Social System of Islam 28 – Marriage Laws In Islam 2 Validity Of Marriage
Channel: Jamal Badawi
File Size: 7.16MB
In the Name of God, the beneficence, the Merciful, the creator and Sustainer of the universe, peace and blessings upon his servant and messenger Muhammad forever. I mean, I bear witness that there is no god worthy of worship except the one true God. And I bear witness that Muhammad is the messenger and servant of God, as is my fashion, I greet you all with a greeting that has been used by all of the profits from Abraham through to papa Mohammed, peace and blessings be upon them all. It's a universal greetings of peace. Assalamu Aleikum, which means peace beyond to you. I'm your host Hamad Rashid. Today we have our 28th program in our series on the social system in Islam, and we'll be
continuing our discussion of the topic of marriage laws in Islam. I have joining me on the program and she's ruler Dr. Jamal Badawi of St. Mary's University. Brother Jamal Assalamu alaikum My name
is also our fashion Could I have you very quickly summarize and highlight the main points we touched on last week. Okay. Last week, our main emphasis was on the beginning of investigation of the marriage laws and Islam. And the main points that were discussed pertaining to the prohibited or restricted categories that the people took home the person may not get married because of cross blood relationship, marriage relationship or first marriage.
We also indicated that
in terms of inter religious marriage, first of all, a Muslim male or female may not marry to someone who is an atheist, or a polytheist, or idol worshiper. anything of this categories.
However, we said that a Muslim male may get married to a woman from the so called People of the Book which is used mainly to refer to Jews and Christians,
and that a Muslim woman must marry only to a Muslim man.
And we indicated that even though the Islamic law allowed inter religious marriage in case of a Muslim men to Jewish or Christian, and this was intended as a gesture of goodwill and tolerance, but this is not intended to be the general rule. And it is also qualified with a number of conditions, including of course, not causing harm to oneself as children or to other Muslim women are only entitled to marry Muslim men. So there must be consideration also the entire welfare and well being of all parties.
Now, you mentioned that the Muslim male may marry from among the people of the block, but that the Muslim woman must only marry another Muslim. I've got two questions growing out of that the first of all, is there any evidence to support this if I'm the crown? Oh, yes. Well, first of all, in the chapter, called unemployment chapter 60, particularly verse 10. It deals with a situation where in the early days of Islam, some women migrated left their husbands and their relatives in Makkah and went to Medina to join Prophet Muhammad peace be upon him because they could not practice their faith free.
So this women were actually married to non Muslims, and they migrated to Medina, to embrace Islam. So in that particular chapter, Prophet Muhammad peace be upon him and the Muslim community. were instructed to test those women to make sure whether they are migrating really for the sake of faith or just some other reasons. And if they were genuinely coming because of the face and because they became Muslims in the verses thelotter Jeong Hoon, Allah kofod, you do not return this one and back to their non Muslim husbands. And then it says, because they are not lawful unto them. And this husbands are not lawful unto them. That's what the term was that was used in that verse Actually,
it's far which applies both to categories.
That are totally prohibited for Muslims to enter, marry with, like, you know, polytheist, or idol worshipers and all that. But it also includes those who reject the prophethood of Prophet Muhammad peace be upon him. So that includes all non Muslims period, that's in the case of women. A second evidence in the Quran is even more obvious. And that appears in chapter five, particularly verse six, in the Quran,
where a permission is given, first of all, for Muslims to exchange and eat the food of the People of the Book, or give the food to the people of the book, that's Jews and Christians, so long as not prohibited for some other reason, like pork. And then it says, permitted also unto you, That is unto Muslims are a new Sonata in alladhina Chiquita, that is the chest women of the People of the Book. So the verse here is specified only chest women from the people of the book that will be permitted to marry to Muslims, obviously to Muslim husbands or Muslim mates. And the Quran is very precise and very delicate in its expressions. If it meant both, it would have said, for example, when my son had
one son, that's the chest men and women have the title of the book, but it's specified only using the female gender. So there is a distinction there. Now, my second question has to do with that distinction, then, the question is why why is such a distinction made? Why is it that Muslim female is prevented from marrying a person save some from among the people in the book? Okay, to start with, it is important to realize that this injunction is not an injunction which is man made, or woman made. It is a divine injunction that is, God revealed that God directed Muslims to follow that. So there must be some wisdom behind it because God has no reason to be biased for male or
female. This is an essential point that comes quite frequently.
But I think the main issue here perhaps pertained to the role of the husband, as a leader of his family, not only in the framework of Islam, but also I suppose, in many cultures, also, the husband still has some kind of
control or leadership role to play in his family.
And the main issue, which may be at stake, in this case, would be the religious freedom of the woman, whether she is from the paper of the book, a Christian or a Muslim. Now, let's compare the case of inter religious marriage with the people of the book and see whether it is exactly analogous or whether there are differences. Take the permissible case, according to the Quran, a Muslim men getting married to a Christian, let's say, Christian, believing Christian woman. Now,
in that case, the husband, who was the leader of the family
believes that his religion is basically a divinely, or at least in its original form, divinely inspired religion. That's one. Secondly, the Muslim husband believes in the prophet
of her wife, his wife, that is Prophet Jesus peace be upon him because a Muslim cannot be a Muslim honest, he believes in all prophets, including Moses, and Jesus and many others. Certainly, according to his own scriptures, the husband believes that the original revelation or holy book, given that religion or given to the prophet of that religion, came from God.
Islam teaches that Muslim husband to respect the religious freedom of his wife, to allow her to practice her faith freely and some jurist even he has the say that he has the obligation to take her to her church to listen to whatever religious instruction that she is entitled to. And that sense, a Christian or Jewish, married to a Muslim husband has complete freedom to practice her faith without any pressure or intimidation.
Let's look at the other side of the coin and see whether it's exactly the opposite or whether there are differences. Let's assume that a Muslim woman is married to a Christian or a Jew, for that matter.
that husband, who again, leads the family controls the family, that husband, first of all, does not believe in the divine origin of Islam, as revealed from God.
Number two, he does not believe in Prophet Muhammad as a prophet, that's the prophet in whom his wife believes
He does not accept the Quran as the Word of God or His revelation revealed through Prophet Muhammad.
giving this circumstances,
even though it might vary from one individual to the other, but on the whole, by way of precaution and protection of the religious freedom of the wife,
there is a question about her freedom of practicing her faith. And mind you in Islam, Islam is not just a matter of beliefs that the wife believes in this and that Islam is a complete way of life that affect her behavior in the entire social and family.
So it's not just a superficial aspect of her life. So there is a question and risk that her freedom might be at stake. And if we add to that, also, the fact that a woman by nature, which is not a deficiency, it's it could be a privilege, in fact, is more on the emotional side.
This might threaten not only her religious freedom, but even gradually, the extent of her adherence and commitment
to her faith. Now,
many people would argue that there's a similar risk that exists in the reverse case, as well as possible, for example, where you have a non Muslim Mother, Mother, that her influence on the children, for example, could be could be such that, you know, it could make her difficulties, how would you respond somebody who have that particular view, when indeed, and there's real danger, or risk of harm,
or negative influence that the children not grow up as true Muslims, or impact on the husband, then it become unlawful, some people may not realize that.
Because within the basic rules of Islamic, Sharia or Islamic law,
there are two things to remember. First of all, the purpose of marriage is also fellowship. It's a partnership. And that partnership involves not only physical aspects, but also intellectual as well as spiritual elements. And the basic rule, of course, is that a Muslim really should get married to a Muslim who have the same beliefs in God, the same beliefs and acceptance and nonprofits, revelation of God and all that.
And when Islam allowed intermarriages allowed the Muslim men in particular to get married to us or Christian, as I indicated before, it is a gesture of goodwill and tolerance, but it is also qualified. And then the last program we explained in greater detail, that is not just an open permission, there must be some qualifications to that. Now, if this qualifications are not there, or if, as the rules and Stanek law show is that something that may be permissible could be or could become unlawful. If there is harm, and there's a contradiction with the overall purpose of the law, then it could be prohibited. And like you said, if there is danger on the Islamic identity of the
children or negative impact on the husband, then in this case, it becomes unlawful. So it's not just an open
permission. For now, what about the situation of a woman who's married who, subsequent to being married or later embraces Islam?
and her husband remains a non Muslim, or the reverse situation where maybe the male embraces Islam and the wife remains a non Muslim?
How do you deal with a situation like that? Okay, the reverse curse is not it's very easy. Yeah, that is if it is, it's the man who became Muslim, embraced Islam, and his wife remained Jewish or Christian, because of course, as I indicated before, neither Muslim male or female can get married to somebody who is an atheist or agnostic, or, you know, either worshipers You know, this are eliminated regardless of male and female. But I'm assuming that again, that you're talking about a wife who is believing a woman believing a believer in God, that's pretty rare in Judaism or Christianity, which are interpreted to be the basic groups under the title of the book. So she made
a mean, as a Jew, or Jewish or Christian, with a Muslim husband because again, that's permissible. So there's no difficulty if it is the man who embraces Islam, but the difficulty as indicated arises in the reverse case. That is, if the wife becomes a Muslim, embraces Islam, why and her husband is still a Jew or Christian.
Because again, the Quran indicates that this is not permissible.
This does not mean however, that divorce must take place instantaneously in the moment she embraces Islam.
There must be also the waiting periods
according to some jurist,
some not limited, but some refer to the the same waiting period and any proceedings of divorce, which is about three months.
During that period, a chance is given to the husband to, you know, consider 3d of course, whether he wishes also to embrace Islam. But of course, during that period, you cannot have the matrimonial husband wife relationship with her.
Now, if he is convinced
during that period,
that what his wife decided was the right thing and he wishes to be
alongside with her, then there is no need for having another marriage contract or marriage gift, just the relationship can resume as husband and wife with without any difficulty whatsoever.
If he insisted to remain like that, then ultimately they would have really to be separated. I'd like to indicate that definitely This is not a theoretical problem. In North America, and in Europe, this has been happening. Not that frequently, but it is happening
in few cases. And one should say that the courage and commitment to God by many women is really admirable. And they face really much more problems than those problems says, by a person, a Christian or Jew will become a Muslim. And did they remind us with the courage and sacrifice of many of the early Muslims, who, when they were given the choice between deciding for God or deciding for persons, they decided, for God. But I should say, however, that this involves some complications, especially with our children involved. And the ideal solution really, would be to allow sufficient time
to explain and through affection and persuasion, talk over matter with the husband,
and show him that when he becomes a Muslim, he doesn't have to really reject his previous face, he doesn't have to reject his belief in his prophet because after all, by becoming a Muslim, he augments rather than decrease. He believes in addition to believing in Jesus or Moses, or all Israelite prophets, simply to believe in the last prophet, Prophet Muhammad peace be upon him. And this way, there will be some kind of
guarantee that the marital relationship and the religious freedom or both will be respected.
Let's turn to the procedures affecting marriage. First of all, the question of the marriage contract, is this a civil contract? Or is it a sacred contract?
Classic? Right. It's a classical question Really? Well, it depends, in fact as to what we really mean by sacrament of second contract.
Some sociologists, when they define the sacrament, in marital relationship, or the marriage contract, they really referring to a contract that must be officiated by a priest. A contract that must involve some kind of benediction or invocation of blessings. It's sort of right. And they view it further as a right which in itself removes the taboo,
pretending to sex and make sexual relationship permissible and wholesome, which may carry an overtone of the view that sex and marriage are sort of inevitable, even and celibacy is the more preferable type of state.
Now, sacrament, in that sense, has no relevance to Islam. To start with Islam does not make this sharp distinction between sacred and mundane or between civil and religious, every aspect in Islam, if it's a sacred, it has some mundane or civil implication. If it is civil, it has also some sacred origin. So Islam doesn't make that distinction between the various aspects of human life sacred and and
now, the other aspect is that there is no relevance in Islam whatsoever as was indicated in a previous program of viewing sex and marriage as inevitable evil or something that is bad in itself. The Quran, present this as a divine gift, a divine blessing, so long as it is satisfied in the wholesome and lawful manner. So in that sense, again, there is no relevance in search.
In Islamic law, there is no absolute necessity of the presence of a priest, quote unquote, to officiate, actually there is no priest within Islam. You may have somebody to supervise the contracts and make sure that the conditions are met. But it is not a technical requirements really for the validity of, of nuptial relationships. As far as benediction or invocation of blessing, yes, that's desirable, but in itself, even it would not invalidate marriage.
But if we meant really by sacred contract,
something which is based on divine directors, something or a contract in which God is a party, at least in terms of providing guidance and outline of the relationship, then in that sense, yes, marriage contract and Islam is, is a sacred contract. The Quran refers to it as mythical or solemn covenant. So in that sense, then we find that Islamic contract of marriage has elements of both what people call sacred and civil, maybe I'd like to call it a sacred civil contract.
What are the main conditions for the validity of the marriage contract? Well, without getting too technical, the Muslim jurists divide the conditions into four type of categories and so on. But basically, there are conditions which are absolutely necessary for marriage to take place. Like they call it arcane foundations for marriage.
And that foundation is basically one.
That is the acceptance and agreement of both parties to the contract, that is the husband and wife to be, that's absolutely necessary.
In fact, this might take the form of a proposal and acceptance in the same setting, through both parties, the husband and wife to be all through whoever represents them.
How to say it or what to say. It can be said in any wording in any language, so long as it is expressed in a direct, explicit and unequivocal terms. So there's no doubt about it and so long as there is no ifs and buts. For example, you can say, all right, I offered to marry you, if I get a job, or I offered that I will marry you next year or something like that, there is nothing like that must be decisive, explicit and unequivocal.
You want to give a particular formula and by way of example, instead of just leaving it dry, that might be helpful. Okay. An example of that would be the father, for example, acting on behalf of his daughter after taking care permission, telling the husband to be I give you, my daughter, so and so in accordance with the book of Allah, that's the Quran and the past of Prophet Muhammad, peace be upon him, and in accordance with the Maha or marriage gift agreed to between us, and God is my witness.
And then the
the bridegroom would say, I accepted marriage to your daughter, so and so in accordance with the Quran. And the Sunnah or path of Prophet Muhammad, peace be upon him, and in accordance with the marriage gift agreed to between us and Allah or God is my witness, something like that, it becomes legitimate, at least in terms of one basic first requirement. But in addition to this, in order for the contract also to be valid, there must be two competent witnesses.
In fact, the witnesses in the case of marriage between Muslims must be Muslim witnesses. But if the Muslim male is getting married to Jewish or Christian, some jurists like Abu hanifa and his students abusive, are of the view that the witness of the People of the Book may be accepted in inter religious marriages like this. Another condition for validity also is understood and that is, the wife to be or the husband to be, should not be among the restricted categories. In other words, for example, it cannot be his mother or sister or daughter all the categories that we described in the previous program. This are like I said, the very basic minimum conditions for the validity of the
marriage contract, but there are additional conditions, which are either implied or some other conditions where there's differences of opinion among jurist as to whether they are absolutely necessary for marriage, the absence of which would
invalidate manage or not. So there are additional conditions. Could I ask you perhaps to just to, to comment on that further and explain some of these additional comments or conditions that are certainly for example,
in the case of marriage of minors under age, a person who's not adult, which is rare, of course, because in most cases, even in so many jurisdictions, Muslim or non Muslim, they prevent marriage of a minor beyond or below certain age. But just to comprehensively cover all eventualities in Islamic law, it says that if a miner or under age is married, then the consent of the Guardian is a must. Of course, if there is no guide Guardian, then a consent of a judge, or like a family judge, as we know, in the West, for example, could be required. Another condition which is understood also or implied, is that there should be no deception. That is to say, if a marriage contract is negotiated
and signed, and everything, on the basis of mistaken information, deception by one side or the other, or concealment of very important information, like, for example, somebody's hiding, that he's got some serious disease or something of that sort without telling his husband to be or wife to be, that could also result in request to invalidate or avoid the, the marriage.
There are similar cases like that, or in case, for example, a woman marry herself without the consent of her guardian. And then the Guardian feels that this kind of marriage is not really to her interest, long term interest. For example,
a young girl under the pressure of emotions get married to a heroin addict, for example, or something of that sort of person is not fit for her.
The Guardian in that case, may go to the judge and request an appointment of that marriage to protect the interest and future
of his daughter, let's say,
well, this seems to imply or to suggest that it's possible for a Muslim woman to marry herself without the permission of the Guardian in the first instance. Yeah, that's correct. According to some Muslim jurists, this is permissible and more particularly the Hanafi.
School of our School of jurisprudence. The majority of Muslim jurists, however, say that a woman cannot get married without the consent of her guardian. So there is difference of opinion as to whether whether in the case of the girl, the consent of a guardian, is absolutely required or not.
I want to perhaps I could ask you to develop this a little bit further and perhaps show the evidence that's used in both
sides of the argument. Okay. Well, for the jurist who said that the consent of the Guardian is, is a must. They use basically three evidences. First, they refer to some verses in the Quran dealing with marriage, and they said that the tone of the verses seem to address men or males rather than females. For example, like in chapter 24, verse 32, in chapters two, in verses 224 and 232, we'll uncover well as some careful expressions into adjustment. So they said this could be one. Secondly, they said that they have been more than one saying of Prophet Muhammad peace be upon him, which seems to indicate that the consent of the Guardian is required. One of this is a saying that says no
valid marriage without wedding or guardian, and that was narrated in Alberta would Timothy hakon abandon several reference
protected traditions, and another prophetic tradition narrated also an ultimate a Buddha would have no magic and utter mythic.
The Prophet says that if a woman or any woman who marries herself without the consent of her guardian, then her marriage is void. And he repeated that. And some also add that a woman may be under the influence of emotion that she may not really
or she needs some counsel should be given some counsel before finally getting with this marriage. Those who took the opposite view said that there are also verses in the Quran for example, in chapter two verses 230 and 232, which talk about marriage addressing women showing that marriage isn't the hand also of women. They said also, in Islamic law, a woman is entitled to negotiate financial contracts. And what's the difference between financial contracts and a marriage contract? We'll have to stop there because we're getting some frantic indications that we're at a time. We want to thank you for being our guest today and invite you back. Next week. We'll look
continue our discussions. Thank you for watching. Remember like and peace BMT