LESSON 20
MARRIAGEA marriage contract in Islam has three indispensable elements: 1) a guardian, 2) a dower, which belongs to the bride, not to her guardian, and 3) two witnesses of good character.
The contract is made between the groom and the guardian of the bride, not directly with the bride herself. The ordinary matrimonial guardian is the father of the girl. He has the right to compel an unmarried daughter or one who was divorced before a full year of marriage to marry a man he chooses, but he may consult her if he wishes. The father may give her in marriage even before puberty (like `A'isha). If the daughter was married before for over a year, the father has no right to compel her. Moreover, if such a woman has a son, her son takes precedence over her father as her matrimonial guardian for any future marriage.
The father may appoint a testamentary guardian to act for him after his death. If there is no testamentary guardian, then the girl's brother becomes her guardian, and thereafter whoever is nearest among her relations on her father's side. If she has no relatives, any judicious man from her tribe or people may serve. As a last resort the sultan or chief may act as her guardian.
No guardian besides the father may force a girl into a marriage or give her in marriage before puberty. A testamentary guardian, however, may give in marriage a minor boy in his charge. The paternal right of compulsion remains the Sharī`a rule, although most modern Muslims do not follow it.
There are certain impediments to marriage in Islam, first of which are forbidden times. Anyone who is in the state of consecration for pilgrimage, anyone who is terminally ill, and a woman during the period of `idda after a previous marriage cannot contract a marriage. The `idda is a waiting period of three menstrual periods (or three months) for a divorcee, and four months and ten days for a widow. If the woman is pregnant her `idda lasts until the delivery of her child. The reason for the `idda is to remove any doubt as to who is the father of the child she bears.
Another impediment is blood relationship. Forbidden in marriage are: "1) your mother, 2) your daughters, 3) you sisters, 4) your paternal aunts, 5) your maternal aunts, 6) your brother's daughters, and 7) your sister's daughters" (Q 4:23a).
Another impediment is relationship by wet-nursing or marriage. Forbidden are:
1) your mothers by wet-nursing, 2) your sisters by having had the same wet-nurse [interpreted as any daughter of the nursing woman and any other female child nursed by her within two years of nursing the boy, even if he was given only one suck], 3) your mothers-in-law, 4) your stepdaughters living in your house with whose mothers you have had sexual relations; but if you have not had relations with their mothers, the daughters are not forbidden to you. Also forbidden are 5) you daughters-in-law, that is, wives of your physical (not adopted) sons, and 6) your wife's sister, unless you married her before you became a Muslim, and finally 7) the former wives of your fathers, unless you married them before you became a Muslim" (Q 4:23b).Moreover a hadīth records Muhammad to have prohibited marriage with women of any blood relationship to one's wet-nurse which would be forbidden if the wet-nurse were the person's real mother. He also forbade marriage with a woman together with her paternal or maternal aunt. Observe that first cousins are not forbidden to marry each other.
A final impediment is disparity of religion. A Muslim man is forbidden to have sexual intercourse with unbelieving women, except for Jews and Christians. He may have intercourse with these by right of owning them as slaves or by marrying them if they are free. A Muslim woman may be married only to a Muslim man. If both parties to the marriage are Muslim and one of them abandons Islam, the marriage is dissolved. Likewise, if one of two non-Muslim parties to a marriage becomes a Muslim the marriage is dissolved, unless the wife is a Jew or a Christian.
A man may have four wives, whether Muslim, Jewish or Christian. He is not limited as to the number of slave women he may own and have intercourse with. Slaves are non-Muslims captured in jihād. Nevertheless it is the custom in Nigeria to give girls as concubines to Muslim chiefs.
A man must practice equality with his wives. If he cannot do this he should keep to one wife (Q 4:3). Treating them equally includes sleeping with them in turn. However someone who marries a previously unmarried woman may spend seven nights with her to the exclusion of his other wives. If she was married before, he may spend three continuous nights with her.
A woman is required to nurse her child, unless women of her position do not do so. She must do the housework, but her husband should provide her with help according to his means.
A man owes his wife both support and lodging, whether she is rich or poor. He also owes support to his parents if they are poor and to his minor children if they have no wealth of their own. His obligation to his sons lasts until they reach puberty, if they have no perduring disability, and to his daughters until they marry. He does not owe support to any relatives besides these. Thus there are no extended family obligations, and as a consequence disabled people must be taken care of by zakāt or, in practice, go begging.
Divorce is allowed in Islam, yet there is the hadīth: "Of things allowed, the most detestable before God is repudiation." Repudiation of the wife by the husband is the most common form of divorce. Its requirements are: 1) that the wife is not in her time of menstruation, 2) that since her last menstruation he has not had intercourse with her, 3) that the declaration "You are repudiated" be said once, then repeated after an `idda (3 months), and said for a third and final time after a second `idda. A triple declaration of repudiation made at one time is illegal but still valid. During her `idda the repudiated woman has a right to support and lodging. When she finally leaves she should be given a severance award and if she is nursing a child she may claim pay for it. Before the divorce is finalized the man may compel the woman to return to married life with him, but if it is finalized he may not marry her again unless she is subsequently married to and divorce from another man (Q 2:230).
If a woman commits adultery a man may get rid of her right away provided he either 1) with four witnesses catches her in the act, or 2) swears that he is not responsible for her pregnancy; in such a case he curses her four times and then curses himself if he does not speak the truth. If the wife does not counter-testify four times she is punished by stoning (Qur'ān 24:2, however, provided only for one hundred lashes). But if she testifies to the contrary no further action is taken against her or her husband and the two are automatically divorced forever (Q 4:2-9).
A wife may initiate divorce by returning part or the whole of her dower to her husband. He is free to accept or refuse. Alternatively, she may obtain a divorce in court, usually on the basis of the husband's failure to support her or for cruelty. However the process for seeking reconciliation described in Qur'ān 4:24-25 should first be followed.
A woman's lesser rights with regard to divorce are paralleled by the rules of dress and seclusion for Muhammad's wives, seen in Lesson 8. Similarly, in court testimony and in inheritance it takes two women to equal one man.
QUESTIONS
- Describe the role of a marriage guardian in Islam; what of Christianity?
- List the impediments to a Muslim marriage; any differences from Canon Law?
- Describe the rights and duties of a husband and a wife in a Muslim marriage; compare with the Christian ideal.
- Outline the various procedures for divorce in Islam; what can Christians do in the event of marriage trouble?
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