Nikah: Marriage in Islam

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In Islam, marriage is a contract between a man and a woman to live as husband and wife. A formal, binding contract is considered integral to a religiously valid Islamic marriage, and outlines the rights and responsibilities of the husband and the wife.  The marriage must be declared publicly.  Divorce is permitted.

In addition to the usual marriage until death or divorce, there is a different fixed-term marriage known as Nikah al-Mut’ah (“temporary marriage”) permitted only by Twelvers (a branch of Shia Islam) for a pre-fixed period.

Nikah al-Mut’ah (“pleasure marriage” or “short-term marriage”), is a fixed- term contractual marriage in Shia Islam.  It is automatically dissolved upon completion of its term.  Marriage in Islam including the Nikah al-Mut’ah, is contractual. Mu’tah has the same rulings and Mahr (“dowry”) as conventional marriage.

All the rights are given to the contractual wife while she is within the contractual period. The mut’ah offspring has the same rights as the conventional marriage offspring. There are some basic rules and requirements which must be fulfilled for a justified Nikah al-Mut’ah; for example a virgin girl cannot contract a Mut’ah without permission from her father or grandfather.

Shia and Sunnis agree that Mut’ah was legal in early times, but the Sunnis consider that it was abrogated.  Ibn Kathir writes:

“There’s no doubt that in the outset of Islam, Mut’ah was allowed under the Shariah” (Islamic Law).

Temporary marriage was a custom of pre-Islamic Arabs. It was used as a convenience shield, useful in the case where a man had to travel away from home for long periods of time, or was not able to commit fully to marriage.

In the Hadith  (statements and traditions of Prophet Muhammad, salla alaiyhi wa salaam) collection of Tirmizi, Abdullah ibn Abbas narrates:

“Temporary marriage was at the beginning of Islam. A man comes by a town where he has no acquaintances, so he marries for a fixed time depending on his stay in the town, the woman looks after his provisions and prepares his food, until the verse was revealed: “Except to your wives or what your right hand possess.”

A majority of Sunnis believe that Prophet Muhammad later abolished this type of marriage at several different large events, the most accepted being at Khaybar in 7AH(629 CE) Bukhari 059.527 and at the victory of Mecca in 8 AH(630 CE).  Most Sunnis beleive that Umar later was merely enforcing a prohibition that was established during Prophet Muhammad’s (saw) time.

Shi’a Muslims believe that Umar ibn al-Khattab abolished it, not the Prophet.  He did it during the third year of his reign, 15 AH (637 CE), 6 years after the revelation of the verse 4:24, in the Hadith of Umar’s speech of forbidding Mut’ah, but since he, according to them, had no authority to do so, Umar’s prohibition seems to have been temporary and applicable to one place, hence may be ignored (Muslim 2801).

Shi’a Muslims believe that this institution was established by God through Prophet Muhammad(saw) in the Qur’an.  Its single mention in  the Qur’an is verse 4:24. Tafsir:

“Then give those of these women you have enjoyed the agreed dower” was revealed on the subject of the Mut’ah marriage.”

Shi’a Muslims have “concensus”(ijma) on interpretation of the following verse in the Qur’an:

“And all married women (are forbidden unto you) save those (captives) whom your right hand possess.  It is a decree of Allah for you. Lawful unto you are all beyond those mentioned, so that ye seek them with your wealth in honest wedlock, not debauchery. And those of whom ye seek content (by marrying them), give unto them their portion as a duty. And there is no sin for you in what ye do by mutual agreement after the duty (hath been done). Lo! Allah is ever Knower, Wise. (Sura 4:24).

Al-Tabari, in his Tafsir (commentary), writes under this verse a Hadith from Mujahid: “The phrase “Then give those these women you have enjoyed the agreed dower” means the temporary marriage'”

But Sunni commentators disagree in their Tafsirs, arguing the phrase “Then give those of these women you have enjoyed the agreed dower” refers to permanent marriage.

Mut’ah is one of the distinctive features of the Ja’fari Jurisprudence.  No other school of Islamic Jurisprudence allows it. According to Imam Jafar as Saddiq, “One of the matters about which I shall never keep precautionary silence (taqiyya) is the matter of Mut’ah.”

According to Shi’a scholar Ali Komenei:

“Temporary marriage like permanent marriage, requires a contract.  Moreover there is no difference between permanent marriage and temporary marriage except in some aspects of the law, such as there is no divorce in temporary mirriage – it terminates with the expiration of the time period.  Likewise, neither spouse in a temporary marriage inherits from the other. The temporary marriage is as follows: The female says: “I marry myself to you for the specified dowry (mention the amount) and for the specified time period (mention the time period)”.  Then the man says: “I accept'”

Nikah Misyar:

Nikah Misyar is a Sunni Muslim Nikah (Travel Marriage) (marriage) carried out via the normal contractual period, with the specificity that the husband and wife give up several rights by their own free will, such as living together, equal division of nights between wives in cases of polygamy, the wife’s right to housing, and maintenance money (“nafaqa”), and the husband’s right of homekeeping, and access etc.

Essentially the couple continue to live separately from each other, as before their contract, and see each other to fulfill their needs in a permissible (halaal) maner when they please.

Sheikh Ahmed al-Kubaissi from the United Arab Emirates thinks there is no problem with “misyar mirriage.  It fulfils all the demands of Islamic law.  Nevertheless, he describes it as contrary to the norms of decent Islamic life.

Some people consider that the Misyar marriage can meet the needs of young people whose resources are too limited to settle down in a separate home; divorcees, widows, widowers, who have their own residences and their own financial resources but cannot, or do not want to marry again according to the usual formula; and of slightly elder people who have not tasted the joys of marriage.

Islamic Lawyers (Mujtahids) add that this type of marriage fits the needs of conservative countries which punishes “zina” (fornication) and other sexual relationships which are established outside of a marrige.  Thus, some Muslim foreigners working in the Persian Gulf countries prefer to engage in the misyar marriage rather than live alone for years.  many of them are actually already married with wives and children in their home country, but they cannot bring them to the region.

Islamic scholars like Ibn Uthaimeen or Al-Albani claim, for their part, that misyar marriage may be legal, but not moral.  They agree that the wife can at any time, reclaim the rights which she gave up at the time of of the contract. But, they are opposed  to this kind of marriage on the grounds that it contradicts the spirit of the Islamic law of marriage and that it has perverse effects on the woman, the family and the  community in general.

For Al-Albani, misyar marriage may even be considered as illicit, because it runs counter to the objective and the spirit of marriage in Islam, as described in this verse in the Qur’an:

“And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts).”

Al-Albani also underlines the social problems which result from the “misyar” marriage, particularly in the event that children are born from this union.  The children raised by their mother in a home from which their father is always absent, without reason may suffer difficulties. The situation becomes even worse if the wife is abandoned or reputiated by her husband, with no means of substance, as usually happens.

“Shaykh Ibn Baaz” (may Allah have mercy on him) was asked about Misyar marriage; this kind of marriage is were the man marries a second, third or fourth wife and the wife is in a situation that compels her to stay with her parents or one of them in her own house, and the husband goes to her at various times depending on the circumstances of both.  What is the Islamic ruling on this type of marriage?

Shaykh Ibn Baaz replied”

“There is nothing wrong with that if the marriage contract fulfills all the conditions set out by Shariah, which is the presence of the Wali (guardian) and the consent of both partners, and the presence of two witnesses of good character to the drawing up of the contract, and both partners being free of any impediments, because of the general meaning of the Prophet ( peace and blessings of Allah be upon him): “The conditions that are most deserving of being fulfilled are those by means of which intimacy becomes permissible for you” and “The Muslims are bound by their conditions.”  If the partners agree that the woman will stay with her family or that her share of the husband’s time will be during the day and not the night, or on certain days and nights, there is nothing wrong with that, so long as the marriage is announced and not hidden.”

Shaykh Al-Albani was asked about Misyar marriage and he disallowed it for two reasons:

  1. That the purpose of marriage is repose as Allah says (interpretation of the meaning): “And among His signs is this, that He created for you wives from among youselves, that you may find repose in them, and He has put between you effection and mercy. Verily, in that are indeed signs for a people who reflect.”(al-Room 30:21).  But this is not achieved in this kind of marriage. 2) It may be decreed that the husband has children with this woman, but because he is far away from her and rarely comes to her, that will be nagatively reflected in his children’s upbringing and attitude.

As for Ibn Uthaymeen, he recognizes the legality of “misyar” marriage from the Shariah standpoint, but considers that it should be opposed because it has been turned into a real merchandise that is being marketed on a large scale by “marriage agencies”, with no relation to the nature of Islamic marriage.

Critics of this marriage observe, more generally, that this type of marriage usaully ends up in divorce.  As a result the wife finds herself abandoned , forced to lead a solitary life as she had before the marriage, but truamatized by the experience, while her social status and reputation degraded.

The proponents of the misyar marriage, though they recognize that it can result in problems,  observe that it doesn’t have a monopoly on them. The problems result, more generally, from the way in which people apply the rules of the Shariah.

Today, in a large number of Muslim countries, there are official family and marriage law codes whose provisions wouldn’t allow the conclusion of marriage of misyar type. However, in a number of Gulf States essentially, misyar marriage is accepted by the community and is usually arranged privately through a notary with no publicity.

Ijtihad:

Ijtihad is the making of a decision in Islamic Law (Sharia) by personal effort (Jihad), independently of any school (madhab) of jusisprudence (fiqh), as opposed to taqlid, copying or obeying without question.

Ijtihad is mainly associated with the Usuli Shia Muslim Jafari school of jurisprudence.  To be valid and accepted it has to be rooted in the Quran and hadith and it is required that no established doctrine rules the case. A Mujtahid is an Islamic scholar who is competent to interpret sharia by ijtihad. Whereas Ahkbari Shi’a Muslims outright reject ijtihad and do not imitate a mujtahid who practice ijtihad.

The Qu’ran commands ijtihad and the “Door of Ijtahad” was opened by Umar ibn al-Khattab.  Muslim scholar Muhammad al Tijani writes in his book “Then I Was Guided” that the first Companions to open the door of Ijtihad was the second Caliph, who used his discretion vis-a-vis the Quranic Text after the death of the Messenger of Allah (saw).

In early Islam it was common practice and later it integrated into early Islamic philosophy. It slowly fell out of practice in Sunni fiqh for several reasons, particulary due to the efforts of the Asharite theologians, most notably al-Ghazali whose book “The Incoherence of the Philosophers” was the most celebrated statement of the view that ijtihad was leading to errors of over-confidence in judgement.

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