Chapter III: Between the Husband and Wife

 

 

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    The Islamic Charter on Family

     

    Chapter III: Between the Husband and Wife

     

    This Chapter discusses the solidity of the marital relationship from beginning to end, and the rights and responsibilities of each party.  These topics are covered in the seven sections:

     

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    Section One: The Prelude to Marriage

     

                This Section discusses the prelude to marriage, which is engagement, with respect to its definition and its ramifications, and the impermissibility of proposing to a woman who is engaged or to women who are mahrams[1]. These topics are covered in four articles.

    Article (46)

    The Definition of "Engagement"

    "Engagement" is when a man expresses his desire to marry a woman and it is accepted by the woman and her guardian, with a mutual promise to finalize the marriage contract in the future.

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                This Article defines the meaning of "engagement." In most cases, engagement is a step towards getting married as in most cases, the marriage is not devoid of it. However, it is not a condition for the validity of the marriage. Thus, if marriage takes place without it, it will be valid.  Scholars of fiqh differ with regard to its ruling; some saying that it is permissible and others saying that it is recommended based on the engagement of the Prophet (may blessings and peace be upon him) to 'A'ishah, the daughter of Abu Bakr (may Allah be pleased with them).[2] He also was engaged to Hafsah, the daughter of 'Umar (may Allah be pleased with them).[3] Abu Humayd reported that the Messenger of Allah said, "If one of you proposes to a woman, it is not sinful for him to look at her if he doing so as a result of his proposal, even if she is not aware [that he is looking at her]."[4]

    Article (47)

    The Ramifications of Engagement

    Engagement is neither marriage nor is it a quasi-marriage.  It is nothing more than a mutual promise of marriage between a man and a woman that does not establish any rights or make any prohibited actions permissible. The only thing that is permitted between the two people is to look at each other at the time of the proposal so that they may make sure that they are content with the other person; during the engagement, however, the woman remains completely unrelated to the man in all aspects until the marriage contract is executed. 

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                This Article clarifies the difference between marriage and engagement.  The factor that divides the permissible from the impermissible in the marital relationship, with regard to enjoying each other etc., is the execution of the marriage according to its conditions, not engagement.  Engagement is only a prelude to marriage, and it does not result in that which is effected by marriage.

                Engagement does not result in the permissibility of anything other than allowing the man and woman to look at each other to make sure that each is content with the other person. It was narrated from Al-Mugheerah ibn Shu'bah that he proposed to a woman, and the Prophet (may blessings and peace be upon him) said, "Look at her, for it is more likely to create love and compatibility between you."[5]  Also, Jaabir ibn 'Abdullah (may Allah be pleased with him) said:

    The Messenger of Allah (may blessings and peace be upon him) said, "If one of you proposes marriage to a woman, if he can look at her to see that which will encourage him to go ahead and marry her, then let him do so." I proposed marriage to a young woman and I used to hide where I could see her, until I saw that which encouraged me to go ahead and marry her, so I did.[6] 

    During the engagement, the woman remains completely unrelated to the man in all aspects until the marriage contract is executed..

    Article (48)

    The Impermissibility of Proposing to a Woman Who is Already Engaged

                According to Shari'ah it is not permissible for a man to propose to a woman who is engaged to someone else, and it is not permissible for him to try to convince her or her family to break the engagement so that he can propose to her himself.

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                This Article clarifies some of the etiquettes of engagement which include that it is not permissible for a man to propose to woman who is engaged to someone else, and it is not permissible for him to try to convince her or her family to break the engagement so that he can propose to her himself. This is to prevent any disputes between the two suitors, and because doing so harms the first suitor.  Shari'ah prohibits this in clear terms, as is indicated in the words of the Messenger of Allah (may blessings and peace be upon him), who said, "A man shall not propose over the proposal of his brother until the he marries [the girl] or withdraws [the proposal]."[7]  Also, it was narrated by 'Abdur-Rahman ibn Shimaasah that he heard 'Uqbah ibn 'Amr on the pulpit saying that the Messenger of Allah (may blessings and peace be upon him) said, "The Believer is the brother of a Believer, so it is not permissible for a believer to make an offer of purchase for an item his brother has already made an offer on, or to propose over his brother's proposal until he [voluntarily] withdraws it."[8]  It was related from Ibn 'Umar (may Allah be pleased with him) that he used to say, "The Prophet (may blessings and peace be upon him) prohibited us from making offers of purchase over each other, and it is not permissible for a man to propose over the proposal of his brother until the first withdraws his proposal or gives the second permission to propose."[9]

                These hadiths forbid proposing over someone else's proposal to prevent disputes between suitors and to prevent harm to the first suitor.  This ruling is specific to the case of a woman who has accepted the proposal of the first suitor, who did not give permission to the second suitor to propose.  However, if the woman did not accept his proposal, then she is not considered engaged, and it is permissible for anyone to propose to her as long as she has not accepted the proposal of someone else previously.

                There are other rulings related to engagement as well, the details of which are usually found in books of fiqh.

    Article (49)

    It is Forbidden to Propose to Women Who Are Mahrams[10]

    It is not permissible for a man to propose to a woman to whom marriage is permanently prohibited due the proximity of their relationship by consanguinity, affinity, or nursing. Likewise, it is not permissible for him to propose to a woman with whom marriage is temporarily prohibited until the cause of the prohibition no longer exists. It is also forbidden for him to propose, whether directly or indirectly, to a woman who is in her waiting period due to a revocable divorce until after her waiting period is over.  As for a woman who is in the waiting period of a final divorce or the waiting period after her husband's death, it is only permissible to propose to her in an indirect manner, as opposed to a direct manner.  Also, is not permissible to propose to a woman who is a polytheist until she becomes Muslim.

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                This Article discusses those categories of women to whom it is forbidden to propose, which are clarified as follows:

    * Permanent Prohibition

                The women who are permanently forbidden to marry due to the ties of consanguinity, affinity, or nursing are mentioned in the Words of Allah the Exalted:

    [ ` ] (: 22-23)

    [And do not marry those [women] whom your fathers married, except what has already occurred. Indeed, it was an immorality and hateful [to Allah] and was evil as a way. * Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives' mothers, and your step-daughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever Forgiving and Merciful. ] (4: 23)

    The women who are permanently forbidden to for a man to marry are:        

                His mother:  Every female who was a cause in your birth, and this includes the mother, the mother's mothers, the mothers' mothers' mothers (her grandmothers), the father's mother, and the father's mother's mothers (his grandmothers), and so on.

                His daughter: Every female that you were a cause in her birth, and whose lineage is connected back to you by birth by one or more degrees; this includes the man's daughter, the daughters of his daughter, and the daughters of his son.

                His sister: Every female who shares with you in one or both of your origins (meaning your mother and father).

                His paternal aunt: Every female who shares in one or both of your father or grandfather's origins.  The paternal aunt may also be from the mother's side, in the case of the sister of the father of your mother.

                His maternal aunt: Every female who shares in one or both of the origins of your mother.  The maternal aunt may also be from the father's side in the case of the sister of the mother of your father.

                The daughter of his brother: Every female born to your brother and this also applies to the daughter of the sister.

                The daughter of his wife: She only becomes prohibited for marriage when the marriage with her mother is consummated, not just by contracting marriage with the mother.  Thus, if a man divorced a woman before consummating the marriage it would be permissible for him to marry her daughter.

                The wife of his father and the wife of his son: They become prohibited upon contracting marriage with the father or the son, even if they are divorced before consummation.

                His wife's mother: Scholars differ as to whether she becomes prohibited for marriage by contracting marriage or by consummation of the marriage, and the preponderant opinion is the first. 

                With regard to all of these classifications of women, if the condition that makes them prohibited to marry is fulfilled, then it is permanently forbidden to propose to them.  This is because it is prohibited to marry them in the first place, and considering the fact that engagement is a prelude to marriage, if marriage to that classification of woman is prohibited, then everything that leads to it is also prohibited.

                The wisdom behind the prohibition of marrying mahrams in has been addressed in Article (15) of Section Four of the Chapter I.

    * Temporary Prohibition:

                Engagement is also prohibited with respect to those with whom to whom marriage is temporarily forbidden, until the factor that caused the prohibition no longer exists. The women in this category are:

    -**-  The sister of the wife is prohibited as long as her sister is married to the man. This is based on the Words of Allah the Exalted:

    [ ] (: 23)

     (.and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever Forgiving and Merciful.) (4:23)

    If the wife were to die or if she were to be divorced and her waiting period ended, then it would be permissible for the man to propose to and marry her sister.  The wisdom behind this prohibition is to protect the family ties from being cut, particularly since it is normal for co-wives to feel jealousy and avoid each other.  For this reason, marrying two sisters at the same time is likely to lead to severing of the ties between them.

    -**-  The wife's paternal or maternal aunt or niece: It is not permissible to marry a woman and the daughter of her brother, or the daughter of her sister.  This is based on what was narrated by Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (may blessings and peace be upon him) said, "Do not marry a woman and her paternal aunt, or a woman and her maternal aunt at the same time."[11]The wisdom in forbidding a man from marry both of these women at the same time is the same as the wisdom behind the prohibition of marrying two sisters at the same time, and thus it is forbidden for a man to propose to one of them while he is married to the other.

    -**-  A woman who is married and continues to be officially married to her husband. This is based on the Words of Allah the Exalted:

    [   ] (: 24)

    [ And [also prohibited to you are all] married women except those your right hands possess. [This is] the decree of Allah upon you. And lawful to you are [all others] beyond these, [provided] that you seek them [in marriage] with [gifts from] your property, desiring chastity, not unlawful sexual intercourse. ] (4: 24)

    If her husband dies or if he divorces her and her waiting period ends, then it is permissible to propose and marry her.  The wisdom behind this is to avoid transgressing the rights of others and also to preserve children's lineage from being confused between two men, and this is one of the aims of marriage, as was previously stated in Article (18) of Section Five of Chapter I.

    -**-  It is prohibited to marry a disbelieving woman if she is not from the People of the Book (a Jew or a Christian) unless she becomes Muslim or one of the People of the book.  Allah the Exalted says:

    [ ] (: 221)

    [And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheistic men [to your women] until they believe. And a believing slave is better than a polytheist, even though he might please you. Those invite [you] to the Fire, but Allah invites to Paradise and to forgiveness, by His permission. And He makes clear His verses to the people that perhaps they may remember.] (2: 221)

    He also says:

    [ ] (: 10)

     [.And hold not to marriage bonds with disbelieving women.. ] (60: 10)

    The wisdom in this prohibition is achieving separation between the Muslims and the disbelievers, and the danger of her influence on the belief and thinking of their children.

                The evidence for the permissibility of marrying women from the People of the Book is found in Allah's Words:

    [   ] (: 5)

    [This day [all] good foods have been made lawful, and the food of those who were given the Scripture is lawful for you and your food is lawful for them. And [lawful in marriage are] chaste women from among the believers and chaste women from among those who were given the Scripture before you, when you have given them their due compensation, desiring chastity, not unlawful sexual intercourse or taking [secret] lovers. And whoever denies the faith his work has become worthless, and he, in the Hereafter, will be among the losers. ] (5: 5)

    However, there is consensus between scholars that it is hated for a Muslim man to marry a woman from the People of the Book if they are at war with the Muslims, as the husband's attachment to her might cause him to live with her in the land that is at war with Muslims, where their children would be raised with non-Muslims values and be subject to non-Islamic rulings, which is a great evil.

                Some scholars of Islamic jurisprudence take the opinion that it is better not to marry women from the People of the Book at all, except in cases of necessity[12] because true love, deep cooperation, and the safety of the child's religion cannot be achieved unless the parents are united within one religion, particularly in this day in age when women's power over men has increased. This is also based on the aspect that it is better for a Muslim man to support a Muslim woman than anyone else.[13]

    -**-  It is not permissible for a man who has divorced his wife three times to re-propose to her until she has married someone else.  Allah the Exalted says:

    [ ........ ] (: 229-230)

    [Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah it is those who are the wrongdoers. * And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah. These are the limits of Allah, which He makes clear to a people who know. ] (2:229-230)

    The other husband must have consummated the marriage before he divorces her or dies.  It was narrated by 'Urwa ibn Az-Zubayr that 'A'ishah (may Allah be pleased with her) the wife of the Prophet (peace and blessings be upon him) informed him that Rifaa'ah Al-Qurazi (may Allah be pleased with him) divorced his wife irrevocably with three divorces after which she married 'AbdurRahman ibn Az-Zubayr. She went to the Prophet (may blessings and peace be upon him) and said, "I was married to Rifa'ah but he divorced me, making my divorce irrevocable. Afterwards I married Abd Al-Rahman ibn Az-Zubayr, but all he possesses is like the fringe of a garment (i.e. he is sexually weak). Thereupon Allah's Messenger (may blessings and peace be upon him) smiled, and said, "Is it that you wish to return to Rifa'ah?  (You) cannot until you have tasted his sweetness and he ('AbdurRahman) has tasted yours."[14]

    * The woman who is in her waiting period from a minor revocable divorce:

                It is not permissible to propose to a woman, whether by clear wording or metaphorically, until the waiting period has ended. This is because during the waiting period she is considered a wife de jure, and it is not permissible to propose to someone else's wife, as has been previously mentioned.

    * The woman who is in her waiting period due to the death of her husband

                It is only permissible to propose to a woman in this case by dropping hints.  Allah the Exalted says:

    [ ` ] (: 234-235)

    [And those who are taken in death among you and leave wives behind they, [the wives, shall] wait four months and ten [days]. And when they have fulfilled their term, then there is no blame upon you for what they do with themselves in an acceptable manner. And Allah is [fully] Acquainted with what you do.* There is no blame upon you for that to which you [indirectly] allude concerning a proposal to women or for what you conceal within yourselves. Allah knows that you will have them in mind. But do not promise them secretly except for saying a proper saying. And do not determine to undertake a marriage contract until the decreed period reaches its end. And know that Allah knows what is within yourselves, so beware of Him. And know that Allah is Forgiving and Forbearing. ] (2: 234-235)

    * A woman who is in her waiting period from an major irrevocable divorce:

                According to the Hanbali school of jurisprudence, it is permissible to propose indirectly to a woman who is in her waiting period after having been divorced three times, as opposed to proposing marriage directly, and this is the opinion that has been adopted by the Charter.

    * A woman who is in her waiting period from a minor irrevocable divorce:

    It is permissible for the ex-husband to re-propose marriage directly or indirectly to a woman who is in her waiting period from a minor irrevocable divorce such as a woman who has been divorced by khul'a (where she returns her dowry in exchange for divorce) or a woman who's marriage has been dissolved due to the husband's absence or his inability to support his wife, etc. He may do so as it is permissible for him to marry her while she is in her waiting period, and thus, with respect to him, she is like a woman who is not in her waiting period.  However, with respect to all others, it is only permissible for them to imply their intention of marriage indirectly, and this is the opinion of the majority of scholars, and it is the opinion that has been adopted by this Charter.

    The meaning of proposing directly or indirectly:

                Implying one's proposal indirectly means to convey the meaning in a way that could be understood more than one way, such as saying, "You are a pious woman" or saying, "I am in need of a woman."  The Prophet (may blessings and peace be upon him) proposed indirectly to Fatimah bint Qays when her husband divorced her three times, saying "When you become permissible, inform me." Then he proposed to her on behalf of Usaamah ibn Zayd,[15] and in another wording of the hadith he said, "Don't let yourself slip by us."[16]

                Another example of an indirect proposal is what was narrated by Ibn 'Abbaas (may Allah be pleased with him) in his explanation of the Words of Allah:

    [ [

    [There is no blame upon you for that to which you [indirectly] allude concerning a proposal to women]

    He says, "I want to get married and I hope to find a pious woman."

     
     

     

     

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