Islamic Marital Jurisprudence

From : Wikipedia.org

Marriage in Islam is considered to be of the utmost importance. There are numerous hadiths lauding the importance of marriage and family.

In Islamic law, marriage is a legal bond and social contract between a man and a woman as prompted by the Shari'a. There are two types of marriages mentioned in the Qur'an, the Nikah in verse 4:4 and the Nikah Mut'ah in verse 4:24.

Types of marriage

Nikah
Main article: Nikah
Nikah (Arabic: نكاح, literally: to have sex[1]) is the first, and most common form of marriage for Muslims; described in the Qur'an in 4:4.


A Muslim bride signing the nikkah nama or marriage certificate.Regulations:

It is aimed to be permanent, but can be terminated by husband engaging in the Talaq (divorce) process or the wife seeking a divorce.
The couple inherit from each other.
A legal contract is signed when entering the marriage.
The husband must pay for the wife's expenses.
If a divorce date is determined in the Nikah contract:

In Sunni jurisprudence, the contract is voided.
In Shia jurisprudence, the contract is transformed into a Nikah Mut'ah.
Requirement of witnesses:

Sunni: Three
Shia: None[1].

Nikah Mut'ahMain article: Nikah Mut'ah
Nikah Mut'ah (Arabic: نكاح متعة,, literally: to have sex for satisfaction[2]), (often referred as "fixed-time marriage" since many of these marriages have a time limit), is the second form of marriage although not explicitly stated in the Qur'an in 4:24 but one can infer. There is controversy on the Islamic legality of this type of marriage, since Sunnis believe it was abrogated by Muhammad, while Shias believe it was forbidden by Umar and hence that ban may be ignored since Umar had no authority to do so. The Qur'an itself doesn't mention any cancellation of the institution. Nikah Mut'ah sometimes has a preset time period to the marriage, traditionally the couple do not inherit from each other, the man usually is not responsible for the economic welfare of the woman, and she usually may leave her home at her own discretion. Nikah Mut'ah also does not count towards a maximum of wives (four according to the Qur'an). The woman still is given her mahr, and the woman must still observe the iddah, a period of four months at the end of the marriage where she is not permitted to marry in the case she may have become pregnant before the divorce took place. This maintains the proper lineage of children.


Who may be married?
Polygamy in Islam is permitted under a few conditions. Women are not allowed to engage in polyandry, whereas men are allowed to engage in polygyny.


Other religions
Islamic jurists hold that Muslim women may only enter into marriage with Muslim men.[3] The Qur'an explicitly allows Muslim men to marry chaste women of the People of the Book, a term which includes Jews, and Christians.[4]


Adulterers
Islam does not give adulterous men the right to marry a chaste woman and nor may an adulterous woman marry a chaste man, except if the matter has not gone to court and the two purify themselves of this sin by sincere repentance.[5][6] "Women of purity are for men of purity, and men of purity are for women of purity "(Quran 24:26)


Other
A woman or man may propose marriage directly or through an intermediary (matchmaker).

Recognition or celebration of same sex marriage is completely unjustified in the view of Islamic law. In Islam, homosexuality is forbidden by Qur'anic injunctions and Islamic tradition.

A marriage is registered by the Qadhi who performs the short ceremony.

Unlike the wedding ring in Western societies, there is no visible sign worn to show a woman or a man is married. However, some Muslims have found the wedding ring to be a non-religious tradition and have used them.


Mahr
Main article: Mahr
Mahr is a mandatory gift given by the groom to the bride. Unlike a bride price, however, it is given directly to the bride and not to her father. Although the gift is often money, it can be anything agreed upon by bride and groom such as a house or viable business that is put in her name and can be run and owned entirely by her if she chooses.


Islamic Marriage Contract
Main article: Islamic Marriage Contract
The purpose, rules, and regulations of the Islamic Marriage Contract. A Muslim marriage is not a 'sacrament', but a simple, legal agreement in which either partner is free to include conditions. These conditions are stipulated in a written contract. Violating any of the conditions stipulated in this contract is legal grounds for a partner seeking divorce. The first part of the Nikah, 'marriage ceremony' is the signing of the marriage contract itself.

Various traditions may differ in how Nikah is performed because different groups accept different texts as authoritative. Therefore, Sunnis will likely accept Bukhari Hadith while Shia will have their own collections, for example Furu al-Kafi, thus producing different procedures. This contract requires the consent of both parties. There is a tradition, outside of the religion, in some Muslim countries to pre-arrange a marriage for young children. However, the marriage still requires consent for the wedding to legally take place.

Divorce is not forbidden as a last resort, however the dissolution of the contract, Talaq, is often described as the most disliked of permissible things in Islam and should be used as a last resort.


Walima
Main article: Walima
The Walima is a dinner given by the groom's side of the family to celebrate the welcoming of the bride to the family. It is a strong sunnah (something the prophet Muhammad did) and it is recommended to be held on the earliest possible day after consummation as possible.


Behavior within marriage

[edit] Rights and obligations of spouses
Main article: Rights and obligations of spouses in Islam
Islam advocates a role-based relationship between husband and wife.

Narrated Ibn 'Umar: The Prophet said, "All of you are guardians and are responsible for your wards. The ruler is a guardian and the man is a guardian of his family; the lady is a guardian and is responsible for her husband's house and his offspring; and so all of you are guardians and are responsible for your wards." Sahih Bukhari:Volume 7, Book 62, Number 128

It puts the main responsibility of earning over the husband. Both are obliged to fulfill the other's sexual needs. Husbands are asked to be kind to their wives and wives are asked to be obedient to their husbands. However, when the wife's clearly rebellious behavior is preventing mediation between the two, the husband shall urge his wife to mend her ways, and if that is unsuccessful, to refuse to share their bed with her to express the seriousness of the disagreement, and finally, husbands are allowed to admonish their wives by light physical exertion. The books of fiqh describe this physical expression as not leaving any mark on her body, not upon her face, and with the same strength as would be exerted through striking with a toothbrush. This is all assuming the husband is in the right, and such mediative tactics will prevail in restoring the correct understanding of the man. If, however, the man is in the wrong, these mediative tactics will have no success, and that is proof that the man need to mend his approach towards the disagreement. These are last resort tactics that the husband, if he his wise, should use rarely in order to maintain his credibility.


Sexuality
Main article: Sexuality in Islam
It has been suggested that this article or section be merged into Sexuality in Islam. (Discuss)

Sexuality in Islam is largely described by the Qur'an, Islamic tradition, and religious leaders both past and present as being confined to marital relationships between men and women. While most traditions discourage celibacy, all encourage strict chastity and modesty with regards to any relationships across gender lines, holding forth that intimacy as perceived within Islam -- encompassing a swath of life more broad than strictly sex -- is to be reserved for marriage.

Narrated 'Abdullah: We were with the Prophet while we were young and had no wealth whatever. So Allah's Apostle said, "O young people! Whoever among you can marry, should marry, because it helps him lower his gaze and guard his modesty (i.e. his private parts from committing illegal sexual intercourse etc.), and whoever is not able to marry, should fast, as fasting diminishes his sexual desire." Volume 7, Book 62, Number 4:

[2]

While adulterous relationships are strictly forbidden, permissible sexual relationships within marriage are described in Islamic sources as great wells of love and closeness for the couple involved. Sexual relationship between married couples are even source of rewards from God as doing the oppositie i.e. satisfying sexual needs through illicit means has punishment. Specific occasions -- most notably daytime fasting and menstruation -- are times forbidden for intercourse, though not for other ways of touching and being close to one another. Anal sex with one's wife is also strictly prohibited.


Gender roles
Main article: Gender roles in Islam
In Islamic theology, both sexes are generally considered to be equal in value and differences between the sexes are recognized, resulting in different rights, obligations, and distinct roles.

Women are expected to be home-makers and caregivers to their children, and it is generally considered a good thing if they are educated as well. Traditional interpretations of Islam supports the traditional division of labour whereby women assume the main responsibility for the home while men are responsible for supporting their wives. Motherhood is seen as one of the most important roles in society. Muslim wives and mothers should be granted the respect due to all women for the struggles and sacrifices they make for the sake of their families. Mother has been given three times higher status over father. In most interpretations of Islam, Muslim women may seek a higher education, work outside the home or volunteer their services to benefit the community as long as their primary responsibilities are taken care of, they have the permission of their husbands and they do not compromise their faith in doing so (i.e. jobs that require them to dress in a fashion that is contrary to the Sharia -- Hijab).


Childrearing
Main article: Islam and children

Adoption
Main article: Islamic adoption
Islam has its own rules of regulations regarding adoption, with distinct rules and regulations prior to and after the legal adoption. Muslims are not allowed to adopt. Muslims are usually required to let any such children continue the lineage of their birth parents, and are not allowed to make the adopted children to continue the adopted parents' lineage.


Divorce
Main article: Talaq (Nikah)
The typical way to end a is through Talaq, a legal Islamic divorce. Divorce is very disliked in Islaam. However, it is still legal and can be practiced.

In Shia Islam, a divorce is a procedure that is three fold

Initiation - The divorce is anounced publicly (triple talaq is illegal)
Reconciliation - the couple will try to reconcile differences
Completion - With two witnesses and after the Iddah period has expired, the divorce is complete.
In Sunni Islam there is Triple talaq, it is a (controversial) practice in which the couple instantly divorces by declaring the intention three times and thus making sexual relations between them haram for each other. However Islamic tradition maintains that divorce cannot be final until after a period called 'Iddah, that is the period of three months or more specifically three menstrual cycles, so that it is evident that the wife is not pregnant. Furthermore, after the divorce is final the couple may not remarry until the wife has married and divorced another.

Narrated Nafi: Ibn 'Umar bin Al-Khattab divorced his wife during her menses. Allah's Apostle ordered him to take her back till she became clean, and when she got another period while she was with him, she should wait till she became clean again and only then, if he wanted to divorce her, he could do so before having sexual relations with her. And that is the period Allah has fixed for divorcing women. Whenever 'Abdullah (bin 'Umar) was asked about that, he would say to the questioner, "If you divorced her thrice, she is no longer lawful for you unless she marries another man (and the other man divorces her in his turn).' Ibn 'Umar further said, 'Would that you (people) only give one or two divorces, because the Prophet has ordered me so." Sahih Bukhari:Volume 7, Book 63, Number 249

Narrated Yunus Ibn Jubair: Ibn 'Umar divorced his wife while she was having her menses. 'Umar asked the Prophet who said, "Order him (your son) to take her back, and then divorced her before her period of the 'Iddah has elapsed." I asked Ibn 'Umar, "Will that divorce (during the menses) be counted?" He replied, "If somebody behaves foolishly (will his foolishness be an excuse for his misbehavior)?" Volume 7, Book 63, Number 250