Women in Islamic Law: Difference between revisions

Islamic law prohibits Muslim women from marrying non-Muslim men. If a Muslim woman converts to Islam, her marriage to a non-Muslim husband is nullified. If a Muslim woman's husband apostatizes, their marriage is also nullified.   

This ruling, derived from a verse in the Qur'an, has enjoyed legally-binding scholarly consensus (''ijma'')<ref name="IndianaLawJournal">Leeman, Alex B. (2009) "Interfaith Marriage in Islam: An Examination of the Legal Theory Behind the Traditional and Reformist Positions," Indiana Law Journal: Vol. 84 : Iss. 2 , Article 9. pp.754-759

Available at: http://ilj.law.indiana.edu/articles/84/84_2_Leeman.pdf and https://www.repository.law.indiana.edu/ilj/vol84/iss2/9</ref><ref>[https://www.islamawareness.net/Marriage/fatwa_11.html Verses on Interfaith Marriage: Still Binding? Archive of islamonline.net]</ref><ref>[https://archive.islamonline.net/?p=1187 Why a Muslim Woman Is Not Allowed to Marry a Non-Muslim Man]</ref>,

Muslim men, by contrast, have fewer restrictions are permitted to marry Muslim women and people of the Book (this includes Jewish and Christian women).

In recent times, some Islamic modernists have argued that the classical view does not necessarily follow from the Qur'anic verses and that Muslim women should be given more freedom, though in both the scholarly and lay communities this remains a fringe view ''vis-a-vis'' the traditional view.<ref>[https://www.huffingtonpost.ca/junaid-jahangir/muslim-women-marriage_b_15472982.html?guccounter=1&guce_referrer_us=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_cs=Gv3znsP7rlc9K98rQxNZAQ Muslim Women Can Marry Outside The Faith - Blog on Huffington Post by Junaid Jahangir]</ref>

A father or guardian must ask the consent of his virgin daughter before offering her in marriage, based on a well known sahih hadith. However, according to the same hadith, if she remains silent when asked, offering no explicit acceptance, this counts as consent ({{Muslim|8|3303}}, {{Muslim|8|3305}}). As a result, while women have the decision as adults to decide whom they marry, young girls may be married off before they are physically (or, much less, mentally) capable of providing anything in the way of consent. The Quran, in providing guidelines on the procedure for divorce, states what must be done in the case of wife who has not yet reached puberty. Child marriage was practiced by Muhammad himself, who married Aisha at the age of six and copulated with her at the age of nine, while he was in his fifties.{{Quote|{{Quran|65|4}}| [speaking of the prescribed waiting period for a divorce]  And those of your women as have passed the age of monthly courses, for them the 'Iddah (prescribed period), if you have doubts (about their periods), is three months, and '''for those who have no courses''' their 'Iddah (prescribed period) is three months likewise.}}{{Quote|{{Bukhari|5|58|236}}; see also: {{Bukhari|7|62|64}}| Narrated Hisham's father: Khadija died three years before the Prophet departed to Medina. He stayed there for two years or so and then he married 'Aisha when she was a girl of six years of age, and he consumated that marriage when she was nine years old.}}

Ayatollah Khomeini, the Iranian Shi'ite religious leader, married a ten-year-old girl when he was twenty-eight. Khomeini called marriage to a prepubescent girl "a divine blessing," and advised the faithful: "Do your best to ensure that your daughters do not see their first blood in your house."

Today, child marriages occur [[Contemporary Pedophilic Islamic Marriages|all over the world]], but the practice is especially common in Muslim-majority countries, particularly in those that practice Shari'a. [http://www.un.org/youthenvoy/2016/03/new-un-initiative-aims-to-protect-millions-of-girls-from-child-marriage The UN] regards child marriage as a human rights violation and aims to eradicate it by 2030. The girl is vulnerable to spousal abuse and childhood pregnancy which greatly jeopardizes her health and future.

{{Main|Polygamy in Islam|Dealing Justly with Wives and Orphans|Unjust treatment of wives}}Islamic law permits men to marry up to four wives (alongside an unlimited number of concubines), while women are restricted to a single husband and are prohibited from any other form of sexual activity. Modern Islamic scholars differ on whether or not a bride may stipulate as a condition of her marriage that her husband remain monogamous. Some argue that this is permissible while most maintain that such a restriction cannot be justified as it impedes on rights that God has given men. {{Quran|4|3}}, which permits Muslim men to take up to four wives, also demands that they do 'justice' to them. According to most Muslim scholars, this is does not prohibit any sort of romantic favoritism, and serves only to make sure that those who take on multiple wives have the minimum necessary financial wherewithal to do so. Muhammad himself (who was exempt from the four-wife limit per the Quran<ref>{{Quran|33|50}}</ref>, married nearly a dozen wives (having eleven at once), and kept concubines) openly pronounced and practiced his preference for Aisha, who was his favorite and youngest wife.{{Quote|{{Quran|4|3}}|And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess; this is more proper, that you may not deviate from the right course.}}Muhammad also restricted his son-in-law Ali (who was also his first cousin) from engaging in polygamy and demanded that he remain monogamous with his daughter Fatima.{{Quote|{{Bukhari|7|62|157}}| Narrated Al-Miswar bin Makhrama:

I heard Allah's Apostle who was on the pulpit, saying, "Banu Hisham bin Al-Mughira have requested me to allow them to marry their daughter to Ali bin Abu Talib, but I don't give permission, '''and will not give permission unless 'Ali bin Abi Talib divorces my daughter in order to marry their daughter, because Fatima is a part of my body, and I hate what she hates to see, and what hurts her, hurts me."'''}}

{{Main|Purpose of the Mahr|Qur'an, Hadith and Scholars:Mahr}}Islamic scriptures describe the ''mahr,'' or primarily financial gift made by a groom to his bride upon a ''nikah'' (intercourse) contract, as 'the recompense for your having had the right to intercourse with her'.{{quote | {{Muslim|9|3557}} |

Ibn Umar (Allah be pleased with them) reported Allah's Messenger (may peace be upon him) saying to the invokers of curse: Your account is with Allah. One of you must be a liar. You have now no right over this woman. ''''He said: Messenger of Allah, what about my wealth (dower that I paid her at the time of marriage)? He said: You have no claim to wealth. If you tell the truth, it (dower) is the recompense for your having had the right to intercourse with her'''', and if you tell a lie against her, it is still more remote from you than she is. Zuhair said in his narration: Sufyan reported to us on the authority of 'Amr that he had heard Sa'id b Jubair saying: I heard Ibn Umar (Allah be pleased with them) saying that Allah's Messenger (may peace be upon him) had said it. }}The purpose of the mahr is to serve as a payment from a man to a woman for the future sexual relations (nikah) he will have with her. This is further illustrated by the requirement for a ''mahr'' in temporary "marriages", the statements of Muhammad, and the fact that a mahr cannot be taken back (except under extenuating circumstances) because the man has availed himself of the service for which it was payment. The Qur'an supports and confirms, rather explicitly, the explanation provided in these sahih hadiths.

{{Main|The Meaning of Nikah}}The Arabic word for "marriage" is "zawaj". In Islamic law, marriage is considered under the concept of ''nikah'', a legal and financial contract between a male and a female Muslim. Nikah literally means "sexual intercourse".{{Quote|Ruxton (1916: 106). Quoted by Ziba Mir-Hosseini in volume five of Voices of Islam, pp. 85-113|When a woman marries, she sells a part of her person. In the market one buys merchandise, '''in marriage the husband buys the genital ''arvum mulieris'''''. As in any other bargain and sale, only useful and ritually clean objects may be given in dower.}}{{Quote|Ronak Husni, Daniel L. Newman, Muslim women in law and society: annotated translation of al-Tahir al Haddad al-Ṭāhir Ḥaddād, p. 182|The Arabic word for marriage is zawaj or '''nikah, the latter being derived from the verb nakaha (‘to have sexual intercourse’): cf. Qur. II: 230'''. Nikah is also used to denote the marriage contract (cf. ‘aqd, ‘aqd qiran).}}{{Quote|The Risala of 'Abdullah ibn Abi Zayd al-Qayrawani (310/922 - 386/996) A Treatise on Maliki Fiqh (Inc. commentary from ath-Thamr ad-Dani by al-Azhari) Ch. 32|[These are eight things. The first, marriage, is the root and rest are consequences. Each has a linguistic meaning and usage which we will mention in its proper place. Marriage '''(nikah) linguistically means intercourse''' and is used as a metaphor for the contract. In technical usage, it is actual for the contract and metaphorical for intercourse. It is used in custom to mean to mean intercourse as the Almighty says, "Until she marries a husband other than him," '''(2:230) and so it is known from this that nakaha is used for intercourse between any man and woman. Marriage in the sense of intercourse''' is only permitted in the Shari'a by one of two matters: the contract of marriage or ownership by the words of the Almighty, "those who guard their private parts – except from their wives or those they own as slaves, in which case they are not blameworthy." (23:5-6)}}

=== Temporary ''Mut'ah'' marriages ===

Mutah is practiced mainly by Shi'ites today, although at one time Muhammad permitted it for all Muslims. This is one of many areas of disagreement between Sunnis and Shi'ites. Sunnis believe Muhammad abrogated Mutah, while Shi'ites disagree and still practice Mut'ah as allowed by Muhammad.

According to Islamic literature, Mutah was first made unlawful by Mohammad on the day of the battle of Khaybar (a battle against a Jewish tribe named Khaybar), after having been practiced since the conception of Islam. It was then made lawful again on the day of Conquest of Makkah for 3 days by Muhammad, at which point his companions complained to him their desire for women. From here onwards, it is disagreed upon between Sunnis and Shias on whether Mutah was made again unlawful by Muhammad or not. Historical records show that the practice of Mutah continued in the early Muslim community by the companions until Umar (the second caliph) forbade it sometime between 13-23 AH. Even at this point, however, a number of Muhammad's prominent companions held the belief that Mutah was never made again unlawful by Muhammad, the most notable being Ibn Abbas.<ref>https://sunnah.com/muslim:1406f

The Sunni Shafi'i scholar al-Baydawi said of Mutah, "The purpose of the contractual marriage is the mere pleasure of intercourse with a woman, and her own enjoyment in what she has given."<ref>p. 108, ''The Interpretation of the Baydawi''</ref>

The practice of Mutah is mentioned in several authentic hadiths.{{Quote|{{Bukhari|6|60|139}}| Narrated Abdullah:

{{Quote|{{Muslim|8|3252}}|Sabra Juhanni reported: Allah's Messenger (may peace be upon him) permitted temporary marriage for us. So I and another person went out and saw a woman of Bana 'Amir, who was like a young long-necked she-camel. We presented ourselves to her (for contracting temporary marriage), whereupon she said: What dower would you give me? I said: My cloak. And my companion also said: My cloak. And the cloak of-my companion was superior to my cloak, but I was younger than he. So when she looked at the cloak of my companion she liked it, and when she cast a glance at me I looked more attractive to her. She then said: Well, you and your cloak are sufficient for me. I remained with her for three nights, and then Allah's Messenger (may peace be upon him) said: He who has any such woman with whom he had contracted temporary marriage, he should let her off.}}{{Quote|{{Muslim|8|3248}}|Ibn Uraij reported:

'Ati' reported that jibir b. Abdullah came to perform 'Umra, and we came to his abode, and the people asked him about different things, and then they made a mention of temporary marriage, whereupon he said: Yes, we had been benefiting ourselves by this temporary marriage during the lifetime of the Prophet (ﷺ) and during the time of Abu Bakr and 'Umar.}}The following quotation regarding Mut'ah marriage is taken from a Shi'ite website.<ref>[http://www.answering-ansar.org/answers/mutah/en/index.php-http://www.answering-ansar.org/answers/mutah/en/index.php The Marriage of Mut'ah: Introduction: Preface] - Answering Ansar</ref>{{Quote||Whenever man sets foot on the earth the need to travel always emerges. Sometimes traveling can involve man going thousands of miles away from home, sometimes for moths, even years. Do one's sexual desires just evaporate when an individual is traveling? Sexual desire isn't like some light switch that turns off when a man leaves his wife to set off on his travels, and turns back home when he gets back! Sexual desire is something that remains permanently with a human, when it accompanies him at all times then how can he curtail such sexual feelings? When someone is traveling and accessing his wife is impossible, and he is incapable of summing her to join him, then what will a young red-blooded male do? Miles away from home, feeling sexually aroused his situation is not one wherein he can get permanently married, so what is he to do? He will feel the only way that he can relieve himself is by amalgamating himself into the society around him. Islam does not permit a person to sexually relieve himself through masturbation nor is he permitted to adopt the ways of the kufr and indulge himself in fornication, it offers him a legitimate mechanism with which to relieve himself and that is temporary marriage.

It is not just traveling, that might necessitate Mutah, there are many in society who just does not have the financial ability / standing to get permanent married, yet they still have sexual desires, again Mut'ah is there to ensure that they practice sex within the boundaries set by Allah (swt).

Islam is a religion that is suited for all nations and ages. Mut'ah is a good example of that. It is only the Deen of Islam that caters for sexual desire by permitting a legitimate method of control. For others societies the only mechanism that they see as the solution to relieving sexual feelings is through the practice of fornication. In the western world adultery and fornication are common and openly performed. Mut'ah is a way of protecting a person from committing these serious sins and vices.}}