Marriage in Muslim Law Is a Contract

Among the provisions that may be included in the marriage contract is the abandonment or requirement of certain responsibilities. [4] The contract can also be used to regulate the couple`s physical relationship, if necessary. [ref. needed] The Karnataka Supreme Court has ruled that Muslim marriage, unlike Hindu marriage, which is a sacrament, is a contract. However, the court held that a divorce does not mean that the contract is terminated without other obligations, such as alimony. Al-Fiqh `ala al-madhahib al-`arba`ah quotes Hanafi and Shafi`i scholars and says: If an illiterate person mispronounces the word “zawwaitu” and says “zawwajtu” instead, the contract is valid. Al-Sayyid Abu al-Hasan al-`Isfahani, a scholar of the Imamiyyah, issues a similar fatwa in his Wasilat al-najat. Muslims disagree on the extent to which these amended contracts address the legal disadvantages faced by Muslim women during marriage and in the event of divorce. If husbands and wives agree that they want to apply traditional rules such as widows` obligations, the marriage contract is an important tool. But for those who reject the general framework of differentiated rights and obligations or certain male privileges, amendments to prenuptial agreements cannot solve the problem successfully.

For example, regardless of the provisions attached to the contract, the legal structure of marriage in Islamic jurisprudence presupposes the husband`s permanent sexual access to his wife and his right to unilaterally terminate the marriage at any time. Solving these problems requires fundamentally rethinking the legal concept of milk, property or control, and its place in Muslim marriage – in other words, the fundamental nature of the marriage contract itself. All schools agree that the contract can be recited in any language if it is impossible to recite it in Arabic, but differ in the validity of the contract when it is recited in Arabic. The Hanafi, Maliki and Hanbali schools consider this valid. The Shafi`i and Imamiyyah schools consider him invalid. (Abu Zuhrah. al-`Ahwal al-shakhsiyyah, p. 27) The lawyers disagree on whether the rights in the marriage contract can be changed by including provisions. Most often, these provisions are intended to guarantee certain rights or privileges to the wife. The most discussed provisions stipulate that the husband no longer takes a wife or that his wife does not leave her hometown. Among the four Sunni schools of jurisprudence, the Hanbali give the greatest recognition to these provisions and believe that the wife has the right to dissolve her marriage if the husband violates either provision. (This doesn`t mean that every other marriage he gets will be invalid, only that she can choose to leave him when he remarries; nor can she force him to stay with her in his city, but she can get a divorce if he insists on moving her.) Lawyers from three other law schools (Maliki, Hanafi and Shafi`i), on the other hand, consider both clauses to be completely null and void.

A woman can include these provisions in her marriage contract, but at least according to the prevailing opinion of the lawyers of these three schools, she can in no way apply them. However, if her husband had granted her a right to divorce in case of violation of the provision, or had pronounced a suspended divorce that would automatically take effect if it violated the provision, then the binding force of the husband`s oath of divorce serves as the guarantor of the provision. (Learn more about divorce.) Negotiating and signing the contract is a prerequisite for marriage under Islamic law, and certain conditions must be met for it to be binding and recognized: Maliki and Hanbali say: The contract is valid if it is recited with the words al-nikah and al-zawai or their derivatives, and is also valid if the word used is al-hibah. provided that the amount to be paid as a dowry (Mahr or Sidaq) is also indicated. Other words than these cannot be used. They based their argument for the use of the word al-hibah on this verse of the Qur`an (see Abu Zuhrah. al-`Ahwal al-shakhsiyyah [1948] p. 36): Plus is a certain amount of money or property that the husband gives to the wife to be used in cases where the wife needs it most, i.e.

in the event of divorce or death of the husband. The husband may exist at the time of marriage or in increments. The woman can claim it at the time of divorce if it has not already been pronounced. Yes, marriage is a contract under Muslim personal law. The contract can be concluded subject to the following conditions: Abu Zuhrah, a Hanafi scholar, writes in his book al-`Ahwal al-shakhsiyyah: “A marriage must be concluded on the basis of the recitation of the contract, for marriage is a contract and the consequences of the contract cannot be postponed until after its conclusion. Therefore, it is not possible to postpone the consequences of a contract until a future condition is met. In the book A`lam al-muqlin, Imam Ahmad was described as the confirmation of a conditional marriage contract. Of course, the offer is made by the bride and accepted by the groom.

The bride says, “zawwa jtuka” (I married you) and the groom agrees, saying “qabiltu” (I accepted). The question that now arises is: is the contract valid if the acceptance precedes the offer and the groom addresses the bride`s guardian and says: “zawwijnihu” (marry her to me) and the guardian answers: “zawwa jtukahu” (I married her to you)? The Hanbali school considers it invalid, while the other schools accept its validity (al-Tadhkirah of al-`Allamah al-Hilli, Vol. 2). Al-`Allamah al-Hilli, a scholar of the Imamiyyah, says in his book al-Tadhkirah: “A marriage contract cannot be made dependent on a future event, because certainty is one of its conditions. If there is a condition that prescribes a certain time or quality, for example, if the offer is made on the condition that the marriage is concluded at the beginning of the following month and that offer is accepted, the contract is not valid. Al-Shafi`i agrees. After signing the contract, a couple is legally married and enjoys all the rights and obligations of marriage. In many cultures, however, the couple does not officially share a household until after the public celebration of the marriage (walimah). Depending on the culture, this celebration can take place hours, days, weeks or even months after the formalization of the marriage contract itself. The husband`s first duty is to pay his wife an agreed dowry (mahr or sadaq); This asset, which can range from a token sum to a considerable amount of assets, is legally hers and she can save, spend or invest it as she sees fit. In exchange for payment of the dowry, the husband receives what is called al-nikah milk, al-`aqd milk or al-bud` milk, “possession (or control) of [the wife`s] marriage (or sexual intercourse)/marriage contract/vulva”; This milk is a prerequisite for legal sex.

Because he has this control, he and he alone can unilaterally terminate the marriage at any time by making a declaration of rejection (talaq). If the woman wishes to terminate the marriage, she must either pay it for her consent (in divorce for compensation, khul`) or, if she has reasons (which vary according to the different schools of law), she can apply for judicial divorce. The five schools of fiqh agree that marriage is consummated by reciting a marriage contract containing an offer from the bride or her representative (na`ib), such as her guardian or representative (wakil), and acceptance by the groom or his assistant. A mere agreement without a contract does not constitute a marriage. In Sunni Islam, a marriage contract must have at least two witnesses. Proper testimony is crucial to validating marriage and also serves as protection against suspicion of adulterous relationships. According to the Malikis, the presence of witnesses is not required at the time of the conclusion of the contract, but their presence is required at the time of consummation of the marriage.