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Law - Family




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Lesson 68

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Main Points

·  Lawful marriage is a duty on all those who are capable of meeting its responsibilities and who fear temptation. It is a Sunnah on all who are capable but unwilling to marry.

Conditions for a valid marriage

a) A male guardian, nearest relative to the woman, after having her permission if she is a virgin, and her counseling if she has been married before

b) Two witnesses known for their integrity and piety

c) The contract is in a traditional form. Commissioning to sign the contract is permissible. Equal social standing between husband and wife is a condition.

d) Dowry is to be given to the wife.[1]

·  It is recommended not to exaggerate in the value of the dowry. It is allowed to be delivered at the time of making the contract, or to defer a part of it or all to a stated term.

·  If marriage is terminated before coition by divorce, then the wife has the right on half of the dowry, and on the death of the husband, then the whole amount is for her and she inherits him.[2]

·  The Sunnah rituals of marriage are engagement, banquet (Walimah), declaring marriage by melodious or permitted songs, praying for the couple, and the two pray on their coition.[3]

·  The wife has the right to set conditions for the contract that are not against the nature of marriage, and do not prohibit something permissible or vice versa.

·  Either of the two spouses has the choice to annul the marriage or continue in the following situations: discovering a severe defect which was not apparent before marriage, the husband's inability to pay the prepaid dowry or the dutiful support of the wife, or the husband’s absence without leaving living expenses for his wife.[4]


Evidence of Qur'an and Sunnah

The legality of marriage:

Allah says:

]فَانكِحُواْ مَا طَابَ لَكُم مِّنَ النِّسَاء مَثْنَى وَثُلاَثَ وَرُبَاعَ فَإِنْ خِفْتُمْ أَلاَّ تَعْدِلُواْ فَوَاحِدَةً أَوْ مَا مَلَكَتْ أَيْمَانُكُمْ[ 
النساء: 3)

This means: “Then marry (other) women of your choice, two or three, or four but if you fear that you shall not be able to deal justly (with them), then only one or (the captives and the slaves) that your right hands possess.” (4, An-Nisa’: 3)

Allah says:

]وَأَنكِحُوا الأَيَامَى مِنكُمْ وَالصَّالِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ[
(النور: 32)

This means: “And marry those among you who are single (i.e. a man who has no wife and the woman who has no husband) and (also marry) the Salihun (pious, fit and capable ones) of your (male) slaves and maid-servants (female slaves).” (24, An-Nur: 32)

The Prophet (peace be upon him) said:

“O young men, those among you who can support a wife should marry, for it restrains eyes from casting (evil glances) and preserves one from immorality.”
(Reported by Al-Bukhari and Muslim)

He (peace be upon him) also said:

“Marry women who are loving and very prolific, for I shall outnumber the peoples by you.”
(Reported by Abu Dawud and An-Nasa’i)

The conditions of marriage:

The Prophet (peace be upon him) said:

“There is no marriage without a guardian.” (Reported by At-Tirmidhi)

He (peace be upon him) also said:

“A woman without a husband has more right to her person than her guardian, and a virgin’s consent must be asked from her, and her silence implies her consent.” (Reported by An-Nasa’i)

He (peace be upon him) also said:

“If he whose faith and morals please you comes to you, allow him to marry (the woman in your charge). If you do not, there will be Fitnah (wars, battles, polytheism, etc.) on the earth, and a great mischief and corruption.”
(Reported by At-Tirmidhi, Ibn Majah, and Al-Hakim)

The dowry:

Allah says:

 ]وَآتُواْ النَّسَاء صَدُقَاتِهِنَّ نِحْلَةً[
(النساء: 4)

This means: “And give to the women (whom you marry) their Mahr (obligatory bridal money given by the husband to his wife at the time of marriage) with a good heart. (4, An-Nisa’: 4)

Allah says:

 ]وَإِن طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ[ (البقرة: 237)

This means: “And if you divorce them before you have touched (had a sexual relation with) them, and you have appointed unto them the Mahr (bridal-money given by the husbands to his wife at the time of marriage), then pay half of that (Mahr).” (2, Al-Baqarah: 237)

The Prophet (peace be upon him) said:

“Go and search for something even if it were an iron ring.”
(Reported by Al-Bukhari and Muslim)

Ibn `Abbas narrated:

“When `Ali married Fatimah, the Prophet (peace be upon him) said to him: Give her something. He said: I have nothing with me. He said: Where is your Hutamiyyah (coat of mail).”
(Reported by An-Nasa'i and Abu Dawud)

He (peace be upon him) also said:

“The best of marriages is the easiest.” (Reported by Abu Dawud)

The Sunnah rituals of marriage:

The Messenger of Allah (peace be upon him) said:

“Every matter of significance that does not begin with the praise of Allah, remains defective.” (Reported by Abu Dawud)

He (peace be upon him) also said:

“Give a wedding banquet even if with one sheep.”
(Reported by Al-Bukhari and Muslim)

He (peace be upon him) also said:

“He who is invited to a wedding feast or like it, he should accept it.” (Reported by Muslim)

He (peace be upon him) also said:

“The worst food is that served at a wedding feast, in which those excluded who would like to come to it and to which those invited refuse to come.” (Reported by Muslim)

The Prophet (SAWS) said, "The difference between the lawful and the unlawful is the tambourine (beat of the duff) and the voice (of singing) in the wedding." [At-Tirmidhi]

Abu Hurayrah narrated that:

“When the Prophet (peace be upon him) was to congratulate a man on his marriage, he would say: May Allah bless for you, and may He bless on you, and combine both of you in good (works).”
(Reported by At-Tirmidhi)


Good manners of marriage:

The invocation of the husband on coition:

“O Allah, I ask You for the good in her, and in the disposition You have given her; I take refuge in You from the evil in her, and in the disposition You have given her.” (Reported by Abu Dawud)

On having sexual relationship:

Allah’s Messenger (peace be upon him) said:

“If anyone intends to have sexual intercourse with his wife, he should say: In the Name of Allah. O Allah! save us from Satan and keep the devil away from what You have bestowed upon us. Then, if Allah has ordained a child for them, the devil will never harm him.”
Reported by Al-Bukhari and Muslim)

  He (peace be upon him) also said:

“The most evil of the people to Allah on the Day of Resurrection will be the man who has sexual intercourse with his wife and then publicizes her secret.” (Reported by Muslim)

Conditions of the wife:

The Prophet (peace be upon him) said:

“From among all the conditions which you have to fulfill, the conditions which make it legal for you to have sexual relations (i.e. the marriage contract) have the greatest right to be fulfilled.”
(Reported by Al-Bukhari and Muslim)

He (peace be upon him) also said:

“No woman may ask the divorce of her fellow Muslim sister in order to deprive her of what belongs to her.”
(Reported by Al-Bukhari and Muslim)

The choice to annul marriage:

`Umar Ibn Al-Khattab said: “If a man deceived a woman (and married her), she must have the dowry for having sexual relations with (this man) and the (due) dowry of a man is paid to him by the one who deceived him.” (Reported by Malik)