The Marriage Contract and its conditions
They (the five schools) concur that marriage would be formed by the agreement that includes Offer (Ííájáb) and acceptance (qabúl) from the Fiancee (Makhtúbah) and the fiancé (Khátib) or the one who may represent each of them as the Agent (Wakíl) and guardien (walí). Marriage cannot be performed simply by consent without a contract.
They concur also that the contract is valid if the formula “I give myself in marriage...” (zawwajtu) or (anka<tu) is said by the woman (Makhtúbah) or whoever represents her, and “I concur” (qabiltu) or “I accepted” (ra_ítu) on the part of the fiancé (Khátib) or whoever represents him.
They differ regarding the validity of the contract which it is not formulated in the past tense or which words are not derived from marriage and wedding materials.
According to the \anafís, the contract is valid through any expression that indicates the desire of marriage even with the terms of ownership (tamlík), gifting (hibah), selling (bayc), giving (catá’), permittinging (ibá<ah), and lecensing (i<lál) if the contract is accompanied by evidence indicating marriage. But the contract shall be invalid when formulated under the terms of hire (ijárah) or rent (icárah) because those terms do not convey the continuity and permanence. They justified that with what was reported in (#a<í< Bukhárí and #ahí< Muslim) where it is reported that a woman came to the Prophet and said to him: `O! prophet of God, I came to offer myself to you in marriage.’ The Prophet looked down and did not answer her. One among the present people said: ‘If you have no interest in her, marry her to me’. The Prophet asked him: “Do you have any thing?” He replied: “No.” The Prophet asked again: “How much do you memorize out of the Qur'án?” he answered: “So and so.” The Prophet then said: “I therby transfer her ownership to you in exchange for her learning the Qur’an.”1
The view of the Málikís and \anbalís is: It is legal with the terms of wedlock (nikáh) and marriage (zawáj) and whatever is derived from them. It is legalized also by terms of hibah with the condition of linking it to the mentioning of thedowry (Mahr). It is not legal with any other terms. They justified the legality of the contract on the terms of hibah with the verse: "and a believing women who offered (wahabet) herself to the prophet if he wishes to marry her ..." [al-A<záb:50]2
Sháficís’ view: The formula must be derived from the words tazwíj and niká< only and marriage is not valid without the use of such words.
Imámís’ view: The offer (íjáb) must be stated using the words zawwajtu and anka<tu in the perfect tense. The marriage is not valid if other terms were used, and so it is if other formulas besides al-Zawáj and al-Nikáh were used. Because the two formulae express the intention edimologically, and the perfect tense expresses resolve (al-Jazm). The Qur’án mentioned the two terms:
“After Zaiyd has married her for a while we married (zawwajnákaha) her to you...”
“Urídu an ankahuki (I would like to marry you)...”
The most reliable interpretation is the prohibition in the situation of lack of consensus and agreement. They also concur that acceptance (Qabúl) is valid with the formula “qabiltu” (I accept) or “radhítu” (I agree) in the perfect tense.
Imámís, Sháfi'ís, and \anbalís concur that the immediacy (fawr) is a necessary condition for the contract to be valid. That is; Acceptance must be stated immediatly following the Offer.
Málikís do not mind a short break; as is the case of a short speech between the two or something similar.
\anafís state that fawr is not a condition. For instance if a man sent a letter to a woman proposing to her while he is absent and upon the receipt of the letter the women gathers witnesses and reads the letter and says: "zawajtuhu nafsí" (I give him myself in marriage), the marriage is valid.3
All schools of thought concur that the contract may be in a language other than Arabic if no one can speaks it, but they differ in case of the presence of one who speaks Arabic: \anafís Málikís, and \anbalís say it is valid.
Sháfi`ís say it is invalid.4
Imámís, \anbalís, and Sháfi'ís concur that the contract is not valid if it is written.
\anafís state that written contracts are valid if the two parties (the man and the woman) are not in the same locale.
All five Schools concur that the mute person (akhra#) will be only required to signal (ishára) his intention of marriage if he is unable to write. But if he knows how to write then it is preferable to combine both means: Signaling and writing.
\anbalís and \anafís state: If the husband and the wife stipulate (shar>) in the contract the option of voiding the contract, the original contract is valid and the stipulation is void.
Málikís argue: It depends; if the marriage was not yet comsummated (dukhúl), the contract as well as the stipulation are void. But if they had consummated the marriage, the contract is considered valid but the stipulation is void.
Sháfi'ís and Imámís concur: Both; the contract and the stipulation are void regardless of occurance or non-occurance of consummation of marriage.5
Generally, the Offer must be stated by the woman and the Acceptance must be stated by the man. She says: "zawwajtuk" (I marry you). And he says: "qabiltu" (I accept).
Is the contract valid if the order was reversed. For example the man asks the guardian (walí): "zawajníha" (marry her to me). And the guardian replies: "zwaajtukaha" (I marry her to you)?
Imámís and the three concur: it is valid.
Al-\illí, an Imámí scholar, says in his book, al-Tahdkirah: "The marriage contract cannot be subjected to conditions but it is only valid with jazm. It is considered invalid if it is left open depending on time or description. Example: If the women says: “I will marry you on the beginning of the coming month.” And the man says: “I accept.” The contract is invalid. Sháfi`ís agree with this view.
The \anafí scholar, Abu Zuhra, states in his book: al-A<wál ash-Shakhsiyyah: "Marriage must be immediatly effective because it is a contract. And incidents of the contract cannot be delayed depending on its triggers. It cannot begin in the future. It is reported in a`lám al-Muwaqqi`ín on the authority of Imám A<mad the possibility of linking the marriage to a condition."
It is reported in al-Fiqh `ala al-Madháhib al-'arba`ah, vol. 4 that the \anafís and the Sháfi'ís state: If an ordinary individual says "jawwaztu" instead of "zawwajtu" the contract is valid. The Imámí scholar Abu al-\asan al-Asfahání agrees and so states in his book: wasílat al-Naját in the section about marriage.
Witnesses of the contract
Sháfi`ís , \anafís, and \anbalís concur that marriage contract cannot be formed unless there are witnesses to be present. The \anafís say it suffice to have two men witnesses or a man and two women. They did not make trustworthiness (cadl) of witnesses as a condition. According to them also, women cannot be accepted as witnesses unless they are together.
Sháfi`ís and \anbalís say: It is mandatory that the witnesses are males, Muslims, and trustworthy.
Málikís say: no witnesses needed during the time of contracting but it is necessary during consummation. If the contract is formed without the presence of any witness, it is valid. But if the husband wants consummation he must provide two witnesses. If he consummates without witnesses, they are forced to seperate. This rescision is like an irrovacable repudiation (>aláq bá’in). [see bidáyat al-Mujtahid by Ibn Rushd, and maqsad al-Nabíh by Ibn Jama`at al-Sháfi`í].
Imámís say: It is recommended to have witnesses for the contract but that is not necessary7 .
Conditions over the two contractors
They agree on the necessity of the mental capacity and puberty in the case of marriage except in the situation where the guardian --whom we were going to talk about -- and on the clearance of the couple from genealogical impedance be it permanent or temporary that bars marriage. We are to study it in the section concerning the Interdictions (Mu<arramát).
They agree also on the necessity to designate; for instance, it is not permitted to say: “I marry you one of these two girls”, or “I offer myself in marriage to one of these two men.”
They agree on requiring Concent and Choice and on invalidating marriage under compulsion. Except the \anafís who permit forced marriage. (al-Fiqh `ala al-Madháhib al-’arba`ah, vol. 4)8
From amongst the Imámís, Shaykh Murta~a al-’an#árí in his book al-Makásib mentions that Choice (Ikhtiyár) as a condition. He writes:
The contemporary Imámi scholars agree with the widespread view that says “if the enforced person (mukrah) is pleased with what he or she is doing then it (marriage) is valid.
Further in the book al-\ada’iq wa al-Riyá_ it is mentioned that they (scholars) concur on this matter.
Amongst the Imámís again, Seyed Abú al-Hassan al-I#fahání, in his book al-Wasílah, in the chapter on marriage he says:
It is required for the validity of the contract that the couple had the Choice (ikhtiyár). If the two were forced, or one of them was forced, the contract is not valid. Yes if it is followed by the acceptance (ri_a), then it shall be accepted according to the stronger opinion.
Accordingly, if a woman claims that she was forced to contract, or the man claims that he was forced to contract, but they live as any married couple would live, and they become comfortable as a wedded couple, or she takes the dowry or any thing of this nature that would indicate the acceptance (ri_a), then the claim of ikráh by either party would be dissmissed. He should not be heard nor should any proof presented after the fact of subsquent consent has been established be considered.
The four Sunni schools of thought consider in jest marriage to be valid: For instance if a woman jokes saying “I marry you my self” and he says “I accept”, the marriage is formed. And so could happen in the case of divorce or manumission (`atq). They provide the following supporting <adíth:
Three things are effective regardless of their being made in jest or in fact: Marriage, Divorce, and Manumission.
Imámís view every joke as nugatory talk (laghw) because of the lack of intention. They submit that the above mentioned <adíth’s narrator is not reliable.
\anafís and \anbalís regard the marriage of a idiot person (safíh) to be valid, regardless of the guardian’s permission or absence thereof. Imámís and Sháfi`ís require the permission of the guardian.
Imámís and \anafís say that marriage is valid provided that the contractors are mentally competent and have reached puberty. They provide the following supporting <adíth:
Decision of the mentally competent ones regarding their own affairs is permitted (já’iz).
Imám Sháfi`ís goes further to assert in his later teachgings that if an adult woman confirms (‘qrár) the marriage and the husband corraborates her claim, then the marriage is valid. Because it is within the rights of the two parties.
Imám Málik distinguishes whether the couple are living abroad out of their homeland or not. In that first case the marriage is valid based on their statements. In the second case, if they are living in their homeland, they will be required to present witnesses since that would be easy to provide. Initially, this was the view of Sháfi’í also. (see at-Tadhkirah of al-Allámah al-\illí).
They agreed that menstruation and pregnancy indicate adulthood (Bulúgh)
of the female. As for pregnancy: because the embryo is initiated by combining the sperm of the man and the ovum of the woman. As for menstruation because it is for woman like sperm for man.
Imámís, Málikís, Sháfi`ís , and \anbalís say: the appearance of thick hair indicates the age of adulthood.
\anafís disagree arguing that such hair is just like any other hair.
Sháfi`ís and \anbalís say that physical maturity is evident by the age of fifteen years for boys and girls.
Málikís say seventeen years for both.
\anafís say: eighteen for boys and seventeen for girls. (see al-Mughní, by Ibn Qudámah, vol. 4, chapter on al-\ajr).
Imámís say fifteen years for the boys, and nine for the girls as reported in the tradition narrated by Ibn Sinán:
If the girl reaches nine years, her property would be paid to her, her marriage affairs are hers, and all rules should be applied for her and against her.
Experience has shown that she can be pregnated at nine. The possibility of pregnancy is like pragnancy for that matter.
What was indicated above by the \anafís is a determination of the maximum limit of age. The minimum limit for them is twelve years for the boys and nine for the girls. Because impregnation, having wet dreams and ejaculation are possible for boys at this age. And so is having wet dreams, menstruation, and pregnancy in the case of nine years old girls. (See Ibn `ábidín, pp. 100, Vol. 5, 1326 H. edition, chapter al-\ajr).
Stipulation of Conditions (Proviso) Set by the Wife
\anbalís say: If a condition has been set by which effect the husband cannot take her out of her homeland, nor take her out of her home, nor take her along on a journey, nor take another woman besides her in marriage; the contract and the condition are both valid. He is obligated to fullfil these terms, otherwise, she shall have the right to void the marriage contract.
\anafís , Sháfi`ís , and Málikís say: The condition shall be invalid while the contract shall be considered valid.
Sháfi`ís and \anafís however, ordained for her Fair Dowry not the Stated Dowry (al-Mahr al-Musamma) (al-Mughní by Ibn Qudámah, vol. 6, chapter al-Zawáj).
\anafís say: If the man puts forth a condition giving the power of divorce to the woman as is in the case where he tells her: “I marry you on the condition that you can divorce yourself.” The condition shall be considered void. However if she sets such a condition saying: “I give you myself in marriage on the condition that the divorce decision is in my hand.” after which he says: “I accept.” The contract as well as the condition are valid. She shall be able to divorce herself whenever she desires.
Imámís say: If --during the making of the contract-- the woman stipulates a condition by which effect he can no longer marry another woman besides her, nor can he divorce her, nor can he prevent her from leaving the house any time to go anywhere she wishes, or that the divorce decision be in her hand, or that he shall not inherit her and other conditions that contradicts the spirit of the contract; in such a case, the condition is void while the contract is valid. But if she stipulates as a condition that he shall not take her out of her homeland, or that he shall not have her live in a particular home, or that he shall not have her travel with him; in any of these cases the contract and the condition are valid. However, if he does otherwise, she cannot rescind the marriage contract, but if she refuses to relocate with him then she shall remain entitled to all marital rights like alamony (Nafaqah) etc.
If the wife claims that she had stipulated in the text of the contract an explicit condition, but the husband refutes her claim then she must provide a proof , because her claim is regarding something that is additional to the contract. If she fails to provide proof, then he must take an oath in the effect that there was no condition because he is the defendent.
If a man claims to be married to a woman while she denies his claim, or if she makes the claim while he denies it; then the plaintiff must provide proof while the defendant is required to take an oath.
Jurists agree that the proof must be from two Honest men, and that the testamony of women collectively or individually will not be accepted except according to \anafís who approve of the testamony of one man and two women provided they are Honest. `Adálah, therefore is a condition to prove the marriage once it is disputed, but it is not a condition required to validate the contract the moment of its making.
Imámís and \anafís say: The testamony of a witness in the effect of the occurance of marriage is enough and there is no need of his mentioning of the conditions and the details.
\anbalís say: Conditions must be mentioned because people would differ in it; It is possible that a witness may think of a marriage to be valid though it is invalid.
Imámís, \anafís , Sháfi`ís , and \anbalís say: Marriage can be validated by supporting statements from few people (Istifá_ah) even if such statements have not reached a level of concordance (Tawátur).
Does Co-habitation Validates Marriage?
From time to time, courts deal with Alleged Marriage cases wherein the claiment alleges that the two cohabited and lived in the same house, just like a husband and a wife do, then he brings forth witnesses to testify in this effect; In such a case, should this marriage be considered valid or not?
The answer is: The appearance of the situation leads to rule in favor of marriage until proven otherwise. That is, cohabitation indicates by virtue the existance of a marriage, the apparent aspect of this situation requires that we accept the allegation of the claiment to be true until we know --for a fact-- that he is lying, although the absolute knowledge of the claiment being a liar is very hard to establish given that the Imámís do not require witnesses to validate marriages in the first place.
However this appearent situation (cohabitation) is contradictory to the Primal Status (al-A#l), which is the non-occurance of the marriage because any event doubted to have happened should be taken as if it did not happen until sufficient proof is furnished. Based on this, the assertion of the one who refutes the occurance of marriage is in conformity with the A#l, hence the proof must be provided by the other side. If the other side fails to provide proof, then the one who refutes the marriage must take the oath, and the case shall be dismissed.
This is the proper ruling required by the Legal Principles (al-Qawá`id al-Shar`iyyah), whereby the Imámi jurists agreed that if the Presumtuous (al-|áhir) contradicts the Primal Status (al-A#l), the Primal Status should be considered instead. The Presumtuous can only be considered in conjunction with Proof (dalíl). But there can be no Proof in this case.
Yes if the terms of the marriage contract came to be known, but doubt rises whether the terms were established through the right procedure or the wrong procedure, there is no doubt that it should be considered to be done through the right procedure. However if there is doubt concerning the making of the contract, then we cannot determine its existance through cohabiatation.
One may argue: Concidering the claim of a Muslim to be truthful requires that we accept the claim of one who alleges marriage in benefit of the lawful over the unlawful and in the benefit of the good over the bad, since we are required to eleminate the possibility of bad and give the benefit of the doubt once there is a situation where bad and good are two possibilities.
The answer is:
Giving the benefit of the doubt in the above case does not validate marriage, rather it proves that they did not commit an unlawful act because of their cohabitation and their sharing the same residence. The absence of any ground to consider their association as illegitimate may be due to marriage or due to a misconception (shubhah) on their part about the legitimacy of marriage, such as when both of them imagine it as lawful and later on discover it to be unlawful. Details of this will come later while discussing Doubtful Marriage. It is obvious that a general premise does not prove a particular one. For Instance, when you say, "There is an animal in the house," it does not prove the presence therein of a horse or a deer. In the same manner, here, when a man has social intercourse with a woman, not knowing the cause we may not say, "She is his wife," but we should say that, "They have not committed an unlawful act," for it is possible that their associating with one another may be the result of marriage or the result of a misconception of marriage. We shall give another example to further clarify the point:
If you hear a passer-by say something without knowing whether that utterance is a curse or a greeting, it is not permissible for you to consider it a curse. Also, in such a situation it is not binding on you to return the greeting, because you are not sure of the greeting. But if you are certain that he greeted you and doubt whether it was meant as a greeting or intended to ridicule, it is binding upon you to return the greeting, considering it to be a genuine greeting and by giving precedence to good over evil.
Our problem is also like this. Even if living together be considered valid, it does not prove the presence of a contract. But if we are sure about the occurrence of a contract and doubt only its validity, we will consider the contract as valid without any hesitation.
In any case, the social intercourse by itself does not prove anything, but it supplements and strengthens any other proof available. The decision in such a situation depends upon the view, satisfaction, and assessment of the judge, on the condition that he does not consider their living together as an independent proof in itself for basing his judgement.
The above-mentioned conclusion was as regards the establishment of marriage. But as regards children, the rule of considering the act of a Muslim as valid compels the regarding of the children as legitimate at all times, because the living together of the parents is either the result of marriage or the result of a false impression of marriage, and the children born due to such false impression are equal in status to children born of marriage for all legal purposes. Therefore, if a woman has claimed a man as her lawful husband and also of having a child by him, while the man refutes marriage but acknowledges the child as his, his claim will be accepted because it is possible that the child was born due to a false impression of marriage.
In conclusion, it needs to be mentioned that this problem is based on the supposition that witnesses are not required for concluding a marriage contract, as is the Imámís’ view. But according to the other schools, the party claiming marriage must mention the names of the witnesses. If the claiment pleads his or her inability to present the witnesses due to their death or absence, it is possible that the above-mentioned criterion be applied.
It is also necessary to point out that cohabitation does not prove marriage when there is contention and disagreement to that effect; but when there is no such disagreement, we settle the claims of inheritance and its like by giving credit to the possibility of marriage, and on this issue there is a consensus among the schools.
The Prohibiting Factors
One of the conditions of a valid marriage contract is that the woman be free from all Legal Impediments (Mawáni`), which means that she be competent to contract marriage. The Impediments are of two kinds: the prohibition due to Consanguinity (Nasab) and those due to other Causalilty. The first includes seven categories which permanently prohibit marriage. Of the second, ten categories some of them prohibit marriage. permanently and others only temporarily.
The schools concur that the female relatives with whom marriage is prohibited are of seven kinds:
Mother, which includes paternal and maternal grandmothers.
Daughters, which includes granddaughers however so low.
Sisters, both full and half.
Paternal aunts, which includes fathers' and grandfathers' paternal aunts.
Maternal aunts, which includes fathers' and grandfathers' maternal aunts.
Brother's daughters how low so ever.
Sister's daughter.s how low so ever.
The above type of prohihition has its origin in the following verse of the Qur'án:
It has been made forbidden on you to take in marriage your mothers and your daughters and your sisters and your paternal aunts and your maternal aunts and brother's daughters and sister's daughters.... [4:23]
These were the prohibited degrees of relations as a result of Consanguinity. Those prohibitions which are the result of Causality are as follows:
Affinity (al-Mu#áharah) is the relationship between a man and a woman which forbids marriage belween them; it includes the following:
a. The schools agree that the father's wife is forbidden for the son and the grandson and however-so-low, by the sole conclusion of the marriage contract irrespective of the consummation of marriage. The origin of this concurrence is this verse of the Qur'án:
And marry not women whom your fathers had married ... [4: 22]
2. The schools concur that the son's wife is forhidden for the father and grandfather, and however-so-high as a result of the conclusion of the contract. This view is based on the following verse of the Qur'án:
And the wives of your .~ons who are of your own loins.... [4: 23]
3. The schools concur that the wife's mother and her grandmother however-so-high, is forbidden on the mere conclusion of the contract with the daughter eventhough consummation may not have been established as per this verse of the Qur'án:
... And the molhers of your wives [4: 23]
4. The schools agree that marriage with the wife's daughter is not forbidden merely on the conclusion of the contract, and they consider it permissible for a man, if he divorces that wife before consummation, or before looking at her or touching her with a sexual intent, to marry her daughter based on this verse of the Qur'án:
...And your step-daughters who are in your guardianship, (born) of your wives to whom you have gone in.... [4:23]
The condition “fí hujúrikum” explains the general situation. The schools concur that the daughter is forbidden when a person marries her mother and establishes sexual contact with her. But the schools differ as regards the daughter being forbidden when the marriage has been concluded and not consummated, but has looked at her or touched her with a sexual intent.
The Imámí, the Sháfi`í, and the \anbalí schools are of the view that the daughter would be forbidden only on sexual intercourse with her mother. Looking and touching with or without sexual intent does not have any effect.
The \anafí and the Málikí schools consider both, looking and touching with sexual intent, as sufficient causes for prohibition and are like sexual intercourse in all aspects. (Bidáyat al-mujtahid, vol. 2; al-Fiqh `ala al-madháhib al-’arba`ah, vol. 4, the chapter on marriage).
There is consensus among the schools that the establishment of sexual contact due to a mistake or a false impression is like marriage itself in establishing affinity and creating its related prohibition. The meaning of “sexual contact due to mistake” is occurrence of sexual contact between a man and a woman under the false impression that they are lawfully wedded followed by the discovery that they are strangers and that the contact was a result of a mistake of fact. As a consequence of this latter knowledge, the two will separate immediately and the woman will observe an obligatory period of `iddah and the Value dowry will be due on the man. Affinity would be established as a result of intercourse by mistake as well, but the two will not inherit each other and the woman will not have the privilege of alimony (nafaqah).
II. Consanguinity Between Wives
The schools concur that combining two sisters in marriage at the same time is forbidden according to this verse of the Qur’án:
...And that you should have two sisters together.... [4:23]
The four schools agree that a man cannot combine in marriage neither a woman and her paternal aunt nor a woman and her maternal aunt, because they have a general rule, that it is not permissible to marry two women of whom if one were to be a male it would be haram for him to marry the other. Therefore, if we suppose the paternal aunt a male, she would become a paternal uncle and it is not permissible for an uncle to marry his niece, and if we suppose the niece a male, she would become a nephew and it is not permissible for a nephew to marry his aunt. The same rule applies to a maternal aunt and her sister's daughter.
The Kharijites considered as permissible combining as wives the aunt and her niece, irrespective of whether the aunt has granted permission for marrying her niece or not.
Imámí jurists hold different opinions. Some of them concur with the view of the four schools, but most of them are of the opinion that if the niece is the first to be married, it is permissible for him to marry her paternal or maternal aunt even if the niece does not consent. But if the paternal or the maternal aunt has been first married, the marriage with her niece is permissible only by her permission. The proponents of the above view have based their argument on the following verse of the Qur'an:
...And lawful to you are (all women) besides those.... [4:24]
In this verse, after mentioning those women with whom marriage is forbidden, the rest have been permitted, and this permission extends to combining the aunt and the niece together in marriage. Had it been forbidden the Qur’án would have explicitly mentioned it as it expressly mentions the prohibition regarding comhining two sisters in marriage. As regards the general rule which supposes one ot the two women to be a male, it is isti<sán, which is considered unreliable by the Imámís. Apart from this, Abu \anífah has considered it permissible for a man to marry a woman and her father's wife despite the fact that if any of these two were supposed a male, his marriage with the other would not be permissible. Obviously, it is not permissible for a man to marry his daughter or step-daughter, in the same way as it is not permissihle for him to marry his mother or his father's wife. (See the book “ikhtiláf Abí \anífah wa Ibn Abí Layla, the chapter on marriage)
It comprises the following issues:
The Sháfi’í I and the Málikís consider a man's marrying his daughter born of fornication as permissible and so is his marrying his sister, his son's daughter, his daughter's daughter, his brother's daughter, and his sister's daughter, because she is legally a stranger to him and because the law of inheritance does not apply to them, nor does the law of maintenance. (al-Mughí, vol. 6, the chapter on marriage). The \anafís, the Imámís and the \anbalís prohibit marriage with a daughter through fornication like they prohibit marriage with the legal (biological) daughter because, they say, the daughter through fornication is born of his seed and is therefore considered his daughter in the somentically and customarily. Her legal disability to inherit does not negate the fact of her being his daughter; it only negates such legal effects as inheritance and maintenance.
The Imámis observe: He who commits fornication with a woman or establishes sexual contact with her hy mistake, while that woman is either married or is observing the waiting period --as a result of a revocable divorce-- would become forbidden for him permanently, i.e. it is forbidden for him to marry her even if she separates from her husband as a result of an irrevocable divorce or death. But if he fornicates with a woman while she is unmarried or is undergoing the waiting period as a result of the death of her husband or as a result of an irrevocable divorce, she would not be forbidden for him. According to the four schools, fornication or adultery is no obstacle to marriage between the two, regardless of whether the woman is married or unmarried.
According to the \anafi and the \anbali schools, fornication and adultery establish affinity. Therefore, one who engages in sexual acts with a woman, the mother and daughter of that woman will become prohibited on him, and that woman will be prohibited on his father and his sons. These schools do not make any distinction between committing such illegitimate contact before marriage or after it. Therefore, when a person engages in sexual act with his wife's mother or a son with his father's wife, the wife will hecome prohibited on her lawful hushand permanently; rather, according to the \anafi book Multaqa al-'anhur , volume 1, the chapter on marriage: "If a person intends to wake up his wife for intercourse and his hand reaches her daughter and he caresses her with sexual emotion while she, thinking it to be her mother, entertains it, her mother will become prohibited on him permanently. The same will apply to a woman who intends to wake up her husband and (mistakenly) caresses his son from another wife." The Shafi'l school is of the opinion that fornication does not establish affinity in the light of this tradition:
illegal act does not illegitimate a lawful one. (al-<arámu lá yu<arrimu al-<alál)
Málik is reported to hold two opinions: One agrees with the Sháfi`ís, the other with the Hanafís. The Imámis consider fornication as capable of creating the prohibition pertaining to affinity. Thus he who fornicates with a woman, makes her haram for his father and his son. But as regards adultery after marriage, they observe that it does not illegitimate the lawful conjugal ties. Thus he who commits adultery with his wife's mother or his wife's daughter, his marriage with her stays as it is. The same applies to a father who commits adultery with his son's wife or a son with his father's wife; in both cases the wife would not be considered prohibited for her lawful husband.
IV. Number of Wives
Jurists of the five schools concur that it is permissible for a man to have four wives at a time, but not a fifth as per the verse:
... Then marry such women as seem good to you, two and three and four .... [4:3]
When any one of those wives is released from marriage, either due to her death or divorce, it becomes permissible for him to marry another. The Imámis and the Sháfi`is schools say: When a man gives one of his wives a revocable divorce, it is not permissible for him to marry another untill the expiry of the `iddah. But if it be an irrevocable divorce it is permissible for him to do so. Also, he can also marry his irrevocably divorced wife's sister during his wife's Waiting period because an irrevocable divorce prohibits marriage and breaks the marital bond.
According to the other schools, it is not permissible for him to marry a fifth wife or the sister of his divorced wife until the expiry of the Waiting period irrespective of whether the divorce is a revocable or an irrevocable one.
When a man accuses his wife of adultery or denies that he fathered her child, and she denies the charge and he has no proof to offer, he may opt to challenge her byway “Mulá`anah” ( The procedure is as follows: First the man swears by God four times that he is indeed speaking the truth in accusing her, and the fifth time that the curse of God fall on him should he be lying. Then the woman will swear four times by God that he is lying, and the fifth time that the wrath of God be on her if he be speaking the truth. If the man refuses to pronounce the li`an, \add (Fixed Penalty) must be pronounced and carried against him (The crime being qadhf); but if he takes the Condemnatory Oath and the woman refuses to pronounce the li`án, she is liable to the hadd for adultery. If both of them pronounce li`án against each other, none is liable to hadd and the two will separate and the child whose paternity he had denied would not be given to him.
The source of the above discussion are these verses of the Surat an-Núr:
If a man accuses his wife but has no witnesses except himself, he shall swear four times by God that his claim is true, calling down upon himself the curse of God if he is lying. But if his wife swears four times by God that his claim is false and calls down His curse upon herself if it be true, she shall receive no punishment [24: 6—9]
There is consensus among the jurists that it is mandatory for the two to separate after the Condemnatory Oath. But they differ as to whether such a wife is permanently prohibited for her husband so as to make it impermissible for him to remarry her later, even if he denies his own charge, or if she is prohibited only temporarily so as to permit him to marry her after withdrawing his own accusation. The Sháfi`í, the Imámí, the \anbalí, and the Málikí schools forbid her permanently on him even if he retrieves his accusation. The \anafí school considers separation due to the li`án to be like divorce; it would not make her prohibited permanently because the prohibition arises from the Condemnatory Oath and is removed on the withdrawal of his accusation. (al-Mughní, vol. 7; al-Sha`rání, al-Mízán, the chapter on mulá`anah)
VI. Number of Divorces
Jurists concur that if a man divorces his wife for the third time after having resumed conjugal relations twice earlier, she will become prohibited for him and will not become lawful for him again unless she marries another husband. This requires that she observes the Waiting Period (`iddah) after her third divorce and after the completion of this Waiting Period she consummates a legal permanent marriage with another man. Then if she separates from the second husband, due to his death or as a result of divorce, and she completes the `iddah, it becomes permissible for the first husband to remarry her again. After this, if he again repeats the same sequence and divorces her three times, she becomes prohibited for him until she consummates marriage with another man. Similarly, she becomes prohibited for him after every third divorce and becomes lawful by marrying another, even if she be divorced a hundred times. Accordingly, every third divorce is considered a temporary not a permanent obstacle to marriage.
But the Imámis say: If a woman is divorced nine Sustained Divorces (>aláq al-`iddah) she becomes prohibited permanently. What is meant by Sustained Divorce according to the Imámis is that the husband first divorces his wife, then he rescinds the divorce and resumes sexual relation with her; then he divorces her again while she is in a period of purity (Tuhr) after which he rescinds the divorce and establishes sexual relations with her; then divorces her thrice during a period of purity after which she becomes prohibited for him unless with a Legitimatizing marriage (Mu<allil). Now, if this first husband marries her again after her separation from that second husband and divorces her three Sustained Divorces, she becomes lawful again by consummating marriage with another. If he then marries her (for the third time) and divorces her a Sustained Divorce after exhausting the permitted divorces, she will become prohibited for him permanently. But when the divorce is not a Sustained Divorce, such as when he returns to her and divorccs her without establishing sexual relations or marries her by another fresh contract after her completing the `iddah, she will not become prohibited for him even if she is divorced a hundred times.
VII. Difference of Religion
Jurists agree that it is not permissible for a Muslim male nor for a Muslim female to marry those who do not possess neither a revealed nor a quasi-revealed scripture, nor those who worship idols, fire or the sun, the stars and other forms, nor non-believers who do not believe in God. Jurists of the four schools concur that marriage is not permissible with those who possess a quasi-scripture, such as the Zoroastrians. By quasi-scripture, it is meant a scripture which is said to have originally existed, as in the case of the Zoroastrians, but was changed, causing il to be lifled from them.
According to the four schools, it is permissible for a Muslim man to marry a woman belonging to the People of the Book, which implies Christians and Jews. But it is not permissible for a Muslim woman to marry a man belonging to the People of the Book.
The Imámi scholars agree with lhe other four schools that a Muslim woman cannot marry a man belonging to the People of the Book, but differ among themselves regarding the marriage of a Muslim man with a female belonging to the People of the Book. Some of them hold that intermarriage, either permanent or temporary, is not permissible. They base their argument on thesc verses of the Qur’án:
...And hold not to the ties of marriage of unbelieving women.... [60: 10]
... And do not marry the idolatresses until they believe.... [2: 221]
Here they interpret Idolatry (shirk) to mean disbelief (kufr) and not submitting. According to the Qur'án however, the People of the Book are not idolators as indicated in this verse:
The unbelievers among the People of the Book and the pagans did not break off (from the rest of their communities) until the proof comes unto them. [98:1]
Others are of the opinion that such a marriage, either temporary and permanent, is permissible, and as a proof they quote the following verse of the Qur'án:
... And the chaste from among the believing women and the chaste from among those who have been given the Book before you (are lawful to you)... [5: 5]
This verse, according to them, explicitly permits marriage with women of the People of the Book.
The third group, seeking to reconcile the texts in favour and against such intermarriage, permits only temporary not permanent marriage. They take those texts which forbid such marriage to imply permanent marriage, and those which permit it are taken to imply temporary marriage. Generally speaking, most of the contemporary Imámi scholars consider permanent marriage with a woman belonging to the People of the Book to be permissible and the Ja`fari courts in Lebanon marry a Muslim male to a female belonging to the People of the Book. They register such a marriage with all the legal effects proceeding therefrom.
All schools, except the Málikí, recognize marriages of all non-Muslims as valid if performed according to their tenets. Muslims confer upon such a marriage all the legal effects of a valid marriage without differentiating between the People of the Book and others--even if they permit marriage within prohibitive limits of consanguinity. The Málikis consider such a marriage as invalid because, they explain, it would be invalid if performed by a Muslim.
Therefore, the same is true of non-Muslims. This stance of the Málikís is not reasonable, because it makes non-Muslims scared of Islam and leads to anarchy and disruption of the social order. Apart from this, the Imámis have recorded these traditions which confirm their stance:
For one who follows the religion of a community, its rules would be binding upon him....
And require them to follow that which they consider binding upon themselves. (al-Jawahir, chapter on divorce)
Litigation Between the People of the Book Before a Muslim Judge
In the Imámi work, al-Jawáhir (chapter on jihád), there is a useful discussion which is relevant here. Its summary is as follows: If two non-Muslims litigate before a Muslim judge, should he give his judgement according to the laws of their religion or according to the Islamic law? The answer is: If the litigants are dhimmís, the judge has a discretion to either judge according to the Islamic law or to dismiss the case without any hearing. The following verse of the Qur'án states this discretion:
...Judge between them or turn aside from them, and if you turn aside from them, they shall not harm you in any way; and if you judge, judge between them with fairness.... [5:42]
Imám al-Sádiq (A) was once asked regarding two men of the People of the Book between whom there is a dispute and who brought their case before their own judge and when this judge judges between them, the one against whom the judgement was given refuses to comply and asked that the issue be settled before the Muslim judge. The Imám (A) replied:
"The judgement shall be according to the law of Islam."
If the litigants are those who are at war with the Islamic State (\arbi), the judge is not obliged to settle their dispute and to protect some of them against others, which is not hte case when dealing with dhimmís.
If one of the litigants is a Dhimmí or a <arbi and the other a Muslim, the judge is obliged to accept the suit and to judge between them according to Islamic law, in accordance with the Divine command:
Pronounce judgement between them in accordance with God's revelations and do not be led by their desires. Take heed lest they should turn you away from part of that which God has revealed to you.... [5: 49]
Moreover, if a Dhimmí woman sues her husband, the judgement will be given according to Islamic law.
The above discussion makes it clear that Muslims should recognize as valid all those transactions of non-Muslims which are in conformity with their religion, as long as they do not refer it to Muslims for a decision. But if they seek a decision from Muslims, it is compalsary for them to decide, at all times, according to Islamic law. As is understandable from the verses of the Qur'án and the traditions, it is also compalsory to judge between them in accordance with the norms of justice and fairness.