(5) See the hadith quoted in the previous note. The wife is not obligated by religious law to pay the compensation and need only do so as part of a settlement with the husband. (Qur'an 2:229)
(6) "For divorced women a reasonable maintenance (should be provided). This is a duty on the righteous." (Qur'an 2:241)
First published in Al-Ummah, Montreal, Canada in 1984. Copyright, Dr. Ahmad Shafaat. The article may be reproduced for Da'wah purpose with proper references.