December 7, 2003

Unlike Christianity, marriage in Islam is not a ‘perpetual union’. It takes a contractual view of the relationship and gives the parties the option of entering into the contract on terms they deem proper and of terminating it when it fails to work for them

MARRIAGE, a holy bond between a man and a woman, has been celebrated for the longest time in all cultures and religions. In Islam, the concepts of marriage and family life are of utmost importance, ruled by the Shari’a or the legal tradition in Islam. Shari’a is unique because it is a result of Divine Revelation through the Holy Quran, which was supplemented by the Sunnah of the Holy Prophet (Peace be upon him).

The Holy Quran and the Sunnah are primary sources, while Ijtehad (human reason) and Ijma (consensus of the Muslim community), the other two sources, are not only based on the two primary sources, but are also dependent on them for justification, validity and law-making utility. As a comprehensive system of law, the Shari’a elevates the family as a sacred institution. Moreover, this institution has the individuality that differentiates it from comparable codes in other systems of law.

Marriage is an indispensable starting point for family life. Moral and ethical origins of family life in any religion lie in a lawfully solemnized marriage in accordance with the teachings of that religion. But Islam, while attaching a religious element to marriage, still terms it a civil contract.

In any legal system, a contract, an agreement or covenant enforceable at law, is the gateway to legal relations. Be it trade, business, transfer of property or some other transaction, an element of contractual “meeting of minds” must exist for its enforcement and execution at law. What matters most in contracts besides their other essentials is the carrying out of certain formalities and the absence of undue influence, coercion and fraud against parties involved. A free will must, therefore, exist at the time when a person becomes party to the contract.

An Islamic marriage contract has several distinguishing characteristics. It is a contract largely dependent on, and governed by, the volition of parties. Islam has very few restrictions which can control or take away the right of Muslims to marry. Unlike Christianity, marriage in Islam is not a ‘perpetual union’. Rather, Islam takes a contractual view of relationships and gives parties the option of entering into the contract on terms they deem proper and of terminating it when remedies of reconciliation have been exhausted.

An essential feature of every contract is the element of “consideration”. Consideration is the price for a promise and the validity of every contract depends on its involvement. The price could be anything of value and does not have to be measured in monetary terms. In an Islamic marriage, consideration is not the dower or mehr — a marriage gift by the husband as a mark of respect to the wife — but abstention from adultery and leading a virtuous life. The uniqueness of the contract is evident from the fact that its consideration comes from both parties and is in essence a mutual promise. The mutuality of the promise is the covenant to observe the limits ordained by Allah (Hudud Allah), which in case of marriage is abstention from adultery. Therefore, another distinguishing aspect of the contract from a moral perspective would be that it involves a religious element which is the association of Allah as third party.

The fundamental purpose of marriage in Islam is spiritual purity and strengthening of morals. Islam endeavours to cleanse society of imperfections which could hamper its moral and intellectual growth. Islam was revealed at a time when marriage had lost its moral essence and had disintegrated into subjective interpretations of tribal and communal relationships. As a result, prostitution, bigamy and sexual impropriety were widespread throughout the Arabian Peninsula during the period of ignorance (jahiliyah). Women’s degraded status in society did not allow them to stand equally with men in marriage. Islam sought to correct such deep-rooted disparities by introducing the sustainable institution of marriage where the foremost percept is that of equality between parties and where perpetuating the family structure is the main goal.

The marriage contract provides Muslims with means of saving themselves from sins and immoral leanings of everyday life and maintaining a state of piety (taqwa). It is preferred in Islam that a man and a woman contract 50 marriages but not spend a moment of their lives in immorality. The determined limits of Allah must be adhered to and respected at all costs, and Islam prefers them to every other objective. The means of achieving these noble ends is through marriage, which not only provides a check on capricious and immoral contact between the sexes, but is also the path to fulfilling the Sunnah of the Holy Prophet (Peace be upon him).

On a philosophical note, the Holy Quran mentions the word nikah (marriage) by the word ihsan, which means fortress. The man who contracts a marriage is a muhsin, one who builds a fortress. The woman who marries him is a muhsinah, one who comes within the protection of the fortress of marriage to protect her and her morals. (Abul A’la Maududi, Huquq Az-Zaujain).

A fortress built on the foundation of marriage plays a vital role in family life. The first education that a child gets is from his/her parents. If family life has been kept pure by marriage, seeds of the new generation find proper sustenance to grow into healthy trees. Moreover, spouses are deemed to be in a consortium with each other that provides ideal nourishment for their intellectual faculties to get utilized in the right direction. In the Holy Quran it is said: “Among His signs is this, that He created for you mates from among yourselves, that you may find rest in them, and He has put love and mercy in your (hearts). Verily in that are signs for those who reflect” (30:21).

The Holy Quran describes the significance of spouses for each other in the following words: “They are your garments and you are their garments” (2:187). Garments not only hide a person’s body from the environment and its effects, but are also a source of comfort and pleasure. Another aspect of the Quranic philosophy can be inferred from the imposition of Allah’s order upon the universe. It is said in the Holy Quran: “Glory to Allah who created in pairs all things that the earth produces as well as their own human kind and things of which they have no knowledge” (36:36). The creation of pairs is therefore meant to preserve the order in this universe, which otherwise is a cauldron of chaos. Marriage is an ethical way of preserving the human race and a systematic way of legalizing and keeping in array the ordering of our generations.

It is worth mentioning that the marriage contract in Islam is procedurally very simple. No particular formalities or form are necessary. The only requirement is an unequivocal offer (ijab) and acceptance (qubul). Once this takes place at one meeting (i.e. the same majlis) and in the presence of two witnesses, the man and woman lawfully become wedded and all rights and duties to each other come into effect.

The Islamic institution of family has stood the test of time and has been the community’s pillar of strength. Some Muslim countries compromised when it came down to doing away with traditional criminal punishments such as the Islamic hudud by adopting western criminal justice systems instead. Strong opposition, however, came from the conservative element in most Muslim countries when any attempt was made of altering or amending any aspect of Muslim Family Laws.

Across history, marriage and other family laws have always been considered an integral and immutable part of Islam, and considered unalterable in most Islamic countries. The Ulema (religious scholars) have treated the sphere of family laws as though it were in a specific sense “Islamic” where the rules of the Shari’a must be strictly observed and the political, economic and financial life as belonging to a secular or quasi-secular jurisdiction where the state could take independent action. (Fazlur Rehman, Islamic Modernism: Its Scope, Method and Alternatives).

Please Visit our Sponsor (Ads open in separate window)