Social System of Islam 29 – Marriage Laws In Islam 3 Marriage Contract

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Jamal Badawi

Channel: Jamal Badawi

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Topics: Marriage

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Episode Transcript

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The name of God the benevolent the Merciful, the creator and Sustainer of the universe, peace and blessings upon his servant, messenger Muhammad forever amin, I bear witness that there is only one God worthy of worship. And I bear witness that Muhammad is the messenger and servant of God, I greet you is my fashion with the universal greetings of peace, which is a greeting that has been used by all of the profits from Abraham to the Prophet Muhammad. Peace and blessings be upon them all. Assalamu Aleikum, which means peace be unto you. Today we have our 29th program and our series dealing with the social system in Islam. We'll be continuing our discussion of marriage laws in

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Islam. I'm your host hammer Rashid and I have joining me as usual on the program, Dr. Jamal, betta. We have St. Mary's University of the Jamal assalamu aleikum. Monica,

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could I ask you to just take a few minutes to highlight the main points that we talked about in last week's program? Certainly

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two or three or four issues, I would say were addressed many last time first was some discussion of inter religious marriage and Islam with a special focus as to why a Muslim woman must marry only a Muslim and the other concession for Muslim men and the reasons behind

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them. Secondly, was the definition of marital contract and Islam as to whether it's a sacrament or civil contract. And we ended up saying that it has elements of both of them, I called the second civil contract.

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assert issue was the foundation or fundamental conditions for the validity of the marriage contract. And we said that the main thing really is the approval or consent of both parties to marriage, that both parties should be legitimate and to each other should not be among the prohibited categories. And that there must be two competent witnesses to the marriage. In addition, we discussed some additional reasons which might be either understood or reasons which are not unanimous among just one of those reasons were the was the availability of the guardian for the woman

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and his permission or consent to the marriage.

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And

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basically, we mentioned that there are two point of views as to whether guardianship in the case of marriage is a must for an adult woman or not.

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But we didn't we just ran out of time when you were about to develop the

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point respecting guardianship. I wonder perhaps we could have you begin today's program by just going back to that issue briefly and trying to put the put together? Sure. Well, we said First of all, the opinion or the jurist opinion that says that the consent of a guardian is a must for marriage, they refer to three basic evidences one, they said some verses in the Quran, when it talks about marriage seem to address men, showing that they are the ones who are in charge of arranging or supervising the marriage.

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Secondly, they refer to some of the saying of Prophet Muhammad peace be upon him in which the apparent meaning of the saying is that a woman cannot marry herself without some kind of involvement of her guardian, usually her father.

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Certainly they said that it's only a protection of the long range interest of the woman that she would be getting enough Counsel of a person who loves her and cares about home that's her father before actually she plunges into a marital relationship, especially if she's relatively young and inexperienced doesn't have much exposure or knowledge about the the person

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was being presented that.

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On the other hand, we said that there are other jurists, especially the Hanafi jurists who said that

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it is not a must really for a woman to have a guardian for the validity of her marriage. First of all, they said that there are verses also in the Quran like in chapter two, for example, verses 230 and 232.

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Talking about marriage, it seems to address women

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and implies as such that the authority or the right to accept

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Marriage are to go ahead with the arrangement of marriage is also isn't the hand of woman. That's one.

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Secondly, they also said that in Islamic law, a woman is entitled to negotiate any civil contract. And this is what's the difference between a financial contract and a marital contract in terms of at least basic capability of negotiating, either of them. So they say it's the same by analogy.

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But in addition to this, they interpreted the saying of the Prophet, Prophet Muhammad peace be upon him, requiring a guardian to be present or to give consent and marriage as applicable to minors. That is the case of underage girls being married, in which case, it is a must to have a guardian

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consent to that manage. I should say, however, that despite of this difference of opinion, one should clarify that in the majority of cases, and when you conduct an Islamic marriage, women themselves actually would prefer

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not to cry with themselves in the middle of men who usually, you know, go through the contract and witnesses and all that they usually are present at the time of marriage, but they might be sitting with other women in the section just observing and a woman simply asked her father to act on her behalf after Of course giving him permission to accept match.

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Well, now, you just commented about the marriage of minors, I'm sure that some people might be curious about this mention of marriage of minors, is there is there any minimum age for marriage in the Islamic law? Strictly speaking, if you go to the text of the Quran and prophetic tradition, you don't tend to find a particular a particular text that says a minimum

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age for marriages, whatever, 1618, whatever. You don't find that. Nor is there any maximum age of course, format. Why? Well,

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Islam as the last revelation of God's revealed to mankind for different places, different times different cultures

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must have some flexibility, so as to meet the needs of different people, different places. And if there is a particular age limit that is put there, it may not necessarily be suitable for one particular time or one particular place. So there's there's no straightjacket in terms of the minimum age. But I think we should make a distinction between child marriage or marriage of minors and consummation of the marriage, these are not necessarily the same thing. It shouldn't actually, in other words,

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sociologically speaking, as, for example, a great author like Western mark,

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will talk about history, human of human marriage, he says that for too long, in many cultures, before Islam, and even after Islam, in fact, because he says that, up until the 17th century, there was quite a bit of child marriage. But this does not necessarily mean that the contract immediately is followed by husband wife type of relationship, just like a commitment. Why, against the sociologist sometimes give a number of reasons they say, in some societies, where the feminine relations are very important to have a contract married early, even while the the parties involved our children may contribute to faster integration, social integration and kind of contact and

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solidarity between families with the marriage, of course, being consummated at a later time.

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But I should clarify, however, that Islam does not accept the situation, even as it was there were major reforms introduced into this particular type of marriage.

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At least three reasons or three conditions were required. First, you could not have a marriage like that without the consent of the guardian. Usually, the father is the father of the girl.

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Secondly, marriage would not be consummated until the girl becomes an adult,

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which is common sense requirement.

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A third important requirement

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is that

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the at the time when the girl reaches maturity, she has given the option of agreeing with that marriage that was previously contracted or rejecting it. This is called them Islamic jurisprudence three out of the blue or you could say the option of majority that as soon as she reaches majority, she becomes an adult. She made evoke that night she said, All right. No, I'm not going to accept that marriage in which case the previous contract will be

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null and void. So, these are some of the precautions that were were given. But of course, this precautions are all in line with a cardinal principle in marriage and Islam, and that is the necessity to give the freedom and choice of the woman to accept or reject the person with whom she's going to live, but like to have you developed that point a little bit further.

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And have you explain what Islam teaches about the woman's right to choose or to accept the man as a future husband? And I'd like for you to give some explanation in terms of how that compares with the practice of some Muslims in some instances. Okay, let me touch on the second part, there's the question of practice, I think it's essential to

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make a clear distinction between the

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authentic teachings of Islam and the practices of some Muslims and given culture given place for a given time.

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Indeed, through Islam is true Islam, that's what is in is there in the Quran, and the prophetic tradition, and in a standard law course authentic Islamic law.

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But how far people measure up to that in a given place, or in a particular time, they just like being graded or getting a mark on the degree of their implementation. So that mark could be an A plus, or it could be an S with distinction, whatever. So there are all kinds of ranges, you know, of, of commitments. So what I'm addressing myself really is what the Quran teaches, and then you can judge any person or group accordingly.

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The Quran in many places, particularly, for example, in chapter 13, verse 21, describes marriage as a partnership, something that should be shrouded with compassion and love.

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Well, how could that be achieved? If there is forced marriage, without the consent of either or both parties involved?

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That's one.

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Not only this, we find that the saying of Prophet Muhammad peace be upon are very explicit on this topic. Let me give you a few examples.

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First of all, there was a case of a woman who was previously married without the without her permission or consent. And she went to Prophet Muhammad peace be upon him. And she complained that her father just married her without her approval. The Prophet voided her marriage, he simply said, All right, you know, that's, that's not applicable. You know.

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And that was narrated in Bukhari, I met up with a with an MSA. In other sources of prophetic tradition, like Muslim, Ahmed, a Buddha wouldn't say, and all of this for references.

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The Prophet peace be upon him also was reported to have said that a woman who has previously married is more entitled, that she should be married with her approval, that is entitled more than her guardian, that her guardian should not marry her without her permission, more than even the virgin girl. And it says, even the virgin girl should be consulted or should be asked for permission

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to get married. And then he added her permission, or her is her silence. Of course, you can say yes, I accept or reject.

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But of course, in consideration that in many cultures, a woman might be a little bit shy, especially in sensitive matter like that. So if she's asked for permission, and she simply blushes and doesn't say anything, and does not reject, then that's also regarded as an approval. I read once that in some cultural practices, also that a woman would be, for example, behind a curtain. And then her father comes to her to seek her permission,

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you know, to give her in marriage.

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If she agrees, she would do simply nothing to just keep silent. If she protests, you start checking the curtain as if she's protesting. No, I don't want to. So that there are all kinds of means, depending, of course, on the culture all the way from saying, Yes, I do, or I agree to silence or some giving some subtle sign that this is an acceptable person to get married to. But not only the case of

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women who have been previously married.

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There's also in prophetic traditions as narratives and Imams, and a Buddha would imagine

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a case even of a woman who come to the Prophet, and she says that she was Virgin and her father married her without her approval, and simply the Prophet says, alright, you have the choice. Imagine for example, I mentioned a case of a girl like that. A virgin girl who came and said, All right, my father married me without my approval. So the Prophet said, Alright, you know, it's up to you if you want to avoid them.

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adage, will void it? She said no. I agreed with what my father did. But I came here to let women know that their father has no right to force husbands on them. That is what he meant it to force them to marry people that they didn't want to. So she was a kind like revolution. She's not only she accepted the marriage, but she wanted to educate other Muslim woman to establish the principle in the presence of the Prophet, that the whole notion of forced marriage without consultation is totally against the teaching of Islam, in which case, she was absolutely right.

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I'd like to move on now, I clicked to another aspect of marriage. And that has to do with the marriage gift. I've heard you use that term on several occasions is the marriage gift, the same thing is the dowry.

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There's one particular reason that I didn't use frequently the term dour or diary, I'd say two reasons, two main reasons one is historical and the other is semantical.

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The historical reason is that in past history, the term dour or dirty.

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And then the same thing also the 10 morehart m or H AR

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has been associated historically, with the purchase price, or in some cases even bride price. And we have discussed some of those angles in the 13th program. And that says,

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and some sociologists try to explain why in some countries prior to Islam, this purchase price for the bride was

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thought of is that some of them they say that a woman was regarded as an economic asset to your family. So, once you get married, there are more pair of hands working in favor of the husband's family.

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Her father would be losing not only her contribution, but he would be also giving more strengths by way of progeny who would be part of the husband's family. In some cases, even it was the reverse that

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the price was paid for the husband say, because sometimes in some cases where the sex ratio was low, and there are less, fewer men available, the husband or the father is actually buying a husband to his wife.

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This is one reason why historically I find

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objectionable or not really

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representative of Islamic view of marriage gift. And the second reason is linguistic. If you look into for example, Webster's dictionary, the term dour or Devery

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can be used

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for both cases, that is to be paid either by the wife to be or the husband to be. The main reason I say that these are not quite consistent with the Islamic concept of doubt or worry is that first of all, that our marriage gift in Islam is not to be paid by the wife to be it is always there is no exception. It is always paid by the husband to be the bridegroom.

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That's one.

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The second reason is that the Quran represents the dour ordered in that particular meaning or dowry, or marriage gift as something that absolutely has nothing to do with the purchase price. For example, let's refer to the Quran in that respect, which is quite revealing in chapter four, in verse four in the Quran, will actually say asado katene Allah the translation of the verse goes like this, it says and give the women on marriage or at the time of marriage, their dollars

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as a free gift. But if they have their own good pleasures, limit any part of it to you, take it and enjoy it with right good cheer.

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Now there are a number of remarks about that keepers. To start with. It says when you give this message gift, the word original Arabic word subtle cut, it's not exactly my even subtle cut, the which is manage gifts. It uses the term nationaler which means a free gift. So it is a gift it is not a purchase price. It is something that symbolizes commitment symbolizes affection, and the hopes of the future of bending life together as husband and wife.

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The second thing it uses it says Atlantis is a toccata hana which means there's math, which implies that it is to be paid to them not to not to anybody else. In other words, it didn't say pay it to their family or to the Father to them, which means it is their own property

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and therefore right.

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Furthermore, it says that if they wish to remit any part to help

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their husbands are exempt him from any part or reduce it, they could do that. And how could you give any concession in something that you don't own, which implies clearly that it is a symbol of the economic independence of a Muslim woman and her total freedom to dispose of that free gift that she is receiving at the at the time of marriage. So this is a clear conclusive evidence that you find in the Quran, that there is no competition whatsoever with this so called purchase price or bride price, it's a gift. Sometimes, you hear about instances where the dowry is used to use by the bride's family to buy such things as furniture for the bride, it seems that this is not consistent

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with Islamic laws. What if it is done against her free will,

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then it would be against Islamic law.

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Technically speaking, in Islamic law, the husband is fully responsible for the household no matter how rich his wife or whatever income she may have. That's what Islamic law provides, which means that housing, clothing, food, furniture, everything, medication, recreation,

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are the exclusive responsibility of the Muslim husband.

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She does not spend a penny.

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So if that's done in that spirit, and ignoring the obligation of the husband, and against the will of the wife, then it is against Islam. However, to be fair, also, I must mention that, in many cases, what happened in some Muslim cultures, that even though the the family of the wife, or wife to be would be taking this money, it would not be taking it for its own. They take it and they put even many false sometimes more than what they received to help both couples establish or begin their lives by buying furniture. Like I said, again, it's the responsibility of the husband. But if it is done,

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by free will, in good spirit, by way of helping the husband to be and contributing, that's fine. But even in that case, anything that's purchased out of this matter, or the the marriage gift that's given to the wife becomes her exclusive property. So if the husband dies, or if there is a divorce, for example, or something like that, then these properties would go back to heart because that was initially her contribution or her part

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of the property. Now, is there any formula for arriving at the amount of the marriage gift? Or is there any minimum or maximum

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dairy or marriage gift to begin? Well, first of all, as far as minimum is concerned, there is not authentic reference in Islamic law, no strong opinion that's based on a direct text from the Quran or prophetic tradition, which make it a must to have any particular minimum even though some juries say or some say a minimum would be the equivalent of $1, or $5. Some added more or less. But these are all estimates.

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The reason being is that in Islamic law, the main purpose of this whole system of laws of marriage, not just law for the sake of law, but rather structure which facilitates marriage make it easier, make it possible for both men and women to protect their chastity by having this legitimate relationship as a substitute of what goes on, in the absence of

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easy access to marriage.

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I give you a few evidence to that effect that there's no particular you know, visit minimum.

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One woman during the time of Prophet Muhammad peace be upon him was married. And the whole marriage gift that she received from her poor husband was nothing but two pairs of shoes.

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The prophets will simply ask that did you accept to give yourself a manager's for you know, this simple gift of two pairs of shoes? She said yes, I accept. So the process on marriages is valid. This was narrated in intimacy and you can imagine, so there was no particular question. Another interesting story was narrated in Bukhari and Muslim.

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A woman came and I just take the parts of the saying that relate to this, and that she offered to get married to the Prophet the Prophet did not respond. So she understood that he does not wish to marry her. So another man sitting there said, Alright, how about if I get married to her?

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So the Prophet asked him, do you have anything to give her by way of marriage gift? It says I have nothing but this garment. He said, Oh no, but if you give her that garment as a gift you will be setting without

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close ties to find out

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Something go and find something.

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He said, Well, I, I don't have any I can't afford

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it right? Try to find a ring even an iron ink just to give her as a gift. So well I can't find. So push

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it to the right. Do you memorize anything in the Quran? The Quran says yes, I memorize such and such chapter. He says, All right, you go and teach her that she, and that's your man, that's your marriage guests. So you see how it made it was made very easy, so long as both parties agree to marriage, that no financial or aristocratic barriers should stand in the way of having them getting measured. They just met it with recitation of the Quran. Not only this, you find also in another interesting case, a very novel woman, by the name of Omar Salim, was approached by a man in in Abu talhah he was not a Muslim at that time, and he wanted to marry her he was rich. And I think we

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mentioned that in one of the previous program, and she said, No, I cannot get married to a non Muslim. But if you become Muslim, that is your marriage gift. I don't want anything from you. I don't want any gold and silver and actually happen to embrace Islam and he got married. So Islam makes it a lot easier to, to for people to get married. The Prophet said it's even more exclusive, I mean more explicitly as merited and

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and he says that the most blessed marriage is one that is easy. It's not too costly, that's convenient for for the parties involved. As far as the maximum, there is no set maximum either.

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And we talked in a previous program again, when the second Calif after the Prophet tried to restrict

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they are lifted up, stay in or set an upper limit of marriage gift to encourage people to get married. And again, he was ruled out of order because the Quran, left it open without establishing any maximum, living that to the customs of the place and time and generosity of the husband. So it doesn't have to be a $1 fighter, it could be a million. But the main point here is that Islam makes it clear that parents and wives to be brides also should make it a point not to turn marriage into a commercial dealing and negotiation and how much you're gonna pay. And if the husband to be is coming with more money to offer that you should accept it's not a commercial thing. It's it's something

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much more novel than mere materialistic type of estimate. And in fact, I should say in all honesty that some Muslims in some Muslim countries are not following the teachings of Islam. And in some cases, they keep demanding higher marriage gifts for their daughters before they give their consent to marriage. This is not a desirable type of behavior on the part of the Muslims. In fact, in the Prophet, Prophet Muhammad peace be upon him in one occasion, and maybe I can finish that quickly said that.

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If one of you comes asking for the hand of your daughters, or sister or whatever, then give him to marriage if you accept his character, if you're satisfied with his religiosity, and character, if because if you don't do there would be lots of commotion and disruption or corruption on Earth. So Islam makes it easy without necessarily restricting any particular minimum or maximum depending on the circumstances of both keeping the noble objective of marriage above all materialistic considerations

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that we expect our time for today. We want to thank you for watching once again, invite you back next week. Thank you for watching. Assalamu alaikum peace be unto you