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ISLAMIC MEDICAL EDUCATION RESOURCES-03

0107-MARRIAGE and FAMILY, (AHKAAM AL MUNAKAHAAT)

Lecture for Year 3 Medical Students on July 7, 2001 by Professor Omar Hasan Kasule, Sr.

A. PRELIMINARIES

PROSPECTIVE SPOUSE

Conditions to be fulfilled in a prospective husband: Three conditions must be fulfilled in a prospective spouse: adulthood, desire for marriage, and financial ability. According to the Law an adult is one who is post-puberty or is 15 years and more is eligible to marry. Although marriage is encouraged, al targhiib fi al nikaah (MB 1828 and MB 1829, BG 825), the prospective spouse must emotionally be prepared for marriage and must have a desire for it. Marrying without such a motivation may lead to marital failure. It is an offense for a person with no desire for marriage to go ahead and contract a marriage. The prospective husband must possess sufficient financial resources to support a wife. If a man has desire for marriage but is financially incapable he can borrow or can be advised to fast instead (BG 824).

 

Conditions to be fulfilled by the prospective wife: The pre-conditions for the bride are less stringent than the male. The minimum age at marriage is 9 years. She must have a desire to marry. There are no financial conditions.

 

FORBIDDEN MARRIAGES

Basis for forbidden marriages: Marriage is prohibited on the basis of blood relationship, fosterage, social considerations, difference of religion, and certain violations of the laws of marriage. Marriage of close relatives, maharim, was forbidden (p. 1092 4:22-23) for both biological and social reasons. The prophet taught that offpsring of close relatives are less healthy. Medical science has also found a higher rate of genetically-determined diseases in marriages of close relatives. On the social level, family dynamics would be disturbed if close relatives can marry since this will require that they maintain the rules of hijab in the home. Such a situation will make normal family life and interraction difficult. Fostering creates a relation akin to a biological one and thus also becomes a reason for prohibition of certain marriages. Some marriages are forbidden because of the likelihood of conflicts such as marrying two sisters at the same time or marrying the ex-spouse of a parent. These conflicts will destroy the fabtic of the family. Diiference of religion is a basis for prohibiting certain marriages because of the likelihood of conflicts and failure of the marital relation.

 

Unmarriageable women on basis of consanguinity:

Category 1: Mother, grandmother, sister of mother, sister of father, wife of father, ex-wife of father (p. 545 4:22)

Category 2: Daughter, grand daughter, wife of son,

Category 3: Sister, daughter of brother, daughter of sister

Category 4: Mother of wife, grandmother of wife. Daughter of wife

Unmarriageable men on the basis of consanguinity

Category 1: Father, brother of father, brother of mother, husband of daughter, ex-wife of father

Category 2: Son, husband of daughter,

Category 3: Brother, son of brother

Category 4: Father of husband, grandfather of husband, son of husband

Forbidden marriage on the basis of suckling: It is forbidden to marry a foster sister or a foster brother (MB 1838, MB 1840, BG 969). It is also forbidden to marry a foster father and a foster mother. Suckling makes a woman like a biological mother and her husband like a biological father and this applies to their descendants (BG 967). Only 5 sucks from the breast are considered as establioshing a relationship that can prohibit marriage (BG 964, BG 968). The sucking must be in the period before weaning (BG 970, 971, 972). A marriage contracted in ignorance between a foster brother and a foster sister is annuled as soon as the truth is known (BG 973).

 

Women who can not be married jointly:

  • A woman and her sister
  • A woman and her father's sister (BG 844)
  • A woman and her mother's sister (BG 844)

 

Forbidden marriage on the basis of religion: A Muslim can not marry a polytheist (p. 545 2:221). There are disagreements among jurists about marriage of people of the book.

 

Shighaar: Shighaar is a situation when 2 males agree to exchange their female kin in marriage without paying the mahr. Shighaar is strictly forbidden (MB 1843, BG 840). It is a form of financial fraud in which women are deprived of their right to mahr.

 

Mut'at: Mut'at is a marriage contracted with the knowledge that it is for a limited period. Temporary marriages are forbidden (MB 1844, BG 848, BG 849, BG 850, BG 851). Temporary arrangements can not be a basis for forming a successful family that rears children.

 

Tahliil/halala: This is marrying a thrice-divorced woman without the intention of a permanent marriage but just in order to divorce her and thus make her eligible to remarry her former husband (BG 852).

 

SUITABLE MATCH, kafaat

Desirable characteristics in a spouse (BG 827): (a) Religion, diin, is the most important consideration in the selection of a spouse. It is forbidden to marry a polytheists, mushrik, or an unbeliever, kafir (p 547 60:10-11). Women but not men from people of the book can be married (p 548 5:5). Marriage to the people of the book is forbidden if there are eligible Muslim women. It is haram for a Muslim woman to marry a non-Muslim man. A person convicted of adultery can only marry one who was similarly convicted (p. 546 24:3). Beauty, jamaal, is not a permanent value or characteristic. Marriage only on the basis of beauty could lead to frustrations later. Being physically attractive helps strengthen the marital bond; but beauty is in the eyes of the beholder. Wealth, maal, is not a permanent value. A rich spouse today may become poor tomorrow and vice versa. Pedigree, nasab, does not always predict the behavior of an individual perfectly. It is however an additional criterion in the selection. It is wrong to use it solely in making the marital decision. Lineage, nasal, is not innately important. The prophet married Fatima bint Qais, a Qurashite, to Usamah son of a freed slave (BG 856). Barira, a freed slave woman, married a free man (BG 858). Social compatibility, kafaa, helps in strengthening the marital bond.  Purpose of assuring social compatibility is to match the 2 prospective spouses on background cultural and life-style characteristics to produce a stable and happy marital relationship. This is because it narrows the field of potential differences and disputes. Religiousness, kafaat fi al ddiin (MB 1833, MB 1835) is very important. A religious and practicing person marrying a non-pracrticing one will have a lot of problems that will eventually destroy the marriage. Religiosity is the best criterion because it is a permanent value. It is better to marry a religious woman who has deficiencies in other aspects than to marry an irreligious one who is perfect in all other aspects. Professional status is not innately important. The prophet asked the family of Bayoda to intermarry with Abu Hind, a cupper and a former slave (BG 857). It however helps to use this as an additional criterion to decrease the differences among spouses. Physical disabilities in a prospective spouse are not a reason for not marrying provided there is full disclosure and consent so that none of the spouses feels cheated or deceived. If a person feels that he or she can not live with certain physical disabilities, it is better not to proceed with the marriage.

 

MARRIAGE PROPOSAL, khitbat al nikaah

Knowing the prospective spouse: Looking at the prospective spouse is allowed (MB 1846, BG 830, BG 831). It is allowed to look at the face and hands of the prospective spouse even without consent. The looking may be repeated as many times as is needed. The permission of looking at the prospective bride includes pre-marital screening for disease and genetic traits.

 

Manner of marriage proposal: The Qur'an has described the etiquettes of proposing (p 1096 2;235). The marriage proposal is usually made by men. It is allowed for the woman to initiate the proposal (MB 1843, BG 833). It is forbidden to propose when a previous proposal is still being considered or has been accepted (MB 1851, BG 832). It is forbidden to make any marriage proposals, direct or allusive, during the the period of waiting after a reversible divorce, iddat talaaq al ruj'at. Allusive proposals can be made in the following three situations: iddat talaaq al bain; ‘iddat al khuluu, and ‘iddat al mawt. It is forbidden for the prospective spouses to be secluded in private, khalwat (MB 1868) without a mahram.

 

ECONOMIC INDEPENDENCE

There is no consensus on the definition of economic independence. The requirement of economic independence applies to the prospective husband and not the wife. Delay of marriage until economic independence has its pros and cons. Delay of child-bearing until economic independence also has advantages and disadvantages.

 

B. MARRIAGE CONTRACT and MAHR

THE PILLARS OF THE CONTRACT

There are 4 pillars of marriage: pronouncement and acceptance, the waly, the bride, and the groom. The Law has prescribed an exact formula by which the pronouncement and acceptance of marriage are made. No marriage is valid unless witnessed (BG 836). The conditions of witnesses are that they be Muslims, 2 men or I man and 2 women; of upright upright character; in full possession of the faculties of sight and hearing; and knowledgeable in the language in which the marriage contract is being transacted. No marriage is valid without a guardian, waly (MB 1847, BG 835). A woman can not give herself away in marriage nor can another woman give her away (BG 839). The waly must be a male Muslim of sound judgment. Priority is given to the father. The order of ther guardian after the father being: the grandfather, the brother, the son of brother, and the brother of father. In the absence of a guardian the Muslim judge (BG 836) or any other male authorized by the bride can act as guardian. The legal gaurdian may delegate his responsibilities to another relative. The groom must be a Muslim. It is strictly forbidden for a Muslim woman to marry a man who is not a Muslim. The bride can be a Muslim, a Jew or a Christian. Marriage to a polytheists, mushrik, or apostate, murtadd, is forbidden. Remarriage is forbidden for persons whose marriage was dissolved by liaan.

 

FREE CONSENT

No person is to be married without their free consent irrespective of gender, age, or previous marital status. For both virgins and non-virgins, consent is necessary (MB 1848, MB 1849, BG 837, BG 838). It is illegal to force a woman into marriage (p 1094 4:19). If a marriage is concluded without the woman's consent, it is considered invalid (MB 1850, BG 841)

 

DOWER, mahr/ sadaaq

Mahr is obligatory for validity of a marriage (BG 847). Payment of mahr makes sexual intercourse lawful (BG 886). There is no fixed amount for mahr; the bride is free to ask for whatever she wants. The mahr should be simple (BG 890). Anything can be used as mahr such as money (BG 882), food crops (BG 886), sandals (BG 887), or an iron ring (888). Teaching Qur'an can also be mahr (BG 833). The mahr is fixed before marriage. Whether paid before or after marriage, the mahr remains the property of the wife. The wife can of her own free will give some or all of her mahr to her husband (p 547 4:4). Gifts given to her relatives after marriage are considered theirs and not her property (BG 884). If a man marries a woman without mention of a specific amount for mahr and he dies before sexual intercourse, she is given the normal mahr of women like her and she has the right of inheritance (BG 885). If divorce occurs after sexual intercourse, the wife is entitled to keep all the mahr. Mahr is not returned after divorce (p 545 4:20-22). If divorce occurs before sexual intercourse, the wife keeps only half of the mahr (p 545 2:237). By mutual agreement between the spouses, the payment of mahr can be delayed either in part or in full. The unpaid mahr is a debt that is due to be paid.

 

MARRIAGE FEAST, walimah

Marriage must be made publicly known (BG 834). Holding a marriage feast, waliimat, is a highly recommended sunna (MB 1855). The waliimat can be small and modest (MB 1856, BG 892). It should not be ostanteous for purposes of showing off (BG 896). The prophet's wedding parties were modest (BG 897, BG 898). Responding to the invitation to a marriage party of obligatory (MB 1857, BG 893, BG 894, BG 895). When two wedding invitations are issued, respond to that of the nearest neighbor (BG 899) or the first to be made (BG 899). The poor should also be invited to the wedding (BG 894).

 

CONDITIONS IN THE CONTRACT

Conditions in the marriage contract have to be respected (MB 1189). Examples are stipulations about monogamy and stipulations about country of residence. The conditions however can not be repugnant to the Law (MB 1190). For example a marriage contract can not stipulate divorce of the previous wife (MB 1852). A marriage contract is invalid if contracted during hajj. A muhrim can not propose marriage, contract marriage, or give away a bride (BG 845). Marriages contracted before conversion to Islam are valid in Islam and there is no need for a new marriage contract (BG 859, BG 860, BG 861, BG 863)

 

MARRIAGE: BAATIL and FASID

If a marriage contract is considered batil, it is void. Those involved are committing zina and the children who issue from the marriage are illegitimate. A fasid marriage contract is irregular and does not imply zina or illegitimacy of children.

 

C. RIGHTS and OBLIGATIONS

CONJUGAL RIGHTS & OBLIGATIONS

Balance between rights and obligations, tawaazun bayna al huquuq wa al waajibaat: The Law specifies the rights and obligations of each spouse. It is wrong for a spouse to demand rights and fail to fulfill obligations. A balance must exist between rights and obligations (p 1092 2:228). In a normally-functioning marital relation, the good-will between the two spouses makes discussions about rights and obligations unnecessary. Such discussions start when problems exist in the marriage.

 

Sexual rights of the husband: If at home and there is no physical harm, the wife must accede to the husband's request for sex (BG 875). She can however be given a waiting period of 3 days. The husband has a right to enjoy the whole of the wife's body except what is prohibited by law such as anal intercourse (BG 867, BG 868). The law does not specify any particular sexual positions it is left to the wishes of the couple (p 1094 2:223, BG 873). A dua is said before sexual intercourse (BG 874). The husband has the right to take his wife with him on journeys. The wife can not fast nafilat without the husband's permission (MB 1860).  As part of sexual enjoyment the wife should beautify herself for her husband however use of false hair and tattoes is forbidden (BG 876).

 

Sexual rights of the wife: The wife has a right to intercourse at a frequency that keeps her chaste. In a polygamous marriage, strict equality must be practised among the wives. Coitus interruptus can only be practised with the consent of the wife (BG 879).

 

FINANCIAL RIGHTS & OBLIGATIONS

Mahr: The marriage contract is valid even if the mahr is not mentioned. In that case the customary amount, mahr al mithl, is assumed. If marriage is annulled due to her before intercourse, she has to refund the mahr. If the marriage is annulled due to the husband before intercourse, she refunds only half of the mahr. If the marriage is annulled after intercourse for whatever reason she is entitled to keep the whole mahr. If the husband is unable to pay the mahr, the marriage is annulled if sexual intercourse has not yet taken place. If sexual intercourse has already taken place, the marriage is not annulled but the mahr remains as a debt. In disputes about payment of mahr, the woman’s word is taken. In disputes about the occurrence of intercourse the man’s word is taken. Mahr has to be paid even if the marriage contract is invalid if there was sexual intercourse. Mahr is also paid in cases of rape.

 

Qawaamat al rajul: Rights and obligations in marriage are mutual. The husband however has a degree of responsibility, darajat,  higher than that of the woman (2:227). He also has a degree of authority, qawamat,  higher than that of the wife because of his legal responsibility to provide nafaqat.

 

Nafaqat: Nafaqat is obligatory during marriage and the period of iddat. Nafaqat has the dual function of being a legal obligation and also being sadaqat for which there is reward (MB 1884). Nafaqat is assessed as what is reasonable (BG 979). It is an offense to withhold nafaqat (BG 980). In case of poverty, the order of priority of nafaqat is as follows: the self, children, spouse, and servants (BG 985). Nafaqat consists of food, articles of personal hygiene, adawaat al tandhiif, medicine, clothing, housing, and servants. The wife should be fed the same food as the husband takes (BG 872, BG 978). Food Security can be assured by setting aside provisions for 1 year (MB 1886). The wife should be clothed with clothes of the same standard as the husband (BG 872, BG 978). The husband was obliged to provide servants to help the wife with household work. In modern days household appliances can do the work of servants.

 

Failure of the financial obligations: The Law allows a woman to take from the property of a miserly husband, without his consent, what suffices for her maintenance (BG 975). Failure to provide nafaqat is grounds for nullification of marriage. If the husband can not pay nafaqat he is required to divorce the woman (BG 984). In case of failure of paying nafaqat, the marriage is dissolved if the wife makes a request (BG 983, BG 983). It is not dissolved if she chooses to be patient. Unpaid nafaqat is treated as a debt.

 

Suspension of financial obligations: Financial obligations are suspended in cases of the wife's rebellion, nushuuz. The obligations resume as soon as the rebellion ends. Nafaqat is also suspended if the wife travels without permission, fasts a naflat fast without the husband’s permission, or assumes ihram for hajj and umrah without permission of the husband.

 

Nafaqat after divorce: Nafaqat is obligatory in the period of ‘iddat except in the case of khulu’u. It continues for a divorced pregnant woman until delivery. By mutual agreement the divorced mother is entitled to wages for looking after the infant.

 

GOOD TREATMENT OF THE SPOUSE

General: Spouses are a source of comfort, sakiinat, for each other (p 1097 7:189, 30:21). They are also a garment for each other (p 1094 2:187). Mutual kind and tolerant treatment between the spouses is needed in marriage (4:19). The spouses have to be careful in their hate of each other because one may mistakenly hate a good spouse (p 1094 4:19). Ill-treatment of the spouse is forbidden (4:19). Secrets of intimate relations between the spouses are not to be divulged outside (BG 871). Mutual good treatment, husn al mu’asharat, is ordained (2:228).

 

GOOD TREATMENT OF WIVES, 'ishirat al nisaa: Prophet called for good treatment of wives, wasaayat bi al nisaai khairan (MB 1858, BG 869) & husn al mu'asharat (MB 1859). Part of good treatment is to tolerate any defects because trying to correct all of them will lead to strains and divorce. The husband should not surprise the wife when returning home from a journey. He should give her notice and time to prepare to receive him properly (BG 870). A polygamous marriage is more difficult because justice and equality must be maintained. Permission is given to marry 2, 3, or 4 wives on condition the husband can maintain justice, an admittedly difficult task that borders on the impossible (p 547 4:3, p 547 4:129). The husband should be sensitive to and appreciate the feelings of the co-wives to one another. Ghiirat al nisaa (MB 1867) is a normal psychological and emotional reaction that should be understood and should be dealth with carefully. Two co-wives should not be housed in he same dwelling. They should be treated equally. The husband is required to spend equal times with the wives (BG 905) except the bride who is entitled to 7 days of she is virgin and 3 days if she is a non-virgin (BG 907). A wife can voluntarily give her turn to another (BG 910). Daily social visits are encouraged to all wives even if it is not their turn (BG 910). When going on a journey lots can be cast to select the wife who will accompany the husband (BG 912). Showing favoritism for one wife openly is forbidden (p. 547 4:129, BG 906).

 

Good treatment of husbands: The wife should respect the husband's honour. She can not allow anyone into the house whether a relative or not without the husband's permission. Ghiirat al rajl (MB 1866) could turn violent because of the aggressive male instinct. The wife should not behave in ways that provoke the husband and the husband should control his emotions.

 

Spousal abuse and domestic violence: Domestic problems, unless resolved early, can become complicated and could eventually lead to divorce. Husbands are more likely to react violently in domestic disputes. The violence may be physical or emotional. Islam condemns violence to women in any form. It is forbidden to beat (BG 913) or disfigure (BG 872) the wife in any way. It is also forbidden to abandon the wife in the house (BG 872). Husbands sometimes put emotional pressure on their wives by dhihaar and iilaau. In dhihaar, the husband rejects sexual relations with the wife by saying that the wife is like his mother (p 547 33:4). He will have to pay an expiation before resuming relations (p 1094 58:2-3). In iilaau the husband swears not to get near his wife for a given period (p 547 66:1-5). This oath can be expiated so that normal marital relations may resume.

 

GOING OUT OF THE HOME

The wife can go out of the house for good reasons and with her husband’s permission. She can not go on long journeys without a mahram. The husband is entitled to leave the home during the day to work.

 

RIGHTS OF CHILDREN AND PARENTS

Children have rights protected by the Law. They have to be breast-fed; breast-feeding in pregnancy is not forbidden (BG 877). They have to be given a good name that will not embarrass them in adulthood. They can not be deprived of inheritance. All children are entitled to equal treatment; however handicapped children can be singled out for preferential treatment. Parents have rights from their children that include: kindness, obedience, and honor. The rights of the mother are emphasized more than those of the father (46:15). Disobedience of parents is a major sin second only to polytheism, shirk (17:23-24). Parents must be respected even if they are non-Muslim (31:14-15). Insulting parents is haram. Parents must consent before their children can join jihad.

 

D. ANNULMENT

DEFECTS IN THE SPOUSE

Defects in the husband: Impotence and withholding nafaqat are two reasons for annulment of a marriage. An impotent husband is given a grace period of 1 year during which he has to attempt to have sexual intercourse with his wife to comsummate the marriage. If the grace period expires before he is able to consummate the marriage, the wife can apply to the court to have the marriage annulled (BG 866). In cases of withholding nafaqat, the wife can apply to the court for annulment of a marriage if the husband fails to maintain her.

 

Defects in the wife: A marriage can be annulled on the basis of sexual dysfunction. Anatomical defects or functional anomalies that prevent successful sexual intercourse are grounds for annullment of the marriage. The wife gets her mahr if there was initial sexual intercourse (BG 865).

 

Defects in both husband and wife: A marriage can be annulled due to disease, change of religion, or cruelty. Severe disease such as insanity or leprosy discovered after marriage are a reason for annulment but the mahr is due to the wife (BG 865). The marriage is annulled if either spouse apostates and leaves Islam. Cruelty, physical or emotional can be grounds for annulment.

 

DEATH OF THE SPOUSE

The marital relation is automatically annulled on the death of the spouse. The wife's mourning period for a deceased husband is 4 months and 10 days (p 454 2:234-235, BG 948). During the mourning period she should avoid any ornamentation or beautification. She has to stay in her house during the period (BG 952). If the husband is lost, the wife remains legally married until definite information on the death of the husband is received (BG 959). In another ruling the maximum waiting period is set at 4 years after which the woman observes iddat for 4 months and 10 days and can then remarry (BG 958). Some other rulings base the maximum waiting period on the expected maximum life-span.

 

DIVORCE

Permissibility of divorce: Divorce is permitted, halaal, but is hated by Allah (BG 915). It is offensive for the husband to divorce for no reason. It is also offensive for the wife to ask for divorce for no reason. Divorce is a not a solution to marital problems but an escape. It creates more problems than it seeks to evade. It is resorted to when all avenues to marital reconciliation have failed and it is feared that continuation of the marital relation will lead to acts of disobedience, ma'asiyat, by either spouse.

 

Prevention of divorce: Mutual good treatment, kindness, and tolerance prevent divorce. The Qur'an has prescribed the following measures for preventing divorce and a final break-up. Rebellion ny the wife, nushuuz, occurs when the wife becomes cold and impolite, unkind, or refuses sexual intercourse. In case of rebellion by the wife, nushuuz, the husband must try to rectify the situation by kind words of advice and admonition. If this does not work he can migrate from her bed. If this does not work he can 'beat' her using a tooth brush. If this does not work, arbitration is attempted (4:34-35). It is always best to seek reconciliation (p 547 4:128). If all fails then divorce becomes necessary.

 

Etiquette of divorce: Divorce is in the hands of the husband. The husband can commission someone else, man or women, to effect the divorce. The husband can also give the right of divorce to the wife, tamliik. The divorce can not be valid unless the husband is adult, sane, and does so voluntarily.  Divorce by a minor or an insane person is not effective (BG 927). A woman can ask for divorce (MB 1879). Divorce is not allowed during the menstrual period (MB 1872, BG 916). It can not be effected before the conclusion of the marriage contract (BG 926). Seriousness, al jidd, is a requirement in all marital matters including divorce: Divorce is a serious matter that allows no joking. Joking is not allowed in a marriage proposal, in divorce, and in taking back a divorced woman. A joke in the three situations is taken as a fact and is legally binding (BG 920). Thinking about and contemplating divorce is not legally binding (BG 921). Divorce by coercion, by a honest mistake, or by forgetfulness has no binding legal consequences (BG 922). An oath to divorce can be broken with atonement (BG 923, BG 930).

 

Reversible divorce, ruj'at: Reversible divorce is limited to a maximum of 2 divorces (p 749 2:228).. Return, ruj'at, is allowed during the waiting period, iddat, for 1 or 2 divorces. Both divorce and ruju'at should be witnessed (p. 750 65:1-2, BG 928). The ruju'at must be sincere and not done just for the sake of causing harm to the woman (p 749 2:227-232). No hindrances or barriers should be placed infront of a woman who wants to marry a man of her choice on expiry of her waiting period (p 749 2:232).

 

Irreversible (terminal) divorce: Divorce is terminal in two ways: (a) expiry of the waiting period for a one or two divorces (p. 454 2:232) (b) three divorce pronouncements. Remarriage after terminal divorce is not allowed (MB 1879) until the wife has married another man in a consummated marriage and is terminally divorced (p 545 2:230; p. 749 2:227-232). Divorce becomes terminal if pronounced three times; therefore it is offensive to pronounce all three divorces at one time (BG 917, BG 918). It is also offensive to pronounce all three in one menstrual cycle even if done on separate days. If the three divorces are pronounced at one time, they are considered like one divorce (BG 919).

 

Conditional divorce: The Law allows conditional divorce. It is prohibited to take an oath that if some condition occurs divorce will be effected.

 

Divorce and menstrual status: Lawful divorce, talaq al sunna, is divorce effected in the inter-menstrual period. Unlawful divorce, is divorce during the menstrual period or in the intermenstrual period after having had sexual relations with the possibility of pregnancy. The following are special situations in divorce: wife who is pre-menarche, post menopausal wife, pregnant wife, and a wife with whom no sexual relations have ever been had.

 

Inheritance rights and divorce: A husband can divorce his wife in his terminal illness (death-bed) but her rights of inheritance from him are not affected. During the waiting period, each spouse can inherit from the other.

 

The waiting period, iddat: The primary objective of the waiting period after divorce to make sure that the woman is not pregnant. It provides an opportunity for reconciliation that may save the marriage. It serves the psychological and emotional purpose of providing a gradual transition from a married life to divorce. No waiting period is prescribed in cases of divorce before sexual intercourse (p 546 33:49). A once or twice divorced woman can continue her marriage by returning to her husband (p. 749 2:227) before completion of the period of iddat and without a new marriage contract. If the period expires she can remarry her former husband with a new contract only after having consummated a marriage with another man. The word of the wife is accepted in any disputes about the end of iddat. It is prohibited for a woman to refuse to disclose pregnancy during her waiting period (p 749 2:227). There are 6 situations that arise with regard to iddat. The first is a pre-menopausal woman who is divorced by her husband, ‘iddat al talaaq. Her waiting period is three inter-menstrual periods, quruu’u (p. 749 2:227, BG 946). The second one is a pre-menopausal woman whose husband dies, ‘iddat al maut. The third one is a post-menopausal woman who is divorced. The fourth one is a woman divorced before the marriage was consummated. The fifth one is a pregnant woman. The 6th one is a lactating woman. Iddat for a divorced pregnant woman ends with delivery of the baby (BG 946); marriage can be contracted even during post-natal bleeding but sexual relations are not allowed (BG 945). If the woman committed adultery with or had artificial insemination from another man, her iddat is the equivalent of three menstrual cycles. The iddat for a post-menopausal woman is 3 lunar months. The iddat for a lactating woman (no menstrual periods) is three lunar months. The iddat for a pregnant woman whose husband dies is the delivery of the baby. The iddat of non-pregnant woman whose husband dies is 3 tahuurs plus 10 days. There are obligations on the wife during iddat. The wife is obliged to stay in her house. Neither she nor her husband have the right to decide on her leaving the house. (p. 750 65:1) If divorced once or twice she can not leave the house temporarily without the husband's permission. If the iddat is for a three-times divorce she is allowed to go out during the day to fulfil her obligations. A thrice-divorced wife can move out of the house (BG 953). During iddat the husband is not allowed to be in seclusion with the wife. There are also obligations of the husband during iddat. The husband is obliged to maintain the obligations of financial support, nafaqat al talaaq, as in marriage (p 1095 2:229, 2:236-237, 65:6-7). These obligations are a right for the woman and not good-will. A woman divorced before sexual intercourse does not have to observe iddat but can be given a gift, mut'at al talaaq. The prophet gave a gift to a woman divorced before sexual intercourse (BG 891)

 

KHULU'U

Khuluu is dissolution of the marriage in return for a wife paying a sum of money to her husband (MB 1878). It has the same effect as a 3-time divorce except that remarriage is possible without having to consummate a marriage with another man. Khuluu is considered offensive and is permitted only if both spouses fear that they can not observe the limits of Allah, huduud al llaah, if the marital relation continues. The prophet allowed khulu of the wife of Thabit bin Qaids because she did not love him and she feared disobeying Allah if she continued under him (BG 914).

 

LI'AAN

If the husband accuses his wife of adultery, he is punished unless he can bring forth 4 reliable witnesses. He can avoid punishment by the process of lia'an (p 547 24:6). The wife can also avoid punishment by the same process. The spouses are cautioned before taking the oaths (MB 1882, BG 936, BG 937, BG 939). After liaan the wife does not return any property (BG 937). The separation and reprieve from punishment are upheld even if the appearance of the child from the alleged adultery reveals otherwise (BG 937).

 

D. CUSTODY and CHILD CARE, khadhanat & ri'ayat

AWARD OF CUSTODY

Conditions of the custodian:

  • Upright character
  • Sane
  • Muslim

 

Legal and physical custody: A distinction must be made between legal and physical custody. The father always has legal custody. Physical custody can be awarded to the mother or the father.

 

Award of physical custody: Mothers who fulfill the conditions of custody automatically have the right of physical custody for all children aged below 7 years of age (BG 987).  At the age of 7, the child is given a choice between the parents (BG 988, BG 989). When the child chooses both or is unsure lots are drawn. When the child chooses neither parent, physical custody is awarded to the mother. Children can subsequently change their mind and their wishes are respected. If the mother is chosen as custodian, the father must have access to the child during the day. The following is the order of priority in choosing the physical custodian:

  1. Mother
  2. Mother of Mother
  3. Father
  4. Mother of father
  5. Father of Father
  6. Full Sister
  7. Full brother
  8. Half Brother or half sister from father
  9. Half Brother or half sister from mother
  10. Sister of mother
  11. Daughter of full brother
  12. Son of full brother
  13. Daughter of half brother from father
  14. Son of half brother from father
  15. Daughter of half brother from mother
  16. Son of half brother from mother
  17. Son of half brother from mother
  18. Sister of father
  19. Brother of father
  20. Daughter of the Sister of the mother
  21. Daughter of the brother of the father
  22. Sister of the Brother of the father

 

Loss of physical custody: Either parent can lose physical custody if any of the conditions of the custodian is violated. The mother loses physical custody on remarriage (BG 987). Custody is not lost if the husband she marries is one of the persons on the list of custodians. The father does not lose physical custody on remarriage.

 

CHILD CARE: PHYSICAL AND EMOTIONAL

Physical/financial support: The father, whether he is the custodial or no-custodial parent, is obliged to provide child support. The obligation is what is judged to be the minimum necessary. He can however give more than the minimum if he so wishes. If the father, on account of poverty, provides less than the minimum necessary, the remainder does not become a debt. It is a debt of he is financially able to pay. If the mother borrows to support the child, the father is liable to settle the debt. The father is obliged to provide financial support to the divorced pregnant wife until delivery (p. 1094 65:6). This support continues during the period of breast feeding (p 750 65:6; p. 1322 2:233). The minimum legal period of breast-feeding is 2 years (p 1322 2:233). The husband could alternatively decide to employ a wet nurse (p 1093 2:233).

 

Tarbiyat, education, and training: Boys who are in the mother's physical custody must stay with the father during the day for training.

 

Paternity: If a wife gives birth to a baby while legally  married to a man, the child belongs to the man. This position holds even if the marriage was not valid, ie did not fulfil all the criteria. A child born through adultery belongs to the legal husband (BG 963). The aim of the Law is to protect the interests of the child. The father can deny paternity by the process of liaan if he has valid proof. Paternity can not be denied on the basis of suspicions. The denial must be immediate and will not be accepted if it is done after a delay (BG 943). It is prohibited to deny paternity of a child who resembles the father (BG 942). A child can not be disowned for not resembling the father (BG 944). Legal adoption that supressed information and links to natural parents is forbidden (33:4-5, 33:37-38, 33:40). Children can be adopted for purposes of upbringing provided they are told who their biological parents are and care is taken to avoid consanguinous marriage. It is prohibited for a child to attribute to himself or herself a lineage other than that of the father

 

CHILD ABUSE, 'uquuq: Killing of children is forbidden (17:31, 81:8-9, 60:12)

Omar Hasan Kasule, Sr.  June 2001