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Fosterage


(al-Ra_á`)

Jurists are anonymous concerning the veracity of the Prophetic Tradition:



That which becomes forbidden due to consanguinity, is forbidden due to fosterage.



According to this tradition fosterage includes the same limits of relationship prohibitive to marriage as consanguinity. Thus any woman who as a result of breast-feeding becomes a foster-mother or a foster-daughter or a sister or an aunt (either maternal or paternal) or a niece, marriage with her is haram according to jurists of all the schools.  Jurists differ however regarding the number of breast-feedings which cause the prohibition and the conditions applicable to the foster-mother and the foster-child.



The Imámis say: It is necessary that the woman's milk be the result of lawful sexual relations, and if it secretes without marriage or as a result of a pregnancy due to adultery, the prohibition does not come into effect. It is not necessary that the woman remain conjugally bound to the person who is the cause of her turning lactiferous. Even if he divorces her or dies while she is pregnant or lactiferous, the prohibition comes into effect if she breast-feeds a child, even though she marries another and has intercourse with him.                                                                                                         The \anafi, the Sháfi`i, and the Málikí schools are of the opinion that there is no difference between the woman being a virgin or a widow and between her being married or unmarried as long as she has milk with which she feeds the child.             According to the \anbalí school the legal effects of fosterage will not follow unless the milk is the result of a pregnancy, and they do not set a condition that the pregnancy be due to lawful intercourse (Muhammad Mu<yi al-Dín `Abd al-\amíd in al-'Ahwál ash-shakh#iyyah).  

Imámis consider it necessary that the child should have sucked milk from the breast, so if it is dropped in his mouth or he drinks it in a manner other than direct sucking, the prohibitive relationship would not be established. Jurists of the other four schools consider it sufficient that the milk reach the child's stomach, whatever the manner (Bidáyat al-mujtahid; \áshiyat al-Bajúrí, "Báb al-ri_á`).  According to al-Fiqh `alá al-madháhib al-'arba`ah, the \anbalis consider it sufficient that the milk reachs the child's stomach, even if through his nose.

According to the Imámis, the prohibitive relationship is not realized unless the child is suckled one day and one night in a manner that his exclusive diet during this period be the milk of that woman without any other food, or is breast-fed fully fifteen times uninterrupted by breast-feeding by another woman. In the book al-Masálik the giving of food has been considered effectless. The reason given for the above-mentioned quantity is that it leads to the growth of flesh and hardens the bones.                          The Sháfi`í and the \anbalí schools regard five breast-feedings as the minimum necessary. The \anafí and the Málikí schools consider the prohibitive relationship to be established simply by being breast-fed irrespective of the quantity fed, be it more or less or even a drop. (al-Fiqh `alá al-madháhib al-'arba`ah).

The Imámi, the Sháfi`i, the Málikí, and the \anbali schools have mentioned the period of breast-feeding to be up to two years of the age of the child. The \anafi school considers it to be two and a half years.

According to the \anafi, the Máliki, and the \anbali schools, it is not necessary that the foster-mother be alive at the time of feeding. Therefore, if she dies and the child crawls up to her and sucks from her breast, it is sufficient to establish the prohibitive relationship. But the Málikis have gone further and to hold that even if there is a doubt as to that which the child has sucked, whether it is milk or not, the prohibitive relationship would be established. (al-Fiqh `alá al-madháhib al-'arba`ah)                 The Imámi and the Sháfi`i schools consider it necessary that the woman be alive at the time of breast-feeding and if she dies before completion of the minimum feedings, the prohibitive relationship would not be established.                                         The schools concur that the #áhib al-laban, i.e. the husband of that woman, will become the foster-father of the breast-fed child, and between the two all those things which are forbidden between fathers and sons will be effective. His mother will become a grandmother for the breast-fed child, and his sister the child's aunt in the same manner as the woman who breast-feeds the child becomes his mother and her mother his grandmother and her sister his aunt.



IX.  Waiting Period



There is consensus among the schools that marriage with a woman undergoing the Waiting Period (Al- `iddah) is not permissible and she is like a married woman in all aspects, irrespective of whether she is undergoing Waiting Period due to the death of her husband or as a result of divorce, revocable or irrevocable, in accordance with the following verses of the Qur'án:



And the divorced women should keep themselves (Tarabbus) in waiting for three menstrual courses.... [2: 228]



And (as for) those of you who die and leave wives behind, they (the wives) should keep themselves in waiting for four months and ten days.... [2:234]



The meaning of al-tarabbus is to be patient and to wait.



            The schools differ regarding one who marries a woman during her Waiting Period, as to whether she will become forbidden for him. According to the Máliki school she becomes forbidden for him permanently if intercourse takes place, otherwise not. According to the \anafi and the Sháfi`i schools the two should separate, there being no impediment to remarriage on completion of the Waiting Period. (Bidáyat al-mujtahid)     It is mentioned in the seventh part of al-Mughní, a book of the \anbalis  (chapter on `iddah):

            If a person consummates marriage with a woman during her `iddah and both know it and know that marriage is forbidden during `iddah, both of them would be considered fornicators and liable to punishment.



In the sixth part of the same book (chapter on marriage) it is stated:

         

            If a woman fornicates, marriage with her will not be lawful for one who knows it unless these two conditions are fulfilled: completion of the `iddah and penitence for fornicating... If these two conditions are fulfilled, there is no obstacle to her marriage with the fornicator or someone else.



            This shows that according to the \anbalis, marriage during `iddah does not result in permanent prohibition to marriage.  

            According to the Imámis, marriage with a woman during `iddah, after a revocable or an irrevocable divorce, is not permissible, and if one marries her with the knowledge of the `iddah and the related prohibition, the contract is void and she would become forbidden for him permanently, irrespective of sexual contact. But if he has no knowledge of the `iddah and of such marriage being forbidden, she would not become forbidden permanently unless he has had intercourse with her. If he has not had intercourse, only the contract would become void, and he may marry her after the completion of the `iddah (al-Masálik, vol. 2, chapter on divorce).



X.  Al- ’i<rám



The Imámi, the Sháfi`i, the Máliki,  and the \anbali schools say: A mu<rim for Hajj or `umrah, man or woman, cannot marry nor conclude marriage on behalf of another acting as a guardian or an agent. The marriage, if performed, is void in accordance with the following tradition:



A mu<rim may not propose nor marry nor conclude marriage for another.



    The \anafi school considers ’i<rám as no hindrance to marriage.  The Imámis hold that if a marriage is performed without the knowledge of the prohibition during the state of ’i<rám, it will make the woman temporarily prohibited. When they are relieved of ’i<rám--or he, when the woman had not been in the state of ’i<rám at all--it is permissible for him to marry her. But if concluded with the knowledge of the prohibition, the two should separate, and she would become permanently forbidden to him. Jurists of the other schools hold that she would become forbidden only temporarily. (al-`allámah al-\illÍ in al-Tadhkirah, vol. 1, chapter on Hajj; Bidáyat al-mujtahid, chapter on marriage)

Matrimonial Guardianship

(al-Wiláyah)



Wilayah in marriage is the legal authority granted to a competent guardian to be exercised over one under a legal disability for his or her advantage. This discussion comprises the following issues:



Guardianship over a Mature and Mentally Competent Girl

            The Sháfi`i, the Maláki and the \anbali schools are of the opinion that the guardian (walí) has the sole authority with respect to the marriage of his sane and major female ward if she is a maiden.   But if she is a thayyib (that is, a girl who has had sexual intercourse), his authority is contingent on her consent.  Neither can exercise his authority without her consent, nor can she contract marriage without his permission. It is compulsory that the guardian takes the responsibility of concluding the contract, which would not conclude if the woman recites it, though it is essential that she consent.

The \anafis regard a sane, grown-up female as competent to choose her husband and to contract marriage, irrespective of her being a maiden or a thayyib. No one has any authority over her, nor any right to object, provided she chooses one who is her equal and does not stipulate less than a proper dower (Fair Dowry) for the marriage. If she marries someone who is not her equal, the guardian has the right to object and demand the annulment of the contract by a judge, and if she marries her equal but for less than the proper dower, the guardian has the right to demand annulment if the husband does not agree to a proper dower. (Abu Zuhrah, al-’A<wál al-shakh#iyyah).  

            Most of the Imámi scholars are of the view that a sane adult girl , on maturing, is fully competent to decide her contractual as well as non-contractual affairs and this includes marriage, regardless of her being a maiden or thayyib. Therefore, it is valid for her to contract for herself or on behalf of others, directly or by appointing a deputy, by making an offer or giving her acceptance, and irrespective of her having or not having a father, a grandfather, or other relatives.  It is of no consequence whether the father agrees or not.  The social status of the girl, higher or lower, and whether she marries a respectable or an abject person, is of no consequence. No one has a right of objection in this regard. Thus, she is in all respects on a par with a male, without any difference whatsoever. The scholars support this argument by quoting the following verse of the Qur'an:



...Then do not prevent them from marrying their husbands... [2:232]



The following tradition of the Prophet (S) narrated by Ibn `Abbás also supports their view:

An aym has more authority over him/herself than his/her guardian.



            “’aim” is one who is without a mate, man or woman; a maiden or thayyib.  

            Scholars have also put forth a rational argument and observed that reason dictates that every human being has total liberty regarding his own affairs and no other person, regardless of his being a near or distant relative, has any authority over him. Ibn al-Qayyim correctly notes when he says:

How can it be legitimate for a father to marry his daughter without her consent to anyone of his choice, while she disapproves such a marriage and regards him as the most detestable person in the world, and yet he should forcefully marry her and hand her over as a captive to him!...



Guardianship in Cases of Minority, Insanity and Idiocy:

            The legal schools concur that the guardian is authorized to contract marriage on behalf of his minor or insane ward (male or female).  But the Sháfi`i and the \anbali schools have limited this authority to the case of a minor maiden.  As regards a ward who is minor thayyib, they do not recognize any such authority for the guardian. (al-Mughní, vol. 6, Chapter on Marriage)

            The Imámi and the Shafi`i schools consider only the father and the paternal grandfather as competent to contract marriage on behalf of a minor ward. The Málikis and the \anbalis further limit it to the father. The \anafi school extends it to other relatives, even if it be a brother or an uncle.

            The \anafi, the Imámi, and the Sháfi`i schools regard a contract of marriage with an idiot without the consent of his guardian as invalid. The Máliki and the \anbali schools consider it valid, and the consent of the guardian is not required. (al-Tadhkirah, vol. 2; al-Mughni, vol. 2, chapter on \ajr)



The Order in Guardianship:

The Hanafis give priority to the son as regards guardianship over his mother, even if he be an illegitimate one. After the son, his son is given the right to guardianship and then follow: the father, the paternal grandfather, the full brother, the half-brother (paternal), the full brother's son, the half-brother's son, the paternal uncle, the paternal uncle's son, and so on.

From this it is clear that the executor of the ward's father's will does not have matrimonial guardianship even if he has been explicitly given this authority.

The Málikis give priority to the father and after him the guardianship goes to the executor of his will.  Then comes the turn of the son--even if he be an illegitimate one. Thereafter come the brother, the brother's son, the paternal grandfather, the paternal uncle... and so on.  On the exhaustion this order the guardianship will finally lie with the governor.

            The Sháfi`i scholars give the father priority in exercising guardianship authority. After him the paternal grandfather, the full brother, the half-brother (paternal), the brother's son, the paternal uncle, the paternal uncle's son, and so on, will exercise guardianship authority in the descending order untill it finally reaches the governor.

The \anbalis  regard the father, and after him the executor of his will, as those competent to exercise guardianship.  After these two, the order follows the pattern of inheritance untill it finally reaches the governor.

According to the Imámis, only the father and the paternal grandfather--and on some occasion, the governor--are authorized to exercise guardianship with respect to marriage.  Both the father and the grandfather are independent in the exercise of their guardianship over a minor (girl or boy) or over an adult whose lunacy or idiocy precedes his adulthood.  That is; when he/she has been a lunatic or an idiot when a minor and this state has continued into adulthood.  But if lunacy or idiocy has resulted after maturity, the father and the grandfather have no authority for contracting marriage on behalf of such an adult. In this case the hakim will exercise his wilayah despite the presence of the father and the grandfather.  When the father chooses one mate and the grandfather another, the latter's choice shall prevail.

The marriage contracted by the guardian--be it the father, the grandfather or the governor-- comes into effect if it is not against the interests of the ward.  If it is, the ward has the option of dissolving the marriage on attaining maturity.

The \anafis say: When the father or the grandfather of a minor girl marries her to a person who is not her equal or for less than fair dower, the marriage will be valid unless it is evident that there has been a misuse of authority. But if such a marriage is concluded on behalf of a minor girl by her guardian who is neither her father nor her grandfather, the marriage will be considered void ab initio.

The \anbali and the Máliki schools say: The father may give his daughter in marriage for less than market dower. The Sháfi`i school says that he may not, and if he does so, the daughter has the right to claim the market dower.

            The Imámis say: If the guardian gives his minor female ward in marriage for less than fair dower (Fair Dowry) or contracts marriage on behalf ol his minor male ward for more than such dower, the contract and the dower will both be valid on the ground that there is a good reason for doing so.  In the absence of such a reason, only the contract will be valid and the validity of the dower will depend upon the ward's consent  after maturity.  If the ward does not agree the dower will be reduced to the fair dower.                 There is consensus among jurists of all the schools that a just ruler can contract marriage on behalf of a lunatic, male or female, if he/she has no guardian from among their relatives.  This consensus is based on the following tradition:



The ruler is the guardian of who has no wali.



The Imámi and the Sháfi`i schools do not consider the governor competent to exercise guardianship over a minor girl.  The \anafi school givs this authority to the governor, but does not consider the contract so concluded as binding.  Therefore, the girl can set it aside on maturity.  Thus the position of the \anafis is in fact similar to that of the Imámi and the Sháfi`i schools because the governor becomes redundant in this matter.

According to the Máliki school, the governor is competent to contract marriage on behalf of a minor or a lunatic (male or female) with their equals in case they do not  have any relative to act as guardian.  The gpvernor is also given competence to conclude marriage on behalf of a sane grown-up girl, with her consent.

The schools concur that it is necessary for a guardian that he be an adult Muslim male.  As to the condition of honesty or justice (`adálah), it is rcquired in the governor who is acting as guardian, not for a relative acting as such except by the \anbali school which considers `adálah necessary for every guardian regardless of his being a relative or a governor.



Equality of status

(al-Kafá’ah)



The meaning of al-Kafá'ah, according to those who consider it as consequential in marriage, is that the man be an equal of the woman in certain things.  Moreover, they require equality in men only, because it is not something disapprovable for a man to marry a woman lower in status as against a woman doing the same.

The \anafi, the Sháfi`i, and the \anbali schools concur in requiring kafá'ah in religion (Islam), freedom  (i.e. in his not being a slave), profession and lineage.  These schools differ regarding kafá'ah in prosperity and wealth.  The \anafi and the \anbali schools recognize it, while the Sháfi`i school does not.

The Imámi and the Máliki schools do not accept the notion of kafá'ah except in religion, in accordance with the following tradition:



When someone, whose faith and conduct is acceptable to you, comes to you with a proposal, then marry him.  If you don't, it will result in corruption upon the earth and great discord.



In any case, the condition of kafá'ah in marriage does not harmonize with the tollowing verse of the Qur'an:

Surely the most honourable amongst you in God's sight is the most pious amongst you. [49: 13]



The condition of kafá'ah contradicts a basic principle of Islam which says:



There is no superiority for an Arab over a non-Arah except on the basis oftaqwá ( piety).



Also, it is opposed to the practice of the Prophet (S), who ordered Fátimah bint Qays to marry Zayd ibn Usámah and ordered Baní Baya_ah to let Abú Hind marry from amongst them, who was a cupper. That is why we see a group of eminent scholars, such as Sufyán al-Thawrí, al-Hasan al-Basrí, al-Karkhí among the \anafis and Abu Bakr al-Ja##á# and the followers of these two among the scholars of Iraq disregarding kafá'ah as a condition in marriage.

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