BOOK M: MARRIAGE
Table of Contents:
m1.0 WHO SHOULD MARRY
(O: The legal basis for marriage, prior to scholarly consensus (ijma') is such Koranic verses as.
and hadiths such as,
which was related by Shafi'i.)
m1.1 A man who needs to marry (O: because of desire for sexual intercourse) and has enough money (O: for the bride's marriage payment (mahr def;m8), for clothing for the season of the year in which he marries, and the expenditures of one day) is recommended to do so (O: to protect his religion, no matter whether he is occupied with religious devotions or not). One who needs to marry but does not have enough to pay for these expenses is recommended not to marry. but rather to suppress his sexual desire by fasting (O: and if it is not suppressed by fasting, then he should marry, borrowing the money to pay the bride's marriage payment if she will not accept his owing it to her).
m1.2 It is offensive for someone who does not need marriage (O: being undesirous of it because of a physical defect or other reason) to marry when he does not have enough money to cover the expenses. Marriage is not offensive for a man who has enough money, even when there is something that might prevent him from doing so such as old age or a chronic illness, though it is superior for him to devote himself to worship instead (O: being occupied with enjoyments and not thinking of worship at all) then marriage is better (O: since someone whose lack of sexual desire is not due to a physical defect may later have such desire, as opposed to someone whose lack of desire is because of such a defect, to whom this will not happen).
m1.3 As for a woman, if she needs to marry, it is recommended for her to do so, though if she does not, (O: not feeling any sexual desire within herself, and she is engaged in worship,) then it is offensive for her to do so. (N: Though such a woman needs a husband or unmarriageable relative to travel and so forth (dis:m10.3).)
DESIRABLE CHARACTERISTICS IN A BRIDE
m1.4 It is recommended for a man to marry a virgin (O: unless there is a reason not to, such as sexual incapacity or needing someone to take care of his children) (A: though it is permissible to marry a nonvirgin even if she has not previously married (dis: p12.1(3(n:)))) who is fertile (O: which in a virgin is inferable from her relatives), attractive, intelligent, religious, of a good family, and not a close relative. (O: In Sharh al-Minhaj, Ibn Hajar notes that when one must choose between the above characteristics, the order of preference should be:
m2.0 ENGAGEMENT AND LOOKING AT THE OPPOSITE SEX
SUNNAS OF ENGAGEMENT
m2.1 (O: It is recommended for a guardian to offer his marriageable female charges in marriage to righteous men. It is sunna:
LOOKING AT ONES PROSPECTIVE BRIDE
m2.2 The sunna when one wants to marry a woman is to look at her face and hands (O: as the face indicates her beauty, and the hands her robustness of body. Tirmidhi reports from al-Mughira that when he got engaged to a woman, the Prophet (Allah bless him and give him peace) said.
"Look at her, for it is likelier to last between you."
meaning that love is likelier to last, and tenderness) before getting engaged to her, even if the woman does not give her permission to do so (O: since the Lawgiver's permission is sufficient). Such a person is entitled to repeat looking at her (A: as many times as he wishes) (O: when he needs to make sure of how she looks, so he does not come to have regrets after getting married. And she is entitled to do the same) but he may not look at other than her face and hands. (O: If unable to go see her, he should send a reliable woman to go see he for him, as such a woman would be likely to notice more than he, and she may describe her to him, this being an exception to the unlawfulness of describing a woman to a man who is not one of her unmarriageable kin.)
LOOKING AT MEMBERS OF THE OPPOSITE SEX
m2.3 It is unlawful for a man to look at a woman who is not his wife or one of his unmarriageable kin (def: m6.1) (O: there being no difference in this between the face and hands or some other part of a woman (N: if it is uncovered), though part excludes her voice, which is not unlawful to listen to as long as temptation is unlikely. Allah Most High says,
``Tell believers to lower their gaze'' (Koran 24:30).
A majority of scholars (n: with the exception of some Hanafis, as at m2.8 below) have been recorded as holding that it is unlawful for women to leave the house with faces unveiled, whether or not there is likelihood of temptation. When there is likelihood of temptation, scholars unanimously concur that it is unlawful, temptation meaning anything that leads to sexual intercourse or its usual preliminaries. As for when there is real need (dis: m2.11), looking is not unlawful, provided temptation is unlikely).
(A: Being alone with a woman who is not one's wife or unmarriageable kin is absolutely unlawful, though if there are two women and a man, the man and the woman are no longer considered alone.)
m2.5 A man may look at his unmarriageable female relatives (def: m6.1), and a woman look at her unmarriageable male relatives (m6.2), viewing any part of the body (n: that shows e.g. while they are working) except what is between the naval and knees.
m2.6 As for a woman looking at (O: a man) other than her husband or unmarriageable male relatives, it is unlawful, just as a man's looking at her is.
m2.7 It is unlawful for a woman to show any part of her body to an adolescent boy or a non-Muslim woman (n: unless the latter is her kinswoman (def: m6.1 (1-12)), in which case it is permissible (Mughni al-muhtaj ila ma`rifa ma`ani alfazal-Minhaj (y73), 3.132)).
(al-Lubab fi sharh al_kitab (y88), 4.162-63)
m2.9 Whenever looking is unlawful, so is touching (O:whenever meaning the part; i.e. whatever is unlawful to look at is also unlawful to touch). (N: And any permissible looking that leads to temptation is unlawful.) (A: Ordinary people sometimes mistakenly assume that the Hanafi position that touching a woman does not nullify one's ablution (wudu) means they permit men shaking hands with women who are not wives or unmarriageable relatives, something which is unlawful, and which neither the Hanafi school nor any other holds to be permissible.)
DOCTORS TREATING PATIENTS OF THE OPPOSITE SEX
m2.10 Both (O: looking and touching) are permissible for medicinal bloodletting, cupping, and medical treatment (N: when there is real need. A Muslim woman needing medical attention must be treated by a Muslim woman doctor, or if there is none, then by a non-Muslim woman doctor. If there is none, then a male Muslim doctor may treat her, while if non of the above are available, then a male non-Muslim doctor. If the doctor is of the opposite sex, her husband or an unmarriageable male relative (def: m6.2) must be present. It is obligatory to observe this order in selecting a doctor). (A: The same rules apply to Muslim men with regard to having a doctor of the same sex and religion: the same sex takes precedence over the same religion.)
(O: Necessary treatment of her face or hands permits looking at either. As for other parts of the body, the criterion for permissibility is the severity of the need for treatment, meaning that there must be an ailment as severe as those permitting dry ablution (def: e12.9), and if the part concerned is the genitals, the need must be even more acute (N: though it includes gynecological examinations for women with fertility problems, which are permissible).
PERMISSIBLE LOOKING AT A MARRIAGEABLE MEMBER OF THE OPPOSITE SEX
m2.11 Looking at a woman is permissible for testimony in court, for commercial dealings (O: with a marriageable man, or noncommercial dealings, as when he wishes to marry her), and so forth (O: such as obligatory or recommended learning (def: a4, a6)), in which cases looking is permissible to the degree required. (O: It is not permissible to exceed the degree required, as when looking at part of the face is sufficient, in which case looking at the rest of it is not permissible, as it exceeds the amount required.)
RULES FOR PROPOSING MARRIAGE OR ACCEPTING A PROPOSAL
m2.12 It is unlawful to propose marriage, openly or allusively, to another's wife when she is in the waiting period of an unfinalized (A: i.e. less than threefold (dis: n9.0 (N:))) divorce (O: because she is still considered as a wife is).
(O: Proposing allusively is only permissible in such cases because of the husband's lack of authority over her. To propose openly means to decisively indicate one's desire to wed, such as by saying, ``I want to marry you,'' while to propose allusively means to employ words that could indicate a desire to marry or something else, such as ``I am desirous of you,'' or ``Your are beautiful,'' for these do not necessarily imply a desire for marriage.)
m2.15 It is unlawful to propose marriage to a woman to whom another has already done so, if the first proposal has been openly accepted, unless the first suitor gives his permission. (O: And like his permission in the legality of another proposing to her is when the first suitor has shown himself disinclined, such as by having given up, or when enough time has elapsed to give others the impression that he no longer wants to marry, or when the woman's guardian (def: m3.4) becomes averse to him.) But if the first suitor's proposal was not openly accepted, then a second suitor may propose to her. (O: It is also permissible for one to take the initiative and propose to a woman when one does not know whether or not she is engaged, or whether the first proposal was plainly accepted or not.)
m.2.16 Whoever is asked about what kind of person a prospective groom is should truthfully mention his failings (O: meaning his defects and mistakes. This is obligatory (N: but only to the degree necessary (A: to protect the person who is asking)), as Nawawi has stated in al-Adhkar (dis: r21.20(2))).
m2.17 It is recommended to give a short address when (O: i.e. before) making a marriage proposal (O: address meaning words begun by praising Allah and concluded with a supplication and moral exhortation. If one wants to be brief, one may simply say, `` Praise be to Allah, and blessings and peace upon the Messenger of Allah (Allah bless him and give him peace). I enjoin you to fear Allah . I have come to you to engage your noblest [A: mentioning her name].'' Then her guardian gives a similar address).
It is also recommended to give another brief address when (O: i.e. just before) the marriage contract is made, saying (O: i.e. it is recommended for the guardian to say, before the contract is formally effect), ``I marry her to your according to the command of Allah Most High, to kindly retain or graciously release.''
m3.0 THE INTEGRALS OF A MARRIAGE AGREEMENT
m3.1 Marriage has integrals (A: which are five in number:
THE SPOKEN FORM
m3.2 The first integral is the explicitly stated spoken form (O: comprising a spoken offer by the guardian and its acceptance by the groom, like other, nonmarital transactions. Its necessary conditions are the same as those of valid sale (def: k1.1(a,b,c,d,e))), the form being valid in languages other than Arabic even when one is able to speak Arabic.
The spoken form is not valid if allusive. Nor is it valid without:
(N: The spoken form, when the other integrals exist, is what is meant by the term marriage contract, not an actual written document, though it is sunna to write it. Extraneous conditions added to the marriage contract, such as that the husband observe monogamy or the like, are not binding, being meaningless, though they do not invalidate the marriage agreement, which remains effective.)
m3.3 The second integral is that the marriage have witnesses, it not being valid unless two witnesses are present who are:
THE BRIDE'S GUARDIAN
m3.4 The third integral is the (A: bride's guardian (O: since a woman may not conduct her own marriage. Ibn Majah relates that the Prophet (Allah bless him and give him peace) said.
``Let no woman marry a woman to another or marry herself to another.''
Daraqutni related this hadith with a chain of transmission meeting the standards of Bukhari and Muslim). The marriage agreement is not valid without a guardian who is:
The following may not be a bride's guardian:
A non-Muslim responsible for a non-Muslim bride may be her guardian (O: provided he does not violate the rules of his own religion), though a Muslim may not.
m3.6 (n: If the bride has no Muslim guardian and there is no Islamic magistrate to act as one, she may authorize a male Muslim who has the qualifications of an Islamic judge (def: o22.1)-or if there is none, then a male Muslim who is legally upright (def: o24.4)-to act as her guardian in marrying her to the groom (Mughni al-muhtaj ila ma`rifa ma`ani alfaz al-Minhaj (y73), 3.147).)
THE ORDER OF LAWFUL GUARDIANSHIP AMONG THE BRIDE'S RELATIVES
m3.7 The male relatives of a free woman are the ones who may marry her to another, and the order (O: as to who has the right to be her guardian) is her:
None of the above may marry her to someone when a family member higher on the list exists. If there are two of equal standing (A: two brothers, for example) and one is related to her through two parents while the other is related to her through the father alone, then the one related to her through both parents is the guardian. If both are equal in this respect, precedence is given to the oldest, most learned in Sacred Law, and most god-fearing. But if the other (A: less deserving of two would-be guardians who are of equal affiliation to her) marries her to the groom, the marriage is valid. If both insist on being the one, they draw lots to see who will do it, though if the loser marries her to the groom, the marriage is also legally valid.
m3.8 If a guardian does not have the right to be a guardian because of the existence of one of the above- mentioned preventives (dis: m3.4 (1-5)), the guardianship devolves to the next family member in the m3.7 order of lawful guardians.
THE BRIDE'S RIGHT TO MARRY A SUITABLE MATCH OF HER CHOICE
m3.9 Whenever a free woman asks to marry a suitor who is a suitable match (def m4) (O: by telling her guardian, ``Marry me to him''), the guardian must marry her to him (O: whether she is a virgin or nonvirgin, and whether prepubescent or not). The Islamic magistrate (A: i.e. judge marries her to such a groom if the guardian:
In such cases, the guardianship does not devolve to the next most eligible in the m3.7 order of lawful guardians, If (non-(2) above) the guardian is on a journey of less than 81 km./50 mi, from home, the bride may not be married to someone without the guardian's leave.
COMMISSIONING ANOTHER TO EFFECT THE MARRIAGE AGREEMENT
m3.10 The guardian may commission another (def: k17.5-6) to marry his charge to someone, though it is not permissible to commission someone who himself lacks the requisite conditions (m3.4(a,b,c,d,e)) to be a guardian.
The groom too may commission someone to accept the marriage agreement on his behalf, provided the person commissioned is someone who would be legally entitled to accept such a marriage for himself. (O: A child, for example, may not accept a marriage for himself, let alone someone else, nor may a woman be commissioned for this, nor someone in a state of pilgrim sanctity (ihram).)
m3.11 Neither the guardian of the bride nor his agent may state the marriage offer (def: m3.2(a)) for the guardian's own marriage (A:to her). If her guardian wants to marry her, as when, for example, he is the son of her father's brother, then he lets a different son of the father's brother stand in as guardian. If there is no one in his own degree (A: of relation to her), then the Islamic judge stands in as guardian.
GUARDIANS WHO MAY MARRY A VIRGIN TO A MAN WITHOUT HER CONSENT
m3.13 Guardians are of two types, those who may compel their female charges to marry someone, and those who may not.
Whenever the bride is a virgin, the father or father's father may marry her to someone without her permission, though it is recommended to ask her permission if she has reached puberty. A virgin's silence is considered as permission.
As for the nonvirgin of sound mind, no one may marry her to another after she has reached puberty without her express permission, no matter whether the guardian is the father, father's father, or someone else.
m3.15 No guardian may marry a woman to someone who is not a suitable match (def: m4) without her acceptance and the acceptance of all who can be guardians (def: m3.7). If the Islamic magistrate is her guardian, he may not under any circumstances marry her to someone who is not a suitable match for her.
If the bride selects a suitor who is not a suitable match for her, the guardian is not obliged to marry her to him. If she selects a suitable match but her guardian chooses a different suitor who is also a suitable match, then the man chosen by the guardian takes precedence if the guardian is one who may lawfully compel her to marry (def: m3.13(1)), while the one she selects takes precedence when the guardian may not lawfully compel her to marry (m3.13(2)).
m4.0 A SUITABLE MATCH (KAFA'A)
(N: The definition of a suitable match should not be misunderstood as a recommendation for whom to marry. It is merely a legal restriction to protect a woman's interests when the father or grandfather of a virgin marry her to someone without her consent (dis: m3.13, 15). As for when she wishes to marry someone who is not a suitable match, and her guardian has no objection, there is nothing wrong or offensive in her doing so.)
m4.1 Suitability concerns lineage, religiousness, profession, and being free of defects that permit annulling the marriage contract (def: m7). (N: As for color, it is of no consideration in suitability.)
m4.2 The following are not suitable matches for one another:
Being wealthy has nothing to do with suitability (O: for money comes and goes, and those with self- respect and intelligence do not take pride in it), nor does being elderly.
m4.3 The marriage agreement is invalid whenever a guardian marries his charge to someone who is not a suitable match for her, if done without both her acceptance and the acceptance of all who are eligible as guardians (def: m3.7) and are on the guardian's level of relation to her (A: such as his brothers). But if both these parties agree, then the bride's relatives further from her than the guardian may not object.
m4.4 When the father or father's father see that the best advantage is to be served by marrying a young boy (or girl) to someone, they may do so, though they are not entitled to marry the child to someone with a physical defect (dis: m7) that legally permits annulment of the marriage.
m4.5 If a person is foolhardy (safih, def: k13.1(A)) or continuously insane, but needs to marry, then his father, grandfather, or the Islamic magistrate may marry him to someone. If they grant permission to the foolhardy person to marry himself, his marriage is valid, though if he does so without their leave, it is invalid.
m5.0 CONJUGAL RIGHTS
THE WIFE'S MARITAL OBLIGATIONS
m5.1 It is obligatory for a woman to let her husband have sex with her immediately when:
As for when sex with her is not possible, such that having it would entail manifest harm to her, then she is not obliged to comply.)
If she asks him to wait, she is awaited, to a maximum of three days (O: She does not ask to wait because of not having finished her period or postnatal bleeding, for there is not physical harm entailed in her complying as she is, though if she fears that such foreplay with him will lead to actual copulation (A: which is unlawful under such circumstances), then she may refuse, as that is not obligatory). (n: w45 discusses wives' other duties to husbands.)
THE WIFE'S RIGHT TO INTERCOURSE
m5.2 (Imam Ghazali:) One should make love to one's wife every four nights, as is fairest, since the number of wives one may have is four, and one may wait this long to do so, though one should make love to her more or less than this, according to the amount she needs to remain chaste and free of want for it (N: if one is able), since it is obligatory for a husband to enable her to keep chaste (Ihya' `ulum al- din (y39), 2.46).
THE WEDDING NIGHT
m5.3 The first time they sleep together, it is recommended for the husband to grasp his bride's forelock and supplicate Allah for an increase in blessings (baraka) (O: such as by saying, ``May Allah bless each of us in their partner'').
THE HUSBAND'S RIGHTS
m5.4 A husband possesses full right to enjoy his wife's person (A: from the top of her head to the bottoms of her feet, though anal intercourse (dis:p75.20) is absolutely unlawful) in what does not physically harm her. He is entitled to take her with him when he travels.
m5.5 The husband is permitted to practice coitus interruptus (n: w46 discusses the relation of this to other methods of contraception) in lovemaking with his wife (O: meaning to make love to her until he feels an impending orgasm, when he withdraws to ejaculate outside the vagina) though it is better not to (O: it being considered offensive in our school (dis: w46.2) because it is a means to prevent reproduction).
m5.6 The husband is entitled to insist that his wife undertake both the measures necessary for having sex with her such as the purificatory bath (ghusl) after her monthly period, and those necessary to full enjoyment of her such as the purificatory bath after major ritual impurity (janaba), shaving her private parts, and removing filth.
m6.0 UNMARRIAGEABLE KIN (MAHRAM)
(N: It is unlawful for one to marry one's ancestors, descendants, parents' descendants, or the first generation of one's grandparent's offspring, meaning one's paternal or maternal aunts (n: or uncles, if one is female). One's unmarriageable kin (mahram) are those one is forbidden to marry forever.)
m6.1 It is unlawful (O: meaning both sinful and legally invalid) for a man to marry his:
m6.2 (N: It is unlawful and invalid for a woman to marry her:
m6.3 It is unlawful for a man to marry both:
(N: but if a man is no longer married to one of the above and the waiting period (def: n9) has expired, then he may marry the other.)
m6.5 The same categories of relatives who are unlawful for one to marry because of one's kinship relation to them are also unlawful to one by ``foster relationship,'' through having been breast-fed by a particular wet nurse in infancy (dis: n12.2) (N: since someone nursed in infancy by a woman is prohibited to marry those whom her offspring and her husband's offspring are prohibited to marry).
m6.7 It is unlawful for a Muslim man to marry:
m6.8 It is unlawful for a man who has divorced his wife by public imprecation (def:n11) to remarry her (N: though she is not considered his unmarriageable kin (mahram), and he may not look at or be alone with her).
m6.10 It is unlawful for a free man to marry more than four women. It is fitter to confine oneself to just one.
m6.12 The following types of marriage are legally invalid:
m7.0 DEFECTS IN THE SPOUSE PERMITTING ANNULMENT OF MARRIAGE
m7.1 In any of the following circumstances, the husband or wife has the option to annul the marriage agreement immediately, if this is done in the presence of the Islamic magistrate (O: or a third party chosen to judge between them (dis: o21.4), provided that he is a mujtahid (def: o22.1(d)) and there is no Islamic judge), even when the partner annulling the marriage has the same defect whose existence in the spouse has motivated him or her to annul it (O: as when, for example, both are insane):
The agreement may also be annulled when the defect occurs after making the marriage agreement, except when a husband's impotence occurs after he has had sexual intercourse with his wife, in which case annulment is no longer possible. When a husband (N: impotent from the beginning) acknowledges his impotence, the magistrate postpones action on the case for one year from the day it is first submitted to his consideration. If the husband has intercourse with her during the year, then she is not entitled to annul the marriage, though if he does not, then she may annul it. In cases of impotence, her above- mentioned prerogative of annulling the marriage ``immediately'' means after this period of one year.
m7.2 When a marriage is annulled before sexual intercourse, the woman does not receive her marriage payment (mahr) (N: no matter whether the defect is in her or in him (A: as opposed to divorce before sexual intercourse, as discussed at m8.7)).
When a marriage is annulled after intercourse because of a defect that occurred after it, the full marriage payment stipulated by their agreement must be paid to her.
When a marriage is annulled (N: after sexual intercourse) because of a defect that occurred before intercourse (O: whether simultaneously with the marriage agreement or after it but before intercourse), then the bride is only given the amount typically received as marriage payment by similar brides (def: m8.8).
m7.4 If any of the following occurs before intercourse has taken place, then the marriage is immediately annulled:
But when one of the above things happens after intercourse, then a waiting period (def: n9) must intervene before the marriage is annulled. If both husband and wife (A: are, or) become Muslim before the waiting period finishes, then their marriage continues. And if not, then the marriage is considered to have been over since the change of religion first took place.
m7.5 When a (A: non-Muslim) man who has more than four wives becomes Muslim, he is obliged to choose just four of them (A: and the others' marriages are annulled).
m8.0 THE BRIDE'S MARRIAGE PAYMENT (MAHR)
(O: The marriage payment is the money or property a husband must pay a woman to marry her.)
m8.1 It is sunna to name the amount of the marriage payment in the marriage agreement (O: to prevent discord). If it is not mentioned, it does not hurt (O: the validity of the marriage, though if unmentioned in the agreement, it is considered to be the amount typically received as marriage payment by similar brides (def: m8.8). There is complete scholarly consensus on the validity of a contract that does not mention it, though it is offensive not to).
m8.2 A guardian may not marry his prepubescent daughter to someone for less than the amount typically received as marriage payment by similar brides, nor marry his prepubescent son to a female who is given more than the amount typically received. If he does either of these, the amount stipulated is void and the amount typically received is paid instead (O: in both these cases, as a necessary condition for the validity of the marriage contract).
m8.4 Anything that may be lawfully used as a price (def: k2) may be given as marriage payment. It may be paid immediately or deferred, and may be an individual article (`ayn), a financial obligation (dayn), or the use or benefit of something.
m8.5 The bride possesses the marriage payment when it has been expressly stipulated (O: in the marriage agreement, whether validly stipulated or invalidly. If valid, she owns the amount stated, while if invalid, she owns the amount typically received as marriage payment by similar brides (def: m8.8). She may dispose of it when she accepts it, and her ownership of it is finalized when her husband has sexual intercourse with her (O: after which none of it is refundable), or when one of them dies before they have had intercourse.
m8.6 If payable immediately, the bride may refuse to have sexual intercourse until her husband gives her the marriage payment, though if she allows him to have intercourse with her before she accepts the amount, she may no longer refuse to have intercourse (N: but may demand the amount).
m8.7 If the couple is separated (A: by having annulled the marriage (dis: m7.4)), before intercourse because of an act on the bride's part, as when she becomes a Muslim (O: and the husband remains non_Muslim), or she leaves Islam (O: and the husband remains Muslim), then she is not entitled to any of the marriage payment. But if it is because of an act on the husband's part, as when he becomes Muslim, leaves Islam, or divorces her, then she receives only half of the marriage payment; or the husband may ask for half of it back (O: if she already accepted it), provided the article given as payment still exists. If it does not, he receives half of the lowest market value of similar articles between the time of the marriage agreement and when the article ceased to exist. If the article was diminished while in the bride's possession, the husband has a choice between taking it back in its defective condition, or accepting half of its value.
THE AMOUNT TYPICALLY RECEIVED AS MARRIAGE PAYMENT BY SIMILAR BRIDES
m8.8 The amount typically received as marriage payment by similar brides (mahr al-mithl) means that which would be desirable to a woman like her (O: a woman like the bride, under normal circumstances), like her meaning a woman of her relatives resembling her in such characteristics as age, intelligence, beauty, wealth, being virgin or nonvirgin, and in having the same hometown. (O: her relatives living therein are taken as the standard, and not those living elsewhere, since the amount typically received varies in different towns. Rafi'i holds that if all of them live in another town, they are nevertheless more suitable to be taken as the standard than nonfamily women from the same town.) If the bride is superior to them (O: respecting the above characteristics) or inferior, then this is taken into consideration (O: meaning she deserves a marriage payment that suits how she is). If she has no female relatives related to her through her father, then those like her refers to he maternal relatives (O: i.e. the mother's relatives, such as the bride's grandmother or mother's sister). If none of the above exist, then the standard for comparison is the marriage payment of those women of the same town who resemble the bride.
WHEN A HUSBAND IS UNABLE TO PAY THE MARRIAGE PAYMENT
m8.9 When a husband proves financially unable to give his wife the marriage payment (A: if it has not been deferred) before the first time they have sexual intercourse, then the bride may annul the marriage, though if he proves unable afterwards, she may not. If husband and wife disagree (A: in court, when neither side has proof|) as to whether he has given her (O: all, or part of) the marriage payment, then the wife's word is accepted over the husband's (dis: k8.2). But if they disagree as to whether they have had sexual intercourse, the husband's word is accepted over the wife's.
m8.10 A man is obliged to pay a woman the amount typically received as marriage payment by similar brides (def m8.8) when the marriage was (N: consummated, but) invalid, or when a man forces a woman to fornicate with him. When a woman voluntarily fornicates with a man, she does not receive any marriage payment.
m8.11 Whenever a woman is divorced (O: before having had intercourse) and the marriage payment is reduced to one-half (dis: m8.7), she does not receive an amenity payment (def: below). But she is entitled to one when the marriage payment is not reduced to one-half, such as when:
An amenity payment is an amount (N: paid by the husband) determined by the Islamic judge through his own personal reasoning (O: it being obligatory that both the husband and wife agree to it, and sunna that it not be less than thirty dirhams (n: 88.94 grams of silver) or something worth that much, and that it amount to less than half the marriage payment), in view of the circumstances of both parties (O: such as how rich or poor the husband is, and the wife's lineage and other characteristics previously discussed).
m9.0 THE WEDDING FEAST
m9.1 The wedding feast is a sunna (A: whose time never expires, though it is recommended to be after intercourse). The sunna is for the meal to consist of a sheep or goat (shah, def: h2.5),though it is permissible to serve whatever food is readily available.
THE OBLIGATION TO ATTEND
m9.2 It is obligatory for whoever is invited to attend (O: and whoever does not respond to the invitation has disobeyed Allah and His messenger (Allah bless him and give him peace)), whether fasting or not. If one attends, it is recommended to eat, though not obligatory. If one is performing a voluntary fast and attends, and it is not burdensome for the host, then it is best to complete one's fast, though if this would weigh on the host, it is better for one to eat. It is only obligatory to respond to such an invitation if the following conditions are met:
m9.3 Strewing sweets and the like around at marriage agreements or picking them up is not offensive, but it is better not to.
m10.0 RELATIONS BETWEEN A HUSBAND AND WIVES
m10.1 It is obligatory for both husband and wife to treat each other well (O: since Allah Most High says,
``Women deserve the like of what they are obliged to give, in kindness'' (Koran 2:228)), and for each to give the other what they must (O: meaning that both spouses are required to, the husband giving her the expenditures he is obliged to (def: m11), and the wife giving herself to him and obeying him concerning his rights therein) without intentional delays or displaying resentment.
m10.2 It is unlawful for a man to house two wives in the same lodgings unless they both agree.
PERMITTING ONE'S WIFE TO LEAVE THE HOUSE
m10.3 (A: A husband may permit his wife to leave the house for a lesson in Sacred Law, for invocation of Allah (dhikr), to see her female friends, or to go to any place in the town. A woman may not leave the city without her husband or a member of her unmarriageable kin (def: m6.2) accompanying her, unless the journey is obligatory, like the hajj. It is unlawful for her to travel otherwise, and unlawful for her husband to allow her to.) (n: In the Hanafi school, it is not unlawful for her to travel beyond city limits without a husband or member of her unmarriageable kin unless the distance to her intended destination exceeds ca. 77 km./48mi. (al-Lubab fi sharh al-Kitab (y88), 1.105).)
m10.4 The husband may forbid his wife to leave the home (O: because of the hadith related by Bayhaqi that the Prophet (Allah bless him and give him peace) said.
``It is not permissible for a woman who believes in Allah and the Last Day to allow someone into her husband's house if he is opposed, or to go out if he is averse'').
But if one of her relatives dies, it is preferable to let her leave to visit them.
TAKING TURNS WITH WIVES
m10.5 A husband with more than one wife is not obliged to spend his nights with them in turns but may keep away from them (A: all) without sin. But he may not begin spending the night with one of them unless he chooses her by drawing lots. Whenever he spends the night with one wife, he is obliged to spend nights with the others, giving equal time to each one. When a husband intends to begin staying with his wives (A: after an intermission or absence), the wife whose lot is drawn is the first with whom he spends the night. All are included in taking turns, whether a wife in her period or postnatal bleeding, one who is ill, or one who cannot have intercourse because of a vaginal birth defect.
The minimal amount of time for one turn is a night and day, whether the day comes before or after the night; while the maximum is three days (A: and nights. The minimal turn for the Hanafi and Maliki schools is whatever all can agree upon). It may not be more than three days (A: except by their leave). The basic turn of someone who makes their living by day is the night, with the day being an adjunct, while for someone who makes their living at night, such as a watchman, the basic turn is the day.
In staying the night, the husband is not obliged to have sexual intercourse with the wife, though it is recommended to have intercourse (and share all other marital enjoyments) with all one's wives on an equal basis.
m10.6 If the husband wants to take one of his wives on a journey with him, he may not do so unless he draws lots to see who it will be. If he draws lots (A: and takes the winner with him), then when he returns, he does not need to make up the turns which the other wives missed while he was on the journey. If he did not draw lots but just chose a wife to travel with him, this is a sin, and on his return he must give equal time to the other wives for the time they missed.
m10.7 It is permissible for one of the wives to give her turn to another wife, if the husband agrees. If one of them gives him her turn, then he may give it to whomever he wants. If the wife later chooses to take her turn back, she returns to her usual place in the order of taking turns as it stand on the day she takes it back.
m10.8 It is not permissible for a husband to enter the quarters of a wife during another wife's turn without business there, though if he stops in during the day because of something he needs, or during the night because of something absolutely necessary (A: such as bringing her supper), then he may enter. Otherwise he may not.
If he prolongs such a visit, then he is obliged to make up the turn of the wife whose turn it originally was.
m10.9 If a man marries a new wife when he already has another, he interrupts the succession of turns to spend time with the new wife. If she is a virgin, then he stays with her seven days and need not make them up with the other wives. If she is a nonvirgin, then he may choose to either spend seven days with her and make up (O: to the others the number in excess of three days), or spend three days with her and not make up the time with the others. In such cases it is recommended to let the new wife choose the alternative she prefers. If the husband stays with her for seven days at her request, he must make up all seven days with the others, though if he stays seven days without her having requested it, he need only make up four with the others.
m10.10 The husband is entitled to leave home during the day to fulfill his needs and obligations.
DEALING WITH A REBELLIOUS WIFE
m10.11 When a husband notices signs of rebelliousness in his wife (nushuz, dis: p42) (O: whether in words, as when she answers him coldly when she used to do so politely, or he asks her to come to bed and she refuses, contrary to her usual habit; or whether in acts, as when he finds her averse to him when she was previously kind and cheerful), he warns her in words (O: without keeping from her or hitting her, for it may be that she has an excuse. The warning could be to tell her, ``Fear Allah concerning the rights you owe to me,'' or it could be to explain that rebelliousness nullifies his obligation to support her and give her a turn amongst other wives, or it could be to inform her, ``Your obeying me [def: (3) below] is religiously obligatory''). If she commits rebelliousness, he keeps from sleeping (O: and having sex) with her without words, and may hit her, but not in a way that injures her, meaning he may not (A: bruise her,) break bones, wound her, or cause blood to flow. (O: It is unlawful to strike another's face). He may hit her wether she is rebellious only once or whether more than once, though a weaker opinion holds that he may not hit her unless there is repeated rebelliousness.
(N: To clarify this paragraph, we mention the following rulings:
m11.0 THE WIFE'S FINANCIAL SUPPORT
(O: Support means the financial rights of a wife.)
m11.1 (A: The rulings of this section are not recommendations for how much to spend, but rather define the minimum permissible, which a stingy husband may not lawfully spend less than. Extra spending on one's wife is charity.)
m11.2 The husband is obliged to provide his wife's sustenance day by day. If affluent, he must daily furnish her with one liter of the grain that is the staple food of the town in which they live. (O: By the grain that is the staple food of the town, the author means if people eat it. If not, then whatever they eat, even if it is hardened, dried white cheese. If the wife asks for something other than the staple food of the town, the husband does not have to provide it for her, and if he gives her something besides the staple, she need not accept it. The staple food is what is obligatory.) If he is not affluent, then he is obliged to provide 0.51 liters of grain a day for his wife; while if between affluence and nonaffluence, he must provide 0.77 liters per day.
He is also obliged to cover the expenses of grinding it into flour and baking it into bread (O: even when she is used to doing it herself, as there would otherwise be need for this expenditure), and to buy the foods that normally accompany bread to make it savory and agreeable, as much as is customary in the town of meat, oil, and so forth (O: such as dates, vinegar, and cheese. The obligatory measures differ with the seasons, it being necessary in each season to provide that which is proper to it. Fruits might predominate in one season, and thus be obligatory. As for the obligatory amount of meat, one sees how much is customarily consumed in town per week).
If husband and wife agree that he give her compensation in place of the above-mentioned (O: grain and other things she is entitled to, the compensation being in money or clothing), this is permissible.
ARTICLES FOR PERSONAL HYGIENE
m11.3 The wife in entitled to what she needs of oil for her hair, shampoo (lit. ``sidr''), and a comb (O: to keep her hair clean, of the kind and amount that is customary in town, in order to prevent harm to herself. If oil scented with rose or violet is the custom of the town, it must be provided, though not things which are merely cosmetic and not for cleanliness, such as eyeliner or henna, which need not be provided, though the husband may provide them if he wishes. It is also obligatory for him to provide deodorant (lit. ``litharge'') or the like to stop underarm odor if water and soap will not suffice), and the price of water for her purificatory bath (ghusl) when the reason for it is sexual intercourse or the end of postnatal bleeding, though not if the reason is the end of her monthly period or something else (dis:m11.1).
COSMETICS AND MEDICINE
m11.4 The husband is not obliged (N: but rather is recommended) to pay for his wife's cosmetics, doctor's fees, the purchase of medicine for her, and similar expenses (A: though he must pay for expenditures connected with childbirth).
m11.5 A wife is entitled to the kind of clothing that is customary in town for dressing oneself (O: and not just anything termed clothing will suffice. What is obligatory is the amount necessary for the woman, which varies according to whether she is tall or short, thin or fat, and with the hot or cold climate of various towns. In the summertime, it is obligatory to provide her with a head covering, shift, underdrawers, shoes, and a shawl, because of her need to go out; and the same in the wintertime, plus a cloak quilted with cotton to protect her against the cold. If she needs tow cloaks because of the extreme cold, it is obligatory to provide them. If she needs fuel because of the severity of the winter, it is obligatory to buy the necessary wood and coal) and (O: he must also provide the amount customary in town of the) bedding, blankets, and pillows that are suitable for someone of his income. (O: She also deserves cooking implements, and utensils for eating and drinking).
m11.6 It is obligatory for the husband to give his wife the expenditures for her support at the first of each day, and to provide her clothing at the first of each season (O: meaning the beginning of winter and summer).
m11.7 If he gives her clothing for a season, and it wears out before the end of the season, he is not obliged to furnish new clothing, though if it lasts beyond the season, he is nevertheless obliged to provided new clothing for each new season. The wife is entitled to dispose of the clothing as she wishes, whether by selling it or other (O: means of disposal, such as giving it away, the reason being that it is her own property).
HOUSING AND SERVANTS
m11.8 The wife is entitled to housing of the same quality as that of similar women. (O: The standard of housing depends on the wife herself, while the standard for her clothing and support takes the state of the husband into consideration. The difference is because the expenditures for her support and clothing become her own property and are not merely for her use, while housing is solely for use (N: meaning that while she can take compensation in place of food or clothing and buy some other kind, she cannot rent a different house). In any case, she is obliged to stay in the lodgings her husband arranges for her.)
If she had servants in her father's house, the husband is obliged to provide servants for her.
THE CONDITIONS THAT ENTITLE A WIFE TO SUPPORT
m11.9 The husband is only obliged to support his wife when she gives herself to him or offers to, meaning she allows him full enjoyment of her person and does not refuse him sex at any time of the night or day. She is not entitled to support from her husband when:
SUPPORT FOR A WOMAN IN HER POSTMARITAL WAITING PERIOD
m11.10 As for a woman in her postmarital waiting period (def: n9), she is entitled to housing during it no matter if it is because of her husband's death, a divorce in which the husband may take her back, or a threefold, finalized divorce. As for her support (A: in terms of food) and clothing:
m11.11 If the husband and wife disagree (A: in court, when neither has proof (dis: k8.2)) about whether she received her support from him, her word is accepted over his. If they disagree as to whether she allowed him full enjoyment of her person, then his word is accepted over hers unless he admits that she first made herself available to him, but claims she then refuses, in which case her word is accepted over his.
m11.12 Whenever the husband neglects to provide his wife's support for a period of time, the amount he should have paid remains a debt he owes to her.
m11.13 The wife is entitled to annul their marriage whenever the husband is unable to provide her with the support obligatory for a nonaffluent person to pay (def: m11.2) and provide clothing or housing for her.
If she wishes, she may choose to bear with him (O: supporting herself with her own money), and it (O: the amount the husband is unable to pay) remains a financial obligation that he owes her (O: If she does not wish to tolerate his financial incapacity, she cannot annul the marriage by herself, but must establish her husband's inability to support her before the Islamic judge, who annuls the marriage or allows her to do so, since he is the one who judges the matter (A: and if there is no judge, she has two persons (Def: o21.4) decide)).)
m11.14 The wife is not entitled to annul the marriage when the husband is unable to provide foods besides the staple food, support her servant, or provide the support that must be provided by an affluent person or person between affluence and nonaffluence (def: m11.2).
m12.0 SUPPORT OF ONE'S PARENTS AND CHILDREN
m12.1 It is obligatory for one to support the persons listed below, whether one is male or female, when one has money in excess of one's own living expenses and (n: if male,) those of one's wife (O: meaning enough for a day and night, oneself taking priority over others, followed by one's wife, who takes precedence over other family members):
(O: Money in excess of one's own living expenses and those of one's wife means one is obliged to sell (A: if necessary to fulfill the obligation to support the above-mentioned persons) whatever must be sold when one has to pay debts, including real estate and other property.)
But supporting the above-mentioned persons is only obligatory when:
The upshot is that the support of whoever has enough money for their own support is not obligatory upon another family member, no matter whether the former is mentally ill or sane, a child or adult, chronically ill or well; because he does not deserve charity in such a condition-while a descendant able to earn an adequate living does not deserve support from his ancestors.)
m12.2 A child is obliged to support his father's wife (A: if the father cannot).
m12.3 When a person has both ancestors and children (A: deserving support) but does not have enough for all, then (O: after himself and then his wife) he gives precedence (A: in order) to :
m12.4 The amount of such support must be enough to suffice, though (N: if this much is not paid) it does not become a debt owed by the person who should have given it. (O: It is no longer obligatory after its time has passed (A: but if the deserving person borrows money to support himself during this period, the person who should have supported him is obliged to pay the debt), even though the person who was obliged to give it has committed a sin by thus allowing the time to pass.
m12.5 When a father who is poor needs to marry, then a son who is financially able must provide him with the means to keep chaste by finding him a wife (O: i.e by giving her the marriage payment (mahr, def: m8). It is not permissible to marry him to a deformed or aged women).
m12.6 Whoever owns an animal is obliged to pay for its maintenance.
(O: The restoration and maintenance of property without a living spirit, such as a canal or house, is not obligatory for its owner. Mutawalli explains this by the fact that such maintenance is an augmentation to the property and as such is not mandatory, as opposed to livestock, whose owner must feed them, since to neglect to do so would entail harm for them. Other scholars explain the difference in terms of the sacredness of animate life, which the author of al-Istiqsa' (n: `Uthman ibn `Isa Marani) says is the reason that it is wrong for someone to prevent living things from drinking surplus water (dis: p69), while it is not a sin to neglect watering crops.)
m13.0 CHILD CARE AND CUSTODY
(O: The meaning of child care in Sacred Law is the protection of someone who does not possess discernment and cannot manage for himself, whether a child or a mentally ill adult, by seeing to his interests through such things as bathing him, washing his clothes, or grooming him; or securing an infant in the cradle, turning him over to sleep, and protecting him from death or harm. It entails a kind of authority and control and may be possessed by either men or women, though women have a better right to it, since they are tenderer towards children, more patient in carrying out the demands of the task, more discerning in raising children, and more steadfast in staying with them. The following discussion first centers on who best deserves the custody of a child, in order of precedence, and then treats the characteristics of the guardian and ward.)
m13.1 The person with best right to custody of a child (A: in order) (O: when there is a dispute concerning who should have it) is:
m13.2 The necessary conditions for a person to have custody of a child are:
m13.3 (A: It is offensive to send one's children to a day-care center run by non-Muslims. It is unlawful to send Muslim children to Christian schools, or those which are designedly atheist, though it is not unlawful to send them to public schools in which religion is not mentioned (N: in a way that threatens the students' belief is Islam).
m13.4 A woman has no right to custody (A: of her child from a previous marriage) when she remarries (O: because married life will occupy her with fulfilling the rights of her husband and prevent her from tending the child. It makes no difference in such cases if the (A: new) husband agrees or not (N: since the child's custody in such a case automatically devolves to the next most eligible on the list (dis: m13.1)), unless the person she marries is someone (A: on the list) who is entitled to the child's custody anyway (O: as opposed to someone unrelated to the child, since such a person, even if willing, does not deserve custody because he lacks the tenderness for the child that a relative would have).
m13.5 When a child reaches the age of discrimination (O: which generally occurs around seven or eight years of age) he is given a choice as to which of his parents he wants to stay with (O: since the Prophet (Allah bless him and give him peace) gave a young boy the choice between his father and his mother. The child is only given such a choice when the necessary conditions for child custody (def: m13.2) exist in both parents. If one of them lacks a single condition, then the child is not given a choice, because someone lacking one of the conditions is as though nonexistent).
If the child chooses one of the parents, he is given to the care of that lone, though if a son chooses his mother, he is left with his father during the day so the father can teach him and train him. (O: Other possible outcomes of such a choice are when the child chooses both parents, in which case they draw lots to see who receives custody of him; or when he chooses neither, in which case the mother takes precedence since the custody is hers, and the child has not chosen someone else.) If the child subsequently chooses the other parent, he is given to the care of them (O: for he might want to stay with one of them at one time and with the other at another, just as one desires food at one time but not another. Or the child's intention might be to maintain good relations with both sides. The author restricts the permissibility of such cases of transferring the child's custody from one to another by saying:) unless it is apparent that the child is merely enamored with going back and forth or is weakminded (O: indicating his lack of discernment. In such cases his choice is not followed, and he remains with whomever he was with before reaching the age of discernment).
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