Marriage according to the Five Schools of Islamic Law

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Published on Books on Islam and Muslims Al-Islam.org (https://www.al-islam.org) Home Marriage according to the Five Schools of Islamic Law Marriage according to the Five Schools of Islamic Law Volume
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Published on Books on Islam and Muslims Al-Islam.org (https://www.al-islam.org) Home Marriage according to the Five Schools of Islamic Law Marriage according to the Five Schools of Islamic Law Volume 5 of 8 Author(s): Allamah Muhammad Jawad Maghniyyah [3] Publisher(s): Islamic Culture and Relations Organisation [4] This work on the Shariah or Islamic Law offers a comparative study of the Divine Law that, according to authentic Islamic doctrines, embodies the Will of God in society. In the Islamic world view, God is the ultimate legislator. The five major schools that are used in the comparison are: Hanafi, Hanbali, Shafi i, Maliki and Jaf ari. This book, volume 5 of 8, presents the similarities and differences in the issues regarding marriage from the viewpoints of the five Schools of thoughts. Category: Sunni & Shi a [5] General [6] Marriage [7] Topic Tags: marriage [8] Miscellaneous information: Marriage according to the Five Schools of Islamic Law Volume 5 of 8 Muhammad Jawad Maghniyyah Department of Translation and Publication, Islamic Culture and Relations Organization, P.O. Box Tehran Islamic Republic of Iran 1417 A. H. (1997) All rights reserved Featured Category: Debates & discussions [9] Resources for Further Research [10] Responses to Misconceptions [11] Preface The Islamic fiqh (jurisprudence) is divided into several sections: 'Ibadat (rituals) that include: ritual purity (taharah), prayers (salat), fasting (sawm), alms (zakat), one-fifth (khums) and pilgrimage (hajj). These six chapters are included in the first part of the Book al-fiqh'ala al-madhahib al-khamsah (Fiqh according to five schools of Islamic Law), which was published first by Dar al- Ilmli al-malayin, achieving unprecedented circulation, that prompted this foundation to republish it for the second, third and fourth time, all of which have run out of print. The second section of Islamic fiqh contains the Individual conditions (al-'ahwal al-shakhsiyah), that include: marriage, divorce, will and bequest, endowment (waqf) and legal disability (hajr), which constitute the second part of the book published by Dar al-'llm li al-malayin, whose copies have run out of print. Some honorable personages suggested to the Dar to republish the two parts in one volume, of which the first part to be 'Ibadat and the second al-ahwal al-shakhsiyah. The Dar has complied, as the subject of the two parts being one, by the same author. I hope that this work will be beneficial for the readers. The Almighty Allah is the guarantor of success. Author The Marriage Contract and its Conditions All the five schools of fiqh concur that marriage is performed by the recital of a marriage contract which contains an offer made by the bride or her deputy (na'ib), such as her guardian or agent (wakil), and a corresponding acceptance by the groom or his deputy. A mere agreement without the recital of the contract does not amount to marriage. The schools also agree that a marriage contract is valid when recited by the bride or her deputy by employing the words, ankahtu or zawwajtu (both meaning. I gave in marriage) and accepted by the groom or his deputy with the words, 'qabiltu' (I have accepted) or 'raditu' (I have agreed). The schools of fiqh differ regarding the validity of the contract when not recited in the past tense or recited by using words other than those derived from the roots al-zawaj and al-nikah, such as, al-hibah and al-bay'. The Hanafi s say: A marriage contract is valid if recited by any word conveying the intention of marriage, even if the words belong to the roots al-tamlik, al-hibah, al-bay', al-'ata, al-'ibahah and al-'ihlal, provided these words indicate their being used for the purpose of marriage. But the contract will not conclude if the word used are derived from al-'ijarah (hiring) and al-'i'arah (lending), because these words do not convey the meaning of perpetuity and continuity. They have based their argument on this narration from the Sahih al-bukhari and the Sahih Muslim. A woman came to the Prophet (s) and said: O Apostle of Allah. I have come to offer myself to you. On hearing this, the Prophet (s) lowered his head and did not reply. Then one of those present said: If you do not want her marry her to me. The Prophet (s) asked him: Have you anything? He replied, By God. I have nothing. Again the Prophet asked him. Have you any knowledge of the Qur'an? He replied regarding the extent of his knowledge of the Qur'an. Then the Prophet said. I make her your property in exchange for your knowledge of the Qur'an (using the word mallaktul)1. The Maliki s and the Hanbali s say: The contract is valid if recited by using the words al-nikah and alzawai or their derivatives and is also valid when the word used is al-hibah, with the condition that the amount payable as dower (mahr or sidaq) is also mentioned. Words other than these cannot be used. They have based their argument for the use of the word al-hibah on this verse of the Qur'an (see Abu Zuhrah. al-'ahwal al-shakhsiyyah [1948] p. 36): و ام ر ا ة م و م ن ة ا ن و ه ب ت ن ف س ه ا ل لن ب ا ن ا ر اد الن ب ا ن ي س ت ن ح ه ا...And a believing woman if she gave (wahabat, derived from al-hibah) herself to the Prophet, if the Prophet desired to marry her... (33:50) The Shafi'i scholars consider it wajib that the words used in the contract should be either the derivatives of the root al-zawaj or that of al-nikah. The Imamiyyah say: It is wajib that the offer be made by using the words ankahtu and zawwajtu in the past tense. The marriage is not concluded if the word used is not in the past tense and does not belong to the roots al-zawaj and al-nikah, because these two roots conventionally convey the meaning of marriage and the past tense conveys the meaning of certainty and also because the Qur'an testifies their use: ف ل م ا ق ض ز ي د م ن ه ا و ط ر ا ز و ج ن اك ه ا ا ر يد ا ن ا ن ح ك (33:37,28:27). Apart from -this, the absence of consensus invalidates the use of words other than these in such a contract. For acceptance, according to them, the word qabiltu or raitu can be used. The Imamiyyah, the Shafi'i and the Hanbali schools mention 'immediacy' as a condition for a marriage contract. By immediacy they mean the acceptance of the offer without any delay. The Malikis consider a minor delay inconsequential, such as a delay caused due to the recital of a short sermon or the like of it. The Hanafi school is of the opinion that immediacy is not necessary. Even if a man addresses a letter to a woman conveying his proposal of marrying her and the woman gathers witnesses and reads out the letter to them and says. I marry myself to him, the marriage is performed (al-fiqh 'ala al-madhahib al-'arbiah, vol. 4. the discussion regarding conditions of marriage; al-'abwal al-shakhsiyyah by Muhammad Muhy al-din 'Abd al-hamid). All the schools concur that the contract can be recited in any language when it is impossible to recite it in Arabic but differ as regards the validity of the contract when so recited despite the possibility of its being recited in Arabic. The Hanafi, the Maliki and the Hanbali schools consider this as valid. The Shafi'i and the Imamiyyah Schools consider it as invalid. (Abu Zuhrah. al-'ahwal al-shakhsiyyah. p. 27) The Imamiyyah, the Hanbali and the Shafi'i schools consider a contract in writing as invalid. The Hanafi school is of the opinion that a written contract is valid provided the bride and the groom are not present together at the place of contract. The schools concur that a dumb person can convey his intention to marry by signs in case he is incapable of expressing it in writing. If he can express it in writing, it is better for him to combine both, writing and signs. in conveying his intention. According to the Hanbali and the Hanafi schools, if a clause is included in the contract giving a choice to the bride and the groom to annul the contract. The contract is valid but the condition is void. The Maliki school is of the opinion that, if the marriage is not consummated, this condition as well as the contract are both void. But if the marriage has been consummated, the condition is void, not the contract. The Imamiyyah and the Shafi'i schools have declared both the contract and the condition as void irrespective of whether the marriage has been consummated or not.2 (al-fiqh 'ala al-madhahib al-'arba'ah, vol. 4; al-tadhkirah by al-'allamah al-hilli, vol. 2; and al-masalik by al-shahid al-thani, vol. 2J) As a matter of course, the offer is made by the bride and is accepted by the groom. The bride says, 'zawwa jtuka' (I have married myself to you) and the groom accepts by saying, 'qabiltu' (I have accepted). The question which now arises is, is the contract valid when the acceptance precedes the offer and the groom addresses the guardian of the bride saying, 'zawwijnihu ' (marry her to me) and the guardian replies, 'zawwa jtukahu ' (I have married her to you)? The Hanbali school considers it as invalid while the other schools concur on its validity (al-tadhkirah by al-'allamah al-hilli, vol. 2). Al-'Allamah al-hilli, an Imamiyyah scholar, in his book al-tadhkirah, says, A marriage contract cannot be made contingent on a future event because certainty is one of its conditions. If a condition is included prescribing a certain time or a certain quality, such as, when the offer is made with the condition that the marriage will conclude at the beginning of the forthcoming month and this offer is accepted, the contract is not valid. Al-Shafi'i is of the same opinion. Abu Zuhrah, a Hanafi scholar, writes m his book al-'ahwal al-shakhsiyyah: A marriage should be concluded on the recital of the contract, because marriage is a contract and the consequences of the contract cannot be delayed after its conclusion. Therefore it is not possible to postpone the consequences of a contract till the fulfillment of a future condition. In the book A'lam al-muqlin, Imam Ahmad has been referred to as validating a conditional contract of marriage. A Subsidiary Issue Al-Fiqh 'ala al-madhahib al-'arba'ah, quoting Hanafi and Shafi'i scholars, states: If an illiterate person mispronounces the word 'zawwaitu' and says instead, ''zawwajtu, the contract is valid. Al-Sayyid Abu al- Hasan al-'isfahani, an Imamiyyah scholar, in his Wasilat al-najat, gives a similar fatwa. Witnesses The Shafi'i, the Hanafi and the Hanbali schools concur that the presence of witnesses is a necessary condition for a valid contract. The Hanafi school considers as sufficient the presence of two men or a man and two women. However, if all the witnesses are women, the contract is not valid. This school does not consider adalah (justice) as a condition for the acceptability of the witnesses. The Shafi i and the Hanbali schools consider as necessary the presence of two male Muslim witnesses possessing the quality of adallah. According to the Malikis, the presence of witnesses is not necessary at the time of the contract but their presence is necessary at the time when marriage is to be consummated. Therefore, if the contract is recited without the presence of witnesses, it is valid. But, when the groom intends to consummate the marriage it is incumbent upon him to have two witnesses. If the marriage is consummated without the witnesses, the contract becomes void compulsorily, and this is considered as amounting to an irrevocable divorce. (Bidayat al-mujtahid by Ibn Rushd: Maqsad al-nabih by Ibn Jamii'ah al-shafi i) The Imamiyyah do not consider the presence of witnesses as wajib but only mustababb.3 1. The Imamiyyah have narrated this tradition with different words. According to their version: A woman came to the Prophet (s) and said, ' Get me married. The Prophet then announced, Who is ready to marry her? One of those present stood up and said, I. The Prophet (S) then asked him, What can you give her? He replied, I have nothing. The Prophet said, No. The woman repeated her request and the Prophet (S) repeated the announcement but none stood up except the same man. The woman again repeated her request and the Prophet (s) announced again. Then the Prophet (s) asked him, Do you have any good knowledge of the Qur'an? He replied, Yes. I do. The Prophet (s) then said, I marry her to you (zawwajtukaha) in exchange for your teaching her what you know well of the Qur an. Therefore, the word used was alzawaj, not al-milk. 2. This is the view of most of the Imamiyyah scholars. But some of them, such as Ibn Idris among the early legists, and al- Sayyid Abu al-hasan al-'isfahani among the recent ones are of the opinion that the contract is valid and the condition is void. Accordingly, the Imamiyyah scholars in both their views are on the whole like the scholars of the other schools. 3. Dr. Muhammad Yusuf Musa, in his book al-ahwal al-shakhsiyyah (1958) page 74, states: The Shi'ah consider the presence of witnesses as necessary for marriage. He considers the Shi'ah and the Hanafi, the Shafi'i and the Hanbali schools to hold a common view. But there is no source of reference for what he states. Capacity to Enter into a Marriage Contract All the schools agree that sanity and adulthood (bulugh) are necessary qualities for both the parties to the contract, unless the contract is concluded by the guardian of any of them. The contract with the guardian shall be discussed later. The schools also agree that there should be no obstacle to marriage between the man and the woman such as consanguinity or any other disabling factor of a permanent or temporary character. We will discuss the legal obstacles to marriage in a separate chapter. The schools also consider the ascertainment of both the parties to the contract as necessary. Therefore, when it is said. I marry you to one of these two daughters. or I marry myself to one of these two men. the contract will not be valid. All the school except the Hanafi consider free consent as a sine qua non without which the contract does not conclude. The Hanafis are of the opinion that the contract is concluded even if coercion is present (al-fiqh 'ala al-madhahib al-'arbdah). Al-Shaykh Murtada, al-'ansari, an Imamiyyah scholar, after mentioning free consent as a condition, writes: That which is commonly held by the Imamiyyah scholars of the latter period is that, when a person coerced consent freely later on, the contract is valid. In the book al-hada'iq wa al-riyad their consensus has been reported on this issue. Al-Sayyid Abu al-ha'san al-'isfahani, an Imamiyyah legist, in his al-wasilah in the chapter on marriage, writes: Free consent of both the parties is a necessary condition for a valid contract. If both of them or any of them is coerced, the contract is invalid. But if the party coerced consents later, the reason in favor of the validity of the contract seems strong. According to the above-mentioned criterion, if the man or the woman pleads coercion and then willingly live together like a married couple and show the happiness of a newly married bride and groom, or if the woman takes the mahr or does any other act proving consent, the claim of coercion will be rejected and no other evidence will be accepted contradicting the consent. According to the four school of fiqh, a contract recited in jest concludes the marriage. Therefore, when a woman says jokingly. I marry myself to you and the man accepts it in a similar fashion, the contract is concluded. Divorce and the freeing of a slave also conclude if recited in jest according to the tradition: ثلاث جدهن جد وهزلهن جد: الزواج والطلاق والعتق The three whose intentional and jestful (recital) is considered intentional are: marriage, divorce and freeing of a slave. The Imamiyyah school considers all contracts involving jest as null and void due to the absence of the will to contract and as regards the above-mentioned tradition, they consider the narrators as unreliable. The Hanafi and the Hanbali schools regard the marriage of an idiot as valid irrespective of whether the guardian has given permission or not. The permission of the guardian is necessary in the view of the Imamiyyah and the Shafi i schools. According to the Imamiyyah and the Hanafi schools, the consent given when the two conditions of sanity and adulthood (bulugh) are present concludes the marriage as per the authority of the tradition. إفرار العقلاء عل أنفسهم جاي ز The consent of sane persons even if detrimental to their interest, is valid. Al-Shafi i, in the latter of his two views, considers the marriage as established when the bride being a sane adult acknowledges the marriage and the husband confirms her acknowledgement, because marriage is the right of both the parties. Malik recognizes a difference here. According to him, when the bride and the groom are in a foreign land their acknowledgement establishes the marriage; but when they are in their hometown they will have to furnish a proof of their marriage because it i convenient for them to do so. This was the former view of al-shafi i. (al-tadhkirah by al- Allamah al-hilli) Bulugh There is consensus among the schools that menses and pregnancy are the proofs of female adulthood. Pregnancy is a proof because a child comes into being as a result of the uniting of the sperm with the ovum: and menses, because, like the production of sperm in male, is a mark of female puberty. All schools, except the Hanafi, consider the growth of pubic hair as a sign of adulthood, but the Hanafis consider them no different from other hair of the body. According to the Shafi i and the Hanbali schools, the adulthood of both the sexes is established on their completing fifteen years. According to the Malikis, it seventeen years for both the sexes. The Hanafis consider eighteen years for a boy and seventeen years for a girl a the age of maturity (Ibn Qudamah, al-mughni, Bab al-hijr. vol. 4). The Imamiyyah have mentioned fifteen years for a boy and nine years for a girl as the age of maturity on the authority of the following tradition narrated by Ibn Sinan: إذا بلغت الجارية تسع سنين دفع إليها مالها وجاز أمرها وأقيمت الحدود التامة لها وعليها. When a girl reaches the age of nine her property will he returned to her and it will be rightful for her to handle her own affairs, and the hudud are applied against her and in her favor. Experience also proves that a girl can conceive at the age of nine, and the ability to conceive is equivalent to conception in all aspects. Note: That which the Hanafis have said regarding the age of maturity is the maximum age limit for maturity. The minimum age limit according to them is twelve years and nine years for a boy and a girl respectively: because at this age it is possible for a boy to ejaculate and to impregnate, and for a girl to have orgasm. to menstruate, and to conceive (Ibn 'Abidin [1326 H.] Bab al-hijr, vol. 5, p. 100). Stipulation of Conditions by the Wife The Hanbali school is of the opinion that if the husband stipulates at the time of marriage that he will not make her leave her home or city, or will not take her along on journey or that he will not take yet another wife, the condition and the contract are both valid and it is compulsory that they be fulfilled, and in the event of their being violated, she can dissolve the marriage. The Hanafi, the Shafi i and the Maliki schools regard the conditions as void and the contract as valid, and the Hanafi and the Shafi i schools consider it compulsory in such a situation that the wife be given a suitable mahr, not the mahr mentioned (Ibn Qudamah. al-mughni. vol. 6. chapter on marriage). According to the Hanafi school, when the man puts the condition that the woman would have the right to divorce, such as when he says. ''I marry you on the condition that you can divorce yourself, the condition is invalid. But if the woman makes such a condition and says to the man, I marry myself to you on the condition that I shall have the right to divorce, and the man
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