(Tr. by Shehzad Saleem)
Man by nature likes to live in a community. The reason that the Almighty has bestowed him with this nature is that He does not create human beings in the prime of their youth. Similarly, human beings do not generally die in their youth without passing through old age. On the contrary, a human being is created as a feeble child in the womb of the mother who enters this world to be welcomed by her loving affection. He then grows being nurtured and nourished by others. At first, he drags himself and then crawls along his knees before he is able to stand on his feet. Even after this state, he needs the help of others at every step. Finally, after going through various phases of childhood and adolescence, he enters the prime of his youth at the age of fifteen or sixteen. This blooming period of his life also does not last more than twenty to thirty years. Then comes old age and in spite of attaining great heights in intellect in his prime, he once again has to turn to others to fulfill his needs like a frail child.
This life cycle of man entails that he live in a social set-up. As a man or a woman, from the very beginning of life, this affinity towards a social set-up is fully found in his being. He does not need to find this tendency in his external world. When he enters this world, he brings with him all his internal urges and inner motivations and uses them to fulfill his needs wherever and whenever required.
The history of mankind shows that owing to this very aspect of human nature, when Adam, the founder of the human dynasty was sent in this world, he was blessed with a wife from his own species – someone who was meant to be his companion. From these two sprang many men and women as their progeny. Gradually, a family, a tribe and finally a state came into existence. The resultant social set-up afforded man the opportunity to realize his hidden potentials and urges.
It is in consideration of all these facts and to firmly establish a society on these fundamentals, an everlasting bond between the spouses is made essential in the religion of the Prophets. If the whole life of a human being – from childhood to old age – is kept in consideration, sense and reason endorse that to fulfill his physical, psychological and social needs an everlasting marriage bond between the spouses is essential. Consequently, the Almighty has given a detailed social shari'ah to man through His Prophets regarding the society which is established on this basis.
Following are the details of this shari'ah of God.
The only legitimate way to satisfy one's sexual desire is marriage (nikah). Marriage is an open declaration of a contract by a man and woman to live permanently as husband and wife. It is declared in the presence of people through a responsible personality with great solemnity and gravity after he delivers a sermon to counsel and guide them. Women too like men have the right to take a decision for their marriage and freely exercise their opinion in the bounds and limits set by the Almighty. Without their consent, they cannot be forced to marry.
2. Relations Prohibited for Marriage
It is prohibited to marry one's mother, daughter, sister, maternal aunt and the daughters of one's brother or sister.The Almighty wants the gaze of a son for his mother, of a father for his daughter, of a brother for his sister, of a nephew for both his maternal and paternal aunts, of a maternal and a paternal uncle for their nieces to remain free from the slightest trace of sexual leaning. The reason is that that any sort of sexual proclivity between these relations is devastating for human dignity and honour and is totally against the unadulterated state of chastity and purity that distinguishes man from animals. Foster relations too have a similar sanctity as the real ones. Thus every relation prohibited through lineage for marriage is prohibited on the basis of fosterage too. After lineage and fosterage, are relationships which emerge on the basis of marriage itself. Such is the obviousness of the sanctity of these relationships in human nature that no reasoning is required. Consequently, the daughter-in-law is prohibited for the father, and the mother-in-law, the wife's daughter, the wife's sister and both nieces and both aunts (maternal and paternal) of the wife are all prohibited for the husband. However, since these relationships are formed through the husband and the wife, a degree of weakness is found in them. Owing to this reason, the Qur'an has imposed the following three conditions on the prohibition of these relationships:
Firstly, only the daughter of that wife is prohibited with whom one has had conjugal contact.
Secondly, only the daughter-in-law of a real son is prohibited.
Thirdly, the sister of a wife and her two nieces and aunts are only prohibited if the wife is in wedlock with the husband.
3. Requisites of Nikah(Marriage)
A nikah should be conducted through wealth – which here means dower. The Qur'an emphasizes that the Almighty has ordained this payment as an essential pre-requisite of marriage. When a man and a woman pledge to remain in a permanent relationship through marriage, it is the man who has always taken the financial responsibility of the woman he is bringing home. The dower is nothing but a symbolic expression of this responsibility. The shari'ah has not fixed any amount for the dower. It has left it to the norms and traditions of a society. Consequently, it can be fixed according to the social status of the woman and the financial status of the man who is to become her husband.
Chastity is also a requisite of marriage. No adulterer has the right to marry a chaste woman and no adulteress has the right to marry a chaste man, except if the matter has not gone to court and the two purify themselves of this sin by sincere repentance. Similar is the case of polytheism: just as it cannot be acceptable in any way that a husband or wife commit marital unfaithfulness, similarly, it is totally unacceptable for a Muslim that someone else besides the Almighty be worshipped in His house. In fact, this is more detestable a sin than sleeping with some other woman. In the case of the Jews and Christians, the Almighty was lenient enough to Muslims to allow marriage with their chaste women. This was because Jews and Christians in spite of deeply incriminated with the filth of polytheism are basically monotheists.
4. Rights and Obligations of the Spouses
A family is like a small state. Just as every state requires a ruler for its establishment and survival, this small state also requires someone to take charge of its helm. Either the husband could have been bestowed with this responsibility or the wife. The Qur'an informs us that because of certain physical and temperamental abilities, the husband has been entrusted with this responsibility and as an essential result of this has required two things from the wives: firstly, they should be obedient and adaptable to their husbands and secondly, they should keep the secrets of their husbands and protect their honor and integrity.
If a wife becomes inclined to disrupt the discipline of the house by challenging this status of the husband, the Almighty has said that three options can be adopted by him to save the family.
First, a wife should be urged to mend her ways. The word used by the Qur'an is وَعَظ which means that she can be admonished and also scolded to some extent in this regard.
Second, intimate marital relations with her should be suspended in order to communicate to her that if she does not mend her ways she might have to face severe repercussions.
Third, she should be punished physically. This punishment should only be as much as a teacher gives to a student or what a father gives to his children.
A gradual sequence should be adopted in exercising these three options. In other words, the second step after the first and the third after the second should only be adopted if the husband is convinced that there is no other option but to go on to the next step. These measures point to the utmost limit to which a husband can go regarding admonishing his wife. If the wife mends her ways through these measures a husband should not look for revenge and vengeance.
If a person dislikes his wife, he should not subject her to harsh treatment in order to recover any wealth or property that he has gifted her. Such an attitude can only be accepted if the wife is guilty of open sexual transgression. If the wife is not guilty of such behavior and is living as a faithful and obedient lady leading a virtuous life, it is totally against justice and decency for the husband to harass her merely because he dislikes her. No doubt if a wife shows moral misconduct, then this is a detestable thing, but no husband is allowed to deprive her of a decent living because he does not like her looks or because her temperament is different from his. A husband who does not like his wife should still deal with her in accordance with the norms of justice and equity, graciousness and decency, reason and human nature.
As per the norms of human nature, the real benefits and advantages of the institution of family manifest themselves in a monogamous family. It is basically social, psychological, political and cultural needs because of which the tradition of polygamy has existed in every society whether in a pronounced or mild form. To cater for these very needs, the Almighty never forbade this practice in the shari'ah He gave in various periods of time. However, when the Qur'an urged the Muslims to make use of this practice to solve a social problem that had arisen in the time of the Prophet (sws), it made it conditional upon two things:
First, even for as noble an objective as the welfare of orphans, a person cannot marry more than four wives.
Second, if a person is not able to deal justly with all four wives, he should not marry more than the number he can be just with. Justice is a value that has to be maintained at all costs and cannot be sacrificed even for such a noble cause.
However, this justice does not mean equality in a person's inner inclination and his outer behavior. Such justice is not possible for any person and even if someone wants to do such justice, he cannot do so. This is because a person has no power over his heart in such affairs. Therefore, in this regard it is enough for a husband to not completely lean towards one of the wives and show indifference to the other, as if she had no husband.
Whether marriage has taken place to protect the rights of the orphans or for some other purpose, payment of dower and discharging of justice are the rights of a woman and the former must be given with the willingness of the heart. However, if it is feared that a husband may show indifference to his wives or even think of parting ways with them because of their insistence to be treated equally, it is alright if a husband and wife settle for a compromise.
6. Limits of Sexual Intimacy
A husband and wife are prohibited to have sexual intercourse when the wife is passing through her menstrual or puerperal cycle. This prohibition is till the blood stops and once it stops this prohibition is lifted; however, the desirable way in this regard is to have intercourse after she has bathed and to have it necessarily in the way prescribed by God.
It is not allowed to sever sexual relations from one's wife without a valid reason. So much so, if a person swears such an oath, he must break it. A period of four months has been fixed for it after which a husband must decide to either resume the marital relationship or to divorce her.
If a person is unseemly enough to regard his wife as his mother or likens some limb of his wife to that of his mother, then such an utterance does not make the wife his mother and neither is she endowed with the sanctity a mother has. Consequently, such an utterance neither breaks marital ties nor does a wife become prohibited for a person like his mother. However,a person who utters these words shall not be allowed to go scot-free. Such lose talk gravely affects the social life, and thus it is essential that such a person be punished for this unbecoming behavior so that he is careful in future and others also learn a lesson from this. Consequently, it is decreed by the Almighty that he must atone his sin before going near his wife in the following manner:
A slave-woman or a slave-man should be set free.
If slaves are not available, he should fast consecutively for two months.
If this is also not possible, he should feed sixty indigent persons.
If it becomes impossible for a husband and wife to get along with one another, there has always existed in divine religions the option of separation from one another. In religious parlance, this separation is called divorce.
Before circumstances reach an extent that divorce remains the only option, it should be the intense desire of every person to keep intact the marital relationship as far as possible. However, if all efforts of reformation fail and it becomes evident that this relationship cannot remain intact, the Almighty has asked Muslims to make a last ditch effort: the relatives of the couple, their clan and tribe and other well wishers should come forward and use their influence to set right the situation. The procedure outlined in this regard is that one arbitrator should be appointed from the husband's family and another from the wife's family. Both these arbitrators should try to reconcile the two in the hope that what the husband and wife could not accomplish themselves would be accomplished by the elders and well wishers of the two families.
A husband is the head of the family. He is responsible for financially providing for her. On these very grounds, he has been given the right to divorce. If a wife wants to separate from her husband, she cannot divorce him; on the contrary, she will demand divorce from him. In general circumstances, it is hoped that every gentleman, seeing that there is no other way out, would accept this demand. However, if this does not happen to be the case, a wife can turn to the court of law. It can order a husband to give her divorce or can annul the marriage contract.
Whether a husband divorces his wife because of his own decision or does so at the demand of his wife, in both cases the procedure of divorce prescribed by the Qur'an is as follows:
i. Divorce should be given keeping in consideration the 'iddat. This means that it is incorrect to divorce a wife in a manner that separates her instantaneously. In all instances, it must be given after a considered intention of separation and it becomes effective after a specific waiting period. 'Iddat in religious parlance means the period in which a divorced or widowed lady cannot marry any other person. Since this period has been primarily fixed in order to ascertain whether a lady is pregnant or not, therefore it is necessary that divorce be given after a lady has completed her menstrual cycle in that period of cleanliness in which the husband did not have any sexual intercourse with his wife.
ii. Muslims must carefully keep count of the period of 'iddat. Since divorce is a matter of great consequences, and a lot of legal issues arise for the man, the woman, their children and their whole family, it is essential that the time and date of divorce be properly accounted for. Moreover, it is essential that at the time of divorce, the state of the woman, the date when the 'iddatcommenced and the date when it will end be kept track of.
iii. Until the 'iddatperiod expires the husband has the right to take back his wife. If the husband does not take back his wife within the 'iddat period, then once this period expires the relationship of wedlock will cease to exist. Consequently, the husband is directed to make up his mind once this period is approaching its end. He should decide if he has to revoke his decision and take her back or is to persist with his decision and sever his relationship with her. In both cases, the Almighty has directed him to follow the ma'ruf (good conventions) of the society. Following are the directives given by the Qur'an in this regard.
Firstly, whatever amount of wealth, property, clothes, jewelry and other items that have been gifted to the wife by the husband, they should not be confiscated by him. nafqah (maintenance) andmahr (dowry) are the absolute rights of a wife and confiscating them is unthinkable. What is emphasized by the Qur'an is that a husband should not take back anything besides these two that he may have given her.
There are two exceptions to this directive:
First, if it is no longer possible to keep a marriage intact according to the limits set by Allah, and the family elders and society also support the annulment, but a husband is unwilling to divorce his wife simply because he is concerned about losing wealth, property or other gifts he has given his wife, then the issue can be resolved in the following manner: the wife can give back part or all of the wealth gifted to her to relieve herself of her marital contract. In such cases, it would be lawful for the husband to accept these returned gifts.
Second, if the wife is guilty of open sexual misconduct. Since such a behavior destroys the very basis of the marital relationship, it is lawful for the husband to take back any gifts or wealth given to her.
Secondly, the husband shall not be responsible to give the dower if the wife is divorced such that the husband has not touched her or her dower had not been fixed. However, if the dower had been fixed but a lady was divorced before having sexual relations with the husband, then the husband is liable to pay half the amount of the dower fixed except if the wife willingly forgoes the total amount or the husband pays the full amount.
Thirdly, a wife at the time of parting should be given some resources of life. The Qur'an says that this is an obligation of those who fear God and those who are righteous. Its quantity shall be fixed keeping in view the custom of the society and the financial circumstances of the husband. If a lady is divorced even without going near her or if the dower had not been fixed, a husband is exhorted to fulfill this obligation.
iv. If a husband revokes his decision within the 'iddat, the lady will continue to remain his wife. A person can only twice exercise this right of divorcing his wife in the 'iddat and then revoking the decision in his marriage with a lady within this period. However, once he has used this authority twice in his marriage with a lady, he can no longer use it again the third time. In such a situation, his wife would be permanently separated from him except if she marries some other person and he then also divorces her.
v. Whether the husband decides to divorce his wife or to take her back, in both cases he should call in two trustworthy Muslim witnesses on his decision. The reason for this directive is to ensure that either of the parties is not able to refute a decision made and to resolve any other dispute that may arise in this regard.
vi. In normal circumstances, the 'iddat is three menstrual cycles and if a woman is pregnant then the 'iddat will extend to child-birth; however, if a woman does not menstruate because of advancing age or in spite of reaching puberty, then this period would be three months. If sexual relations have not been established with a woman, then, since the question of pregnancy does not even arise, there is no 'iddat for her.
The directives of 'iddat which are mentioned in the relevant verses of Surah Talaq are as follows:
Firstly, during 'iddat neither should a wife leave her house nor is the husband authorized to turn her out from her house. Living together might hopefully be beneficial for both and they might reconcile and thus save a family from breaking. The only exception to the above directive is if the basis on which a divorce has been given is open sexual misconduct. Obviously, in such a situation neither is it proper to demand from the husband to keep the wife in the house nor can the benefit be attained for which this directive had been given.
Secondly, it is stated that a husband should provide residence and maintenance to his divorced wife according to his status. After divorce, a husband can be very stingy in this regard. Consequently, he has been directed not to provide for her in a manner that damages her self-esteem and she is forced to leave her house herself.
Thirdly, no lady should try to conceal her pregnancy during her 'iddat. The Almighty has laid great stress on this instruction because the very directive to observe the 'iddat has been given for ascertaining whether a lady is pregnant or not.
vii. Even after divorce, if the husband who has given this divorce wants that this divorced wife should suckle his child, then she should carry out this responsibility for two years. If sheis willing to suckle the child, then the husband shall pay her for this service and this remuneration shall be ascertained through mutual consultation and in a befitting manner. If the father of the child is dead, his heirs will be responsible for all the above mentioned rights and obligations. If through mutual consent and consultation, the estranged husband and wife decide to terminate the suckling period before two years, they can do so. If the child's father or, in his absence, the heirs of the child want to suckle the child through some other lady instead of the mother, they are authorized to do so provided what has been agreed with the mother regarding her maintenance is fully honoured.
viii. After divorce, a husband has no right to cause any hindrance if his former wife wants to marry someone. She has the liberty to marry whoever and whenever she wants. If her decision to marry is in accordance with the norms of the society, it cannot be objected to in any way.
10. Directives relating to Widows
The 'iddat of a widow is four months and ten days. In contrast to the 'iddat of a divorced lady, the 'iddat of a widow has been extended by forty days. The reason is that while a husband has been asked to divorce his wife in the period of purity (in which he has had no sexual intercourse with her), obviously no such requirement can be proposed in the case of a widow. It is to exercise care that forty days have been added by the Qur'an to the waiting period of a woman who loses her husband.
Since the purpose for observing the 'iddat is the same for both a divorced woman and a widow, hence all exceptions which are stated in cases of divorce, shall have to be kept in consideration for the 'iddat of a widow also. Consequently, a widow with whom marriage has not been consummated shall have no 'iddat and the 'iddat of a pregnant widow will end on childbirth.
After the waiting period expires, the wife is free to do whatever she deems appropriate for herself. However, she should follow the norms of the society in this matter. In other words, she should not indulge in any activity which damages the repute, honor and integrity of the family nor the conventions of a society. If all this is kept in consideration, then no blame can be caste on her or her guardians.
If a person wants to marry a widow, then during her waiting period he can inform her of his intentions in a very tacit manner. However, it is not permitted that he, without considering the sentiments of the affected family, send a marriage proposal to the widow or make some hidden agreement with her.
Thehusbands should make a will in favor of their wives for the provision of one year's residence and maintenance, except if the wives themselves leave the house or take any other similar step.
11. Norms of Gender Interaction
In order to protect the institution of marriage and to safeguard the sanctity of personal relationships, the Almighty has prescribed certain norms and etiquette for gender interaction.
These norms are:
i. If friends, relatives or acquaintances visit one another, they should follow a certain decorum. Suddenly barging into a house without introducing one's self is improper. The visitor should first of all properly introduce himself by paying salutations to the residents of the house. This will make the residents aware of the visitor, provide them with the opportunity to determine the purpose of his visit and whether it is appropriate for them to let him in. If the visitor hears a reply to his salutations and is given permission, only then should he enter. If there is no one present in the house to give him permission or if someone is present and the visitor is told on his behalf that meeting him is not possible, he should retreat without any feelings of ill-will.
These norms are not meant to deprive people of mutual support or to curtail their social freedom. Hence whether it is the people themselves or their relatives who are disabled or impaired in any manner who live with these people, there is no harm if they visit one another and whether men and women among them eat together or separately in their own houses or of their children's, fathers', mothers', brothers'and sisters' houses orof their paternal uncles'and paternal aunts', maternal uncles'and maternal aunts'houses or of people who are financially dependent on them or of friend's houses. Indeed, when they enter such houses they must greet the residents in the prescribed way.
ii. In case the visited place is non-residential, no formal permission is required. These include hotels, rest-houses, guest-houses, shops, offices and meeting places. In such places, slave-men and women and sexually immature children who generally frequent a house are not required to take permission every time they enter private rooms. They are just required to seek permission in three particular times of the day: before the fajr prayer when the residents are generally in bed, during the nap in the afternoon when they may not be wearing proper clothes and after the 'isha prayer when they go off to bed for sleep. These three periods of time require privacy. Barring these three times of the day, sexually immature children and slave-men and women can enter the private rooms and other areas of the house without taking any permission. However, children, once they reach sexual maturity, must seek permission at all times. After reaching this age, they must follow the regulations which pertain to all.
iii.In both types of visited places, if women are present then the divine directive is that both men and women present should restrain their gazes. If there is modesty in the gazes, and men and women refrain from feasting their eyes on the physical attributes of one another and ogling each other, then no doubt the purport of the directive stands fulfilled because the purpose of this directive is not to desist from seeing at all or to constantly stare at the floor while interacting with one another. It means to guard one's gaze from taking undue liberty and to refrain from staring at one another.
iv. One must properly protect one's sexual organs on such occasions of interaction. This means that neither should these organs have any inclination for others nor should they be exposed to others. In fact, on occasions of gender-intermingling, body parts which need to be covered must be covered even more carefully. The primary way to achieve this end is to wear decent clothes. Men and women should wear such clothes which not only hide the ornaments worn but also the sexual organs. Moreover, on such occasions, care should be taken that a person does not expose his sexual organs. Care must also be exercised that whilst sitting or standing on occasions of interaction, a person does not in anyway expose his or her body parts.
v. It is necessary for women in particular not to display any of their embellishments except before their close relatives, attendants and people of acquaintance. However, exempted from this are embellishments adorned on limbs which are generally never covered: ie, make-up and the ornaments worn on the hand, the face and the feet. Barring the make-up and ornaments worn on these places, women must hide the embellishments worn in all other places. So much so, they should not walk by striking their feet in a manner which draws attention to any hidden ornaments they may be wearing.
vi. Since the chest of women is a means of sexual attraction, and there also may be jewelry worn in the neck, they are directed to cover their chests with a cloak. Thisdirective of covering the chest and the neckline does not pertain to old women who are no longer of marriageable age on the condition that they their intention is not to display their ornaments. However, what is more pleasing in the sight of Allah is that even in this age they be careful and not dispense with this garment in the presence of men. This is more seemly.
12. Directives relating to Parents
The most important of relationships which are produced as a result of marriage is that of the parents. All divine scriptures instruct man to show kindness to the parents. The bounds and limits of this directive can be stated thus:
i. A person should be most grateful to his parents after his Lord. This gratitude must not be expressed merely by the tongue. It should also manifest in good behaviour towards them. He should respect them and never become fed up of them. He must not utter a single word of disrespect to them. Instead, he should be soft, sympathetic, loving and obedient to them. He should listen to them and be caring and affectionate to them in the tenderness of old age.
ii. In spite of the status that Islam confers upon parents, they do not have the right to force their children to baselessly associate someone with the Almighty. The children should openly disobey their parents with regard to polytheism and should follow the way of those who follow God. Any calls to evade the Almighty must not receive any positive response even if it is the parents who are giving the call. Consequently, all other directives of the Almighty shall also be considered subservient to this directive, and one cannot disobey these directives if the parents ask them to do so.
iii. Even if the parents force their children to commit a sin as heinous as polytheism, they must always be treated in a befitting manner. Their needs should be met as far as possible and a prayer of guidance be continued to be made for them. The children may have a right to disobey their parents if they insist upon disobedience to the directives of religion but they must still not be slack or indifferent, in any way, to their duty towards their parents.
13. Directives related to Orphans
Certain specific directives are given in the Qur'an about orphans. They can be summarized as follows:
i. Guardians of the orphans should return their wealth to them and should not think of devouring it themselves. Consuming the wealth of orphans is like filling one's belly with fire. So no one should try to swap his poor merchandise and assets for their good ones. Neither should a person try to benefit from their wealth while mixing it with his own, feigning administrative ease. If such intermingling needs to be done, then it should only be for the orphans' welfare and well-being and not to usurp their wealth.
ii. Protecting the orphans' wealth and safeguarding their rights are significant responsibilities. If it becomes difficult to fulfill these responsibilities alone, and people think that ease and facility can be created by involving the mothers of the orphans, then they can marry the lawful among them. Their number should not exceed four. However, such multiple marriages should only be resorted to if a person is able to deal justly with the wives. If people think that they would not be able to do so, then even for an objective as noble as welfare of the orphans they should not marry more than one. Justice should always reign supreme. Moreover, while entering into marriage, the mothers of the orphans should also be given mahr (dower) just as other women are given. The pretext that marriage has been contracted with them for the welfare of their own children is not acceptable in this regard. However, if such a mother gladly forgoes a portion or the total mahr amount, then of course this generosity can be benefited from.
iii. The directive of returning to orphans their money should be carried out when they reach maturity and are able to properly manage their wealth. Prior to this, it should remain in the protection of their guardians, who should continue to judge the orphans regarding their ability to manage and handle daily affairs. In this interim period, however, the orphans' needs and welfare should be provided for. The guardians should not hastily consume the wealth of the orphans fearing that they will lose access to this wealth because the orphans will soon reach maturity. In addition, the guardians must take note to speak very affectionately to the orphans.
iv. If a guardian is well-off, he should not take anything from the orphans in return for his service, and if he is poor, he can take his due according to the norms of the society.
v. When the time comes to hand over an orphan his wealth, some trustworthy and reliable people should be made witnesses in order to avoid any misconceived notions and dissensions. One should also remember that one day this account shall be presented before the Almighty. He sees and knows all things and nothing can be hidden from Him.
vi. Although the shares of the heirs to a deceased are fixed, yet if at the time of distribution of inheritance some close relatives, orphans or poor people happen to come by, then even though they may not have any legal right in the inheritance, they should be given something and be spoken to in a befitting manner at their departure. On such occasions, a person should always keep in mind that his own children can become orphans and he may one day have to similarly leave them at the mercy of others.