Sunday 28 December 2008
In Islam the word most commonly used for marriage is “nikah” (sexual intercourse). As a legal term it denotes the situation resulting from a contract, entered into by man and a woman, by which sexual intercourse between them becomes legitimate in the eyes of Allah and the society. The only other legitimizing this sexual relationship is by a man’s purchasing a female slave, but is complicated discussion that cannot concern us here. Marriage as legal institution can also be defined and explained in terms of a number of ‘pillars’(arkans) and ‘statutes’(ahkam) and , which used in what we fallows. The pillars are those keys of the marriage contract whose absence nullifies the contract. The statutes are the rule that governs the contract. The Pillars of the Marriage Marriage has set of pillars , two according to set to the Shiite Muslims three according to Malikis and Hanafis, and four according to the Hanbails and Shafi. All school of agree on the frist two pillars ie ‘formula’ and ‘persons’. The formula (sigha) Marriage is legalized by a contract (aqd), which, like all other contract in Islam, consists of a declaration (ijab) and an acceptance (qabul). The women declares that she is entering into a relationship of marriage with the man, and he accepts her as his wife. The school differs as to the exact words that may be used in woman’s declaration. The Shafiis and Hanbalis hold that a formula derived from the words ankahtu-ka means ‘I have married you’. The Malikis maintain that if the amount of the dower to be paid to the wife, the woman may also ‘I give myself to you’ (wahabtu-ka). The Shiite Muslims do not include the verb ‘to give’, but they added the formula,’Isurrender myself to your pleasure’(matta’tu-ka). The Hanafi school is freest in respect of the formula, allowing any number of expressions to be used any word, even certain indirect formulas. All schools agree that the man may show his existence by using any words which denotes his satisfaction with the contract. The Hanbali, Maliki, and Shiite Muslims schools hold the verb for both declaration and acceptance must be in perfect tense. According to Hanafis school, the present tense may be used as long as what is ment is directed towards the future, i.e., does not denote the seeking of promise of marriage; according to the Shafi’is , the present tense may used if it excludes the possibility of being interpreted as a promise of marriage, e.g., by adding the word ‘right now’ (al-an). All agree that both declaration and acceptance must be uttered at single session. It is not necessary for declaration to precede the acceptance, except according to the Hanbalis. The persons(mahall) The man and women must be free of all shar’I hindrances to their marriage,. The identity of the spouse must be clearly specified. Thus, for example, if the guardian should say: ‘I give one of my daughter to you in marriage’. And the man should accept the contract is invalid. A woman may not marry a husband who is not ‘equal’(kafa)to her. According to Shiite Muslims, this means only the women’s husband must be a Muslim. The Sunni schools add equality in terms of various social considerations. Not only the man be a Muslim, he must also have a social standing at least equal to the woman’s. In other words, she may not marry anyone below her rank in society, though a man may do so. Equality’ here is defined in terms of a number of factors which differ slightly among the four schools. The Hanafis mention Islam, lineage, profession, liberty, piety, and property. The Shafi is list linage, religion and profession, differing only slightly in the words employed from the Hanbalis. The Malikis mention piety and freedom from physical defects detrimental to marriage. A man and women may be forbidden from marrying for several reason: 1. Blood relationship (qaraba). A man may not marry the following women: his mother, his daughter , his sister, his nieces, or great aunts. 2. Relationship by marriage (musahara). A man may not marry his mother, his daughter , his sister, his nieces, or great aunts, the ex-wife of his son, grandson, the ex-wife of his father or grandfather. 3. There are certain women whom a man can marry singly. But not at the same time. These are two sisters, a women and the sister of her mother or father. In the second case, the Shiite Muslims take exception to the four sunni schools by saying that if the aunt agrees to share her husband with niece, the contract is valid. Except for daughter of his wife, in the three other instances of relationship by marriage, the woman becomes forbidden to the man as soon as the marriage contract is concluded; consummation of the marriage is not necessary. But if a man wants to marry the daughter of a wife whom he has not consummated his marriage, he can do so if he first divorces the wife. Once the marriage has been consummated, the wife’s daughter is forbidden to him forever, whether or not the marriage contract is valid. If a single contract, both marriages are invalid. In both cases, should he first marry one and then the other, the first contract is valid and the second void. The schools of law differ as to what exactly establishes the unmarriagebility of women as the result of a relationship by marriage. For the Hanafism, unmarriagebilit is established by a valid marriage contract, sexual intercourse in whatever context love play, or looking at the private parts of a person of the opposite sex. The Shafi’is hold that unmarriagebilit is established only by a valid contract. 4. Foster relationship because of suckling (rida). In establishing unmarriagebility, a foster mother who suckles an infant is considered exactly as infant’real mother, provided that all the shar’I conditions for this relationship are fulfilled, as detailed below. In other words, the children of the foster mother are considered as the child’s siblings, and all of her other relatives are considered exactly as if they were truly the child’s relatives by blood or marriage. 5. Religious difference. A women may not marry a non-muslim. In sunnism, a man marry a women who is one of the ‘people of the book’(ahl al-kitab)i.e., Christians, jews and other religious with revealed scriptures). But in Shi’ism a man may not contract a permanent marriage with a non-Muslim, though he may marry one of the people of the book temporarily. If either of the spouse should become an apostate, the marriage is automatically annulled. 6. Maximum number of wives. A man may not have more than four wives at one time. If a man divorce one of his wives, he cannot remarry until her waiting period is completed. 7. Divorce. If a man should have divorced his wife irrevocably, she is forbidden to him forever, unless she should marry another man and obtain a divorce from him. Once the women’s waiting period has expired, she may remarry her first husband. The women’s husband is known as the muhallil,’he who makes (marriage to her first husband) lawful. The marriage with the muhallil must be consummated. 8. Sworn allegation. Having annulled his marriage through sworn allegation a man may never remarry the women.
Posted by muntazirmehdi at 12:10 AM