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16. Marriage

Section 1: Significance of Marriage

In the foregoing five chapters we have dealt with laws relating to the self-development of man, or to the welfare and development of the community as a whole. These are generally called the laws governing the relations of man to God — the religious duties of man in a stricter sense. But as already stated in the Introduction to this book, the scope of the religion of Islam is very wide and covers the whole field of the relations of people to one another, as well as that of man to God. The object of the laws relating to this part of human life is to teach the individual his duties and obligations to others, and to show him how to lead a happy life in this world in his relations with others.

In all these matters Islamic law imposes certain restric­tions upon the free acts of individuals for the benefit of society as a whole, and therefore ultimately for the benefit of each person. The basic principle in the matter of all restrictive ordinances is that a thing which is not disallowed is deemed to be lawful, as the well-known juridical dictum has it: “Lawfulness is a recognized principle in all things”. In other words, everything (in which is included every free act of man) is presumed to be lawful, unless it is definitely prohibited by law. This dictum is in fact based on the plain words of the Holy Quran:

“He it is Who created for you all that is in the earth.” — 2:29

According to this verse, everything has been created for the benefit of man, which leads to the only possible presumption that every­­thing can be made use of by him, unless a limitation is placed, by law, on that use.

Importance of the marriage institution

The most important of the restrictive regulations of Islam are those relat­ing to marriage, which institution is, in fact, the basic principle of human civilization. The Arabic word for marriage is nikāḥ which originally means ‘uniting’. Marriage in Islam is a sacred contract which every Muslim must enter into, unless there are special reasons why he should not. Thus in the Holy Quran it is said:

“And marry those among you who are single [to their spouses],1 and those who are fit among your male slaves and your female slaves. If they are needy, Allah will make them free from want out of His grace. And Allah is Ample-giving, Knowing. And those who cannot find a match must keep chaste until Allah makes them free from want out of His grace.” — 24:32–33

In another verse, marriage relationship is given the same im­portance as blood-relationship:

“And He it is Who has created man from water, then He has made for him blood-relationship and marriage-relation­ship.” — 25:54

Hadith also lays stress upon living in a married state. The Holy Prophet is reported to have said to certain people who talked of fasting in the day-time and keeping awake during the night, praying to God and keeping away from marriage:

“I keep a fast and I break it, and I pray and I sleep, and I am married, so whoever inclines to any other way than my practice, he is not of me.” 2

Another saying of the Holy Prophet laying stress upon marriage is worded thus:

“O assembly of young people! Whoever of you has the means to support a wife, he should get married, for this is the best means of keeping the looks cast down and guarding chastity; and he who has not the means, let him keep fast, for this will act as castration.” 3

Celibacy was expressly for­bidden by the Holy Prophet.4 Accord­­ing to one hadith, “the man who marries perfects half his religion”, and another says: “Matrimonial alliances increase friendship more than anything else”.5

Marriage as the union of two natures which are one in essence

The Holy Quran repeatedly speaks of the two mates, man and woman, as being created from each other:

“O people, keep your duty to your Lord, Who created you from a single being (nafs)6 and created its mate of the same [kind] and spread from these two many men and women.” — 4:1

“He it is Who created you from a single being (nafs) and of the same did He make his mate that he might find comfort in her.” — 7:189

Both these verses are generally understood as referring to the creation of the first man and the first woman, but that they signify the relation of man to woman in general is obvious from other verses:

“And Allah has made wives for you from among yourselves (anfusi-kum),7 and has given you sons and daughters from your wives”. — 16:72

“And of His signs is this, that He created mates for you from yourselves, that you may find quiet of mind in them, and He put between you love and compassion.” — 30:21

Thus marriage is, according to the Quran, the union of two souls which are one in their essence.

Multiplication of the human race through marriage

It will be noted that, in the above verses, the multiplication of the human race is mentioned as one of the objects of marriage. But it may be said that the multiplication of the race can be brought about without marriage, as with the lower animals; that is to say, without uniting one man with one woman for their whole life. This would be only true if man lived upon earth like other animals, if there was nothing to distinguish him from them, if there were no such thing as civilization, no society, no sense of respect for one’s own obligations and the rights of others, no sense of property and ownership. The family, which is the real unit of the human race and the first cohesive force which makes civilization possible, owes its existence solely to marriage. If there is no marriage, there can be no family, no ties of kinship, no force uniting the different elements of humanity and consequently, no civiliza­tion. It is through the family that humanity is held together and civiliza­tion made possible.

Feelings of love and service developed through marriage

The institution of marriage is also responsible to a very great extent for the development of those feelings of love and service which are the pride of humanity today. The mutual love of husband and wife — a love based not on momentary passion but lifelong connection — and the con­sequent parental love for offspring leads to a very high development of the feeling of love for fellow-beings as such, and thus to the disinterested service of humanity. This love is described as a sign of God in the Quran (see 30:21 quoted above). The natural inclination of the male to the female and of the female to the male finds expansion through marriage and is developed, first, into a love for the children, then a love for one’s kith and kin, and ultimately into a disinterested love for the whole of humani­ty. The home, or the family, is in fact the first training ground of love and service. Here man finds real pleasure in the service of humanity, and the sense of service is thus gradually developed and broadened. It is in fact a training ground for every kind of morality, for it is in the home that a man learns to have a sense of his own obligation and responsibili­ties, to have a respect for others’ rights and, above all, to have a real pleasure in suffering for the sake of others. The Holy Prophet is reported to have said: “The best of you is he who treats his wife best”.8

Section 2: Form and Validity of Marriage

Prohibitions to marry

The Holy Quran forbids certain marriage relations, as listed in 4:23 which begins with the words: “Forbidden to you are your mothers, and your daughters, and your sisters”. It will be seen from the complete verse that these prohibitions arise from:

1. Consanguinity, as in the cases of mother, daughter, sister, brother’s daughter, sister’s daughter, father’s sister and mother’s sister;

2. Fosterage, such as in the case of foster-mother and foster-sister;

3. Affinity, such as in the case of wife’s mother, wife’s daugh­ter and son’s wife.

Jurists have enlarged the conception of certain relations in the classes of consanguinity and affinity. For example, in the cases of daughter and wife’s daughter, all their female descendants are included; and in the case of mother or wife’s mother, all female ascendants are included. Step-mothers are expressly prohibited in the Holy Quran: “And marry not women whom your fathers married” (4:22).

As to what constitutes fosterage (raḍā‘ah or giving suck), a child is recognized as a suckling only up to the age of two years, in the Quran,9 and Hadith lays down that foster-relationship is not established unless the child is suckled when hungry.10

Marriage relations between Muslims and non-Muslims

The only other ground on which marriage is prohibited in the Holy Quran is shirk or associating gods with God:

“And do not marry female idolaters (al-mushrikāt) until they believe; and certainly a believing maid is better than a female idolater even though she please you. Nor marry [believing women] to idolaters until they believe; and certainly a believing slave is better than an idolater even though he please you.” — 2:221

Along with this, it is necessary to read another verse which allows marriage with women who profess one of the revealed religions:

“This day all good things are made lawful for you. And the food of those who have been given the Book is lawful for you and your food is lawful for them. And so are the chaste from among the believing women and the chaste from among those who have been given the Book before you, when you have given them their dowries, taking them in marriage, not fornicating nor taking them for lovers in secret.” — 5:5

Thus it will be seen that while there is a clear prohibition to marry idolaters or idolatresses, there is an express permission to marry women who profess a revealed religion. And, as the Quran states that revelation was granted to all nations of the world,11 and that it was only the Arab idolaters who had not been warned,12 the conclusion is evident that it was only with Arab idolaters that marriage relations were prohibited, and that it was lawful for a Muslim to marry a woman belonging to any other nation of the world that follows a revealed religion. Christians, Jews, Parsis, Buddhists and Hindus all fall within this category; and it would be seen that, though the Christian doctrine of calling Jesus Christ a God or son of God is denounced as shirk, still the Christians are treated as followers of a revealed religion and matrimonial relations with them are allowed. The case of all those people who have originally been given a revealed religion, though at present they may be guilty of shirk, would be treated in like manner.

Islamic jurisprudence (Fiqh), however, recognizes only the lega­lity of marriage with women belonging to the Jewish and Christi­an faiths, and this is due to the narrow conception of the words Ahl al-Kitāb (‘People of the Book’) adopted by the jurists. There is no reason why all others who profess a religion and accept a revealed book should not be treated as such.13

It may be noted here that, while there is an express mention of a Mus­lim man marrying a non-Muslim woman who professes a revealed religion, there is no mention of the legality or illegality of a marriage between a Muslim woman and a non-Muslim man. The mere fact however that the Holy Quran speaks of the one and not of the other is sufficient to show that marriage between a Muslim woman and a non-Muslim man is not allowed.14

Form and validity of marriage

The very fact that marriage is looked upon as a contract in Islam, shows that before marriage both parties must satisfy themselves that each will have a desirable partner for life in the other. The Holy Quran lays down ex­pressly:

“…marry such women as seem good to you (mā ṭāba la-kum)…” — 4:3

The Holy Prophet is reported to have given an injunction to this effect:

“When one of you makes a proposal of marriage to a woman, then if he can, he should look at what attracts him to marry her.” 15

The heading of this chapter is: “A man should look at the woman whom he intends to marry”. Bukhari also has a chapter headed: “To look at the woman before marriage”.16 Sahih Muslim has a similar chapter, “Inviting a man who intends to marry a woman to have a look at her face and hands”, in which is cited the case of a man who had not seen the woman he was going to marry, and the Holy Prophet told him to “go and look at her”.17 In another hadith also, it is reported that when a man made a proposal of marriage to a woman, the Holy Prophet asked him if he had seen her and on his replying in the negative, he enjoined him to see her, because “it was likely to bring about greater love and concord between them”.18

Since the contract is effected by the consent of two parties, the man and the woman, and one of them is expressly told to satisfy himself about the other by looking at her, it would seem that the woman has the same right to satisfy herself before giving her assent. The consent of both the man and the woman is an essential of marriage, and the Quran lays down expressly that the two must agree:

“…do not prevent them from marrying their husbands if they agree among themselves in a lawful manner.”

— 2:232

Proposal of Marriage

When a man, who wants to marry, has satisfied himself about a woman, he makes a proposal of marriage19 either to the woman in question or to her parents or guardians. When a man has made a proposal of marriage to a woman, others are forbidden to propose to the same woman, till the first suitor has given up the matter, or has been rejected.20 A woman may also make a proposal of marriage to a man,21 or a man may pro­pose the marriage of his daughter or sister to a man;22 gener­ally, however, it is the man who makes the proposal. When assent has been given to the proposal of marriage, it becomes an engagement, and usually a certain time is allowed to pass before the marriage (nikāḥ) is performed. This period allows the parties to study each other further, so that if there be anything undesirable in the union, the engagement may be broken off by either party. It is only after the nikāḥ has been performed that the two parties are bound to each other.

Age of marriage

No particular age has been specified for marriage in the Islamic law. But the Holy Quran does speak of an age of marriage which it identifies with the age of majority:

“And test the orphans until they reach the age of marriage (nikāḥ). Then if you find in them maturity of intellect, make over to them their property, and do not consume it extra­vagantly and hastily against their grow­ing up.”

— 4:6

Thus it will be seen that the age of marriage and the age of maturity of intellect are identified with full age or the age of majority. And as marriage is a contract the assent to which depends on personal liking, as already shown on the basis of the Holy Quran and Hadith, and since this function cannot be performed by anyone but the party who makes the contract, it is clear that the age of marriage is the age of majority, when a person is capable of exercising his choice in matters of sexual liking or disliking. A man or a woman who has not attained to puberty is unable to exercise his or her choice in sexual matters and unable to decide whether he or she will like or dislike a certain woman or man as wife or husband.

It is true that Jurisprudence (Fiqh), following the general law of contracts, recognizes, in the case of a marriage contract, the legality of the consent of a guardian on behalf of his ward, but there is no case on record show­ing that the marriage of a minor through his or her parent or guardian was allowed by the Holy Prophet after details of the law were revealed to him at Madinah.23 There is no reliable Hadith report showing that marriages were con­tracted by minors through their guardians in the time of the Holy Prophet, af­ter the revelation of the fourth chapter which identifies the age of marriage with the age of majority. Nor does the Quran mention minors being married or divorced.

Guardianship in marriage

The essence of marriage being then, according to Islam, the consent of two parties, after they have satisfied themselves about each other, to live together as husband and wife permanently and accept­ing their respec­tive responsibilities and obligations in the married state, it follows from its very nature that the marriage contract requires the contracting parties to have attained puberty and the age of discretion. In Islamic jurisprudence, as regards those who have attained majority there is no difference of opinion in the case of the man, who can give his con­sent to marriage without the approval of a guardian, but some difference exists in the case of the woman, whether she can give such consent without the approval of her father or guardian. The Hanafi view of the law of Islam answers this question in the affirmative:

“The marriage contract of a free woman who has reached the age of majority, and is possessed of understanding, is complete with her own consent, whether she is a vir­gin or has been married before, though it may not have been confirmed by her guardian.” 24

The Shiah view is exactly the same. However, both Malik and Shafi‘i hold that the consent of the guardian is essential. Bukhari inclines to the same view as that of Malik and Shafi‘i. Some ver­ses of the Quran are quoted by him but these do not speak of a guardian in express words and the arguments based on these ver­ses are defective and doubtful. The Hadith reports cited by him also do not establish that marriage is invalid without the consent of a guardian.

On the other hand, the Holy Quran, as well as Hadith, recognizes a wom­an’s right to marry the man she pleases. Regarding divorced women, the Quran says plainly:

“… do not prevent them from marrying their husbands if they agree among themselves in a lawful manner.” — 2: 232

And of a widow the Quran says:

“Then if they themselves go away [from the late husband’s house], there is no blame on you for what they do of lawful deeds concerning themselves.” — 2:240

These two verses clearly recog­nize the right of the divorced woman or the widow to give herself in marriage, and prohibit the guar­dian from interference when the woman herself is satisfied. This is quite in accordance with a hadith: “Al-ayyim (the widow and the divorced woman) has greater right to di­spose of herself in marriage than her guardian”.25 The words of another hadith are: “The guardian has no business in the matter of a divorced woman or a widow (thayyiba)”.26

Does the same rule apply to women not married before? Imam Abu Hanifah answers this question in the affirmative. His principle is that, since a woman who has attained the age of majority can dispose of her property without reference to a guardian, so she is also entitled to dispose of her person. However, she might be bashful and, moreover, she has not the same experience of the world as has a widow or a divorced woman. Therefore it is fitting that her choice of a husband should be subject to the check of a father or other guardian, who would guard her against being misled by un­scrupulous people. But as the contract, after all, depends on her consent and not on the consent of her guardian, which in fact is only needed to protect her, her will must ultimately prevail and the opinion of Imam Abu Hanifah is more in accordance with the essentials of marriage as ex­pressed by the Quran. He says:

“Hers is the right of marrying, and the guardian is only sought lest it [contracting the marriage] should be at­tri­buted to want of shame.”

“It is not lawful for the guardian to compel a virgin who has attained majority to marry according to his wishes.” 27

Hadith also supports this view, for the Holy Prophet is reported in Bukhari to have said:

“The widow and the divorced woman shall not be married until her order is obtained, and the virgin shall not be married until her permission is obtained.” 28

Bukhari’s next chapter is headed: “When a man gives his dau­gh­ter in marriage and she dislikes it, the marriage shall be repudiated”, and a hadith is quoted showing that the Holy Prophet repudiated such a marriage.29

Marriage in akfā’

Akfā’ is the plural of kuf’ which means ‘an equal’ or ‘one alike’. The people of one tribe or one family would be akfā’ among themselves, and people of one race would be akfā’ among themselves. There is nothing in the Holy Quran or in the Hadith to show that a marriage relation can only be established among the akfā’. It is quite a different thing that, generally, people should seek such relations among the akfā’, but Islam came to level all distinctions, whether social, tribal or racial, and therefore it does not limit the marriage relationship to akfā’. The way is opened for establishing all kinds of relationships between Muslims, to whatever country or community they may belong, by declar­ing:

“The believers are brethren…” — 49:10

“And the believers, men and women, are friends (auliyā’) of one another.” — 9:71

When speaking of contracting marriage relationships, the Quran speaks only of certain forbidden relations and then adds: “And lawful for you are all women besides those” (4:24). And again it goes so far as to al­low marital relations with non-Muslim women.30 The Holy Prophet recommended the marriage of a lady of the tribe of Quraish of the noblest family, his aunt’s daughter, Zainab, to Zaid ibn Haritha who was a liberated slave; and Bilal, a freed African slave, was married to the sister of the famous companion, Abdur Rahman ibn Auf. There are other examples of the same kind in the early history of Islam. This cuts at the root of the limitation of marriage to akfā’, yet the jurists have insisted on it.

Essentials in the contract

Marriage is called a covenant (mīthāq) in the Holy Quran, a covenant be­tween the husband and the wife:

“And how can you take it [i.e., the dowry or nuptial gift] when you have been intimate with each other and they [i.e., your wives] have taken from you a strong covenant (mīthāq-an ghalīẓ-an)?” — 4:21

The marri­age contract is entered into by mutual consent exp­ressed by the two par­ties, the husband and the wife, in the presence of witnesses, and that is the only essential, but it was the practice of the Holy Prophet to deliver a sermon before the declaration of marriage was made, to give it the character of a sacred contract. A nuptial gift (mahr) must also be settled on the woman, according to the Quran, but the marriage is valid even if mahr is not mentioned, or even if the amount of mahr is not agreed upon.

The expression of the consent requires no particu­lar form or particular words; any expression which conveys the intention of the parties in clear words is sufficient. The words of mutual con­sent may be addressed to each other by the two parties, but generally it is the person who delivers the sermon who puts the proposal be­fore each party, which then gives consent to the proposal.

Mahr or the nuptial gift

The second most important thing in marriage is mahr, the dowry or nuptial gift. The word generally used for dowry in the Holy Quran is ajr, meaning ‘reward’ and ‘a gift that is given to the bride’. Another word sometimes used in the Quran to indicate the nuptial gift is farīḍah, literally ‘what has been made obligatory’ or ‘an ap­pointed portion’. The word mahr is used in Hadith to signify dowry, or the nuptial gift.

According to the Quran, the mahr is given as a free gift by the husband to the wife at the time of contracting the marriage:

“And give women their dowries as a free gift.” — 4:4

The payment of the mahr on the part of the husband is an admission of the independence of the wife, for she becomes the owner of property immediately on her marriage, though before it she may not have owned anything. The settling of a mahr is obli­gatory:

“And lawful for you [to marry] are all women besides those [prohibited], provided that you seek them with your property, taking them in marriage, not committing fornication. Then as to those whom you profit by [by marrying], give them their dowries as appointed.” — 4:24

“And [lawful for you are] the chaste from among the believing women and the chaste from among those who have been given the Book before you, when you have given them their dowries, taking them in marriage, not for­ni­ca­ting, nor taking them for lovers in secret.” — 5:5

It would appear from this that the Quran renders the payment of dowry necessary at the time of marriage. Hadith leads to the same conclu­sion. The payment of the dowry was necessary even though it might be a very small sum.31 In exceptional cases, marriage is legal even though the amount of mahr has not been specified, but it is obligatory and must be paid afterwards. Thus the Quran says, speaking of divorce:

“There is no blame on you if you divorce women while you have not touched them, nor appointed for them a portion.” — 2:236

This shows that marriage is valid without specifying a mahr. Hadith also speaks of the validity of a marriage, even though dowry has not been named.32 But the dowry must be paid, either at the time of the consummation of marriage or afterwards, and if unpaid in the husband’s lifetime, it is a charge on his property after his death. The plain words of the Quran require its payment at marriage, barring exceptional cases when it may be determined or paid afterwards. Imam Malik follows this rule and renders payment necessary at marriage, while the Hanafi law treats it more or less as a debt.

No limits have been placed on the amount of mahr. The words used in the Quran show that any amount of dowry may be given to the wife:

“… and you have given one of them a heap of gold…” —4:20

Thus no maximum or minimum amount has been laid down. The lowest amount mentioned in Hadith is a ring of iron,33 and a man who could not procure even that was told to teach the Quran to his wife.34 The amount of the dowry may, however, be increased or decreased by the mutual consent of husband and wife, at any time after marriage, and this is plainly laid down in the Quran:

“Then as to those whom you profit by [by marrying], give them their dowries as appointed. And there is no blame on you about what you mutu­ally agree after what is appointed [of dowry].” — 4:24

Generally, however, mahr is treated simply as a check upon the hus­band’s power of divorce, and very high and extravagant sums are some­times specified as mahr. This practice is foreign to the spi­rit of the institution, as laid down by Islam; for, mahr is an amount which should be handed over to the wife at marriage or as early afterwards as possible; and if this rule were kept in view, extravagant mahr would disappear of itself. The later jurists divide mahr into two equal portions, one of which they call ‘prompt’ (mu‘ajjal) and the other ‘deferred’ (mu’ajjal). The payment of the first part must be made immedi­ately on the wife’s demand, while the other half becomes due on the death of either party, or on the dissolution of marriage.

Conditions imposed at the time of marriage

It is lawful to impose and accept conditions, which are not illegal, at the time of marriage, and the parties are bound by such conditions. The Holy Prophet is reported to have said:

“The best entitled to fulfilment of all conditions that you may fulfil, are the conditions by which sexual union is legalized.” 35

It is also related that the Holy Prophet spoke of a son-in-law of his, an unbeliever,36 in high terms, saying:

“He spoke to me and he spoke the truth, and he made pro­mises with me and he fulfilled those promises.” 37

Illegal conditions are those which are opposed to the law of Islam. If such a condition be imposed, the condition is void while the marriage is valid. Examples of legal conditions are that the wife shall not be compelled to leave her conjugal domicile,38 that the husband shall not contract a second marriage during the existence of the first, that the husband and the wife or one of them shall live in a specified place, that a certain portion of the dower shall be paid immediately and the remainder on death or divorce, that the husband shall pay the wife a certain amount by way of main­tenance, that he shall not prevent her from receiving visits from her relatives, that the wife shall have the right to divorce for a specified reason or for any reasonable cause, and so on.39

Publicity of the marriage

When the Holy Quran speaks of marriage, it at the same time excludes clandestine sexual relations: “…taking them in marriage, not fornicating nor taking them for lovers in secret” (4:24, 4:25, 5:5). Thus the one fact distinguishing marriage from fornication and clandestine relations is its publicity. The mutual consent of two parties to live as husband and wife does not constitute a marriage unless that consent is expressed pub­licly and in the presence of wit­nesses. An essential feature of the Islamic marriage is therefore the publication of the news by gathering together, preferably in a public place. There are Hadith reports showing that marriage must be made publicly known, even with the beat of drums.40 With the same object in view, music is allowed at marriage gatherings. On such an occasion, girls sang with the beating of drum in the presence of the Holy Prophet.41 The following hadith on this subject may be quoted:

“Aishah had with her a girl from among the Ansar whom she got married. The Messenger of Allah came and said: ‘Have you sent the young girl to her husband?’ And on receiving a reply in the affirmative, he said: ‘Have you sent with her those who would sing?’ Aishah said: ‘No.’ Said the Messenger of Allah: ‘The Ansar are a people who love sing­ing, and it would have been better if you had sent with her someone to sing thus and thus’.” 42

The presence of witnesses, when so much stress is laid on pro­­­clamation, is a foregone conclusion.

Marriage (nikāḥ) sermon

The delivery of a sermon before the announcement of marriage is another factor which helps the publicity of the marriage, and, at the same time, serves the double purpose of giving it a sacred character and making it an occasion for the education of the community. When the friends and relatives of both parties have assembled, a sermon is delivered by some­one from among the party, or by the Imam, before announcing the mar­riage itself.

The sermon, as reported from the Holy Prophet, opens with a statement of praise of Allah, asking for His help and forgiveness, and ending with the bearing of witness to the Unity of God and the prophet­hood of Muhammad. After this, the Holy Prophet would take as his text the following three verses of the Quran:43

“O you who believe, keep your duty to Allah, as it ought to be kept, and do not die except as Muslims.” — 3:102

“O people, keep your duty to your Lord, Who creat­ed you from a single being and created its mate of the same [kind], and spread from these two many men and women. And keep your duty to Allah, by Whom you demand one of another [your rights] and to the ties of relationship. Sur­ely Allah is ever a Watcher over you.” — 4:1

“O you who believe, keep your duty to Allah and speak straight words. He will put your deeds into a right state for you, and forgive you your sins. And whoever obeys Allah and His Messenger, he indeed achieves a mighty success.” — 33:70–71.

All three verses remind people of their responsibilities in general, and the middle one lays particular stress on the obligations towards women. The sermon of course must elucidate these verses and explain to the audience the mutual rights and duties of husband and wife. At the conclusion of the sermon is made the announcement that such and such a man and such and such a woman have accepted each other as husband and wife, and the dowry is also announced at the time. The man and the woman are then asked if they accept this new relationship, and on the reply being given in the affirmative the marriage ceremony proper is con­­cluded.

The Holy Quran requires witnesses even for ordinary contracts and business transactions, and marriage is a contract of the highest importance, a contract affecting the lives of two persons to an extent to which no other contract affects them. It further requires witnesses even in the case of the dissolution of marriage by divorce.44 The Hanafi law rightly lays special stress on this point, so that mar­riage is not valid if at least two witnesses are not there. To procure the best testimony, and one free from doubt of all kinds, it is quite in accordance with the law of Islam that all marriages should be registered.

Walīmah or marriage feast

After the nikāḥ is over, the bride is conducted to the husband’s house, and this is followed by the marriage-feast called walīmah. This feast is another step in the publicity of the marriage, and hence the Holy Prophet laid stress on it. It is related of one of his Companions that the Prophet, on being told of his marriage, prayed for him and told him to arrange for a feast though there be only one goat to feed the guests.45 On the occasion of his own marriage with Safiyyah, when returning from Khaibar, he gave a feast in which everyone was required to bring his own food with him.46 Of course this was on a journey, but at the same time it shows the great importance given to the marriage-feast. He also invited his friends to a walīmah feast on the occasion of his marriage with Zainab, which is said to have been the most sumptuous of all his walīmah feasts, and yet he slaughtered only one goat.47 In addition to numerous stray references in his collection, Bukhari has devoted several chap­­ters to walīmah in particular, with headings such as “The walīmah is necessary” and “The walīmah [is necessary] though there be only one goat to feed the guests”.48

Polygamy

As a rule, Islam recognizes only the union of one man and one woman as a valid form of marriage. Under exceptional circumstances it allows the man more wives than one, but does not allow the woman more husbands than one. Thus while a married woman cannot contract a valid marriage, a married man can do it. There is no difficulty in understand­ing this differentiation, if the natural duties of man and woman in the preser­vation and upbringing of the human species are kept in view. Nature has so divided the duties of man and woman, in this respect, that while one man can raise children from more wives than one, one woman can have children only from one husband. Therefore while polygyny may at times be a help in the welfare of society and the preservation of the human race, polyandry has no conceivable use for man.

It must be borne in mind that polygamy is allowed in Islam only as an exception. It is expressly so stated in the Holy Quran:

“And if you fear that you cannot do justice to orphans, marry such women as seem good to you, two or three or four; but if you fear that you will not do justice [between them], then [marry] only one…” — 4:3

This is the passage in the Quran which allows polygamy, and it will be seen that it does not require polygamy; it only permits it and even that permission is conditional. Polygamy is here allowed only when there are orphans to be dealt with, and it is feared that they will not be dealt with justly. This condition relates more to the welfare of society than to the needs of the individual.

The meaning of this verse is really ex­plained by following verse:

“And they ask you [O Prophet] a decision about women. Say: Allah makes known to you His decision concerning them; and what is recited to you in the Book is concerning widowed women whom you do not give what is appointed for them, while you are not inclined to marry them, nor to the weak among children, and that you should deal justly with orphans.” — 4:127

The reference to “what is recited in the Book” is admittedly to 4:3. And the reference in “whom you do not give what is appointed for them… nor to the weak among children” is to the Arab custom, ac­cording to which women and minor children did not get a share of inheritance, the recognized usage being that only he could inherit who could ride on the back of a horse and take the field against the enemy. The position was therefore this, that when a widow was left with orphans to bring up, she and her children would get no share of the inheritance, nor were people inclined to marry widows who had children. In 4:3, the Quran has therefore enjoined that if you cannot be otherwise just to orphans, marry the mothers of such orphans so that you may thus be in­terested in their welfare, and for this purpose you are allowed to contract other marriages.

A consideration of the historical circumstances of the time when this chapter was revealed corroborates this conclusion. It was a time when Muslims were compelled to fight battle after battle to repel an enemy bent upon their extirpation. The bread­winners had all to take the field against the enemy, and many had been lost in the unequal battles that were being fought by the small Muslim band against overwhelming forces. Women had lost their affectionate husbands and young children their loving fathers, and these widows and orphans had to be provided for. If they had been left to the mercy of circumstances, they would have perished, and the community would have been weakened to such an extent that it would have been impossible to maintain the struggle for life. It was un­der these circumstances that the fourth chapter was revealed, allowing the taking of more wives than one, so that the widows and orphans may find a shelter, but only on condition that the husband is just to all of them.

It might be said that other arrangements could be made for the main­tenance of widows and orphans. But a home life could not be given to them in any other manner. Islam bases its civilization on home life; and under exceptional circumstances, where mono­gamy fails to pro­vide a home for widows and orphans, it allows poly­gamy to extend to them that advantage. Even if it be half a home that the women and chil­dren find in a polygamous family, it is better than no home at all. The moral aspect of the question is not the least important. The war had deci­mated the male population and the number of women exceeded that of men. This excess, if not provided with a home, would have led to moral depravity. Professions may be opened up for women to enable them to earn bread, and Islam has never closed the door of any profession against women. But the crux of the question is not the provi­sion of bread but the provision of a home life and that question cannot be solved without polygamy.

The question of war is not peculiar to one age or one country. It is a question which affects the whole of humanity for all ages to come. War must always be a source of decrease in the number of males, bringing about a corresponding increase in the number of females and a solution will have to be sought by all well-wishers of humanity for this problem. Polygamy in Islam is, both in theory and in practice, an exception, not a rule, and as an exception it is a remedy for many of the evils of modern civilization.

It may be further stated that the institution of polygamy, which was allowed by Islam only as a remedy, has largely been abused by sensual people, but then there are people in every society who would abuse any institution, however necessary it may be to the right growth of human society. In countries where polygamy is not allowed, the sensuality of man has invented a hundred other ways of giving vent to his carnal pas­sions, and these are a far greater curse to society than the abuse of poly­gamy. Indeed that abuse can be easily remedied by the state by placing legal limitations upon its practice, while the state is quite helpless against the evils which result from its entire rejection.

Section 3: Rights and Position of Women

Equality with men in spiritual and material terms

From a material as well as a spiritual point of view, the Quran recognizes the position of woman to be the same as that of man. Good works bring the same reward, whether to a male or a female:

“I [Allah] will not let the work of a worker among you to be lost, whether male or female; each of you is as the other.” — 3:195

There is a verse which lists ten good qualities as being possessed by men as well as women, and ends with the words:

“Allah has prepared for them forgiveness and a mighty reward.” — 33:35

The Quran teaches that Paradise and its blessings are equally for both men and women:

“And whoever does good deeds, whether male or female, and is a believer — these will enter the Garden…”

— 4:124, 40:40

Both shall enjoy the higher life:

“Whoever does good, whether male or female, and is a believer, We shall certainly make him [or her] live a good life, and We shall certainly give them their reward for the best of what they did.” — 16:97

Revelation, which is God’s greatest spiritual gift in this life, is granted to men as well as to women:

“And when the angels said: Mary, surely Allah has chosen you and purified you…” — 3:42

“And We revealed to Moses’ mother, saying: Suckle him; then when you fear for him, cast him into the river and do not fear, nor grieve.” — 28:7

From a material point of view, woman is recognized as on a par with man. She can earn money and own property just as man can do and therefore she may, if she feels the need, follow any profession:

“For men is the benefit of what they earn. And for women is the benefit of what they earn.” — 4:32

She has full control over her property and can dispose of it as she likes:

“But if they [i.e., women] of themselves be pleased to give you a portion from it [i.e., from their property], consume it with en­joyment and pleasure.” — 4:4

Women can also inherit property as men can:

“For men is a share of what the parents and the near relatives leave, and for women a share of what the parents and the near relatives leave, whether it is little or much — an appointed share.” — 4:7

Women not excluded from any activity in life

Women are not forbidden to take part in any activity when necessary, nor is there any injunction in the Holy Quran or the Hadith shutting them up within the four walls of their houses. A study of Hadith shows that, notwithstanding her rightful posi­tion in the home, as the bringer up of children and manager of the house­hold, women took interest in all the national activities of the Muslim community. The care of the children did not prevent her from repairing to the mosque to join the congregational prayers,49 nor was this care an obstacle in her way to join the soldiers in the field of battle to perform a large number of duties, such as the carrying of provisions, taking care of the sick and the wounded, removing the wounded and the slain from the battlefield,50 or taking part in actual fighting when necessary.51 One of the Holy Prophet’s wives, Zainab, used to prepare hides and to devote the proceeds of the sale to charitable work. Women also helped their hus­bands in the labour of the field52 and served the male guests at a feast.53 They carried on business,54 and could sell to and purchase from men, and men could sell to and purchase from them.55 A woman was appointed by the Caliph Umar as superintendent of the market of Madinah.

Seclusion of women

The Holy Quran speaks of a Muslim society in which men and women had often to meet each other:

“Say to the believing men that they lower their gaze and restrain their sexual passions. That is purer for them. Surely Allah is Aware of what they do. And say to the believing women that they lower their gaze and restrain their sexual passions and do not display their adornment except what appears of it.” — 24:30–31

A later revelation, 33:59, supports the same conclusion.56 According to Hadith, the Holy Prophet is reported to have said to women:

“It is permitted to you to go out for your needs.” 57

There is an injunction to the Holy Prophet’s wives in a verse of the Quran as follows:

“And stay in your houses and do not display your beauty like the displaying of the earlier days of ignorance.” — 33:33

This does not mean that they were not to go out for their needs. It is evidently an injunction against the parading of finery and display of beauty and thus exciting the uncontrolled passions of youth. It cannot and does not mean, as explained by the Holy Prophet himself, that women are not allowed to go out for their needs. Display of beauty and going out for one’s needs are quite different things. There is, there­fore, no seclusion in Islam in the sense that women are shut up within their houses, for they are as free to move about for their needs, or transaction of their business, as men. Only their needs outside the home are generally fewer than those of men.

The veil

The next question is whether women are commanded to veil themselves when they have to go out for their needs. These needs may be either reli­gious or secular. Two prominent instances of the former are taking part in public prayers and the performance of pilgrimage. If it had been neces­sary for women to wear veils, an injunction should have been given to wear them on these two sacred occasions, since these are the occasions on which men’s sentiments should be purest, and when, therefore, all those things that excite the passions must be avoided. There is, however, not only no such injunction but it was a recognized practice that women came into the congregation of men in mosques unveiled.58

It is even admitted by the jurists that women should not veil themselves at prayers and on pilgrimage. In the conditions of prayer it is laid down that the body of the woman must be covered entirely except her face and her hands.59 The exception of these two parts, it is added, is due to the fact that they must of necessity be left exposed. As regards pilgrimage, there is an express injunction in Hadith that no woman shall put on a veil during the pilgrimage.60 It is also a well-established fact that the mosques in the Prophet’s time con­tained no screens to keep the two sexes separate. The only separation be­tween the men and the women was that women stood in separate rows behind the men. Otherwise they were in the same room or in the same yard, and the two sexes had to intermingle. In the pilgrimage there was a much greater intermingling of the sexes, women performing circumam­bulations of the Ka‘bah, running between Safa and Marwah, staying in the plain of Arafat and going from place to place, along with men, and yet they were enjoined not to wear a veil.

If, then, as admitted on all hands, women did not wear a veil when the two sexes intermingled on religious occasions, it is a foregone conclusion that they could not be required to veil them­selves when going out for their secular needs whose very performance would be hampered by the veil. And there is no such command either in the Holy Quran or Hadith. In fact, no such injunction could be given when there existed an injunction that women shall remain unveiled in pilgrimage. This injunction rather shows that the veil was adopted simply as a mark of rank or greatness, and the unveiling was required in order to bring all on a level of equality. However that may be, the order to remain unveiled in the pilgrimage is a clear proof that wearing the veil is not an Islamic injunction or practice.

Moreover, the verses requiring both men and women to keep their looks cast down (24:30–31, quoted above) show clearly that, when the two sexes had to intermingle as a matter of necessity, women were not veiled, for otherwise there would have been no need for the men to keep their looks cast down. And to make the matter clearer still, it is added that women should “not display their adornment, except what appears of it”. The part that necessarily appears is the face and the hands, and this is also the view of the vast majority of commentators.61 There is also a hadith according to which the Holy Prophet is reported to have excepted the face and the hands from the parts which were required to be covered:

“Asma, daughter of Abu Bakr, came to the Messenger of Allah, and she was wearing very thin clothes [through which the body could be seen]. The Messenger of Allah turned away his face from her and said: O Asma, when the woman attains her majority, it is not proper that any part of her body should be seen except this and this, pointing to his face and his hands.” 62

Decent dress

All that the Holy Quran requires is that women should be decently dressed when they go out and that they should not uncover their bosoms. This is made clear in 24:31:

“And say to the believing women that they … do not display their adornment except what appears of it. And they should wear their head-coverings over their bosoms.”

The practice in Arabia, in pre-Islamic times, of displaying beauty, included the uncover­ing of the bosom, and hence the injunction relating to its covering. A differ­ence was thus made between the dress of women within their houses and when they appeared in public; in the former case they were allowed to be more at ease in the matter of their dress, but in public they had to be particular so that their very appearance should be indicative of modesty. On another occasion, Muslim women are required to wear a dress whose very appearance should distinguish them from such women as did not have a good reputation:

“O Prophet! tell your wives and your daughters and the women of the believers to let down upon them their over-garments. This is more proper, so that they may be known, and not be given trouble.” — 33:59

It seems that this injunction was required by the special cir­cum­stances which then prevailed at Madinah, where the hypocrites would molest a good Muslim woman who went out to transact some business and then offer the excuse that they thought her to be a woman of ill re­pute. This is plainly hinted in the verse that follows:

“If the hypocrites and those in whose hearts is a disease and the agitators in Madinah do not stop, We shall certainly urge you on against them, then they shall not be your neighbours in it but for a little while.” — 33:60

The Arabic word for over-garment is jilbāb and it means ‘a garment with which the woman covers her other garments’ or a woman’s head-covering, or ‘a garment with which she covers her head and bosom’.63 It may be part of an ordi­nary dress or it may be a kind of overcoat. Nor is the wearing of it com­pulsory under all circumstances; it is, rather, a kind of protection when there is fear of trouble, and in the case of older women it is dispensed with altogether as stated elsewhere:

“And as for women past childbear­ing who do not hope for marriage, it is no sin for them if they put off their cloaks without displaying their adornment.” — 24:60

Intermingling of the two sexes

In the struggle of life the intermingling of the two sexes cannot be avoided, and Islam allows such intermingling even for religious purposes, as in prayers and pilgrimage. On all such occasions, the Holy Quran requires women to appear in their simplest dress, or to wear an over-garment which should cover their ornaments, at the same time requiring both sexes to keep their looks cast down. Unnecessary mingling of the sexes is discouraged. Some hadith pro­hibit a woman being alone in private with a man who is not her near relative64 unless a near relative is present;65 but when other people are also present, or one is exposed to public view, there is no harm in being alone with a woman.66

The intermingling of the sexes in social functions generally cannot be traced in the early history of Islam, though there are examples in which a woman entertained the male guests of her husband.67 In fact, much would depend, in these matters, on the social customs of the people, and no hard and fast rules can be laid down as to the limits to which the inter­mingling of the sexes may be allowed. The great object before Islam is to raise the moral status of society and to minimize the chances of illicit sexual relations growing up between the sexes, so that the home may be a haven of peace for the husband, the wife and the children.

Section 4: Rights and Obligations of Husband and Wife

Woman’s position as wife

By entering the married state, a woman does not lose any of the rights which she possesses as an individual member of society. She is still free to carry on any work she likes, to make any contract she desires, and to di­spose of her property as she wishes; nor is her individuality merged in that of her husband. But she is at the same time recognized as undertak­ing new responsibilities of life, which carry with them new rights. The Holy Quran settles the following prin­ciple:

“And women have rights similar to their ob­ligations, in a just manner…” — 2:228

These are the rights and responsi­bilities of the home. Hadith des­cribes her position in the home as that of a ruler:

“Everyone of you is a ruler and everyone shall be questioned about his subjects; the Amīr (the head of state) is a ruler, and the man is a ruler over the people of his house, and the woman is a ruler over the house of her husband and his children, so everyone of you is a ruler and everyone shall be questioned about his subjects.” 68

Thus so far as the home is concerned, the wife has the position of a ruler in it, the home being her territory. By marriage she is at once raised to a higher dignity, acquiring new rights while incurring new responsibilities. Her rights as regards her husband are also affirmed in Hadith, as the Holy Prophet said to a Companion:

“Your body has a right over you and your soul has a right over you and your wife has a right over you.” 69

Mutual relation of husband and wife

As already stated, the mutual relation of husband and wife is described in the Holy Quran as one of a single soul in two bodies:

“And of His signs is this, that He created mates for you from yourselves, that you may find quiet of mind in them, and He put between you love and compassion.” — 30:21

“He it is Who created you from a single soul and of the same did He make his mate that he might find comfort in her.” — 7:189

The same idea is elsewhere very beautifully described in different words:

“They [i.e., your wives] are an apparel for you and you are an apparel for them.” — 2:187

The closest union of two souls could not be described more aptly.

Islam is, however, a practical religion and it does not shut its eyes to the hard realities of life. It describes the home as a unit in the greater organi­zation of a nation as a whole, and just as in the vaster national organiza­tion there is somebody to exercise the final authority in certain cases, so the smaller organization of the home cannot be maintained without a similar arrangement. Hence the husband is first spoken of as being “a ruler over the people of his house” and the wife is then described as “a ruler over the house of her husband and his children”. The home is thus a kingdom in miniature, where authority is exercised by both the husband and the wife. But unless one of them is given a higher authority, there would be chaos in this kingdom. The reason for giving the higher authority to the male parent is thus stated in the Holy Quran:

“Men are the maintainers of women with what Allah has given some of them above others, and with what they spend out of their wealth.” — 4:34

The Arabic word for ‘maintainers’ is qawwāmūn, which carries the significance of maintaining or managing. It means that the husband provides maintenance for the wife, and also that he has final charge of the affairs of the home, thus exercising authority over the wife when there is need for it.

Rights of husband and wife

The family concern must be kept going by husband and wife in mutual co-operation. The husband is mainly required to earn for the maintenance of the family, and the wife is responsible for the management of the house­hold and the bringing up of the children. The rights of each against the other are therefore centred in these two points. The husband is bound to maintain the wife according to his means, as the Holy Quran says:

“Let him who has abundant means spend out of his abundance, and whoever has his means of subsistence restricted for him, let him spend out of what Allah has given him. Allah does not lay on any soul a burden beyond what He has given it.” — 65:7

He must also provide for her a lodging:

“Lodge them where you live according to your means”.

— 65:6

The wife is bound to keep company with her husband, to preserve the husband’s property from loss or waste, and to refrain from doing anything which should disturb the peace of the family. She is required not to admit anyone into the house whom the husband does not like, and not to incur expenditure of which the hus­band disapproves.70 She is not bound to render personal service such as the cooking of food, but the respective duties of the husband and wife are such that each must always be ready to help the other. The wife must help the husband even in the field of labour if she can do it, and the husband must help the wife in the household duties. Of the Holy Prophet himself, it is related that he used to help his wives in many small works of the household, such as milking goats, patching clothes, mending shoes, clean­sing utensils, and so on.

The Holy Quran lays the greatest possible stress on kindly and good treat­ment towards the wife. “Keep them in good fellowship” and “treat them kindly” is the repeatedly occurring advice of the Quran.71 So much so that kindness is recommended even when a man dislikes his wife, for:

“…it may be that you dislike a thing while Allah has placed abundant good in it.” — 4:19

The Holy Prophet laid equally great stress upon good treatment of a wife. He is reported to have said:

“The most excellent of you is he who is best in his treatment of his wife.” 72

“Accept my advice in the matter of doing good to women.” 73

In his famous address at the Farewell Pil­grimage, he again laid particular stress on the good treatment of women:

“O my people! you have certain rights over your wives and so have your wives over you… They are the trust of Allah in your hands. So you must treat them with all kindness.” 74

Privacy

Islam sets great value on the privacy of home life. In the first place, going into houses without permission is strictly forbidden:

“O you who believe, do not enter houses other than your own houses, until you have asked permission and greeted their inhabitants.” — 24:27

And again:

“O you who believe, let those whom your right hands possess [i.e., those serving you] and those of you who have not attained to puberty ask permission of you three times: before the morning prayer, and when you put off your clothes for the heat of noon, and after the prayer of night. These are three times of privacy for you.” — 24:58

These rules aim at creating a better atmosphere of sexual morality.

Section 5: Divorce

Marriage and divorce

Though marriage, according to Islam, is only a civil contract, yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution.

The necessity of divorce has been recognized by almost all people. According to the Jewish law the right of divorce belongs to the husband who can ex­ercise it at his will. Christian law recognizes the right of divorce only when there is faithlessness on the part of either of the parties, but the divorced parties are precluded from marrying again. According to Hindu law marriage once performed can never be dissolved. Islam effected several reforms in divorce. It restricted the husband’s right to divorce while recognizing the wife’s right to it.

Divorce is permitted under exceptional circumstances

The Arabic word for divorce is ṭalāq which carries the literal significance of freeing or the undoing of a knot. In the terminology of the jurists, the ṭalāq is called a khul‘ (meaning literally the putting off or taking off a thing) when it is claimed by the wife. Both from the Holy Quran and the Hadith it appears that, though divorce was permitted, yet the right could be exercised only under exceptional circumstances.

The Holy Prophet is reported to have said:

“Never did Allah allow anything more hateful to Him than divorce.”

“With Allah the most detestable of all things per­mitted is divorce.”75

The Quran also approves of the Holy Prophet in­sisting that Zaid should not divorce his wife Zainab, despite a dissension between them of a sufficiently long standing. He said to Zaid:

“Keep your wife to yourself and keep your duty to Allah.” — 33:37

Refraining from divorce is spoken of here as taqwā, keeping your duty to Allah or righteousness. Elsewhere divorce is thus discouraged:

“If you hate them [i.e., your wives], it may be that you dislike a thing while Allah has placed abundant good in it.” — 4:19

Remedies are also suggested to avoid divorce as long as possible:

“And if you fear a breach between the two [i.e., the husband and the wife], appoint an arbiter from his people and an arbiter from her people. If they both desire agreement, Allah will effect harmony between them.” — 4:35

The mentality of the Muslim should be to face the difficulties of married life along with its comforts, and to avoid the dis­ruption of family relations as long as possible, turning to divorce only as a last resort.

Principle of divorce

From what has been said above, it is clear that not only must there be a good cause for divorce, but that all means to effect reconciliation must have been exhausted before resort is had to this extreme measure. The impression that a Muslim husband may put away his wife at his mere caprice, is a grave distortion of the Islamic institution of divorce. But though the Holy Quran refers to several causes when divorce may become necessary, it does not enumerate all of them, nor does it strictly limit them to speci­fied cases. If the Christian nations of the modern West cannot agree as to the proper causes of divorce, how could Islam, a universal religion which was meant for all ages and all countries, for people in all grades of civilization, limit those causes which must vary with changing conditions of humanity and society?

The principle of divorce spoken of in the Quran, and which in fact includes to a greater or lesser extent all causes, is the decision no longer to live together as husband and wife. In the Quran, the disagreement to live anymore as husband and wife is called shiqāq (from shaqq meaning ‘breaking into two’). But not even such a breach entitles either party to a divorce, unless all possibilities of agreement have been exhausted. The principle of divorce is, therefore, described in the Quran in 4:35 as quoted above. This verse gives us not only the principle of divorce, which is a disagreement to live together as husband and wife, but also the process to be adopted when a rupture of marital relations is feared. The two sexes are here placed on a level of perfect equality. A “breach (shiqāq) between the two” would imply that either the husband or the wife wants to break off the marriage agreement, and hence either may claim a divorce when the parties can no longer live together in agreement. In the process to be adopted, both husband and wife are to be represented on a status of equality; an arbiter has to be appointed from his people and another from her people. The two are told to try to remove the differences and reconcile the par­ties to each other. If agreement cannot be brought about, a divorce will follow.

All causes of divorce are subject to the condition that one of the parties cannot live together with the other. For instance, if the husband or the wife is unfit for sexual relations, or the husband is absent for a long time, divorce would be justified, but only if the party entitled to it wants it. If both are willing to live in marital agreement, no power on earth can effect a divorce, but if one party finds that she or he is unable to live in marital agreement with the other, it would be a case of shiqāq or breach of the marriage agree­­ment.

This breach of the marriage agreement may arise from many causes or from the conduct of either party; for instance, if either of them mis­conducts himself or herself, or either of them is consis­tently cruel to the other, or, as may sometimes happen, there is incompatibility of temperament to such an extent that they cannot live together in marital agreement. Divorce must then follow. If there is such disagreement that the husband and the wife cannot get on together, it is better for themselves, for their offspring and for society in general that they should be separated rather than that they should be compelled to live together. No home is worth the name in which instead of peace there is wrangling. Marri­age is entered into as a permanent and sacred relation based on love between a man and a woman, and divorce is only a remedy when marriage fails to fulfil its object.

Wife’s right of divorce

It will have been seen that the Holy Quran places the husband and the wife on a per­fect level of equality in the matter of divorce. Hadith makes it clearer still. The Holy Prophet is related to have married a woman called Umaima or Ibnat al-Jaun, and when he initiated intimate relations with her, she said that she sought refuge in God from him, that is to say, wanted a divorce; and he granted her a divorce, and sent her off with some presents.76 Another case is that of a man whose wife came to the Holy Prophet and said that though she did not find fault in her husband regarding his morals or faith but she could not get on with him or could not bear him. The Holy Prophet said: “Will you return to him his orchard [which he had settled upon her as a dowry]?” On receiving a reply in the affirmative, the Holy Prophet sent for him and ordered him to take back his orchard and divorce his wife.77 These two examples are sufficient to show that the wife had the right to claim divorce on those very grounds on which the husband could divorce his wife.

The right of the wife to claim a divorce is not only recognized by the Holy Quran and Hadith but also in Islamic Jurisprudence (Fiqh). The technical term for the wife’s right to divorce by return­ing her dowry is called khul‘ and it is based on the hadith already quoted, and on the following verse of the Quran:

“Divorce may be pronounced twice; then keep them in good fellowship or let them go with kindness. And it is not lawful for you to take any part of what you have given them, unless both fear that they cannot keep within the limits of Allah. Then if you fear that they cannot keep within the limits of Allah, there is no blame on them for what she gives up to become free thereby.” — 2:229

By keeping “within the limits of Allah” here is clearly meant the fulfilment of the object of marriage or performance of the duties imposed by conjugal relationship. The mahr (nuptial gift or dowry) is thus a check on the party who wants the divorce; if the hus­band wants to divorce the wife, the wife shall have the dowry; if the wife wants the divorce, the husband is entitled to his dowry back. But it is the arbiters spoken of in 4:35, and referred to here in the words “if you [arbiters] fear that they [husband and wife] cannot keep within the limits of Allah”, that shall decide whether the husband or the wife is responsible for the breach and which of them is entitled to the dowry.

Husband’s right of pronouncement of divorce

Though the Holy Quran speaks of the divorce being pronounced by the hus­band, yet a limitation is placed upon the exercise of this right. The fol­lowing procedure is laid down in clear words:

“And if you fear a breach between the two [i.e., the husband and the wife], appoint an arbiter from his people and an arbiter from her people. If they both desire agreement, Allah will effect harmony between them.” — 4:35

“And if they separate, Allah will render them both free from want out of His ampleness.” — 4:130

It will be seen that in all disputes between the husband and the wife, which it is feared will lead to a breach, two arbiters are to be appointed from the respective people of the two parties. They are required first to try to reconcile the parties to each other, failing which divorce is to be effected. Therefore, though it is the husband who pronounces the divorce, he is as much bound by the decision of the arbiters as is the wife.

This shows that the husband cannot repudiate the marriage at will. The case must first be referred to two arbiters and their decision is binding. The Caliph Ali is reported to have told a husband, who thought he had the sole right to divorce, that he would have to abide by the judgment of the arbiters appointed under this verse.78 The Holy Prophet is reported to have intervened and dis­allowed a divorce pronounced by a husband, restoring the marital relations.79 This shows that the authority constituted by law has the right to interfere in matters of divorce. When Muslims are living under non-Muslim rule, if no judge has been appointed by the authorities, the appointment of the judges shall be in the hands of the Muslim community. If, therefore, a Muslim government or the Muslim com­­m­unity makes any rules laying down the procedure of divorce and placing such limitations upon the husband in matters of divorce as are not inconsistent with the principles laid down by the Quran, it would be quite Islamic.

Divorce during menstruation

In the Holy Quran, the subject of menstruation is dealt with as a preliminary to that of divorce, and sexual intercourse is pro­hibited when the courses are on, as it is said to be “harmful” (2:222). It is owing to this temporary cessation of sexual relations between the husband and the wife that divorce is prohibited during the period when the menstrual discharge is on. It was brought to the notice of the Holy Prophet that Ibn Umar had divorced his wife while she was menstruating. The divorce was declared to be illegal by the Holy Prophet, and Ibn Umar was asked to take back his wife.80 Thus divorce is only permitted when the woman is clear from the menstrual discharge, there being a further condition that the husband and the wife should not have copulated during that time. Evidently this is meant as a sort of check upon the freedom of divorce.

The waiting time (‘iddah)

The final breaking off of marital relations is discouraged in many other ways and every chance is afforded to the parties to maintain the conjugal tie, even after differences have arisen leading to divorce. Every divorce must be followed by a period of waiting called the ‘iddah. It is stated in the Holy Quran:

“When you divorce women, divorce them for their ‘iddah (prescribed or waiting time).” — 65:1

The waiting time is about three months:

“Divorced women should keep themselves in waiting for three courses (qurū’).” — 2:228

A course or qar’ (singular of qurū’) is normally about four weeks but there are variations in the case of different women.81 In the case of women who do not mens­truate, as well as those whose courses have stopped, the waiting time is three months, and in the case of pregnant women, the waiting period is till delivery.82 The waiting time, among other purposes, serves the purpose of affording the parties a chance of recon­ciliation. Though they are divorced, yet they still live in the same house, the husband being plainly told not to expel the wife from the house in which she has been living unless she is guilty of misconduct, and a simi­lar advice is given to the wife not to leave the house.83 This injunc­tion clearly aims at restoring amicable relations between the parties. If there is any love in the union, its pangs would assert themselves during the time of waiting and bring about a reconciliation.

Divorce is revocable

In fact, reconciliation is recommended in plain words when, spea­k­­­ing of the ‘iddah, the Holy Quran says:

“And their husbands have a better right to take them back in the meanwhile if they wish for reconciliation.” — 2: 228

Every divorce is thus an experimental temporary separation dur­ing its initial stages, and by making the parties live together, every chance is afforded to them to re-establish conjugal relations. Even after the period of waiting has passed away, the two parties are allowed, even encouraged, to remarry:

“And when you divorce women and they end their term of waiting, do not prevent them from marrying their husbands if they agree among themselves in a lawful manner. With this is ad­monished he among you who believes in Allah and the Last Day. This is more virtuous for you and purer. And Allah knows while you do not know.”

— 2:232

Remarriage of the divorced parties is thus encouraged and recommended as being better and purer for the parties. The condition is also laid down that such a revocable divorce, allowing reun­ion of the parties, can be pronounced twice:

“Divorce may be pronounced twice; then keep them in good fellowship or let them go with kindness.” — 2:229

Irrevocable divorce

After the first divorce, the parties have the right to reassert their conju­gal relations within the period of waiting, or to remarry after the waiting period is over. A similar right is given to them after a second divorce, but not after a third. Before Islam, however, while the wife had no right of divorce, the husband had an unchecked licence to divorce the wife and to reassert his conjugal rights during the period of waiting as many times as he pleased.84 Thus women were looked upon as mere chattel which could be discarded and taken at will. Islam not only gave the wife a right of divorce but also checked the husband’s licence to divorce as often as he liked, by declar­ing that revocable divorce could be given only twice. It was thus laid down that, after the second revoca­tion or remarriage, the parties must make their choice either to live together as husband and wife, or to separate forever, never thinking of reunion. Hence if even the second experiment failed and the parties were separated by a divorce for the third time, this was an irrevocable divorce.

Pronouncement of divorce in three forms

The jurists have recognized divorce in three forms. A man would some­times pronounce divorce three times on one and the same occasion, and this would be understood as meaning that divorce had been given three times. Or a man would divorce his wife three times in one and the same ‘iddah, or period of waiting, by divor­cing her once during each of the three times when she was clear of menstruation. Thirdly, there is what the jurists call “the best method of divorcing”, in which divorce is pronounced only once, during a time when there is no menstruation, and this is followed by the period of waiting. This last method is the only method recognized by the Quran, in which it is plainly laid down:

“When you divorce women, divorce them for their ‘iddah (prescribed or waiting time), and calculate the peri­od; and keep your duty to Allah, your Lord.” — 65:1

The divorce is thus to be pronounced only once and when it has been pronounced, the waiting period follows, and during this time the parties have a right to revocation of the divorce. All other forms of divorce are against the Holy Quran and the practice of the Holy Prophet. These are, in fact, only subterfuges to make the revocable divorce an irrevoca­ble one. The pronouncing of three divorces without an interval seems to have been a remnant of pre-Islamic days. The Holy Prophet is reported to have shown indignation when it was brought to his notice that a certain person had pronounced three divorces together,85 and a divorce thus pronounced was annulled by him.86 The revocable divorce of the Quran cannot be made irrevocable as, by this change, a death-blow is dealt to the beneficial spirit underly­ing the institution of divorce in Islam. Hence, whether divorce is pronounced once or three times or a hundred times during one waiting period, it is only a single divorce, and it is revocable during that period.

Effect of irrevocable divorce

It is clear from what has been stated that irrevocable divorce is the very rarest of things that can happen among Muslims, and it can only occur if the two un-Quranic forms of divorce, to make revocable divorces irrevocable, are brought in. When a man and a woman have found by two experiments, each after a divorce, that they cannot live together as husband and wife, it is absurd on their part to think of remarriage again with one another. Hence the Holy Quran lays down that they shall not remarry after a third divorce, except in one case:

“So if he divorces her [for the third time], she shall not be lawful to him afterwards until she marries another husband. If he [the second husband] divorces her, there is no blame on them both if they return to each other [by marriage], if they think that they can keep within the limits of Allah.” — 2:230

Thus the one case in which marri­age with the first husband is allowed, after being divorced for the third time, is that in which a marriage has been contracted with a second hus­band and that too has proved a failure. If there be such a rare case, the parties to the marriage have probably learned a lesson, through another marital union, to the effect that they should behave better towards each other. An irrevocable divorce, being in itself a rarity according to the teachings of the Quran, a case, like the one spoken of in the verse quoted above, would be a still greater rarity, but still if such a case should arise, the parties are allowed to remarry even after an irrevocable divorce.

Procedure of divorce

Divorce may be given orally, or in writing, but it must take place in the presence of witnesses:

“So when they have reached their prescribed time, retain them with kindness or part from them with kindness, and call to witness two just ones from among you, and give upright testimony for Allah.” — 65:2

Whatever the actual words used, they must expressly convey the intention that the marriage tie is being dissolved. As to whether a divorce would be effective under certain circumstances, there are differ­ences among the various schools of jurists. Evidently, intention is as neces­sary a factor in divorce as in getting married. While some recognize that divorce is ineffective if given under compul­sion or influence, or in a state of intoxication, or in anger or jest, or by mistake or inadvertence, others hold it to be ineffective in some of these cases and effective in others. However, the Holy Quran declares divorce to be a very serious matter, and lays down special procedure to be gone through before it is resorted to.

Li‘ān or cursing

The words li‘ān and mulā‘ana signify literally ‘mutual cursing’. Technically these two words indicate that particular form of bringing about separation between the hus­band and the wife in which the husband accuses the wife of adultery but has no evidence to support the accusation, while she denies it. The Holy Quran makes adultery a punishable crime, since this act aims at the destruc­tion of the whole social fabric. At the same time it makes an accusation of adul­tery an equally serious crime, punishable like adultery if strong evidence of adultery is not forthcoming. This is to stop the tongue of slander, which is generally very busy, and does not spare even the most innocent persons. One man has no concern with another’s private affairs, but if a man has strong reasons to believe that his own wife is adulterous, the case is quite different. The li‘ān is suggested in this case, as the me­ans of bringing about separation bet­ween husband and wife, for whether the accusation is right or wrong, it is in the interests of both to get sepa­rated. The following verses deal with this subject:

“And those who ac­cuse their wives and have no witnesses except themselves, let one of them testify four times, bearing Allah to witness, that he speaks the truth, and the fifth time [he shall swear] that the curse of Allah be on him, if he is lying. And it shall avert the punishment from her, if she testi­fy four times, bearing Allah to witness, that he is lying, and the fifth time [she shall swear] that the wrath of Allah be on her, if he speaks the truth.” — 24:6–9

After the parties have thus borne witness, they are separated forever. It will be noticed that there is no mutual cursing in this case; only each of the parties, while bearing witness of his or her own truthfulness, calls for the curse or wrath of God on himself or her­self if he or she tells a lie.

Charitable views of divorce

Divorce is looked upon as a necessity in marital relations, under the varying human conditions, irrespective of moral turpitude on the part of husband or wife. The Holy Quran takes the most charitable view of the neces­sity for divorce, and therefore recommends as much kindness towards women in the case of divorce as in that of marriage. Again and again stress is laid on this point:

“Divorce may be pronounced twice; then keep them in good fellowship or let them go with kindness.” — 2:229

“And when you divorce women and they reach their prescribed time, then retain them with kindness or let them go with kindness.” — 2:231

“So when they have reached their prescribed time, retain them with kindness or part from them with kindness”. — 65:2

Thus a woman is to be treated with equal kindness and generosity, whether she is a sharer in a man’s weal or woe as wife, or one from whom he has been compelled to part company. Marital differences, like other differences, may be as often honest as not, but the Holy Quran recommends that the most charitable view of them should be taken.

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Notes to Chapter 16

1. Editor’s Note: The word “marry” in this verse is ankiḥū, meaning cause them to become married, i.e., bring about marriages of single people.

2. Bukhari, book 67: ‘Marriage’, ch. 1, h. 5063.

3. Ibid., ch. 2, h. 5065.

4. Ibid., ch. 8, h. 5073.

5. Mishkat, book 13: ‘Marriage’, ch. 1, sec. 3, h. 2959 (v. 2, p. 71).

6. Editor’s Note: In 4:1 and 7:189 quoted here, nafs may also be translated as ‘soul’.

7. Editor’s Note: In 16:72 and 30:21 quoted here, the Arabic for “selves” (in the word “yourselves”) is anfus, plural of nafs.

8. Ibn Majah, book 9: ‘Marriage’, h. 1977, h. 1978 (DS: ch. 50).

9. The Quran, 2:233.

10. Bukhari, book 67: ‘Marriage’, ch. 22, h. 5102. In Jurisprudence (Fiqh), opinions vary as to the number of times or period of time for which the child must have been suckled to establish foster relationship.

11. The Quran, 35:24.

12. The Quran, 32:3, 36:6.

13. Editor’s Note: Verse 5:5 speaks of marrying “chaste” believing women and “chaste” women of other revealed religions, and it lays down the same conditions for marrying a woman of another religion as for marrying a Muslim woman. This shows that marriage of a Muslim man with a non-Muslim woman is only allowed if the two of them follow the same code of sexual morality as would apply if both of them were Muslims.

14. Editor’s Note: (1) If a non-Muslim woman becomes a Muslim while already married to a non-Muslim, her existing marriage remains valid in Islam. (2) A Jewish or Christian woman marrying a Muslim man would enter a household where her prophets and scrip­tures are believed in. On the other hand, a Muslim woman marrying a non-Muslim would be entering a household where the Prophet Muhammad and the Quran are not believed in.

15. Abu Dawud, book 12: ‘Marriage’,  ch. 19, h. 2082 (DS: ch. 17/18).

16. Bukhari, book 67: ‘Marriage’, ch. 36, ch. heading.

17. Muslim, book 16: ‘Marriage’, ch. 12, h. 1424a, (DS: h. 3485).

18. Mishkat, book 13: ‘Marriage’, ch. 2, sec. 2, h. 2973 (v. 2, p. 74).

19. The word khaṭaba, which means ‘he addressed (another)’, also signifies ‘he made a proposal of marriage’. The infinitive noun khuṭbah means ‘an address’ and khiṭbah means ‘proposal of marriage’.

20. Bukhari, book 67: ‘Marriage’, ch. 46, h. 5142, h. 5144.

21. Ibid., ch. 33, h. 5120, 5121.

22. Ibid., ch. 34, ch. heading.

23. The Holy Prophet’s own marriage with Aishah is sometimes looked upon as sanctioning the marriage of a minor through his or her guardian. However, in the first place, her nikāḥ was tan­tamount only to an engagement, because the consummation of marriage was postponed for five years, to allow her, no doubt, to attain majori­ty. In the second place, the nikāḥ was performed in Makkah long before the details of the Islamic law were revealed to the Holy Prophet. Therefore it can be no argument for the marriage of a minor.

24. Hidayah, v. 1, p. 293.

25. Abu Dawud, book 12: ‘Marriage’,  ch. 26, h. 2098, see also h. 2099 (DS: ch. 24/25).

26. Ibid., h. 2100; see also h. 2101.

27. Hidayah, v. 1, p. 294.

28. Bukhari, book 67: ‘Marriage’, ch. 42, h. 5136. See also Bukhari, book 89: ‘Coercion’, ch. 3, h. 6946.

29. Bukhari, book 67: ‘Marriage’, ch. 43, ch. Heading, h. 5138.

Editor’s Note: This hadith occurs again in book 89: ‘Coercion’, ch. 3: ‘Marr­i­age under coercion is not permitted’, h. 6945. The woman whose forced marr­iage was repudiated by the Holy Prophet was Khansa, daughter of Khidham. The same incident is mentioned in another report which relates that a woman who was afraid that she would be married against her will sought the advice of two elderly men of the Ansar, and they told her of the case of the repudiation of Khansa’s forced marriage (Bukhari, book 90: ‘Strata­gems’, ch. 11, h. 6969). A report in Ibn Majah is as follows: “A girl came to the Prophet and said: ‘My father married me to his brother’s son so that he might raise his status thereby.’ The Prophet gave her the choice [to leave the marriage]. She said: ‘I approve of what my father did, but I wanted women to know that their fathers have no right to do that’.” (Ibn Majah, book 9: ‘Marriage’, h. 1874; see also h. 1875. In h. 1873 here the incident of Khasna, daughter of Khidham, is also reported. The chapter containing these hadith is headed: ‘He who marries his daughter while she is unwilling’.)

30. The Quran, 5:5.

31. Bukhari, book 67: ‘Marriage’, chs. 51–52, h. 5149–5150. Abu Dawud, book 12: ‘Marriage’, chs. 30–31, h. 2109–2112 (DS: chs. 28/29, 29/30).

32. Abu Dawud, book 12: ‘Marriage’, ch. 32, h. 2114–2117 (DS: ch. 30/31).

33. Bukhari, book 67: ‘Marriage’, ch. 52, h. 5150.

34. Ibid., ch. 51, h. 5149.

35. Ibid., ch. 53, h. 5151. Abu Dawud, book 12: ‘Marriage’, ch. 40, h. 2139 (DS: ch. 38/39).

36. Editor’s Note: His name was Abu-l-‘Āṣ and he was married to the Holy Prophet’s daughter Zainab since before the Holy Prophet’s mission began. He accepted Islam shortly before the conquest of Makkah.

37. Bukhari, book 67: ‘Marriage’, ch. 53, ch. heading.

38. Editor’s Note: This condition means that the husband cannot compel his wife to move to a different land or country after marriage.

39. See Muhammadan Law by Syed Ameer Ali, p. 248–249.

40. Tirmidhi, book 11: ‘Marriage’, ch. 6, h. 1088–1090 (DS: book 9). Nasa’i,  book 26: ‘Marriage’, ch. 72, h. 3369, h. 3370 (DS: h. 3371, h. 3372). Ibn Majah, book 9: ‘Marriage’, h. 1895–1900 (DS: chs. 20–21).

41. Bukhari, book 67: ‘Marriage’, ch. 49, h. 5147.

42. Ibn Majah, book 9: ‘Marriage’, h. 1900 (DS: ch. 21).

43. Mishkat, book 13: ‘Marriage’, ch. 4, sec. 2, h. 3014 (v. 2, p. 80–81).

44. The Quran, 65:2.

45. Bukhari, book 67: ‘Marriage’, ch. 57, h. 5155.

46. Bukhari, book 8: ‘Prayer’, ch. 12, h. 371.

47. Bukhari, book 67: ‘Marriage’, ch. 70, h. 5171.

48. Ibid., chs. 68, 69, 71, 72, ch. headings.

49. Bukhari, book 10: ‘Call to prayer’, ch. 162–166, h. 864–870, h. 872–873, h. 875.

50. Bukhari, book 56: ‘Jihād’, chs. 66–68, h. 2881–2883.

51. Ibid., ch. 63, h. 2877; and ch. 65, ch. heading.

52. Bukhari, book 67: ‘Marriage’, ch. 108, h. 5224.

53. Ibid., ch. 78, h. 5182.

54. Bukhari, book 11: ‘Friday Prayer’, ch. 40, h. 938.

55. Bukhari, book 34: ‘Sales and Trade’, ch. 67, h. 2155–2156.

56. This verse is dealt with a little further on under the heading Decent Dress.

57. Bukhari, book 4: ‘Ablutions’, ch. 13, h. 147; book 67: ‘Marriage’, ch. 116, h. 5237.

58. Ibn Jarir Tabari’s Commentary of the Quran, vol. 18, p. 84.

59. Hidayah, v. 1, p. 88, ‘Conditions of Prayer’.

60. Bukhari, book 25: ‘Pilgrimage’, ch. 23, ch. heading.

61. Ibn Jarir Tabari’s Commentary of the Quran, vol. 18, p. 84, and Rūḥ al-Ma‘ānī, Commentary of the Quran, vol. 6, p. 52.

62. Abu Dawud, book 34: ‘Clothing’, ch. 33, h. 4104.

63. Lane’s Lexicon.

64. Editor’s Note: The term for a ‘near relative’ of a woman is dhū maḥram, which means one so closely related that marriage with him is prohibited. It is also applied to her husband.

65. Bukhari, book 67: ‘Marriage’, ch. 112, h. 5233.

66. Ibid., ch. 113, ch. heading, and h. 5234.

67. Ibid., ch. 78, h. 5182.

68. Ibid., ch. 91, h. 5200.

69. Ibid., ch. 90, h. 5199.

70. Ibid., ch. 87, h. 5195.

71. The Quran, 2:229, 2:231, 4:19, 65:2, etc.

72. Mishkat,book 13: ‘Marriage’, ch. 11, sec. 2, h. 3114 and h. 3125 (v. 2, p. 101 and p. 103).

73. Bukhari, book 67: ‘Marriage’, ch. 81, h. 5185–5186.

74. Muslim, book 15: ‘Pilgrimage’, ch. 19, h. 1218a (DS: h. 2950).

75. Abu Dawud, book 13: ‘Divorce’, ch. 3, h. 2177, h. 2178.

76. Bukhari, book 68: ‘Divorce’, ch. 3, h. 5254, h. 5255.

77. Ibid., ch. 12, h. 5273-5277.

78. Razi, Fakhr-ud-Din, Al-Tafsīr al-Kabīr, vol. 3, p. 320.

79. Bukhari, book 68: ‘Divorce’, chs. 1, 2, h. 5251, h. 5252.

80. Ibid.

81. Editor’s Note: The word qar’ means the start of a menstrual cycle. The waiting time after divorce is the passing of three menstrual cycles.

82. The Quran, 65:4.

83. The Quran, 65:1.

84. Razi, Fakhr-ud-Din, Al-Tafsīr al-Kabīr, vol. 2, p. 372.

85. Nasa’i, book 27: ‘Divorce’, ch. 6, h. 3401 (DS: h. 3430).

86. Musnad of Ahmad ibn Hanbal, vol. 1, p. 265.