Marriage (Nikah) in al-Islam
To have a nikah means to get married, and talaq means to divorce. In the book Manahij-ul-ibad, the Islamic nikah is explained as follows:
This article covers the etiquette of nikah. The information on marriage sometimes varies because people, times and situations are not always the same. For this reason, while there are Nass (The Divine laws) and news (Narratives) encouraging marriage, there are also others favoring bachelorhood. The times and states of the Ashab al-kiram and Tabi'in demonstrate that in their time it was best to get married. There were three reasons for this:
The first reason: During the time of Hadrat Muhammad Mustafa 'sallallahu alaihi wa sallam', Christianity was prevalent throughout the world. Since Isa 'alaihissalam' was equipped with spirituality, bachelorhood, being alone and living a solitary life in seclusion were more appropriate for the times and conditions of his ummat and for his companions. Priests were ordering everyone to become monks and to live a solitary life. They presumed that approaching Allahu ta'ala and being in His way could only be achieved by living alone and by not getting married. Hadrat Muhammad Mustafa 'sallallahu alaihi wa sallam' possessed all spiritual and material realities and superiorities; hence, being alone or being together with others, being single or getting married are all useful for his Ashab and for his Ummat. Thus both ways, and the moderate way, which is between these two, are appropriate for his Ummat. Since priests were ordering everyone to live like monks and to abstain from marriage, the Prophet Muhammad Mustafa 'sallallahu alaihi wa sallam', in order to terminate this way of life, prohibited his Ashab (Companions) to live a bachelor life by saying, "Islam does not contain monkhood." He also said in another hadith, "Getting married is my sunnat; whoever does not follow my sunnat is not one of my Ummat." Numerous similar hadiths annihilated the wrong ideas imposed on the minds of people. Also the thought of "Allahu ta'ala can only be approached by living like a monk" was removed from the hearts. People who lived during the first two hundred years, which was the time of the Ashab al-Kiram and the Tabiin 'radi-Allahu ta'ala 'alaihim ajmain' knew that these hadiths were said in order to refute the wrong allegations of priests. When this era was over, different hadith ash-Sharifs were emphasized. These hadiths informed us that there are good aspects to bachelorhood and to married life depending on the special situations of those involved. The Holy Rasul 'Sall Allahu alaihi wa Aalihi wa Sallim' said, "After two hundred years, the best of you is the one who is hafifulhaz." When he was asked the meaning of hafifulhaz he said, "The person who has no wife or child."
Great scholars like Bishr al-Hafi, Bayazid al-Bastami and Abul-Husain Nuri were all bachelors. This hadith al-Sharif reveals the honor and superiority of these great scholars and those like them who lived two hundred years after the Hijrat.
The second reason: The Ashab al-Kiram, Tabiin and Taba al-Tabiin lived in the best of times; thus, their belief (iman), patience (sabr), asceticism (zuhd), and tawakkul were very strong and valuable. The following hadith al-Sharif praises them by saying, "The best of times is my era. Then the time which is next to mine. Then the Muslims of the era next to them. Following these, lying will become a widespread practice. (Some) people will bear false witness even without being asked to do so." The nafs of these great personalities would not attach themselves to the means which the Shariat disliked, and would not incline to earn through ways of haram because they increased their tawakkul, zuhd, and rida (consent) by being close to Rasulullah 'sallallahu alaihi wa sallam', and by attending his sohbat. However, later generations could not be like them.
The third reason: Hadrat Muhammad Mustafa 'sallallahu alaihi wa sallam' knew through the nur (light) of prophethood and through the correct Firasat (Intuition) that the religion of Islam would be spread throughout the world by the Ashab al-kiram, Tabiin and Taba al- Tabiin 'radi Allahu ta'ala anhum ajmain.' He encouraged marriage so that those who would spread the religion of Islam throughout the world, and those with whom the Islamic religion would be strengthened, would multiply.
For these three reasons, it was necessary to get married during the time of the Ashab al- kiram, Tabiin and Taba al-Tabiin alaihimurridwan.' It was also proper to be single for people who came after them; therefore, when Sufyan al-Sawri 'rahmatullahi alaih' heard the above- mentioned hadith, he said, "Wallah, it is halal to be single at this time." When they asked Bishr al-Hafi the reason for his being unmarried, he answered, "I have such a nafs that, firstly I am trying to divorce it. How can I add another one to it?"
Today, likelihood of earning through ways of halal has decreased. It is now very difficult to protect oneself from the harams. It is neither suitable for the aql (wisdom) nor for the din (religion) to drag someone else into harams. Nevertheless, if one's lust becomes uncontrollable, one should try to reduce its intensity by fasting. If one cannot decrease its strength by fasting then marriage becomes obligatory (fard) for him. [If one is afraid of being cruel to one's wife, it will be tahrim makruh for one to get married. Also people who are in danger of being deceived and led to harams by their nafs when they are among lowly women who do not cover themselves and who expose their private parts to men, should get married. It becomes fard (obligatory) for this type of person to find a chaste Muslim girl and marry her. Youngsters who are not desperate such as the above-mentioned people for marriage, first should strive hard to obtain knowledge and good morals. Then they should learn the knowledge which pertains to the menstruation period of women (Hayz), and the knowledge which covers the time that is right after the birth of a child (Nifas) and then they should get married.] The appropriate time for marriage for a Muslim man is when he learns the Shariat, and when he trains his nafs on how to obey the Shariat, and when he acquires good moral conduct and becomes a nice-tempered person, and also, when he improves his wisdom. After fulfilling all these conditions, he should marry a girl who has manners, modesty, and good moral conduct, knowledge in religion, and who is obedient to the Shariat and who covers herself according to the Shariat when she goes out. One should look for a girl who has chastity and who cares for her religion. One should not hold wealth or beauty as a prerequisite. One also should not overlook the chastity and goodness of a woman for the sake of money or beauty. In a hadith al-Sharif Rasulullah 'sallallahu alaihi wa sallam' said, "One marries a woman either for her money or for her beauty or for her religion (her piety). You choose the one who is religious. A person who marries because of her money will not be able to possess her money; a person who only marries for her beauty will be deprived of her beauty." It would be the ideal if one can find a girl who is beautiful and pious. It is not permissible for a Muslim girl to marry a man who is a disbeliever. When she intends to marry him, she becomes an apostate. Therefore, two disbelievers will have been married. They both should become Muslims and renew their nikah.
Seeing the girl before the nikah is sunnat; also it will facilitate good relationship between the mates during marriage. One should search for a saliha (pious) woman who has good manners, who has a noble ancestry, and who is also fertile. There is a saying which states that a man should avoid four types of woman:
A person who desires to get married should perform istihara several times; then, he should trust himself to Allahu ta'ala and ask His help to protect him from being interfered with and deceived by his nafs and by base people. One should strive to perform the nikah in agreement with the four Madhhabs. For making a valid and correct nikah according to Shafi'i, Hanbali and Maliki Madhhabs, the first condition is that the wali of the girl has to give permission to her even if she is beyond the age of puberty. 'Friend' is the lexical meaning for the word 'wali'. If it is used in the subject of Aqa'id (belief), it means arif-i billah. If it is used in the subject of Fiqh then it means a relative who is a man. According to these three Madhhabs the wali is one's father. If you do not have a father, then the wali is your father's father, and after that the wali is your paternal great grandfather. If you do not have paternal fathers, then your wali is your brother. If you do not have a brother, either, then the wali is your brother's son, next to whom is his son. If you do not have any of these, then your wali is your uncle. If you do not have that one either then the wali is your uncle's son and after that your uncle's grandson. If you do not have any of these relatives then your wali will be the judge. [The judge has to be a person who obeys the Shariat and who leads a life agreeable with the laws of Allahu ta'ala]. The order of being a wali in matters of marriage is the same as its order in matters of inheritance after death, but, according to the Shafi'i Madhhab, the son and son's son cannot be a wali. According to Imam al-Muhammad (Radhi Allahu anhu) and Hanbali Madhhab, after the paternal fathers the son and then the son's son will become a wali. According to the Shaikhayn (al-Imam al-A'Azam and Imam Abu Yusuf, Radhi Allahu Ta'ala Anhuma), the son and the son's son will become the wali before the paternal fathers. In Hanafi Madhhab the consent of a wali is not a must-condition for the marriage of a girl who has exceeded the age of puberty. It is mustahab before the nikah to ask for the permission of a girl who has passed the age of puberty. The person to whom she gives her permission becomes her wakil. If the nikah is performed without her permission, she is free to accept or to reject it. If she rejects it, the nikah becomes void. A woman can get married either by herself or by her wakil or by her wali. [In Hanafi Madhhab, orphans who do not have male walis can get married through their mothers.]
The second condition of nikah: It is necessary in Hanafi Madhhab to have two Muslim witnesses [even if they are known to be sinners] while making an offer and acceptance. Two Muslim men or one Muslim man and two Muslim women who have already reached the age of puberty should be ready at that moment and they should hear the offer and the acceptance. In Shafi'i and Hanbali Madhhabs witnesses must be males and they should not have publicly known sins. In Hanafi Madhhab beside the wakil or the wali one man and two women can also be witnesses. In Maliki Madhhab a witness is not necessary but the wali must be present at the nikah and the nikah must be announced, and acquaintances must be informed about the nikah.
The third condition of nikah: This condition covers the offer and its acceptance. In other words, there exists a contract of marriage. In Shafi'i and Hanbali Madhhabs the marriage contract is agreed upon between two men. One of the two men is the groom or his wakil, and the other one is the bride's wali or wakil. They make a marriage contract by saying such words as nikah, husband, and wife or by saying similar words that are used for this purpose. In these two Madhhabs if the bride is not a virgin, then her permission also is needed.
It is written in the book Nimat-i Islam: "In Hanafi Madhhab a woman and a man who are free and beyond the age of puberty can get married by themselves in the presence of two witnesses. Their nikah can also be performed in the presence of one of them and by the wakil of the other party, or by the wakils of both parties. The wakil has to be a wise Muslim with an ability to distinguish right from wrong but need not to be a male or be at the age of puberty. When one appoints someone as one's wakil, one does not need any witnesses. For this, first the wife gives her proxy (wakalat) for renewing the nikah on her behalf to her husband by saying, "Whenever you divorce me, I have authorized you as my wakil to marry me to yourself," and then if the husband accepts her proxy; when he divorces her with one bain talaq (see the section on talaq) he says "I have married so an so, (saying the name of his wife), to myself, whom I divorced earlier," in the presence of two witnesses, his nikah becomes sahih again. [The famous renewal of the iman and nikah of the whole jamaat by the recitation of a dua (prayer) by the individuals who make up that jamaat is based on this fatwa.] When both the person and his wakil are present during the nikah, the wakil becomes a witness; likewise, when the bride and her wali are both present at the nikah her wali becomes a witness. When a father marries his daughter to someone in her absence without informing her and without a mahr and tells her later on about it, if she stays silent, the nikah becomes sahih and it is necessary to give her a Mahr al-mithl. A person can be a wali or wakil of both parties, or one can be a wali for one party and a wakil for the other party, or one can take one's own place (as one of the parties) and also can be the wali or wakil of the other party. If a person who has appointed someone as a wakil says that his/her wakil is free to do anything and everything on his/her behalf then the wakil can appoint someone else as the wakil. A child who has not reached the age of puberty can be married by his/her closest wali. The wali for the child is his/her asabas (relatives in accordance with the earlier-mentioned sequence). If there is no asaba then the mother will become the wali. If someone who is not a wakil [for example, one of the walis of a boy or a girl who is at the age of puberty, or a stranger] marries him/her to someone whom they do not know and tells him/her later on, if he/she does not refuse it when he/she hears it, then the nikah becomes sahih. When the child reaches the age of puberty, he/she can refuse the nikah which was performed by his/her wali other than his/her father and father's father.
In Hanafi Madhhab it is not a must-condition to say the words "tazwij or nikah" as the nikah is performed. A nikah will also become sahih by such expressions as: "I have given you as a present or gift," "I have given you," "I have given you as a charity," "I have sold," "I have bought." If both parties use these types of expressions, then they have to use the perfect tense of the verbs, (that is, the tense that shows that the action has been done). If one party says it in the imperative form and the other party uses the perfect tense, the nikah will also be sahih. A wali can marry a small girl who is under the age of puberty to her kufw (her equal in rank or social status). In the other three Madhhabs only the father can give in marriage his daughter who is a virgin and over the age of puberty. She does not have to be under the age of puberty for being given in marriage by her father.
It is written in the book Mizan al-Kubra: "In Shafi'i
and Hanbali Madhhabs the wali has to be present during the nikah; otherwise,
the nikah will not be sahih. A woman cannot be a wali. In Hanafi Madhhab,
a woman can get married without a wali and can appoint someone her deputy,
yet if a woman marries someone who is not her kufw, her wali can interfere
and stop the marriage. In Maliki Madhhab, if a woman is one of the notables
of the town and is rich, then her wali has to be present at the nikah.
If a woman is not one of the notables of the town and is not rich, then
she can get married through her wakil. In Shafi'i and Hanbali Madhhabs
a fasiq (sinner) cannot be a wali but in Hanafi and Maliki Madhhabs a fasiq
also can be a wali. In Shafi'i Madhhab if a closer wali is a safari distance
(around 108 km), then a farther wali can give her in marriage. [A farther
wali is one who is later in the sequence of being a wali.] In the other
three Madhhabs a farther wali cannot give her in marriage. In Hanafi and
Maliki Madhhabs if nobody knows the whereabouts of the closer wali, then
her brother can give her in marriage to someone, but in Shafi'i Madhhab
he cannot give her in marriage. In Shafi'i Madhhab the father and the father's
father can force her to marry a choice of theirs. In the Maliki and Hanbali
Madhhabs only her father can marry her to someone of his own choice, but
not by force. In Hanafi Madhhab a girl who is above the age of puberty
cannot be given in marriage by anyone without her consent. In the other
three Madhhabs a girl who is under the age of puberty cannot be given in
marriage by anyone except her father. In Hanafi all asabas (paternal relatives)
can give her in marriage but she can refuse the marriage when she reaches
the age of puberty. In Hanafi and Maliki Madhhabs her wali can marry her
to himself. In the Hanbali Madhhab a wali can marry her to himself through
his wakil. In Shafi'i Madhhab he cannot even marry her through his wakil.
In the three Madhhabs, when a woman and her walis permit, she can marry
someone other than her kufw, but in Hanbali Madhhab she cannot marry someone
other than her kufw. In Shafi'i and Maliki Madhhabs a wali cannot marry
her to someone who is not her kufw with his own desire. In Hanafi Madhhab
he can do that.
In Shafi'i Madhhab kufw is a must-condition in lineage, crafts, religion, flawlessness, and freedom. In Maliki Madhhab kufw is necessary only in religion. In Hanafi Madhhab, kufw applies to religion, lineage and property. In all the (four) Madhhabs, the first condition is for the man to be a Muslim and the woman not to be a polytheist. In Hanafi Madhhab a woman who is married to someone who is not her kufw can be separated by her walis. In the other three Madhhabs, if her walis do not give her permission, the nikah will not be sahih anyway. In the Maliki Madhhab a woman who wants to get married to someone of her kufw with a mahr which is less than the mahr al-mithl can be stopped by her walis. According to the other imams her walis cannot stop her from such a marriage. In the three Madhhabs, a nikah which is performed by a farther wali in the presence of a closer wali will not be sahih, but in Maliki Madhhab only the nikah of a virgin girl which is performed by a farther wali in the presence of her father will not be sahih.
If a man states that "So and so (name of the woman) is my wife" and she confirms him their marriage will be valid according to three Madhhabs. In the Maliki Madhhab, however, their nikah will not be valid.
In three Madhhabs, a nikah performed without witnesses will not be sahih. If it is done in the presence of witnesses it is permissible to keep it a secret. In Maliki Madhhab, the nikah will be sahih, but it has to be announced among the acquaintances. In the Shafi'i and Hanbali Madhhabs, the two witnesses (who are necessary for the nikah) have to be known by the community as men of integrity. In the Hanafi Madhhab, the nikah will be sahih also through the testimony of one man and two fasiq (sinful) women. In (the other) three Madhhabs, when a Muslim man marries a zimmi woman, the two witnesses have to be Muslims. In the Hanafi Madhhab the two witnesses can be zimmis. Conversation between the parties is a sunnat during the nikah. In Shafi'i and Hanbali Madhhabs it is a must- condition to say the word 'Tazwij' or 'Nikah.' In Hanafi Madhhab a nikah will be sahih by saying any kinds of words expressing possession. This matter in Maliki Madhhab is similar to that in Hanafi, but the mahr has to be mentioned.
If one says, "I have married my daughter to so and so (name of the person)" and that person hears this statement and says that he has accepted the nikah, according to all 'alims (scholars), the nikah will not be sahih. According to Abu Yusuf (rahmat Allahu ta'ala 'alaih), it will be sahih.
In Shafi'i Madhhab if one says, "I have married my daughter to you," and that man says, "I have accepted it," the nikah will not be sahih. He has to say, "I have accepted her nikah," or "her tazwij,", but according to Hanafi, Hanbali and other criteria in the Shafi'i (rahmat Allahi 'alaih), the nikah will be sahih.
Imams (rahmat Allahu ta'ala 'alaihim ajmain) of three Madhhabs said that it would be jaiz (permissible) to marry a disbelieving woman with a holy book by accepting her from her wali, but in Hanbali Madhhab it is not jaiz. When a man marries a woman on condition that he will not marry another woman besides her, or that he will not take her somewhere else in the future, according to the three Madhhabs his nikah will be sahih and it is not necessary for him to keep his promise, yet in this case he will have to pay her the mahr al-mithl. Imam-i Ahmad ibn-i-Hanbal 'rahmat-Allahi ta'ala alaih' said that "The man will have to keep his promise; if the man does not keep his promise, the woman can dissolve the marriage."
When a father wants to get married, it is not obligatory for his son to marry him, (that is, to help him marry a woman), in Hanafi and Maliki Madhhabs. [It is advisable to help one's father get married.] In Shafi'i and Hanbali Madhhabs, the son has to marry his father, (that is, to help him get married).
In the Hanafi Madhhab, a woman can dissolve the marriage if the man is incapable of the sexual act. In the other three Madhhabs, she can dissolve the marriage if the man has any kind of deficiency. If these deficiencies occur after the nikah, she can still dissolve the marriage. If there is a deficiency in the woman, according to Hanbali and one fatwa in Shafi'i, the man can dissolve the marriage; according to Maliki and another fatwa in Shafi'i, he cannot dissolve the marriage." Translation from the book Mizan al-Kubra ends here. Khusumat means to file a complaint against someone. A woman who does not have any defect can apply to the court to dissolve the marriage if she finds out that her husband is innin, even if a long time passes after their marriage. If the man denies it, the judge sends the woman to an obstetrician's to be examined. If the doctor says that the woman is virginal, one year later that examination is performed again. If she is found out to be virginal again the judge separates them. In this state of separation the exact mahr and iddat are obligatory. Though the woman will lose her right of khusumat after one sexual intercourse, it is sinful not to have any more sexual intercourse. Innin is a man who is incapable of having sexual intercourse because of old age, or having trouble with his genital organ or magic. They cannot apply to the court to dissolve the marriage for any other reason. It is written in the book Ibn al-Abidin and in the fatwas of Haniyya, Tatarhaniyya and Abullays that a nikah is not sahih if it is made dependent on a condition to be fulfilled beforehand. A good example for this is to say, "I have married you provided that my father gives his consent." It is written in the book Ibni 'Abidin, at the end of the chapter of "Muharramat" that, if she says, "I have married you if my father consents to it," and if her father is present there and says that he has consented to it, then that nikah will become sahih. Another example of a conditional case is explained in the books Ibni Abidin, Kitab-ul fiqh alal-Madhahib-il arba'a and Nimat al Islam. While explaining the performance of a nikah, the authors of these books said that if a woman says to a man, "I am getting married to you on condition that I will be able to divorce you whenever I choose to," and if the man states that he accepts her condition; then, the nikah will be sahih and she will also hold the right to divorce him." If a woman who does not have a husband or a mahram wants to go on a long journey, such as on Hajj, or if Hulla has become necessary she can get married to someone by the above-explained conditional manner. It is seen from these examples that Islam's criticizers who say that in Islam only men hold the right to divorce or who say that women are like playthings in the hands of men are quite wrong. They do not know anything about Islam. These liars and slanderers with their false criticisms and allegations are estranging youngsters from Islam. The quotation given above shows clearly that a man can transfer the right to divorce to his wife at the time of the marriage contract, and as a consequence of this, she can get a divorce whenever she desires. look up the word "Tafwid" at the end of the chapter about Talaq for further information.
During the contract of marriage, if one offers a fasid (unacceptable, wrong) condition to be satisfied, the nikah will be sahih, but the condition will not be carried out. For example, if one says, "I have married you on condition of not giving a mahr to you," the nikah will be sahih, but the condition will be invalid and it will be necessary to give her mahr al-mithl.
MAHRKitab-ul fiqh alal-madhahib-il arba'a states, "The mahr comprises things like gold, silver, banknotes, or any kind of property or any kind of benefit that is given by a man who wants to get married to the prospective bride. There are two types of mahr. Paying the first type of mahr becomes wajib immediately after the nikah is performed and half or all of it is liable to lapse. This type of mahr is termed mahr-i muajjal. The amount of the second type of mahr is determined while performing the nikah, but it will be wajib to pay after one of the three things happens, and it is not abatable. This type of mahr is called mahr-i muajjal. If neither type of mahr is specified during the nikah, the mahr-i mithl has to be given later on. If one's wife does something which causes a separation such as being a renegade, or causing Hurmat-i musahara, the man never pays any amount of the mahr-i muajjal. But, if a man divorces his wife, or if he does something which causes a separation, the man has to pay half of the mahr-i muajjal. Three things make giving the mahr-i muajjal wajib. These three things are having sexual intercourse, being alone together, and the death of one of the partners. When any one of these three things occurs, the husband has to pay also the mahr-i muajjal which he hasn't paid yet, and its amount cannot be decreased. Once a sexual intercourse has taken place or the wife and husband have stayed alone, the mahr has to be paid completely when the time determined during the nikah comes, or in case of separation. If the wife dies, the mahr is paid to her heirs. If the husband dies, the wife is paid from her husband's inheritance. Being alone with one's wife, which is legitimate, is different from being alone with a na-mahram woman. This latter case is haram (forbidden). Being alone with one's wife is not deemed to have occurred if they are accompanied by anything that can prevent, either sentimentally, or canonically, or naturally, their having sexual intercourse. In cases such as when one of them becomes ill or wears ihram or is performing the namaz or fasting or if the woman is in a period of menstruation or lochia, or if the couple is accompanied by a discreet child, the couple are not deemed canonically to have stayed alone together. The wife is free to give her mahr to her husband, or if he is dead,, to her husband's heirs as a present. The wife's father does not have the right to give his daughter's mahr to his son-in-law as a present." It is written in the book Ibn-i Abidin, "The wife can transfer her debtor to her husband to be paid with the mahr which she has not been paid yet. She can donate her mahr to someone else as a present and assign him as her proxy to take her mahr from her husband. For, the money to be taken from the debtor can be presented only to the debtor. For presenting it to someone else, that person must be assigned as proxy to take the money."
It is written in the book "Fatawa-al-hindiyya" that "If
during the process of nikah one only mentions the mahr but does not specify
the amount of the mahr al-muajjal, a portion of the mahr will become the
mahr al-muajjal. This portion will be determined according to the customs
and social status of the woman. If the whole of the mahr is said to be
mahr-i muajjal and a certain date for payment is appointed, when the date
of payment comes the wife cannot refuse to have sexual intercourse with
the intention of enforcing her husband to do the payment soon. If the mahr
will become a mahr-i muajjal one year later, and if the husband sets the
condition during the nikah that he will have sex with her before the payment
of the mahr it will be jaiz to have sex without paying. According to al-Imam-i
Muhammad (rahmat Allahi ta'ala 'alaih), even if he does not set he condition
the case will be the same. If he sets the condition that he will be allowed
to have sex before paying the mahr-i muajjal, it will be jaiz (permissible).
If a portion of the mahr is mahr al-muajjal and the other portion is mahr
al-muajjal, even if the sexual act has been performed with the consent